Case 1:07-cv-01048-HFB Document 1-1 Filed 06/07/2007 Page 1 of 16

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION

ROSALINO PEREZ-BENITES, LUIS ALBERTO ASENCIO-VASQUEZ, and PASCUAL NORIEGA-NARVAEZ, individually and on behalf of all others similarly situated,
Plaintiffs,
v. CANDY BRAND, LLC, ARKANSAS TOMATO SHIPPERS, LLC., CHARLES SEARCY, RANDY CLANTON, DALE MCGINNIS, and BROOKS LINES BY.
Defendants.

) ) ) ) ) ) )
~ CaseNo. 01~/0t.Jr{
) ) COMPLAINT- CLASS ACTION ) ) ) ) ) ) )

COMPLAINT CLASS ACTION

PRELIMINARY STATEMENT

1. Representative Plaintiffs bring this civil action on behalf of a class of about

2700 Mexican migrant workers who harvested and packed tomatoes and performed other

agricultural work for Defendants in and around Bradley County, Arkansas during 2002, 2003,

2004, 2005, 2006 and 2007.

2. Acting through their agents, Defendants recruited Plaintiffs to work on their Arkansas

farms. Defendants, through their hiring agents, made binding promises regarding wages, hours

and working conditions. In reliance upon and in consideration of these binding promises,

Plaintiffs left their homes and spent a considerable money and effort to travel to Arkansas to

work for the Defendants. Despite making such binding promises, Defendants consistently failed
~ ·~·lr'

Pis. 'Original Complaint

JUN 0 1 2C07

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to pay the promised wage for all hours worked, and failed to reimburse Plaintiffs for expenses incurred for the benefit of the Defendants.
3. Defendants failed to pay Plaintiffs the hourly wages and overtime required by federal law throughout Plaintiffs' employment with Defendants.
4. In order to obtain these temporary positions with Defendants, all of the workers had to pay travel, visa, and hiring fees, some as much as $3,500. These sums were expended solely for the benefit of the Defendants. The Defendants' failure to reimburse the workers' money in their first week of work was a violation of the Fair Labor Standards Act, 29 U.S.C. § 20 I et seq, (hereinafter "FLSA"). As a result of these expenditures, the workers earned substantially less than the minimum wage in their first week of work.
5. Plaintiffs and other class members are indigent migrant farm workers who came to the United States on temporary H-2A visas in an effort to earn money to better support themselves and their families. The Defendants took full advantage of Plaintiffs' and other class members' indigence, inability to speak or understand English, isolation, and lack of understanding of the laws of the United States regarding payment of wages, to grossly underpay Plaintiffs and other class members. Plaintiffs file this action to secure and vindicate their rights under the FLSA and state and federal contract law.
6. On behalf of themselves and other similarly situated farm workers, Plaintiffs seek restitution of unpaid wages, an award of money damages, and declaratory relief both to make themselves whole for damages they suffered due to Defendants' violations oflaw and to ensure that Defendants will not subject them and other H-2A workers to such illegal conduct in the future.

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JURISDICTION 7. This Court has jurisdiction over the subject matter of this action pursuant to 29 U.S.C. § 216(b) (Fair Labor Standards Act), 28 U.S.C. § 1331 (federal question jurisdiction), and 28 U.S.C. § 1337 (actions arising under Acts of Congress regulating commerce). 8. This Court has supplemental jurisdiction over the claims arising under state law pursuant to 28 U.S.C. § 1367 because those claims are so related to the federal claims that they form part of the same case or controversy. 9. The Court is empowered to issue a declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202.
VENUE
10. Venue is proper in this district pursuant to 28 U.S.C. § 139l(b). PARTIES
II. Defendant Candy Brand, LLC is an Arkansas limited liability corporation that conducts substantial business in Bradley County, Arkansas.
12. Defendant Arkansas Toinato Shippers, LLC is an Arkansas limited liability corporation that conducts substantial business in Bradley County, Arkansas.
13. Defendant Charles Searcy is an individual conducting substantial business in Bradley County, Arkansas.
14. Defendant Randy Clanton is an individual conducting substantial business in Bradley County, Arkansas.
15. Defendant Dale McGinnis is an individual conducting substantial business in Bradley County, Arkansas.
16. Defendant Brooks Linesby is an individual conducting substantial business in

Pis. ' Original Complaint

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Bradley County, Arkansas. 17. Plaintiffs Rosalino Perez-Benites, Luis Alberto Asencio-Vasquez and Pasqua!
Noriega-Narvaez [hereinafter "Representative Plaintiffs"] are citizens of Mexico who maintain their permanent homes in Mexico.
18. At all times relevant to this action, Representative Plaintiffs and the other class members were H-2A foreign guestworkers within the meaning of 8 U.S.C. § 1101(a)(15)(H)(ii)(a) and were admitted to the United States to work for Defendants.
CLASS ACTION ALLEGATIONS 19. Plaintiffs bring this action on behalf of themselves and all other similarly situated workers defined as "all those individuals admitted as H-2A guestworkers who were employed by the Defendants in their Arkansas tomato harvesting and packing operations from June 1, 2002 to the present." With respect to Count I, Plaintiffs bring this action as a collective action under the FLSA. A collective action is appropriate because the employees described are similarly situated to the named Plaintiffs. 29 U.S.C. § 216(b); Hoffrnan-La Roche. Inc. v. Sperling, 493 U.S. 165, 170 (1989). 20. Plaintiffs bring Count II of this action as a class action pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure. 21. Certification of a class of persons who may receive relief pursuant to Count II is appropriate pursuant to Fed. R. Civ. P. 23(b)(3) because: (a) The class is so numerous that it is impractical to bring all its members before this Court. On information and belief, the class is believed to include well over 2700 individuals. (b) There are questions of law and fact common to the class; (c) The Representative Plaintiffs' claims are typical of those in the class;

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(d) The Representative Plaintiffs will fairly and adequately protect the interest of the class;
(e) Plaintiffs have retained counsel experience in matters of this type; and (f) Questions oflaw common to the members of the class predominate over the questions affecting only individual members and a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Testimony and evidence about Defendants' recruitment, hiring, and employment practices will affect and apply to the claims of other class members. Purely individual questions will be restricted to damages questions should liability be established. If no class action is certified, it will make it impractical for individual class members to pursue relief, or may lead to a large number of separate lawsuits, all of which would rely on the same kind of proof and take roughly the same amount of time, causing an unnecessary burden on the courts. 22. A class action under Rule 23(b)(3) is superior to other available methods of adjudicating this controversy, inter alia: (a) The common issues oflaw and fact, as well as the relatively small size of the individual class members' claims, substantially diminish the interest of members of the class in individually controlling the prosecution of separate actions; (b) Many members of the class are unaware of their rights to prosecute these claims and lack the means or resources to secure legal assistance; the class is comprised principally of indigent migrant farmworkers who maintain their residences in locations throughout Mexico. The class members are not fluent in the English language-the majority speak Spanish as their primary language. (c) There has been no litigation already commenced against the Defendants by the

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members of the class to determine the questions presented; (d) It is desirable that the claims be heard in this forum since the Defendants have
significant contacts with this District; and (e)· A class action can be managed without undue difficulty since the
Defendants have regularly committed the violations complained of herein, and Defendants are required to maintain detailed records concerning each member of the class.
(f) Representative Plaintiffs will fairly and adequately represent the interest of the class. Representative Plaintiffs' interests are in no way antagonistic or adverse to the other class members.
23. Plaintiffs' counsel are experienced in actions by H-2A workers to enforce their rights under their employment contracts and have handled numerous class actions in federal courts. Plaintiffs' counsel are prepared to advance litigation costs necessary to vigorously litigate this action and to provide notice to the class members under Rule 23(b)(3)
STATUTORY AND REGULATORY STRUCTURE 24. An agricultural employer in the United States may import foreigners to perform labor of a temporary nature ifthe U.S. Department of Labor certifies that (1) there are insufficient available workers within the United States to perform the job, and (2) the employment of aliens will not adversely affect the wages and working conditions of similarlysituated U.S. workers. 8 U.S.C. §§ llOl(a)(lS)(H)(ii)(a) and 1188(a)(l). Foreign workers admitted in this fashion are commonly referred to as "H-2A workers." 25. Agricultural employers seeking the admission ofH-2A workers must first file a temporary labor certification application with the U.S. Department of Labor. 20 C.F.R. §§ 655.10l(a)(l) and (b)(!). This application must include a job offer, commonly referred to as a

Pis. 'Original Complaint

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"clearance order" or "job order," complying with the applicable regulations, which is used in the recruitment of both U.S. and H-2A workers. 20 C.F.R. § 655.101(b)(l). These regulations establish the minimum benefits, wages, and working conditions that must be offered in order to avoid adversely affecting similarly-situated U.S. workers. 20 C.F.R. §§ 655.10l(a)(2), 655.102(b)and 655.103. Among these terms are the following:
a. Payment to all workers of at least the applicable adverse effect wage rate for every hour or portion thereof worked during a pay period. 20 C.F.R. §§ 655.102(b)(9)(i) and (ii);
b. Compliance with the assurances required of applications for H-2A workers by 20 C.F.R. § 655.103, including an assurance that the employer would not intimidate, threaten, blacklist, discharge, or in any manner discriminate against workers testifying in any proceeding related to the H-2A program; and
c. Compliance with all federal, state, and local employment laws and regulations. 20 C.F.R. § 655.103(b). STATEMENT OF FACTS
26. Because of the lack of available farm workers in the area of their operations, Defendant Candy Brand, LLC filed application(s) for temporary foreign workers through the H-2A program each year from 2002 through 2007.
27. Pursuant to the applications described in paragraph 28, Defendant Candy Brand LLC received H-2A Alien certifications for and imported approximately the following numbers of workers each year: two hundred (200) foreign workers in 2002, three-hundred and forty-eight (348) foreign workers in 2003, four-hundred and forty-eight (448) foreign workers in 2004, fivehundred and seventy-seven (577) foreign workers in 2005, five-hundred and seventy-seven (577)

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foreign workers in 2006. Defendant Candy Brand LLC has received certification to import, has imported, and/or or will soon import, five-hundred and seventy-seven (577) foreign workers in 2007.
28. Defendant Candy Brand LLC filed these applications for temporary foreign workers, received certifications, and imported foreign workers on behalf of all other Defendants.
29. Representative PlaintiffRosalino Perez-Benites worked for Defendants in 2005 and 2006 pursuant to an H-2A visa.
30. Representative Plaintiffs Luis Alberto Asencio-Vasquez and Pasqua! NoriegaNarvaez worked for Defendants in 2006 pursuant to H-2A visas.
31. At all times relevant to this action, Defendants jointly employed Representative Plaintiffs and other class members for purposes ofthe FLSA.
32. At all times relevant to this action, Defendants jointly employed Representative Plaintiffs and other class members for purposes of compliance with their employment contracts within the meaning of29 U.S.C. § 655.100.
33. The terms of the work contract under which Representative Plaintiffs and all other class members were employed by Defendants were determined by:
(a) The terms offered in the "clearance orders" submitted by Defendants to the United States Department of Labor to obtain permission to import foreign workers;
(b) The terms of work set forth in the regulations governing the visas of Representative Plaintiffs and other class members, 20 C.F.R. § 655; and
(c) The individual work contracts provided to Representative Plaintiffs and other class members by Defendants.

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34. Representative Plaintiffs and other class members work contract offered, inter alia, the following terms of work:
(a) Wages equal to the higher of the minimum wage, the adverse effect wage rate, or the prevailing wage rate;
(b) Maintenance and provision of detailed, complete, and accurate records of worker pay and work time; and
(c) Compliance by Defendants with all federal, state, and local employmentrelated legislation.
35. The terms and conditions of employment offered by Defendants induced Representative Plaintiffs and other class members to travel from their homes in Mexico to Arkansas to work for Defendants. Representative Plaintiffs and other class members accepted the terms and conditions of employment and reasonably relied upon representations made to them in Mexico by Defendants and/or their agents.
36. Representative Plaintiffs and other class members traveled from their homes in Mexico to Defendants' work sites in Arkansas, where they performed the agricultural work described in the clearance order, including harvesting and packing tomatoes.
37. In order to get to Defendants' farm and commence work under the above contract, Representative Plaintiffs and other class members had to pay various fees and expenses each year, including, but not limited to, hiring fees, visa fees, bus fare, and subsistence from their home towns in Mexico to Arkansas.
38. The expenses described in paragraph 37 were primarily for the benefit of the Defendants as employers of Representative Plaintiffs and other class members.
39. As recruiters of Mexican citizens in Mexico for work in the United States, Defendants and/or their agents were required to directly bear some of the costs described in paragraph 37, pursuant to the laws of Mexico.

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40. As a matter of practice and/or policy, Defendants did not reimburse Representative Plaintiffs and other class members for the expenses described in paragraph 37.
41. As a result of the expenses described in paragraph 37 and Defendants' practice and/or policy not to reimburse those expenses, Representative Plaintiffs and other class members did not earn the minimum wage or overtime premium mandated by the FLSA in their first workweek.
42. Representative Plaintiffs and other class members completed work for Defendants in the fields and in the packing sheds.
43. When working in the packing shed(s), Representative Plaintiffs and other class members were not engaged in practices performed by a farmer or on a farm as an incident to or in conjunction with such farming operations pursuant to 29 U.S.C. § 203(f) and subsequent defining regulations.
44. As a matter of practice and/or policy, Defendants did not pay Representative Plaintiffs and other class members overtime wages for hours in excess of forty hours a workweek, for weeks in which they worked in the packing shed(s).
45. As a matter of practice and/or policy, Defendants did not pay Representative Plaintiffs and other class members at least the adverse effect wage rate for each hour worked, for workweeks in which they worked in the fields.
46. As a matter of practice and/or policy, Defendants failed to provide Representative Plaintiffs and other class members adequate written hours and earnings statements each payday, for workweeks in which they worked in the fields.
47. At all times relevant to this action, Defendants employed Representative Plaintiffs and other class members within the meaning of29 U.S.C. § 203(g).

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48. At all times relevant to this action, Defendants were employers of Representative Plaintiffs and other class members within the meaning of29 U.S.C. § 203(d).
49. At all times relevant to this action, Representative Plaintiffs and other class members were employees of Defendants within the meaning of29 U.S.C. § 203(e)(l).
50. At all times relevant to this action, Defendants employed Representative Plaintiffs and other class members in the production, packing, and harvesting of vegetables for sale in interstate commerce.
51. At all times relevant to this action, Defendants were employers covered by the FLSA.
52. At all times relevant to this action, Plaintiffs were involved in the production of goods for sale in interstate commerce and subject to the protections of the FLSA.
53. At all times relevant to this action, Defendants acted directly or indirectly in the interest of the employer in relation to Representative Plaintiffs and other class members.
54. All conditions precedent to this action have been satisfied. 55. All actions and omissions alleged herein were undertaken by Defendants either directly and/or through their agents. 56. The Defendants' failure to pay wages in compliance with the FLSA was willful.

COUNT 1: FAIR LABOR STANDARDS ACT (29 U.S.C. § 216(b) COLLECTIVE ACTION) 57. This count sets forth a claim for declaratory relief and damages for the Defendants' violations of the minimum wage and overtime provisions of the Fair Labor Standards Act ("FLSA"). This count is brought by Representative Plaintiffs on behalf of a class of other similarly situated workers consisting of all those individuals admitted as H-2A

Pis. 'Original Complaint

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guestworkers who were employed by the Defendants in their Arkansas tomato harvesting and packing operations from June 1, 2002 to the present.
58. Pursuant to 29 U.S. C.§ 216(b), each Representative Plaintiff consented in writing to be a plaintiff in this FLSA action. Their written consents are attached to this complaint.
59. Defendants violated the rights of Representative Plaintiffs and other similarly situated workers by failing to pay each worker the applicable minimum wage for every compensable hour oflabor performed in a workweek, in violation of29 U.S.C. § 206(a).
60. Defendants violated the rights of Representative Plaintiffs and other similarly situated workers by systematically failing to pay each worker at least an average of one-and-ahalftimes the applicable wage for all hours worked above forty during overtime-eligible workweeks. 29 U.S.C. § 207(a).
61. The violations of the FLSA in this count resulted, in part, from the Defendants' failure to reimburse Representative Plaintiffs and other similarly situated workers for expenses primarily benefiting the Defendants, prior to their first week of work, as described herein. When these expenses were deducted from Representative Plaintiffs' and other similarly situated workers' first week's pay, they brought their earnings below the applicable minimum and overtime wages for the first workweek.
62. As a result of the Defendants' violations of the FLSA set forth in this count, each Representative Plaintiff and other similarly situated workers are entitled to recover the amount of his or her unpaid minimum and overtime wages and an equal amount as liquidated damages, pursuant to 29 U.S.C. §216(b).
COUNT II - BREACH OF EMPLOYMENT CONTRACT (CLASS ACTION)

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63. This count sets forth a claim by Representative Plaintiffs on behalf of themselves and other class members for damages arising from Defendants' breaches of the workers' employment contracts, as embodied in the annual clearance orders, from 2002 until the present.
64. The terms and conditions of employment contained in the clearance orders described in paragraphs 33 and 34 constituted enforceable employment contracts between Defendants and the H-2A workers, the terms of which are principally supplied by federal regulations 20 C.F.R. §§ 653.501, 655.102, and 655.103.
65. Representative Plaintiffs and other class members accepted the ·terms in the clearance order as communicated to them in Mexico by Defendants and their agents. Based on this agreement and accepting the Defendants' offer of employment, Representative Plaintiffs and other class members left their families and traveled from Mexico to the Arkansas and presented themselves for work.
66. Defendants breached their employment contracts with Representative Plaintiffs and other class members by providing terms and conditions of employment that were materially different from those described in its clearance orders, including the following:
a. The workers were not paid at least the applicable adverse effect wage rate for their labor;
b. Defendants failed to comply with the minimum wage and overtime provisions of the FLSA, an employment-related law, as required by the contract;
c. Defendants failed to keep accurate and adequate records with respect to the workers' earnings as required by 20 C.F.R. § 655.102(b)(7); and
d. Defendants failed to the furnish workers with hours and earnings statements accurately setting out the data required by 20 C.F.R. § 655.102(b)(8).

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67. Defendants' breaches of their employment contracts with Representative Plaintiffs and other class members have caused these workers grave financial and other serious injuries.
68. Defendants are liable to Representative Plaintiffs and other class members for the actual, incidental, and consequential damages which arose naturally and according to the usual course of things from Defendants' breaches, as provided by Ark. Stat. Ann.§ 16-22-308 (2007) and the federal common law of contracts, including unpaid wages, damages arising from the delay, and pre-judgment interest.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court enter an order:
A. Permitting this case to proceed as a 29 U.S.C. § 216(b) collective action with respect to the claims set forth in Count I;
B. Certifying this case as a class action in accordance with Rule.23(b)(3) of the Federal Rules of Civil Procedure with respect to the claims set forth in Count II;
C. Declaring that the Defendants willfully violated the minimum wage and overtime provisions of the FLSA as set forth in Count I;
D. Granting judgment in favor of Representative Plaintiffs and other similarly situated workers and against the Defendants on their claims under the FLSA as set forth in Count I, and awarding each of these Representative Plaintiffs and other similarly situated workers who opt-in to this action his or her unpaid minimum and overtime wages and an equal amount in liquidated damages;

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E. Granting judgment in favor of the Plaintiffs and the other class members against the Defendants under Count II and awarding each of the Plaintiffs and other class members their respective actual, incidental and consequential damages;
F. Enjoining Defendants from further failure to comply with the regulations governing the H-2A program.
G. Awarding Plaintiffs the costs of this action; H. Awarding Plaintiffs pre- and post-judgment interest as allowed by law; I. Awarding Plaintiffs reasonable attorneys' fees pursuant to 29 U.S.C. § 216
and Ark. Code Ann. § 16-22-308 (2007). J. Granting such further relief as is just and equitable. Respectfully submitted this 31 day of May 2007.

Pis. ' Original Complaint

~--'-·""'""' ~.L.KTO. AR 90095 Robinson, Biggs, Ingram, Solop & Farris, PLLC 101 South Spring Street, Suite 420 Little Rock, AR 72201 Telephone: (501) 664-0300 Facsimile: (501) 664-0301 Email: mbowen@rbisf.com
Jennifer Rosenbaum Tenn. B.P.R. No. 022557 Pro Hac Vice Motion Pending Arlen Benjamin-Gomez Member ofthe Bar ofNew York State Pro Hac Vice Motion Pending Immigrant Justice Project Southern Poverty Law Center 400 Washington Avenue Montgomery, Alabama 36104 Telephone: (334) 956-8200 Facsimile: (334) 956-8481
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Edward Tuddenham Texas Bar No. 20282300 Pro Hac Vice Motion Pending 228 W. !37th St. New York, NY 10030 Telephone: (512) 413-4863 Fax:512-532-7780 ATTORNEYS FOR PLAINTIFFS

Pis. ' Original Complaint

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 Perez-Bemotes v. Candy Brand, LLC, Not Reported in F.Supp.2d (2007)

2007 WL 4189499 Only the Westlaw citation is currently available.
United States District Court, W.D. Arkansas,
El Dorado Division.
Rosalino PEREZ-BEMOTES, Luis Alberto Asencio-Vasquez, and Pascual Noriega-Narvaez, individually and on behalf of all others similarly
situated, Plaintiffs v.
CANDY BRAND, LLC, Arkansas Tomato Shippers, LLC, Charles Searcy, Randy Clanton, Dale McGinnis, and Brooks Lisenby, Defendants.
No. 07-CV-1048. | Nov. 21, 2007.
Attorneys and Law Firms
Jennifer J. Rosenbaum, Montgomery, AL, Martin W. Bowen, Robinson, Biggs, Ingram, Solop, & Farris, PLLC, Little Rock, AR, Edward J. Tuddenham, Attorney at Law, New York, NY, for Plaintiffs.
H. Wayne Young, Jr., Michael S. Moore, Friday, Eldredge & Clark, Little Rock, AR, Hani W. Hashem, Hashem Law Firm PLC, Monticello, AR, for Defendants.
Opinion
ORDER
HARRY F. BARNES, District Judge.
*1 Before the Court is a Motion for More Definite Statement filed on behalf of the Defendants, Arkansas Tomato Shippers, LLC, Charles Searcy, Randy Clanton, Dale McGinnis and Brooks Lisenby. (Doc. No. 17). The Plaintiffs have responded. (Doc. No. 24). The Defendants have filed a reply to Plaintiffs’ response. (Doc. No. 25). The matter is ripe for consideration.
This lawsuit was filed by three Mexican workers who entered the United States on H-2A guest-worker visas to harvest and pack tomatoes and perform other agricultural work for the Defendants in and around Bradley County, Arkansas. They are pursuing this action against the Defendants for violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., Arkansas contract law, and the federal common law of contracts. These H-2A workers claim that the Defendants failed to pay them the promised wage for all hours worked, failed to reimburse them for travel, visa and hiring fees expended for the

benefit of the Defendants and failed to pay them the hourly wages and overtime required by federal law. They are suing on behalf of themselves and a class of approximately 2700 similarly situated workers who entered the United States with H-2A visas to perform agricultural work for the Defendants during 2002-2007.
Defendant Candy Brand, LLC has filed an Answer to the Plaintiffs’ Complaint. Defendants Arkansas Tomato Shippers LLC, Charles Searcy, Randy Clanton, Dale McGinnis and Brooks Lisenby have filed the pending Motion for More Definite Statement pursuant to Rule 12(e) of the Federal Rules of Civil Procedure.
DISCUSSION
The Federal Rules of Civil Procedure provide that “[i]f a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading.” Fed.R.Civ.P. 12(e). Such a motion should not be granted unless the Complaint is so vague or ambiguous as to be unintelligible “that the opposing party cannot respond to it, even with a simple denial as permitted by Rule 8(b), with a pleading that can be interposed in good faith or without prejudice to himself.” 5C Wright & Miller, Federal Practice & Procedure: Civil 3d § 1376 at 311 (2004). This is a stringent standard that is rarely met in light of the liberal notice pleading standards of the federal rules which require only “a short and plain statement of the claim that will give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Fed.R.Civ.P. 12(e); Meridian Enterprises Corp. v. Bank of America Corp., 2006 WL 3210497, at *1 (E.D.Mo. Nov. 3, 2006). It is a “remedy for unintelligible pleadings; not a tool to correct a claimed lack of detail.” Kia Motors America Inc. v. Autoworks Distributing, 2006 WL 2943306, at 3* (D.Minn. Sept. 28, 2006).
Defendants argue that they are unable to frame a response to Plaintiffs’ Complaint because it makes vague and ambiguous allegations against the “Defendants” rather than specific allegations against the individual defendants.
*2 Rule 8(a) of the Federal Rules of Civil Procedure requires that every pleading setting forth a claim for relief contain 1) a short and plain statement of the grounds upon which the court’s jurisdiction depends, 2) a short and plain statement of the claim showing that the pleader is entitled to relief, and 3) a demand for judgment for the relief that pleader seeks. In this case, Plaintiffs’ Complaint sets forth the grounds for the Court’s
1

Perez-Bemotes v. Candy Brand, LLC, Not Reported in F.Supp.2d (2007)

jurisdiction, (29 U.S.C. § 216(b)(Fair Standards Labor Act), 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 1337 (action arising under Acts of Congress regarding commerce), and 28 U.S.C. § 1367 (supplemental jurisdiction over state law claims). It sets forth the claims on which it is seeking relief (breach of contract and violations of the FLSA). It makes a demand for judgment based upon those claims. In reviewing the Complaint, the Court does not believe that it is so unintelligible as to

these Defendants that they cannot reasonably frame a responsive pleading. Therefore, the Court finds that the Defendants’ Motion for More Definite Statement should be and hereby is denied.
IT IS SO ORDERED.
	  

2

 
 Case 1:07-cv-01048-RTD Document 40 Filed 12/09/07 Page 1 of 16

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION

ROSALINO PEREZ-BENITES, LUIS ALBERTO ASCENCIO-VAZQUEZ, PASCUAL NORIEGA-NARVAEZ, individually and on behalf of all others similarly situated,
Plaintiffs,
v. CANDY BRAND, LLC, ARKANSAS TOMATO SHIPPERS, LLC., CHARLES SEARCY, RANDY CLANTON, DALE MCGINNIS, and BROOKS LINESBY.
Defendants.

)

)

)

)

)

)

)

)

)

Case No. 07-1048

)

) COMPLAINT- CLASS ACTION

)

)

)

)

)

)

)

FIRST AMENDED COMPLAINT - CLASS ACTION

PRELIMINARY STATEMENT

1. Representative Plaintiffs bring this civil action on behalf of a class of about

2700 Mexican migrant workers who harvested and packed tomatoes and performed other

agricultural work for Defendants in and around Bradley County, Arkansas during 2002, 2003,

2004,2005,2006 and 2007.

2. Acting through their agents, Defendants recruited Plaintiffs to work on their Arkansas

farms. Defendants, through their hiring agents, made binding promises regarding wages, hours

and workingconditions. In reliance upon and in consideration of these binding promises,

Plaintiffs left their homes and spent a considerable money and effort to travel to Arkansas to

work for the Defendants. Despite making such binding promises, Defendants consistently failed

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to pay the promised wage for all hours worked, and failed to reimburse Plaintiffs for expenses incurred for the benefit of the Defendants.
3. Defendants failed to pay Plaintiffs the hourly wages and overtime required by federal law throughout Plaintiffs' employment with Defendants.
4. In order to obtain these temporary positions with Defendants, all of the workers had to pay travel, visa, and hiring fees, some as much as $3,500. These sums were expended solely for the benefit of the Defendants. The Defendants' failure to reimburse the workers' money in their first week of work was a violation of the Fair Labor Standards Act, 29 U.S.c. § 201 et seq, (hereinafter "FLSA"). As a result of these expenditures, the workers earned substantially less than the minimum wage in their first week of work.
5. Plaintiffs and other class members are indigent migrant farm workers who came to the United States on temporary H-2A visas in an effort to earn money to better support themselves and their families. The Defendants took full advantage of Plaintiffs' and other class members' indigence, inability to speak or understand English, isolation, and lack of understanding of the laws of the United States regarding payment of wages, to grossly underpay Plaintiffs and other class members. Plaintiffs file this action to secure and vindicate their rights under the FLSA and state and federal contract law.
6. On behalf of themselves and other similarly situated farm workers, Plaintiffs seek restitution of unpaid wages, an award of money damages, and declaratory relief both to make themselves whole for damages they suffered due to Defendants' violations oflaw and to ensure that Defendants will not subject them and other H-2A workers to such illegal conduct in the future.

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JURISDICTION 7. This Court has jurisdiction over the subject matter of this action pursuant to 29 U.S.c. § 216(b) (Fair Labor Standards Act), 28 U.S.C.§ 1331 (federal question jurisdiction), and 28 U.S.C. § 1337 (actions arising under Acts of Congress regulating commerce). 8. This Court has jurisdiction pursuant to 28 U.S.C. § 1332(d) because Count Two alleges a class action pursuant to Fed. R. Civ. P. 23, the matter in controversy exceeds $ 5,000,000, and all Plaintiff class members are citizens of a foreign state. 9. This Court has supplemental jurisdiction over the claims arising under state law pursuant to 28 U.S.C. § 1367 because those claims are so related to the federal claims that they form part of the same case or controversy. 10. The Court is empowered to issue a declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202.
VENUE II. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b).
PARTIES
12. Defendant Candy Brand, LLC is an Arkansas limited liability corporation that conducts substantial business in Bradley County, Arkansas.
13. Defendant Arkansas Tomato Shippers, LLC is an Arkansas limited liability corporation that conducts substantial business in Bradley County, Arkansas.
14. Defendant Charles Searcy is an individual conducting substantial business in Bradley County, Arkansas.
IS. Defendant Randy Clanton is an individual conducting substantial business in Bradley County, Arkansas.

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16. Defendant Dale McGinnis is an individual conducting substantial business in Bradley COWlty, Arkansas.
17. Defendant Brooks Linesby is an individual conducting substantial business in Bradley County, Arkansas.
18. Plaintiffs Rosalino Perez-Benites, Luis Alberto Ascencio-Vazquez, Pasqual Noriega-Narvaez [hereinafter "Representative Plaintiffs"] are citizens of Mexico who maintain their permanent homes in Mexico.
19. At all times relevant to this action, Representative Plaintiffs and the other class members were H-2A foreign guestworkers within the meaning of 8 U.S.C. § I 101 (a)(l5)(H)(ii)(a) and were admitted to the United States to work for Defendants.
CLASS ACTION ALLEGATIONS 20. Plaintiffs bring this action on behalf of themselves and all other similarly situated workers defined as "all those individuals admitted as H-2A guestworkers who were employed by the Defendants in their Arkansas tomato harvesting and packing operations from June I, 2002 to the present." With respect to Count I, Plaintiffs bring this action as a collective action under the FLSA. A collective action is appropriate because the employees described are similarly situated to the named Plaintiffs. 29 U.S.c. § 216(b); Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 170 (1989). 21. Plaintiffs bring Count II of this action as a class action pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure. 22. Certification of a class of persons who may receive relief pursuant to Count II is appropriate pursuant to Fed. R. Civ. P. 23(b)(3) because: (a) The class is so nwnerous that it is impractical to bring all its members before this

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Court. On information and belief, the class is believed to include well over 2700 individuals. (b) There are questions of law and fact common to the class; (c) The Representative Plaintiffs' claims are typical of those in the class; (d) The Representative Plaintiffs will fairly and adequately protect the interest of the
class; (e) Plaintiffs have retained counsel experience in matters of this type; and (f) Questions oflaw common to the members of the class predominate over the questions
affecting only individual members and a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Testimony and evidence about Defendants' recruitment, hiring, and employment practices will affect and apply to the claims of other dass members. Purely individual questions will be restricted to damages questions should liability be established. If no class action is certified, it will make it impractical for individual class members to pursue relief, or may lead to a large number of separate lawsuits, all of which would rely on the same kind of proof and take roughly the same amount of time, causing an U1lJfecessary burden on the courts.
23. A class action under Rule 23(b)(3) is superior to other available methods of adjudicating this controversy, inter alia:
(a) The common issues of law and fact, as well.as the relatively small size ofthe individual class members' claims, substantially diminish the interest of members of the class in individually controlling the prosecution of separate actions;
(b) Many members of the class are unaware of their rights to prosecute these claims and lack the means or resources to secure legal assistance; the class is comprised principally of indigent migrant farmworkers who maintain their residences in locations throughout Mexico.

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The class members are not fluent in the English language--the majority speak Spanish as their primary language.
(c) There has been no litigation already commenced against the Defendants by the members of the class to determine the questions presented;
(d) It is desirable that the claims be heard in this forum since the Defendants have significant contacts with this District; and
(e) A class action can be managed without undue difficulty since the Defendants have regularly committed the violations complained of herein, and Defendants are required to maintain detailed records concerning each member of the class.
(f) Representative Plaintiffs will fairly and adequately represent the interest of the class. Representative Plaintiffs' interests are in no way antagonistic or adverse to the other class members.
24. . Plaintiffs' counsel are experienced in actions by H-2A workers to enforce their rights nnder their employment contracts and have handled nnmerous class actions in federal courts. Plaintiffs' counsel are prepared to advance litigation costs necessary to vigorously litigate this action and to provide notice to the class members under Rule 23(b)(3)
STATUTORY AND REGULATORY STRUCTURE 25. An agricultural employer in the United States may import foreigners to perform labor ofa temporary nature if the U.S. Department of Labor certifies that (1) there are insufficient available workers within the United States to perform the job, and (2) the employment of aliens will not adversely affect the wages and working conditions of similarlysituated U.S. workers. 8 U.S.C. §§ 1101(a)(15)(H)(ii)(a) and I 188(a)(l). Foreign workers admitted in this fashion are commonly referred to as "H-2A workers."

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26. Agricultural employers seeking the admission ofH-2A workers must first file a temporary labor certification application with the U.S. Department of Labor. 20 C.F.R. §§ 655.101(a)(l) and (b)(l). This application must include ajob offer, commonly referred to as a "clearance order" or 'Job order," complying with the applicable regulations, which is used in the recruitment of both U.S. and H-2A workers. 20 C.F.R. § 655.101(b)(l). These regulations establish the minimum benefits; wages, and working conditions that must be offered in order to avoid adversely affecting similarly-situated U.S. workers. 20 C.F.R. §§ 655.101(a)(2), 655.102(b) and 655.103. Among these tenns are the following:
a. Payment to all workers of at least the applicable adverse effect wage rate for every hour or portion thereof worked during a pay period. 20 C.F.R. §§ 655.102(b)(9)(i) and (ii);
b. Compliance with the assurances required of applications for H-2A workers by 20 C.F.R. § 655.103, including an assurance that the employer would not intimidate, threaten, blacklist, discharge, or in any mmmer discriminate against workers testifying in any proceeding related to the H-2A prograJll; and
c. Compliance with all federal, state, and local employment laws and regulations. 20 C.F.R. § 655.103(b). STATEMENT OF FACTS
27. Because of the lack of available fann workers in the area of their operations, Defendant Candy Brand, LLC filed application(s) for temporary foreign workers through the H-2A program each year from 2002 through 2007.
27. Pursuant to the applications described in paragraph 28, Defendant Candy Brand LLC received H-2A Alien certifications for and imported approximately the following numbers

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of workers each year: two hundred (200) foreign workers in 2002, three-hundred and forty-eight (348) foreign workers in 2003, four-hundred and forty-eight (448) foreign workers in 2004, fivehundred and seventy-seven (577) foreign workers in 2005, five-hundred and seventy-seven (577) foreign workers in 2006. Defendant Candy Brand LLC has received certification to import, has imported, andlor or will soon import, five~hundred and seventy-seven (577) foreign workers in 2007.
28. Defendant Candy Brand LLC filed these applications for temporary foreign workers, received certifications, and imported foreign workers on behalf of all other Defendants.
29. Representative Plaintiff Rosalino Perez-Benites worked for Defendants in 2005 and 2006 pursuant to an H-2A visa.
30. Representative Plaintiffs Luis Alberto Ascencio-Vazquez, Pasqual NoriegaNarvaez worked for Defendants in 2006 pursuant to H-2A visas.
31. At all times relevant to this action, Defendants jointly employed Representative Plaintiffs and other class members for purposes of the FLSA.
32. At all times relevant to this action, Defendants jointly employed Representative Plaintiffs and other class members for purposes of compliance with their employment contracts within the meaning of20 C.F.R. § 655.100.
33. The terms of the work contract under which Representative Plaintiffs and all other class members were employed by Defendants were determined by:
(a) The terms offered in the "clearance orders" submitted by Defendants to the United States Department of Labor to obtain pemlission to import foreign workers;

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(b) The terms of work set forth in the regulations governing the visas of Representative Plaintiffs and other class members, 20 C.F.R. § 655; and
(c) The individual work contracts provided to Representative Plaintiffs and other class members by Defendants.
34. Representative Plaintiffs and other class members work contract offered, inter alia, the following tenns of work:
(a) Wages equal to the higher of the minimum wage, the adverse effect wage rate, or the prevailing wage rate;
(b) Maintenance and provision of detailed, complete, and accurate records of worker pay and work time; and
(c) Compliance by Defendants with all federal, state, and local employmentrelated legislation.
35. The terms and conditions of employment offered by Defendants induced Representative Plaintiffs and other class members to travel from their homes in Mexico to Arkansas to work for Defendants. Representative Plaintiffs and other class members accepted the tenns and conditions of employment and reasonably relied upon representations made to them in Mexico by Defendants and/or their agents.
36. Representative Plaintiffs and other class members traveled from their homes in Mexico to Defendants' work sites in Arkansas, where they performed the agricultural work described in the clearance order, including harvesting and packing tomatoes.
37. In order to get to Defendants' farm and commence work under the above contract, Representative Plaintiffs and other class members had to pay various fees and expenses each year, including, but not limited to, hiring fees, visa fees, bus fare, and snbsistence from their home towns in Mexico to Arkansas.
38. The expenses described in paragraph 37 were primarily for the benefit of the

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Defendants as employers of Representative Plaintiffs and other class members. 39. As recruiters of Mexican citizens in Mexico for work in the United States,
Defendants and/or their agents were required to directly bear some of the costs described in paragraph 37, pursuant to the laws of Mexico.
40. As a matter of practice and/or policy, Defendants did not reimburse Representative Plaintiffs and other class members for the expenses described in paragraph 37.
41. As a result of the expenses described in paragraph 37 and Defendants' practice and/or policy not to reimburse those expenses, Representative Plaintiffs and other class members did not eam the minimum wage or overtime premium mandated by the FLSA in their first workweek.
42. Representative Plaintiffs and other class members completed work for Defendants in the fields and in the packing sheds.
43. When working in the packing shed(s), Representative Plaintiffs and other class members were not engaged in practices performed by a farmer or on a fann as an incident to or in conjunction with such farming operations pursuant to 29 U.S.C. § 203(f) and subsequent defining regulations.
44. As a matter of practice and/or policy, Defendants did not pay Representative Plaintiffs and other class members overtime wages for hours in excess of forty hours a workweek, for weeks in which they worked in the packing shed(s).
45. As a matter of practice and/or policy, Defendants did not pay Representative Plaintiffs and other class members at least the adverse effect wage rate for each hour worked, for workweeks in which they worked in the fields.
46. As a matter of practice and/or policy, Defendants failed to provide Representative

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Plaintiffs and other class members adequate written hours and earnings statements each payday, for workweeks in which they worked in the fields.
47. At all times relevant to this action, Defendants employed Representative Plaintiffs and other class members within the meaning of29 U.S.C. § 203(g).
48. At all times relevant to this action, Defendants were employers of Representative Plaintiffs and other class members within the meaning of29 U.S.C. § 203(d).
49. At all times relevant to this action, Representative Plaintiffs and other class members were employees of Defendants within the meaning of29 U.S.c. § 203(e)(I).
50. At all times relevant to this action, Defendants employed Representative Plaintiffs and other class members in the production, packing, and harvesting of vegetables for sale in interstate connnerce.
51. At all times relevant to this action, Defendants were employers covered by the FLSA.
52. At all times relevant to this action, Plaintiffs were involved in the production of goods for sale in interstate commerce and subject to the protections of the FLSA.
53. At all times relevant to this action, Defendants acted directly or indirectly in the interest of the employer in relation to Representative Plaintiffs and other class members.
54. All conditions precedent to this action have been satisfied. 55. All actions and omissions alleged herein were undertaken by Defendants either directly and/or through their agents. 56. The Defendants' failure to pay wages in compliance with the FLSA was willful.

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COUNT I: FAIR LABOR STANDARDS ACT (29 U.S.C. § 216(b) COLLECTIVE ACTION) 57. This count sets forth a claim for declaratory relief and damages for the Defendants' violations of the minimum wage and overtime provisions of the Fair Labor Standards Act ("FLSA"). This count is brought by Representative Plaintiffs on behalf of a class of other similarly situated workers consisting of all those individuals admitted as H-2A guestworkers who were employed by the Defendants in their Arkansas tomato harvesting and packing operations from June I, 2004 to the present. 58. Pursuant to 29 U.S.C. § 216(b), each Representative Plaintiff consented in writing to be a plaintiff in this FLSA action. Their written consents are attached to this complaint. 59. Defendants violated the rights of Representative Plaintiffs and other similarly situated workers by failing to pay each worker the applicable minimum wage for every compensable hour of labor performed in a workweek, in violation of29 U.S.C. § 206(a). 60. Defendants violated the rights of Representative Plaintiffs and other similarly situated workers by systematically failing to pay each worker at least an average of one-and-ahalf times the applicable wage for all hours worked above forty during overtime-eligible workweeks. 29 U.S.C. § 207(a). 61. The violations of the FLSA in this count resulted, in part, from the Defendants' failure to reimburse Representative Plaintiffs and other similarly situated workers for expenses primarily benefiting the Defendants, prior to their first week of work, as described herein. When these expenses were deducted from Representative Plaintiffs' and other similarly situated workers' first week's pay, they brought their earnings below the applicable minimum and overtime wages for the first workweek. 62. As a result of the Defendants' violations of the FLSA set forth in this count, each

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Representative Plaintiff and other similarly situated workers are entitled to recover the amount of his or her unpaid minimum and overtime wages and an equal amount as liquidated damages, pursuant to 29 U.S.C. §216(b).
COUNT II - BREACH OF EMPLOYMENT CONTRACT (CLASS ACTION)
63. This count sets forth a claim by Representative Plaintiffs on behalf of themselves and other class members for damages arising from Defendants' breaches of the workers' employment contracts, as embodied in the armual clearance orders, from 2002 until the present.
64. The tenns and conditions of employment contained in the clearance orders described in paragraphs 33 and 34 constituted enforceable employment contracts between Defendants and the H-2A workers, the tenus of which are principally supplied by federal regulations 20 C.F.R. §§ 653.501, 655.102, and 655.103.
65. Representative Plaintiffs and other class members accepted the terms in the clearance order as communicated to them in Mexico by Defendants and their agents. Based on this agreement and accepting the Defendants' offer of employment, Representative Plaintiffs and other class members left their families and traveled from Mexico to the Arkansas and presented themselves for work.
66. Defendants breached their employment contracts with Representative Plaintiffs and other class members by providing tenus and conditions of employment that were materially different from those described in its clearance orders, including the following:
a. The workers were not paid at least the applicable adverse effect wage rate for their labor;

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b. Defendants failed to comply with the minimnm wage and overtime provisions of the FLSA, an employment-related law, as required by the contract;
c. Defendants failed to keep accurate and adequate records with respect to the workers' earnings as required by 20 C.F.R. § 655.102(b)(7); and
d. Defendants failed to the furnish workers with hours and earnings statements accurately setting out the data required by 20 C.F.R. § 655.102(b)(8).
67. Defendants' breaches of their employment contracts with Representative Plaintiffs and other class members have caused these workers grave financial and other serious 111Junes.
68. Defendants are liable to Representative Plaintiffs and other class members for the actual, incidental, and consequential damages which arose naturally and according to the usual course ofthings from Defendants' breaches, as provided by Ark. Stat. Ann. § 16-22-308 (2007) and the federal cOill1nonlaw of contracts, including unpaid wages, damages arising from the delay, and pre-judgment interest.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court enter an order:
A. Pennitting this case to proceed as a 29 U.S.C. § 216(b) collective action with respect to the claims set forth in Count I;
B. Certifying this case as a class action in accordance with Rule 23(b)(3) of the Federal Rules of Civil Procedure with respect to the claims set forth in Count II;
C. Declaring that the Defendants willfully violated the minimum wage and overtime provisions of the FLSA as set forth in Count I;

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D. Granting judgment in favor of Representative Plaintiffs and other similarly situated workers and against the Defendants on their claims under the FLSA as set forth in Count I, and awarding each of these Representative Plaintiffs and other similarly situated workers who opt-in to this action his or her unpaid minimum and overtime wages and an equal amount in liquidated damages;
E. Granting judgment in favor of Representative Plaintiffs and other class members against the Defendants under Count II, and awarding each of the Representative Plaintiffs and other class members their respective actual, incidental, and consequential damages;
F. Enjoining Defendants from further failure to comply with the regulations governing the H-2A program.
G. Awarding Plaintiffs the costs of this action; H. Awarding Plaintiffs pre- and post-judgment interest as allowed by law; I. Awarding Plaintiffs reasonable attorneys' fees pursuant to 29 U.S.C. § 216
and Ark. Stat. Ann.§ 16-22-308 (2007). J. Granting such further relief as is just and equitable. Respectfully submitted this 30 day of November 2007.
sl Martin W. Bowen Martin W. Bowen Arkansas Bar No. AR 90095 Robinson, Biggs, Ingram, Solop & Farris, PLLC 101 South Spring Street, Suite 420 Little Rock, AR, 72201 Telephone: (501) 664-0300 Facsimile: (501) 664-0301 Email: mbowen@rbisf.com

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sf .Temlifer J. Rosenbaum .Temlifer Rosenbaum Tenn. B.P.R. No. 022557 Admitted Pro Hac Vice Motion Immigrant Justice Project Southern Poverty Law Center 400 Washington Avenue Montgomery, Alabama 36104 Telephone: (334) 956-8200 Facsimile: (334) 956-8481
Edward Tuddenham Texas Bar No. 20282300
Admitted Pro Hac Vice
228 W. 137th St. NewYork,NY 10030 Telephone: (512) 413-4863 Fax: 512-532-7780 ATTORNEYS FOR PLAINTIFFS

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 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS EL DORADO DIVISION

ROSALINO PEREZ-BENITES, et al.

PLAINTIFFS

VS.

CASE NO. 07-CV-1048

CANDY BRAND, LLC, et al.

DEFENDANTS

ORDER Before the Court is Plaintiffs’ Motion for Certification of Collective Action, for Notice, and for Disclosure of Opt-in Plaintiffs’ Contact Information. (Doc. No. 59). The Defendants have responded and do not oppose the motion. (Doc. No. 64). The matter is ripe for consideration. This lawsuit was filed by three Mexican farmworkers who entered the United States in 2005 and/or 2006 with H-2A guest worker visas to harvest and pack tomatoes in and around Bradley County, Arkansas, for the Defendants, Candy Brand, LLC, Arkansas Tomato Shippers, LLC, Charles Searcy, Randy Clanton, Dale McGinnis and Brooks Linesby. These H-2A workers are pursuing this action against the Defendants for violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201-219, along with state and federal contract law.1 The H-2A workers claim that the Defendants, as a matter of policy and practice, required them to bear their recruitment, passport, visa, transportation and border crossing expenses. They contend that these expenses were primarily for the benefit of the Defendants and, as a result, must be considered de
1 In addition to the three named representative Plaintiffs, 26 potential opt-in plaintiffs have already filed consents to sue pursuant to the FLSA Count of the Plaintiffs’ Amended Complaint.

facto wage deductions driving their wages below the federal minimum wage during their first week of work. Additionally, the H-2A workers claim that the Defendants, as a matter of policy and practice, failed to pay them and other employees (H-2A and non-H-2A employees) federally mandated overtime wages when they worked more than forty hours in a work week in Defendants’ packing shed operations. The H-2A workers are suing on behalf of themselves and all nonsupervisory workers employed by Defendants at any time between June 1, 2004 and the date of judgment in this matter who were employed as H-2A temporary agricultural workers, or who were employed in the Defendants’ packing shed operations, irrespective of visa status.
In the instant motion, the H-2A workers request an Order conditionally certifying Court I of their Amended Complaint as a collective action under the FLSA, 29 U.S.C. §§ 201-219. They also request that the Court authorize the issuance of their proposed Notice to potential opt-in Plaintiffs, and that the potential opt-in Plaintiffs be provided 120 days from the date the Notice is mailed to file consent forms to participate in the collective action. Finally, Plaintiffs request that the Court issue an Order requiring the Defendants to provided to the Plaintiffs—to the extent the information is available—all addresses, telephone numbers, social security numbers, birthdates, and passport numbers for the collective action members. The Defendants do not oppose the Plaintiffs’ requests.
DISCUSSION Collective Action Certification Under the FLSA Section 216(b) of the FLSA provides that any one or more employees may maintain an action to recover the liability prescribed in the section against any employer on “behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. § 216(b). These collective
2

actions are intended to serve the interests of judicial economy and to aid in the vindication of plaintiffs’ rights. Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 110 S.Ct. 482 (1989).2 Unlike Federal Rule of Civil Procedure 23, a collective action maintained under FLSA is pursued as an opt-in class. Compare 29 U.S.C. § 216(b) (stating that “[n]o employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which the action is brought.”) with Fed.R.Civ.P. 23(c) (requiring that the notice to class members include a statement “that the court will exclude from the class any member who requests exclusion ...”).
The district courts have discretion, in appropriate cases, to facilitate notice to potential members of the class on whose behalf the collective action has been brought. Id. at 169, 110 S.Ct. at 486. Once the FLSA action has been filed, the court has a managerial responsibility to oversee the joinder of additional parties to assure that the task is accomplished in an efficient and proper way. Id. at 170-71, 110 S.Ct. at 486.
The prevailing approach among federal courts for determining what “similarly situated” means in a collective action context under section 216(b) is the two-state certification process described in Mooney v. Aramco Services Co., 54 F.3d 1207, 1212 (5th Cir. 1995). See e.g., Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006)(applying two-stage approach as that “typically used by the courts” in cases filed under 29 U.S.C. § 216(b)); Thiessen v. General Electric Capital Corp., 267 F.3d 1095 (10th Cir. 2001); Grayson v. K Mart Corp., 79
2 Hoffman-La Roche involved the Age Discrimination in Employment Act (ADEA). However, the ADEA incorporates section 216(b) of the FSLA in its enforcement scheme. See 29 U.S.C. § 626(b). Thus, courts have applied the holdings and analysis in ADEA collective action cases to FLSA collective action cases. See Schmidt v. Fuller Brush Co., 527 F.2d 532, 536 (8th Cir. 1975).
3

F.3d 1086 (11th Cir. 1996); Allen v. McWane, Inc., 2006 WL 3246531, *2 (E.D.Tex. 2006)(applying the two-stage approach as the “prevailing test among federal courts” in cases filed under 29 U.S.C. § 216(b)). Under this approach, certification for collective action is divided into two stages: (1) the notice stage and (2) the opt-in or merits stage. Mooney, 54 F.3d at 1213-1214. During the notice stage, the court makes a decision—usually based only on the pleadings and affidavits which have been submitted—whether notice should be given to potential class members. Id. at 1213. If the court allows for notification, the court typically creates conditional certification of a representative class and allows notice to be sent to the potential optin plaintiffs. Id. at 1214.
At the second state of the two-stage process, the court determines whether the class should be maintained through trial. Typically, the second stage is precipitated by a motion to decertify by the defendant, which is usually filed when discovery is largely complete. Id. If the court decides to decertify the class, the opt-in class members are dismissed from the suit without prejudice and the class proceeds only for the class representatives in their individual capacities. Id.
Here, the Plaintiffs move the Court to conditionally certify their class under the two-stage approach. Although the Eighth Circuit has not yet declared which approach it favors (the twostage approach or the Rule 23 approach3) in deciding whether plaintiffs are similarly situated under 29 U.S.C. § 216(b), the districts courts in this circuit use the two-stage analysis. Schleipfer v. Mitek Corp., 2007 WL 2485007 (E.D.Mo. 2007) (citing Parker v. Rowland Express, Inc., 492
3 To certify a class under Rule 23, the plaintiff must establish numerosity, commonality, typicality, and representativeness. See Fed.R.Civ.P. 23(a).
4

F.Supp.2d 1159 (D.Minn. 2007)); Davis v. Novastar Mortgage, Inc., 408 F.Supp.2d 811 (W.D. Mo. 2005); Dietrich v. Liberty Square L.L.C., 230 F.R.D. 574 (N.D. Iowa 2005); McQuay v. American Int’l Group, Inc., 2002 WL 31475212 (E.D. Ark. 2002)). Moreover, other circuits have held that the standard for certification of a collective action under section 216(b) is considerably less stringent than the standards for certification of a class action under Rule 23. See Grayson, 79 F.3d at 1096, 1106 (11th Cir. 1996); see also Thiessen, 267 F.3d at 1105 (10th Cir. 2001)(stating that Congress clearly chose not to have the Rule 23 standards apply to class actions under the ADEA [or FLSA] and instead adopted the “similarly situated” standard. Thus, the Court believes the more prudent approach is to use the two-stage certification analysis that is used by a majority of the courts, including a majority of the district courts in the Eighth Circuit.
The question before the Court is whether, under the lenient standard of the notice stage, the named Plaintiffs, through their pleadings and affidavits, have demonstrated that they are “similarly situated” to the potential collective action members. See 29 U.S.C. § 216(b). Although, the FLSA does not define the term “similarly situated,” it typically requires a showing that the plaintiffs and potential class members were victims of a common decision, policy, or plan of the employer that affected all class members in a similar fashion. See Thiessen, 267 F.3d at 1106-08; Kautsch v. Premier Communications, 504 F.Supp.2d 685 (W.D. Mo. 2007). Further, the “similarly situated” determination requires only a modest factual showing; it does not require the plaintiff and the potential class members to show that they are identically situated. Id.
Here, Plaintiffs allege that they and other similarly situated individuals who worked in Defendants’ operations were not paid the minimum and overtime wages required by the FLSA during certain pay periods. They claim that these FLSA violations were the result of uniform
5

policies and practices by the Defendants that affected Plaintiffs and the potential collective action members. Plaintiffs claim that not only are there similar legal issues in this case but the factual settings of the representative Plaintiffs and the potential collective action members are also similar. They claim that they have knowledge of this because they worked alongside Defendants’ other workers, lived in the same apartments provided by Defendants, traveled together from Mexico to Defendants’ operations in Arkansas, spoke to Defendants’ other workers about their work and pay, and worked with family who experienced the same pay problems.
Considering the lenient notice standard at this early stage of the litigation, the Court is satisfied that the Plaintiffs have met their burden of showing that conditional certification is proper. In fact, Defendants do not oppose conditional certification at this stage. Therefore, the Court hereby conditionally certifies the Plaintiffs’ FLSA claims as a collective action on behalf of the following class:
All nonsupervisory workers employed by Defendants at any time between June 1, 2004 and the date of judgment in this matter who were employed as H-2A temporary agricultural workers, or who were employed in the Defendants’ packing shed operations, irrespective of visa status. If, after the close of discovery, Defendants believe that they can persuade the Court that the potential collective action members are not similarly situated, Defendants should file a motion for decertification. Plaintiffs’ Proposed Notice Plaintiffs have submitted a proposed notice to be sent to potential opt-in plaintiffs. The Defendants do not object to the notice. The Court has reviewed the proposed notice, consent
6

form and contact information sheet (Doc. 59-15), and the Court approves the notice. Thus, Plaintiff are authorized to send notice of the suit to potential opt-in plaintiffs. The notice, in English and in Spanish, will be sent by first class mail to potential collective action members with addresses in the United States. The Spanish version of the notice will be sent by first class mail to those potential collective action members with addresses in Mexico. Plaintiffs’ counsel will bear the cost of the mailings. The opt-in plaintiffs are given 120 days from the date of the mailing of the notice in which to file their consent forms to participate in the collective action. Plaintiff’s counsel should file a certificate of mailing with the Court when the mailing of notices is effectuate and the opt-in period has begun.
Plaintiff’s Information Request Finally, Plaintiffs request that the Defendants be ordered to provide Plaintiffs—to the extent the information is available—all names, addresses (U.S. and foreign), telephone numbers (U.S., foreign, and cell phone), social security numbers, birthdates, and passport numbers of the potential opt-in plaintiffs in order to assist in the issuing of the notices. Defendants do not object to providing this information and have, in fact, provided some of the requested information already. Thus, Defendants are hereby directed to provide the Plaintiffs with the remaining names, addresses and other contact information requested within fourteen (14) days of the date of this Order. IT IS SO ORDERED, this 31st day of October, 2008.
/s/Harry F. Barnes Hon. Harry F. Barnes United States District Judge
7

 
 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS EL DORADO DIVISION

ROSALINO PEREZ-BENITES, et al.

PLAINTIFFS

VS.

CASE NO. 07-CV-1048

CANDY BRAND, LLC, et al.

DEFENDANTS

MEMORANDUM OPINION Before the Court is Plaintiffs’ Motion for Certification of Rule 23 Class Action. (Doc. 68). Defendants have responded. (Docs. 70, 141, 142, 148). Plaintiffs have replied to Defendants’ response. (Docs. 74, 152). The Court finds this matter ripe for consideration.
I. BACKGROUND This lawsuit was filed by three agricultural workers who entered the United States in 2005 and 2006 with H-2A temporary work visas primarily to grow, harvest, and pack peppers and tomatoes for Defendants in and around Bradley County, Arkansas. Plaintiffs contend that Defendants violated their rights as set forth in their uniform employment contracts.1 Plaintiffs move the Court for a determination that Plaintiffs’ contract claims may be maintained as a class action under Federal Rule of Civil Procedure 23. The contracts were virtually identical for all potential class members between 2003 and 2007. Plaintiffs allege that Defendants’ policies and practices resulted in breaches of their standard work

1Plaintiffs also allege that Defendants violated their rights, and the rights of those similarly situated, by failing to comply with the Fair Labor Standards Act, 29 U.S.C. §§ 201-219. The Court has conditionally certified the Fair Labor Standards Act claims of Plaintiffs as a collective action pursuant to 29 U.S.C. § 216(b). (Doc. 66).

contracts. Specifically, Plaintiffs allege: (1) that Defendants paid H-2A field workers $50 per day during the harvest season, resulting in their earning less than the hourly adverse effect wage rate (“AEWR”) mandated by the government for every hour they were employed; (2) that Defendants required the H-2A workers to bear their recruitment, passport, visa, transportation and border crossing expenses, causing them to not earn the AEWR during their first workweek; (3) that the requirement that the H-2A workers bear their recruitment, passport, visa, transportation and border crossing expenses resulted in them not earning the Fair Labor Standards Act minimum wage during the first workweek; (4) that Defendants only provided the H-2A workers with travel and subsistence payments of $100 upon completion of the fifty percent period of the contract, resulting in a violation of the contract that required payment of transportation expenses from the place of recruitment, plus daily subsistence payments; (5) that Defendants did not provide proper payment for return transportation and daily subsistence upon completion of the contract period, which violated a condition of the contract; (6) that Defendants failed to provide the H-2A workers with an accurate reporting on their pay statements of the number of hours offered and the number of hours worked, resulting in a violation of the contract; and (7) that Defendants failure to pay the H-2A workers and non-H2A workers overtime wages when they performed overtime-eligible work in the packing operations, resulting in these workers not earning federally mandated overtime wages when they worked over forty hours per week, which was a violation of their contract.
Plaintiffs seek to represent two distinct classes. Class I is defined as follows: All nonsupervisory workers employed by Defendants at any time between 2003 and the date of judgment in this matter who were employed pursuant to H-2A temporary work visas.
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Class II is defined as follows: All nonsupervisory workers employed in the Defendants’ packing shed operations at any time between 2003 and the date of judgment in this matter—irrespective of visa status—who did not receive overtime pay during workweeks when they worked more than forty (40) hours.
Members of both classes are covered by the same terms and conditions contained in their uniform employment contracts; however, certain provisions of the contracts that were breached by Defendants are inapplicable to the non-H-2A workers employed by Defendants’ packing shed operations. Non-H-2A workers were employed exclusively in the Defendants’ packing shed operations. The Court will now decide whether Plaintiffs’ contract claims may be maintained as a class action under Federal Rule of Civil Procedure 23.
II. DISCUSSION In this case, the Court has already conditionally certified an opt-out collective action under the FLSA. Plaintiffs are now asking the Court to certify an opt-in class action pursuant to Federal Rule of Civil Procedure 23 involving their contract claims. Defendants assert that the certification of simultaneous actions under the FLSA and Federal Rule of Civil Procedure 23 is improper. Defendants’ argument seems to be that Plaintiffs’ contract claims seeking damages beyond those established under the FLSA are preempted by federal law. The Court disagrees. The FLSA authorizes workers to file private actions to recover unpaid wages, damages, costs, and attorneys’ fees. 29 U.S.C. § 216(b). The Eighth Circuit has not addressed the issue of whether the remedies under the FLSA are exclusive. The Court is aware that the Fourth Circuit has held that the FLSA preempts claims that “depend on establishing that [the employer] violated the FLSA.” Anderson v. Sara Lee Corp., 508 F.3d 181, 193 (4th Cir. 2007). Several other district
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courts outside of the Eighth Circuit have ruled that state claims are preempted by the FLSA where those claims merely duplicate the FLSA claims. Id. at 194. On the other hand, the Ninth Circuit has held that the FLSA does not preempt common law fraud claims and that the FLSA does not provide exclusive remedies for violating its provisions. Williamson v. Gen. Dynamics Corp., 208 F.3d 1144, 1151-53 (9th Cir. 2000). Also, several district court cases within the Eighth Circuit have held that the FLSA does not provide the exclusive remedy for its violations and does not preempt state law claims even when there is a common core of operative facts. See Cortez v. Neb. Beef, Inc., Nos. 8:08CV90, 8:08CV99, 2010 WL 604629 (D. Neb. Feb. 16, 2010); Bouaphakeo v. Tyson Foods, Inc., 564 F. Supp. 2d 870, 886 (N.D. Iowa 2008); Robertson v. LTS Management Services, LLC, 642 F. Supp. 2d 922, 928 (W.D. Mo. 2008); Osby v. Citigroup, Inc., No. 07-CV-06085-NKL, 2008 WL 2074102 (W.D. Mo. May 14, 2008). Most district courts in the Eighth Circuit agree that the FLSA’s savings clause, which allows states to enact stricter wage, hour, and child labor provisions, indicates that the FLSA does not provide an exclusive remedy for its violations. Bouaphakeo, 564 F. Supp. 2d at 882. In fact, “it would seem that state law may offer an alternative legal basis for equal or more generous relief for the same alleged wrongs.” Cortez, 2010 WL 604629, at *6.
Here, the Court is more persuaded by the opinions of district courts within the Eighth Circuit and adopts the view that the FLSA does not provide an exclusive remedy for violations of its provisions. Accordingly, the Court does not agree with Defendants’ argument that Plaintiffs’ contract claims are preempted by the FLSA.
A. Rule 23(a) Plaintiffs seek certification of two distinct classes and allege that they meet all the requirements set forth in Federal Rule of Civil Procedure 23(a). Rule 23(a) provides:
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One or more members of a class may sue or be sued as representative parties on behalf of all members only if: 1) the class is so numerous that joinder of all members is impracticable; 2) there are questions of law or fact common to the class; 3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and 4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a). The United States Supreme Court has summarized these requirements as: 1) numerosity; 2) commonality; 3) typicality; and 4) adequacy of representation. See Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 613 (1997). When determining whether to grant class certification, the question is not whether the plaintiffs will ultimately prevail on the merits, but rather whether the plaintiffs have met the requirements of Rule 23(a). See Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 178 (1974). The party seeking class certification bears the burden of establishing each prerequisite element to certification, and the class will only be certified if, after a “rigorous analysis,” the court is satisfied that all requirements of Rule 23 have been satisfied. See General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 161 (1982).
1) Numerosity Rule 23(a) requires that a class be so numerous that requiring a joinder of all members would be impracticable. See Fed. R. Civ. P. 23(a)(1). In order to satisfy this requirement, the class representatives do not need to show that joinder would be impossible, but only need to show that it would be extremely difficult or inconvenient to join all the members of the class. See Paxton v. Union Nat. Bank, 688 F.2d 552, 559 (8th Cir. 1982); Morgan v. United Parcel Service of America,
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Inc., 169 F.R.D. 349, 355 (E.D. Mo. 1996). There is no set test of factors that courts use to determine if the numerosity requirement has been satisfied. See CHARLES ALAN WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE § 1762 (3d ed. 2005). Some factors that have been used by the courts involve the number of parties involved, the inexpediency of their joinder, or the inconvenience of trying individual suits; however, proving these factors will not automatically satisfy the requirement for numerosity under Rule 23(a)(1). See generally Paxton, 688 F.2d at 560; Trevizo v. Adams, 455 F.3d 1155 (10th Cir. 2006); Holsey v. Armour & Co., 743 F.2d 199, 217 (4th Cir. 1984); WRIGHT, ET AL., supra, § 1762. Plaintiffs state that Class I will likely contain more than 1,600 members and Class II will contain over 1,300 members. Also, Plaintiffs point to the fact that most of the members of the class are indigent persons who do not have the financial means to bring individual litigation against Defendants. Furthermore, Plaintiffs state that most members of both classes come from rural, isolated areas of Mexico, thus making joinder of all class members highly impracticable. The Court finds that both classes have an appropriate amount of members and that requiring a joinder of all members would be impracticable, thus satisfying the numerosity requirement of Rule 23(a)(1).
2) Commonality Rule 23(a)(2) states that “questions of law or fact common to the class” must be present in order for the court to properly certify the class. See Fed. R. Civ. P. 23(a)(2). In analyzing the commonality requirement, it is not necessary that the plaintiffs show that all members of the class will have the same common questions of law or fact. See Paxton, 688 F.2d at 561. In order for the requirement of commonality to be satisfied, the court will be “determining whether there is a need for combined treatment and a benefit to be derived therefrom.” In re Asbestos School Litigation, 104
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F.R.D. 422, 428 (E.D. Pa. 1984). In the present action, Plaintiffs argue that the rate of $50 a day for Class I H-2A workers was in violation of their standardized employment contract. Next, Plaintiffs argue that by not paying their recruitment, passport, visa, transportation, and border crossing expenses, it resulted in Plaintiffs not earning the minimum wage standards set by the Fair Labor Standards Act during their first week of work. Pertaining to Class II members, Plaintiffs argue that Defendants are required to but did not pay overtime wages when their employees worked more than forty hours in a workweek. Also, both classes are seeking to hold Defendants jointly liable for the breaches of the standardized contracts they had with Plaintiffs. Even though this is just a sampling of Plaintiffs’ allegations against Defendants, it shows that the Class I and II members will have common questions concerning fact and law that are susceptible to common sources of proof.
3) Typicality In order to maintain a class action under Rule 23(a)(3), “the claims or defenses of the representative parties [must be] typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). Generally, the Eighth Circuit has stated that this requirement will be satisfied if “the claims or defenses of the representatives and the members of the class stem from a single event or are based on the same legal or remedial theory.” Paxton, 688 F.2d at 561-62 (quoting WRIGHT, ET AL., supra, § 1764 n. 21.1 (Supp. 1982)). The Eighth Circuit has added that in order to meet this requirement, the representatives must show that there are other members of the proposed class that will have either the same or similar grievance as the representatives. See Donaldson v. Pillsbury, Co., 554 F.2d 825, 830 (8th Cir. 1977), cert. denied, 434 U.S. 856 (1977). According to the allegations filed by Plaintiffs, the class representatives are alleging that all class members suffered the same or similar injuries and that the representatives are not claiming a different set of injuries. Mainly, some class
-7-

representatives are claiming that Defendants did not pay them their contractual hourly wage, while the remaining class representatives are claiming that Defendants did not pay required overtime wages for the members who worked in Defendants’ packing sheds operation. These claims are identical to the claims that are being sought by the two classes as a whole; therefore, all class representatives will be seeking redress for the same harm suffered. The Court finds that representatives and class members of both classes are seeking redress from the same injuries caused by the same set of Defendants, thus satisfying the typicality requirement of Rule 23(a)(3).
4) Adequacy of Representation Rule 23(a)(4) requires that in order to maintain a class action “the representative parties [must] fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). The Eighth Circuit has a two factor test to determine if the class representatives fairly and adequately protect the interests of the class: 1) whether the class representatives have common interests with the members of the class; and 2) whether the class representatives will vigorously prosecute the interests of the class through qualified counsel. See Paxton, 688 F.2d at 562-63 (citing Gonzales v. Cassidy, 474 F.2d 67, 72 (6th Cir. 1973)). Plaintiffs argue that the class representatives’ claims are analogous to the rest of the class members’ claims and that the representatives will not gain any additional benefits that other members are not entitled to and that would be harmful to the rest of their respective classes. Also, the Court notes that Plaintiffs’ attorneys are experienced in federal class action litigation, namely with regards to litigation involving both the Fair Labor Standards Act and federal guest worker regulations. Furthermore, the Southern Poverty Law Center, the employer of four of Plaintiffs’ attorneys, is adequately funded to proceed with the litigation and has already advanced the necessary costs thus far.
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Defendants argue that the class representatives have individualized claims and thus are not adequate representatives. Defendants argue that many of the expenses being sought by the representatives are not ones that will be common to the class, and that none of these expenses can be supported by receipts. Furthermore, Defendants argue that most of the representatives hail from the Tabasco region of Mexico, but in fact, most class members will come from the Morelia region of Mexico. The Court is unpersuaded by Defendants’ arguments. The class representatives are class members and are alleging the same harm as the rest of the class members. Additionally, even though the representatives are from the Tabasco region of Mexico, Defendants fail to show how this will prejudice the rest of the class members, because there will be members of both classes from Tabasco and Morelia. Also, since the harm suffered by the representatives is the same as the harm suffered by the rest of the class members, the representatives’ location is not likely to affect the adequacy of representation since there will be class members from both locations. For these reasons, the Court finds that the class representatives of both classes have common interests with the members of their respective classes and will adequately represent the class and thus meet the final requirement of Rule 23(a).
B. Rule 23(b) The Court finds that Plaintiffs have met all requirements for class certification under Rule 23(a); however, in addition to meeting all the requirements listed in Rule 23(a), Plaintiffs must satisfy one of the requirements set forth in Rule 23(b). See Windsor, 521 U.S. at 614. In this action, Plaintiffs seek certification under Federal Rule of Civil Procedure Rule 23(b)(3). Rule 23(b)(3) allows for certification of a class when common questions of law or fact predominate over individual questions. Fed. R. Civ. P. 23(b)(3). Also, under Rule 23(b)(3), the court must find that a class
-9-

action is superior to other available methods, and therefore is a more fair and efficient way of adjudicating the controversy. See Blades v. Monsanto Co., 400 F.3d 562, 569 (8th Cir. 2005); Hanlon v. Chrysler Corp., 150 F.3d 1011, 1023 (9th Cir. 1998); see generally In re Nassau County Strip Search Cases, 461 F.3d 219 (2nd Cir. 2006); WRIGHT, ET AL., supra, § 1779.
In order to satisfy the first part of Rule 23(b)(3), Plaintiffs must show that issues of the class predominate over questions affecting individual members. Courts have held that when common questions represent a significant aspect of the case and can be resolved in a single adjudication, then it should be handled in a class action rather than on an individual basis. See generally Blades, 400 F.3d at 569; In re Wells Fargo Home Mortg. Overtime Pay Litigation, 571 F.3d 953 (9th Cir. 2009); Hanlon, 150 F.3d at 1022; WRIGHT, ET AL., supra, § 1778. Plaintiffs argue that they satisfy the predominance test, namely, because they are seeking a remedy for a common legal grievance that is suffered by the entire class. The common claims for all class members relate to Defendants’ violation of the standard employment contracts that they had with all class members, and Defendants’ unlawful pay practices that were uniform throughout their operation.
Defendants’ argument alleges that there is little commonality and typicality between the claims, thus a class action is inappropriate to adjudicate the litigation. Defendants argue that the disparity in dollar amounts, along with the variances in each individual Plaintiff’s memory and credibility should preclude class certification. This argument fails. The fact that each class member may be owed a different amount of money or back wages does not defeat class certification under Rule 23(b)(3). See Haywood v. Barnes, 109 F.R.D. 568, 583 (E.D. N.C. 1986) (holding that “[t]he fact that the potential amount of damages might vary individually with the number of violations does not preclude class certification where common questions of law and fact as to liability clearly
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predominate.”) Furthermore, Defendants’ potential liability pertaining to their alleged unlawful pay practices overshadows any individual damage issues. The Court finds that the class representatives and members of both proposed classes have similar questions of law and fact and also have a large number of class members; thus, making a class action preferable over individual actions. Variances in monetary relief is not sufficient enough to preclude class certification. See id. Therefore, Plaintiffs have shown that the common questions of fact and law shared by class members will predominate over questions affecting only individual members. See Fed. R. Civ. P. 23(b)(3).
The other requirement of Rule 23(b)(3) is that a class action must be superior to other available methods for fair and efficient adjudication of the controversy. Fed. R. Civ. P. Rule 23(b)(3). Rule 23(b)(3) provides several criteria for the court to use when determining class certification: 1) the class members’ interests in individually controlling the prosecution or defense of separate actions; 2) the extent and nature of any litigation concerning the controversy already begun by or against class members; 3) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and 4) the likely difficulties in managing a class action. See Fed. R. Civ. P. 23(b)(3)(A)-(D). In this case, there are potentially over 3,000 class members between the two classes. The grievances suffered by Class I and Class II members are common to all members and the proof that will be required in each case is the same for all Plaintiffs. At this point, no Plaintiffs have started litigation against Defendants outside of this class action. Plaintiffs hail from several regions of Mexico and are mostly indigent workers who are not likely able to afford litigation expenses on their own. Since all Plaintiffs share a common grievance against the same Defendants and the sources of proof will be the same for all members, a class action is the
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appropriate and superior method for resolving this adjudication. Therefore, Plaintiffs have met all requirements for class certification under Rule 23(b)(3).
IV. CONCLUSION For the reasons discussed above, the Court finds that Plaintiffs’ Motion for Certification of Rule 23 Class Action is GRANTED. The following two classes are hereby certified: Class I All nonsupervisory workers employed by Defendants at any time between 2003 and the date of judgment in this matter who were employed pursuant to H-2A temporary work visas. Class II All nonsupervisory workers employed in the Defendants’ packing shed operations at any time between 2003 and the date of judgment in this matter—irrespective of visa status—who did not receive overtime pay during workweeks when they worked more than forty (40) hours. IT IS SO ORDERED, this 23rd day of March, 2010.
/s/ Harry F. Barnes Hon. Harry F. Barnes United States District Judge
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 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS EL DORADO DIVISION

ROSALINO PEREZ-BENITES, et al.

PLAINTIFFS

V.

CASE NO. 07-CV-1048

CANDY BRAND, LLC, et al.

DEFENDANTS

ORDER Before the Court is a Stipulation of Dismissal of Defendant Dale McGinnis. (Doc. 169). Pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii), the parties have stipulated to the dismissal of Separate Defendant Dale McGinnis from this action. Accordingly, all claims against Separate Defendant Dale McGinnis are hereby DISMISSED WITH PREJUDICE. IT IS SO ORDERED, this 31st day of March, 2010.

/s/ Harry F. Barnes Hon. Harry F. Barnes United States District Judge

 
 Case 1:07-cv-01048-RTD Document 185 Filed 05/21/10 Page 1 of 1 PageID #: 1805
Case: 10-8012 Page: 1 Date Filed: OS/20/2010 Entry ID: 3666853
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No: 10-8012
Rosalino Perez-Benites, Individually and on behalf of all others similarly situated, et al. Respondents
v.
Candy Brand, LLC, et al. Petitioners
Appeal from u.s. District Court for the Western District of Arkansas - EI Dorado
(I :07-cv-01 048-HFB) MANDATE
In accordance with the judgment of 05120/201 0, and pursuant to the provisions of Federal Rule of Appellate Procedure 41(a), the formal mandate is hereby issued in the above-styled matter.
May 20, 2010
Clerk, U.S. Court of Appeals, Eighth Circuit

Case 1:07-cv-01048-RTD Document 185-1 Filed 05/21/10 Page 1 of 1 PageID #: 1806
Case: 10-8012 Page: 1 Date Filed: OS/20/2010 Entry ID: 3666849
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
No: 10-8012
Rosalino Perez-Benites, Individually and on behalf of all others similarly situated; Luis Alberto Asencio-Vasquez, Individually and on behalf of all others similarly situated; Pascual Noriega-
Narvaez, Individually and on behalf of all others similarly situated, Respondents
v.
Candy Brand, LLC; Arkansas Tomato Shippers, LLC; Charles Searcy; Randy Clanton; Brooks Linesby, Petitioners
Appeal from U.S. District Court for the Western District of Arkansas - EI Dorado (I :07-cv-0 I 048-HFB)
JUDGMENT Petition for permission to file interlocutory appeal has been considered by the court and is denied.
May 20, 2010
Order Entered at the Direction of the Court: Clerk, U.S. Court of Appeals, Eighth Circuit.
/s/ Michael E. Gans

 
 Case 1:07-cv-01048-RTD Document 223 Filed 08/30/10 Page 1 of 1 PageID #: 3957

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS EL DORADO DIVISION

ROSALINO PEREZ-BENITES, et al.

PLAINTIFFS

v.

CASE NO. 07-CV-1048

CANDY BRAND, LLC, et al.

DEFENDANTS

ORDER

Before the Court are Defendants’ Motion for Partial Summary Judgment (Doc. 154) and

Separate Defendant Brooks Linesby’s Motion for Summary Judgment (Doc. 156). Also before the Court

is Plaintiffs’ Rule 56(f) Motion in Response to Defendants’ Motion for Summary Judgment. (Doc. 161).

Defendants filed a joint motion for partial summary judgment on December 31, 2009. (Doc. 154).

Separate Defendant Brooks Linesby also filed a summary judgment motion on December 31, 2009.

(Doc. 156). In response, Plaintiffs moved the Court to dismiss Defendants’ summary judgment motions

without prejudice to re-file (Doc. 161), because the factual record in the case had not been sufficiently

developed such that Plaintiffs could adequately respond to the summary judgment motions. See Fed.

R. Civ. P. 56(f).

Upon consideration, the Court finds that Plaintiffs’ Rule 56(f) Motion (Doc. 161) should be and

hereby is GRANTED. Accordingly, Defendants’ Motion for Partial Summary Judgment (Doc. 154) and

Separate Defendant Brooks Linesby’s Motion for Summary Judgment (Doc. 156) are DENIED without

prejudice to re-file. The Court notes that Defendants have already either appropriately re-filed their motions for summary judgment or have filed amended motions for summary judgment.1

IT IS SO ORDERED, this 30th day of August, 2010.

/s/ Harry F. Barnes Hon. Harry F. Barnes United States District Judge

1Randy Clanton filed a motion for summary judgment on July 16, 2010. (Doc. 194). Arkansas Tomato Shippers, LLC, Candy Brand, LLC, and Charles Searcy filed an amended motion for partial summary judgment on August 2, 2010. (Doc. 197). Brooks Linesby filed an amended summary judgment motion on August 2, 2010. (Doc. 198).

 
 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS EL DORADO DIVISION

ROSALINO PEREZ-BENITES, LUIS ALBERTO ASENCIO-VASQUEZ, and PASCUAL NORIEGA-NARVAEZ, on behalf of themselves and all others similarly situated,

PLAINTIFFS

v.

No. 1:07-CV-1048

CANDY BRAND, LLC, ARKANSAS TOMATO SHIPPERS, LLC, CHARLES SEARCY, RANDY CLANTON, and BROOKS LISENBEY,

DEFENDANTS

MEMORANDUM OPINION AND ORDER Currently before the Court are five separate motions for summary judgment. All are ripe for consideration. The first is a Motion for Summary Judgment on behalf of Defendant Randy Clanton (Docs. 194-196), for which Plaintiffs filed a Response (Doc. 220221) and Defendant Clanton filed a Reply (Doc. 224). The second is a Motion for Partial Summary Judgment on behalf of Defendants Candy Brand, LLC, Arkansas Tomato Shippers, LLC, and Charles Searcy (Docs. 197 and 201), for which Plaintiffs filed a Response (Doc. 225). The third is an Amended Motion for Summary Judgment on behalf of Defendant Brooks Lisenbey (Docs. 198-200), for which Plaintiffs filed a Response (Docs. 226-227). The fourth is Plaintiffs’ Motion for Partial Summary Judgment Related to Violations of the Fair Labor Standards Act and H-2A Employment Contracts (Docs. 203-204, 207, 208-218), for which Defendants filed

Responses (Docs. 228-229, 231, 232-244), and Plaintiffs filed a Reply (Doc. 246). The fifth and final motion is Plaintiffs’ Motion for Summary Judgment Related to Employer Status and Liability of Charles Searcy, Randy Clanton, Brooks Lisenbey, and Arkansas Tomato Shippers, LLC (Docs. 205-207, 208-218), for which Defendants filed Responses (Docs. 228, 230-231, 234-244), and Plaintiffs filed a Reply (Doc. 245).
As explained herein, the Court has made the following determinations:
Motion for Summary Judgment on behalf of Randy Clanton (Doc. 194) is DENIED;
Motion for Partial Summary Judgment on behalf of Defendants Candy Brand, LLC, Arkansas Tomato Shippers, LLC, and Charles Searcy (Doc. 197) is DENIED;
Amended Motion for Summary Judgment on behalf of Defendant Brooks Lisenbey (Doc. 198) is DENIED;
Plaintiffs’ Motion for Partial Summary Judgment Related to Violations of the FLSA and H-2A Employment Contract (Doc. 203) is GRANTED; and
Plaintiffs’ Motion for Summary Judgment Related to Employer Status and Liability of Charles Searcy, Randy Clanton, Brooks Lisenbey, and Arkansas Tomato Shippers, LLC (Doc. 205) is GRANTED. I. Background
Plaintiffs are Mexican nationals who were employed in the
2

Defendants’ tomato farming and packing shed operations in and around Bradley County, Arkansas, pursuant to H-2A temporary guestworker visas. Defendants are Candy Brand, LLC, an Arkansas corporation formed by Defendant Arkansas Tomato Shippers, LLC (“ATS”), and Randy Clanton Farms, Inc. ATS is owned, in part, by Defendant Charles Searcy. Mr. Searcy served as managing member of both ATS and Candy Brand. ATS owned a tomato packing facility at Hermitage, Arkansas, which was leased to Candy Brand each year during the tomato harvest. Defendant Randy Clanton is the president and sole shareholder of Randy Clanton Farms, Inc., and a producer of tomatoes. Mr. Searcy and Mr. Clanton, along with Defendant Brooks Lisenbey formed the senior management team of Candy Brand between 2003 and 2007, sharing primary responsibility for managing the operations and jointly making decisions affecting the company. All three individual Defendants were involved in the day-to-day management of Candy Brand’s tomato harvesting, packing, and selling operation.
Candy Brand contracted with two outside companies, AgWorks, Inc., in 2003 and International Labor Management Corporation (ILMC) from 2004 through 2007, to process the H-2A visa paperwork required to obtain Mexican workers to harvest and pack tomatoes in Arkansas. Ag Works and ILMC also served as Candy Brand’s agents in their interactions with the U.S. Department of Labor (“DOL”) regarding the H-2A guestworker program. Defendants did their own recruitment
3

and hiring of guestworkers, sending the names of Mexican nationals selected to AgWorks or ILMC, which in turn coordinated with Mexican firms to process prospective H-2A workers’ visas, handle Consular interactions, and transport workers from Monterrey, Mexico, to Hermitage, Arkansas.1
During the period relevant to this litigation, Defendants were certified to employ approximately 1,800 H-2A workers. Plaintiffs bring claims on behalf of themselves and others similarly situated, alleging that Defendants failed to reimburse the H-2A workers during their first week of employment for costs the workers incurred for passports, visas, visa processing, transportation, and border crossing. Plaintiffs claim that Defendants’ failure to reimburse the workers for these costs in the first work week reduced the workers’ first weeks’ earnings below the minimum wage requirements of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201-219, and the applicable Adverse Effect Wage Rate (“AEWR”) mandated by the terms and conditions of the H-2A employment contracts.
Plaintiffs also allege that Defendants failed to pay overtime
1
The record reflects that in 2007, Defendant Candy Brand paid for and provided a bus for H-2A workers to travel from Monterrey to Hermitage; otherwise from 2003-2006, transportation to and from Monterrey was coordinated and made available to H-2A guestworkers through Mexican companies that were retained by Defendants, and Plaintiffs paid the cost of this transportation at the time of transport.
4

wages for work done in the tomato packing sheds when that work exceeded 40 hours per week. Claims for overtime pay are made pursuant to the FLSA.
Finally, Plaintiffs allege that when H-2A workers completed 50% of their contract periods, the Defendants failed to provide them with adequate reimbursement for their travel expenses and subsistence costs in journeying from their hometowns in Mexico to the consular offices in Monterrey, and then to Hermitage, Arkansas, in violation of the H-2A contract. Plaintiffs also allege that once the contract period ended, Defendants failed to reimburse Plaintiffs for travel back to Mexico and for subsistence costs for travel in violation of the contract.
Plaintiffs allege two separate claims for damages. Count I includes all FLSA-based collective action claims for minimum wage deficiencies and for failure to pay overtime compensation to those working in the tomato packing sheds. Count II includes all breach of employment contract claims based on the H-2A contracts, as embodied in the relevant clearance orders. The Count II claims arise from Defendants allegedly failing to pay the AEWR in the first work week as mandated by the DOL for H-2A workers, failing to comply with the minimum wage and overtime provisions of the FLSA, as required by the contracts, failing to keep accurate and adequate records with respect to the workers’ earnings, and failing to furnish workers with accurate hours and earnings statements.
5

On October 31, 2008, the Court granted preliminary certification of Plaintiffs’ Count I FLSA claims for minimum wage and overtime violations. The Court certified an opt-in class for the Count I claims pursuant to 29 U.S.C. § 216 (b). (Doc. 66) There are 97 individuals who consented to participate in this opt-in class.
On March 23, 2010, the Court certified two Rule 23 (b)(3) classes seeking relief for the Count II breach of contract claims based on the H-2A contracts. The two Rule 23 classes consist of: (1) all non-supervisory workers employed by Defendants at any time between 2003 and the date of judgment in this matter who were employed pursuant to H-2A temporary work visas, and (2) all nonsupervisory workers employed in the Defendants’ packing shed operations at any time between 2003 and the date of judgment in this matter -–irrespective of visa status-– who did not receive overtime pay during work weeks when they worked more than forty (40) hours. (Doc. 174)
Shortly after this litigation was initiated in the summer of 2007, the decision was made to cease Candy Brand’s operations in the tomato farming business. A decision was also made to cease ATS’s involvement in the tomato farming business and sell off ATS’s assets. Therefore, as of the date of this order, both Defendant Candy Brand and Defendant ATS are not conducting tomato related business, though they remain viable limited liability companies.
6

The various motions for summary judgment revolve around the same few issues of both fact and law. The individual Defendants raise the issue of whether they are “employers” pursuant to the FLSA and H-2A contracts, whether the Arkansas LLC Act or any other corporations law provision would shield the individual Defendants from liability for acts committed by the LLC Defendants, and whether the “agriculture exemption” applies to Count I opt-in packing shed workers and Count II, Class (2) packing shed workers seeking overtime pay.2
Defendant Clanton’s Motion for Partial Summary Judgment (Docs. 194-196) asks that the Court limit his FLSA liability to only those Plaintiffs who worked in the tomato fields, not any who worked in the packing shed. Mr. Clanton argues that he was not an “employer,” as defined by the FLSA, of the packing shed workers, because he did not directly supervise them. He also seeks immunity from Plaintiffs’ H-2A contract claims pursuant to the Arkansas LLC Act (A.C.A. 4-32-304), which limits liability for breach of contract to the LLC itself, and not to the individual members of the LLC.
2
Defendants also question whether the five-year statute of limitations on contracts is applicable in light of the fact that the FLSA has a different statute of limitations. Defendants’ argument on this point was ruled upon in a previous order. The Court held that the FLSA does not provide an exclusive remedy for violations of its provisions (Doc. 173). Plaintiffs’ breach of contract claims are not preempted by the FLSA.
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Defendant Lisenbey’s Amended Motion for Summary Judgment (Docs. 198-200) also argues that he was not an FLSA “employer” of any of the Plaintiffs, whether working in the fields or the packing sheds. Instead, Mr. Lisenbey asserts that he was merely the buyer and seller of produce for his employer, Mckinstry Trading. Mr. Lisenbey also argues that he was not an “employer” under the H-2A contract, and even if he were, the Arkansas LLC Act would shield him from liability.
Defendants Candy Brand, ATS, and Searcy assert in their Motion for Partial Summary Judgment (Docs. 197 and 201) that the Plaintiff class members who were packing shed workers are not entitled to overtime pay under the FLSA because Candy Brand qualifies for the “agriculture exemption” for its packing shed activities. Defendant Searcy maintains that he cannot be sued individually for H-2A breach of contract claims, due to protections provided by the corporate/LLC structure. Moreover, these Defendants argue that the statute of limitations of the FLSA should control over the statute of limitations governing the H-2A contracts, and thus Plaintiffs should not recover on the five year statute of limitations for their breach of contract claims.
Plaintiffs move for summary judgment on two issues, both of which are also raised by Defendants in their Motions for Summary Judgment. First, Plaintiffs argue that individual Defendants Clanton, Lisenbey, and Searcy, as well as Defendant ATS are all
8

“employers” along with Candy Brand with respect to all Plaintiffs, whether field workers or shed workers, and with respect to both FLSA claims and H-2A contract claims.3 (Docs. 205-206). Second, Plaintiffs move for Partial Summary Judgment with respect to whether Defendants’ failure to adequately reimburse Plaintiffs during their first work weeks for expenses incurred for passports, visas, visa processing, border fees, and transportation expenses violated the minimum wage provisions of the FLSA and the H-2A employment contracts; whether Plaintiffs were properly reimbursed at both the 50% and 100% points of their H-2A work contracts; whether Defendants are entitled to the overtime exemption for agriculture work for those Plaintiffs working in the packing sheds; and whether Plaintiffs are entitled to a three-year statute of limitations on their FLSA claims and to liquidated damages. (Docs. 203-204).
The Court will address the arguments and claims made in all five summary judgment motions in order to determine if a genuine issue of material fact exists regarding: 1) whether Defendants are considered “employers” pursuant to the FLSA and the H-2A contracts; 2) whether Defendants are liable for overtime pay; 3) whether Plaintiffs are entitled to reimbursement for certain expenses and how that reimbursement would affect minimum wage/AEWR
3
The parties apparently agree that Defendant Candy Brand is an “employer” under the FLSA and H-2A contract definitions.
9

wage rates for work done by Plaintiffs; 4) whether Plaintiffs’ claims are affected by statute of limitations questions; and 5) whether Plaintiffs are entitled to liquidated damages for their FLSA claims. II. Standard of Review
In determining whether summary judgment is appropriate, the moving party bears the burden of establishing both the absence of a genuine issue of material fact and that it is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Nat’l. Bank of Commerce of El Dorado, Ark. v. Dow Chem. Co., 165 F.3d 602 (8th Cir. 1999). The Court must review the facts in a light most favorable to the party opposing a motion for summary judgment and give that party the benefit of any inferences that logically can be drawn from those facts. Canada v. Union Elec. Co., 135 F.3d 1211, 1212-13 (8th Cir. 1998) (citing Buller v. Buechler, 706 F.2d 844, 846 (8th Cir. 1983). In order for there to be a genuine issue of material fact, the non-moving party must produce evidence “such that a reasonable jury could return a verdict for the nonmoving party.” Allison v. Flexway Trucking, Inc., 28 F.3d 64, 66 (8th Cir. 1994) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
Once the moving party demonstrates that the record does not disclose a genuine dispute on a material fact, the non-moving party
10

may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in Rule 56, must set forth specific facts showing that there is a genuine issue for trial. Ghane v. West, 148 F.3d 979, 981 (8th Cir. 1998)(citing Burst v. Adolph Coors Co., 650 F.2d 930, 932 (8th Cir. 1981)). Furthermore, “[w]here the unresolved issues are primarily legal rather than factual, summary judgment is particularly appropriate.” Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1315 (8th Cir. 1996)(quoting Crain v. Bd. of Police Comm’rs, 920 F.2d 1402, 1405-06 (8th Cir. 1990)). III. Discussion A. Employer Status of Defendants Clanton, Lisenbey, Searcy, and
ATS 1. Analysis of the Law on Employer Status
a. FLSA and H-2A Contract Definitions The FLSA defines “employer” as “any person acting directly or indirectly in the interest of an employer in relation to an employee. . .” 29 U.S.C. § 203 (d). The FLSA further defines an “employee” as “any individual employed by an employer,” (id. at § 203 (e)(1)) and “employ” as “to suffer or permit to work” (id. at § 203 (g)). There may be multiple simultaneous employers under the FLSA. Corley v. Carco Capital Corp., 2006 WL 1889563 (W.D. Ark. July 10, 2006)(citing Darby v. Bratch, 287 F.3d 673, 681 (8th Cir. 2002); Brown v. L&P Industries, LLC, 2005 WL 3503637 (E.D. Ark.
11

Dec. 21, 2005); Donovan v. Agnew, 712 F.2d 1509, 1510 (1st Cir. 1987).
The federal regulations defining the employer/employee relationship for temporary employment of foreign workers in the United States are nearly identical to the statutory definitions found in the FLSA. For the 2003-2007 time period pertaining to Plaintiffs’ claims, Title 20 of the Code of Federal Regulations, section 655.100 (b) defines an H-2A guestworker “employer” as one who “suffers or permits” a person to work.4 Such an employer is characterized by his ability to “hire, pay, fire, supervise or otherwise control the work of any such employee.” Id.
The guestworker program regulations also contemplate liability for joint employers: “[a]n association of employers. . . shall be considered as a joint employer with an employer member if it shares with the employer member one or more of the definitional indicia.” Id.; see also Martinez-Bautista v. D&S Produce, 447 F.Supp.2d. 954, 961 (E.D. Ark. 2006); Salazar-Calderon v. Presidio Valley Farmers Ass’n, 765 F.2d 1334, (5th Cir. 1985)(labor contractor that petitioned in its name for H-2 guestworkers and individual growers who used H-2 workers’ services were joint employers and therefore both responsible for violations of H-2 regulations); Hernandez v.
4
The regulations governing the H-2A program in effect during the period relevant to this lawsuit (2003-2007) are from 1987. All citations to the Code of Federal Regulations in this Memorandum are from the 1987 regulations.
12

Two Brothers Farm, LLC, 579 F.Supp.2d 1379, 1383 (S.D. Fla. 2008) (claims for breach of the H-2A employment contract may be brought against individuals who meet the definition of “employer” under the H-2A regulations).
Recovery is possible against any Defendants found to be “employers” for both FLSA violations and breaches of the H-2A employment contracts as embodied in the relevant work clearance orders, which were virtually identical for all potential class members between 2003 and 2007.
b. LLC Act Immunity for Corporate Officers Defendants Clanton, Lisenbey, and Searcy argue that Candy Brand’s corporate structure should shield them from individual liability. They cite the Arkansas LLC Act’s shielding provisions for this proposition of law. A.C.A. § 4-32-304. The Arkansas LLC Act limits liability for acts committed by the LLC to the corporation itself, and not to the individual members or officers of the LLC. Defendants Candy Brand, ATS, and Charles Searcy in their Amended Motion for Partial Summary Judgment (Doc. 197) cite general principles of corporations law, as well as supporting Arkansas cases, in urging the Court to find that “[i]t is axiomatic that shareholders, officers, or employees of a corporate entity are not a proper party relative to a breach of contract claim against the corporate entity. . . Generally, individual defendants would not even be permitted to defend in their individual capacity for
13

breach of contract claims against a corporate entity.” (Doc. 197, p. 12.)
Defendants’ arguments on this issue are unpersuasive. The Supremacy Clause of the U.S. Constitution trumps state law on the issue of liability and immunity for breach of contract. See U.S. Const., Art. VI, Cl. 2; Louisiana Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 369 (1986) (“[A] federal agency acting within the scope of its congressionally delegated authority may pre-empt state regulation.”); see also Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 613 (1979)(“[E]ven though th[e] [Supremacy] Clause is not a source of any federal rights, it does ‘secure’ federal rights by according them priority whenever they come in conflict with state law. In that sense all federal rights, whether created by treaty, by statute, or by regulation, are ‘secured’ by the Supremacy Clause.”)
In our instant case, the DOL, through the authority delegated it by Congress, enacted regulations governing participation in the federal H-2A guestworker program. As part of those regulations, an enforceable contract was made between H-2A workers and any individuals or entities that fall within the DOL’s definition of “employer.” The definition of “employer” in the H-2A contract setting is expansive, just as it is under the FLSA’s definition. The federal government, when enacting the legislation governing how and whether U.S. employers may petition for foreign workers to
14

assist with temporary, seasonal work, contemplated that such an “employer” with the ability to “hire, pay, fire, supervise or otherwise control the work of any such employee” would be required to compensate H-2A workers at a rate not less than the federal minimum wage, the prevailing wage rate in the area, or the “Adverse Effect Wage Rate” (“AEWR”), whichever is higher. See 20 C.F.R. § 655.102 (b)(9). The AEWR is the minimum wage rate that the DOL determines is necessary to ensure that wages of similarly-situated domestic workers will not be adversely affected by the employment of H-2A workers. 20 C.F.R. § 655.100 (b).
Defendants cannot avail themselves of either common law or state contract law provisions as a shield from liability for a federally-mandated obligation to pay H-2A workers the rate that is necessary to maintain domestic wage parity. If Defendants are “employers” pursuant to the federal regulations governing the terms of the H-2A guestworker contracts, then they are liable for any breaches of those contracts.
Though there is little guidance in the case law of the Eighth Circuit on the individual liability of corporate officers and shareholders in FLSA and H-2A contract violations, the few cases that have been decided bear out the Court’s holding. A corporate officer with operational control of the corporation’s day-to-day functions is an employer within the meaning of the FLSA. In Wirtz v. Pure Ice Co., Inc., 322 F.2d 259, 262-63 (8th Cir 1963), the
15

controlling stockholder of a corporation was not deemed an “employer” under the FLSA, but the Court observed that such an individual would be an employer if he owned stock, had the authority to manage and direct the business, and could hire and fire employees. An injunction pursuant to an FLSA enforcement action against a corporate employer was upheld on appeal in Chambers Construction Co. v. Mitchell, 233 F.2d 717, 724 (8th Cir. 1956), where the Court found that the president and general manager of a corporation “was engaged in the active management of the affairs of the corporation, although he was ‘shown not to have assumed any special obligation individually to pay the wages or salaries of Chambers Construction Company’s employees. . .’”
More recently, in Darby v. Bratch, 287 F.3d 673, 681 (8th Cir. 2002), the Eighth Circuit affirmed that “individual liability does exist under the FLSA” (citing Rockney v. Blohorn, 877 F.2d 637 (8th Cir. 1989), which compares the definition of “employer” under ERISA to the same definition under the FLSA).
District courts in Arkansas have applied the Eighth Circuit’s general guidance on employer liability for FLSA violations. In Corley v. Carco Capital Corp., 2006 WL 1889563 (W.D. Ark. July 10, 2006), found joint liability was found under the FLSA for a defendant company that held 100% of the stock in the company that was plaintiffs’ listed employer. The individual defendant who was chairman of the board, a shareholder, had supervisory authority
16

over employees, and had authority to set, alter, and terminate plaintiffs’ salaries, was also found to be a joint employer and personally liable for plaintiffs’ damages. Id. at *2. Similarly, in Brown v. L&P Industries, LLC, 2005 WL 3503637 (E.D. Ark. Dec. 21, 2005), the Court found an individual defendant who was the owner of an LLC liable as a joint employer under the FLSA, even though the individual lived out of state. Id. at *12-13. The Court found that the defendant was an “employer” pursuant to the FLSA and was personally liable for plaintiff’s unpaid overtime compensation and liquidated damages. The Court considered that the individual defendant “maintained telephone contact with L&P personnel on a daily basis. . . held final authority over all of L&P’s functions, including decisions about employee compensation, and he made the final decision to terminate Brown [the plaintiff].” For all of these reasons, the individual defendant in that case was found to be an employer under the FLSA and could not hide behind the LLC’s corporate structure to avoid personal liability.
Other circuits have found that “a corporate officer with operational control of a corporation’s covered enterprise is an employer along with the corporation, jointly and severally liable under the FLSA for unpaid wages.” Donovan v. Agnew, 712 F.2d 1509, 1511 (1st Cir. 1987); see also Dole v. Elliott Travel & Tours, Inc., 942 F.2d 962, 966 (6th Cir. 1991)(“To be classified as an employer, it is not required that a party have exclusive control of
17

a corporation’s day-to-day functions. The party need only have operational control of significant aspects of the corporation’s day-to-day functions.”). A determination of whether an individual is an employer within the meaning of the FLSA is not governed by formalistic labels or a common law notion of the employment relationship. Donovan v. Sabine Irrigation Co., 695 F.2d 190, 194 (5th Cir. 1983). Rather, the focus is on the totality of the circumstances of whether the individual in question is sufficiently involved in the day-to-day operations of the corporation. Id. at 194-195. With this standard in mind, the Court will apply the law on employer liability to the facts of the case.
2. Application of the Law to the Undisputed Facts a. Defendant Clanton
Defendant Randy Clanton asks the Court to find that he was an employer of Plaintiff field workers only, not packing shed workers. Clanton argues that he was not a member of the Candy Brand, LLC, entity, and that he did not exercise the necessary control over the packing shed employees to subject him to personal liability for their overtime claims. (Doc. 195, p. 3).
The Court disagrees. To be an “employer” of H-2A workers pursuant to the H-2A contract, Mr. Clanton need only have the ability to “hire, pay, fire, supervise or otherwise control the work of any such employee.” 20 C.F.R. § 655.102 (b)(9). This standard is easily met. There is no precedent for parsing out the
18

workers into those who spent most of their time in the fields and those who spent most of their time in the packing shed. Mr. Clanton clearly supervised or controlled the work of H-2A employees, and that fact meets the requirements for purposes of finding employer liability.
Furthermore, an examination of the deposition testimony reveals that Mr. Clanton was not merely directing field workers exclusively; he was actively participating in the hiring, firing, and management of the business as a whole, of which an integral part was the H-2A workers’ field and packing shed labor. Plaintiffs have painstakingly cited to multiple pages of deposition testimony taken in this case. Those facts evidence Mr. Clanton’s employer status both under the H-2A contract provisions and the FLSA. An individual such as Mr. Clanton who has a significant ownership interest and operational control of major aspects of the corporation’s day-to-day functions meets the “active management” test for FLSA employer liability, as described in Chambers Construction Co. v. Mitchell, 233 F.2d 717, 724 (8th Cir. 1956), and explained further in Brown v. L&P Industries, LLC, 2005 WL 3503637 (E.D. Ark. Dec. 21, 2005).
Below are some of the undisputed facts that establish Mr. Clanton’s status as employer, both under the H-2A contracts and the FLSA, and subject him to joint and several liability:
(1) Clanton was president and 100% shareholder of Randy
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Clanton Farms, Inc., and through that ownership, a partner and owner of Defendant Candy Brand, LLC. Candy Brand/ATS/Searcy Dep. Vol. I at 37, 39, 111; R. Clanton Dep. at 15-16. (2) Clanton had the authority to hire and fire Candy Brand employees, react to labor costs, modify or recommend changes to Candy Brand’s work rules, and serve as a contact for workers seeking to return to Candy Brand the following year. K. Clanton Dep. at 35-36, 125-126; R. Clanton Dep. at 89-90, 134-135, 209-210; Candy Brand/ATS/Searcy Dep. Vol I at 58-59, 102-103, 181-184. (3) Clanton had the authority to set wages for both field and packing shed workers. K. Clanton Dep. at 35, 149; Candy Brand/ATS/Searcy Dep. Vol II at 33-34 and Vol. I at 8990. (4) Clanton hired and trained field supervisors and determined when field crews would start the work day. R. Clanton Dep. at 137-139; Candy Brand/ATS/Searcy Dep. Vol. II at 33-34, 54-56, 71-74, 89-90. (5) Clanton visited the packing shed daily and supervised the work there. R. Clanton Dep. at 146; M. Martinez Morales Dep. at 26-27; B. Burboa Leyva Dep. at 27; D. Arriaga Guzman Dep. at 22. (6) Clanton had the authority to request that individual H-2A
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workers be added to Candy Brand’s list of workers to cross from Mexico to the U.S., make the determinations as to how many field and packing shed workers Candy Brand needed to request on its H-2A worker applications, and directed how all H-2A worker crossings should be coordinated so that workers would arrive in Arkansas on particular dates. Candy Brand/ATS/Searcy Dep. Vol. I at 95-96, 108-109, 144-145, 176; Docs. 209-7 and 209-19; R. Clanton Dep. at 32-34, 64-65. (7) Clanton had the authority to sign Candy Brand employee payroll checks. Candy Brand/ATS/Searcy Dep. Vol. I at 79-80. (8) Clanton was aware that Candy Brand’s non-reimbursement policy for visa and travel fees may not be in compliance with FLSA requirements, as he had discussed the relevant case law with Defendant Searcy. Candy Brand/ATS/Searcy Dep. Vol. I at 194-195. For these and other reasons enumerated by Plaintiffs in their Brief (Doc. 245), there is no genuine issue of material fact that Defendant Clanton is an employer under both the H-2A contracts and the FLSA. b. Defendant Lisenbey Defendant Brooks Lisenbey argues that he was neither employed by Candy Brand nor an owner of Candy Brand. However, as refuted
21

above, those two facts do not negate the fact that Defendant Lisenbey actively managed employees or had the authority to hire, fire, pay, supervise, or otherwise exert operational control over the business and the Plaintiff workers who bring this lawsuit.
It is undisputed that Defendant Lisenbey was an employee of his wife’s company, Mckinstry Trading5, and was tasked with the job of selling Candy Brand’s tomatoes for McKinstry. In his capacity as salesman of Candy Brand’s inventory, Mr. Lisenbey was directly and substantially involved in the day-to-day management of Candy Brand. Mr. Lisenbey’s duties and responsibilities primarily included supervising the packing shed operations. But Mr. Lisenbey was also generally involved with the hiring and supervision of H-2A workers for Candy Brand. He traveled to Mexico on behalf of Candy Brand to learn about the process of hiring H-2A workers (B. Lisenbey Dep. at 114-118) and then went to Monterrey, Mexico, to visit with the Consulate there (B. Lisenbey Dep. at 123-124). Far from the mere produce salesman Mr. Lisenbey makes himself out to be, he meets both the U.S. government’s H-2A contract definition and the FLSA’s definition of “employer.”
5
Mckinstry Trading was the community property by marriage of Mr. and Mrs. Lisenbey and was transferred to Mr. Lisenbey as part of his divorce proceedings. Mckinstry Trading was one of the owners of ATS and Candy Brand. ATS owned the packing shed facility that is discussed in the instant case, and Mr. Lisenbey purchased this packing facility outright on behalf of one of his other companies after this lawsuit was filed.
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Below are some of the undisputed facts that establish Mr. Lisenbey’s status as employer and subject him to joint and several liability:
(1) Candy Brand’s interrogatory responses and other documents list Mr. Lisenbey as one of the three managers of the Candy Brand business and as the supervisor/manager of the packing shed operations. Docs 210-4 and 210-8; see also K. Clanton Dep. at 47-48.
(2) Lisenbey had the authority to hire and fire employees, including the supervisors of the H-2A workers, and could determine whether workers would be paid on an hourly basis or by a daily rate. R. Clanton Dep. at 135-135, 279-280; K. Clanton Dep. at 35-36; B. Lisenbey Dep. at 81-82, 168-169.
(3) Lisenbey traveled to Monterrey, Mexico, on behalf of Candy Brand and informed Candy Brand’s consular processing agent that he had hand selected and hired some of the Candy Brand H-2A workers. Rodriguez, Jr./Solstice Dep. at 33-38.
(4) Both Defendants Clanton and Searcy consulted with Lisenbey before determining how many field and packing shed workers would be requested on H-2A applications. R. Clanton Dep. at 32-34, 64-65; Candy Brand/ATS/Searcy Dep. Vol. I at 108-109, 144-145, 176; Doc 209-19.
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(5) Lisenbey disciplined Candy Brand workers he thought were doing a poor job (B. Lisenbey Dep. at 70-71), sent a memo to workers related to procedures for clocking in and out and threatened them with non-payment of wages for noncompliance with rules (Doc. 213-4), and made an announcement to Candy Brand employees about what fees they should and should not have to pay to become H-2A workers at Candy Brand (B. Lisenbey Dep. at 130-133).
(6) Lisenbey was so intimately involved in the Candy Brand business that he signed an indemnification agreement with Defendants Searcy and Clanton, stating among other things that if money were paid to Candy Brand by the U.S. Department of Agriculture for the tomato crop years 20032007, the money would be split evenly between Lisenbey’s company and Clanton’s company. Doc. 207-1.
For these and other reasons enumerated by Plaintiffs in their Brief (Doc. 245), there is no genuine issue of material fact that Defendant Lisenbey is an employer under both the H-2A contracts and the FLSA.
c. Defendant Searcy Mr. Searcy admits that he is an employer as defined by the FLSA (Doc. 243, ¶ 1). However, he contends that each H-2A employment contract mandated by the DOL listed only Candy Brand as the employer, and thus Candy Brand is the only proper defendant
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employer in an H-2A breach of contract action. Plaintiffs correctly point out that because Mr. Searcy meets
the definition of “employer” under the FLSA, he also meets the definition under the H-2A regulations. As discussed herein, there is no prohibition against seeking damages for both FLSA claims and H-2A breach of contract claims. Most district courts in the Eighth Circuit agree that the FLSA’s savings clause, which allows states to enact stricter wage, hour, and child labor provisions than the federal government, indicates that the FLSA does not provide an exclusive remedy for its violations. In fact, “it would seem that state law may offer an alternative legal basis for equal or more generous relief for the same alleged wrongs.” Cortez v. Neb. Beef, Inc., 2010 WL 604629 (D. Neb. Feb. 16, 2010).
Furthermore, the record reflects that the employer listed on the 2004-2006 contracts is in fact “Charles Searcy, Plant Manager.” (Docs. 245-1, 245-2, 245-3). The name “Candy Brand” does not appear in the 2004 and 2005 contracts. For these and other reasons, the evidence is such that there is no genuine issue of material fact that Defendant Searcy is an employer under both the H-2A contracts and the FLSA.
d. Defendant ATS Defendant ATS is a joint employer along with Candy Brand. Candy Brand was owned by and under the control of ATS, and ATS employees supervised the Candy Brand packing shed workers (B.
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Lisenbey Dep. at 73, 77-79, 87-90; Candy Brand/ATS/Searcy Dep. Vol. I at 48-49). Defendant Searcy had the authority to sign both Candy Brand employee payroll checks and ATS employee payroll checks. Mr. Searcy was the managing member of both Candy Brand and ATS, and he routinely dispensed with formalities in operating both entities. Specifically, the facts show that there was no formal process with respect to Candy Brand making draws against the ATS line of credit. If Candy Brand needed money, Mr. Searcy would write himself a check from one corporate account to the other (Candy Brand/ATS/Searcy Dep. Vol II at 319-320). As ATS financed Candy Brand’s operations, Mr. Searcy provided a personal guarantee for loans obtained by both ATS and Candy Brand. In addition, Mr. Searcy negotiated the terms of the $2 million line of credit between ATS and Candy Brand on behalf of both entities (Candy Brand/ATS/Searcy Dep. Vol. II at 233-234). Mr. Searcy was the person who made the decision to cease operating Candy Brand and to sell off the assets of ATS sometime in 2007 or 2008 (Candy Brand/ATS/Searcy Dep. Vol. II at 321-22). In short, there is no distinction between Candy Brand and ATS: both companies are essentially Defendant Searcy, and admittedly so.
The economic ties between ATS and Candy Brand were such that the two companies met the standard concerning FLSA joint employment under 29 C.F.R. § 791.2 (b). The regulation states: “[w]here the employers are not completely disassociated with respect to the employment of a particular employee and may be deemed to share
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control of the employee, directly or indirectly, by reason of the fact that one employer controls, is controlled by, or is under common control with the other employer. . .” then a joint employment relationship exists. Id. See Hearnsberger v. Gillespie, 435 F.2d 926, 930-31 (8th Cir. 1970)(where individual defendant was the primary stockholder in separate corporate defendant, economic ties between the two entities meant that joint employment was “firmly sustained by the Act and by caselaw”).
Furthermore, Candy Brand and ATS are an integrated enterprise pursuant to the four-factor test announced in Sandoval v. American Building Maintenance Industries, Inc., 578 F.3d 787, 793-796 (8th Cir. 2009). The doctrine announced in Sandoval establishes a standard by which courts may essentially pierce the corporate veil for purposes of establishing employer liability in labor and employment law cases. This doctrine has been applied in the context of the FLSA (see Pearson v. Component Tech. Corp., 247 F.3d 471, 486 (3d Cir. 2001) and other federal employment statutes to determine liability of a parent corporation for acts of its subsidiary. The test involves whether separately incorporated entities have (1) interrelation of operations; (2) common management; (3) centralized control of labor relations; and (4) common ownership or financial control. Id. No one factor is dispositive.
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Applying the four Sandoval factors to Mr. Searcy’s common ownership and management of ATS and Candy Brand, it is clear that all four factors are met, and ATS is liable to Plaintiffs as an employer pursuant to the H-2A contracts, whether under the integrated enterprise doctrine or pursuant to the plain language of 29 C.F.R. § 791.2 (b). B. Overtime Exemption for Agriculture Work
Defendants argue that they were not required to pay overtime wages to packing shed employees because that the work qualified for an agricultural exemption from FLSA overtime provisions. 29 U.S.C. § 213 (b)(12).6 Defendants are entitled to this exemption if they can show that the packing shed work was performed by a farmer as an incident to that farmer’s farming operations. The problem is that if that farmer packs produce grown by other farmers, he loses the exemption. Farmers Reservoir & Irrigation Co. v. McComb, 337 U.S. 755, 766 n. 15 (1949)(“[P]rocessing on a farm of commodities produced by other farmers is incidental to or in conjunction with the farming operations of the other farmers and not incidental to or in conjunction with the farming operation of the farmer on whose premises the processing is done. Such processing is, therefore, not within the definition of agriculture.”); Marshall v. Gulf & Western Industries, Inc., 552 F.2d 124, 126 (5th Cir. 1977)(“The
6
It is undisputed that packing shed workers often worked more than 40 hours per work week and were not paid overtime wages.
28

fact that tomatoes grown by independent farmers were processed by Gulf & Western prevents it from receiving the claimed [agricultural] exemption.”)
The Court is persuaded that the packing shed workers employed by Defendants packed tomatoes grown by individuals and entities other than Candy Brand, including Dale McGinnis, Lowry Farms, Inc., A-W Produce, Inc., and others. Defendants do not deny that their employees packed tomatoes grown by other farmers; however, Defendants counter that such outside produce was only de minimis to Defendants’ overall operation (Doc. 232). Defendant Searcy states in an affidavit that he believes that repacking outside tomatoes accounted for less than two percent of the packing shed production of Candy Brand as a whole. This amount, he argues, is de minimis.
It is Defendants’ burden to show they are entitled to the agricultural exemption. Mitchell v. Kentucky Finance Co., 359 U.S. 290, 291 (1959); 29 C.F.R. § 780.2. Defendants have failed to meet that burden. Though Defendant Searcy’s opinion is that the outside tomatoes were a very small percentage of total packing production, he provides no evidence to counter Plaintiffs’ compelling showing that Candy Brand’s federal tax returns reflect outside purchases of produce accounting for over 10% of Candy Brand’s total operational expenses in 2006 and 2007 (Docs. 211-19 and 211-20). Those outside purchases do not even include the tomatoes farmed by Dale McGinnis and A-W Produce. Dale McGinnis’s employee, Ascension Fonseca,
29

testified that he deferred to Mr. McGinnis regarding how and when to plant tomatoes on McGinnis’s land, and Mr. McGinnis checked on tomato plant growth, applied fungicide, and loosened the soil in preparation for planting, among other farming tasks (Fonseca Dep. at 25, 31-36, 44-47, 59). Though Candy Brand’s employees harvested Mr. McGinnis’s tomatoes, the evidence shows that Candy Brand was not the exclusive farmer of the crop. In fact, Mr. McGinnis was paid by Candy Brand for tomatoes grown on land that Candy Brand leased from other persons. Docs. 209-35 and 209-36.
A-W’s farms were in Texas, some 700 miles away from Candy Brand’s Arkansas operations. A-W provided its own labor in growing the tomatoes. Though Defendant Clanton counseled A-W at times during the 2005 season, and Candy Brand shared some costs involved in growing the tomatoes that year, Candy Brand can best be described as an investor in A-W’s tomato crop. When Candy Brand packed A-W’s crop, Candy Brand was not the farmer of that crop for A-W was the farmer.
Candy Brand was on notice that it may be liable for overtime wages due to the fact that its packing shed workers packed tomatoes for several other growers. In 2003, AgWorks, Inc., which was Defendants’ agent in their interactions with the DOL in applying for H-2A guestworkers, advised Candy Brand in writing that packing shed employees may be eligible for overtime pay (Doc. 207-4, p. 6). Defendants expressed in writing their legal concern over their
30

decision to not pay overtime wages to H-2A workers (Doc. 210-7). Nevertheless, the facts show that Defendants failed to consult a legal expert regarding overtime compensation and the agricultural exemption, and Defendants apparently decided to take their chances that the exemption would apply. The Court holds that the exemption does not apply, and Defendants are liable for any overtime compensation owed to the Count I opt-in Plaintiffs who were employed in the Defendants’ packing shed and Count II, Class (2) Plaintiffs who worked in the packing shed facilities. C. Reimbursement of Plaintiffs’ Expenses
1. Analysis of the Arriaga Case The U.S. Department of Labor recently affirmed that under the FLSA, employers are obligated to reimburse travel and immigrationrelated costs to temporary foreign guestworkers if the costs reduce the workers’ wages below the federal minimum wage during the first work week. Doc. 213-11. The DOL cited favorably to the 11th Circuit case of Arriaga v. Florida Pacific Farms, LLC, 305 F.3d 1228 (11th Cir. 2002), in issuing its Field Assistance Bulletin in 2009, noting that “travel and immigration-related costs for workers hired under the H-2B program are for the primary benefit of their employers, and the employers therefore must reimburse the employees for these costs in the first work week if the costs reduce the employees’ wages below the minimum wage.” Field Assistance Bulletin No. 2009-2 (Aug. 21, 2009). This reasoning is not limited to the
31

H-2B context, as the DOL added that “[t]he same type of analysis . . . would have to be performed whenever an employee must travel for temporary employment from the point of hire to a distant worksite location.” Id. at 9 n.3.
This Court agrees with other courts in concluding that the Arriaga decision is well-reasoned and correctly decided, and that Plaintiffs are entitled to reimbursement of the expenses they incurred to travel to the United States and work for Defendants. See, e.g., Morante-Navarro v. T & Y Pine Straw, Inc., 350 F.3d 1163, 1166 n.2 (11th Cir. 2003)(H-2B guestworkers entitled to reimbursement); De Leon-Granados v. Eller & Sons Trees, Inc., 581 F.Supp.2d 1295, 1315 (N.D. Ga. 2008)(H-2B guestworkers entitled to reimbursement); Martinez-Bautista v. D&S Produce, 447 F.Supp.2d 954, 963-64 (E.D. Ark. 2006)(H-2A guestworkers entitled to reimbursement); De Luna-Guerrero v. North Carolina Grower’s Ass’n, 338 F.Supp.2d 649, 662 (E.D. N.C. 2004)(H-2A guestworkers entitled to reimbursement).
In Arriaga, the Eleventh Circuit addressed whether an employer must reimburse foreign H-2A guestworkers’ visa and travel costs under the FLSA. The court ruled that the costs of H-2A guestworkers’ visas and travel from their home country to the United States were incurred “for the primary benefit and convenience of their employer.” Arriaga, 305 F.3d at 1242. In ruling that workers’ international travel and guestworker visas
32

were not the same as board and lodging (which are not reimbursable costs), the Court emphasized that employees’ visa and travel costs were “an inevitable and inescapable consequence” of the employer’s hiring foreign guestworkers. Id. Because these costs were inherent in the employer’s choice of foreign employees, they were an “incident of and necessary to the employment,” 29 C.F.R. § 531.32 (a). Thus, the employers were obligated under the FLSA to reimburse the foreign workers if failure to do so would drop the workers’ wages below the minimum wage. Arriaga, 305 F.3d at 1242. An employer cannot escape its minimum wage obligations by requiring employees to pay directly for costs that it would be prohibited from deducting from their pay. Id. at 1236.
Reimbursement of costs was appropriate during the workers’ first work weeks. The Arriaga court held that employees’ travel and visa costs were not expenses they would have incurred normally in the course of life, but rather, like a work uniform or tools, were costs necessitated by the job itself. Id. at 1243-44. Because these expenses arose pre-employment, reimbursement during the first work week would have been mandatory. Id. at 1237.
It is important to make clear that Arriaga’s holding is based on the FLSA, not on H-2A regulations. In applying the holding of Arriaga to the case at bar, it is evident that the pre-employment costs associated with H-2A workers’ employment with Defendants should have been reimbursed during the first work weeks. The
33

passport, visa processing, visa, transportation, and border crossing expenses that workers bore as a condition of their employment in Arkansas were not costs that would have arisen in the ordinary course of life. See Arriaga, 305 F.3d at 1243-44. Defendants knew that their H-2A workers bore substantial costs in obtaining visas to work in Arkansas. These costs included the fees that workers paid to Defendants’ agents in Mexico who performed the critical service of processing visas smoothly and insuring that workers arrived in Arkansas during designated times. Moreover, Defendants were well aware of the pass-through costs that their H2A workers bore personally in paying visa processing agents and passport, visa, and border crossing fees.
As early as March 2003, Defendants’ agent AgWorks sent them a set of requirements associated with the employment of H-2A workers, including a summary of the Arriaga decision (Doc. 207-4, pp. 9-10). Defendants Searcy and Clanton discussed the implications of the Arriaga decision with one another, but without reading the opinion or consulting an attorney, they opted not to follow Arriaga and reimburse workers for pre-employment costs. Candy Brand/ATS/Searcy Dep. Vol. I at 194-95, 206-08. In addition, from as early as November 2005, Defendants’ agent ILMC mailed Defendants several letters warning them of legal issues related to the failure to reimburse workers for visa and travel expenses (Docs. 207-12, 20929, 209-30). These warnings were unavailing.
34

The Court finds that all Plaintiffs were entitled to reimbursement of these pre-employment costs during their first work weeks, and Defendants are liable for failing to do this.
2. Analysis of the FLSA Minimum Wage Law and the H-2A Contracts’ AEWR Requirement
To participate in the H-2A guestworker program, employers file forms with the federal government that comply with federal regulations. 20 C.F.R. § 655.101 (b). These regulations establish the minimum benefits, wages, and working conditions that must be offered to employees and form the contracts between employers and employees. See Arriaga, 305 F.3d at 1233 n.5 (“clearance orders ultimately become the work contract between the employers and the farmworkers”).
To ensure that the employment of H-2A workers did not adversely affect the wages and working conditions of U.S. workers, Defendants were obligated to pay the higher of the federal minimum wage, the prevailing wage, or the Adverse Effect Wage Rate (“AEWR”) for each hour worked.7 Payment of the AEWR is important for many reasons, not the least of which is protection of U.S. workers from facing unfair competition if employers were permitted to undercut wages by paying foreign workers a drastically reduced wage.
In addition to the requirement that Defendants pay the AEWR to
7
It is undisputed that in the instant case, the AEWR was the highest of the three wage rates listed.
35

H-2A workers, Defendants were also contractually obligated to “comply with applicable federal, State, and local employment related laws and regulations.” 20 C.F.R. § 655.103 (b). The FLSA is one such law that the H-2A contracts incorporate. As a result, failure to pay the federal minimum wage, in addition to being a violation of the FLSA, also constitutes a breach of the H-2A contract.
It is undisputed that Defendants did not reimburse workers during the first work weeks for the passport, visa processing, visa, transportation, and border crossing expenses the workers incurred for Defendants’ benefit. The legal effect of requiring employees to bear these costs is the same as if Defendants deducted these expenses from employees’ wages. Arriaga, 305 F.3d at 1236. Failure to reimburse Plaintiffs for these expenses during their first work weeks effectively reduced Plaintiffs’ wages below the AEWR in violation of the H-2A contracts. Defendants are liable for these deficiencies.
Moreover, the H-2A contracts require that travel and daily subsistence costs for workers’ transportation to the place of employment be reimbursed at the 50% point of the contract. Defendants’ own clearance order from 2003 (Doc. 210-22) states: “After fifty percent of the employment period is complete, the employer will reimburse the worker for reasonable cost of transportation and subsistence from the place of recruitment to the
36

grower’s location.” 20 C.F.R. § 655.102 (b)(5)(i)(requiring reimbursement for transportation and daily subsistence costs incurred from the place “from which the worker has come to work for the employer to the place of employment”). However, Defendants admit that they paid H-2A workers at the 50% point of their contracts a $100 flat payment for the costs of transportation and subsistence, regardless of the actual costs of transportation incurred by the workers, and ignored the daily subsistence rate set forth each year in the Federal Register.8 Defendants’ breached the H-2A contracts when they failed to pay full transportation and subsistence costs at the 50% point of the contracts.
Similarly, Defendants’ breached the H-2A contracts when they failed to pay full transportation and subsistence costs at the end of the contract terms for reimbursement of travel from Arkansas back to Plaintiffs’ homes in Mexico. The federal regulations regarding this requirement state that return transportation and costs of daily subsistence “from the place of employment to the place from which the worker . . . came to work for the employer” must be reimbursed at the end of the contract terms. 20 C.F.R. § 655.102 (b)(5)(ii). Defendants were obligated to pay for the H2A workers’ transportation each year from Hermitage, Arkansas, to
8
Defendants’ partial reimbursement of $100 for Plaintiffs’ initial travel costs at the 50% point of the contracts cannot absolve Defendants from liability for minimum wage violations incurred during the first work weeks of the contracts.
37

the workers’ homes. They were also required to pay daily subsistence costs for the workers’ trips home. D. Liquidated Damages and Three-Year Statute of Limitations for
FLSA Claims Liquidated damages are not punitive, but rather are “intended in part to compensate employees for delay in payment of wages owed under the FLSA.” Hultgren v. County of Lancaster, 913 F.2d 498, 509 (8th Cir. 1990)(citing Brooks Savings Bank v. O’Neill, 324 U.S. 697, 707 (1945)). An award of liquidated damages is mandatory under 29 U.S.C. § 216 (b) absent an employer’s showing of good faith and reasonable grounds for the belief that it was not in violation of the FLSA. Braswell v. City of El Dorado, 187 F.3d 954, 957 (8th Cir. 1990). If the employer fails to come forward with plain and substantial evidence to satisfy both the good faith and reasonableness requirements, the court must award liquidated damages. Williams v. Tri-County Growers, Inc., 747 F.2d 121, 129 (3d Cir. 1984). The employer’s burden is “a difficult one, with double damages being the norm and single damages being the exception.” Chao v. Barbeque Ventures, 547 F.3d 938, 941 (8th Cir. 2008). In this case, Defendants were aware of their obligation to pay packing shed workers overtime wages and to reimburse their H-2A employees’ pre-employment expenses. Defendants’ U.S. agents during the relevant time period, AgWorks and ILMC, assisted Defendants with the H-2A application process and in doing so alerted them to
38

the possibility of liability. The DOL sent Defendants multiple letters, advising them of FLSA requirements related to reimbursement of expenses for H-2A workers. Deposition testimony establishes that Defendants Searcy and Clanton were aware of the Arriaga decision and its implications, but they failed to obtain legal advice regarding their business’s compliance with Arriaga’s requirements. Defendants admit that packing shed workers were never given overtime pay. This fact is undisputed.
Defendants admit that they did not reimburse Plaintiffs for passports, visas and visa processing, transportation, border crossing expenses, or transportation and subsistence costs after the first work week, in contravention of FLSA requirements announced in Arriaga. They also admit that their policy and practice was to reimburse H-2A workers only $100 each for the costs of transportation from their homes in Mexico to the Defendants’ workplace in Hermitage, Arkansas, regardless of the fact that the actual costs of transportation incurred by Plaintiffs exceeded $100. Even though Defendants’ agents AgWorks and ILMC provided Defendants with detailed instructions and worksheets describing how to properly calculate travel reimbursement under the H-2A regulations (including estimates for travel costs from various cities all over Mexico, not simply from the Consular offices in Monterrey), Defendants did not take into account Plaintiffs’ actual costs for transportation and continued to reimburse them a flat
39

rate of $100 each after the 50% point of the contracts was completed.
After the completion of the contracts each year, it is undisputed that Defendants failed to reimburse Plaintiffs for transportation costs from Monterrey to class members’ home cities in violation of the contract. The evidence is clear that Defendants also failed to pay any H-2A class member for the costs of daily subsistence during travel, whether at the 50% point or at the 100% point of the contract period, again in violation of the H2A regulations. Though Defendant Searcy admitted in deposition to this failure to reimburse as “just a screw-up on our part,” the poor judgment Defendants exhibited is striking.
Lack of knowledge is not enough to establish good faith. Chao, 574 F.3d at 941. It is “hard to mount a serious argument that an employer who has acted in reckless disregard of its FLSA obligations has nonetheless acted in good faith.” Jarrett v. ERC Props., 211 F.3d 1078, 1084 (8th Cir. 2000). In light of the evidence of Defendants’ reckless disregard of the FLSA’s requirements, the Count I opt-in Plaintiffs are entitled to an award of liquidated damages in an amount equal to the unpaid minimum and overtime wages they are due under the FLSA.
Regarding the statute of limitations applicable to FLSA claims, the statute extends the limitations period from two years to three years if Plaintiffs can prove that the Defendants’
40

violation of the Act was “willful.” 29 U.S.C. § 255 (a). A “willful” violation is one where “the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the [FLSA].” McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988). The regulations interpreting the FLSA state that a violation shall be deemed “in reckless disregard . . . if the employer should have inquired further into whether its conduct was in compliance with the Act” and failed to do so. 29 C.F.R. § 578.3 (c)(3).
The Court finds that the Defendants acted in reckless disregard for the matter of whether their conduct was prohibited by the FLSA, and the three-year statue of limitations will apply to Plaintiffs’ FLSA claims.9 IV. Conclusion
Motion for Summary Judgment on behalf of Randy Clanton (Doc. 194) is DENIED;
Motion for Partial Summary Judgment on behalf of Defendants Candy Brand, LLC, Arkansas Tomato Shippers, LLC, and Charles Searcy (Doc. 197) is DENIED;
9
Defendants are subject to liability for Plaintiffs’ breach of the H-2A contract for the full five years of the statute of limitations period for written instruments. There is nothing remarkable about a contract claim that relies on the FLSA and has a longer statute of limitations than the FLSA. As discussed above, Defendants are considered employers for the purposes of determining liability for violations of the FLSA and for breaches of the H-2A employment contracts.
41

Amended Motion for Summary Judgment on behalf of Defendant Brooks Lisenbey (Doc. 198) is DENIED;
Plaintiffs’ Motion for Partial Summary Judgment Related to Violations of the FLSA and H-2A Employment Contract (Doc. 203) is GRANTED; and
Plaintiffs’ Motion for Summary Judgment Related to Employer Status and Liability of Charles Searcy, Randy Clanton, Brooks Lisenbey, and Arkansas Tomato Shippers, LLC (Doc. 205) is GRANTED.
The parties are to attend a Status Conference in El Dorado today to discuss the remaining issues to be set for trial.
IT IS SO ORDERED this 20th day of May 2011.
/s/ Robert T. Dawson Robert T. Dawson United States District Judge
42

 
 Case 1:07-cv-01048-RTD Document 256 Filed 06/23/11 Page 1 of 2 PageID #: 4888

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS EL DORADO DIVISION
ROSALINO PEREZ-BENITES, LUIS ALBERTO ASENCIO-VASQUEZ, and PASCUAL NORIEGA-NARVAEZ, on behalf of themselves and all others similarly situated,

PLAINTIFFS

v.

No. 1:07-CV-1048

CANDY BRAND, LLC, ARKANSAS TOMATO SHIPPERS, LLC, CHARLES SEARCY, RANDY CLANTON, and BROOKS LISENBEY,

DEFENDANTS

O R D E R

The Court has reviewed this file and concludes that the

parties shall submit briefs to the Court on the following issues:

(1) whether Defendants are entitled to any credit toward damages

related to violations of the Fair Labor Standards Act for housing

provided to H-2A workers; (2) whether Defendants are liable for

additional expenses not presented in previously submitted motions

for summary judgment; and (3) whether Plaintiffs’ attorneys are

entitled to fees and costs pursuant to the Fair Labor Standards Act

and/or Arkansas Code §16-22-308, and if so, the proposed amount of

fees and costs. Briefs shall be due within thirty (30) days from

the date of this Order. Parties will have the opportunity to

submit replies within fifteen (15) days.

Plaintiffs’ counsel shall also submit to the Court a proposal

outlining the method by which damages will be calculated and are to

be paid to members of the three certified classes in this case.

Case 1:07-cv-01048-RTD Document 256 Filed 06/23/11 Page 2 of 2 PageID #: 4889 Defendant will have an opportunity to reply. Plaintiff’s proposal shall be submitted to the Court within sixty (60) days.
This case is set for jury trial during the week of January 23, 2012.
IT IS SO ORDERED this 23rd day of June 2011. /s/ Robert T. Dawson Robert T. Dawson United States District Judge
2

 
 Case 1:07-cv-01048-RTD Document 273 Filed 12/23/11 Page 1 of 5 PageID #: 5146

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION

ROSALINO PEREZ-BENITES, )

LUIS ALBERTO ASCENCIO

)

VAZQUEZ, and PASCUAL

)

NORIEGA NARVAEZ, on behalf of )

themselves and all others similarly )

situated,

)

)

Plaintiffs,

)

)

CANDY BRAND, LLC,

)

ARKANSAS TOMATO SHIPPERS, )

LLC, RANDY CLANTON,

)

BROOKS LISENBEY, and

)

CHARLES SEARCY,

)

)

Defendants.

)

Case No. 1:07-CV-1048 Judge Robert T. Dawson
Class Action

JOINT MOTION FOR PRELIMINARY APPROVAL OF PROPOSED CLASS ACTION SETTLEMENT AGREEMENT
AND NOTICE TO CLASS MEMBERS

Pursuant to Federal Rule of Civil Procedure 23(e), the parties submit this

joint motion seeking preliminary approval of their proposed Class Action

Settlement Agreement and approval of the proposed Notice of Settlement. The

proposed Stipulation of Class Action Settlement Agreement (“Settlement”) is attached for the Court’s review.1 The Notice of Proposed Settlement of Class

1 Because the Settlement was only recently finalized, the named Plaintiffs—who reside in Mexico and do not have ready access to internet service—were not able to sign and send their signature pages before the deadline to file this Motion. However, class counsel represents to the Court that the named Plaintiffs have been
1

Case 1:07-cv-01048-RTD Document 273 Filed 12/23/11 Page 2 of 5 PageID #: 5147
Action and Settlement Hearing, in English, is attached as Exhibit C to the
Settlement, along with the Claim Form that will accompany the Notice. Upon
approval, Class Counsel will mail the Notice and Claim Forms to class members.
All parties to the proposed Settlement believe the agreement is a fair,
adequate, and reasonable resolution of both the FLSA opt-in Plaintiffs’ and Rule
23 Class Members’ claims in this litigation, and that it should be granted
preliminary approval pending a final fairness hearing. In addition, all parties
believe the proposed Notice satisfies Rule 23 and due process requirements, and
should also be approved for distribution.
This Motion is supported by a Memorandum of Law, which is incorporated
by reference. A Proposed Order is also attached to this Motion for the Court’s
consideration.
Respectfully Submitted,
/s/ James M. Knoepp______ James M. Knoepp Georgia Bar Number 366241 Admitted Pro Hac Vice Email: jim.knoepp@splcenter.org Immigrant Justice Project Southern Poverty Law Center 233 Peachtree Street NE, Suite 2150 Atlanta, GA 30303 Telephone: (404) 521-6700
advised about the Settlement, have approved the attached final agreement, and will sign it as soon as possible.
2

Case 1:07-cv-01048-RTD Document 273 Filed 12/23/11 Page 3 of 5 PageID #: 5148
Facsimile: (404) 221-5837
Attorney for Plaintiffs
/s/ Hani W. Hashem______ Hani W. Hashem ABN 87076 Email: hwh@hashemlawfirm.com Hashem Law Firm, PLC P.O. Box 739 Monticello, Arkansas 71657 Telephone: (870) 367-4223
Attorney for Defendants Candy Brand, LLC, Arkansas Tomato Shippers, LLC, and Charles Searcy
/s/ J. Paul Davidson_____ J. Paul Davidson ABN 2006291 Email: skipd@dlf-ar.com Davidson Law Firm, Ltd. P.O. Box 1300 724 Garland Street Little Rock, Arkansas 72201 skipd@dlf-ar.com Telephone: (501) 374-9977 Facsimile: (501) 374-5917
Attorney for Defendant Brooks Lisenbey
/s/ F. Mattison Thomas III___ ABN 2002007 F. Mattison Thomas III 101 Main Street, Suite D El Dorado, Arkansas 71730 matt@southarklegal.com Telephone: (870) 881-8468
3

Case 1:07-cv-01048-RTD Document 273 Filed 12/23/11 Page 4 of 5 PageID #: 5149
Facsimile: (870) 881-8416 Attorney for Defendant Randy Clanton
4

Case 1:07-cv-01048-RTD Document 273 Filed 12/23/11 Page 5 of 5 PageID #: 5150
CERTIFICATE OF SERVICE I HEREBY CERTIFY that I have this date electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will automatically send e-mail notification to the following attorneys for the Defendants:
Hani W. Hashem Hashem Law Firm, PLC P.O. Box 739 Monticello, Arkansas 71657 hwh@hashemlawfirm.com Charles Darwin “Skip” Davidson Paul Davidson Davidson Law Firm, Ltd. P.O. Box 1300 724 Garland Street Little Rock, Arkansas 72201 skipd@dlf-ar.com pauld@dlf-ar.com F. Mattison Thomas III 101 Main Street, Suite D El Dorado, Arkansas 71730 matt@southarklegal.com
/s/ James M. Knoepp__________
this 23rd day of December, 2011.
5

Case 1:07-cv-01048-RTD Document 273-1 Filed 12/23/11 Page 1 of 52 PageID #: 5151

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF ARKANSAS

EL DORADO DIVISION

____________________________________

)

ROSALINO PEREZ-BENITES, et al., )

)

Plaintiffs,

)

)

Case No. 1:07-cv-1048

v.

)

)

Judge Dawson

CANDY BRAND, LLC, et al.,

)

)

Class Action

Defendants.

)

____________________________________)

STIPULATION OF CLASS ACTION SETTLEMENT AGREEMENT

This Stipulation of Class Action Settlement Agreement (“Settlement”) is entered into by

and between Defendants Candy Brand, LLC, Arkansas Tomato Shippers, LLC, Randy Clanton,

Brooks Lisenbey, and Charles Searcy (collectively, “the Defendants”) and Plaintiffs Rosalino

Perez-Benites, Luis Alberto Ascencio Vazquez, and Pascual Noriega Narvaez (collectively, the

“Named Plaintiffs”), both individually and on behalf of the Fair Labor Standards Act (“FLSA”)

opt-in Plaintiffs, and two classes totaling approximately 1,900 individuals certified by the Court

on March 23, 2010, with respect to claims brought for breach of contract.

The Parties, each having received the benefit, advice, and representation of legal counsel

of their own choice, and in exchange for good, sufficient and valuable consideration received and

acknowledged and as more particularly described herein, do hereby execute and enter into this

Settlement in order to resolve all of the disputes, claims and causes of action that were asserted

in this action or that arise from the facts alleged in the First Amended Complaint, as described

herein and subject to the recitals, terms and conditions set forth below.

1

Case 1:07-cv-01048-RTD Document 273-1 Filed 12/23/11 Page 2 of 52 PageID #: 5152
RECITALS 1. Defendant Candy Brand, LLC was a grower and packer of tomatoes that employed the Named Plaintiffs, FLSA opt-in Plaintiffs, and Rule 23 Class Members between 2003 and 2007. Defendants Arkansas Tomato Shippers, LLC, Randy Clanton, Brooks Lisenbey, and Charles Searcy were owners and/or managers of Candy Brand, LLC during all or part of the certified Class period. The Court has determined that Defendants operated as joint employers of the Named Plaintiffs, the FLSA opt-in Plaintiffs, and the Rule 23 Class Members. 2. To fill their manpower requirements, the Defendants sought the importation of foreign nationals to perform work on a seasonal or temporary basis pursuant to H-2A work visas, in accordance with the Immigration and Nationality Act, 8 U.S.C. §1101(a)(15)(H)(ii)(a). After being admitted to enter the United States, Defendants employed the Named Plaintiffs, FLSA optin Plaintiffs, and Rule 23 Class Members within the meaning of 29 U.S.C. § 203(g) and the H2A regulations. The Plaintiffs filed their original complaint on June 1, 2007, on their own behalf and on behalf of proposed classes of more than 1,900 similarly situated farm laborers. Plaintiffs filed a First Amended Complaint on December 9, 2007. Plaintiffs filed and have pursued this action to recover unreimbursed expenses associated with obtaining H-2A visas, as well as unpaid wages and liquidated damages pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201-219, and for breach of the H-2A work contracts. The action has been certified as a FLSA collective action with respect to the FLSA claims, and a Rule 23 class action with respect to the breach of contract claims. 3. In their First Amended Complaint, Plaintiffs alleged that Defendants violated the FLSA and their contracts by taking de facto wage deductions for Plaintiffs’ and other H-2A workers’ pre-employment visa, transportation and related expenses; failing to pay Plaintiffs and
2

Case 1:07-cv-01048-RTD Document 273-1 Filed 12/23/11 Page 3 of 52 PageID #: 5153
other packing shed workers overtime wages; failing to pay Plaintiffs and other H-2A workers proper transportation and subsistence at the 50% period of their contracts and upon completion of their contracts; and failing to pay Plaintiffs and other field workers at the Adverse Effect Wage Rate for all hours worked.
4. On October 13, 2008, Plaintiffs filed a motion to certify the case as a collective action pursuant to 29 U.S.C. § 216(b) for pursuit of their FLSA claims.
5. On October 31, 2008, the Court conditionally certified the case as a collective action under the FLSA. The FLSA Class consists of all non-supervisory workers employed by Defendants at any time between June 1, 2004, and the date of judgment in this matter who were employed as H-2A temporary agricultural workers, or who were employed in the Defendants’ packing shed operations, irrespective of visa status. After conditional certification, counsel for Plaintiffs mailed a court-approved Notice to potential FLSA opt-in Plaintiffs. At the close of the FLSA opt-in period, 96 individuals in addition to the three named Plaintiffs, filed consent forms to join the FLSA collective action. Subsequently, two of those individuals withdrew their consent to sue forms, leaving 94 individuals plus the three named Plaintiffs as the FLSA class members. See Exhibit A (list of named Plaintiffs and FLSA opt-in Plaintiffs).
6. On November 26, 2008, Plaintiffs filed a motion to certify the case as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure for pursuit of their breach of contract claims.
7. On March 23, 2010, the Court granted Plaintiffs’ motion and certified two Classes. Class I consists of “[a]ll nonsupervisory workers employed by Defendants at any time between 2003 and the date of judgment in this matter who were employed pursuant to H-2A temporary work visas.” Class II consists of “[a]ll nonsupervisory workers employed in the
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Defendants’ packing shed operations at any time between 2003 and the date of judgment in this matter—irrespective of visa status—who did not receive overtime pay during workweeks when they worked more than forty (40) hours.” Class counsel later mailed court-approved Class Notice to approximately 1,425 persons identified in Defendants’ records as having met the class definitions. Class counsel was unable to mail notices to additional individuals who are members of the certified classes due to lack of contact information. The Notice informed class members of the lawsuit and provided them an opportunity to exclude themselves by completing a Class Exclusion Form enclosed with the Notice and filing it with the Court.
8. By the expiration of the Class Notice period, twenty-six (26) of the approximately 1,425 persons to whom notice was mailed had filed the Class Exclusion Form provided with the Class Notice. See Exhibit B (list of individuals excluded from class action and this Settlement).
9. During the nearly four-year pendency of this lawsuit, the Parties engaged in extensive discovery, including depositions of all three (3) individual Defendants, Rule 30(b)(6) depositions of the two (2) corporate Defendants, eight (8) FLSA opt-in Plaintiffs and Rule 23 Class Members, and six (6) third parties; comprehensive discovery of Defendants’ payroll, accounting, and electronic records; and additional document discovery directed at both Plaintiffs and Defendants.
10. In March 2010, the parties participated in a full day of private mediation with an experienced neutral. However, they were unable to reach an agreement and proceeded with the completion of discovery and preparing motions for summary judgment.
11. The parties filed cross-motions for summary judgment with respect to all of the major legal issues in the case in July and August, 2010. On May 20, 2011, the Court entered a comprehensive Order granting Plaintiffs’ motions for summary judgment and denying
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Defendants’ motions for summary judgment, leaving only a few issues remaining for trial.

12. Subsequent to the Court’s May 20, 2011, Order on the summary judgment

motions, the parties engaged in a number of discussions in an effort to settle this matter,

culminating in this Settlement.

13. The Named Plaintiffs and Class Counsel believe that the Settlement reached with

Defendants is fair, adequate, reasonable, and in the best interests of the Classes and the FLSA

opt-in Plaintiffs.

NOW THEREFORE, in consideration of the foregoing recitals and prefatory phrases, and

of the covenants and promises set forth in this Settlement and in exchange for other good,

valuable, and sufficient consideration more specifically set forth in this Settlement and hereby

acknowledged, the Named Plaintiffs—on behalf of themselves, the FLSA opt-in Plaintiffs, and

the Classes—and the Defendants agree as follows:

I. TERMS OF SETTLEMENT

A. Payments and Settlement Fund.

1. Initial Payments.

On or before December 30, 2011, Defendants shall deliver certified checks made payable

to the “Southern Poverty Law Center Client Trust Account” or electronically transfer funds to

the Southern Poverty Law Center’s Client Trust Account as follows:

a. Brooks Lisenbey $650,000.00

b. Charles Searcy

$150,000.00.

The Southern Poverty Law Center will hold this $800,000.00 in its Client Trust Account

pending final approval of this Settlement by the Court and entry of a Judgment that becomes

Final, as defined in Section I.L.

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Once the Judgment becomes Final, the Southern Poverty Law Center will release $750,000.00 of the above sums from its Client Trust Account to the Settlement Administrator to establish the Settlement Fund for the purpose of paying claims of the named Plaintiffs, FLSA opt-in Plaintiffs, Rule 23 Class Members, and the individual payments, as outlined in greater detail below. The remaining $50,000.00 of the sums identified above—pending approval of the Court and entry of a Judgment that becomes Final—will be released from the Client Trust Account to the Southern Poverty Law Center and set aside to pay Settlement Administration Costs. All amounts paid by Defendants will be disbursed pursuant to this Settlement, and none of it will revert to the Defendants under any circumstances. This Settlement contemplates that the Settlement Fund will ultimately consist of a principal amount of $1,212,500, plus 5% interest on the principal sum of $462,500 calculated from January 1, 2012, to the date of payment. Specifically, the Settlement Fund should ultimately consist of the $750,000 initial payment, the payment of $437,500.00 plus 5% interest to be paid by Defendant Randy Clanton on or before September 3, 2012, as outlined in Section I.A.2, and the payment of $25,000.00 plus 5% interest to be paid by Defendant Charles Searcy on or before September 3, 2012, as outlined in Section I.A.2.
The failure of either Defendant Brooks Lisenbey or Charles Searcy to pay the amount as listed above on or before December 30, 2011, will be considered a breach of this Settlement and result in a request that the Court enter judgment against all Defendants, jointly and severally, in the amount of $1,939,672.78 with respect to the Plaintiffs, FLSA opt-in Plaintiffs, and Rule 23 class members, plus an additional amount totaling $486,369.75 in costs and attorneys’ fees payable to the Southern Poverty Law Center. In the event of a failure to pay pursuant to this Section I.A.1. that results in the entry of judgment against all Defendants, the remaining payment
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provisions contained in Sections I.A.2. and I.A.3., the security provisions contained in Section

I.A.4., and the consequences of breach of the payment provisions contained in Section I.A.5.

shall be of no further force and effect.

If Defendant Brooks Lisenbey or Charles Searcy fail to pay the amount as listed above on

or before December 30, 2011, then absent a separate agreement between the Plaintiffs and

Defendant Brooks Lisenbey or Charles Searcy to accept the funds they have paid in exchange for

marking any judgment against them as satisfied or partially satisfied, any funds paid pursuant to

Section I.A.1. above will be returned to the individual who made their payment, on or before

January 15, 2012.

2. Subsequent Payments by September 3, 2012.

On or before September 3, 2012, Defendants shall deliver to the Southern Poverty Law

Center certified checks made payable directly to the Settlement Fund, or electronically transfer

funds directly to the Settlement Fund as follows:

a. Randy Clanton

$437,500.00, plus 5% simple interest from January 1, 2012 until date of payment

b. Charles Searcy

$25,000.00, plus 5% simple interest from January 1, 2012 until date of payment.

Class Counsel will provide Defendants with more detailed information on or before

August 15, 2012 with respect to the name on any certified checks to be paid to the Settlement

Fund and/or electronic fund transfer information for the Settlement Fund.

3. Subsequent Payments by September 3, 2013.

On or before September 3, 2013, Defendants shall deliver certified checks made payable

to the “Southern Poverty Law Center” or electronically transfer funds to the Southern Poverty

Law Center as follows:

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a. Randy Clanton

$275,000.00, plus 5% simple interest from January 1, 2012 until date of payment.

b. Charles Searcy

$25,000.00, plus 5% simple interest from January 1, 2012 until date of payment.

4. Security for Payment of Sums in Sections I.A.2. and I.A.3. and Consequences for Failure to Cooperate Fully with Finalizing Security Documents by January 31, 2012.

Defendant Randy Clanton’s Payments pursuant to Sections I.A.2. and I.A.3. shall be

secured by mortgages and/or other security instruments related to all real property he owns by

himself or jointly with any other individual or entity, the packing shed facility in Hermitage,

Arkansas owned by Clanton Farms, LLC, and the personal property associated with the packing

shed facility in Hermitage, Arkansas—personal property whose ownership is currently in

dispute. Defendant Randy Clanton has disclosed to the Plaintiffs that Plaintiffs’ would be

second lienholders with respect to the real property owned by Defendant Randy Clanton by

himself or jointly with any other individual or entity, with the exception of his home and the

surrounding five acres of land, in which case the Plaintiffs would be third lienholders.

Defendant Randy Clanton has also disclosed to Plaintiffs that Plaintiffs would be third

lienholders with respect to the real property comprising the packing shed facility in Hermitage,

Arkansas that is owned by Clanton Farms, LLC, as well as the personal property associated with

the packing shed facility. Defendant Randy Clanton has also disclosed to Plaintiffs that the

second lien on the real property comprising the packing shed facility in Hermitage, Arkansas that

is owned by Clanton Farms, LLC, as well as the personal property associated with the packing

shed facility, is in the approximate amount of $300,000 and may not be increased. Defendant

Randy Clanton understands that Plaintiffs’ have relied upon these disclosures being accurate in

entering into this Settlement, and that their position as only second lienholders, or third

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lienholders with respect to certain property, are material terms of this Settlement with respect to Defendant Randy Clanton that, if they were not accurate, the Plaintiffs would not enter into this Settlement. The mortgages and/or other security instruments and any related documents securing Defendant Randy Clanton’s payment are still being prepared and, upon completion, will be filed with the Court as part of this Settlement and be considered part of this Settlement. If a title search reveals that Plaintiffs will not be second or third position lienholders with respect to the real property as discussed above based on the disclosures of Defendant Randy Clanton, or if the real property becomes further encumbered to someone other than the Plaintiffs or the Southern Poverty Law Center between December 16, 2011, and a date within ten (10) days of finalizing all mortgages and/or other security instruments related to the real property, that shall be considered a breach of this Settlement and result in a request that the Court enter judgment against Defendants Randy Clanton, Candy Brand, LLC, and Arkansas Tomato Shippers, LLC, jointly and severally, in the amount of $1,939,672.78 with respect to the Plaintiffs, FLSA opt-in Plaintiffs, and Rule 23 class members, plus an additional amount totaling $486,369.75 in costs and attorneys’ fees payable to the Southern Poverty Law Center. Defendants may only contest the judgment amount identified above to the extent of any payments made by any Defendant pursuant to Sections I.A.1., I.A.2., and I.A.3.
Failure by Defendant Randy Clanton or any individual or entity with whom he owns real property individually or jointly, or failure by Clanton Farms, LLC to cooperate fully to complete all steps necessary to finalize any mortgages and/or other security instruments and any related documents prior to January 31, 2012, shall be considered a breach of this Settlement and result in a request that the Court enter judgment against Defendants Randy Clanton, Candy Brand, LLC, and Arkansas Tomato Shippers, LLC, jointly and severally, in the amount of $1,939,672.78 with
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respect to the Plaintiffs, FLSA opt-in Plaintiffs, and Rule 23 class members, plus an additional amount totaling $486,369.75 in costs and attorneys’ fees payable to the Southern Poverty Law Center. Defendants may only contest the judgment amount identified above to the extent of any payments made by any Defendant pursuant to Sections I.A.1., I.A.2., and I.A.3.
The failure of Defendant Brooks Lisenbey and/or any entity he owns or operates, or any entity that Defendant Lisenbey claims to own an interest in the personal property associated with the packing shed facility to cooperate fully to complete all steps necessary to finalize any security instruments related to the personal property associated with the packing shed facility in Hermitage, Arkansas—personal property whose ownership is currently in dispute—prior to January 31, 2012, shall be considered a breach of this Settlement and result in a request that the Court enter judgment against Defendant Brooks Lisenbey, Candy Brand, LLC, and Arkansas Tomato Shippers, LLC, jointly and severally, in the amount of $1,939,672.78 with respect to the Plaintiffs, FLSA opt-in Plaintiffs, and Rule 23 class members, plus an additional amount totaling $486,369.75 in costs and attorneys’ fees payable to the Southern Poverty Law Center. Defendants may only contest the judgment amount identified above to the extent of any payments made by any Defendant pursuant to Sections I.A.1, I.A.2, and I.A.3.
Defendant Charles Searcy’s payment pursuant to Sections I.A.2 and I.A.3. above shall be secured by a mortgage on real property owned by Drew Acceptance Company, Inc. The mortgage and related documents securing Defendant Charles Searcy’s payment are still being prepared and, upon completion, will be filed with the Court as part of this Settlement and be considered part of this Settlement agreement. Failure by Defendant Charles Searcy, or failure by Drew Acceptance Company, Inc. to cooperate fully to complete all steps necessary to finalize any mortgage and/or related documents prior to January 31, 2012, shall be considered a breach
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of this Settlement and result in a request that the Court enter judgment against Defendants Charles Searcy, Candy Brand, LLC, and Arkansas Tomato Shippers, LLC in the amount of $1,939,672.78 with respect to the Plaintiffs, FLSA opt-in Plaintiffs, and Rule 23 class members, plus an additional amount totaling $486,369.75 in costs and attorneys’ fees payable to the Southern Poverty Law Center. Defendants may only contest the judgment amount identified above to the extent of any payments made by any Defendant pursuant to Sections I.A.1, I.A.2, and I.A.3.
5. Consequences of Breach of Payment Provisions in Sections I.A.2. and/or I.A.3.
Following completion of all mortgage and/or security instruments and related documents as contemplated in Section I.A.4. above, the failure by Defendant Randy Clanton to make payment pursuant to Sections I.A.2. and/or I.A.3. shall be considered a breach of this Settlement and result in a request that the Court enter judgment against Defendants Randy Clanton, Candy Brand, LLC, and Arkansas Tomato Shippers, LLC, jointly and severally, in the amount of $890,625.00, plus 5% interest from January 1, 2012 until date of payment of the judgment, less any credits for amounts paid by Defendant Randy Clanton individually pursuant to Sections I.A.2 and I.A.3. of this Settlement prior to the breach, plus costs and attorneys’ fees at the rate of $250 per hour associated with Plaintiffs’ efforts to cure the default and/or to move for entry of judgment, any subsequent proceedings necessary to enforce and collect the judgment, and/or any efforts to foreclose or otherwise execute on any mortgages and/or security interests being provided to secure the payments required by Sections I.A.2. and I.A.3. above. Of the $890,625.00 identified above, $546,875.00, plus 5% interest from January 1, 2012, shall be considered part of the Settlement Fund, with any remaining balance, plus 5% interest from January 1, 2012, being considered costs and attorneys fees payable to the Southern Poverty Law
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Center. Following completion of the mortgage documents as contemplated in Section I.A.4.
above, failure by Defendant Charles Searcy to make payment pursuant to Sections I.A.2. and/or I.A.3. shall be considered a breach of this Settlement and result in a request that the Court enter judgment against Defendants Charles Searcy, Candy Brand, LLC, and Arkansas Tomato Shippers, LLC in the amount of $62,500.00, plus 5% interest from January 1, 2012 until date of payment of the judgment, less any credits for amounts paid by Defendant Charles Searcy individually pursuant to Sections I.A.2 and I.A.3. of this Settlement prior to the breach, plus costs and attorneys’ fees at the rate of $250 per hour associated with Plaintiffs’ efforts to cure the default and/or to move for entry of judgment, any subsequent proceedings necessary to enforce and collect the judgment, and/or any efforts to foreclose or otherwise execute on the mortgage being provided to secure the payments required by Sections I.A.2. and I.A.3. above. Of the $62,500.00 identified above, $31,250.00, plus 5% interest from January 1, 2012, shall be considered part of the Settlement Fund, with any remaining balance, plus 5% interest from January 1, 2012, being considered costs and attorneys fees payable to the Southern Poverty Law Center.
The parties to this Settlement stipulate that the Court shall have jurisdiction to enforce the terms of this Settlement, including authority to enter judgment in favor of Plaintiffs and against any defaulting party(ies). B. Costs and Attorneys’ Fees.
Subject to the approval of the Court, Defendants will pay Class Counsel costs and attorneys’ fees associated with the prosecution of this action in the principal amount of $300,000.00, plus interest. This figure does not include the $50,000.00 that will be set aside for
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the costs of Settlement Administration from the initial payment of $800,000.00 as outlined in Section I.A.1. above. Class Counsel will not seek costs and attorneys’ fees in excess of the principal amount of $300,000.00, and Defendants will not oppose Plaintiffs’ request for costs and fees. If the Court approves costs and fees for Class Counsel in an amount less than $300,000.00, any difference (i.e. the remaining balance) will be required to be paid by the Defendants directly to the Settlement Fund. Under no circumstances will the amounts to be paid below revert to the Defendants. This Settlement contemplates that Class Counsel’s costs and attorneys’ fees of $300,000.00, plus interest, will be comprised of the payments to be made by Randy Clanton and Charles Searcy as outlined in Section I.A.3. above. C. Settlement Administration Costs.
As outlined above, $50,000 of the initial $800,000.00 in payments made by the Defendants will be set aside and used at the discretion of Class Counsel to pay costs associated with the administration of the Settlement Fund, including, but not limited to, costs associated with sending notices and/or otherwise notifying Class Members of this Settlement, all costs and fees associated with 1-800 calls from Class Members placed to Class Counsel regarding this Settlement, all costs and fees associated with locating Class Members to assist them in filing claims, all costs and fees associated with contacting and/or locating FLSA opt-in Plaintiffs and Class Members (including costs related to any agents hired by Class Counsel) to provide them their Settlement payments, as well as any expenses to be paid to the Settlement Administrator. Any portion of the $50,000 Settlement Administration Costs that remains unused after all Claims have been paid shall be transferred to the Southern Poverty Law Center’s general account as compensation for its time spent administering the Settlement Fund.
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D. Notice of Default; Waiver of Right to File Bankruptcy Petition For Limited Time. In the event that one or more of the Defendants fail to make any of the payments
as set forth above in Sections I.A.2 and/or I.A.3., Plaintiffs shall provide said Defendant(s) and any individuals or entities who have pledged security on behalf of the defaulting Defendant(s) with written notice of non-compliance with the Settlement payment provisions and provide them 10 business days from the date of the written notice to cure the defect. Defendants and any individuals or entities who pledge security on their behalf agree that any written notice to be provided pursuant to this section will be sent via email and U.S. mail in accordance with Section V.11. below, and/or to any other person or entity they designate in writing to Class Counsel to receive such notices. In the event that the payment default is not cured within 10 business days of the date of the written notice, Plaintiffs may immediately begin proceedings related to any security interests related to the defaulting Defendant(s) and may also move the Court for entry of judgment.
All Defendants agree that they will not file a bankruptcy petition within ninetyone (91) days following their payment of the amounts set forth in Section I.A. above. The filing of a bankruptcy petition by any or all of the Defendants, or any or all of the individuals or entities providing security for the payment of the amounts set forth in Section I.A., will not relieve the non-filing Defendant(s) or the non-filing individuals or entities providing security from the payment obligations as outlined in Sections I.A., and shall not prevent Plaintiffs from seeking the entry of judgment against any or all of the non-filing Defendant(s) and/or taking any actions with respect to the security provided by the non-filing Defendant(s) and/or the individuals or entities providing security for the
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payment of the amounts set forth in Section I.A. E. Appointment of Settlement Administrator.
The Parties will ask the Court to appoint Settlement Services, Inc., a qualified administrator, to serve as the Settlement Administrator, which, as a condition of appointment, will agree to be bound by this Settlement with respect to the performance of its duties. The Settlement Administrator will open and administer an interest-bearing account or accounts (“Settlement Fund Account(s)”) approved by Class Counsel with a unique Tax Payer Identification Number. The monetary payments described above in section I.A. will be transferred into this Settlement Fund Account(s) upon final approval of the Court and entry of a Judgment that becomes Final. The Settlement Fund Account(s) will constitute a qualified settlement fund within the meaning of Treasury Regulations §§ 1.468B-1, et seq., and it will be created, managed, and disbursed by the Settlement Administrator under the supervision and at the direction of Class Counsel. Defendants shall hereby be deemed to have made an election under Section 468B of the Revenue Code to have the Settlement Fund treated as a “qualified settlement fund.” Defendants shall timely furnish a statement to the Settlement Administrator that complies with Treasury Regulation § 1.468B-3(e) and shall attach a copy of the statement to its federal income tax return that is filed for the taxable year in which Defendants make the required payments. Defendants will have no responsibilities or liabilities with respect to the Settlement Fund Account(s), its administration, or distribution therefrom.
In addition to the above, the Settlement Administrator’s duties shall include responsibility for all tax reporting, tax withholding, and tax withholding payments to appropriate governmental agencies associated with payments from the Settlement Fund to
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the Named Plaintiffs, the FLSA opt-in Plaintiffs, and the Class Members. In association with these duties, the Settlement Administrator will calculate the employers’ share of taxes (FICA, FUTA, SUTA) due on any payments designated as wages made to the named Plaintiffs, FLSA opt-in Plaintiffs, and the Class Members who file Claim Forms. Upon the close of the Claims Period, the Settlement Administrator shall inform the Defendants of the amount of the employer’s share of taxes in writing by sending the same by email and regular mail to the Defendants in accordance with Section V.11. below, and the Defendants will pay such amount into the Qualified Settlement Fund within ten (10) business days of the date of the notification by the Settlement Administrator. Defendants' obligation to pay the employer's share of taxes is in addition to the amounts Defendants have agreed to pay pursuant to the preceding sections, and they shall be jointly and severally liable for the payment of these amounts.
The Settlement Administrator will provide Class Counsel an invoice for their services on a monthly basis. F. Notice to Class Members of Class Action Settlement.
Within 10 business days of the later of Defendants’ compliance with the payment provisions outlined in Section I.A.1. or preliminary approval by the Court of this Settlement and the Notice and Claim Form, Class Counsel will mail the attached Notice of Class Action Settlement and Claim Form (attached hereto in English as Exhibit C) in Spanish to each of the Class Members whose last known address is in Mexico, and in Spanish and English to each of the Class Members whose last known address is in the United States. The Notice of Class Action Settlement describes this litigation, the settlement terms, how to file a Claim, the procedure for a class member to object to the proposed settlement and/or attend the fairness
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hearing scheduled by the Court, and the procedure to opt-out of this class action settlement. Class Counsel will file a Notice with the Court upon completion of the mailing. G. Notice Pursuant to the Class Action Fairness Act
Within 10 business days of Defendants’ compliance with the payment provisions outlined in Section I.A., Defendants will, pursuant to the Class Action Fairness Act (“CAFA”), mail the notice and documents required by CAFA to the Attorney General of the United States and the appropriate state official in the states of Arkansas, Arizona, California, Georgia, Missouri, Mississippi, North Carolina, Oklahoma, Texas and Wisconsin. The Parties believe that no other state entities other than those identified above need to be notified of this Settlement pursuant to CAFA. Defendants shall file a Notice with the Court upon completion of the required CAFA mailings. H. Claims Process.
The Notice of Class Action Settlement to be mailed upon preliminary approval by the Court will include a Claim Form.
(1) Notice and Claims Process. The Claim Form will explain that the deadline for submitting claims for payment from the Settlement Fund will be nine (9) months from the date the Forms are mailed. All FLSA optin Plaintiffs and Class Members who submit valid claims at any time before the close of the Claims Period shall be considered “Claiming Class Members” and entitled to receive their full proportionate share of the Settlement Funds. (2) Submission and Validation of Claims. Class Counsel, and any Settlement Administrator or other third-party engaged for this purpose, shall be solely responsible for determining the appropriate methods for the submission
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of claims and for reviewing and adjudging their validity. The large majority of FLSA opt-in Plaintiffs and Class Members live in rural areas of Mexico where incoming and outgoing mail service is slow and unreliable and the availability of fax and photocopying services may be limited or expensive. As such, Class Counsel shall be empowered to determine, in their reasonable judgment, (a) that confirmation of identity by telephone (e.g., through the provision of personal information sufficient to verify identity), electronic mail or other means of written or oral communication is sufficient to validate a claim and/or (b) that a claim may be validated based on a writing other than the approved Claim Form.
The three named Plaintiffs will not be required to submit any Claim Forms, their participation as named Plaintiffs and class representatives being sufficient to establish a Claim, and they will automatically be considered “Claiming Class Members”.
Where a named Plaintiff, FLSA opt-in Plaintiff, or Class Member is deceased, upon receipt of proper identification and documentation of the payee’s interest, payment will be made to the class member’s estate or, in the event there is no estate, to the class member’s next of kin in the following priority: (1) spouse; (2) children; (3) parents; (4) siblings; and (5) other relatives. I. Distribution of Payments from the Settlement Fund.
Class Counsel has calculated the total damages owed to each named Plaintiff, FLSA optin Plaintiff, and Class Member based on the violations of law established in the Court’s May 20, 2011, Order on the parties’ motions for summary judgment. Those figures were previously reviewed for accuracy by Jorge Rivero, Plaintiffs’ damages expert and a former official with the United States Department of Labor’s Wage and Hour Division. The Settlement Fund will be distributed based on those calculations, as follows:
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(1) Individual Payments

In consideration for their commitment to the pursuit of the claims in this action on

behalf of themselves and the Classes, and pending their submission of Claim Forms (with

the exception of the three named Plaintiffs), $48,000 of the Settlement Fund will be paid

to the following individuals in the following amounts, reflecting the extent of their

individual participation in the prosecution of this action:

Rosalino Perez Benites Luis Alberto Ascencio Vazquez Pascual Noriega Narvaez Blas Burboa Leyva Diego Arriaga Guzman Maria Mireya Cortes Gonzales Maria Elena Martinez Morales Jose Dolores Ramirez Reyes Jose Antonio Estrada Ascencio Jacqulyon LaVerne Ware Margarita Eloisa Plasensia Juan Pablo Ascencio Vazquez Alfonso Noriega Vazquez Rogelio Cortes Gonzales Estanislao Ramirez Reyes Salvador Amezcua Sosa Alejandro Julian Anselmo Torres Lorenzo Gonzalez Gutierrez

$5,000.00 $5,000.00 $5,000.00 $3,000.00 $3,000.00 $3,000.00 $3,000.00 $3,000.00 $3,000.00 $3,000.00 $3,000.00 $2,000.00 $2,000.00 $1,000.00 $1,000.00 $1,000.00 $1,000.00 $1,000.00.

If one or more of the above-named individuals does not file a Claim Form by the

submission deadline, then any amounts allocated above to him/her will revert to the

Settlement Fund to be disbursed to the Claiming Class Members.

(2) FLSA Liquidated Damages

Each Claiming Class Member who was a FLSA opt-in Plaintiff and appears on

Exhibit A will receive the full amount of the FLSA liquidated damages associated with

moneys owed to him/her pursuant to the FLSA, as calculated by Class Counsel.

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(3) Total Proportionate Shares.
Each Claiming Class Member’s proportionate total share of the Settlement Fund
will be calculated as follows:
(a) Each Claiming Class Member will receive a proportionate share of the Settlement Fund that will consist of the $750,000.00 initial payment, the payment of $437,500.00 plus 5% interest to be paid by Defendant Randy Clanton on or before September 3, 2012, and the payment of $25,000.00 plus 5% interest to be paid by Defendant Charles Searcy on or before September 3, 2012, minus the Individual Payments, minus the FLSA Liquidated Damages, plus any interest earned on the Settlement Fund Account(s) between the time it is established by the Settlement Administrator and the end of the Claim Period. Each Claiming Class Member’s proportionate share of the Settlement Fund will be based upon the damages owed to them based on the Court’s May 20, 2011, summary judgment order, as previously calculated by Class Counsel, in proportion to the damages owed to all other Claiming Class Members’ based on the Court’s May 20, 2011, summary judgment order, as previously calculated by Class Counsel.
(b) A named Plaintiff or Claiming Class Member who disagrees with the damages calculated by Class Counsel must submit additional documentation to Class Counsel that would allow Class Counsel to further analyze the Claiming Class Member’s work history with the Defendants and adjust their damage calculations accordingly. Objections and documentation must be submitted to Class Counsel and received by Class Counsel prior to the close of the Claim Period. The decision of Class Counsel with respect to any challenges to the damages calculations shall be final.
(4) Distribution of Settlement Fund Shares.
Class Counsel will provide the Settlement Administrator the list of named Plaintiffs, FLSA opt-in Plaintiffs, and Class Members entitled to receive payment from the Settlement Fund and the amounts they are to receive, as well as instructions on how the money will be disbursed and provided to the named Plaintiffs, FLSA opt-in Plaintiffs, and Class Members, most of whom reside in Mexico and are, therefore, unable to cash checks issued from a United States bank. The Settlement Administrator will make disbursal of funds from the Settlement Fund Account as directed by Class Counsel. Class Counsel will work with third parties to facilitate the coordination and delivery of the Settlement Funds to the named Plaintiffs, FLSA opt-in Plaintiffs, and Class Members, primarily through notifying
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them that funds are available for their retrieval at a designated bank in Mexico, or at a Western Union location. Any Settlement Funds not collected by the named Plaintiffs, FLSA opt-in Plaintiffs, and/or the Class Members within 150 days of Class Counsel or their agents’ first attempts to contact the individual named Plaintiff, FLSA opt-in Plaintiff, and/or Class Member to advise them of the availability of their Settlement Share shall revert back to the Settlement Fund Account for inclusion in the funds available and be considered “Residual Funds.”
(5) Residual Funds.
(a) Monies, if any, remaining in the Settlement Fund Account as a result of the accrual of interest on the Fund after the Settlement Shares were calculated and/or the funds that were not collected by the Class Members as outlined in section I.I.(4) above, will be used first to pay any claims submitted after the deadline described above in section I.H. but before December 31, 2012 (“Late Claims”). Late Claims will be paid only after the final distribution and will not be paid if no monies remain in the Fund after the final distribution.
(b) If monies remain in the Settlement Fund Account after full satisfaction of all Late Claims, then they will be applied to pay costs incurred by Class Counsel in administering the Settlement, to the extent they exceed the funds provided for in Section I.C.
(c) If monies still remain after the payment of all such costs, they shall be distributed to Farmworker Justice, Inc., a 501(c)(3), tax exempt organization that provides, among other things, free legal services to H-2A workers.
J. Nature of Settlement Funds.
The Parties to this Settlement acknowledge that the Class Members employed on H-2A
visas paid, on average, $500 per season in costs and fees associated with obtaining their H-2A
visa and traveling to the United States to work for Defendants. The parties agree that payments
to Class Members filing claims as part of this Settlement (and who were employed on H-2A
visas) up to and including $500 per work season are for the purpose of reimbursing those Class
Members for the expenses they incurred to obtain their H-2A visas and travel to the United
States to work for the Defendants. Based on this understanding, no taxes will be withheld or
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paid by either Defendants or the Settlement Administrator with respect to payments to those Class Members up to and including $500 per work season.
Payments to Class Members may include distribution of each Claiming Class Member’s proportionate share of the interest income generated by the Settlement Fund Account(s). The Settlement Administrator will report this income to the appropriate taxing authorities and the class members, if necessary. K. Retaliation Prohibited.
Defendants agree that neither they nor any of their agents will retaliate, directly or indirectly, in any manner, against any person because of his or her participation in the prosecution of this action or participation in the Claims Process, including but not limited to the named Plaintiffs and the FLSA opt-in Plaintiffs, the named Plaintiffs’ and FLSA opt-in Plaintiffs’ family members, declarants and/or witnesses who provided testimony in support of the lawsuit, or any other person who has cooperated or participated in the prosecution of this action. Defendants further agree that neither they nor any of their agents will discourage, directly or indirectly, in any manner, any Class Member from filing a Claim. L. Effective Date.
This Settlement Agreement shall become effective after the Court approves it and enters a Judgment that becomes Final. “Final” means the last of the following dates, as applicable:
(1) The last date on which a notice of appeal from the Judgment may be filed, and none is filed.
(2) If a timely appeal from the Judgment is filed, the last of the following dates: (a) The last date by which a petition for review by the United States Court of Appeals for the Eighth Circuit or the United States Supreme Court’s decision affirming the Judgment may be filed, and none is filed; (b) The last date by which a petition for a writ of certiorari to the United
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States Supreme Court of a decision by the United States Court of Appeals for the Eighth Circuit affirming the judgment may be filed, and none is filed; (c) If a petition for review by the United States Court of Appeals for the Eighth Circuit, or a petition for a writ of certiorari to the United States Supreme Court, seeking review of the Judgment or of the United States Court of Appeals for the Eighth Circuit’s decision on an appeal from the Judgment is timely filed, the date on which the highest reviewing court renders its decision denying the petition (where the immediately lower court affirmed the Judgment) or affirming the Judgment.
M. Mutual Releases. (1) Named Plaintiffs and FLSA opt-in Plaintiffs. On the Settlement Effective Date, the Named Plaintiffs, individually and on behalf of the
FLSA opt-in Plaintiffs, their attorneys, agents, successors, affiliates, heirs and assigns, fully, finally and forever release, discharge and hold harmless Defendants and their partners, directors, officers, employees, attorneys, agents and anyone acting or authorized to act on their behalf, including Randy Clanton Farms, Inc., from any and all claims and demands that were asserted in this case or arise from the facts alleged in Plaintiffs’ First Amended Complaint related to the Fair Labor Standards Act. For purposes of this release, it is expressly acknowledged by all parties and Randy Clanton Farms, Inc. that the release only applies to those claims related to the 20032007 seasons in which Candy Brand, LLC was actively engaged in farming operations.
(2) Named Plaintiffs and Rule 23 Class Members. On the Settlement Effective Date, the Named Plaintiffs, individually and on behalf of the Rule 23 Classes, their attorneys, agents, successors, affiliates, heirs and assigns, fully, finally and forever release, discharge and hold harmless Defendants and their partners, directors, officers, employees, attorneys, agents and anyone acting or authorized to act on their behalf, including Randy Clanton Farms, Inc. from any and all claims and demands that were asserted or could
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have been asserted in this case or arise from the facts alleged in Plaintiffs’ First Amended Complaint. For purposes of this release, it is expressly acknowledged by all parties and Randy Clanton Farms, Inc. that the release only applies to those claims related to the 2003-2007 seasons in which Candy Brand, LLC was actively engaged in farming operations.
(3) Defendants. The Defendants and Randy Clanton Farms, Inc., and their attorneys, agents, successors, affiliates, heirs, and assigns, fully, finally and forever release, discharge and hold harmless the named Plaintiffs, the FLSA opt-in Plaintiffs, and the Rule 23 Class Members, their attorneys, agents, and anyone acting or authorized to act on their behalf from any and all claims, demands, and causes of action for all matters that arise from or are related to the claims and defenses alleged in this case. II. PRELIMINARY COURT APPROVAL AND NOTICE OF CLASS ACTION SETTLEMENT In conjunction with filing this Settlement with the Court, the Parties will also submit a proposed Notice of Class Action Settlement and Claim Form, attached as Exhibit C, that describes the Classes, the terms of Settlement, who is eligible to claim monetary benefits under the Settlement and how to file a Claim, estimates of the monetary benefits the Settlement will provide for Claiming Class Members, the Class Members' right to file objections to the settlement or to opt out of the Settlement, the date for a fairness hearing, and a deadline and instructions for submitting objections, and a toll-free number that may be used to direct questions to Class Counsel. The Parties will jointly move the Court for preliminary approval of the Settlement, the Notice of Class Action Settlement, and the Claim Form. The Parties will also submit a joint proposed Preliminary Approval Order.
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III. FINAL COURT APPROVAL All Parties agree to take such actions as are reasonably necessary to obtain the Court's
Final Approval of this Settlement, including filing memoranda in opposition to any objections to this Settlement or its terms and defending this Settlement from any challenges at any Fairness Hearing. Should the Court not grant Final Approval of this Settlement or its terms then this Settlement shall immediately be null and void unless the parties or their successors in interest agree otherwise in writing. In the event the Court does not grant Final Approval of this Settlement, Class Counsel will be required to return any or all of the $800,000.00 paid pursuant to Section I.A.1 above to the individual Defendant(s) who made the payment within 20 days of the Court denying Final Approval of the Settlement. IV. FINAL JUDGMENT
As soon as practicable after the close of the hearing on the fairness, reasonableness and adequacy of this Settlement and its terms, Class Counsel and Defendants shall request and shall take such actions as are reasonably necessary to have the Court grant a Final Judgment in the lawsuit by entering a final order which provides that the Court approves this Settlement and its terms as fair, reasonable and adequate, provides for the implementation of all of the Settlement's terms and provisions, approves the individual payments outlined in Section I.I.(1), awards costs and attorneys’ fees as outlined in Sections I.A. and I.B., finds that the notice given to the class satisfied the requirements of due process and Rule 23(e) of the Federal Rules of Civil Procedure, dismisses the claims of the named Plaintiffs, FLSA opt-in Plaintiffs, and the Classes with prejudice, and retains jurisdiction to enforce the provisions of this Settlement. V. ADDITIONAL PROVISIONS
1. The Parties to this Settlement shall not, directly or indirectly, in any way exercise,
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and they, and all of them, do hereby waive any and all rights they, or any of them, have or may have to appeal from any order of Court entered pursuant to and in accordance with this Settlement. This waiver of appeal does not include any waiver of the right to oppose any appeal, appellate proceedings, or post-judgment proceedings. This paragraph does not preclude Plaintiffs or Class Counsel from appealing any refusal by the District Court to award the full individual payments outlined in Section I.I.(1), and/or the full costs and attorneys’ fees outlined in Sections I.A. and I.B.
2. The Parties to this Settlement, including their employees, agents, and attorneys, agree that they will not solicit or advise Class Members to request exclusion from the Class and will not represent, or arrange representation for, any potential Class Member in requesting exclusion from the class and/or filing a separate action.
3. This Settlement, including the Recitals and Exhibits, supersedes any prior agreements or understandings between the Parties with respect to settlement. Upon their completion, the security agreements required by Section I.A.4. shall be filed with the Court and will become part of this Settlement.
4. The Parties agree to ask the Court to retain jurisdiction of this matter to enforce the terms of this Settlement, including enforcing the terms requiring completion of security agreements prior to a final fairness hearing on this Settlement.
5. The Parties represent and warrant to each other that they have the full power and authority to enter into this Settlement, and that they have not assigned, pledged, encumbered or in any manner transferred or conveyed any portion of the claims or causes of action covered by this Settlement.
6. The Parties represent and warrant to each other that they understand this
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Settlement in its entirety and that they have been represented by and consulted with their respective counsel in connection with the negotiating, drafting and execution of this Settlement.
7. With the exception of the security agreements required by Section I.A.4. that have not yet been completed and, once filed, will modify or amend this Settlement, this Settlement may be modified or amended only by a writing signed by all Parties or their successors-ininterest.
8. The Settlement shall be binding upon and inure to the benefit of the Parties, and as applicable, their respective personal representatives, agents, executors, heirs, administrators, successors, assigns, officers, directors, shareholders, subsidiaries, parents or affiliated partnerships, corporations or divisions and employees.
9. This Settlement shall be interpreted according to Arkansas law, and federal law where applicable.
10. This Settlement may be executed in one or more counterparts which, once fully executed, shall constitute one original and binding Settlement. A photocopy or facsimile copy of any signature on this Settlement shall be considered as valid as an original signature.
11. All notices, demands, or other communications given under this Settlement, with the exception of documents filed via the Court’s CM/ECF system, will be in writing and addressed as follows:
To the Plaintiffs, the FLSA opt-in Plaintiffs, and the Class: James Knoepp Michelle Lapointe Southern Poverty Law Center 233 Peachtree Street NE, Suite 2150 Atlanta, GA 30303 jim.knoepp@splcenter.org michelle.lapointe@splcenter.org
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To Defendants Candy Brand, LLC, Arkansas Tomato Shippers, LLC, Charles Searcy, and Drew Acceptance Company, Inc.: Hani W. Hashem Hashem Law Firm PLC P.O. Box 739 Monticello, AR 71657 hwh@hashemlawfirm.com Charles Searcy 201 S. Main Street Monticello, AR 71655 csearcy@ccc-cable.net To Defendant Brooks Lisenbey: J. Paul Davidson Davidson Law Firm P.O. Box 1300 Little Rock, AR 72203 pauld@dlf-ar.com
To Defendant Randy Clanton, Judy Clanton, Randy Clanton Farms, Inc., and Clanton Farms, LLC: F. Mattison Thomas, III 103 East Main Street, Suite D El Dorado, AR 71730 matt@southarklegal.com
The Parties may from time to time change their address for purposes of this section by providing written notice of such change to the other Parties.
[Signatures begin on following page.]
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IN WITNESS WIIEREOF, the Parties have signed this Settlement on the date written across from their signatures. Attorneys for the named Plaintiffs, the FLSA opt-in Plaintiffs, and the Classes:

t-

Jarne_s Knoepp

Date

Southern Poverty Law Center

Attorneys for Defendants:
Hath W. Hashem Hasher Law Firm, PLC

I/
Date

J. Paul Davidson

Date

Davidson Law Firm

F. Mattison Thomas, III

Date

Named Plaintiffs, on behalf of themselves, the FLSA opt-in Plaintiffs, and the Classes:

Rosalino Perez-Benites

Date

Luis Alberto Ascencio-Vazquez

Date
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Case 1:07-cv-01048-RTD Document 273-1 Filed 12/23/11 Page 30 of 52 PageID #: 5180

Pascual Noriega Narvaez

Date

For the Defendants:

' (/1,"1(1

'2-i/

1

Candy Brand, LLC

Date

By: Charles Searcy, Managing Member

r)'')
Arkansas Tomato Shippers, LLC By: Charles Searcy, Managing Member
C arles Searcy, Individually

i

7

Date

(tit 1,4((
Date

Brooks Lisenbey

Date

Randy Clanton, Individually

Date

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Seen and Acknowledged by the Third Parties: Randy Clanton Farms, Inc. By: Randy Clanton, President
Clanton Farms, LLC By: Randy Clanton, Jr., Managing Member
mew Acceptance Company, Inc. y: James W. Searcy, President

Date
Date
Date
1'L \
Date

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EXHIBIT A - LIST OF NAMED PLAINTIFFS AND FLSA OPT-IN PLAINTIFFS Rosalino Perez Benitez Luis Alberto Ascencio Vazquez Pascual Noriega Narvaez Arquimidez Sanchez Benites Jose Javier Hernandez Gomez Valentin Cano Cano Antonio De La Cruz Cruz Javier Narvaez Reyes Ricardo Lopez Cano Juan Pablo Ascencio Vazquez Isai Ramirez Sanchez Jose Dolores Guzman Sanchez Gregorio Arias Arguellas Jairo Hernandez Perez Federico Hernandez Ortiz Silverio Hernandez Martinez Ismael Jimenez Hernandez Jose Iturbide Cruz Acosta Julio Cesar Perez Hernandez David Enoc Hernandez Alonso Moises Hernandez Alonso Antonio Hernandez Narvaez Gamaliel Lopez Rosario Lasaro Vazquez Rodriguez Alfonso Noriega Vazquez Manuel Cardenas Hernandez Jorge Perez de la Cruz Jose Manuel Lopez Abarca Javier Morales Ramon Raul Arredondo Martinez Margarita Eloisa Plasensia DeMario Blueford Julio Huerta Torres Lorenzo Gonzalez Gutierrez Aurelio Aguilar Mejia Jose Luis Aguilar Mejia Cayetano Palma Pena Amadeo Angeles Ramirez Crisanto Angeles Ramirez Rogelio Angeles Evaristo
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EXHIBIT A - LIST OF NAMED PLAINTIFFS AND FLSA OPT-IN PLAINTIFFS Ines Gachuz Cruz Esperanza Gomez Gachuz Abdon Maximiano Simon Alfredo Fuentes Rico Antonio Delgado Fuentes Beatriz Gonzalez Castro Candelario Barcenas Saucedo Diego Arriaga Guzman Eduardo Alvarez Vitela Elio Urueta Salgado Eva Cortez Castro Fernando Alberto Zuniga Rios Francisco Ruiz Velazquez Gerardo Murillo Huante Gregorio Barriga Domingo Jose Antonio Estrada Ascencio Jose Emmanuel Castaneda Magana Jose Javier Rivera Verduzco Juan Carlos Lopez Cortes Maria Elena Martinez Morales Maria Mireya Cortes Gonzalez Mario Lemus Vargas Martin Ramirez Hernandez Rafael Rodriguez Martinez Rogelio Ezequiel Cortes Gonzalez Salvador Amezcua Sosa Samuel Amaya Ascencio Ventura Lemus Campos Eduardo Mendoza Mendoza Dagoberto Martinez Lopez Rogelio Carranza Hernandez Mario Balderas Hernandes Manuel Trujillo Chaves Jose Alberto Perez Diaz Gerardo Murillo Ayala Fidel Rodriguez Jimenez Gerardo Ruiz Araujo Omar Mejia Barcenas Gilberto Rivera Mariano Juan Vargas Mondragon
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EXHIBIT A - LIST OF NAMED PLAINTIFFS AND FLSA OPT-IN PLAINTIFFS Maria Magdalena Zuniga Medina Maria Norma Sanchez Piedra Jose Valentin Villada Santos Jacquelyn Ware Alejandro Julian Anselmo Torres Fernando Estrada Torres Fernando Dosal Puebla Maria de los Angeles Flores Lazalde Veronica Alcaraz Magana Ulises Linares Rivera Blas Burboa Leyva Rigoberto Reyes Arreola Ramon Morales Ignacio Estanislao Ramirez Reyes Jose Dolores Ramirez Reyes Jose Juan Garcia Ramirez Baltazar Tovar Alvares
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EXHIBIT B - LIST OF INDIVIDUALS WHO FILED EXCLUSION FORMS J. Rosario Perez Angeles Luis Gomez Gomez Nestor Reynoso Reyes Herlindo Reynoso Reyes Laurentino Mejia Rebolledo Filiberto Diaz Cano Yolanda Saucedo Fuentes Elvis Fabricio Arjon Arturo Andres Luna Reyes Isidro Zavala Ramon Santos Pascual Felix Hernandez Naranjo Francisco Gambino Amaya Eulogio Guillen Juarez Barriga Juarez Pascual Arturo Bismark Mata Talavero Daniel Godinez Escamilla Marco Antonio Trujillo Trujillo Adam Wesley Green Casie Jo Greenwood Abdon Rodriguez Sanchez Alejandro Duran Pineda Vicente Moreno Saldana Carlos Rodriguez Almanza Rodolfo de la Cruz Ascencio Jason Brad Lisenbey

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YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT:

SUBMIT A CLAIM

The only way to get a payment.

Get no payment. This is the only option that allows you to EXCLUDE YOURSELF ever be part of any other lawsuit against the Defendants
about the legal claims in this case.

OBJECT

Write to the Court about why you don't like the settlement.

GO TO A HEARING Ask to speak in Court about the fairness of the settlement.

DO NOTHING

Get no payment. Give up rights.

• These rights and options—and the deadlines to exercise them—are explained in this notice.
• The Court in charge of this case still has to decide whether to approve the Settlement. Payments will only be made if the Court approves the Settlement and after any appeals are resolved. Please be patient.

QUESTIONS? CALL 001-800-591-3656 TOLL FREE FROM MEXICO OR 1-800-591-3656 TOLL FREE FROM THE UNITED STATES
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1. What is this Notice about?
This Notice is an official court notice to let you know about a proposed Settlement in this "class action" lawsuit and how you may claim a share of the Settlement. You are considered a class member in this case if you were employed as an H-2A worker at Candy Brand, LLC at any time during the 2003 through 2007 tomato seasons. You are also considered a class member in this case if you were employed at Candy Brand, LLC’s packing shed at any time during the 2003 through 2007 tomato seasons and worked more than 40 hours in a week, regardless of whether you worked on an H-2A visa. If you do not think the settlement is fair, you can object, and this Notice will tell you how to make such an objection. This notice also informs you of your rights if you do not want to be a member of the class.
2. What is this "class action" lawsuit?
A "class action” lawsuit is a lawsuit in which a few people, called the Class Representatives, sue on behalf of people who have similar claims. All these people are a Class or Class Members. One Court resolves the issues for all Class Members, except those who exclude themselves from the Class. Here, Rosalino Perez-Benites, Luis Alberto Ascencio Vazquez, and Pascual Noriega Narvaez were appointed by the Court to represent the Class. United States District Court Judge Robert T. Dawson is in charge of this class action.
3. What is the lawsuit about?
The individuals who filed the lawsuit claimed that Candy Brand, LLC and the other Defendants violated the federal Fair Labor Standards Act and breached your employment contracts. The lawsuit claims that Candy Brand failed to reimburse H2A workers during their first week of work for the costs of the H-2A visas and the travel from their homes to the United States. In addition, the lawsuit claims that Candy Brand did not pay H-2A workers properly for their return travel at the end of the season, and did not pay them “subsistence pay” for the days they spent traveling. The lawsuit also claims that Candy Brand did not pay overtime wages to packing shed workers who worked more than 40 hours per week. The Court has already determined that Candy Brand and the other Defendants violated the law
QUESTIONS? CALL 001-800-591-3656 TOLL FREE FROM MEXICO OR 1-800-591-3656 TOLL FREE FROM THE UNITED STATES −3−

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with respect to the above claims.
4. What is the status of the lawsuit?
After several years of court proceedings, the parties to this case filed motions for summary judgment in August 2010 with respect to a number of issues. The Court ruled in the Plaintiffs’ and Class Members’ favor with respect to these motions on May 20, 2011. Following the Court’s ruling in May, the parties engaged in settlement negotiations to avoid a trial and appeal in the case, and have agreed to a proposed Settlement. The Class Representatives and the attorneys think the Settlement is fair and is best for everyone who had claims in this lawsuit. Your rights could be affected by this Settlement so you should read this Notice carefully to decide whether you want to be part of the Class and you think the Settlement is fair.
5. How do I know if I am part of the proposed Settlement?
If you worked as an H-2A worker (and were not a crew supervisor) for Candy Brand at any time during the 2003 through 2007 tomato seasons, you are a member of the “Class.” If you worked in Candy Brand’s packing shed (and were not a supervisor) at any time during the 2003 through 2007 tomato seasons, you are also a member of the “Class”, regardless of whether you worked pursuant to an H-2A visa.
6. What if I am not sure if I am part of the proposed Settlement?
If you are not sure whether you are part of the proposed Settlement, you can call the attorneys for the Plaintiffs and the Class Members at 001-800-591-3656 if you are calling from Mexico. If you are calling from the United States, you can call 1-800591-3656. These are free telephone calls.
QUESTIONS? CALL 001-800-591-3656 TOLL FREE FROM MEXICO OR 1-800-591-3656 TOLL FREE FROM THE UNITED STATES −4−

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7. What are the terms of the proposed Settlement?
The proposed Settlement agreement between the workers who brought the lawsuit and Candy Brand and the other Defendants sets forth in detail the terms and conditions of the Settlement. This and the following paragraphs contain a brief summary of the proposed Settlement. In total, Candy Brand and the Defendants are paying the workers $1,215,500.00 as part of the proposed Settlement. If the Court approves the Settlement that has been proposed, each eligible Class Member who files a valid and timely claim will receive a minimum of approximately 58% of their damages as calculated by class counsel. The amount of your payment will depend on the number of people who file claims, so the actual amount you receive will most likely be higher than the minimum amount shown on your claim form.
The damages figure as calculated by class counsel that appears on your claim form is based on the Court’s May 20, 2011, ruling that held that the Defendants were required to reimburse certain expenses to H-2A workers for the costs of their visas and traveling from their homes to the United States, and for unpaid overtime wages for all class members (regardless of visa status) who worked in the Defendants’ packing sheds. The Court ruled that passport fees, visa fees, processing fees paid to Defendants’ agents to assist with filling out paperwork, border crossing fees, and transportation from your home to Arkansas should have been reimbursed. The Court also ruled that the Defendants were required to pay a daily subsistence amount (approximately $9 per day) for both your trip to the United States and your trip home, as well as the cost of transportation at the end of the season for you to return home. Thus, the damages figure on your form is based on these expenses and any overtime wages you earned while working in the packing shed.
It is important to understand that the damages figure and the minimum payment figure on your Claim Form represents gross amounts, without withholding or other taxes taken out. It is important that you understand that certain taxes will need to be withheld from part of your payment, and that it is important to provide a valid social security number if you wish to avoid “back-up withholding” at a higher rate than normal federal tax withholding.
Finally, each Class Member who previously filed a valid “consent to sue” form with the Court will receive an additional payment of liquidated damages based on the
QUESTIONS? CALL 001-800-591-3656 TOLL FREE FROM MEXICO OR 1-800-591-3656 TOLL FREE FROM THE UNITED STATES
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Court’s ruling that the Defendants violated the Fair Labor Standards Act. If you are eligible for such a payment the amount will appear on your claim form.
8. Who else gets money from the Settlement?
The three Class Representatives will each receive an additional $5,000.00 under the Settlement agreement in consideration for their commitment in bringing this lawsuit on behalf of the class, for a total of $15,000.00. Fifteen additional individuals who provided testimony and other important participation in the lawsuit will receive payments between $1,000.00 and $3,000.00 each, for a total of $33,000.00. The lawyers who represented the Plaintiffs and the class members are eligible to apply to the Court for an award of $300,000.00, which is approximately $100,000.00 to cover the expenses they had in bringing this case, plus approximately $200,000.00 in attorneys’ fees for time spent working on this case. The money for costs and attorneys’ fees will be paid separately from the $1,215,500.00 that is being paid to the class members.
9. What are my rights as a member of the “Class”?
As a member of the Class, you have the right to receive money from the Settlement. As a member of the Class, you are also giving up your rights to bring a separate claim against Candy Brand and the other Defendants for violation of the Fair Labor Standards Act or breach of contract for any work you may have performed during the 2003 through 2007 tomato seasons.
10. How do I make a claim as a class member?
TO CLAIM YOUR MONEY YOU MUST FILE A CLAIM.
A Claim Form is included with this Notice. The Claim Form already has your name on it, and the seasons that Candy Brand’s records show that you worked for them. The Claim Form also has the total damages that have been calculated by the attorneys for the class related to your employment at Candy Brand (based on the Court’s summary judgment ruling on May 20, 2011) and the minimum payment
QUESTIONS? CALL 001-800-591-3656 TOLL FREE FROM MEXICO OR 1-800-591-3656 TOLL FREE FROM THE UNITED STATES
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you will receive of those total damages if everyone in the Class files a Claim Form. It is quite likely that you will receive more than the minimum payment, although the total amount you will receive cannot be determined until the Claim Period closes ([Enter date that is nine months from date of mailing]).
If you want to file a claim to receive your money, you should fill out the Claim Form and return it by mail to the attorneys for the class at the Southern Poverty Law Center (Immigrant Justice Project). You can also fax the form to 404-2215857 or email it to reclamo@splcenter.org. Your Claim Form must be received before [Enter date nine months from date of mailing] for you to be eligible to receive payment. Payments will be processed as soon as possible after the Claim Period expires ([Enter date nine months from date of mailing)]. Please be patient.
IF YOU DO NOT FILE A CLAIM BEFORE [Enter date nine months from date of mailing], YOU WILL NOT BE ELIGIBLE TO RECEIVE PAYMENT PURSUANT TO THIS SETTLEMENT. If you do not make a Claim and you do not exclude yourself from the case as described in paragraph 14, you are giving up your rights to receive money. You are also giving up your rights to ever bring a lawsuit against Candy Brand and the other Defendants for the claims and time periods alleged in this lawsuit. 11. 11. What if I disagree with the amount of damages calculated for me?
If you disagree with the amount of damages calculated by class counsel on your Claim Form, you must still send in your Claim Form in order to receive any payment. But, you should also send the attorneys at the Southern Poverty Law Center (Immigrant Justice Project) any additional information you have that shows when you worked for Candy Brand, such as a copy of your visa(s), paycheck stubs, or other receipts. You may also call the Southern Poverty Law Center (Immigrant Justice Project) at 001-800-591-3656 from Mexico, or 1-800-591-3656 from the United States to receive further information.
QUESTIONS? CALL 001-800-591-3656 TOLL FREE FROM MEXICO OR 1-800-591-3656 TOLL FREE FROM THE UNITED STATES
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12. When and how will I receive my payment?
You will be contacted by telephone as to how and where you can claim your payment. In most cases, you will go to a Western Union location and present your identification and a code given to you by the attorneys for the Class in order to claim your payment. For this reason, IT IS VERY IMPORTANT THAT THE ATTORNEYS HAVE YOUR CURRENT CONTACT INFORMATION. FAILURE TO PICK UP YOUR MONEY WITHIN 120 DAYS AFTER THE ATTORNEYS OR THEIR AGENTS ATTEMPT TO CONTACT YOU MAY MEAN THAT YOU WILL LOSE YOUR RIGHT TO THE MONEY.
13. Will my participation in this Settlement affect my ability to work in the United States in the future?
No. Candy Brand and the other Defendants are prohibited from taking any actions against anyone because of their participation in this case or their participation in this Settlement. Your filing a Claim to receive your part of the Settlement money will have no effect on your ability to obtain a visa to work in the United States in the future.
14. How do I opt-out of this “class action”?
If you do NOT want to participate in the class action, you have the right to be excluded from the Class and not receive any money from the Settlement. If you choose to be excluded from the class, you will NEVER be able to make any claim for this Settlement money; however, you may have the right to bring your own lawsuit against Candy Brand and the other Defendants within the time period allowed under the law for the claims alleged in the lawsuit. You must opt-out before [date of fairness hearing]. If you fail to opt-out by [date of fairness hearing], you are giving up your right to be excluded from the class, which means that you can not bring a separate lawsuit against Candy Brand and the other Defendants for the same claims alleged in the current lawsuit with respect to the 2003 through 2007 tomato seasons. If you do not opt-out you will be bound by the Settlement agreement and are eligible to file a claim for the settlement money. To be excluded from the class action you must send a letter to the Court stating
QUESTIONS? CALL 001-800-591-3656 TOLL FREE FROM MEXICO OR 1-800-591-3656 TOLL FREE FROM THE UNITED STATES
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Case 1:07-cv-01048-RTD Document 273-1 Filed 12/23/11 Page 49 of 52 PageID #: 5199
specifically that you want to opt-out of this case. You should send this letter to:
Clerk of the Court Judge Isaac C. Parker Federal Building P. O. Box 1547 Fort Smith, Arkansas 72902-1547 U.S.A.
You should include in your letter the name of the case (Perez-Benites, et al. v. Candy Brand, LLC, et al.) and the case number (1:07-CV-1048). If you choose to “opt-out” of the class action, you should consult a lawyer as to your rights.
15. What if I think the Settlement is unfair?
There will be an in-person hearing before federal district judge Robert T. Dawson at _____ [A.M./P.M.] on [Date of fairness hearing], at the United States Courthouse, [Fort Smith? El Dorado?] to decide whether the settlement is fair, reasonable, and adequate. If you want to object to the settlement you must file your objection with the Clerk of the Court before [Date of fairness hearing]. If you do want to object, write the Clerk of the Court at the Judge Isaac C. Parker Federal Building, P. O. Box 1547, Fort Smith, Arkansas 72902-1547 (U.S.A.). You should include in your letter the name of the case (Perez-Benites, et al. v. Candy Brand, LLC, et al.) and the case number (1:07-CV-1048). This hearing will be your only opportunity to object to the terms of the Settlement.
You do not have to be present at the hearing to receive your share of the settlement money. If you file a claim to get your share of the Settlement, you will receive your class share, provided the Settlement is approved by the Judge.
16. What happens if I do nothing at all?
If you do nothing, you will get no money from this Settlement. But, unless you exclude yourself, you won’t be able to start a lawsuit, continue with a lawsuit, or be part of any other lawsuit against Candy Brand and the other Defendants about the
QUESTIONS? CALL 001-800-591-3656 TOLL FREE FROM MEXICO OR 1-800-591-3656 TOLL FREE FROM THE UNITED STATES
−9−

Case 1:07-cv-01048-RTD Document 273-1 Filed 12/23/11 Page 50 of 52 PageID #: 5200
issues and time period covered by this case ever again. 17. What if I want further information? If you have questions about the settlement, need help understanding this Notice, or want a complete copy of the Settlement Agreement you can contact the lawyers for the workers who brought the lawsuit by writing or calling:
Southern Poverty Law Center 233 Peachtree Street NE, Suite 2150 Atlanta, GA 30303 Telephone from United States: 1-800-591-3656 Telephone from Mexico: 001-800-591-3656 DO NOT CALL THE COURT OR THE CLERK OF THE COURT.
QUESTIONS? CALL 001-800-591-3656 TOLL FREE FROM MEXICO OR 1-800-591-3656 TOLL FREE FROM THE UNITED STATES −10−

Case 1:07-cv-01048-RTD Document 273-1 Filed 12/23/11 Page 51 of 52 PageID #: 5201
CANDY BRAND SETTLEMENT CLAIM FORM

Your Name:

SETTLEMENT PAYMENT INFORMATION [populated from spreadsheet]

Years employed based on Candy Brand records: Total damages based on Class Counsel’s calculations: Minimum amount you will receive from Class Payment: Did you file a “consent to sue” form: Liquidated Damages based on filing “consent to sue”: Individual Payment (if any): Total minimum payment you will receive (before taxes):

[populated from spreadsheet] [populated from spreadsheet] [populated from spreadsheet] [populated from spreadsheet] [populated from spreadsheet] [populated from spreadsheet] [populated from spreadsheet]

If you do not agree with the “total damages based on Class Counsel’s calculations” identified above, you MUST provide the attorneys for the Class additional documents (visas, paycheck stubs, receipts) to show additional damages you may be owed.

INFORMATION ON HOW TO CONTACT YOU

Your Name:

______________________________________________________________

Date of Birth:

_____________________________________________________________

Social Security Number (if you have been issued one): ___________________________________

Address:

______________________________________________________________

______________________________________________________________

Primary telephone number:

___________________________________________________

Alternative telephone number(s): ___________________________________________________

Do you have an email address? If so, what is it: _______________________________________

Relative to be contacted if you are not in Mexico: _____________________________________

Relative’s telephone number: ___________________________________________________

REMEMBER, we will be calling you by telephone to provide you information on how to collect your money. Please contact us if you change your telephone number(s). You may call our office at 001-800-591-3656 from Mexico, or 1-800-591-3656 from the United States.

I hereby state that I wish to receive my share of the settlement proceeds in the case of PerezBenites, et al. v. Candy Brand, LLC, et al.

_________________ Date

_________________________ Signature

OVER

Case 1:07-cv-01048-RTD Document 273-1 Filed 12/23/11 Page 52 of 52 PageID #: 5202
WHERE DO I SEND MY FORM?
You should mail your completed form to the following address:
Candy Brand Settlement Southern Poverty Law Center 233 Peachtree Street NE, Suite 2150 Atlanta, GA 30303
OR
You can fax your completed form to the Southern Poverty Law Center (Immigrant Justice Project) at:
404-221-5857
OR
You can e-mail your completed form to the Southern Poverty Law Center at:
reclamo@splcenter.org
WHAT ARE THE DEADLINES FOR SENDING IN MY FORM?
REMEMBER, your form must be received by the Southern Poverty Law Center (Immigrant Justice Project) before [9 months from date of mailing].
If you do not exclude yourself from this case, then you must file a Claim in order to receive your payment. If you do not file a Claim by [9 months from date of mailing] you will have given up your right to receive any money from this Settlement.
HOW CAN I GET MORE INFORMATION?
You can get more information by calling the attorneys at the Southern Poverty Law Center (Immigrant Justice Project):
001-800-591-3656 if calling from Mexico 1-800-591-3656 if calling from the United States.
These are free telephone calls.

 
 Case 1:07-cv-01048-RTD Document 276 Filed 12/29/11 Page 1 of 4 PageID #: 5222

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS EL DORADO DIVISION

ROSALINO PEREZ-BENITES, et al.,

PLAINTIFFS

v.

CASE NO. 07-1048

CANDY BRAND, LLC, ARKANSAS TOMATO SHIPPERS, LLC, RANDY CLANTON, BROOKS LISENBEY, and CHARLES SEARCY

DEFENDANTS

ORDER
Currently before the Court is the Parties’ Joint Motion for
Preliminary Approval of Proposed Class Action Settlement Agreement
and Notice to Class Members (Doc. 273). IT IS HEREBY ORDERED that:
1. The proposed Settlement is within the range of fairness
and reasonableness and grants preliminary approval to it;
2. For purposes of the claims brought for breach of
contract, which were previously certified by this Court
for class action treatment pursuant to Federal Rule of
Civil Procedure 23 (Doc. 174), the Settlement Agreement
covers the following classes of individuals:
(a) all non-supervisory workers employed by Defendants at any time during the 2003 through 2007 tomato seasons who were employed pursuant to H-2A temporary work visas; and
(b) all non-supervisory workers employed in Defendants’ packing shed operations at any time during the 2003 through 2007 tomato seasons — irrespective of visa status — who did not receive overtime pay during workweeks when they worked more than forty (40) hours.

Case 1:07-cv-01048-RTD Document 276 Filed 12/29/11 Page 2 of 4 PageID #: 5223
3. A hearing on the fairness and reasonableness of the Settlement and whether final approval shall be granted will take place on Tuesday, March 27, 2012, at 9:00 a.m. in El Dorado, Arkansas.
4. The Court approves as to form and content the proposed Notice and Claim Form attached as Exhibit C to the parties’ Settlement (Doc. 273-1, pp. 41-52) and directs Class Counsel to mail the Notice and Claim Form to each class member within ten (10) days of the entry of this Order. An English and Spanish version of the Notice and Claim Form shall be mailed to each class member whose last known address is in the United States, and a Spanish version of the Notice and Claim Form shall be mailed to each class member whose last known address is in Mexico. Class Counsel shall file a Notice with the Court upon completion of the mailing.
5. The Court finds that mailing of Notice to the class members and provision of Notice to class members is the only notice required for class members and that such notice satisfies the requirements of due process and Federal Rule of Civil Procedure 23(e)(1).
6. Within ten (10) days of the entry of this Order, Defendants are directed to file any notices with governmental agencies as required by the Class Action
2

Case 1:07-cv-01048-RTD Document 276 Filed 12/29/11 Page 3 of 4 PageID #: 5224
Fairness Act, and to provide Notice to the Court upon completion. 7. Any class member who desires to exclude himself from the action must file a request for exclusion with the Clerk of the Court by Tuesday, March 27, 2012. 8. Any class member who wishes to object to the Settlement must submit an objection to the Clerk of the Court by Tuesday, March 27, 2012. It is not necessary for any class member objecting to the Settlement to appear in person at the fairness hearing. 9. The parties may file memoranda in support of the Settlement prior to the fairness hearing. Any submission must be filed no later than Friday, March 16, 2012. 10. Settlement Services, Inc., of Tallahassee, Florida, is appointed to act as the Settlement Administrator, pursuant to the terms of the Settlement. 11. The Court reserves the right to adjourn the date of the fairness hearing without further notice to the class members. The Court retains jurisdiction to consider further applications arising out of or in connection with the Settlement. Accordingly, the Parties’ Joint Motion for Preliminary Approval of Proposed Class Action Settlement Agreement and Notice to Class Members (Doc. 273) is GRANTED. The Scheduling Order of
3

Case 1:07-cv-01048-RTD Document 276 Filed 12/29/11 Page 4 of 4 PageID #: 5225 May 24, 2011 (Doc. 253) is therefore terminated and trial of this matter will not take place. A hearing on the fairness and reasonableness of the Proposed Class Action Settlement will occur on Tuesday, March 27, 2012, at 9:00 a.m.
IT IS SO ORDERED this 29th day of December, 2011 /s/ Robert T. Dawson Honorable Robert T. Dawson United States District Judge
4

 
 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS EL DORADO DIVISION
ROSALINO PEREZ-BENITES, LUIS ALBERTO ASCENCIO VAZQUEZ, and PASCUAL NORIEGA NARVAEZ, on behalf of themselves and all other similarly situated,

PLAINTIFFS

v.

CASE NO. 07-1048

CANDY BRAND, LLC, ARKANSAS TOMATO SHIPPERS, LLC, RANDY CLANTON, BROOKS LISENBEY, and CHARLES SEARCY

DEFENDANTS

ORDER OF FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND ENTRY OF FINAL JUDGMENT

This matter is before the Court on the Plaintiffs’ Motion

for Final Approval of Class Action Settlement and Entry of Final

Judgment. IT IS HEREBY ORDERED:

1. The Court previously granted preliminary approval to

the class action settlement in this case on December 29, 2011.

(Doc. 276). The Court held a final fairness hearing with

respect to the class action settlement on March 27, 2012.

2. For purposes of the claims brought for breach of

contract, which were previously certified by this Court for

class action treatment pursuant to Federal Rule of Civil

Procedure 23 (Docs. 173 & 174), the settlement covers the

following classes of individuals: Page 1 of 4

All nonsupervisory workers employed by Defendants at any time during the 2003 through 2007 tomato seasons who were employed pursuant to H-2A temporary work visas; and All nonsupervisory workers employed in the Defendants’ packing shed operations at any time during the 2003 through 2007 tomato seasons—irrespective of visa status—who did not receive overtime pay during workweeks when they worked more than forty (40) hours. 3. All of the class members identified above were provided notice by mail of the pendency of this class action and an opportunity to exclude themselves, and were again provided notice by mail of the class action settlement and an opportunity to exclude themselves and/or file objections to the settlement. The Court finds that the notice given to the class satisfied the requirements of due process and Rule 23(e) of the Federal Rules of Civil Procedure. 4. There were twenty-six (26) individuals who filed exclusion forms with the Court prior to the settlement. As such, the following twenty-six (26) individuals, and only these twenty-six (26) individuals, are excluded from the class covered by the settlement and this final judgment Order: J. Rosario Perez Angeles, Luis Gomez Gomez, Nestor Reynoso Reyes, Herlindo Reynoso Reyes, Laurentino Mejia Rebolledo, Filiberto Diaz Cano, Yolanda Saucedo Fuentes, Elvis Fabricio Arjon, Arturo Andres Luna, Reyes Isidro Zavala, Ramon Santos Pascual, Felix Hernandez
Page 2 of 4

Naranjo, Francisco Gambino Amaya, Eulogio Guillen Juarez, Barriga Juarez Pascual, Arturo Bismark Mata Talavero, Daniel Godinez Escamilla, Marco Antonio Trujillo Trujillo, Adam Wesley Green, Casie Jo Greenwood, Abdon Rodriguez Sanchez, Alejandro Duran Pineda, Vicente Moreno Saldana, Carlos Rodriguez Almanza, Rodolfo de la Cruz Ascencio, and Jason Brad Lisenbey.
5. No class members requested exclusion from the settlement by the March 27, 2012, deadline, and no request for exclusion have been received since the date of the final fairness hearing.
6. Notice was given that on January 6, 2012, the Defendants completed the mailing of the notices and documents required by the Class Action Fairness Act to the appropriate Federal officials and the appropriate State officials; entry of this order of final approval is not issued earlier than 90 days after the mailings.
7. The Court approves the settlement and its terms as fair, reasonable, and adequate, and approves the amounts to be paid to the Plaintiffs and the class members, as well as the costs and attorneys’ fees to be paid to Class Counsel pursuant to the settlement.
8. Settlement Services, Inc., of Tallahassee, Florida, is appointed to act as the Settlement Administrator, pursuant to
Page 3 of 4

the terms of the settlement, and will work under the direction of Class Counsel.
9. By means of this Order, this Court hereby enters final judgment in this action, as defined by Federal Rule of Civil Procedure 58(a)(1).
10. Without affecting the finality of this final judgment in any way, the Court retains jurisdiction of all matters relating to the interpretation, administration, implementation, effectuation, and enforcement of this Order and the settlement.
11. The parties are hereby ordered to implement and comply with the terms of the settlement.
12. This action is dismissed with prejudice, subject to the terms of the settlement agreement.
IT IS SO ORDERED this 9th day of April, 2012. /s/ Robert T. Dawson Honorable Robert T. Dawson United States District Judge
Page 4 of 4

 
 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS EL DORADO DIVISION

ROSALINO PEREZ-BENITES, et al.,

PLAINTIFFS

v.

CASE NO. 07-1048

CANDY BRAND, LLC, ARKANSAS TOMATO SHIPPERS, LLC,

RANDY CLANTON, BROOKS LISENBEY,

and CHARLES SEARCY

DEFENDANTS

JUDGMENT For the reasons set forth in Plaintiffs’ Motion for Entry of Judgment for Breach of Settlement Agreement and supporting brief (docs. 284-85) and the Report and Recommendation (doc. 287), it is HEREBY ORDERED AND ADJUDGED that Plaintiffs should have and recover of and from Separate Defendants Candy Brand, LLC; and Arkansas Tomato Shippers, LLC, judgment in the amount of $790,625.00 plus 5% interest from January 1, 2012, until the date of payment of the judgment in addition to costs and attorneys’ fees to be calculated at the time the judgment is collected. IT IS SO ORDERED this 4th day of September, 2013.

/s/ Robert T. Dawson Honorable Robert T. Dawson United States District Judge

AO72A (Rev. 8/82)

 
 Case 1:07-cv-01048-RTD document <docnum> filed <datefiled> page 1 of 26

U. S. District Court Western District of Arkansas (El Dorado) CIVIL DOCKET FOR CASE #: 1:07−cv−01048−RTD

CLOSED

Perez−Benites et al v. Candy Brand, LLC et al Assigned to: Honorable Robert T. Dawson Cause: 29:201 Fair Labor Standards Act
Plaintiff Rosalino Perez−Benites Individually and on behalf of all others similarly situated

Date Filed: 06/07/2007 Date Terminated: 04/09/2012 Jury Demand: Defendant Nature of Suit: 710 Labor: Fair Standards Jurisdiction: Federal Question
represented by Arlen S. Benjamin−Gomez Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104 (334) 956−8200 Fax: (334) 956−8481 Email: abenjamingomez@splcenter.org TERMINATED: 10/09/2007 LEAD ATTORNEY
Daniel Werner Southern Poverty Law Center Immigrant Justice Project 400 Washington Ave. Montgomery, AL 36104 (334) 956−8200 Fax: (334) 956−8481 Email: daniel.werner@splcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
James M. Knoepp Southern Poverty Law Center 233 Peachtree Street NE Suite 2150 Atlanta, GA 30303 404−221−5836 Email: jim.knoepp@splcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer J. Rosenbaum Southern Poverty Law Center 400 Washington Ave. Montgomery, AL 36104 (334) 956−8298 Fax: (334) 956−8481 Email: jennifer.rosenbaum@splcenter.org TERMINATED: 07/01/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Martin W. Bowen Bowen Law Firm, PLLC P.O. Box 7273 Little Rock, AR 72217 501−614−3800 Fax: 501−614−3804 Email: bowen@bowenlaw.us TERMINATED: 03/12/2009 LEAD ATTORNEY

Case 1:07-cv-01048-RTD document <docnum> filed <datefiled> page 2 of 26

Michelle R. Lapointe Attorney at Law 233 Peachtree St. NE Suite 2150 Atlanta, GA 30303 404−521−6700 Email: michelle.lapointe@splcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Edward J. Tuddenham Attorney at Law 228 W. 137th St. New York, NY 10030 (512) 413−4863 Fax: (512) 532−7780 Email: etudden@prismnet.com ATTORNEY TO BE NOTICED

John Lindsay Burnett Lavey and Burnett P.O. Box 2657 Little Rock, AR 72203 501 376 2269 Fax: 501 372 1134 Email: jburnett@laveyandburnett.com ATTORNEY TO BE NOTICED

Plaintiff
Luis Alberto Asencio−Vasquez Individually and on behalf of all others similarly situated

represented by Arlen S. Benjamin−Gomez (See above for address) TERMINATED: 10/09/2007 LEAD ATTORNEY

Daniel Werner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James M. Knoepp (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer J. Rosenbaum (See above for address) TERMINATED: 07/01/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Martin W. Bowen (See above for address) TERMINATED: 03/12/2009 LEAD ATTORNEY

Michelle R. Lapointe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Edward J. Tuddenham (See above for address) ATTORNEY TO BE NOTICED

Case 1:07-cv-01048-RTD document <docnum> filed <datefiled> page 3 of 26

John Lindsay Burnett (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Pascual Noriega−Narvaez Individually and on behalf of all others similarly situated

represented by Arlen S. Benjamin−Gomez (See above for address) TERMINATED: 10/09/2007 LEAD ATTORNEY

Daniel Werner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James M. Knoepp (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer J. Rosenbaum (See above for address) TERMINATED: 07/01/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Martin W. Bowen (See above for address) TERMINATED: 03/12/2009 LEAD ATTORNEY

Michelle R. Lapointe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Edward J. Tuddenham (See above for address) ATTORNEY TO BE NOTICED

John Lindsay Burnett (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Candy Brand, LLC

represented by Floyd Mattison Thomas, III F. Mattison Thomas, III Attorney at Law 103 East Main, Suite D El Dorado, AR 71730 (870) 881−8468 Email: matt@southarklegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
H. Wayne Young , Jr. Friday Eldredge &Clark 400 W. Capitol, Ste 2000 Little Rock, AR 72201 (501) 370−1402 Fax: (501) 244−5305

Case 1:07-cv-01048-RTD document <docnum> filed <datefiled> page 4 of 26

Email: wyoung@fridayfirm.com TERMINATED: 09/02/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael S. Moore Friday, Eldredge &Clark 2000 Regions Center 400 West Capitol Avenue Little Rock, AR 72201−3493 (501) 376−2011 Fax: (501) 244−5348 Email: mmoore@fridayfirm.com TERMINATED: 09/02/2008 LEAD ATTORNEY

Hani W. Hashem Hashem Law Firm PLC P. O. Box 739 Monticello, AR 71657 870−367−4223 Fax: 870−367−4299 Email: hwh@hashemlawfirm.com ATTORNEY TO BE NOTICED

Defendant Arkansas Tomato Shippers, LLC

represented by Floyd Mattison Thomas, III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

H. Wayne Young , Jr. (See above for address) TERMINATED: 09/02/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael S. Moore (See above for address) TERMINATED: 09/02/2008 LEAD ATTORNEY

Hani W. Hashem (See above for address) ATTORNEY TO BE NOTICED

Defendant Charles Searcy

represented by Floyd Mattison Thomas, III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

H. Wayne Young , Jr. (See above for address) TERMINATED: 09/02/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael S. Moore (See above for address) TERMINATED: 09/02/2008 LEAD ATTORNEY

Hani W. Hashem

Case 1:07-cv-01048-RTD document <docnum> filed <datefiled> page 5 of 26

(See above for address) ATTORNEY TO BE NOTICED

Defendant Randy Clanton

represented by Floyd Mattison Thomas, III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

H. Wayne Young , Jr. (See above for address) TERMINATED: 09/02/2008 LEAD ATTORNEY

James F. Dowden Attorney at Law 212 Center St., 10th Floor Little Rock, AR 72201 (501) 324−4700 Fax: (501) 374−5463 Email: JFDowden@swbell.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jerry Paul Davidson Davidson Law Firm P.O. Box 1300 Little Rock, AR 72203 (501) 374−9977 Fax: (501) 374−5917 Email: pauld@dlf−ar.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael S. Moore (See above for address) TERMINATED: 09/02/2008 LEAD ATTORNEY

Hani W. Hashem (See above for address) TERMINATED: 02/09/2010

Defendant
Dale McGinnis TERMINATED: 03/31/2010

represented by Floyd Mattison Thomas, III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

H. Wayne Young , Jr. (See above for address) TERMINATED: 09/02/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael S. Moore (See above for address) TERMINATED: 09/02/2008 LEAD ATTORNEY

Hani W. Hashem (See above for address) TERMINATED: 10/02/2009

Case 1:07-cv-01048-RTD document <docnum> filed <datefiled> page 6 of 26

Defendant Brooks Linesby

represented by Charles D. Skip Davidson , Sr Davidson Law Firm, Ltd. P.O. Box 1300 Little Rock, AR 72203−1300 (501) 374−9977 Fax: 501−374−5917 Email: skipd@dlf−ar.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Floyd Mattison Thomas, III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
H. Wayne Young , Jr. (See above for address) TERMINATED: 09/02/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jerry Paul Davidson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael S. Moore (See above for address) TERMINATED: 09/02/2008 LEAD ATTORNEY
Andrew L Clark , Sr. Clark Byarlay Sparks 620 West Third Street Suite 100 Little Rock, AR 72201 501−376−0550 Fax: 501−421−8365 Email: lawyerclark@msn.com ATTORNEY TO BE NOTICED
Hani W. Hashem (See above for address) ATTORNEY TO BE NOTICED

Date Filed 06/07/2007
06/07/2007 06/07/2007 06/07/2007

# Docket Text
1 COMPLAINT WITH CLASS ACTION ALLEGATIONS against Candy Brand, LLC, Arkansas Tomato Shippers, LLC, Randy Clanton, Dale McGinnis, Brooks Linesby,( Filing fee $ 350 receipt number 1000023.), filed by Rosalino Perez−Benites, Luis Alberto Asencio−Vasquez, Pascual Noriega−Narvaez. (Attachments: # 1 Exhibit Consents)(cnn) (Entered: 06/07/2007)
2 NOTICE by plaintiffs of filing consents (Attachments: # 1 Exhibit Additional Consents)(cnn) (Entered: 06/07/2007)
3 MOTION to Appear Pro Hac Vice by Arlen S. Benjamin−Gomez for plaintiffs. (Attachments: # 1 Exhibit Certificate)(cnn) (Entered: 06/07/2007)
4 NOTICE by all plaintiffs (Attachments: # 1 Exhibit A)(Bowen, Martin) (Entered: 06/07/2007)

Case 1:07-cv-01048-RTD document <docnum> filed <datefiled> page 7 of 26

06/07/2007 06/07/2007 06/07/2007 06/08/2007
06/08/2007
06/08/2007
07/05/2007 07/05/2007
07/05/2007 07/05/2007 07/05/2007 07/05/2007 07/13/2007 07/13/2007 07/13/2007 07/16/2007

5 MOTION to Appear Pro Hac Vice by Jennifer J. Rosenbaum for plaintiffs. (Attachments: # 1 Exhibit Certificate)(cnn) (Entered: 06/07/2007)
6 MOTION to Appear Pro Hac Vice by Edward Tuddenham for plaintiffs. (Attachments: # 1 Exhibit Certificate)(cnn) (Entered: 06/07/2007)
Six (6)Summons Issued as to Charles Searcy, Randy Clanton, Dale McGinnis, Brooks Linesby, Candy Brand, LLC, Arkansas Tomato Shippers, LLC and returned to attorney/plaintiff for service (cnn) (Entered: 06/07/2007)
7 ORDER granting 3 Motion to Appear Pro Hac Vice. Arlen S. Benjamin−Gomez is directed to immediately register as a CM/ECF user if he/she has not already done so and enter his/her appearance in this matter. Signed by Judge Harry F. Barnes on June 8, 2007. (cnn) (Entered: 06/08/2007)
8 ORDER granting 5 Motion to Appear Pro Hac Vice. Jennifer J. Rosenbaum is directed to immediately register as a CM/ECF user if he/she has not already done so and enter his/her appearance in this matter. Signed by Judge Harry F. Barnes on June 8, 2007. (cnn) (Entered: 06/08/2007)
9 ORDER granting 6 Motion to Appear Pro Hac Vice. Edward Tuddenham is directed to immediately register as a CM/ECF user if he/she has not already done so and enter his/her appearance in this matter. Signed by Judge Harry F. Barnes on June 8, 2007. (cnn) (Entered: 06/08/2007)
10 AFFIDAVIT of Service for complaint and summons, filed by all plaintiffs. Charles Searcy served on 6/26/2007, answer due 7/16/2007. (Attachments: # 1 Exhibit A, Return of Service)(Rosenbaum, Jennifer) (Entered: 07/05/2007)
11 AFFIDAVIT of Service for Complaint and Summons, filed by all plaintiffs. Arkansas Tomato Shippers, LLC served on 6/26/2007, answer due 7/16/2007. (Attachments: # 1 Exhibit A, Return of Service)(Rosenbaum, Jennifer) (Entered: 07/05/2007)
12 AFFIDAVIT of Service for Complaint and Summons, filed by all plaintiffs. Candy Brand, LLC served on 6/26/2007, answer due 7/16/2007. (Attachments: # 1 Exhibit A, Candy Brand)(Rosenbaum, Jennifer) (Entered: 07/05/2007)
13 AFFIDAVIT of Service for Complaint and Summons, filed by all plaintiffs. Dale McGinnis served on 6/25/2007, answer due 7/16/2007. (Attachments: # 1 Exhibit A, Return of Service)(Rosenbaum, Jennifer) (Entered: 07/05/2007)
14 AFFIDAVIT of Service for Complaint and Summons, filed by all plaintiffs. Brooks Linesby served on 6/25/2007, answer due 7/16/2007. (Attachments: # 1 Exhibit A, Return of Service)(Rosenbaum, Jennifer) (Entered: 07/05/2007)
15 AFFIDAVIT of Service for Complaint and Summons, filed by all plaintiffs. Randy Clanton served on 6/25/2007, answer due 7/16/2007. (Attachments: # 1 Exhibit A, Return of Service)(Rosenbaum, Jennifer) (Entered: 07/05/2007)
16 ANSWER to Complaint with Jury Demand by Candy Brand, LLC.(Moore, Michael) (Entered: 07/13/2007)
17 MOTION for More Definite Statement by Charles Searcy, Randy Clanton, Dale McGinnis, Brooks Linesby, Arkansas Tomato Shippers, LLC. (Moore, Michael) (Entered: 07/13/2007)
18 MEMORANDUM BRIEF in Support of Motion for More Definite Statement by Charles Searcy, Randy Clanton, Dale McGinnis, Brooks Linesby, Arkansas Tomato Shippers, LLC. (Moore, Michael) (Entered: 07/13/2007)
CLERK'S NOTICE re Multiple Attorneys Listed on Pleadings 16 , 17 , 18 directed to defendants lists multiple attorneys appearing for the filer. All listed attorneys re: specificically Hani Hashem and H. Wayne Young, other than the attorney signing the pleading, must enter a separate Notice of Appearance in order to receive electronic notification of future activity in the case. TEXT ONLY ENTRY, NO DOCUMENT ATTACHED (cnn) (Entered: 07/16/2007)

Case 1:07-cv-01048-RTD document <docnum> filed <datefiled> page 8 of 26

07/16/2007 07/17/2007 07/19/2007 07/19/2007 07/20/2007 07/23/2007 07/31/2007 09/13/2007 09/18/2007
09/19/2007 09/27/2007
10/09/2007 10/09/2007 10/10/2007 11/21/2007 11/30/2007
12/03/2007 12/03/2007 12/03/2007

19 NOTICE of Appearance by H. Wayne Young, Jr on behalf of all defendants (Young, H.) (Entered: 07/16/2007)
20 NOTICE of Appearance by Hani W. Hashem on behalf of all defendants (Hashem, Hani) (Entered: 07/17/2007)
21 NOTICE of Appearance by Jennifer J. Rosenbaum on behalf of all plaintiffs (Rosenbaum, Jennifer) (Entered: 07/19/2007)
22 NOTICE of Appearance by Arlen S. Benjamin−Gomez on behalf of all plaintiffs (Benjamin−Gomez, Arlen) (Entered: 07/19/2007)
23 NOTICE of Appearance by Edward J. Tuddenham on behalf of all plaintiffs (Tuddenham, Edward) (Entered: 07/20/2007)
24 MEMORANDUM BRIEF in Opposition to 17 MOTION for More Definite Statement by Rosalino Perez−Benites. (Attachments: # 1 Exhibit 1, unpublished cases)(Rosenbaum, Jennifer) (Entered: 07/23/2007)
25 REPLY to Response to Motion re 17 MOTION for More Definite Statement filed by Randy Clanton, Dale McGinnis, Brooks Linesby, Candy Brand, LLC, Arkansas Tomato Shippers, LLC. (Young, H.) (Entered: 07/31/2007)
26 NOTICE by all plaintiffs Filing Consents to Join FLSA Collective Action (Attachments: # 1 Exhibit FLSA consent forms)(Rosenbaum, Jennifer) (Entered: 09/13/2007)
27 INITIAL SCHEDULING ORDER: Rule 26(f) Conference to be held by 11/2/2007. Rule 26(f) Meeting Report due by 11/27/2007. Jury Trial set for the week of 7/14/2008 in El Dorado −− 2nd flr before Judge Harry F. Barnes. Signed by Judge Harry F. Barnes on September 18, 2007. (rwg) (Entered: 09/18/2007)
28 MOTION to Withdraw as Attorney Arlen Benjamin Gomez by Rosalino Perez−Benites, Luis Alberto Asencio−Vasquez, Pascual Noriega−Narvaez. (Rosenbaum, Jennifer) (Entered: 09/19/2007)
TEXT ONLY ORDER re 27 Initial Scheduling Order − all deadlines imposed are lifted pending the Court's ruling on 17 MOTION for More Definite Statement by Charles Searcy, Randy Clanton, Dale McGinnis, Brooks Linesby, Arkansas Tomato Shippers, LLC. Signed by Judge Harry F. Barnes on September 27, 2007. (rwg) (Entered: 09/27/2007)
29 ORDER granting 28 Motion to Withdraw attorney Arlen S. Benjamin−Gomez as one of the attorneys of record. Signed by Judge Harry F. Barnes on October 9, 2007. (cnn) (Entered: 10/09/2007)
30 MOTION for Extension of Time to Complete Discovery by Charles Searcy, Randy Clanton, Dale McGinnis, Brooks Linesby, Candy Brand, LLC. (Moore, Michael) (Entered: 10/09/2007)
31 ORDER denying 30 Motion for Extension of Time to Complete Discovery. Signed by Judge Harry F. Barnes on October 10, 2007. (rwg) (Entered: 10/10/2007)
32 ORDER denying Defendants' 17 Motion for More Definite Statement. Signed by Honorable Harry F. Barnes on November 21, 2007. (mfr) (Entered: 11/21/2007)
33 Consent MOTION for Leave to File First Amended Complaint by Rosalino Perez−Benites, Luis Alberto Asencio−Vasquez, Pascual Noriega−Narvaez. (Attachments: # 1 Proposed Pleading, First Amended Complaint)(Rosenbaum, Jennifer) (Entered: 11/30/2007)
34 ANSWER to 1 Complaint, with Jury Demand by Arkansas Tomato Shippers, LLC.(Moore, Michael) (Entered: 12/03/2007)
35 ANSWER to 1 Complaint, with Jury Demand by Brooks Linesby.(Moore, Michael) (Entered: 12/03/2007)
36 ANSWER to 1 Complaint, with Jury Demand by Charles Searcy.(Moore, Michael) (Entered: 12/03/2007)

Case 1:07-cv-01048-RTD document <docnum> filed <datefiled> page 9 of 26

12/03/2007 12/03/2007 12/05/2007 12/09/2007 12/20/2007 03/28/2008 04/01/2008
04/03/2008 05/02/2008 05/08/2008 05/09/2008
06/05/2008
06/25/2008
07/01/2008 07/22/2008 07/28/2008
07/30/2008

37 ANSWER to 1 Complaint, with Jury Demand by Randy Clanton.(Moore, Michael) (Entered: 12/03/2007)
38 ANSWER to 1 Complaint, with Jury Demand by Dale McGinnis.(Moore, Michael) (Entered: 12/03/2007)
39 ORDER granting 33 Motion for Leave to File amended complaint; parties given five days from entry of order to file amended complaint. Signed by Honorable Harry F. Barnes on December 5, 2007. (cnn) (Entered: 12/05/2007)
40 AMENDED COMPLAINTagainst all defendants, filed by Rosalino Perez−Benites, Luis Alberto Asencio−Vasquez, Pascual Noriega−Narvaez.(Rosenbaum, Jennifer) (Entered: 12/09/2007)
41 ANSWER to Complaint with Jury Demand Answer to First Amended Complaint by Charles Searcy, Randy Clanton, Dale McGinnis, Brooks Linesby, Candy Brand, LLC, Arkansas Tomato Shippers, LLC.(Moore, Michael) (Entered: 12/20/2007)
42 MOTION to Appear Pro Hac Vice by Rosalino Perez−Benites, Luis Alberto Asencio−Vasquez, Pascual Noriega−Narvaez. (Bowen, Martin) (Entered: 03/28/2008)
43 ORDER granting 42 Motion to Appear Pro Hac Vice. Daniel Werner is directed to immediately register as a CM/ECF user if he/she has not already done so and enter his/her appearance in this matter. Signed by Honorable Harry F. Barnes on April 1, 2008. (cnn) (Entered: 04/01/2008)
44 NOTICE of Appearance by Daniel Werner on behalf of Rosalino Perez−Benites, Luis Alberto Asencio−Vasquez, Pascual Noriega−Narvaez (Attachments: # 1 Certificate of Service)(Werner, Daniel) (Entered: 04/03/2008)
45 MOTION for Discovery Status Conference by Rosalino Perez−Benites. (Attachments: # 1 Exhibit A)(Rosenbaum, Jennifer) (Entered: 05/02/2008)
46 RESPONSE to Motion re 45 MOTION for Discovery Status Conference and New Scheduling Order filed by Charles Searcy, Randy Clanton, Dale McGinnis, Brooks Linesby, Arkansas Tomato Shippers, LLC. (Young, H.) (Entered: 05/08/2008)
47 ORDER granting and denying 45 ; the court will issue a new initial scheduling order and the request for a status conference is denied. Signed by Honorable Harry F. Barnes on May 9, 2008. (cnn) Modified on 5/12/2008 to correct signature date (cnn). (Entered: 05/09/2008)
48 INITIAL SCHEDULING ORDER: Rule 26(f) Conference due by 7/22/2008. Rule 26(f)Meeting Report due by 8/18/2008. Jury Trial set for the week of 5/4/2009 @ 09:00 AM in El Dorado −− 2nd flr before Honorable Harry F. Barnes. Signed by Honorable Harry F. Barnes on June 5, 2008. (rwg) (Entered: 06/05/2008)
49 MOTION to Withdraw as Attorney (Jennifer J. Rosenbaum) by Rosalino Perez−Benites, Luis Alberto Asencio−Vasquez, Pascual Noriega−Narvaez. (Attachments: # 1 Proposed Order, # 2 Certificate of Service)(Werner, Daniel) (Entered: 06/25/2008)
50 ORDER granting 49 Motion to Withdraw attorney Jennifer J. Rosenbaum as one of the attorneys of record for the plaintiffs. Signed by Honorable Harry F. Barnes on July 1, 2008. (cnn) (Entered: 07/01/2008)
51 MOTION to Appear Pro Hac Vice for James M. Knoepp by Rosalino Perez−Benites, Luis Alberto Asencio−Vasquez, Pascual Noriega−Narvaez. (Werner, Daniel) (Entered: 07/22/2008)
52 ORDER granting 51 Motion to Appear Pro Hac Vice. James M Knoepp is directed to immediately register as a CM/ECF user if he/she has not already done so and enter his/her appearance in this matter. Signed by Honorable Harry F. Barnes on July 28, 2008. (cnn) (Entered: 07/28/2008)
53 NOTICE of Appearance by James M. Knoepp on behalf of all plaintiffs (Knoepp, James) (Entered: 07/30/2008)

Case 1:07-cv-01048-RTD document <docnum> filed <datefiled> page 10 of 26

08/05/2008 08/25/2008 08/26/2008 09/02/2008 10/10/2008 10/13/2008
10/13/2008 10/15/2008 10/16/2008 10/17/2008 10/20/2008 10/29/2008 10/31/2008 11/14/2008 11/26/2008 11/26/2008

54 JOINT REPORT of Rule 26(f) Planning Meeting by plaintiffs and defendants. (Knoepp, James) Modified on 8/6/2008 to show "joint" document (cnn). (Entered: 08/05/2008)
55 MOTION to Withdraw as Attorney Michael S. Moore and H. Wayne Young by Charles Searcy, Randy Clanton, Dale McGinnis, Brooks Linesby, Candy Brand, LLC, Arkansas Tomato Shippers, LLC. (Moore, Michael) (Entered: 08/25/2008)
56 FINAL SCHEDULING ORDER: Jury Trial set for the week of 5/4/2009 @ 09:00 AM in El Dorado −− 2nd flr before Honorable Harry F. Barnes. Signed by Honorable Harry F. Barnes on August 26, 2008. (rwg) (Entered: 08/26/2008)
57 ORDER granting 55 Motion to Withdraw Michael S. Moore and H. Wayne Young, Jr as attorneys of record. Signed by Honorable Harry F. Barnes on September 2, 2008. (cnn) (Entered: 09/02/2008)
58 NOTICE by Candy Brand, LLC Notice of Filing Discovery Materials (Hashem, Hani) (Entered: 10/10/2008)
59 Unopposed MOTION to Certify Class Plaintiffs' Unopposed Motion for Conditional Certification of FLSA Collective Action by Rosalino Perez−Benites. Responses due by 10/27/2008 (Attachments: # 1 Exhibit List, # 2 Plaintiffs' Exhibit 1, # 3 Plaintiffs' Exhibit 2, # 4Plaintiffs' Exhibit 3, # 5 Plaintiffs' Exhibit 4, # 6 Plaintiffs' Exhibit 5, # 7 Plaintiffs' Exhibit 6, # 8 Plaintiffs' Exhibit 7, # 9 Plaintiffs' Exhibit 8, # 10 Plaintiffs' Exhibit 9, # 11 Plaintiffs' Exhibit 10, # 12 Plaintiffs' Exhibit 11, # 13 Plaintiffs' Exhibit 12, # 14 Plaintiffs' Exhibit 13, # 15 Plaintiffs' Exhibit 14)(Knoepp, James) Modified on 10/14/2008 to delete duplicate docket text (cnn). (Entered: 10/13/2008)
60 MEMORANDUM BRIEF in Support of 59 Unopposed MOTION to Certify Class Plaintiffs' Unopposed Motion for Conditional Certification of FLSA Collective Action by Rosalino Perez−Benites. (Knoepp, James) (Entered: 10/13/2008)
61 MOTION for Extension of Time to Complete Discovery by Randy Clanton. (Hashem, Hani) (Entered: 10/15/2008)
62 ORDER granting 61 Motion for Extension of Time to Complete Discovery until 10/31/08. Signed by Honorable Harry F. Barnes on October 16, 2008. (cnn) (Entered: 10/16/2008)
63 NOTICE by Candy Brand, LLC Notice of Filing Discovery Materials (Hashem, Hani) (Entered: 10/17/2008)
64 RESPONSE to Motion re 59 Unopposed MOTION to Certify Class Plaintiffs' Unopposed Motion for Conditional Certification of FLSA Collective Action filed by Candy Brand, LLC. (Hashem, Hani) (Entered: 10/20/2008)
65 NOTICE by Randy Clanton of Filing Discovery Materials (Hashem, Hani) (Entered: 10/29/2008)
66 ORDER granting 59 Conditional Motion to Certify Class. Signed by Honorable Harry F. Barnes on October 31, 2008. (cnn) (Entered: 10/31/2008)
67 NOTICE by Rosalino Perez−Benites Notice of Completion of Mailing of FLSA Collective Action Notice (Knoepp, James) (Entered: 11/14/2008)
68 MOTION to Certify Class by Rosalino Perez−Benites, Luis Alberto Asencio−Vasquez, Pascual Noriega−Narvaez. Responses due by 12/16/2008 (Knoepp, James) (Entered: 11/26/2008)
69 MEMORANDUM BRIEF in Support of 68 MOTION to Certify Class by Rosalino Perez−Benites, Luis Alberto Asencio−Vasquez, Pascual Noriega−Narvaez. (Attachments: # 1 Exhibit List, # 2 Exhibit Pls.' Ex. 1, # 3 Exhibit Pls.' Ex. 2, # 4 Exhibit Pls.' Ex. 3, # 5 Exhibit Pls.' Ex. 4, # 6 Exhibit Pls.' Ex. 5, # 7 Exhibit Pls.' Ex. 6, # 8 Exhibit Pls.' Ex. 7, # 9 Exhibit Pls.' Ex. 8, # 10 Exhibit Pls.' Ex. 9, # 11 Exhibit Pls.' Ex. 10, # 12 Exhibit Pls.' Ex. 11, # 13 Exhibit Pls.' Ex. 12, # 14 Exhibit Pls.' Ex. 13, # 15 Exhibit Pls.' Ex. 14, # 16 Exhibit Pls.' Ex. 15, # 17 Exhibit Pls.' Ex. 16, # 18 Exhibit Pls.' Ex. 17, # 19 Exhibit Pls.' Ex. 18)(Knoepp, James) (Entered: 11/26/2008)

Case 1:07-cv-01048-RTD document <docnum> filed <datefiled> page 11 of 26

12/16/2008 12/16/2008
12/23/2008 12/23/2008 12/23/2008 12/24/2008 12/24/2008 12/24/2008
12/31/2008 12/31/2008 01/05/2009 01/06/2009 01/07/2009
01/07/2009 01/07/2009 01/08/2009 01/08/2009 01/13/2009

70 RESPONSE to Motion re 68 MOTION to Certify Class filed by Charles Searcy, Randy Clanton, Dale McGinnis, Brooks Linesby, Candy Brand, LLC, Arkansas Tomato Shippers, LLC. (Hashem, Hani) (Entered: 12/16/2008)
71 BRIEF in support of Response 70 to Motion 68 Certify Class filed by Charles Searcy, Randy Clanton, Dale McGinnis, Brooks Linesby, Candy Brand, LLC, Arkansas Tomato Shippers, LLC. (Hashem, Hani) Modified on 12/17/2008 to correct document link and proper event (cnn). (Entered: 12/16/2008)
72 MOTION for Extension of Time to Complete Discovery by Arkansas Tomato Shippers, LLC. (Hashem, Hani) (Entered: 12/23/2008)
73 MOTION for Extension of Time to Complete Discovery by Candy Brand, LLC. (Hashem, Hani) (Entered: 12/23/2008)
74 REPLY to Response to Motion re 68 MOTION to Certify Class filed by Rosalino Perez−Benites. (Knoepp, James) (Entered: 12/23/2008)
75 MOTION to Quash Subpoena and Objection by Randy Clanton Farms, Inc. (Attachments: # 1 Exhibit 1)(Hashem, Hani) Modified on 12/29/2008 to correct filer (cnn). (Entered: 12/24/2008)
76 MOTION to Quash Subpoena and Objection by McGinnis Farms, Inc. (Attachments: # 1 Exhibit 1)(Hashem, Hani) Modified on 12/29/2008 to correct filer (cnn). (Entered: 12/24/2008)
77 DISREGARD *** DUPLICATE ENTRY OF 75 MOTION to Quash Subpoena and Objection by Randy Clanton Farms, Inc. (Attachments: # 1 Exhibit 1)(Hashem, Hani) Modified on 12/29/2008 to correct filer (cnn). Modified on 12/29/2008 (cnn). (Entered: 12/24/2008)
78 RESPONSE to Motion re 72 MOTION for Extension of Time to Complete Discovery, 73 MOTION for Extension of Time to Complete Discovery filed by Rosalino Perez−Benites. (Knoepp, James) (Entered: 12/31/2008)
79 NOTICE by Rosalino Perez−Benites of Filing Consents to Join FLSA Collective Action (Attachments: # 1 FLSA opt−in forms)(Knoepp, James) (Entered: 12/31/2008)
80 ORDER granting 72 and 73 Motion for Extension of Time to Complete Discovery until 1/20/09. Signed by Honorable Harry F. Barnes on January 5, 2009. (cnn) (Entered: 01/05/2009)
81 NOTICE by Rosalino Perez−Benites of Filing Consents to Join FLSA Collective Action (Attachments: # 1 FLSA opt−in forms)(Knoepp, James) (Entered: 01/06/2009)
82 SUPPLEMENTAL MEMORANDUM BRIEF in Support of 71 Response to Motion, 70 Response to Motion by Charles Searcy, Randy Clanton, Dale McGinnis, Brooks Linesby, Candy Brand, LLC, Arkansas Tomato Shippers, LLC. (Hashem, Hani) Modified on 1/8/2009 to edit text for clarification (cnn). (Entered: 01/07/2009)
83 RESPONSE in Opposition re 76 MOTION to Quash Subpoena and Objection filed by Rosalino Perez−Benites. (Attachments: # 1 Exhibit Letter from Hashem to Knoepp 12/24/08)(Knoepp, James) (Entered: 01/07/2009)
84 RESPONSE in Opposition re 75 MOTION to Quash Subpoena and Objection filed by Rosalino Perez−Benites. (Attachments: # 1 Exhibit Letter from Hashem to Knoepp 12/24/08)(Knoepp, James) (Entered: 01/07/2009)
85 Amended MOTION to Quash Subpoena and Objection by McGinnis Farms, Inc.. (Hashem, Hani) (Entered: 01/08/2009)
86 Amended MOTION to Quash Subpoena and Objection by Randy Clanton Farms, Inc.. (Hashem, Hani) (Entered: 01/08/2009)
87 NOTICE by Rosalino Perez−Benites of Filing Consents to Join FLSA Collective Action (Attachments: # 1 FLSA opt−in forms)(Knoepp, James) (Entered: 01/13/2009)

Case 1:07-cv-01048-RTD document <docnum> filed <datefiled> page 12 of 26

01/16/2009 01/20/2009 01/20/2009 01/20/2009 01/20/2009 01/20/2009 01/21/2009 01/26/2009 01/26/2009 01/30/2009
02/02/2009
02/03/2009 02/05/2009 02/05/2009 02/05/2009 02/05/2009 02/05/2009 02/12/2009

88 NOTICE by Rosalino Perez−Benites of Filing Consents to Join FLSA Collective Action (Attachments: # 1 FLSA consents)(Knoepp, James) (Entered: 01/16/2009)
89 NOTICE by Arkansas Tomato Shippers, LLC of Filing Discovery Materials (Hashem, Hani) (Entered: 01/20/2009)
90 NOTICE by Arkansas Tomato Shippers, LLC of Filing Discovery Materials (Hashem, Hani) (Entered: 01/20/2009)
91 NOTICE by Candy Brand, LLC of Filing Discovery Responses (Hashem, Hani) (Entered: 01/20/2009)
92 RESPONSE in Opposition re 86 Amended MOTION to Quash Subpoena and Objection filed by Rosalino Perez−Benites. (Knoepp, James) (Entered: 01/20/2009)
93 RESPONSE in Opposition re 85 Amended MOTION to Quash Subpoena and Objection filed by Rosalino Perez−Benites. (Attachments: # 1 Exhibit Affidavit of Service by David P. Forrest)(Knoepp, James) (Entered: 01/20/2009)
94 NOTICE by Arkansas Tomato Shippers, LLC of Filing Discover Materials (Hashem, Hani) (Entered: 01/21/2009)
95 MOTION to Continue Trial Date and Re−Set Deadlines With Request for Expedited Briefing and Emergency Telephonic Hearing by Rosalino Perez−Benites. (Knoepp, James) (Entered: 01/26/2009)
96 NOTICE by Rosalino Perez−Benites of Filing Consent to Join FLSA Collective Action (Attachments: # 1 FLSA Opt−in Form)(Knoepp, James) (Entered: 01/26/2009)
97 RESPONSE to Motion re 95 MOTION to Continue Trial Date and Re−Set Deadlines With Request for Expedited Briefing and Emergency Telephonic Hearing filed by Charles Searcy, Randy Clanton, Dale McGinnis, Brooks Linesby, Candy Brand, LLC, Arkansas Tomato Shippers, LLC. (Hashem, Hani) (Entered: 01/30/2009)
98 MOTION to Appear Pro Hac Vice by Michelle R. Lapointe by Rosalino Perez−Benites. (Attachments: # 1 Exhibit Certificate of Good Standing (Georgia), # 2 Exhibit Certificate of Good Standing (N.D. Ga.))(Knoepp, James) (Entered: 02/02/2009)
99 NOTICE by Rosalino Perez−Benites of Filing Consents to Join FLSA Collective Action (Attachments: # 1 FLSA opt−in forms)(Knoepp, James) (Entered: 02/03/2009)
100 NOTICE by Charles Searcy, Randy Clanton, Dale McGinnis, Brooks Linesby, Candy Brand, LLC, Arkansas Tomato Shippers, LLC of Filing Discovery Materials (Hashem, Hani) (Entered: 02/05/2009)
101 NOTICE by Charles Searcy, Randy Clanton, Dale McGinnis, Brooks Linesby, Candy Brand, LLC, Arkansas Tomato Shippers, LLC of Filing Discovery Materials (Hashem, Hani) (Entered: 02/05/2009)
102 NOTICE by Charles Searcy, Randy Clanton, Dale McGinnis, Brooks Linesby, Candy Brand, LLC, Arkansas Tomato Shippers, LLC of Filing Discovery Materials (Hashem, Hani) (Entered: 02/05/2009)
103 NOTICE by Charles Searcy, Randy Clanton, Dale McGinnis, Brooks Linesby, Candy Brand, LLC, Arkansas Tomato Shippers, LLC Notice of Filing Discovery Materials (Hashem, Hani) (Entered: 02/05/2009)
104 NOTICE by Charles Searcy, Randy Clanton, Dale McGinnis, Brooks Linesby, Candy Brand, LLC, Arkansas Tomato Shippers, LLC of Filing Discovery Materials (Hashem, Hani) (Entered: 02/05/2009)
105 RESPONSE to Motion re 95 MOTION to Continue Trial Date and Re−Set Deadlines With Request for Expedited Briefing and Emergency Telephonic Hearing Amended and Substituted filed by Charles Searcy, Randy Clanton, Dale McGinnis, Brooks Linesby, Candy Brand, LLC, Arkansas Tomato Shippers, LLC.

Case 1:07-cv-01048-RTD document <docnum> filed <datefiled> page 13 of 26

02/18/2009
02/18/2009
02/19/2009 03/02/2009 03/02/2009 03/02/2009 03/04/2009 03/05/2009 03/09/2009 03/12/2009
03/16/2009 04/15/2009 09/09/2009 09/09/2009 09/15/2009
09/15/2009

(Hashem, Hani) (Entered: 02/12/2009)
106 ORDER granting 95 Motion to Continue Trial Date and Reset Deadlines. Deadlines imposed by previous scheduling order are lifted until further notice. No telephonic hearing is necessary. Signed by Honorable Harry F. Barnes on February 18, 2009. (rwg) (Entered: 02/18/2009)
107 ORDER granting 98 Motion to Appear Pro Hac Vice. Michelle R. Lapointe is directed to immediately register as a CM/ECF user if he/she has not already done so and enter his/her appearance in this matter. Signed by Honorable Harry F. Barnes on February 18, 2009. (cnn) (Entered: 02/18/2009)
108 NOTICE of Appearance by Michelle R. Lapointe on behalf of all plaintiffs (Lapointe, Michelle) (Entered: 02/19/2009)
109 NOTICE by Rosalino Perez−Benites of Filing Consents to Join FLSA Collective Action (Attachments: # 1 FLSA Consent Forms)(Knoepp, James) (Entered: 03/02/2009)
110 MOTION to Substitute Attorney by Luis Alberto Asencio−Vasquez, Pascual Noriega−Narvaez, Rosalino Perez−Benites. (Knoepp, James) (Entered: 03/02/2009)
111 NOTICE of Appearance by Charles D. Skip Davidson, Sr on behalf of Brooks Linesby (Davidson, Charles) (Entered: 03/02/2009)
112 NOTICE by Rosalino Perez−Benites of Filing Consents to Join FLSA Collective Action (Attachments: # 1 FLSA Consent Forms)(Knoepp, James) (Entered: 03/04/2009)
113 NOTICE by Rosalino Perez−Benites of Filing Consents to Join FLSA Collective Action (Attachments: # 1 FLSA consent forms)(Knoepp, James) (Entered: 03/05/2009)
114 FINAL SCHEDULING ORDER: Jury Trial set for the week of 3/1/2010 @ 09:00 AM in El Dorado −− 2nd flr before Honorable Harry F. Barnes. Signed by Honorable Harry F. Barnes on March 9, 2009. (rwg) (Entered: 03/09/2009)
115 ORDER granting 110 Motion to Substitute Attorney; Martin W. Bowen is relieve as counsel and John L. Burnett is substituted; John Burnett is directed to file an Entry of Appearance. Signed by Honorable Harry F. Barnes on March 11, 2009. (cnn) (Entered: 03/12/2009)
116 NOTICE of Appearance by John Lindsay Burnett on behalf of Luis Alberto Asencio−Vasquez, Pascual Noriega−Narvaez, Rosalino Perez−Benites (Burnett, John) (Entered: 03/16/2009)
117 NOTICE by Rosalino Perez−Benites of withdrawal of FLSA consent for Florencio Gomez Gomez (Knoepp, James) (Entered: 04/15/2009)
118 ORDER denying 75 Motion to Quash; denying 86 Amended Motion to Quash. Signed by Honorable Harry F. Barnes on September 9, 2009. (cnn) (Entered: 09/09/2009)
119 ORDER denying 76 Motion to Quash; denying 85 Amended Motion to Quash. Signed by Honorable Harry F. Barnes on September 9, 2009. (cnn) (Entered: 09/09/2009)
120 ORDER Setting Hearing on 68 MOTION to Certify Class: Motion Hearing set for 10/8/2009 @ 09:00 AM in El Dorado −− 2nd flr before Honorable Harry F. Barnes. Signed by Honorable Harry F. Barnes on September 15, 2009. (rwg) (Entered: 09/15/2009)
121 MOTION for Protective Order by Arkansas Tomato Shippers, LLC, Candy Brand, LLC, Randy Clanton, Randy Clanton Farms, Inc., Brooks Linesby, Dale McGinnis, McGinnis Farms, Inc., Charles Searcy. (Attachments: # 1 Exhibit)(Hashem, Hani) (Entered: 09/15/2009)

Case 1:07-cv-01048-RTD document <docnum> filed <datefiled> page 14 of 26

09/16/2009
09/16/2009 09/16/2009
09/17/2009 09/21/2009 09/21/2009 09/25/2009 09/25/2009 09/28/2009 09/29/2009 10/01/2009 10/01/2009 10/02/2009 10/02/2009
10/07/2009 10/08/2009

122 MEMORANDUM BRIEF in Support 121 of Motion for Protective Order by Arkansas Tomato Shippers, LLC, Candy Brand, LLC, Randy Clanton, Randy Clanton Farms, Inc., Brooks Linesby, Dale McGinnis, McGinnis Farms, Inc., Charles Searcy. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Hashem, Hani) Modified on 9/17/2009 to create document link (cnn). (Entered: 09/16/2009)
123 MOTION to Continue by Arkansas Tomato Shippers, LLC, Candy Brand, LLC, Randy Clanton, Randy Clanton Farms, Inc., Brooks Linesby, Dale McGinnis, McGinnis Farms, Inc., Charles Searcy. (Attachments: # 1 Exhibit)(Hashem, Hani) (Entered: 09/16/2009)
124 MEMORANDUM BRIEF in Support 123 of Motion for Continuance by Arkansas Tomato Shippers, LLC, Candy Brand, LLC, Randy Clanton, Randy Clanton Farms, Inc., Brooks Linesby, Dale McGinnis, McGinnis Farms, Inc., Charles Searcy. (Hashem, Hani) Modified on 9/17/2009 to create document link (cnn). (Entered: 09/16/2009)
125 RESPONSE in Opposition re 121 MOTION for Protective Order filed by Rosalino Perez−Benites. (Attachments: # 1 Exhibit Order from Western District of Arkansas, # 2 Exhibit Order from Southern District of Florida, # 3 Exhibit Cost Quote − Video−Conference Mexico City)(Knoepp, James) (Entered: 09/17/2009)
126 ORDER denying as moot 123 Motion to Continue. Hearing on Motion to Certify Class will proceed as scheduled on 10/8/2009 @ 9:00 a.m. Signed by Honorable Harry F. Barnes on September 21, 2009. (rwg) (Entered: 09/21/2009)
127 ORDER denying 121 Motion for Protective Order. Signed by Honorable Harry F. Barnes on September 21, 2009. (cnn) (Entered: 09/21/2009)
128 MOTION to Substitute Attorney by Dale McGinnis, McGinnis Farms, Inc.. (Thomas, Floyd) (Entered: 09/25/2009)
129 ***DOCUMENT STRICKEN PER ORDER 140 *** NOTICE of Acceptance with Offer of Judgment by Randy Clanton, Brooks Linesby, Charles Searcy (Hashem, Hani) Modified on 11/10/2009 (cnn). (Entered: 09/25/2009)
130 MOTION to Continue by Dale McGinnis, McGinnis Farms, Inc.. (Thomas, Floyd) (Entered: 09/28/2009)
131 RESPONSE to Motion re 130 MOTION to Continue filed by Luis Alberto Asencio−Vasquez, Pascual Noriega−Narvaez, Rosalino Perez−Benites. (Lapointe, Michelle) (Entered: 09/29/2009)
132 RESPONSE to Motion re 130 MOTION to Continue filed by Arkansas Tomato Shippers, LLC, Candy Brand, LLC, Randy Clanton, Brooks Linesby, Charles Searcy. (Hashem, Hani) (Entered: 10/01/2009)
133 RESPONSE to Motion re 128 MOTION to Substitute Attorney filed by Arkansas Tomato Shippers, LLC, Candy Brand, LLC, Randy Clanton, Brooks Linesby, Charles Searcy. (Hashem, Hani) (Entered: 10/01/2009)
TEXT ONLY ORDER granting 128 Motion to Substitute Attorney. Attorney F. Mattison Thomas III substituted as counsel for Defendant Dale McGinnis. Attorney Hani W. Hashem terminated as counsel for Dale McGinnis.. Signed by Honorable Harry F. Barnes on October 2, 2009. (alw) (Entered: 10/02/2009)
134 ORDER granting 130 Motion to Continue hearing set for 10/8/09; Defendant McGinnis shall reimburse Plaintiffs for the reasonable cost−−as determined by the parties−−associated with rebooking their plane tickets. The Court will reset this hearing at a later date. Signed by Honorable Harry F. Barnes on October 2, 2009. (cap) (Entered: 10/02/2009)
135 NOTICE of Appearance by Charles D. Skip Davidson, Sr on behalf of Brooks Linesby (Davidson, Charles) (Entered: 10/07/2009)
CLERK'S NOTICE re Multiple Attorneys Listed on Pleading directed to Defendant Brooks Linesby. Notice of Appearance 135 lists multiple attorneys appearing for the filer. The following attorney(s) must enter a separate Notice of

Case 1:07-cv-01048-RTD document <docnum> filed <datefiled> page 15 of 26

10/12/2009 10/12/2009 10/21/2009 10/29/2009 11/10/2009 11/11/2009 11/11/2009 11/11/2009 11/12/2009 11/13/2009 11/13/2009 11/16/2009 11/30/2009 12/08/2009

Appearance in order to receive electronic notification of future activity in the case: J Paul Davidson. TEXT ONLY ENTRY, NO DOCUMENT ATTACHED. (cnn) (Entered: 10/08/2009)
136 MOTION to Strike 129 Notice of Acceptance with Offer of Judgment by Luis Alberto Asencio−Vasquez, Pascual Noriega−Narvaez, Rosalino Perez−Benites. (Lapointe, Michelle) (Entered: 10/12/2009)
137 MEMORANDUM BRIEF in Support of 136 MOTION to Strike 129 Notice of Acceptance with Offer of Judgment by Luis Alberto Asencio−Vasquez, Pascual Noriega−Narvaez, Rosalino Perez−Benites. (Lapointe, Michelle) (Entered: 10/12/2009)
138 RESPONSE to Motion re 136 MOTION to Strike 129 Notice of Acceptance with Offer of Judgment filed by Randy Clanton, Brooks Linesby, Charles Searcy. (Hashem, Hani) (Entered: 10/21/2009)
139 ORDER Setting Hearing on 68 MOTION to Certify Class: Motion Hearing reset for 11/16/2009 @ 09:00 AM in El Dorado −− 2nd flr before Honorable Harry F. Barnes. Signed by Honorable Harry F. Barnes on October 29, 2009. (rwg) (Entered: 10/29/2009)
140 ORDER granting 136 Motion to Strike 129 Notice of Acceptance with Offer of Judgment. Signed by Honorable Harry F. Barnes on November 10, 2009. (cnn) (Entered: 11/10/2009)
141 AMENDED RESPONSE to Motion re 68 MOTION to Certify Class filed by Arkansas Tomato Shippers, LLC, Candy Brand, LLC, Randy Clanton, Brooks Linesby, Charles Searcy. (Hashem, Hani) Modified on 11/12/2009 to add text (cnn). (Entered: 11/11/2009)
142 RESPONSE in Opposition re 68 MOTION to Certify Class filed by Dale McGinnis. (Thomas, Floyd) Modified on 11/12/2009 to correct filer(cnn). (Entered: 11/11/2009)
143 MEMORANDUM BRIEF in Opposition to 142 Response in Opposition to Motion by Dale McGinnis. (Thomas, Floyd) Modified on 11/12/2009 to correct filer (cnn). (Entered: 11/11/2009)
144 MEMORANDUM BRIEF in Support re 71 82 of Response to Plaintiff's Motion for Certification of Rule 23 Class Action by Arkansas Tomato Shippers, LLC, Candy Brand, LLC, Randy Clanton, Brooks Linesby, Charles Searcy. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Hashem, Hani) (Entered: 11/12/2009)
145 MOTION to Strike 142 Response in Opposition to Motion, 141 Response to Motion, 144 Memorandum Brief in Support, 143 Memorandum Brief in Opposition by Rosalino Perez−Benites. (Knoepp, James) (Entered: 11/13/2009)
146 MEMORANDUM BRIEF in Support of 145 MOTION to Strike 142 Response in Opposition to Motion, 141 Response to Motion, 144 Memorandum Brief in Support, 143 Memorandum Brief in Opposition by Rosalino Perez−Benites. (Knoepp, James) (Entered: 11/13/2009)
147 Minute Entry for proceedings held before Honorable Harry F. Barnes: Motion Hearing held on 11/16/2009 re 68 MOTION to Certify Class filed by Luis Alberto Asencio−Vasquez, Pascual Noriega−Narvaez, Rosalino Perez−Benites. (rwg) (Entered: 11/16/2009)
Court Recording of Motion Hearing held on 11/16/09, by Court Reporter Donna McKinney, Tape No. DM 09−52, Location of Tape: El Dorado. (cnn) (Entered: 11/30/2009)
148 SUBSTITUTED SECOND SUPPLEMENTAL MEMORANDUM BRIEF in Support re 71 , 82 , 144 of Response to Plaintiff's Motion for Certification of Rule 23 Class Action by Arkansas Tomato Shippers, LLC, Candy Brand, LLC, Randy Clanton, Brooks Linesby, Charles Searcy. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Hashem, Hani) Modified on 12/9/2009 to create document link (cnn). (Entered: 12/08/2009)

Case 1:07-cv-01048-RTD document <docnum> filed <datefiled> page 16 of 26

12/09/2009 12/09/2009 12/09/2009
12/22/2009
12/23/2009 12/31/2009 12/31/2009 12/31/2009 12/31/2009 01/04/2010
01/05/2010 01/08/2010 01/19/2010 01/19/2010

149 APPENDIX by Defendants Arkansas Tomato Shippers, LLC, Candy Brand, LLC, Randy Clanton, Brooks Linesby, Charles Searcy re 148 Memorandum Brief in Support, of Response to Plaintiffs' Motion for Certification of Rule 23 Class Action. (Attachments: # 1 Exhibit C, # 2 Exhibit D)(Hashem, Hani) (Entered: 12/09/2009)
150 APPENDIX by Defendants Arkansas Tomato Shippers, LLC, Candy Brand, LLC, Randy Clanton, Brooks Linesby, Charles Searcy. (Attachments: # 1 Exhibit E, # 2 Exhibit F)(Hashem, Hani) (Entered: 12/09/2009)
151 AFFIDAVIT/ADDENDUM by Arkansas Tomato Shippers, LLC, Candy Brand, LLC, Randy Clanton, Brooks Linesby, Charles Searcy to 149 Appendix, 150 Appendix, 148 Memorandum Brief in Support, of Response to Plaintiffs' Motion for Certification of Rule 23 Class Action. (Attachments: # 1 Exhibit G, # 2 Exhibit H)(Hashem, Hani) (Entered: 12/09/2009)
152 REPLY to Response to Motion re 68 MOTION to Certify Class filed by Rosalino Perez−Benites. (Attachments: # 1 Exhibit A (ILMC Deposition Excerpts), # 2 Exhibit B (Maria Mireya Cortes Gonzales Deposition Excerpts), # 3 Exhibit C (Jose Dolores Ramirez Reyes Deposition Excerpts), # 4 Exhibit D (Diego Arriaga Guzman Deposition Excerpts), # 5 Exhibit E (Blas Burboa Leyva Deposition Excerpts), # 6 Exhibit 122)(Knoepp, James) (Entered: 12/22/2009)
153 Unopposed MOTION to Continue Trial Date and Modify Scheduling Order by Rosalino Perez−Benites. (Knoepp, James) (Entered: 12/23/2009)
154 MOTION for Partial Summary Judgment by Arkansas Tomato Shippers, LLC, Candy Brand, LLC, Randy Clanton, Brooks Linesby, Charles Searcy. (Hashem, Hani) (Entered: 12/31/2009)
155 MEMORANDUM BRIEF in Support of 154 MOTION for Partial Summary Judgment by Arkansas Tomato Shippers, LLC, Candy Brand, LLC, Randy Clanton, Brooks Linesby, Charles Searcy. (Hashem, Hani) (Entered: 12/31/2009)
156 First MOTION for Summary Judgment by Brooks Linesby. (Davidson, Charles) (Entered: 12/31/2009)
157 MEMORANDUM BRIEF in Support by Brooks Linesby. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Davidson, Charles) (Entered: 12/31/2009)
158 STATEMENT OF FACTS 154 in support of motion for partial summary judgment as to which there is no genuine issue to be tried by Arkansas Tomato Shippers, LLC, Candy Brand, LLC, Randy Clanton, Brooks Linesby, Charles Searcy. (Hashem, Hani) Modified on 1/5/2010 to create document link (cnn). (Entered: 01/04/2010)
159 AFFIDAVIT of Charles Searcy filed by Arkansas Tomato Shippers, LLC, Candy Brand, LLC, Randy Clanton, Brooks Linesby, Charles Searcy. (Hashem, Hani) (Entered: 01/05/2010)
160 ORDER granting 153 Motion to Continue. Jury trial scheduled for the week of 3/1/2010 is continued and will be reset for a later date. Deadlines imposed by previous scheduling order are lifted until further notice. Signed by Honorable Harry F. Barnes on January 8, 2010. (rwg) (Entered: 01/08/2010)
161 MOTION Rule 56(f) Motion in Response to Defendants' Motions for Summary Judgment re 154 MOTION for Partial Summary Judgment, 156 First MOTION for Summary Judgment by Rosalino Perez−Benites. (Knoepp, James) (Entered: 01/19/2010)
162 MEMORANDUM BRIEF in Support of 161 MOTION Rule 56(f) Motion in Response to Defendants' Motions for Summary Judgment re 154 MOTION for Partial Summary Judgment, 156 First MOTION for Summary Judgment by Rosalino Perez−Benites. (Attachments: # 1 Exhibit A (affidavit of James Knoepp), # 2 Exhibit B (IRS Schedule F), # 3 Exhibit C (Production Records), # 4 Exhibit D (Incoming Bin Sheets), # 5 Exhibit E (General Ledger), # 6 Exhibit F (IRS Schedule F), # 7 Exhibit G (Kristi Clanton Deposition), # 8 Exhibit H (Candy Brand Interrogatory Responses), # 9 Exhibit I (Pedro Tapia Deposition), # 10 Exhibit J (Hearing Transcript), # 11 Exhibit K (Field Assistance Bulletin), # 12

Case 1:07-cv-01048-RTD document <docnum> filed <datefiled> page 17 of 26

01/27/2010
01/27/2010
02/02/2010
02/02/2010 02/08/2010 02/09/2010 02/09/2010 02/19/2010
02/22/2010 02/22/2010 03/09/2010 03/23/2010 03/23/2010 03/31/2010
04/06/2010
04/07/2010

Exhibit L (Indemnification Agreement), # 13 Exhibit 10 (Operations Manual Excerpts), # 14 Exhibit 41 (Incoming Bin Records), # 15 Exhibit 47 (Packing Fee Records), # 16 Exhibit 122 (Letter re: Expenses))(Knoepp, James) (Entered: 01/19/2010)
163 RESPONSE to Motion re 161 MOTION Rule 56(f) Motion in Response to Defendants' Motions for Summary Judgment re 154 MOTION for Partial Summary Judgment, 156 First MOTION for Summary Judgment filed by Arkansas Tomato Shippers, LLC, Candy Brand, LLC, Randy Clanton, Charles Searcy. (Hashem, Hani) (Entered: 01/27/2010)
164 MEMORANDUM BRIEF in Support of 163 Response to Motion, re Plaintiffs' Rule 56(f) Motion in Response to Defendants' Motion for Summary Judgment by Arkansas Tomato Shippers, LLC, Candy Brand, LLC, Randy Clanton, Charles Searcy. (Hashem, Hani) (Entered: 01/27/2010)
165 RESPONSE to Motion re 161 MOTION Rule 56(f) Motion in Response to Defendants' Motions for Summary Judgment re 154 MOTION for Partial Summary Judgment, 156 First MOTION for Summary Judgment filed by Brooks Linesby. (Davidson, Charles) (Entered: 02/02/2010)
166 MEMORANDUM BRIEF in Support of 165 Response to Motion by Brooks Linesby. (Davidson, Charles) (Entered: 02/02/2010)
167 MOTION to Substitute Attorney by Randy Clanton. (Thomas, Floyd) (Entered: 02/08/2010)
TEXT ONLY ORDER granting 167 Motion to Substitute Attorney. Attorney F. Mattison Thomas, III replacing Attorney Hani Hashem. Signed by Honorable Harry F. Barnes on February 9, 2010. (ljl) (Entered: 02/09/2010)
168 FINAL SCHEDULING ORDER: Jury Trial set for the week of 8/30/2010 09:00 AM in El Dorado −− 2nd flr before Honorable Harry F. Barnes. Signed by Honorable Harry F. Barnes on February 9, 2010. (rwg) (Entered: 02/09/2010)
169 NOTICE of Voluntary Dismissal of Dale McGinnis by Arkansas Tomato Shippers, LLC, Luis Alberto Asencio−Vasquez, Candy Brand, LLC, Randy Clanton, Randy Clanton Farms, Inc., Brooks Linesby, Dale McGinnis, McGinnis Farms, Inc., Pascual Noriega−Narvaez, Rosalino Perez−Benites, Charles Searcy (Knoepp, James) (Entered: 02/19/2010)
170 Joint MOTION Joint Motion to Modify Scheduling Order by Rosalino Perez−Benites. (Knoepp, James) (Entered: 02/22/2010)
171 NOTICE by Rosalino Perez−Benites re 170 Joint MOTION Joint Motion to Modify Scheduling Order Proposed Order (Knoepp, James) (Entered: 02/22/2010)
172 NOTICE by Rosalino Perez−Benites of Withdrawal of Consent to Join FLSA Collective Action by Ricky Edwin Bradley (Knoepp, James) (Entered: 03/09/2010)
173 MEMORANDUM OPINION. Signed by Honorable Harry F. Barnes on March 23, 2010. (cnn) (Entered: 03/23/2010)
174 ORDER granting 68 Motion to Certify Class; certified in two classes. Signed by Honorable Harry F. Barnes on March 23, 2010. (cnn) (Entered: 03/23/2010)
175 ORDER approving re 169 Notice of Voluntary Dismissal as to separate defendant Dale McGinnis; Claims against Dale McGinnis are dismissed with prejudice. Signed by Honorable Harry F. Barnes on March 31, 2010. (cnn) (Entered: 03/31/2010)
176 NOTICE by Randy Clanton, Brooks Linesby, Charles Searcy re 174 Order on Motion to Certify Class (Petition for Permission to Appeal filed at 8USCA under miscellaneous case 10−8012) (Attachments: # 1 8USCA−Letter to Counsel)(cnn) (Entered: 04/06/2010)
177 MOTION to Stay by Arkansas Tomato Shippers, LLC, Candy Brand, LLC, Randy Clanton, Brooks Linesby, Charles Searcy. (Thomas, III, Floyd) (Entered: 04/07/2010)

Case 1:07-cv-01048-RTD document <docnum> filed <datefiled> page 18 of 26

04/07/2010 04/12/2010
04/15/2010 05/20/2010 05/20/2010 05/21/2010 05/21/2010 05/21/2010 05/24/2010 05/26/2010 05/27/2010
06/03/2010 06/04/2010 06/08/2010
06/09/2010 06/14/2010

178 MEMORANDUM BRIEF in Support 77 of Motion to Stay by Arkansas Tomato Shippers, LLC, Candy Brand, LLC, Randy Clanton, Brooks Linesby, Charles Searcy. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Thomas, III, Floyd) Modified on 4/8/2010 to create document link (cnn). (Entered: 04/07/2010)
179 RESPONSE in Opposition re 177 MOTION to Stay filed by Rosalino Perez−Benites. (Attachments: # 1 Exhibit A (2008 H−2A Applications), # 2 Exhibit B (Randy Clanton Deposition Excerpt), # 3 Exhibit C (Bradley County Property Records), # 4 Exhibit D (Brooks Lisenbey Deposition Excerpt))(Knoepp, James) (Entered: 04/12/2010)
180 ORDER denying 177 Motion to Stay. Signed by Honorable Harry F. Barnes on April 15, 2010. (cnn) (Entered: 04/15/2010)
181 MOTION to Quash Plaintiff's Notice of Deposition of Denise Lisenbey by Brooks Linesby. (Attachments: # 1 Exhibit A)(Davidson, Jerry) (Entered: 05/20/2010)
182 MOTION to Quash Plaiantiff's Notice of Deposition of Denise Lisenby by Brooks Linesby. (Clark, Andrew) (Entered: 05/20/2010)
183 MOTION for Protective Order Limiting Discovery Directed at Opt−In Plaintiffs by Rosalino Perez−Benites. (Lapointe, Michelle) (Entered: 05/21/2010)
184 MEMORANDUM BRIEF in Support of 183 MOTION for Protective Order Limiting Discovery Directed at Opt−In Plaintiffs by Rosalino Perez−Benites. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 122)(Lapointe, Michelle) (Entered: 05/21/2010)
185 USCA MANDATE denying petition for permission to file 176 interlocutory appeal filed by Randy Clanton, Brooks Linesby, Charles Searcy (Attachments: # 1 8USCA−Judgment)(cnn) (Entered: 05/21/2010)
186 ORDER denying 181 Motion to Quash; denying 182 Motion to Quash subpoena at issue is modified to reflect that the parties will reschedule the deposition of Ms. Lisenbey on a mutually agreeable date and time. Signed by Honorable Harry F. Barnes on May 24, 2010. (cnn) (Entered: 05/24/2010)
187 NOTICE by Rosalino Perez−Benites re 186 Order on Motion to Quash,, Order on Motion for Special Appearence, New Date and Time for Deposition and Motion to Modify Scheduling Order and Trial Date (Knoepp, James) (Entered: 05/26/2010)
188 MOTION for Court Approval of Proposed Class Action Notice and Exclusion Form by Rosalino Perez−Benites. (Attachments: # 1 Exhibit A (Proposed Class Notice), # 2 Exhibit B (Proposed Exclusion Form), # 3 Proposed Order)(Lapointe, Michelle) Modified on 5/28/2010 to delete duplicate text (cnn). (Entered: 05/27/2010)
189 RESPONSE to Motion re 183 MOTION for Protective Order Limiting Discovery Directed at Opt−In Plaintiffs filed by Arkansas Tomato Shippers, LLC, Candy Brand, LLC, Charles Searcy. (Hashem, Hani) (Entered: 06/03/2010)
190 MEMORANDUM BRIEF in Support of 189 Response to Motion for Protective Order by Arkansas Tomato Shippers, LLC, Candy Brand, LLC, Charles Searcy. (Attachments: # 1 Exhibit A)(Hashem, Hani) (Entered: 06/04/2010)
191 ORDER re 187 NOTICE by Rosalino Perez−Benites re 186 Order on Motion to Quash, Order on Motion for Special Appearence, New Date and Time for Deposition and Motion to Modify Scheduling Order and Trial Date filed by Rosalino Perez−Benites. 8/30/2010 jury trial continued. Discovery deadline is extended until 8/2/2010 and the parties will have until 8/2/2010 to file any motions for summary judgment. Signed by Honorable Harry F. Barnes on June 8, 2010. (rwg) (Entered: 06/08/2010)
192 RESPONSE to Motion re 188 MOTION Motion for Court Approval of Proposed Class Action Notice and Exclusion Form filed by Arkansas Tomato Shippers, LLC, Candy Brand, LLC, Charles Searcy. (Hashem, Hani) (Entered: 06/09/2010)
TEXT ONLY ORDER finding as moot 170 Joint Motion to Modify Scheduling Order. Signed by Honorable Harry F. Barnes on June 14, 2010. (ljl) Modified on

Case 1:07-cv-01048-RTD document <docnum> filed <datefiled> page 19 of 26

06/17/2010 07/16/2010 07/22/2010 07/22/2010 08/02/2010 08/02/2010 08/02/2010 08/02/2010 08/02/2010 08/02/2010 08/02/2010 08/02/2010 08/02/2010 08/02/2010 08/02/2010
08/02/2010

6/15/2010 to edit text (cnn). (Entered: 06/14/2010)
193 REPLY to Response to Motion re 183 MOTION for Protective Order Limiting Discovery Directed at Opt−In Plaintiffs filed by Rosalino Perez−Benites. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 221)(Lapointe, Michelle) (Entered: 06/17/2010)
194 MOTION for Summary Judgment by Randy Clanton. (Thomas, III, Floyd) (Entered: 07/16/2010)
195 MEMORANDUM BRIEF in Support of 194 MOTION for Summary Judgment by Randy Clanton. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(cnn) (Entered: 07/22/2010)
196 STATEMENT OF FACTS in support of 194 MOTION for Summary Judgment by Randy Clanton. (cnn) (Entered: 07/22/2010)
197 Amended MOTION for Partial Summary Judgment by Arkansas Tomato Shippers, LLC, Candy Brand, LLC, Charles Searcy. (Hashem, Hani) (Entered: 08/02/2010)
198 MOTION to Amend/Correct Motion for Summary Judgment by Brooks Linesby. (Davidson, Jerry) (Entered: 08/02/2010)
199 MEMORANDUM BRIEF in Support Amended Motion for Summary Judgment by Brooks Linesby. (Davidson, Jerry) (Entered: 08/02/2010)
200 STATEMENT OF FACTS in Support of Amended Motion for Summary Judgment by Brooks Linesby. (Davidson, Jerry) (Entered: 08/02/2010)
201 MEMORANDUM BRIEF in Support of Amended Motion for Partial Summary Judgment by Charles Searcy. (Hashem, Hani) (Entered: 08/02/2010)
202 RESPONSE in Opposition re 156 First MOTION for Summary Judgment filed by Rosalino Perez−Benites. (Attachments: # 1 L.R. 56.1 Response to Statement of Facts)(Knoepp, James) (Entered: 08/02/2010)
203 MOTION for Partial Summary Judgment Related to Violations of the Fair Labor Standards Act and the H−2A Employment Contract by Rosalino Perez−Benites. (Knoepp, James) (Entered: 08/02/2010)
204 MEMORANDUM BRIEF in Support of 203 MOTION for Partial Summary Judgment Related to Violations of the Fair Labor Standards Act and the H−2A Employment Contract by Rosalino Perez−Benites. (Knoepp, James) (Entered: 08/02/2010)
205 MOTION for Summary Judgment Related to Employer Status and Liability of Charles Searcy, Randy Clanton, Brooks Lisenbey, and Arkansas Tomato Shippers, LLC by Rosalino Perez−Benites. (Knoepp, James) (Entered: 08/02/2010)
206 MEMORANDUM BRIEF in Support of 205 MOTION for Summary Judgment Related to Employer Status and Liability of Charles Searcy, Randy Clanton, Brooks Lisenbey, and Arkansas Tomato Shippers, LLC by Rosalino Perez−Benites. (Knoepp, James) (Entered: 08/02/2010)
207 STATEMENT OF FACTS in support of 203 MOTION for Partial Summary Judgment Related to Violations of the Fair Labor Standards Act and the H−2A Employment Contract, 205 MOTION for Summary Judgment Related to Employer Status and Liability of Charles Searcy, Randy Clanton, Brooks Lisenbey, and Arkansas Tomato Shippers, LLC by Rosalino Perez−Benites. (Attachments: # 1 Exhibit 4, # 2 Exhibit 7, # 3 Exhibit 10, # 4 Exhibit 13, # 5 Exhibit 14, # 6 Exhibit 17, # 7 Exhibit 20, # 8 Exhibit 21, # 9 Exhibit 26, # 10 Exhibit 27, # 11 Exhibit 28, # 12 Exhibit 29, # 13 Exhibit 30, # 14 Exhibit 38, # 15 Exhibit 41, # 16 Exhibit 42, # 17 Exhibit 43, # 18 Exhibit 44, # 19 Exhibit 46, # 20 Exhibit 47)(Knoepp, James) (Entered: 08/02/2010)
208 NOTICE by Rosalino Perez−Benites re 207 Statement of Facts,,, Notice of Filing Additional Exhibits (Attachments: # 1 Exhibit 50, # 2 Exhibit 96, # 3 Exhibit 97, # 4 Exhibit 98, # 5 Exhibit 99, # 6 Exhibit 100, # 7 Exhibit 101, # 8 Exhibit 102, # 9

Case 1:07-cv-01048-RTD document <docnum> filed <datefiled> page 20 of 26

08/02/2010
08/02/2010 08/02/2010 08/02/2010 08/02/2010 08/02/2010 08/02/2010 08/02/2010

Exhibit 103, # 10 Exhibit 104, # 11 Exhibit 105, # 12 Exhibit 106, # 13 Exhibit 107, # 14 Exhibit 108, # 15 Exhibit 109, # 16 Exhibit 110, # 17 Exhibit 112, # 18 Exhibit 113, # 19 Exhibit 114, # 20 Exhibit 115, # 21 Exhibit 116, # 22 Exhibit 118, # 23 Exhibit 119, # 24 Exhibit 120, # 25 Exhibit 121)(Knoepp, James) (Entered: 08/02/2010)
209 NOTICE by Rosalino Perez−Benites re 207 Statement of Facts,,, Notice of Filing Additional Exhibits (Attachments: # 1 Exhibit 122, # 2 Exhibit 125, # 3 Exhibit 126, # 4 Exhibit 127, # 5 Exhibit 128, # 6 Exhibit 130, # 7 Exhibit 133, # 8 Exhibit 134, # 9 Exhibit 135, # 10 Exhibit 136, # 11 Exhibit 137, # 12 Exhibit 139, # 13 Exhibit 140, # 14 Exhibit 141, # 15 Exhibit 142, # 16 Exhibit 143, # 17 Exhibit 145, # 18 Exhibit 146, # 19 Errata 147, # 20 Exhibit 152, # 21 Exhibit 153, # 22 Exhibit 158, # 23 Exhibit 159, # 24 Exhibit 160, # 25 Exhibit 162, # 26 Exhibit 163, # 27 Exhibit 164, # 28 Exhibit 165, # 29 Exhibit 166, # 30 Exhibit 167, # 31 Exhibit 168, # 32 Exhibit 169, # 33 Exhibit 171, # 34 Exhibit 172, # 35 Exhibit 174, # 36 Exhibit 175, # 37 Exhibit 176, # 38 Exhibit 177, # 39 Exhibit 188, # 40 Exhibit 191, # 41 Exhibit 192)(Knoepp, James) (Entered: 08/02/2010)
210 NOTICE by Rosalino Perez−Benites re 207 Statement of Facts,,, Notice of Filing Additional Exhibits (Attachments: # 1 Errata 193, # 2 Exhibit 194, # 3 Exhibit 195, # 4 Exhibit 197, # 5 Exhibit 198, # 6 Exhibit 200, # 7 Exhibit 202, # 8 Exhibit 203, # 9 Exhibit 206, # 10 Exhibit 208, # 11 Exhibit 210, # 12 Exhibit 211, # 13 Exhibit 217, # 14 Exhibit 218, # 15 Exhibit 219, # 16 Exhibit 220, # 17 Exhibit 221, # 18 Exhibit 222, # 19 Exhibit 223, # 20 Exhibit 224, # 21 Exhibit 228, # 22 Exhibit 229, # 23 Exhibit 230, # 24 Exhibit 231, # 25 Exhibit 232)(Knoepp, James) (Entered: 08/02/2010)
211 NOTICE by Rosalino Perez−Benites re 207 Statement of Facts,,, Notice of Filing Additional Exhibits (Attachments: # 1 Exhibit 233, # 2 Exhibit 235, # 3 Exhibit 236, # 4 Exhibit 243, # 5 Exhibit 244, # 6 Exhibit 261, # 7 Errata 262, # 8 Exhibit 264, # 9 Exhibit 265, # 10 Exhibit 266, # 11 Exhibit 267, # 12 Exhibit 268, # 13 Exhibit 269, # 14 Exhibit 270, # 15 Exhibit 271, # 16 Exhibit 272, # 17 Exhibit 273, # 18 Exhibit 274, # 19 Exhibit 287, # 20 Exhibit 288)(Knoepp, James) (Entered: 08/02/2010)
212 NOTICE by Rosalino Perez−Benites re 207 Statement of Facts,,, Notice of Filing Additional Exhibits (Attachments: # 1 Exhibit 298, # 2 Exhibit 299, # 3 Exhibit 301, # 4 Exhibit 302, # 5 Exhibit 303, # 6 Exhibit 304, # 7 Exhibit 305, # 8 Exhibit 311, # 9 Exhibit 312, # 10 Exhibit 319, # 11 Exhibit 320, # 12 Exhibit 322)(Knoepp, James) (Entered: 08/02/2010)
213 NOTICE by Rosalino Perez−Benites re 207 Statement of Facts,,, Notice of Filing Additional Exhibits (Attachments: # 1 Exhibit 324, # 2 Exhibit 325, # 3 Exhibit 326, # 4 Exhibit 327, # 5 Exhibit 328, # 6 Exhibit 329, # 7 Exhibit 330, # 8 Exhibit 331, # 9 Exhibit 332, # 10 Exhibit 333, # 11 Exhibit 334, # 12 Exhibit 335, # 13 Exhibit 336)(Knoepp, James) (Entered: 08/02/2010)
214 NOTICE by Rosalino Perez−Benites re 207 Statement of Facts,,, Notice of Filing Deposition Excerpts (Attachments: # 1 Krist Clanton Deposition Excerpts, # 2 Brooks Lisenbey Deposition Excerpts, # 3 Eva Denise Lisenbey Deposition Excerpts, # 4 Dale McGinnis Deposition Excerpts, # 5 A−W Produce, Inc./Danny Arnold Deposition Excerpts, # 6 Lowry Farms, Inc./Clay Lowry Deposition Excerpts, # 7 Solstice International/Ricardo Rodriguez, Jr. Deposition Excerpts)(Knoepp, James) (Entered: 08/02/2010)
215 NOTICE by Rosalino Perez−Benites re 207 Statement of Facts,,, Notice of Filing Deposition Excerpts (Attachments: # 1 Randy Clanton Deposition Excerpts, # 2 ILMC Deposition Excerpts, # 3 AgWorks/Daniel Bremer Deposition Excerpts, # 4 Pedro Tapia Deposition Excerpts, # 5 Froylan Tapia Deposition Excerpts)(Knoepp, James) (Entered: 08/02/2010)
216 NOTICE by Rosalino Perez−Benites re 207 Statement of Facts,,, Notice of Filing Deposition Excerpts (Attachments: # 1 Ascencion Fonseca Deposition Excerpts, # 2 Blas Burboa Leyva Deposition Excerpts, # 3 Diego Arriaga Guzman Deposition Excerpts, # 4 Jose Antonio Estrada Ascencio Deposition Excerpts, # 5 Jose Dolores Ramirez Reyes Deposition Excerpts, # 6 Maria Elena Martinez Maria Mireya Cortes Gonzalez Deposition ExcerptsDeposition Excerpts, # 7 Maria Elena

Case 1:07-cv-01048-RTD document <docnum> filed <datefiled> page 21 of 26

08/02/2010
08/02/2010
08/02/2010 08/12/2010 08/12/2010 08/17/2010 08/18/2010 08/30/2010 09/02/2010 09/03/2010 09/03/2010 09/03/2010 09/03/2010
09/03/2010
09/03/2010
09/03/2010

Martinez Morales Deposition Excerpts)(Knoepp, James) (Entered: 08/02/2010)
217 NOTICE by Rosalino Perez−Benites re 207 Statement of Facts,,, Notice of Filing Deposition Excerpts (Attachments: # 1 Candy Brand/ATS/Charles Searcy Dep. Volume I, part 1, # 2 Candy Brand/ATS/Charles Searcy Dep. Volume I, part 2)(Knoepp, James) (Entered: 08/02/2010)
218 NOTICE by Rosalino Perez−Benites re 207 Statement of Facts,,, Notice of Filing Deposition Excerpts (Attachments: # 1 Candy Brand/ATS/Charles Searcy Dep. Volume II, part 1, # 2 Candy Brand/ATS/Charles Searcy Dep. Volume II, part 2)(Knoepp, James) (Entered: 08/02/2010)
219 RESPONSE in Opposition re 154 MOTION for Partial Summary Judgment filed by Rosalino Perez−Benites. (Attachments: # 1 L.R. 56.1 Response to Statement of Facts)(Knoepp, James) (Entered: 08/02/2010)
220 RESPONSE by Rosalino Perez−Benites re 196 Statement of Facts filed by Defendant Randy Clanton. (Knoepp, James) (Entered: 08/12/2010)
221 RESPONSE to Motion re 194 MOTION for Summary Judgment filed by Rosalino Perez−Benites. (Knoepp, James) (Entered: 08/12/2010)
222 Joint MOTION for Extension of Time to File Response/Reply and Plaintiffs' Response to Defendants' Amended Motion for Summary Judgment by Brooks Linesby. (Davidson, Jerry) (Entered: 08/17/2010)
TEXT ONLY ORDER granting 222 Motion for Extension of Time to File Response/Reply to September 3, 2010. Signed by Honorable Harry F. Barnes on August 18, 2010. (ljl) (Entered: 08/18/2010)
223 ORDER denying 154 Motion for Partial Summary Judgment; denying 156 Motion for Summary Judgment; granting 161 Motion Rule 56(f). Signed by Honorable Harry F. Barnes on August 30, 2010. (cnn) (Entered: 08/30/2010)
224 REPLY to Response to Motion re 194 MOTION for Summary Judgment filed by Randy Clanton. (Thomas, III, Floyd) (Entered: 09/02/2010)
225 RESPONSE in Opposition re 197 Amended MOTION for Partial Summary Judgment filed by Rosalino Perez−Benites. (Knoepp, James) (Entered: 09/03/2010)
226 RESPONSE in Opposition re 198 MOTION to Amend/Correct Motion for Summary Judgment filed by Rosalino Perez−Benites. (Knoepp, James) (Entered: 09/03/2010)
227 RESPONSE by Rosalino Perez−Benites re 200 Statement of Facts. (Knoepp, James) (Entered: 09/03/2010)
228 RESPONSE to Motion re 205 MOTION for Summary Judgment Related to Employer Status and Liability of Charles Searcy, Randy Clanton, Brooks Lisenbey, and Arkansas Tomato Shippers, LLC, 203 MOTION for Partial Summary Judgment Related to Violations of the Fair Labor Standards Act and the H−2A Employment Contract filed by Randy Clanton. (Thomas, III, Floyd) (Entered: 09/03/2010)
229 RESPONSE by Candy Brand, LLC re 203 MOTION for Partial Summary Judgment Related to Violations of the Fair Labor Standards Act and the H−2A Employment Contract Defendants' Joint Response to Plaintiffs' Motion for Partial Summary Judgment Related to Violations of the Fair Labor Standards Act and the H−2A Employment Contract. (Hashem, Hani) (Entered: 09/03/2010)
230 RESPONSE in Opposition re 205 MOTION for Summary Judgment Related to Employer Status and Liability of Charles Searcy, Randy Clanton, Brooks Lisenbey, and Arkansas Tomato Shippers, LLC filed by Brooks Linesby. (Davidson, Jerry) (Entered: 09/03/2010)
231 STATEMENT OF FACTS (Statement of Disputed Material Facts) in response to Plaintiffs' Statementof Undisputed Material Facts in support of their Motion for Partial Summary Judgment by Randy Clanton. (Davidson, Jerry) (Entered: 09/03/2010)

Case 1:07-cv-01048-RTD document <docnum> filed <datefiled> page 22 of 26

09/03/2010 09/07/2010 09/07/2010
09/08/2010 09/08/2010 09/08/2010 09/08/2010 09/08/2010 09/08/2010 09/08/2010 09/08/2010 09/09/2010 09/10/2010 09/24/2010

232 MEMORANDUM BRIEF in Support of 229 Response, to Motion for Partial Summary Judgment Related to Violations of the FLSA &H−2A Employment Contract by Arkansas Tomato Shippers, LLC, Candy Brand, LLC, Randy Clanton, Brooks Linesby, Charles Searcy. (Hashem, Hani) (Entered: 09/03/2010)
233 MEMORANDUM BRIEF in Support of 229 Response, (Amended) by Arkansas Tomato Shippers, LLC, Candy Brand, LLC, Randy Clanton, Brooks Linesby, Charles Searcy. (Hashem, Hani) (Entered: 09/07/2010)
234 AFFIDAVIT of Supplemental Affidavit of Charles Searcy filed by Arkansas Tomato Shippers, LLC, Candy Brand, LLC, Randy Clanton, Brooks Linesby, Charles Searcy re 233 Memorandum Brief in Support of Response to Motion for Partial Summary Judgment related to violations of the FLSA &H−2A employment contract. (Hashem, Hani) (Entered: 09/07/2010)
235 APPENDIX by Defendants Arkansas Tomato Shippers, LLC, Candy Brand, LLC, Randy Clanton, Brooks Linesby, Charles Searcy re 233 Memorandum Brief in Support. (Attachments: # 1 Deposition − part 1)(Hashem, Hani) (Entered: 09/08/2010)
236 APPENDIX by Defendants Arkansas Tomato Shippers, LLC, Candy Brand, LLC, Randy Clanton, Brooks Linesby, Charles Searcy re 233 Memorandum Brief in Support. (Attachments: # 1 Deposition − part 2)(Hashem, Hani) (Entered: 09/08/2010)
237 APPENDIX by Defendants Arkansas Tomato Shippers, LLC, Candy Brand, LLC, Randy Clanton, Brooks Linesby, Charles Searcy re 233 Memorandum Brief in Support. (Attachments: # 1 Deposition of Daniel Edwin Arnold)(Hashem, Hani) Modified on 9/9/2010 to create document link (cnn). (Entered: 09/08/2010)
238 APPENDIX by Defendants Arkansas Tomato Shippers, LLC, Candy Brand, LLC, Randy Clanton, Brooks Linesby, Charles Searcy re 233 Memorandum Brief in Support. (Attachments: # 1 Deposition of Charles Searcy (4/20/10) pt. 1)(Hashem, Hani) (Entered: 09/08/2010)
239 APPENDIX by Defendants Arkansas Tomato Shippers, LLC, Candy Brand, LLC, Randy Clanton, Brooks Linesby, Charles Searcy re 233 Memorandum Brief in Support. (Attachments: # 1 Deposition of Charles Searcy (4−21−10) Pt. 1)(Hashem, Hani) (Entered: 09/08/2010)
240 APPENDIX by Defendants Arkansas Tomato Shippers, LLC, Candy Brand, LLC, Randy Clanton, Brooks Linesby, Charles Searcy re 233 Memorandum Brief in Support. (Attachments: # 1 Deposition of Charles Searcy (4−20−10) pt. 2)(Hashem, Hani) (Entered: 09/08/2010)
241 APPENDIX by Defendants Arkansas Tomato Shippers, LLC, Candy Brand, LLC, Randy Clanton, Brooks Linesby, Charles Searcy re 233 Memorandum Brief in Support. (Attachments: # 1 Deposition of Charles Searcy (4/21/10) pt. 2)(Hashem, Hani) (Entered: 09/08/2010)
242 RESPONSE by Arkansas Tomato Shippers, LLC, Candy Brand, LLC, Charles Searcy re 207 Statement of Facts,,,. (Hashem, Hani) (Entered: 09/08/2010)
243 RESPONSE in Opposition re 205 MOTION for Summary Judgment Related to Employer Status and Liability of Charles Searcy, Randy Clanton, Brooks Lisenbey, and Arkansas Tomato Shippers, LLC filed by Charles Searcy. (Hashem, Hani) (Entered: 09/09/2010)
244 RESPONSE by Brooks Linesby re 227 Response to Plaintiff's Statement Undisputed Facts. (Davidson, Jerry) (Entered: 09/10/2010)
245 REPLY to Response to Motion re 205 MOTION for Summary Judgment Related to Employer Status and Liability of Charles Searcy, Randy Clanton, Brooks Lisenbey, and Arkansas Tomato Shippers, LLC filed by Rosalino Perez−Benites. (Attachments: # 1 Exhibit 337, # 2 Exhibit 338, # 3 Exhibit 339, # 4 Exhibit 340)(Knoepp, James) (Entered: 09/24/2010)

Case 1:07-cv-01048-RTD document <docnum> filed <datefiled> page 23 of 26

09/27/2010
10/26/2010 10/27/2010 11/17/2010 01/19/2011 04/04/2011 05/05/2011 05/06/2011 05/20/2011
05/20/2011 05/24/2011 06/17/2011 06/17/2011 06/23/2011 06/23/2011 07/13/2011

246 REPLY to Response to Motion re 203 MOTION for Partial Summary Judgment Related to Violations of the Fair Labor Standards Act and the H−2A Employment Contract filed by Rosalino Perez−Benites. (Attachments: # 1 Exhibit 341, # 2 Exhibit 342, # 3 Exhibit 343, # 4 Exhibit 344)(Knoepp, James) (Entered: 09/27/2010)
247 ORDER granting 188 Motion approval of class action notice and exclusion form. Signed by Honorable Harry F. Barnes on October 26, 2010. (cnn) (Entered: 10/26/2010)
248 ORDER granting 183 Motion for Protective Order Limiting Discovery Directed at Opt−In plaintiffs. Signed by Honorable Harry F. Barnes on October 27, 2010. (cnn) (Entered: 10/27/2010)
249 NOTICE by Rosalino Perez−Benites of completion of mailing Notices of Class Action Lawsuit and Exclusion Forms (Knoepp, James) (Entered: 11/17/2010)
250 ORDER directing clerk to mail any exclusion forms received in this case to James M. Knoepp, Southern Poverty Law Center, 233 Peachtree Street NE Suite 2150, Atlanta, GA 30303. Signed by Honorable Harry F. Barnes on January 19, 2011. (cnn) (Entered: 01/19/2011)
TEXT ONLY MEMO OF REASSIGNMENT. Case reassigned to Honorable Robert T. Dawson. Honorable Harry F. Barnes no longer assigned to the case. (rwg) (Entered: 04/04/2011)
TEXT ONLY ORDER Setting/Resetting Hearings: Status Conference set for 5/20/2011 01:00 PM in El Dorado −− 2nd flr before Honorable Robert T. Dawson.. Signed by Honorable Robert T. Dawson on May 5, 2011. (ms) (Entered: 05/05/2011)
251 NOTICE by Rosalino Perez−Benites re 250 Order Report to Court of Individuals Who Submitted Forms to Exclude Themselves from Rule 23 Classes (Attachments: # 1 Exhibit A (opt−out forms))(Knoepp, James) (Entered: 05/06/2011)
252 MEMORANDUM OPINION AND ORDER denying 194 Motion for Summary Judgment; denying 197 Motion for Partial Summary Judgment; denying 198 Amended Motion for Summary Judgment; granting 203 Motion for Partial Summary Judgment; granting 205 Motion for Summary Judgment; Status Conference being held 5/20/11 to discuss remaining issues for trial. Signed by Honorable Robert T. Dawson on May 20, 2011. (cnn) (Entered: 05/20/2011)
TEXT ONLY Minute Entry for proceedings held before Honorable Robert T. Dawson: In Chambers Status Conference held on 5/20/2011. (dkg) (Entered: 06/09/2011)
253 SCHEDULING ORDER: Jury Trial set for 1/23/2012 09:00 AM in El Dorado −− 2nd flr before Honorable Robert T. Dawson. Signed by Honorable Robert T. Dawson on May 24, 2011. (cnn) (Entered: 05/24/2011)
254 MOTION for Reconsideration re 252 Order on Motion for Summary Judgment, Order on Motion for Partial Summary Judgment, Order on Motion to Amend/Correct,,,,,,, by Brooks Linesby. (Davidson, Jerry) (Entered: 06/17/2011)
255 MEMORANDUM BRIEF in Support of 254 MOTION for Reconsideration re 252 Order on Motion for Summary Judgment, Order on Motion for Partial Summary Judgment, Order on Motion to Amend/Correct,,,,,,, by Brooks Linesby. (Attachments: # 1 Exhibit, # 2 Exhibit)(Davidson, Jerry) (Entered: 06/17/2011)
256 ORDER directing parties to submit briefs − see document for specifics. Signed by Honorable Robert T. Dawson on June 23, 2011. (cnn) (Entered: 06/23/2011)
257 ORDER denying 254 Motion for Reconsideration. Signed by Honorable Robert T. Dawson on June 23, 2011. (cnn) (Entered: 06/23/2011)
258 Joint MOTION for Extension of Time to File Briefs and Proposal Re: Damages by Rosalino Perez−Benites. (Knoepp, James) (Entered: 07/13/2011)

Case 1:07-cv-01048-RTD document <docnum> filed <datefiled> page 24 of 26

07/14/2011
08/12/2011 08/15/2011
08/29/2011 08/30/2011 08/31/2011 09/06/2011 10/07/2011 10/07/2011 10/31/2011
11/10/2011
11/28/2011 11/28/2011 11/29/2011

TEXT ONLY ORDER granting 258 Join Motion for Extension of Time to File. Parties shall have until August 15, 2011, to submit briefs on the three issues identified in the Court's Order of June 23, 2011. Plaintiffs shall have until September 7, 2011, to submit their proposal on damages. Signed by Honorable Robert T. Dawson on July 14, 2011. (eem) (Entered: 07/14/2011)
259 MEMORANDUM BRIEF in Support in Compliant with Court's Order of June 23, 2011 by Arkansas Tomato Shippers, LLC, Candy Brand, LLC, Randy Clanton, Brooks Linesby, Charles Searcy. (Hashem, Hani) (Entered: 08/12/2011)
260 MEMORANDUM BRIEF in Support of 256 Order Directing Filing of Briefs by Rosalino Perez−Benites. (Attachments: # 1 Exhibit A − USDOL Amicus Brief in Ramos−Barrientos v. Bland, # 2 Exhibit B − excerpts from deposition of J. Antonio Estrada Ascencio, # 3 Exhibit C − excerpts from deposition of D. Arriaga Guzman, # 4 Exhibit D − excerpts from deposition of R. Clanton, # 5 Affidavit of James Knoepp, # 6 Affidavit of Michelle Lapointe)(Knoepp, James) (Entered: 08/15/2011)
261 RESPONSE by Rosalino Perez−Benites re 259 Memorandum Brief in Support, 256 Order Response by Plaintiffs to Defendants' Brief Re: Court's Order of June 23, 2011. (Knoepp, James) (Entered: 08/29/2011)
262 RESPONSE by Brooks Linesby re 256 Order, 260 Memorandum Brief in Support, on the Court's June 23, 2011 Order. (Davidson, Jerry) (Entered: 08/30/2011)
263 MOTION for Extension of Time to File Proposal on How Damages Will be Determined by Rosalino Perez−Benites. (Knoepp, James) (Entered: 08/31/2011)
TEXT ONLY ORDER granting 263 Motion for Extension of Time to File. Plaintiffs shall have until October 7, 2011 to submit their brief on damages. Signed by Honorable Robert T. Dawson on September 6, 2011. (eem) (Entered: 09/06/2011)
264 MOTION for Settlement Joint Motion for Preliminary Approval of Class Action Settlement Agreement and Notice to Class Members by Rosalino Perez−Benites. (Attachments: # 1 Stipulation of Class Action Settlement Agreement)(Knoepp, James) (Entered: 10/07/2011)
265 MEMORANDUM BRIEF in Support of 264 MOTION for Settlement Joint Motion for Preliminary Approval of Class Action Settlement Agreement and Notice to Class Members by Rosalino Perez−Benites. (Knoepp, James) (Entered: 10/07/2011)
266 Order directing the Plaintiffs to submit their brief on damages, as previously ordered on September 6, 2011, within ten (10) days. Plaintiffs' brief shall therefore be due on November 10, 2011. A jury trial of this matter remains set for the week of January 23, 2012. Signed by Honorable Robert T. Dawson on October 31, 2011. (mfr) (Entered: 10/31/2011)
267 MEMORANDUM BRIEF in Support of 266 Order Directing Response, 256 Order Plaintiffs' Brief on Damages in Response to Court Orders Dated June 23, 2011 and October 31, 2011 by Rosalino Perez−Benites. (Attachments: # 1 Exhibit 345 (Jorge J. Rivero Expert Report), # 2 Exhibit 346 (Damages Summary Excerpt))(Knoepp, James) (Entered: 11/10/2011)
268 Joint MOTION for Extension of Time to File Response/Reply to Plaintiffs' Issue of Damages by plaintiffs and separate defendant, Brooks Linesby. (Davidson, Jerry) Modified on 11/29/2011 to add filers (cnn). (Entered: 11/28/2011)
269 NOTICE by Rosalino Perez−Benites re 251 Notice (Other) Report to Court of Receipt of Additional Opt−Out Forms (Attachments: # 1 Additional Opt−Out Forms)(Knoepp, James) (Entered: 11/28/2011)
TEXT ONLY ORDER granting 268 Motion for Extension of Time to File Response/Reply. Defendant has until December 1, 2011 to respond. Signed by Honorable Robert T. Dawson on November 29, 2011. (ee) (Entered: 11/29/2011)

Case 1:07-cv-01048-RTD document <docnum> filed <datefiled> page 25 of 26

12/01/2011 12/05/2011 12/19/2011
12/23/2011 12/23/2011 12/28/2011 12/28/2011 12/29/2011 01/10/2012 01/11/2012 03/16/2012 03/16/2012 03/26/2012
03/27/2012 04/09/2012 10/18/2012

270 RESPONSE by Brooks Linesby re 266 Order Directing Response, 256 Order to Brief Damages. (Attachments: # 1 Exhibit A)(Davidson, Jerry) (Entered: 12/01/2011)
271 ORDER: Telephonic Hearing set for 12/19/2011 03:00 PM before Honorable Robert T. Dawson. Signed by Honorable Robert T. Dawson on December 5, 2011. (cnn) (Entered: 12/05/2011)
272 ORDER directing parties to file proposed settlement agreement for Court's review on or before noon on Friday, December 23, 2011. New deadline for pre−trial disclosures is set for December 29, 2011 should case not be resolved. Trial remains set beginning week of 1/23/12. Signed by Honorable Robert T. Dawson on December 19, 2011. (cap) (Entered: 12/19/2011)
273 Joint MOTION for Settlement Joint Motion for Preliminary Approval of Class Action Settlement by Rosalino Perez−Benites. (Attachments: # 1 Stipulation of Class Action Settlement Agreement)(Knoepp, James) (Entered: 12/23/2011)
274 MEMORANDUM BRIEF in Support of 273 Joint MOTION for Settlement Joint Motion for Preliminary Approval of Class Action Settlement by Rosalino Perez−Benites. (Knoepp, James) (Entered: 12/23/2011)
ORDER finding as moot 264 Motion for Settlement. The parties advised the Court that this proposed settlement was withdrawn. Signed by Honorable Robert T. Dawson on December 28, 2011. (ee) (Entered: 12/28/2011)
275 NOTICE by Rosalino Perez−Benites re 273 Joint MOTION for Settlement Joint Motion for Preliminary Approval of Class Action Settlement Notice of Filing Named Plaintiffs' Signature Pages (Attachments: # 1 Plaintiffs' Signature Pages)(Knoepp, James) (Entered: 12/28/2011)
276 ORDER granting 273 Joint Motion for Preliminary Approval of Proposed Class Action Settlement; Trial cancelled; Fairness Hearing set for 3/27/2012 09:00 AM in El Dorado −− 2nd flr before Honorable Robert T. Dawson. Signed by Honorable Robert T. Dawson on December 29, 2011. (cnn) (Entered: 12/29/2011)
277 NOTICE by Rosalino Perez−Benites of Completion of Mailing of Notice of Proposed Class Action Settlement and Claim Forms to Class Members (Knoepp, James) (Entered: 01/10/2012)
278 NOTICE by Brooks Linesby NOTICE OF DEFENDANTS COMPLETION OF MAILING (Davidson, Jerry) (Entered: 01/11/2012)
279 MOTION for Final Approval of Class Action Settlement and Entry of Final Judgment by Rosalino Perez−Benites. (Knoepp, James) (Entered: 03/16/2012)
280 MEMORANDUM BRIEF in Support of 279 MOTION for Final Approval of Class Action Settlement and Entry of Final Judgment by Rosalino Perez−Benites. (Attachments: # 1 Declaration of James Knoepp)(Knoepp, James) (Entered: 03/16/2012)
281 NOTICE by Rosalino Perez−Benites of Filing Mortgages and Security Agreements Related to Class Action Settlement Agreement (Attachments: # 1 Exhibit 1 (Drew Acceptance Company, Inc. Mortgage), # 2 Exhibit 2 (Clanton Farms, LLC Mortgage), # 3 Exhibit 3 (Randy Clanton and Judy Clanton Mortgage), # 4 Exhibit 4 (Clanton Farms, LLC Security Agreement), # 5 Exhibit 5 (Pack−Right, LLC Security Agreement))(Knoepp, James) (Entered: 03/26/2012)
282 Minute Entry for hearing on Proposed Class Action Settlement proceedings held before Honorable Robert T. Dawson: In Court Hearing held on 3/27/2012. (Court Reporter Rick Congdon) (sh) (Entered: 03/27/2012)
283 ORDER granting 279 Motion Final Approval of Class Action Settlement and Entry of Final Judgment; Case dismissed with prejudice subject to terms of settlement agreement. Signed by Honorable Robert T. Dawson on April 9, 2012. (cnn) (Entered: 04/09/2012)
284 MOTION For Entry of Judgment Against Randy Clanton, Candy Brand, LLC, and Arkansas Tomato Shippers, LLC for Breach of Settlement Agreement by Rosalino

Case 1:07-cv-01048-RTD document <docnum> filed <datefiled> page 26 of 26

10/18/2012 10/22/2012 10/25/2012 11/21/2012 12/10/2012 08/06/2013 08/23/2013 09/04/2013 09/04/2013

Perez−Benites. (Knoepp, James) (Entered: 10/18/2012)
285 MEMORANDUM BRIEF in Support of 284 MOTION For Entry of Judgment Against Randy Clanton, Candy Brand, LLC, and Arkansas Tomato Shippers, LLC for Breach of Settlement Agreement by Rosalino Perez−Benites. (Attachments: # 1 Declaration of James M. Knoepp)(Knoepp, James) (Entered: 10/18/2012)
TEXT ONLY ORDER REFERRING MOTION: 284 MOTION For Entry of Judgment Against Randy Clanton, Candy Brand, LLC, and Arkansas Tomato Shippers, LLC for Breach of Settlement Agreement filed by Rosalino Perez−Benites. Signed by Honorable Robert T. Dawson on October 22, 2012. Motions referred to Barry A. Bryant.(pn) (Entered: 10/22/2012)
286 ORDER re 284 MOTION For Entry of Judgment Against Randy Clanton, Candy Brand, LLC, and Arkansas Tomato Shippers, LLC for Breach of Settlement Agreement filed by Rosalino Perez−Benites; Court declines to impose an expedited briefing schedule; defendants' response should be filed by 11/5/12. Signed by Honorable Barry A. Bryant on October 25, 2012. (cnn) (Entered: 10/25/2012)
287 REPORT AND RECOMMENDATIONS re 284 MOTION For Entry of Judgment Against Randy Clanton, Candy Brand, LLC, and Arkansas Tomato Shippers, LLC for Breach of Settlement Agreement filed by Rosalino Perez−Benites. Objections to RRdue by 12/10/2012. Signed by Honorable Barry A. Bryant on November 21, 2012. (jn) (Entered: 11/21/2012)
288 SUGGESTION OF BANKRUPTCY Upon the Record as to Randy Clanton. (cnn) (Entered: 12/10/2012)
289 ORDER re 284 MOTION For Entry of Judgment Against Randy Clanton, Candy Brand, LLC, and Arkansas Tomato Shippers, LLC for Breach of Settlement Agreement filed by Rosalino Perez−Benites and 288 Suggestion of Bankruptcy filed by Randy Clanton; parties directed submit a status report by 8/23/13. Signed by Honorable Robert T. Dawson on August 6, 2013. (cnn) (Entered: 08/06/2013)
290 STATUS REPORT Regarding Randy Clanton Bankruptcy Proceeding and Plaintiffs' Motion for Entry of Judgment as to Certain Defendants by Randy Clanton, Rosalino Perez−Benites. (Knoepp, James) (Entered: 08/23/2013)
291 ORDER ADOPTING REPORT AND RECOMMENDATIONS re 287 ; granting 284 Motion for Entry of Judgment for Breach of Settlement Agreement. (proceedings against separate defendant Randy Clanton remain subject to bankruptcy stay). Signed by Honorable Robert T. Dawson on September 4, 2013. (cnn) (Entered: 09/04/2013)
292 JUDGMENT in favor of plaintiffs against separate defendamts Arkansas Tomato Shippers, LLC, Candy Brand, LLC in the amount of $790,625.00; interest at the rate of 5.00% from 1/1/12 until paid; in addition to costs and attorney fees to be calculated at the time judgment is collected. Signed by Honorable Robert T. Dawson on September 4, 2013. (cnn) (Entered: 09/04/2013)