IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

MAURICE BROWN, et al., ) 

 ) 

 Plaintiffs, ) 

 ) Case No. 12 CV 5710

 v. ) 

 ) Judge Robert M. Dow, Jr. 

CLUB ASSIST ROAD SERVICES U.S., INC., ) 

 ) 

 Defendant. ) 

 ) 

 

MEMORANDUM OPINION AND ORDER 

 Before the Court are Plaintiffs’ motion for preliminary injunction, to maintain documents 

under seal, and to extend opt-in period [105] and motion to supplement the record with affidavits 

in support of their motion for preliminary injunction [114]. For the reasons stated below, the 

Court grants the motion to supplement [114] and denies the motion for preliminary injunction, to 

maintain documents under seal, and to extend opt-in period [105]. Plaintiffs are given until 

5/21/2014 to show cause why the names of the opt-in Plaintiffs should remain under seal. This 

matter is set for status on 5/28/2014 at 10:30 a.m. The parties should be prepared to discuss 

Plaintiffs’ outstanding motion to strike Defendant’s third-party complaint [75] with the Court at 

that time. 

I. Background 

 Named Plaintiffs Maurice Brown, Kenith Rodgers, Keith Rodgers, Kaywan Palmer, 

Byron Jackson, Rushdi Rashid, and Nasir Rashid (collectively “Plaintiffs”) are emergency road 

service drivers. Each of them has created a business entity, which the parties refer to as “service 

delivery companies” or “SDCs,” that has contracted with Defendant Club Assist Road Services 

U.S., Inc. (“Defendant” or “Club Assist”) to provide emergency road services to members of the 
2 

American Automobile Association (“AAA”). Under the contracts, Defendant routes service 

calls to SDCs and pays them on a per-job basis. 

 Plaintiffs, the proprietors of the SDCs, contend that they are “employees” of Defendant 

such that they are entitled to be paid a minimum wage under the Fair Labor Standards Act 

(“FLSA”) and similar state laws, and that they should be entitled to participate in Defendant’s 

employee benefits programs. Plaintiffs also contend that Defendant “suspended, terminated, and 

otherwise discriminated against each of [them] in retaliation for their involvement in the instant 

litigation.” [78] ¶ 204. Defendant disputes that Plaintiffs are its “employees.” Defendant 

contends that it contracted with the SDCs, not with Plaintiffs, and therefore the SDCs (or 

Plaintiffs, who run them) bear responsibility for Plaintiffs’ allegedly inadequate earnings. 

Defendant also denies retaliating against Plaintiffs. 

 Plaintiffs filed the instant lawsuit in on July 20, 2012, see [1], and subsequently obtained 

conditional certification to proceed as a collective action under the FLSA. See [53]. The 

litigation has been contentious. Plaintiffs and Defendant were unable to agree on a notice and 

consent form to be sent to prospective opt-in plaintiffs. See [66]; [82]. Defendant filed a thirdparty complaint against Plaintiffs’ SDCs, [65], which Plaintiffs have moved to strike [75]. 

Plaintiffs now contend that Defendant retaliated against them for filing suit and is intimidating 

potential opt-in plaintiffs to prevent them from joining or participating in the suit. Plaintiffs seek 

a preliminary injunction to enjoin the alleged retaliatory behavior [105]. Plaintiffs also request 

that the Court maintain the opt-in consent forms under seal and extend the opt-in period. See 

[105]. 

 The Court took briefing on Plaintiffs’ motion for preliminary injunction, see [110]; [111], 

and held a hearing on the motion on March 12, 2014. After the hearing, Plaintiffs moved to 
3 

supplement the record with additional affidavits in support of their motion for preliminary 

injunction [114]. Defendant opposes the motion to supplement as untimely under Federal Rule 

of Civil Procedure 6(c) and Local Rule 78.4. See [118]. 

II. Discussion 

A. Motion to Supplement [114] 

 

 1. Background 

The day before a scheduled status hearing in this matter, Plaintiffs filed a motion for 

preliminary injunction, to maintain documents under seal, and to extend opt-in period [105]. 

Plaintiffs did not file a brief in support of their motion at that time. At the status hearing the next 

day, the Court set a briefing schedule that gave Plaintiffs one week to file their memorandum in 

support. See [108]. The Court gave Defendant two weeks to respond. See id. Plaintiffs’ timely 

filed brief indicated their intention to “show through live testimony and affidavits at the hearing 

on this motion” that Defendant “has retaliated against everyone to whom it knows to have joined 

the suit.” [110] at 1. Plaintiffs did not attach any affidavits to their brief, however. See id. 

Defendant timely filed its response brief, see [111] and appended a lengthy affidavit from 

Rodney Walbancke, its General Manager, see [111-2], an affidavit from one of its business 

managers, Charles Day, see [111-3], an affidavit from one of its field coordinators, Robert 

Pivirotto, see [111-4], and various other supporting exhibits. 

 The day before the scheduled hearing, pursuant to the Court’s order, see [108], the parties 

jointly submitted a witness list. See [112]. Plaintiffs indicated that they had “disclosed * * * 

five witnesses to opposing counsel.” Id. All but one of these witnesses were named Plaintiffs. 

See id. Defendant indicated that it might call affiant Rodney Walbancke. See id. 

 At the hearing, Plaintiffs’ counsel informed the Court that Plaintiffs planned to call three 
4 

of their five identified witnesses: named Plaintiffs Keith Rodgers and Maurice Brown, and 

“comparator” opt-in Plaintiff Robert Moore. See Tr. 15-16, Mar. 12, 2014. Plaintiffs’ counsel 

also informed the Court that he had prepared some affidavits of Plaintiffs who were not in 

attendance at the hearing. Counsel expressly noted that affidavits were “from each of the 

remaining named plaintiffs basically responding to the allegations already in Mr. Walbancke’s” 

affidavit. Tr. 18-19, Mar. 12, 2014. He did not tender the affidavits at that time. Rather, he 

indicated that “at some point I would want to introduce those to the court” and sought 

“guidance” about how to do so. Tr. 11-12, Mar. 12, 2014. The Court directed Plaintiffs to file a 

motion for leave to supplement the oral record with the proposed affidavits. See id. at 12. 

Defense counsel objected to the submission of affidavits as untimely under Federal Rule of Civil 

Procedure 6 and Local Rule 78.4. See id. He also averred that Plaintiffs effectively had 

deprived Defendant of the opportunity to respond to the testimony or cross-examine the 

declarants at the hearing. See id. 

 The Court noted Defendant’s objections and stated that it would “make sense” for 

Plaintiffs to “file a motion for leave to supplement the preliminary injunction oral record with 

these affidavits.” Id. That way, the Court continued, Defendant’s counsel “can have a look at 

them and decide number one, whether they’re objectionable, and number two, whether he needs 

some sort of counter affidavit to counter them or whether he just wants to stand on his objections 

under the Rules.” Id. The Court added that it understood that “you can’t get everybody here and 

you want to put some stuff in the record,” but noted that “it’s just a matter of letting your 

adversary test that.” Id. at 13. Plaintiffs requested and were given one week in which to file 

their motion, and Defendant was given two weeks to submit a response. Id. at 171. Plaintiffs 

filed their motion within the allotted time and attached six affidavits to it. See [114-1]-[114-6]. 
5 

Five of the affidavits were from named Plaintiffs, two of whom were included on the witness list 

disclosed to Defendant. See [114-1]-[114-5]. The sixth was from an opt-in Plaintiff from 

Connecticut and included four exhibits regarding the affiant’s interactions with the Connecticut 

Department of Labor. See [114-6]. Defendant filed a response [118], and attached rebuttal 

affidavits from Rodney Walbancke and James Connelly, as well as additional exhibits. See 

[118-1]-[118-2]. 

 2. Analysis 

 Defendant argues that the motion to supplement should be denied because Plaintiffs’ 

proffered affidavits are untimely under and subvert the purposes of Federal Rule of Civil 

Procedure 6(c)(2) and Local Rule 78.4. Defendant’s arguments have some merit, but Defendant 

in fact responded to Plaintiffs’ belated affidavits. The parties thus are in the positions in which 

they would have been had Plaintiffs complied with Rule 6(c)(2) and Local Rule 78.4 in the first 

instance. As a result, denial of Plaintiffs’ motion to supplement for failure to comply with the 

applicable procedural rules is not warranted. Instead, the Court grants the motion to supplement 

[114], and also will consider the rebuttal evidence that Defendant submitted in response thereto. 

See [118-1]-[118-2]. 

 Rule 6(c)(2) provides that “[a]ny affidavit supporting a motion must be served with the 

motion,” and that “[e]xcept as Rule 59(c) provides otherwise, any opposing affidavit must be 

served at least 7 days before the hearing, unless the court permits service at another time.” Local 

Rule 78.4 similarly provides that “[w]here evidentiary matter, in addition to affidavits permitted 

or required under Rules 5 or 6 under the Federal Rules of Civil Procedure, will be submitted in 

support of a motion, copies thereof shall be served with the notice of motion.” These rules are 

animated by the concern that a party opposing a motion may not have an adequate opportunity to 
6 

respond to belatedly presented evidence. See 11A Charles Alan Wright, Arthur R. Miller & 

Mary Kay Kane, FEDERAL PRACTICE AND PROCEDURE § 2949, at 237 (2013); see also Peters v. 

Lincoln Elec. Co., 285 F.3d 456, 476 (6th Cir. 2002) (“Fed. R. Civ. Pro. 6’s requirement that 

cause be shown for affidavits not attached to the original motion, is designed to prevent the 

moving party from springing new facts on the nonmoving party ‘when it is too late for that party 

to contest them.’” (quoting RepublicBank Dallas, N.A. v. First Wis. Nat’l Bank of Milwaukee, 

636 F. Supp. 1470, 1472 (E.D. Wis. 1986))); Marshall Durbin Farms, Inc. v. Nat’l Farmers 

Org., Inc., 446 F.2d 353, 356 (5th Cir. 1971) (“The right of defendants to present controverting 

factual data is illusory unless there is adequate notice of plaintiffs’ claims.”). “Although the 

timing requirements are applied flexibly in practice, the underlying principle of giving the party 

opposing the application notice and an opportunity to respond is carefully honored by the 

courts.” Wright, Miller & Kane § 2949. 

 Here, it is unclear why Plaintiffs did not procure the affidavits and accompanying 

evidence and furnish them to Defendant in conformity with the strictures of Rule 6(c)(2) and 

Local Rule 78.4. Plaintiffs instead provided the affidavits and evidence shortly after the 

preliminary injunction hearing, “basically responding to the allegations already in Mr. 

Walbancke’s” affidavit. In this sense, Plaintiffs proceeded as though they were submitting a 

reply brief in support of their motion – a reply brief accompanied by new evidence. Then, as 

though it were submitting a surreply, Defendant countered and responded to Plaintiffs’ new 

evidence. Cf. Almy v. Kickert Sch. Bus Line, Inc., 2013 WL 80367, at *15 (N.D. Ill. Jan. 7, 

2013) (granting leave to file surreply where reply brief “did not raise new arguments but was 

accompanied by exhibits not previously submitted or discussed”). 

 Although it would have been preferable for this exchange to have occurred in advance of 
7 

the hearing, the Court is unable to discern any prejudice to Defendant that occurred as a result of 

Plaintiffs’ belated evidentiary production. This case is not like Marshall Durbin Farms, in which 

the Fifth Circuit reversed a grant of a preliminary junction because plaintiffs dumped more than 

175 pages of affidavits on defendants at the beginning of the preliminary injunction hearing. See 

Marshall Durbin Farms, Inc. v. Nat’l Farmers Org., Inc., 446 F.2d 353, 357 (5th Cir. 1971). In 

Marshall Durbin Farms, “[t]here was no way in which the defendants, in a hearing that was 

required to be held and completed that day, could controvert with opposing affidavits or live 

testimony the details of the dozens of newly revealed occurrences.” Id. “Indeed, defendants 

had no opportunity even to determine if evidence existed that might contradict the new 

affidavits.” Id. Here, by contrast, Defendant had two weeks to evaluate Plaintiffs’ new 

affidavits – in the context of what had been presented at the hearing, no less – and counter them 

with evidence of its own. Moreover, Defendant had a chance to cross-examine some of 

Plaintiffs’ affiants at the hearing. The situation may not have been ideal, but the Court is 

satisfied that Defendant’s rights will be sufficiently protected if the Court considers the nonconclusory portions of both Plaintiffs’ and Defendant’s post-hearing evidentiary submissions. 

 B. Motion for Preliminary Injunction, to Maintain Documents Under Seal, and 

 to Extend Opt-in Period [105]

 1. Background 

It is undisputed that Defendant ceased doing business with several of Plaintiffs’ SDCs 

after this lawsuit was initiated. Plaintiffs assert that Defendant stopped doing business with their 

SDCs in retaliation for Plaintiffs’ prosecution of this lawsuit and seek to enjoin Defendant “from 

terminating or otherwise retaliating against any member of the conditionally certified class for 

participating in this action.” [105] at 1; see also [105] at 3 (“Plaintiffs pray this Court to [e]njoin 

Club Assist from discharging or otherwise discriminating against drivers that opt in to the suit or 
8 

offer testimony in this matter.”); [110] at 1 (“[T]he Court should issue a preliminary injunction 

prohibiting further acts of retaliation and then allowing class members to opt-in to this suit 

without fear of such reprisals.”); id. at 11 (asking the Court to enter an order requiring Defendant 

“to refrain from further reprisals against the class members whom the named plaintiffs have an 

obligation to represent”). Plaintiffs also seek to maintain under seal the names of the opt-in 

Plaintiffs, and to further extend the opt-in period “so that any class member who was previously 

intimidated by Club Assist’s actions has the opportunity to reconsider and opt in without the 

threat of retaliation looming.” The facts set forth below were adduced at the hearing or through 

Plaintiffs’ and Defendant’s affidavits. Cf. Dexia Credit Local v. Rogan, 602 F.3d 879, 885 (7th 

Cir. 2010) (“And even if Dexia’s evidence was inadmissible under the Federal Rules of 

Evidence, we have recognized that a district court may grant a preliminary injunction based on 

less formal procedures and on less extensive evidence than a trial on the merits.”) 

 a. Named Plaintiffs 

 Named Plaintiff Maurice Brown was the proprietor of 2Browns LLC (“2Browns”). 

2Browns entered into a contract with Defendant on July 18, 2011. Plaintiffs’ Ex. 5. Brown 

filed this lawsuit on July 20, 2012. See [1]. At some point in July 2012, Brown notified 

Defendant’s General Manager, Rodney Walbancke, that 2Browns was unable to perform its 

obligations under the contract because its tow truck had broken down. [111-2] ¶ 16. On or about 

August 1, 2012, Walbancke responded with a letter expressing “surprise[] that 2Browns LLC 

cannot afford to fix its truck” and informing 2Browns that Defendant was “not in a position to 

supply a rental truck.” [111-2] ¶ 17; id. Ex. A. Walbancke’s letter also informed 2Browns that it 

was in breach of its agreement with Defendant and asked 2Browns what it planned to do to 

comply with its contractual obligations. [111-2] Ex. A. The next communication in the record 
9 

is an August 17, 2012 e-mail from Brown to Walbancke. See [111-2] ¶ 18; id. Ex. B. In that email, Brown informed Walbancke that “[a] local garage mechanic performed a temporary fix” on 

the truck but that Brown was “gonna need money for gas and other operational expenses.” [111-

2] Ex. B. Walbancke responded via e-mail on August 21, 2012. See id. In that response, 

Walbancke asked Brown when 2Browns would be available for service. Id. 

 That same day, Brown notified Walbancke that some batteries had been stolen from his 

truck. [111-2] ¶ 19. Walbancke asked Brown if he had submitted an insurance claim for the 

batteries, id.; [111-2] Ex. C, and Brown informed Walbancke that 2Browns did not have 

insurance. [111-2] ¶ 19. On August 27, 2012, Walbancke sent Brown an e-mail with two letters 

dated August 24, 2012 attached to it. [111-2] Ex. D. The first letter informed 2Browns that 

Defendant believed that it was in breach of Section 21.1 of the parties’ agreement, which 

required 2Browns to maintain insurance. Id. The letter further stated that although Defendant 

believed it was entitled to terminate 2Browns’ agreement immediately, it was electing to suspend 

2Browns until it provided Defendant with proof of insurance. Id.; see also [111-2] ¶ 22. The 

second letter stated Defendant’s position that 2Browns was responsible for providing and 

operating its truck pursuant to Section 10.1 of the parties’ agreement. Id. Ex. D. 

 On August 30, 2012, Walbancke sent an e-mail to Brown “in response” to an e-mail that 

Brown had sent to Defendant. See [111-2] Ex. E. It is not clear which e-mail Walbancke was 

responding to, or whether that e-mail is in the record. Walbancke’s e-mail stated that Defendant 

“is not in a position to assist you or any other SDC with financial assistance to operate your 

business.” Id. Attached to this e-mail were two documents dated August 29, 2012. See id. The 

first was a letter reiterating that “2Browns continues to be suspended from providing any 

services” until it obtains insurance. Id. The letter also provided, “Alternatively, if 2Browns is 
10 

unable or unwilling to perform its obligations under the Agreement, I have attached an 

agreement of termination for execution by 2Browns.” Id. The agreement of termination was the 

second attachment. See id. It recited that “Club Assist and the SDC have agreed to terminate the 

Service Delivery Agreement” and was signed by Walbancke. Id. There was a line for Brown’s 

signature. See id. 2Browns did not return the termination agreement or provide proof of 

insurance. [111-2] ¶ 26. In late September or early October 2012, Bush Truck Leasing informed 

Walbancke that it had repossessed 2Browns’ tow truck. See [111-2] ¶ 25; id. Ex. F. Some of 

Defendant’s equipment was missing from the truck. Id. Ex. F. 

 At the hearing, Brown testified that Defendant had loaned him $6,300 to fix his truck 

about a year before he filed the lawsuit. Tr. 123, 127, Mar. 12, 2014. He further testified that 

Defendant, not Bush Truck Leasing, repossessed his truck “even though the payments were still 

being made to Bush Truck Leasing by the guarantor of the lease,” and that Defendant “gave [his] 

truck to another SDC before [he] had a chance to even, you know, save up $2,400.” Id. at 123. 

He also testified that prior to the lawsuit, his truck had been out of service for at least a full day 

but he had not been terminated. Id. at 127-28. Brown conceded, however, that 2Browns lacked 

insurance and did not have a truck with which to provide services after its truck was repossessed 

in or around September 2012. See id. at 140-42. 

 Named Plaintiff Keith Rodgers (“Keith”)1

 started an SDC, Rapid Road Service, Inc. 

(“Rapid”) in July 2011. Tr. 58, Mar. 12, 2014; [111-2] ¶ 68. Keith testified that he was no 

longer operating his SDC because Walbancke told him that his “service was no longer needed to 

Club Assist.” Tr. 58, Mar. 12, 2014. Keith testified that Walbancke did not explain why his 

 

1 Keith Rodgers and Kenith Rodgers are both named Plaintiffs in this matter. The Court refers to 

them by their first names to avoid confusion. For the same reason, the Court also refers to 

named Plaintiffs Rushdi Rashid and Nasir Rashid by their first names. 
11 

SDC’s services were no longer needed. Id. After “pa[ying] attention to all the facts,” however, 

Keith concluded that Defendant ended its relationship with his SDC because he had “entered into 

the lawsuit.” Id. at 59. Keith conceded that he had logged in late, and that Defendant had 

apprised him of this fact, but testified that many other SDC operators also logged in late. Id. at 

59-60; see also Plaintiffs’ Ex. 1. 

 For its part, Defendant conceded that it in fact terminated Rapid’s contract after Rapid 

logged in late on January 30, 2013. [111-2] ¶ 70. Defendant also presented affidavit testimony 

and exhibits demonstrating that it offered Keith and Rapid an opportunity to develop an action 

plan to address Rapid’s repeated failures to log in and respond to calls. [111-2] ¶¶ 61-62. Rapid 

developed an action plan in November 2012 pursuant to which it acknowledged that any more 

breaches would result in its termination. See [111-2] Ex. O. Rapid then logged in late on at least 

twelve occasions in December 2012 and January 2013. [111-2] ¶ 65. Defendant offered Rapid 

a final opportunity to cure, [111-2] ¶ 66, pursuant to which it again agreed that further 

performance issues would result in termination. Id. ¶ 69. Defendant terminated Rapid’s contract 

after Rapid logged in late on January 30, 2013. Id. ¶ 70. 

 Named Plaintiff Kaywan Palmer submitted an affidavit stating that he incorporated an 

SDC, KDP Auto Repair & Emergency Roadside Service LLC (“KDP”), on September 4, 2010. 

[114-2] ¶ 3. He joined this lawsuit as a named Plaintiff in October 2012. Id. Defendant offered 

to renew KDP’s contract in December 2012, but it offered only a one-year renewal instead of the 

two-year renewal “unlike every other contract Club Assist entered into during the time that 

[Palmer] worked for them.” Id. ¶¶ 9-10. Defendant told Palmer that it was offering a one-year 

renewal so that KDP could finish paying off its truck; Defendant planned to switch to new trucks 

the following year and, according to Palmer, did not want to be “stuck paying off [his] truck 
12 

even though it did not intend to use it in the future.” Id. ¶¶ 12-13. KDP’s truck broke down in 

April 2013 but KDP could not afford to fix it. Id. ¶¶ 14-15. Defendant did not offer to advance 

KDP the costs of fixing the truck. Id. ¶ 19. KDP began using Palmer’s personal truck to 

complete its work, but soon that truck also broke down. See id. ¶¶ 16-17. Palmer testified that 

he notified Defendant “on multiple occasions,” “mostly via text messaging,” that KDP was not 

able to perform services because its truck was not operable. Id. ¶¶ 18, 21. He claims that he 

only received one letter from Defendant: a letter dated July 13, 2013, terminating KDP’s 

contract. Id. ¶ 20. Palmer conceded that he did not log in “for weeks” while his trucks were out 

of commission. Id. ¶ 18. 

 According to Defendant’s submissions from Walbancke, KDP failed to provide services 

for two 9-10 day stretches in March and April 2013 and for a 28-day period in May 2013. Id. ¶¶ 

51-52. Defendant gave KDP an opportunity to develop an action plan to address its performance 

deficiencies, [111-2] ¶ 55; id. Ex. K, and terminated KDP only after KDP failed to submit an 

action plan or otherwise respond to Walbancke’s frequent overtures. [111-2] ¶¶ 57-59; Ex. L. 

Walbancke testified twice that he attempted to contact Palmer and KDP on “eighteen separate 

occasions from May 17th to June 10th, but did not receive any response.” [118-1] ¶ 51; [111-2] 

¶¶ 53, 57. Walbancke testified that he sent KDP at least two letters before the parties’ 

relationship was terminated: one dated May 28, 2013, and one dated June 10, 2013. [111-2] ¶¶ 

55, 58; id. Exs. K, L. 

 Named Plaintiff Kenith Rodgers (“Kenith”) testified via affidavit that he incorporated his 

SDC, Rodgers Emergency Roadside Assistance Incorporated (“Rodgers Inc.”) in October 2010. 

[114-3] ¶ 5. Because Defendant did not provide Rodgers Inc. with the truck that it had promised, 

however, Rodgers Inc. did not actually enter into a contract with Defendant or begin to provide 
13 

services until April 2011. Id. ¶¶ 6-8. Kenith testified that the truck that Defendant directed him 

to lease had previously been damaged in an accident and “frequently broke down.” Id. ¶ 10-11. 

Defendant often advanced Rodgers Inc. the costs of the repairs upfront but would deduct the 

amounts from the money Rodgers Inc. earned. Id. ¶ 12. By the end of 2012, Defendant was 

deducting $500 from every paycheck to recoup the repair expenses it had advanced to Rodgers 

Inc. Id. ¶ 13. After Kenith joined this suit in October 2012, Defendant stopped providing 

Rodgers Inc. with accountings of the deductions. Id. ¶¶ 14-15. Kenith “demanded a 

reconciliation form” at some point and learned that Defendant had been making deductions 

based on Rodgers Inc.’s alleged failure to remit invoices for every battery sale it made. Id. ¶¶ 

18-19. Rodgers Inc.’s truck needed “significant repairs” in December 2012, and Defendant 

agreed to advance Rodgers Inc. $1,829.97 for the repairs. Id. ¶ 21; [111-2] ¶ 40; [118-1] ¶ 43. 

Defendant then began deducting more money from Rodgers Inc.’s pay to cover this advance. 

[114-3] ¶ 22. Because of the deductions and a low-earning December 2012, Rodgers Inc. “could 

not afford to continue to drive for Club Assist, and sometimes had to take [its] truck off the 

road.” Id. ¶¶ 24-25. 

 Walbancke agreed that Defendant deducted money from Rodgers Inc.’s reconciliations 

“based on Rodgers, Inc.’s failure to turn in invoices for all the batteries it sold.” [118-1] ¶ 45. 

Walbancke testified, however, that Defendant always provided Rodgers Inc. with monthly 

statements detailing the deductions. Id. ¶ 44. Rodgers Inc. did not provide services from 

February 8-19, 2013, [111-2] ¶ 42. Rodgers Inc. notified Defendant of its inability to provide 

services “in early February 2013.” [118-1] ¶ 46. Because Defendant believed that Rodgers Inc. 

was “bringing Club Assist’s name into disrepute and was undermining [its] contractual 

relationship with AAA,” [118-1] ¶ 46, by failing to provide services and accepting calls but not 
14 

following through with tows, Defendant sent Rodgers Inc. a termination agreement dated 

February 22, 2013. See [111-2] ¶¶ 44, 47; id. Ex. J. 

 Named Plaintiff Byron Jackson incorporated his SDC, Jackson 24-7 Road Service, Inc. 

(“Jackson 24-7”) in October 2009. [114-1] ¶ 8. Jackson 24-7 entered into a contract with 

Defendant shortly thereafter. Id. ¶ 9. Jackson 24-7 entered into an agreement to lease a 2009 

model tow truck from Bush Truck Leasing around the same time. Id. ¶¶ 10, 15. Jackson 

testified that Defendant “guaranteed the payments on that lease, which required the lessee to 

cover the remaining value of the truck upon expiration of the lease.” Id. Defendant does not 

dispute this. Jackson 24-7 renewed its contract with Defendant in July 2011. Id. ¶ 11. In June 

2012, Walbancke called a meeting of all Chicago-area SDCs. Id. ¶ 12; see also Plaintiffs’ Ex. 2. 

Jackson testified that at the meeting, which per the announcement occurred on July 10, 2012, see 

Plaintiffs’ Ex. 2, Walbancke “mentioned that he was aware of this lawsuit, which Maurice 

Brown had already filed.” [114-1] ¶ 13. (The Court is skeptical of this testimony, as Brown 

filed this lawsuit on July 20, 2012. See [1]. Jackson joined it in October 2012. [114-1] ¶ 18). 

Jackson further testified that Walbancke told him that Defendant would soon be switching to 

newer model trucks and that Jackson 24-7 would no longer be able to drive its current truck after 

the transition. [114-1] ¶ 16. Defendant made a similar announcement to all SDCs in spring 

2013. Id. ¶ 19. Jackson 24-7 applied for a new lease with Bush Truck Leasing around that time, 

but its application was rejected even though it had been making payments on a Bush Truck lease 

for four years. Id. ¶¶ 19-20. Bush Truck Leasing later explained that Defendant had not 

guaranteed the payments on this lease. Id. ¶ 22. Jackson contemplated purchasing his own 

truck, but decided not to after Club Assist employee Burjis Sidhwa came to his house and 

advised him not to do so unless he could get a guarantee that Jackson 24-7’s contract with 
15 

Defendant would be renewed again. Id. ¶¶ 23-25. Defendant later refused to renew Jackson 24-

7’s contract because it did not have a new truck. Id. ¶ 28. Walbancke nonetheless told Jackson 

to keep logging on and provide services with the old truck, which Jackson did until Walbancke 

told him to stop doing so in September 2013. Id. ¶ 31. 

 According to Walbancke, Jackson 24-7 declined to enter into a new agreement with 

Defendant when its old agreement expired on or about July 14, 2013. See [111-2] ¶¶ 11-12; 

[118-1] ¶ 32. Walbancke testified that the same thing happened with respect to at least two other 

SDCs whose proprietors are not named Plaintiffs in this matter. [111-2] ¶ 14; [118-1] ¶ 33. 

Walbancke also testified that “Club Assist has never co-signed a lease agreement between the 

service delivery companies and Bush Truck Leasing, Inc.,” [118-1] ¶ 30, but that it “did not 

guaranty the lease payments for any service delivery company in the summer of 2013” even 

though it had “guaranteed lease payments in the past.” Id. ¶ 31. 

 Named Plaintiff Nasir Rashid (“Nasir”) formed his SDC, N R Auto Roadside Service 

LLC (“NR”), in June 2012, one month before this lawsuit was initiated. [114-5] ¶ 3. NR entered 

into agreements to lease a truck from Bush Truck Leasing and to provide services to Defendant 

at around the same time. Id. ¶¶ 4-5. Nasir’s cousin, named Plaintiff Rushdi Rashid (“Rushdi”), 

formed his own SDC, R&R Roadside Service LLC (“R&R”), in June 2012. [114-4] ¶ 5. Like 

NR, R&R also entered agreements to lease a truck and to provide services to Defendant 

contemporaneously. Id. ¶¶ 6-8. During the first few months of their contracts, NR and R&R 

were frequently dispatched to calls that were long distances away from their trucks’ current 

locations. Id. ¶ 9; [114-5] ¶ 7. This happened to them more often than it did to other SDCs, 

[114-4] ¶ 10; [114-5] ¶ 8, and they believed that Defendant’s dispatchers were inefficiently 

distributing calls. [114-4] ¶ 11; [114-5] ¶ 9. Nasir and Rushdi both testified (via affidavit) that 
16 

their SDCs “occasionally missed calls, refused calls, or were late to calls as a result of this 

inefficient and unfair dispatch system.” [114-4] ¶ 12; [114-5] ¶¶ 10, 25. Nasir testified that he 

missed “around five calls.” [114-5] ¶ 24. Both Nasir and Rushdi testified that other unnamed 

SDCs also missed calls, refused calls, and were late to calls during the same period. [114-4] ¶¶ 

13, 35; [114-5] ¶ 11. Eventually, Nasir and Rushdi complained to Defendant about the longdistance dispatches, and Walbancke confirmed that their SDCs had been traveling further than 

other SDCs and “offered to provide an additional fuel subsidy [ ] to make up for this additional 

travel.” [114-4] ¶¶ 15-16; [114-5] ¶¶ 13-14. Notwithstanding Walbancke’s assurances, NR and 

R&R “did not see any improvement in the way calls were dispatched.” [114-4] ¶ 17; [114-5] ¶ 

15. NR and R&R took matters into their own hands and began communicating with other SDCs 

to redistribute calls to the SDCs who were closest to the jobs. [114-4] ¶ 18; [114-5] ¶ 16. 

Defendant told NR and R&R to stop this practice. [114-4] ¶ 19; [114-5] ¶ 17. 

 Nasir and Rushdi “grew frustrated” and in November 2012 asked Plaintiffs’ counsel to 

notify Defendant that Plaintiffs’ counsel would be representing them and that they would likely 

become named Plaintiffs. [114-4] ¶¶ 20, 27; [114-5] ¶¶ 18-19. Robert Pivirotto, a field 

coordinator for Defendant, testified that R&R failed to respond to several calls in January 2013 

and in that same month Rushdi “screamed at” and “threatened” Pivirotto. [111-4] ¶ 5. Pivirotto 

also testified that R&R missed calls and did not log in properly on several occasions in February 

2013. See id. As to NR, Pivirotto testified that it too failed to answer and refused calls in 

January and February 2013. Id. ¶ 6. Pivirotto further testified that during one of the calls, Nasir 

told him that the client was “55 fucking miles away” and hung up on him. Id. Rushdi disputes 

Pivirotto’s accounts. See [114-4] ¶ 32-33. Both Nasir and Rushi dispute Walbancke’s testimony 

that he sent them letters describing their SDCs’ alleged misconduct and offering them the 
17 

opportunity to submit “action plans” to cure the alleged deficiencies in mid-February 2013. See 

[111-2] ¶¶ 30, 36; id. Exs. H, I; [114-4] ¶ 29; [114-5] ¶ 20. Both Nasir and Rushdi testified that 

Defendant instead called a meeting with them at a hotel and ambushed them with the letters at 

that time. [114-4] ¶¶ 30-31; [114-5] ¶¶ 21-22. Neither Nasir nor Rushdi believed that they could 

devise an “action plan” sufficient to satisfy Defendant, and therefore did not submit one. See 

[114-4] ¶ 36; [114-5] ¶ 26. Both Nasir and Rushdi testified that Defendant terminated their 

relationships by repossessing their trucks. [114-4] ¶ 36; [114-5] ¶ 26. Pivirotto testified that 

Nasir and Rushdi telephoned him and told them that they were through running calls and planned 

to leave their trucks on the side of the road. [111-4] ¶¶ 5-6. 

 b. Opt-In Plaintiffs 

 Plaintiffs also submitted the testimony of two Plaintiffs who have opted into the suit but 

whose participation was not disclosed to Defendant. See [98]. Robert Moore, who testified at 

the hearing, averred that he was the proprietor of an SDC that had entered a contract with 

Defendant. Tr. 29-30, Mar. 12, 2014. He acknowledged that he had logged in late on occasion, 

sometimes up to a couple of hours late. Id. at 31-32. Moore also stated that he had failed to log 

in altogether on at least four occasions, three when he was ill and once when his truck “had an 

issue.” Id. at 32. Moore further testified that it sometimes took him more than an hour to arrive 

at the scene after receiving a dispatch from Defendant. Id. at 33. At one point, Moore also 

informed Defendant that he did not have worker’s compensation insurance, id. at 35, and at some 

point he lacked general liability insurance. Id. at 45. Notwithstanding all of these infractions, 

Moore testified that he had “never been suspended” and had never had to develop an action plan. 

Id. at 33, 36. Additionally, Defendant once loaned him money to fix his truck, id. at 34-35, and 

co-signed his lease for a truck in 2009 or 2010. Id. at 37. 
18 

 Moore testified that in the three years before this lawsuit, Defendant terminated three 

SDCs. Id. at 30. He further testified that “all the guys that signed up for this particular lawsuit 

one way or another lost their jobs.” Id. He therefore was “afraid that [he] would lose [his] job” 

if he joined the lawsuit and declined to become a named Plaintiff when the second amended 

complaint was filed in November 2013. Id. at 38. Moore explained that he thought that losing 

his job was a “likely possibility” because “the other guys that signed up lost their jobs for one 

reason or another, and also, there was a lot of different talk from different guys saying what 

would probably happen.” Id. Ultimately, however, Moore opted in on “the very last day” of the 

“first opt-in period” because he feared that if he did not, “[he] would have felt like [he] wasn’t 

doing what was best for [him] to do.” Id. at 40. When asked whether he joined the lawsuit 

because he was “no longer intimidated,” Moore responded that he was “just putting it in God’s 

hands” but “still feel[s] like something is going to happen.” Id. at 51. 

 On cross-examination, Moore admitted that he had never asked the other Plaintiffs why 

their contracts were terminated. Id. at 46. He “didn’t know” that 2Browns’ insurance lapsed, or 

that Rapid logged in late “on 12 separate occasions in a one-month period.” Id. at 46-47. 

 Plaintiffs also presented the affidavit testimony of opt-in Plaintiff Christopher Oquendo 

(“Oquendo”). All of Oquendo’s testimony pertains to events that happened in 2011 and early 

2012, before this suit was filed. See [114-6]. According to Oquendo, he created an SDC called 

Oquendo Delivery Service LLC (“Oquendo Delivery”) in September 2011. [114-6] ¶ 3. 

Oquendo Delivery entered into a contract with Defendant on September 16, 2011. Id. ¶ 6. 

Oquendo quickly began to butt heads with Defendant’s representatives, Walbancke and Jim 

Connelly, who “regularly admonished [him] for not being available for dispatch at precisely the 

times Club Assist required.” Id. ¶¶ 10, 14. Before the end of September 2011, Oquendo 
19 

informed Walbancke of his frustration and his belief that he was being treated as though he were 

an employee of Club Assist. Id. ¶ 15. Oquendo made a similar complaint to Connelly shortly 

thereafter. Id. ¶ 17. Around the same time, Oquendo Delivery was suspended for one day after 

logging off when it was scheduled to work. See id. ¶ 19. Oquendo had a phone call with 

Walbancke and Connelly after that incident, during which Walbancke told him that Defendant 

was acting according to its contract with Oquendo Delivery and that Oquendo could leave if he 

did not like it. Id. ¶ 20. Oquendo told Connelly and Walbancke that he might have to complain 

to the Connecticut Department of Labor (“CDOL”), id. ¶ 21, which he in fact did on September 

28, 2011. Id. ¶ 22. The CDOL launched an investigation. Id. ¶ 23. Oquendo declined to remain 

anonymous. Id. ¶ 24. 

 In mid-December 2011, Oquendo noticed that Oquendo Delivery was not receiving any 

calls from Defendant. Id. ¶¶ 27-28. Oquendo called AAA (with whom Defendant contracts to 

provide towing services) and was told that Walbancke had ordered that Oquendo be logged off 

the system whenever he tried to log in. Id. ¶ 29. On December 17, 2011, Oquendo called 

Walbancke to ask about that directive. Id. ¶ 30. Walbancke told him that Defendant was 

terminating Oquendo Delivery’s contract due to customer complaints. Id. Oquendo asked 

Walbancke to send him the customer complaints. Id. ¶ 31. Walbancke sent Oquendo three 

customer surveys that purportedly contained only positive customer feedback. Id. ¶ 33. (Those 

surveys are not in the record.) On December 20, 2011, Oquendo received a letter dated 

December 12, 2011 that terminated Oquendo Delivery’s contract with Defendant. Id. ¶ 33. 

Oquendo testified that the letter, which Defendant placed in the record, see [118-1] Ex. F, 

explained that the termination was predicated on Oquendo Delivery’s failure to be available to 

receive calls. [114-6] ¶ 34. The letter by its terms stated only that “Club Assist and the SDC 
20 

have agreed to terminate the Service Delivery Agreement,” however. [118-1] Ex. F. Oquendo 

further testified that Defendant did not terminate another SDC that also failed to log in but whose 

owner did not file a complaint with the CDOL. See [114-6] ¶¶ 35-39. 

 Walbancke testified that he made the decision to terminate Oquendo Delivery’s 

agreement before learning about the complaint that Oquendo made to the CDOL. [118-1] ¶¶ 16-

17. Walbancke testified that he first learned of Oquendo’s complaint on February 23, 2012, 

when he received a fax about it from the CDOL. Id. ¶ 18. Prior to that time, he claimed, he had 

no knowledge of the complaint. Id. ¶¶ 19-21. Walbancke also disputed that Oquendo told him 

that he felt that he was being treated as an employee, id. ¶ 22, and further stated that Connelly 

never told him about Oquendo’s complaints. Id. ¶ 23. Walbancke testified that the SDC to 

which Oquendo likened his own was in substantial compliance with its contract. See id. ¶¶ 27-

28. 

 2. Analysis 

 As the Court recognized at the hearing it held on the matter, “one of the major questions 

is whether there is any authority even to grant an injunction here.” Tr. 2, Mar. 12, 2014. The 

Court notes that the Seventh Circuit has characterized this question as “a significant one, and not 

without sensible arguments on both sides.” Avitia v. Metro. Club of Chi., Inc., 924 F.2d 689, 691 

n.1 (7th Cir. 1991). 

 The FLSA includes a web of provisions governing equitable relief and who may seek it. 

Section 215(a)(3) of the FLSA straightforwardly provides that 

it shall be unlawful for any person * * * to discharge or in any other manner 

discriminate against any employee because such employee has filed any 

complaint or instituted or caused to be instituted any proceeding under or related 

to this chapter, or has testified or is about to testify in any such proceeding. 

29 U.S.C. § 215(a)(3). This is the anti-retaliation provision pursuant to which Plaintiffs have 
21 

asserted a claim, see [78] ¶¶ 238-39, and seek the injunctive relief at issue here. Plaintiffs assert 

that “Section 216(b), in turn, provides for private suits to seek legal and equitable relief for 

violations of Section 215(a)(3).” [110] at 2. Section 216(b) provides, in pertinent part, that 

Any employer who violates the provisions of section 215(a)(3) of this title shall 

be liable for such legal or equitable relief as may be appropriate to effectuate the 

purposes of section 215(a)(3) of this title, including without limitation 

employment, reinstatement, promotion, and the payment of wages lost and an 

additional equal amount as liquidated damages. An action to recover the liability 

prescribed in either of the preceding sentences may be maintained against any 

employer (including a public agency) in any Federal or State court of competent 

jurisdiction by any one or more employees for and in behalf of himself or 

themselves and other employees similarly situated. * * * The right provided by 

this subsection to bring an action by or on behalf of any employee, and the right 

of any employee to become party plaintiff to any such action, shall terminate upon 

the filing of a complaint by the Secretary of Labor in an action under section 217 

of this title in which (1) restraint is sought of any further delay in the payment of 

unpaid minimum wages, or the amount of unpaid overtime compensation, as the 

case may be, owing to such employee under section 206 or section 207 of this title 

by an employer liable therefor under the provisions of this subsection or (2) legal 

or equitable relief is sought as a result of alleged violations of section 215(a)(3) of 

this title. 

 

29 U.S.C. § 216(b). 

 Section 217, headed “Injunction Proceedings,” further provides that in pertinent part that 

“[t]he district courts * * * shall have jurisdiction, for cause shown, to restrain violations of 

section 215 of this title * * * *” 29 U.S.C. § 217; see also Howard v. City of Springfield, Ill., 274 

F.3d 1141, 1144-45 (7th Cir. 2001) (“Section 217 of the FLSA provides that courts have 

jurisdiction to enter injunctive relief for violations of the FLSA.”). Finally, § 211(a) provides in 

pertinent part that “Except as provided in section 212 of this title, the Administrator [i.e., the 

Secretary of Labor] shall bring all actions under section 217 of this title to restrain violations of 

this chapter.” When these provisions are read together, Plaintiffs contend, they provide Plaintiffs 

with the right to seek injunctive relief for violations of § 215(a)(3). 

 Plaintiffs find support for their position in Bailey v. Gulf Coast Transportation, Inc., 280 
22 

F.3d 1333 (11th Cir. 2002) (per curiam). In Bailey, the plaintiffs were terminated shortly after 

suing their employer for allegedly violating the FLSA. After their termination, the plaintiffs 

amended their complaint to add a retaliation claim and moved for a preliminary injunction “to 

reinstate the drivers who were terminated and to enjoin Gulf Coast from further retaliatory 

conduct.” Id. at 1334. The district court concluded that although evidence supported the 

substantive merits of plaintiffs’ motion, it could not grant a preliminary injunction because the 

Eleventh Circuit previously had held in Powell v. Florida, 132 F.3d 677, 678 (11th Cir. 1998) 

(per curiam), “that the right to bring an action for injunctive relief under the Fair Labor 

Standards Act rests exclusively with the United States Secretary of Labor.” The Eleventh Circuit 

reversed. It distinguished Powell on the grounds that its sweeping holding did not address the 

precise question presented by the Bailey plaintiffs –“whether an employee may obtain injunctive 

relief for violations of the FLSA’s antiretaliation provision in § 215(a)(3).” Bailey, 280 F.3d at 

1335. The Eleventh Circuit examined the statutory scheme outlined above and rejected as 

“inconsistent with the plain meaning of § 216(b)” defendant’s argument “that § 217 governs 

injunctions under the FLSA, and that § 211 provides that except under the child labor laws [§ 

212], the Secretary has exclusive authority to bring proceedings under § 217.” Id. at 1336. The 

Eleventh Circuit reasoned that “[a]n injunction [barring] further retaliatory conduct indeed may 

help to ‘effectuate the purposes’ of the antiretaliation provision in a case such as this, where the 

district court found Gulf Coast’s conduct ‘plainly retaliatory’ and where there was evidence that 

other drivers were fearful of participating in the suit.” Id.

 Plaintiffs also point to an amicus brief that the Secretary of Labor filed in Bailey, see 

[110] Ex. 1, in which the Secretary argued that the FLSA should be interpreted to allow private 

plaintiffs to pursue injunctive relief for violations of § 215(a)(3). They argue that the Secretary’s 
23 

position, as set forth in the brief, should be “afforded significant weight, if not complete Chevron 

deference.” [110] at 4.2

 Plaintiffs additionally note that the Second Circuit has affirmed a 

district court’s grant of an injunction in similar circumstances, see Mullins v. City of New York, 

626 F.3d 47 (2d Cir. 2010), and identify a handful of district court cases granting injunctions 

similar to the one sought here. See Carrillo v. Schneider Logistics, Inc., 2012 WL 556309 (C.D. 

Cal. Jan. 31, 2012); Garcia v. Lee, 2010 WL 2102903 (E.D.N.Y. May 26, 2010); Bowman v. 

New Vision Telecoms., Inc., 2009 WL 5031315 (Dec. 14, 2009). 

 Plaintiffs concede, however, that there is authority that cuts against their position. 

Importantly, two such cases are from the Seventh Circuit. The older of the two cases, Howard v. 

City of Springfield, Illinois, 274 F.3d 1141, 1145 (7th Cir. 2001), considered whether police 

officers seeking compensation and injunctive relief for “kennel time” they spent with their K-9s 

were wrongly precluded from seeking injunctive relief. The Howard court, relying in part on 

Powell v. Florida, 132 F.3d 677, 678 (11th Cir. 1998) (per curiam), the decision that the 

Eleventh Circuit distinguished in Bailey, examined the interaction between §§ 211 and 217 of the 

FLSA and concluded that “private parties may not seek injunctive relief under the FLSA.” The 

Seventh Circuit reaffirmed – and provided a policy-based explanation for – this holding in 

Heitmann v. City of Chicago, 560 F.3d 642, 644-45 (7th Cir. 2009), which also involved police 

officers seeking to enjoin alleged wage and overtime violations. In Heitmann, the officers 

sought (and were granted by the district court) an injunction “specifying how Chicago must 

handle all future applications for compensatory leave.” Heitmann, 560 F.3d at 643. The Seventh 

 

2 The Court does not afford Chevron deference to the interpretations espoused in the Secretary of Labor’s 

amicus brief. The Secretary of Labor does not have any authority to issue regulations interpreting the 

FLSA, or specific authority to issue regulations interpreting § 215(a)(3). See Kasten v. Saint-Gobain 

Performance Plastics Corp., 131 S. Ct. 1325, 1340 (2011) (Scalia, J., dissenting). The Court instead 

accords weight to the Secretary’s interpretations to the extent that they have the “power to persuade.” See

Skidmore v. Swift & Co. 323 F.3d 134, 140 (1944); see also George v. Junior Achievement of Cent. Ind., 

Inc., 694 F.3d 812, 816 (7th Cir. 2012).
24 

Circuit vacated the injunction. See id. at 644-45. It reasoned first that because the compensatory 

leave the officers sought was itself a substitution for overtime pay, any injury that the officers 

incurred when the officers was adequately compensable by money damages. See id. at 644. 

Moreover, the Seventh Circuit continued, “[i]njunctive relief under § 217 is permissible only in 

suits by the Secretary of Labor.” Id. The Seventh Circuit explained that this result made sense 

from a policy standpoint: 

Injunctions can cause major disruptions to an employer’s practices, even though 

most employees are satisfied with them, and can be impossible to bargain around. 

The statute leaves the heavy artillery to public officials – or to unions through 

collective bargaining. * * * A regulatory injunction is hard to administer, and 

although Congress was willing to involve the judiciary in this process when the 

Secretary serves as the principal monitor, allowing a handful of disgruntled 

employees (and their lawyer) to serve as monitors, displacing their representative 

in collective bargaining, would be unfortunate. 

Id. Other appellate and district courts have reached similar conclusions. See Bjornson v. Daido 

Metal U.S.A., Inc., 12 F. Supp. 2d 837, 843 (N.D. Ill. 1998) (collecting cases dating back to 

1943). Defendant urges the Court to rely on these cases. 

 The Court is bound to follow applicable Seventh Circuit precedent. And here, Defendant 

correctly observes that Howard and Heitmann contain broad pronouncements that private 

plaintiffs may not seek injunctive relief under the FLSA. However, the Court agrees with 

Plaintiffs that neither Howard nor Heitmann addresses the specific question of whether 

injunctive relief aimed at preventing violations of § 215(a)(3) is or should be treated differently 

than injunctive relief aimed at correcting substantive wage and overtime violations of the FLSA. 

“Questions which merely lurk in the record, neither brought to the attention of the court nor ruled 

upon, are not to be considered as having been so decided as to constitute precedents.” Webster v. 

Fall, 266 U.S. 507, 511 (1925); see also Shawnee Trail Conservancy v. U.S. Dep’t of Agric., 222 

F.3d 383, 387 (7th Cir. 2000) (“In circumstances where a court assumes jurisdiction without 
25 

addressing a jurisdictional issue, that assumption of jurisdiction is of limited precedential 

value.”) Indeed, as noted above, the Seventh Circuit itself has indicated that there is a substantial 

question that is “not without sensible arguments on both sides” as to whether injunctive relief 

may be available to private FLSA plaintiffs in some circumstances, including the very 

circumstance presented here. Avitia v. Metro. Club of Chi., Inc., 924 F.2d 689, 691 n.1 (7th Cir. 

1991); see also Avitia v. Metro. Club of Chi., Inc., 49 F.3d 1219, 1231 (7th Cir. 1995) (“We 

cannot find any case in which front pay has been awarded under the Fair Labor Standards Act, 

but we cannot think of any reason why it cannot be done in a retaliation case under that act since 

the victim of retaliation is expressly entitled to all legal and equitable relief that may be 

appropriate.” (emphasis added)). The Eleventh Circuit appears to be the only Court of Appeals 

that squarely has confronted the issue, and it concluded that “the FLSA permits employees to 

obtain preliminary injunctive relief to address violations of the Act’s antiretaliation provision.” 

Bailey, 280 F.3d at 1337. The Secretary of Labor and the Second Circuit agree. See [110-1]; 

Mullins, 626 F.3d at 53-56. And, importantly, the Eleventh Circuit in Bailey distinguished this 

situation from its earlier precedent containing sweeping language virtually identical to that in 

Howard and Heitmann. See id. at 1335; Powell, 132 F.3d at 678-79. 

Bailey does not provide a panacea for Plaintiffs here, however, even if the Court assumes 

(1) that Howard and Heitmann permit private plaintiffs to seek injunctive relief under § 

215(a)(3) and (2) that Plaintiffs are “employees” entitled to the protections of § 215(a)(3). 

Bailey emphasized that “[a]n injunction [restraining] further retaliatory conduct indeed may help 

to ‘effectuate the purposes’ of the antiretaliation provisions” where the conduct challenged was 

“‘plainly retaliatory’ and where there was evidence that other drivers were fearful of 

participating in the suit.” Bailey, 280 F.3d at 1336 & n.6. Here, Plaintiffs have not demonstrated 
26 

that Defendant’s conduct was “plainly retaliatory,” or that their alleged injuries are not 

adequately compensable by money damages. See Heitmann, 560 F.3d at 644. In other words, 

even if the Court were to conclude that Howard and Heitmann do not foreclose Plaintiffs’ 

request for injunctive relief, the Court would be constrained to conclude that injunctive relief is 

not warranted in this case. 

 “[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be 

granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. 

Armstrong, 520 U.S. 968, 972 (1997) (quoting 11A C. Wright, A. Miller & M. Kane, FEDERAL 

PRACTICE & PROCEDURE § 2948, at 129-30 (2d ed. 1995)); see also Goodman v. Ill. Dep’t of Fin. 

& Prof’l Regulation, 430 F.3d 432, 437 (7th Cir. 2005). A party seeking a preliminary 

injunction must demonstrate as a threshold matter that (1) its case has some likelihood of 

succeeding on the merits; (2) no adequate remedy at law exists; and (3) it will suffer irreparable 

harm if preliminary relief is denied. See Girl Scouts of Manitou Council, Inc. v. Girl Scouts of 

the United States of America, Inc., 549 F.3d 1079, 1086 (7th Cir. 2008); see also Korte v. 

Sebelius, 735 F.3d 654, 665 (7th Cir. 2013). If the moving party meets its initial burden, then the 

Court must consider the irreparable harm that the nonmoving party will suffer if preliminary 

relief is granted, balancing such harm against the irreparable harm the moving party will suffer if 

relief is denied. See Korte, 735 F.3d at 665; Girl Scouts, 549 F.3d at 1086. The Court uses a 

sliding scale when conducting this balancing analysis; the more likely the movant is to prevail, 

the less heavily the balance of harms must tip in its favor, and vice versa. See Korte, 735 F.3d at 

665; Girl Scouts, 549 F.3d at 1086. Taking into account all these considerations, the Court must 

exercise its discretion “‘to arrive at a decision based on a subjective evaluation of the import of 

the various factors and a personal, intuitive sense about the nature of the case.’” Girl Scouts, 549 
27 

F.3d at 1086 (quoting Lawson Prods., Inc. v. Avnett, Inc., 782 F.2d 1429, 1436 (7th Cir. 1986)). 

 To succeed on the merits of their § 215(a)(3) retaliation claim, Plaintiffs must show that 

Defendant engaged in retaliatory conduct against them as a result of their protected conduct. See 

Kasten v. Saint-Gobain Performance Plastics Corp., 703 F.3d 966, 972-73 (7th Cir. 2012); 

Cichon v. Exelon Generation Co., L.L.C., 401 F.3d 803, 810 (7th Cir. 2005). That is, they must 

show that they engaged in protected expression, that they suffered an adverse employment 

action, and that a causal link existed between the two. Kasten, 703 F.3d at 972-73; Scott v. 

Sunrise Healthcare Corp., 195 F.3d 938, 940 (7th Cir. 1999). They also must show that they are 

(or were) Defendant’s “employees.” Dellinger v. Science Applications Int’l Corp., 649 F.3d 226, 

228-30 (4th Cir. 2011); Glover v. City of N. Charleston, S.C., 942 F. Supp. 243, 246-47 (D.S.C. 

1996); Harper v. San Luis Valley Reg’l Med. Ctr., 848 F. Supp. 911, 913-14 (D. Colo. 1994). 

Plaintiffs’ suggestion that they must simply be the “‘employees’ of some employer,” [110] at 7, 

is not persuasive. 

 At this stage, the Court concludes that Plaintiffs have a “better than negligible” likelihood 

of making the latter showing. Girl Scouts, 549 F.3d at 1096. Plaintiffs’ testimony at the hearing 

and other evidentiary submissions raise the possibility that they “as a matter of economic reality 

are dependent upon the business to which they render service.” Sec’y of Labor v. Lauritzen, 835 

F.2d 1529, 1534-35 (7th Cir. 1987). But even assuming that Plaintiffs could make this latter 

showing, they have not at this stage demonstrated a likelihood of success on their claim that their 

working relationships with Defendant were terminated as a result of their participation in this suit 

or other protected activity. Plaintiffs who claimed that they have been retaliated against and 

testified at the hearing or submitted an affidavit conceded that their SDCs did not satisfy the 

terms of their agreements with Defendant. For instance, Plaintiff Brown acknowledged that he 
28 

lacked liability insurance and was not available to drive on some occasions. Plaintiff Palmer 

conceded that he did not log in for substantial stretches of time, and Plaintiffs Nasir and Rushdi 

testified that they did not respond to calls. Filing a complaint or participating in legal action does 

not equate to a license to abdicate one’s work responsibilities with impunity. See Davis v. Time 

Warner Cable of Se. Wis., L.P., 651 F.3d 664, 675 (7th Cir. 2011). Indeed, “to reach the pretext 

stage of the McDonnell Douglas analysis,” Plaintiffs are “required to present a prima facie case 

of retaliation by demonstrating, among other things, that ‘[they were] performing [their] job in a 

satisfactory manner.’” Cichon, 401 F.3d at 811 (quoting Stone v. City of Indianapolis Pub. 

Utilities Div., 281 F.3d 640, 644 (7th Cir. 2002)). Plaintiffs did not do that here. Moreover, 

Plaintiffs’ “comparator” testified on cross-examination that his purported fear of retaliation was 

based on incomplete information about named Plaintiffs’ conduct – and in any event he has 

joined the suit. In fact, thirty-eight Plaintiffs have opted into the suit, which suggests that “fear 

of economic retaliation” has not “operate[d] to induce aggrieved employees quietly to accept 

substandard conditions.” Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 292 (1960). 

On this evidence, the Court cannot conclude that Plaintiffs have demonstrated a likelihood of 

success on the merits of their retaliation claim. 

 Because the Court concludes that Plaintiffs failed to demonstrate a likelihood of success 

on the merits of their claim, the motion for preliminary injunction must be denied. See, e.g., Cox 

v. City of Chi., 868 F.2d 217, 223 (7th Cir. 1989). But in the interest of completeness, the Court 

will briefly address the other elements of a preliminary injunction. 

 The other two threshold elements that Plaintiffs must prove to support the issuance of a 

preliminary injunction are that they (1) have no adequate remedy at law and (2) will suffer 

irreparable harm if the injunction is not issued. These two requirements tend to merge. See 
29 

Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 387 (7th Cir. 1984). “The question is 

then whether the plaintiff will be made whole if he prevails on the merits and is awarded 

damages.” Id. An injury is “irreparable” when it is of such a nature that the injured party cannot 

be adequately compensated in damages or when damages cannot be measured by any pecuniary 

standard. Meridian Mut. Ins. Co. v. Meridian Ins. Grp., Inc., 128 F.3d 1111, 1120 (7th Cir. 

1997). Here, Plaintiffs concede in their brief that they “are willing to seek legal and not 

preliminary injunctive relief” as it relates to their own claims, [110] at 5, which strongly suggests 

that money damages would be adequate to compensate Plaintiffs – or the others on whose behalf 

they purport to proceed. (Defendant is correct that “retaliation” by definition may only occur 

against individuals who have engaged in protected activity, not those who heretofore have not 

elected to opt into or otherwise participate in this action.) The FLSA provides for “legal or 

equitable relief,” 29 U.S.C. § 215(a)(3), but Plaintiffs have not demonstrated that they are 

seeking equitable relief such as “employment, reinstatement, [or] promotion,” § 215(a)(3), or 

that legal relief would be inadequate to compensate them for any injury they suffered. 

Additionally, Defendant accurately points out that Plaintiffs did not immediately seek to enjoin 

the alleged retaliation, which “may raise questions regarding the plaintiff’s claim that he or she 

will face irreparable harm if a preliminary injunction is not entered.” Ty, Inc. v. Jones Grp., Inc., 

237 F.3d 891, 903 (7th Cir. 2001). Plaintiffs’ suggestion that the harm here “goes beyond the 

normal harm of losing a job” because they and others are in the “grip of poverty,” [110] at 6; Tr. 

20, Mar. 12, 2014, rests on an inapposite case. See Moore v. Miller, 579 F. Supp. 1188, 1191-92 

(N.D. Ill. 1983). Additionally, Plaintiff Brown testified that, after filing suit against Defendant, 

he was able to obtain a job towing cars and assisting AAA members and is paid ten dollars per 

hour plus a commission of $7 per tow. See Tr. 147-48, Mar. 12, 2014. Although ten dollars per 
30 

hour is not a particularly high wage, it is clear that the termination of 2Browns’ contract with 

Defendant did not, as Plaintiffs suggest, “force [Brown] into untenable financial straits without 

even the promise of unemployment benefits.” [110] at 6. 

 Finally, balancing the irreparable harm to the moving party if an injunction is not entered 

against the harm to the non-moving party if an injunction is granted requires the Court to use a 

“sliding-scale approach”: the more likely the plaintiff will succeed on the merits, the less the 

balance of harms need favor the plaintiff’s position. See Korte, 735 F.3d at 665. Here, Plaintiffs 

have failed to show that they are likely to succeed on the merits and thus the balance of harms 

must tilt heavily in Plaintiffs’ favor in order to justify relief. It does not. Plaintiffs have 

indicated that money damages will be adequate to remedy any injury that they have suffered or 

will suffer. Potential opt-in Plaintiffs will not be harmed, as they have been notified via the optin notice and consent form that the FLSA prohibits retaliation. See [82]. Defendant would not 

be harmed by an injunction prohibiting retaliation – “[t]he company always has the legal right to 

discipline * * * in a nondiscriminatory fashion for improper conduct,” N.L.R.B. v. Electro-Voice, 

Inc., 83 F.3d 1559, 1573 (7th Cir. 1996) – but it may suffer harm from an injunction barring it 

from knowing the identities of the opt-in Plaintiffs. So too would the public interest. See Korte, 

735 F.3d at 665 (the court also must consider the public interest when weighing the harms). As 

Plaintiffs point out, “[t]he public benefits from full and frank public litigation.” [110] at 11. Part 

of Plaintiffs’ requested relief – that the Court maintain under seal the participating Plaintiffs’ 

names – runs counter to this interest. In addition, given that Plaintiffs have not established that 

Defendant has engaged in retaliation, it would run counter to the Court’s obligation to “be 

scrupulous to respect judicial neutrality” in its management of collective actions, as would the 

requested (additional) extension of the opt-in period. Hoffmann-La Roche Inc. v. Sperling, 493 
31 

U.S. 165, 174 (1989). 

III. Conclusion 

 At this time, the Court can see no basis for judicial intervention in the form of the entry 

of preliminary injunctive relief as Plaintiffs have requested. Accordingly, for the reasons stated 

above, Plaintiffs’ motion for preliminary injunction, to maintain documents under seal, and to 

extend opt-in period [105] respectfully is denied. The motion to supplement [114] is granted. 

Plaintiffs are given until 5/21/2014 to show cause why the names of the opt-in Plaintiffs should 

remain under seal. This matter is set for status on 5/28/2014 at 10:30 a.m. The parties should be 

prepared to discuss Plaintiffs’ outstanding motion to strike Defendant’s third-party complaint 

[75] with the Court at that time. 

Dated: May 9, 2014 ________________________________ 

 Robert M. Dow, Jr. 

 United States District Judge