Page 1 – PLAINTIFFS’ TRIAL MEMORANDUM

Jon M. Egan, OSB 002467

Jegan@eganlegalteam.com

Jon M. Egan, PC

547 Fifth Street

Lake Oswego, OR 97034-3009

Telephone: (503) 697-3427

Fax: (866) 311-5629

Attorney for Plaintiffs

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

JESSICA GESSELE, ASHLEY ORTIZ, 

NICOLE GESSELE, TRICIA TETRAULT,

and CHRISTINA MAULDIN, both on 

behalf of themselves individually and, in 

addition, on behalf of the other similarly 

situated employees,

Plaintiffs, 

vs.

JACK IN THE BOX INC., a Delaware 

corporation doing business in Oregon as “Jack 

in the Box Inc. a Corporation of Delaware,”

Defendant.

Case No. 3:14-cv-01092-HZ

PLAINTIFFS’ TRIAL 

MEMORANDUM

TABLE OF CONTENTS

I. Material factual and legal contentions and the elements of each claim and/or 

defense ........................................................................................................................2

A. The Issues Remaining for Trial.............................................................................2

B. Elements of the claims for trial .............................................................................4

II. Additional evidentiary and testimonial issues .............................................................. 5

A. O.R.S. 652.610(3)(b) is an affirmative defense..................................................... 5

B. The shoes received by plaintiffs do not count as wages for minimum-wage 

and overtime purposes ..........................................................................................6

C. Judge Brown already decided willfulness.............................................................6

D. Due process arguments are not for the jury..........................................................6

E. Quasi-contract and common count claims are tried to the jury........................... 7

F. Plaintiffs ask the Court to allow named plaintiff Christina Peacock f/k/a 

Mauldin to testify remotely................................................................................... 7

G. Prejudgment interest for the jury to award ..........................................................8

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I. Material factual and legal contentions and the elements of each claim and/or 

defense

Per the Court’s Order, Dkt. #242, the parties cooperated to prepare and file a Joint 

Summary of All Remaining Unresolved Claims and Defenses [Dkt. 243]. 

A. The Issues Remaining for Trial 

The remaining claims and defenses for trial are: 

 1. WBF Class Claims 

• Wrongful deduction statute: The Court granted summary judgment to 

the WBF wrongful deduction class plaintiffs on liability for Jack in the Box’s 

violation of ORS 652.610. Dkt. 217, p. 51. Statutory damages under ORS 

652.615 ($200 per person) are to be determined at trial.

• Penalty wages: The Court granted summary judgment to WBF wrongful 

deduction class plaintiffs on willfulness and entitlement to penalty wages under 

ORS 652.150, subject to statute of limitations constraints. Dkt. 217, at 55.

Penalties are to be determined at trial, subject to a due process defense (which 

is not for the jury). Id. at 58.

2. Shoe Class Claims

• Wrongful deduction statute: The only remaining potentially applicable 

defense to the wrongful deduction statute concerning non-slip shoes is 

652.610(3)(b).1 The Court ruled on summary judgment that the shoes are for 

the employees’ benefit, Id. at 79, so deductibility under this section hinges on 

1 ORS 652.610(3)(b) provides: “(3) An employer may not withhold, deduct or divert any 

portion of an employee’s wages unless . . . (b) The deductions are voluntarily authorized 

in writing by the employee, are for the employee’s benefit and are recorded in the 

employer’s books.” 

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whether the deductions were “voluntarily authorized in writing by the 

employee.” It is undisputed that if any written authorizations did exist, they 

were destroyed by Jack in the Box, contrary to their document retention 

policy. For the Shoe class wrongful-deduction claim, both liability and 

statutory damages ($200/class member per ORS 652.615) are to be 

determined by the jury at trial. 

• Penalty wages: The Court ruled on summary judgment that the non-slip 

shoes were part of a uniform and not for the employees’ private benefit under 

Chapter 653, and that the deductions for the shoes were willful. Thus, to the 

extent that the deductions caused class members to receive less than the 

minimum wage or overtime wage to which they were entitled, penalty wages 

apply, as required by ORS 653.025, ORS 653.261, and ORS 653.055(b). The 

amount of penalty wages is to be determined by the jury at trial. 

• Equitable and quasi-contractual claims for return of money: 

Rescission, restitution, unjust enrichment, and money had and received

claims related to the non-slip shoes are to be determined by the jury at trial, 

on both liability and damages.

3. Franchise Transfer Class Claims

• Penalty wages: The Court granted the Franchise Transfer Class plaintiffs 

summary judgment on liability and willfulness. Id. at 134. This leaves penalty 

wages to be determined by the jury at trial. 

4. Named plaintiffs’ individual unpaid break claims

• Liability and damages are to be determined at trial. 

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B. Elements of the claims for trial

CLASS CLAIMS FOR TRIAL ELEMENTS OF PROOF

WBF CLASS Wrongful Deduction Statute -

ORS 652.610/652.615 

Liability has been established.

Statutory Damages = $200 for each class 

member, as $200 is greater than the 

wrongful deductions

WBF CLASS Penalty Wages - ORS 652.150 Liability has been established, subject to 

statute of limitations and due process 

defenses

Penalty Wages = hourly wage x 8 hrs x 30

days

SHOE

CLASS

Wrongful Deduction Statute -

ORS 652.610/652.615

Liability: Plaintiffs’ prima facie case is to 

show the deductions and their amount. Jack 

in the Box’s only remaining affirmative

defense is 652.610(3)(b); the only remaining 

element of that defense is whether the 

deductions were voluntarily authorized in 

writing 

Statutory Damages = $200 or aggregate 

amounts deducted for shoes, whichever is 

greater, for each class member

SHOE

CLASS

Penalty Wages - ORS 652.150 Liability has been established 

Penalty wages = hourly wage x 8 hrs x 30

days 

SHOE

CLASS

Unjust Enrichment Liability will involve the jury’s evaluation of 

whether JITB received a benefit from the 

class members and was aware that it did so, 

and that it is unjust for JITB to benefit 

without paying for it.

Quasi-contract Damages =

(a) The $2 kickback per pair of shoes +

(b) The remainder of the price of the shoes

SHOE

CLASS

Money Had and Received Liability will involve the jury’s evaluation of 

the equity and good conscience of JITB

requiring employees to purchase these

shoes, in addition to receiving a $2 kickback 

from the manufacturers

Common-Count Damages =

(a) The $2 kickback per pair of shoes +

(b) The remainder of the price of the shoes +

(c) Punitive damages

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CLASS CLAIMS FOR TRIAL ELEMENTS OF PROOF

SHOE

CLASS

Rescission and Restitution Liability will involve the jury’s evaluation of 

whether JITB through fraud or 

misrepresentation required employees to 

purchase these shoes without telling them 

that it was receiving a $2 kickback from the 

manufacturers

Restitution Damages =

(a) The $2 kickback per pair of shoes +

(b) The remainder of the price of the shoes

FRANCHISE 

TRANSFER

CLASS

Penalty Wages - ORS 652.150 Liability has been established 

Penalty Wages = hourly wage x 8 hrs x 

number of days until payment made

NAMED 

PLAINTIFFS

ONLY

Unpaid Breaks - ORS 

653.261(1) and OAR 839-020-

0050/839-021-0072; and 

Penalty Wages – ORS 652.150

Liability exists if Jack in the Box failed to 

pay wages due as a result of its duty to 

provide employees with appropriate meal 

periods (which are (a) 30 uninterrupted 

minutes or (b) a paid period in which to eat) 

and/or rest periods (which are paid breaks 

of at least 10 minutes for adults and 15 

minutes for minors).

Unpaid wages = the amount of hours 

underpaid x hourly rate 

Penalty wages = hourly wage x 8 hrs x 30

days for each plaintiff

II. Additional evidentiary and testimonial issues

A. O.R.S. 652.610(3)(b) is an affirmative defense

It is anticipated that Jack in the Box will attempt to argue that plaintiffs bear the 

burden of establishing O.R.S. 652.610(3)(b). Plaintiffs have already covered the status of 

O.R.S. 652.610(3)(b) as an affirmative defense, in Dkt. 292, pp. 2–4. We incorporate 

those arguments herein. To summarize, (a) this court has already ruled on multiple 

occasions in this case that it is an affirmative defense, without objection by Jack in the 

Box; (b) its status as an affirmative defense was essential to Judge Brown’s ruling 

declining to assess spoliation sanctions; and (c) a plain reading of the statute indicates 

that that subsection is an exception to the generally stated prohibition against 

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deductions. Plaintiffs need only show that deductions were made, and the amount 

thereof. It will then be Jack in the Box’s burden to show how many, if any, of those 

deductions were voluntarily authorized. Jack in the Box destroyed whatever few 

authorizations may have existed (contrary to its document retention policy), and it now 

seeks to use that willful destruction as a sword, to evade a burden that the statute clearly 

places on the employer.

B. The shoes received by plaintiffs do not count as wages for minimum-wage 

and overtime purposes

At times, Jack in the Box seems to suggest that the “value” of the shoes should be 

counted as wages in determining whether the minimum wage or overtime has been 

violated. Judge Brown has already ruled that the shoes are part of a required uniform

and are not for the employees’ private benefit. Dkt. 217 at 71. The shoes are therefore not 

“facilities” and by statute cannot be counted as wages for minimum-wage or overtime 

purposes. O.R.S. 653.035, O.A.R. 839-020-0020, 0025(5)(c), (7)(a), (7)(c)–(d).

C. Judge Brown already decided willfulness

It is anticipated that Jack in the Box may attempt to relitigate Judge Brown’s 

willfulness findings. It should not be allowed to do so. Judge Brown has already decided 

that Jack in the Box willfully made the Workers’ Benefit Fund and shoe deductions (Dkt. 

217 at p. 103), and willfully failed to promptly pay employees when their stores were 

franchised (Id. at p. 133). 

D. Due process arguments are not for the jury

It is anticipated that Jack in the Box will argue that it should be able to argue jury 

nullification for all of the claims that it has lost on summary judgment, either through 

its due process defense or otherwise. The Court has already determined liability on

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several claims as a matter of law. The compensatory and penalty damages resulting 

therefrom are a matter of statute. In a civil case, the jury is not allowed to disregard the 

law because it thinks that the law is not fair. If Jack in the Box wants to argue that a jury 

verdict exceeds that allowed by due process, it must make that claim to the Court 

following any such verdict. We will be filing a motion in limine to prohibit Jack in the

Box from arguing that the jury should award anything less than the statutorily required 

damages due to emotion, fairness, due process, or any other inappropriate reason.

E. Quasi-contract and common count claims are tried to the jury

Money had and received claims are triable to a jury under Oregon law. See, e.g.,

State Acc. Ins. Fund Corp. (SAIF) v. Anderson, 321 Or. 139, 142 (1995).

Unjust enrichment is triable to a jury under Oregon law. See, e.g., Patton v. Cox, 313 

Or.App. 262, 264 (2021). 

Rescission and restitution is an equitable remedy. Plaintiffs will try this to the Court 

simultaneously with the claims to the jury (the evidence is all the same), and the Court 

can rule on it following the verdict. We should note that plaintiffs will seek this remedy 

only if their shoe deduction and unjust enrichment and money had and received claims 

fail.

F. Plaintiffs ask the Court to allow named plaintiff Christina Peacock f/k/a 

Mauldin to testify remotely

Federal Rules of Civil Procedure 43 allows for remote testimony where good cause is 

shown. Christina Peacock f/k/a Mauldin is a school teacher in Arizona, and this trial 

takes place during the middle of the school year. Because of the combined effect of Covid 

19 and Ms. Peacock’s job duties as a teacher in proximity to many school-age children at 

work, Ms. Peacock seeks to testify remotely if the Court will allow it (and perhaps Jack 

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in the Box will stipulate to this). 

As the Court is aware, the Covid pandemic has lead courts across the country, 

including in the Ninth Circuit, to allow remote testimony. As the court in Cramton v. 

Grabbagreen Franchising LLC, 2020 WL 8620346, at *2 (D Ariz. 2020) explained:

The parties’ dispute is governed by Rule 43(a) of the Federal Rules of Civil 

Procedure. Rule 43(a) provides that, although witness testimony at trial 

ordinarily “must be taken in open court,” a district court “may permit testimony 

in open court by contemporaneous transmission from a different location” upon 

a showing of “good cause in compelling circumstances and with appropriate 

safeguards.” The 1996 advisory committee notes to Rule 43(a) explain that “[t]he 

most persuasive showings of good cause and compelling circumstances are likely 

to arise when a witness is unable to attend trial for unexpected reasons, such as 

accident or illness, but remains able to testify from a different place.” Id. (quoted 

in Palmer v. Valdez, 560 F.3d 965, 969 n.4 (9th Cir. 2009)). The 1996 advisory 

committee notes further explain that “[g]ood cause and compelling 

circumstances may be established with relative ease if all parties agree that 

testimony should be presented by transmission.”

Given these standards, the Court concludes that “good cause” and “compelling 

circumstances” exist to allow all eight of the above-mentioned witnesses . . . to 

testify remotely at trial via video teleconference. Courts have not hesitated to find 

that the COVID-19 pandemic justifies allowing out-of-state witnesses to testify 

remotely in civil trials. See, e.g., Guardant Health, Inc. v. Foundation Medicine, 

Inc., 2020 WL 6120186, *3 (D. Del. 2020) (“Courts, including this Court, are 

regularly determining that the ongoing COVID-19 pandemic constitutes good 

cause for remote testimony.”); In re RFC & ResCap Liquidating Trust Action, 

444 F. Supp. 3d 967, 971-72 (D. Minn. 2020) (granting motion to allow out-ofstate witnesses to testify via video teleconference because “the occurrence of 

COVID-19—and its impact on the health and safety of the parties and witnesses—

is undoubtably an unexpected occurrence that nevertheless still permits 

witnesses to testify from a different place”).” 

Id. 

G. Prejudgment interest for the jury to award

Prejudgment interest will be mandatory on amounts due under Oregon law. For 

example, in Wilson v. Smurfit Newsprint Corp., 197 Or App 648 (2005), the court of 

appeals held that prejudgment interest on penalty wages is required pursuant to ORS 

82.010 and ORS 652.150. The court also observed, akin to the circumstances here, that 

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the data upon which to calculate prejudgment interest for penalty wages is readily 

ascertainable:

“[T]he amount of damages at issue . . . that is, the penalty wages, is readily 

ascertainable. Defendant’s records show each plaintiff’s regular rate of pay, and 

the amount of penalty wages follows from that rate as a matter of simple 

arithmetic. Further, the date from which the interest must run is also 

ascertainable. . . . [and] interest on the penalty for nonpayment of regular wages 

to all plaintiffs and to salaried plaintiffs for nonpayment of unlawfully withheld 

insurance premiums began to run after 30 days of willful nonpayment . . .”

197 Or App at 673-74. See also Russell v. U.S. Bank Nat. Ass'n, 246 Or App 74, 80–81

(2011) 

In several cases decided in this District, it has been held that when prejudgment 

interest is based upon statute, the determination is for the court. As explained in Web 

Analytics Demystified, Inc. v. Keystone Sols., LLC, 2015 WL 13858604, at *2 (D. Or. 

2015): 

The final question is whether the right to recover prejudgment interest is to be 

determined by the court (the trial judge) or by the jury. The answer to this 

question under Oregon law depends on whether the right to recover prejudgment

interest is created by statute or by contract.

In Oregon, “[s]tatutory prejudgment interest must be determined by the court 

after trial, not by the jury during trial.” Acradyne Corp. v. Euro-Herramientas, 

S.A.U., 2007 WL 128996, *5 (D. Or. Jan. 12, 2007) (citing Cascade Corp. v. 

American Home Assur. Co., 206 Or. App. 1, 15-16 (2006)); see also Nat’l Mgmt. 

Serv. Co. v. Qwest Dex, Inc., Case No. CV-01-1772-HU (D. Or. Nov. 30, 2005) 

(“[T]he issue of prejudgment interest is one of law for the court and would arise 

only if plaintiff obtained a damages verdict.”).

When a claim for prejudgment interest is based on a contractual provision, 

however, Oregon law requires that a jury determine whether to award 

prejudgment interest, but not necessarily its precise amount.

Id. However, some courts have ruled that any factual preconditions to the calculation of 

prejudgment interest are for the jury:

“Where a claim for prejudgment interest depends on the resolution of disputed 

facts, those facts are within the province of the jury to decide. See Hoekstre v. 

Golden **220 B. Products, 77 Or.App. 104, 108–09, 712 P.2d 149 (1985), rev. 

den., 300 Or. 563, 715 P.2d 94 (1986) (discussing Langfus, Inc. v. Queirolo, 64 

Or.App. 493, 497, 668 P.2d 1245, rev. den., 296 Or. 237, 675 P.2d 491 

Case 3:14-cv-01092-HZ Document 305 Filed 08/29/22 Page 9 of 11
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(1983)); see also Miller v. C.C. Meisel Co., Inc., 183 Or.App. 148, 181, 51 P.3d 650 

(2002) (concluding that it was appropriate for the trial court not to submit the 

issue of prejudgment interest to the jury where the record contained “only one 

possible date” from which interest would accrue).” 

Farhang v. Kariminaser, 230 Or App 554, 557, 217 P3d 218, 219–20 (2009), adh'd to 

on recons, 232 Or App 353 (2009). The Farhang Court found that the trial court did not 

err in failing to award prejudgment interest where the date on which interest would 

have commenced to accrue was not clear from the record. 

Because prejudgment interest in this case will exceed the actual damages awarded 

(due to nearly 12 years having passed since the case was first filed), and because it may 

be difficult to determine which violations on which dates the jury will be awarding, 

plaintiffs believe that this important allocation is best left to the jury in this case. 

Plaintiffs will therefore be proposing a verdict form in which the jury specifies the 

amount of prejudgment interest that it is awarding on each claim. Oregon courts have 

sometimes had juries make specific allocations to prejudgment interest, especially in 

class actions. See, e.g., Strawn v. Farmers Ins. Co. of Oregon, 228 Or. App. 454, 461 

(2009), aff'd in pertinent part, rev'd in part, 350 Or. 336 (2011), adhered to on 

reconsideration, 350 Or. 521 (2011) (“The jury returned a verdict in favor of plaintiffs on 

the breach of contract, breach of an implied covenant, and fraud claims. The jury 

awarded plaintiffs $757,051.33 in compensatory damages, $742.948.67 

in prejudgment interest, and $8 million in punitive damages.”) (emphasis added). 

That way, if the jury awards less than the requested amount of economic damages for 

any claim, it will be able to adjust the prejudgment interest award to reflect which 

violations it is not awarding damages for. 

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Respectfully submitted, 

DATED this August 29, 2022

JON M. EGAN, P.C.

s/ Jon M. Egan

 

Jon M. Egan, OSB #002467

Attorney for Plaintiffs

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