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SuahEYcBD5gMZwcz7aPx | UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
SHAWN MOORE, on behalf of himself and
others similarly situated,
Plaintiff,
v.
Civil Action No.:
CLASS ACTION COMPLAINT
JURY TRIAL DEMANDED
ALLIANCEONE RECEIVABLES
MANAGEMENT, INC.,
Defendant.
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Nature of Action
1.
Shawn Moore (“Plaintiff”) brings this class action under the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., for the benefit of Florida consumers whose
private, consumer debt-related information AllianceOne Receivables Management, Inc.
(“Defendant”) disclosed to an unauthorized third party, in connection with the collection of the
Florida consumers’ debts.
2.
Congress enacted the FDCPA in 1977 to “eliminate abusive debt collection
practices by debt collectors, to insure that those debt collectors who refrain from using abusive
debt collection practices are not competitively disadvantaged,” 15 U.S.C. § 1692(e), and in
response to “abundant evidence of the use of abusive, deceptive, and unfair debt collection
practices by many debt collectors,” which Congress found to have contributed “to the number of
personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual
privacy.” Id., § 1692(a).
3.
As the Consumer Financial Protection Bureau (“CFPB”)—the federal agency
tasked with enforcing the FDCPA—once explained, “[h]armful debt collection practices remain
a significant concern today. In fact, the CFPB receives more consumer complaints about debt
collection practices than about any other issue.”1
4.
Pertinent here, section 1692c(b) of the FDCPA, titled “Communication with third
parties,” states:
Except as provided in section 1692b of this title, without the prior consent of the
consumer given directly to the debt collector, or the express permission of a court
of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment
judicial remedy, a debt collector may not communicate, in connection with the
collection of any debt, with any person other than the consumer, his attorney, a
consumer reporting agency if otherwise permitted by law, the creditor, the
attorney of the creditor, or the attorney of the debt collector.
15 U.S.C. § 1692c(b).
5.
The provision section 1692c(b) cross-references—section 1692b—governs the
manner in which a debt collector may communicate “with any person other than the consumer
for the purpose of acquiring location information.” 15 U.S.C. § 1692b.
6.
The FDCPA thus broadly prohibits a debt collector from communicating with
anyone other than the consumer “in connection with the collection of any debt,” subject to
several carefully crafted exceptions—some enumerated in section 1692c(b), and others in section
7.
Despite this prohibition—one designed to protect consumers’ privacy—debt
collectors, including Defendant, often send information regarding consumers’ alleged debts to
third-party mail vendors.
1
See Brief for the CFPB as Amicus Curiae, ECF No. 14, p. 10, Hernandez v. Williams,
Zinman,
&
Parham,
P.C.,
No.
14-15672
(9th
Cir.
Aug.
20,
2014),
http://www.ftc.gov/system/files/documents/amicus_briefs/hernandez-v.williams-zinman-
parham-p.c./140821briefhernandez1.pdf (last visited April 26, 2021).
8.
These third-party mail vendors use information provided by debt collectors—such
as a consumer’s name, the name of the creditor to whom a debt is allegedly owed, the name of
the original creditor, and the amount of an alleged debt—to fashion, print, and mail debt
collection letters to consumers.
9.
This unnecessary practice exposes private information regarding alleged debts to
third parties not exempted by the FDCPA.
10.
Upon information and belief, Defendant routinely provides protected information
regarding consumer debts to third-party mail vendors, in connection with the collection of a debt,
that are not authorized to receive such information, in violation of the FDCPA.
11.
Plaintiff seeks relief for himself and on behalf of similarly situated Florida
consumers to whom Defendant sent debt collection letters that were prepared, printed, or mailed
by a third-party mail vendor.
Parties
12.
Plaintiff is a natural person who at all relevant times resided in Broward County,
Florida.
13.
Plaintiff is obligated, or allegedly obligated, to pay a debt owed or due, or
asserted to be owed or due, a creditor other than Defendant.
14.
Plaintiff’s obligation, or alleged obligation, owed or due, or asserted to be owed
or due, arises from a transaction in which the money, property, insurance, or services that are the
subject of the transaction were incurred primarily for personal, family, or household purposes—
namely, a personal credit card (the “Debt”).
15.
Plaintiff is a “consumer” as defined by 15 U.S.C. § 1692a(3).
16.
Defendant is a corporation with its principal offices in Bucks County,
Pennsylvania.
17.
Defendant bills itself as one of the “leading accounts receivable providers today”
offering “a complete range of collection and contact center solutions designed to meet our
clients’ diverse needs.”2
18.
Defendant is an entity that at all relevant times was engaged, by use of the mails
and telephone, in the business of attempting to collect a “debt” from Plaintiff, as defined by 15
U.S.C. § 1692a(5).
19.
Upon information and belief, at the time Defendant attempted to collect the Debt
from Plaintiff, the Debt was in default, or Defendant treated the Debt as if it were in default from
the time that Defendant acquired it for collection.
20.
Defendant uses instrumentalities of interstate commerce or the mails in a business
the principal purpose of which is the collection of any debts, or to regularly collect or attempt to
collect, directly or indirectly, debts owed or due, or asserted to be owed or due, another.
21.
Defendant is a “debt collector” as defined by the FDCPA, 15 U.S.C. § 1692a(6).
22.
Defendant identified itself as a debt collector to Plaintiff in its correspondence to
Jurisdiction and Venue
23.
This Court has jurisdiction under 15 U.S.C. § 1692k(d) and 28 U.S.C. § 1331.
24.
Venue is proper before this Court under 28 U.S.C. § 1391(b) as a substantial part
of the events giving rise to the claims occurred in this district.
2
https://www.allianceoneinc.com/about/ (last visited April 26, 2021).
Factual Allegations
25.
On or about February 11, 2021, Defendant caused a written communication to be
sent to Plaintiff in connection with the collection of the Debt.
26.
A true and correct copy of the February 11, 2021 communication to Plaintiff is
attached, in redacted form, as Exhibit A.
27.
The February 11, 2021 letter disclosed the balance of the Debt. Ex. A.
28.
The February 11, 2021 letter also identified the creditor to whom Defendant
alleged the Debt was owed. Id.
29.
The February 11, 2021 letter identified additional information regarding the Debt,
including the account number. Id.
30.
The February 11, 2021 letter identified Defendant as a debt collector and stated:
“This communication is from a debt collector. This is an attempt to collect a debt, and any
information obtained will be used for that purpose.” Id.
31.
Upon information and belief, Defendant did not print the February 11, 2021 letter.
32.
Rather, upon information and belief, Defendant, in connection with the collection
of a debt, provided information regarding Plaintiff and the Debt, including Plaintiff’s name,
address, the amount of the Debt, and other private details regarding the Debt, to a third-party
mail vendor.
33.
The third-party mail vendor then printed the February 11, 2021 communication
and sent it to Plaintiff.
34.
The return address on the February 11, 2021 communication does not match
Defendant’s address.
35.
The return address on the February 11, 2021 communication includes a P.O. Box
in Oaks, Pennsylvania that appears to be associated with RevSpring, Inc., a third-party mail
vendor.
36.
RevSpring maintains corporate offices in Oaks, Pennsylvania and offers
comprehensive print and mail services.3
37.
RevSpring touts that “North America’s leading healthcare organizations, revenue
cycle management, and accounts receivables management companies trust us to maximize their
financial results through dynamic and personalized print, online, phone, email, and text
communications and self-service payment options.”4
38.
RevSpring also advertises partnerships with “industry-leading associations,”
including The Association of Credit and Collection Professionals (also known as ACA
International).5
39.
Plaintiff did not provide Defendant prior express consent to communicate, in
connection with the collection of the Debt, with any third-party mail vendor.
Class Action Allegations
40.
Plaintiff brings this action as a class action pursuant to Federal Rules of Civil
Procedure 23(a) and (b)(3) on behalf of a class consisting of:
All persons (a) with a Florida address, (b) to whom AllianceOne Receivables
Management, Inc. sent, or caused to be sent, a debt collection communication, (c)
in connection with the collection of a consumer debt, (d) in the one year
preceding the date of this complaint through the date of class certification, (e) that
was prepared or mailed by a third-party vendor.
3
https://revspringinc.com/about/ (last visited April 26, 2021).
4
Id.
5
Id.
41.
Excluded from the class is Defendant, its officers and directors, members of their
immediate families and their legal representatives, heirs, successors, or assigns, and any entity in
which Defendant has or had controlling interests.
42.
The class satisfies Rule 23(a)(1) because, upon information and belief, it is so
numerous that joinder of all members is impracticable.
43.
The exact number of class members is unknown to Plaintiff at this time and can
only be determined through appropriate discovery.
44.
The class is ascertainable because it is defined by reference to objective criteria.
45.
In addition, upon information and belief, the names and addresses of all members
of the proposed class can be identified through business records maintained by Defendant.
46.
The class satisfies Rules 23(a)(2) and (3) because Plaintiff’s claims are typical of
the claims of the members of the class.
47.
To be sure, Plaintiff’s claims and those of the members of the class originate from
the same practice utilized by Defendant—the sending of personal, private information regarding
alleged debts to a third-party mail vendor—and Plaintiff thus possesses the same interests and
has suffered the same injuries as each member of the class.
48.
Plaintiff satisfies Rule 23(a)(4) because he will fairly and adequately protect the
interests of the members of the class and has retained counsel experienced and competent in
class action litigation.
49.
Plaintiff has no interests that are contrary to or in conflict with the members of the
class that he seeks to represent.
50.
A class action is superior to all other available methods for the fair and efficient
adjudication of this controversy since, upon information and belief, joinder of all members is
impracticable.
51.
Furthermore, as the damages suffered by individual members of the class may be
relatively small, the expense and burden of individual litigation could make it impracticable for
the members of the class to individually redress the wrongs done to them.
52.
There will be no unusual difficulty in the management of this action as a class
53.
Issues of law and fact common to the members of the class predominate over any
questions that may affect only individual members, in that Defendant has acted on grounds
generally applicable to the class.
54.
Among the issues of law and fact common to the class:
a. Defendant’s violations of the FDCPA as Plaintiff alleges;
b. whether Defendant is a debt collector as defined by the FDCPA;
c. whether Defendant’s communications with third-party mail vendors regarding
consumers’ alleged debts violate the FDCPA;
d. the availability of declaratory relief;
e. the availability of actual damages and statutory penalties; and
f. the availability of attorneys’ fees and costs.
55.
Absent a class action, Defendant’s violations of the law will be allowed to
proceed without a full, fair, judicially supervised remedy.
Count I: Violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692c(b)
56.
Plaintiff repeats and re-alleges each and every factual allegation contained in
paragraphs 1 through 55 above.
57.
Pertinent here, the FDCPA at 15 U.S.C. § 1692c(b) provides that “a debt collector
may not communicate, in connection with the collection of any debt, with any person other than
the consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the
creditor, the attorney of the creditor, or the attorney of the debt collector.”
58.
By communicating regarding the Debt, including by disclosing, among other
things, the existence of the Debt, the amount owed, and the alleged creditor, with a third-party
mail vendor, Defendant violated 15 U.S.C. § 1692c(b). See Hunstein v. Preferred Collection &
Mgmt. Servs., Inc., --- F.3d ----, 2021 WL 1556069 (11th Cir. Apr. 21, 2021).
59.
The harm Plaintiff suffered is particularized in that the violative initial debt
collection letter at issue was sent to him personally and regarded his personal alleged Debt.
60.
And the violation of Plaintiff’s right not to have his private information shared
with third parties is a concrete injury sufficient to confer standing.
61.
To be sure, the harm Plaintiff alleges here—disclosure of private information of a
personal, sensitive nature to third-party vendors—is precisely the type of abusive debt collection
practice that the FDCPA was designed to prevent.
62.
Additionally, by communicating with a third party in connection with the
collection of the Debt, Defendant harmed Plaintiff by invading his privacy.
63.
That is, by communicating with a third party in connection with the collection of
the Debt, Defendant harmed Plaintiff by disclosing private facts about his debt.
WHEREFORE, Plaintiff respectfully requests relief and judgment as follows:
A. Determining that this action is a proper class action under Rule 23 of the Federal
Rules of Civil Procedure;
B. Adjudging and declaring that Defendant violated 15 U.S.C. § 1692c(b);
C. Awarding Plaintiff and members of the class statutory damages pursuant to 15
U.S.C. § 1692k;
D. Awarding members of the class actual damages incurred, as applicable, pursuant
to 15 U.S.C. § 1692k;
E. Enjoining Defendant from future violations of 15 U.S.C. § 1692c(b) with respect
to Plaintiff and the class;
F. Awarding Plaintiff and members of the class their reasonable costs and attorneys’
fees incurred in this action, including expert fees, pursuant to 15 U.S.C. § 1692k
and Rule 23 of the Federal Rules of Civil Procedure;
G. Awarding Plaintiff and the members of the class any pre-judgment and post-
judgment interest as may be allowed under the law; and
H. Awarding other and further relief as the Court may deem just and proper.
Jury Demand
Pursuant to Federal Rule of Civil Procedure 38(b), Plaintiff demands a trial by jury of any
and all triable issues.
Dated: April 27, 2021
Respectfully submitted,
/s/ Aaron D. Radbil
Aaron D. Radbil
Florida Bar No. 047117
Michael L. Greenwald
Florida Bar No. 761761
GREENWALD DAVIDSON RADBIL PLLC
7601 N. Federal Hwy., Suite A-230
Boca Raton, FL 33487
Tel: (561) 826-5477
aradbil@gdrlawfirm.com
mgreenwald@gdrlawfirm.com
Matthew Bavaro
Florida Bar No. 175821
Loan Lawyers
3201 Griffin Road, Suite 100
Ft. Lauderdale, FL 33312
Tel: (954) 523-4357
Matthew@Fight13.com
Counsel for Plaintiff and the proposed class
| consumer fraud |
MUyPA4kBRpLueGJZOggM | UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
GERALD DAVIS, JR., Individually and on
Behalf of All Others Similarly Situated,
Civil Action No. __________
COLLECTIVE ACTION (29 U.S.C. § 216(b))
STEWARD ENERGY II, LLC.
CLASS ACTION (F.R.C.P. 23)
ORIGINAL COLLECTIVE ACTION COMPLAINT
SUMMARY
1.
Plaintiff Gerald Davis, Jr. (Davis) brings this lawsuit to recover unpaid overtime wages
and other damages under the Fair Labor Standards Act (“FLSA”) and the New Mexico Minimum
Wage Act, NMSA §50-4-19, et. seq. (“NMMWA”) against Defendant Steward Energy II, LLC.
(“Steward”).
2.
Davis and the other workers like him were regularly worked for Steward in excess of
40 hours each week.
3.
But these workers never received overtime for hours worked in excess of 40 hours in
a single workweek.
4.
Instead of paying overtime as required by the FLSA, Steward paid these workers a
daily rate with no overtime pay and improperly classified them as independent contractors. This
collective action seeks to recover the unpaid overtime wages and other damages owed to these workers.
JURISDICTION AND VENUE
5.
This Court has original subject matter jurisdiction pursuant to 28 U.S.C. § 1331
because this action involves a federal question under the FLSA. 29 U.S.C. § 216(b).
6.
The Court has supplemental jurisdiction over state law claims pursuant to 28 U.S.C. §
7.
Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b)(2) because a substantial
amount of the events giving rise to the claims occurred in this district and division. Specifically, Davis
worked for Steward in and around Lea County.
THE PARTIES
8.
Davis worked exclusively for Steward as a Completions and Production Consultant
from May 2018 through April 2020. Throughout his employment with Steward, he was paid a day-
rate with no overtime compensation and was classified as an independent contractor. His consent to
be a party plaintiff is attached as Exhibit A.
9.
Davis brings this action on behalf of himself and all other similarly situated workers
who were classified as independent contractors and paid by Steward’s day-rate system. Steward paid
each of these workers a flat amount for each day worked and failed to pay them overtime for all hours
that they worked in excess of 40 hours in a workweek in accordance with the FLSA. The class of
similarly situated employees (“Putative Class Members”) consists of:
All current and former oilfield workers employed by, or working on behalf of,
Steward Energy II, LLC during the past three years who were classified as
independent contractors and paid a day-rate.
10.
Second, Davis represents a class of similarly situated workers under the NMMWA
pursuant to Federal Rule of Civil Procedure 23. The NMMWA Class is defined as:
All current and former oilfield workers employed by, or working on behalf of,
Steward Energy II, LLC in New Mexico during the past three years who were
classified as independent contractors and paid a day-rate.
11.
Collectively, the FLSA Class Members and NMMWA Class Members are referred to
as the “Putative Class Members.”
- 2 -
12.
Steward Energy II, LLC is a foreign corporation doing business throughout Texas and
New Mexico and may be served with process at its corporate headquarters at 3211 Internet Blvd.,
Suite 150, Frisco, Texas 75034 or wherever they may be found.
COVERAGE UNDER THE FLSA
13.
For at least the past three years, Steward has been an employer within the meaning of
section 3(d) of the FLSA, 29 U.S.C. § 203(d).
14.
For at least the past three years, Steward has been part of an enterprise within the
meaning of section 3(r) of the FLSA, 29 U.S.C. § 203(r).
15.
For at least the past three years, Steward has been part of an enterprise engaged in
commerce or in the production of goods for commerce within the meaning of section 3(s)(1) of the
FLSA, 29 U.S.C. § 203(s)(1), in that said enterprise has and has had employees engaged in commerce
or in the production of goods for commerce, or employees handling, selling, or otherwise working on
goods or materials that have been moved in or produced for commerce by any person and in that said
enterprise has had and has an annual gross volume of sales made or business done of not less than
$1,000,000 (exclusive of excise taxes at the retail level which are separately stated).
16.
For at least the past three years, Davis and the Putative Class Members were engaged
in commerce or in the production of goods for commerce.
17.
Steward treated Davis (and indeed all its workers that it classified as independent
contractors) as employees and uniformly dictated the pay practices to which Davis and its other
employees (including its so-called “independent contractors”) were subjected.
18.
Steward’s misclassification of Davis as an independent contractor does not alter its
status as an employer for purposes of this FLSA collective action.
- 3 -
FACTS
19.
Steward Energy II, LLC is an oil and natural gas exploration and production company
operating throughout the Permian Basin in Texas and New Mexico.1
20.
To complete its business objectives, Steward hires oilfield personnel to perform the
necessary work.
21.
During the relevant time period Steward hired and fired, supervised and controlled,
set pay, determined hours, and approved time sheets with respect to the Putative Class Members that
performed work for them.
22.
Many of these individuals who worked for Steward as oilfield workers were paid on a
day-rate basis and make up the proposed Putative Class. While exact job titles and job duties may
differ, these employees are subjected to the same or similar illegal pay practices for similar work.
Specifically, Steward classified its oilfield workers as independent contractors and paid them a flat sum
for each day worked, regardless of the number of hours that they worked that day (or in that
workweek) and failed to provide them with overtime pay for hours that they worked in excess of 40
hours in a workweek.
23.
For example, Davis worked exclusively for Steward from May 2018 through April 2020
as a Completions and Production Consultant. Throughout his employment with Steward, he was
classified as an independent contractor and paid on a day-rate basis.
24.
As a Completions and Production Consultant, Davis’ primary job duties included
ensuring that the completion of the well, and production following completion, was carried out
1 See https://stewardenergy.net/ (last visited September 17, 2020).
- 4 -
according to Steward’s specifications and well plan, as needed. Davis worked well in excess of 40 hours
each week while employed by Steward.
25.
The work Davis performed was an essential party of Steward’s core business.
26.
During Davis’ employment with Steward while he was classified as an independent
contractor, Steward exercised control over all aspects of his job. Steward did not require any
substantial investment by Davis for him to perform the work required of him.
27.
Davis was not required to possess any unique or specialized skillset (other than that
maintained by all other workers) to perform his job duties.
28.
Steward determined Davis’ opportunity for profit and loss.
29.
Steward controlled all the significant or meaningful aspects of the job duties
performed by Davis.
30.
Steward ordered the hours and locations Davis worked, tools used, and rates of pay
received.
31.
Steward controlled all aspects of Davis’ job activities by enforcing mandatory
compliance with Steward’s policies and procedures.
32.
No real investment was required of Davis to perform his job. Davis utilized equipment
provided by Steward to perform his job duties.
33.
Davis did not provide the equipment he worked with on a daily basis.
34.
Steward made the large capital investments in buildings, machines, equipment, tools,
and supplied in the business in which Davis worked.
35.
Davis did not incur operating expenses like rent, payroll and marketing.
36.
Davis was economically dependent on Steward during his employment.
37.
Steward set Davis’ rates of pay, his work schedule, and prohibited him from working
other jobs for other companies while he was working on jobs for Steward.
- 5 -
38.
Steward directly determined Davis’ opportunity for profit and loss. Davis’ earning
opportunity was based on the number of days Steward scheduled him to work.
39.
Very little skill, training, or initiative was required of Davis to perform his job duties.
40.
Indeed, the daily and weekly activities of the Putative Class Members were routine and
largely governed by standardized plans, procedures, and checklists created by Steward.
41.
Virtually every job function was pre-determined by Steward, including the tools to use
at a job site, the data to compile, the schedule of work, and related work duties.
42.
The Putative Class Members were prohibited from varying their job duties outside of
the pre-determined parameters. Moreover, the job functions of the Putative Class Members were
primarily manual labor/technical in nature, requiring little to no official training, much less a college
education or other advanced degree.
43.
For the purposes of an FLSA overtime claim, the Putative Class Members performed
substantially similar job duties related to servicing oil and gas operations in the field.
44.
Davis performed routine manual and technical labor duties that were largely dictated
by Steward.
45.
Davis was not employed by Steward on a project-by-project basis.
46.
In fact, while Davis was classified as an independent contractor, he was regularly on
call for Steward and was expected to drop everything and work whenever needed.
47.
The Putative Class Members also worked similar hours and were denied overtime as a
result of the same illegal pay practice. The Putative Class Members all worked in excess of 40 hours
each week and were often scheduled for 12-hour shifts for weeks at a time. Instead of paying them
overtime, Steward paid the Putative Class Members a day-rate. Steward denied the Putative Class
Members overtime for any hours worked in excess of 40 hours in a single workweek.
- 6 -
48.
Steward’s policy of failing to pay its independent contractors, including Davis,
overtime violates the FLSA because these workers are, for all purposes, employees performing non-
exempt job duties.
49.
Because Davis (and Steward’s other independent contractors) was misclassified as an
independent contractor by Steward, he should receive overtime for all hours that he worked in excess
of 40 hours in each workweek.
50.
Steward’s day-rate system violates the FLSA and NMMWA because Davis and the
Putative Class Members did not receive any pay for hours worked over 40 hours each week.
CLASS AND COLLECTIVE ACTION ALLEGATIONS
51.
Davis incorporates all previous paragraphs and alleges that the illegal pay practices
Steward imposed on Davis were likewise imposed on the Putative Class Members.
52.
In addition to Davis, Steward employed other Putative Class Members who worked
over forty hours per week with no overtime pay, were paid a day rate, and were misclassified as
independent contractors. The Putative Class Members were subjected to the same unlawful policies
which constitutes a willful violation of the FLSA. They are all entitled to overtime after 40 hours in a
week and the overtime they are entitled to must be calculated in a manner consistent with the
requirements of the FLSA and NMMWA. Davis and the members of the Putative Class are similarly
situated in all relevant respects.
53.
Steward imposed a uniform practice or policy on Davis and all Putative Class Members
regardless of any individualized factors.
54.
Steward’s failure to pay wages and overtime compensation at the rates required by the
FLSA and NMMWA result from generally applicable, systematic policy and/or practice which are not
dependent on the personal circumstances of any member of the Putative Class.
55.
Davis’ experiences are typical of the experiences of all Putative Class Members.
- 7 -
56.
Davis has no interest contrary to, or in conflict with, the members of the Putative
Class Members. Like each member of the proposed classes, Davis has an interest in obtaining the
unpaid overtime wages owed under state and/or federal law.
57.
A class and collective action, such as the instant one, is superior to other available
means for fair and efficient adjudication of the lawsuit.
58.
Absent this action, many members of the FLSA Class and NMMWA Class likely will
not obtain redress of their injuries and Steward will retain the proceeds of their violations of the
FLSA and NMMWA.
59.
Furthermore, individual litigation would be unduly burdensome to the judicial system.
Concentrating the litigation in one forum will promote judicial economy and parity among the claims
of individual members of the classes and provide for judicial consistency.
60.
The questions of law and facts common to each of the FLSA and NMMWA Putative
Class Members predominate over any questions affecting solely the individual members. Among the
common questions of law and fact are:
a.
Whether Steward employed the FLSA and NMMWA Putative Class Members
within the meaning of the FLSA and NMMWA;
b.
Whether Putative Class Members were exempt from overtime under the FLSA
and/or NMMWA;
c.
Whether Steward’s decision not to pay overtime to the Putative Class Members
was made in good faith under the FLSA; and
d.
Whether Steward’s violation of the FLSA was willful.
61.
Davis’ claims are typical of the FLSA and NMMWA Class Members since both have
sustained damages arising out of Steward’s illegal and uniform employment pay policy.
62.
Davis knows of no difficulty that will be encountered in the management of this
litigation that would preclude its ability to go forward as a class or collective action.
- 8 -
63.
Although the issue of damages may be somewhat individual in character, there is no
detraction from the common nucleus of liability facts. Therefore, this issue does not preclude class or
collective action treatment.
64.
The FLSA Class should be notified of this action and given the chance to join pursuant
to 29 U.S.C. § 216(b).
CAUSE OF ACTION
Violation of the FLSA and NMMWA
65.
Davis incorporates the preceding paragraphs by reference.
66.
As set forth herein, Steward violated the FLSA and NMMWA by failing to pay Davis
and the Putative Class Members overtime at one and one-half times the regular rate of pay under the
hourly system, for hours worked in excess of 40 in a workweek. 29 U.S.C. § 207(a); NMSA § 50-4-22.
67.
At all relevant times, Steward has been an employer engaged in interstate commerce
and/or the production of goods for commerce, within the meaning of the FLSA.
68.
The economic reality of their working relationship is that Steward employed Davis
and each member of the Putative Class.
69.
Steward’s pay policy denied Davis and the Putative Class Members overtime
compensation at the legal overtime rates required by the FLSA and NMMWA.
70.
Steward owes Davis and the Putative Class Members overtime wages equal to 1 and
½ their regular rates for each overtime hour worked during the last three years.
71.
Steward knew, or showed reckless disregard for whether, its failure to pay overtime
violated the FLSA. Its failure to pay overtime to Davis and the FLSA Class is willful.
72.
Due to Steward’s FLSA and NMMWA violations, Davis and the Putative Class
Members are entitled to recover from Steward their unpaid overtime compensation, liquidated
damages, treble damages, reasonable attorney fees, costs, and expenses of this action.
- 9 -
73.
The improper pay practices at issue were part of a continuing course of conduct,
entitling Davis and the Putative Class Members to recover for all such violations, regardless of the
date they occurred.
JURY DEMAND
74.
Davis demands a trial by jury.
RELIEF SOUGHT
75.
WHEREFORE, Davis prays for judgment against Steward as follows:
(a)
For an order allowing this action to proceed as a collective action and directing
notice to the class;
(b)
For an order pursuant to section 16(b) of the FLSA finding Steward liable for
unpaid back wages, and an equal amount of liquidated damages, due to Davis
and the class members;
(c)
An order certifying class action(s) under F.R.C.P 23 for the purposes of the
claims under New Mexico law;
(d)
For an order awarding Davis and the class members the costs of this action;
(e)
For an order awarding Davis and the class members their attorneys’ fees;
(f)
For an order awarding Davis and the class members unpaid benefits and
compensation in connection with the FLSA and state law violations;
(g)
For an order awarding Davis and the class members pre- and post-judgment
interest at the highest rates allowed by law; and
(h)
For an order granting such other and further relief as may be necessary and
appropriate.
Respectfully submitted,
- 10 -
By: /s/ Michael A. Josephson
Michael A. Josephson
Texas Bar No. 24014780
mjosephson@mybackwages.com
Andrew W. Dunlap
Texas Bar No. 24078444
adunlap@mybackwages.com
JOSEPHSON DUNLAP
11 Greenway Plaza, Suite 3050
Houston, Texas 77046
713-352-1100 – Telephone
713-352-3300 – Facsimile
AND
Richard J. (Rex) Burch
Texas Bar No. 24001807
BRUCKNER BURCH, P.L.L.C.
8 Greenway Plaza, Suite 1500
Houston, Texas 77046
713-877-8788 – Telephone
713-877-8065 – Facsimile
rburch@brucknerburch.com
ATTORNEYS IN CHARGE FOR PLAINTIFF
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| employment & labor |
PRM9F4cBD5gMZwczNLxW | UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
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DAVID KATT, on behalf of himself and
all others similarly situated,
Plaintiffs,
v.
CLASS ACTION COMPLAINT
ANB BANK,
FOR INJUNCTIVE AND
DECLARATORY RELIEF
Defendant.
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INTRODUCTION
1.
Plaintiff DAVID KATT (“Plaintiff”), on behalf of himself and others similarly situated,
asserts the following claims against ANB BANK (“Defendant”) as follows.
2.
Based on a 2010 U.S. Census Bureau report, approximately 8.1 million people in the
United States are visually impaired, including 2.1 million who are blind. According to the
American Foundation for the Blind’s 2017 report, approximately 110,000 visually
impaired persons live in the State of Colorado.
3.
“Being unable to access website puts individuals at a great disadvantage in today’s society,
which is driven by a dynamic electronic marketplace and unprecedented access to
information.” U.S. Dep’t of Justice, Statement of Eve L. Hill before the Senate Comm. on
Health, Educ., Labor & Pensions, at 3 (May 14, 2013).
4.
Plaintiff is a blind, visually impaired handicapped person and a member of a protected class
of individuals under the ADA, under 42 U.S.C. § 12102(1)-(2), and the regulations
implementing the ADA set forth at 28 CFR §§ 36.101 et seq.
5.
Plaintiff requires screen-reading software to read website content using his computer.
Plaintiff uses the terms “blind” or “visually-impaired” to refer to all people with visual
impairments who meet the legal definition of blindness in that they have a visual acuity
with correction of less than or equal to 20 x 200.
6.
Plaintiff brings this civil rights action against Defendant to enforce Title III of the
Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“Title III”), which requires,
among other things, that a public accommodation (1) not deny persons with disabilities the
benefits of its services, facilities, privileges and advantages; (2) provide such persons with
benefits that are equal to those provided to nondisabled persons; (3) provide auxiliary aids
and services—including electronic services for use with a computer screen reading
program—where necessary to ensure effective communication with individuals with a
visual disability, and to ensure that such persons are not excluded, denied services,
segregated or otherwise treated differently than sighted individuals; and (4) utilize
administrative methods, practices, and policies that provide persons with disabilities equal
access to online content.
7.
By failing to make its Website available in a manner compatible with computer screen
reader programs, ANB BANK , a public accommodation subject to Title III, deprives blind
and visually-impaired individuals the benefits of its online goods, content, and services—
all benefits it affords nondisabled individuals—thereby increasing the sense of isolation
and stigma among these Americans that Title III was meant to redress.
8.
Upon information and belief, because ANB BANK ’s Website has never been accessible
and because ANB BANK does not have, and has never had, an adequate corporate policy
that is reasonably calculated to cause its Website to become and remain accessible, Plaintiff
invokes 42 U.S.C. § 12188(a)(2) and seeks a permanent injunction requiring:
a.
that ANB BANK retain a qualified consultant acceptable to Plaintiff (“Mutually
Agreed Upon Consultant”) who shall assist it in improving the accessibility of its
Website so the goods and services on them may be equally accessed and enjoyed by
individuals with vision related disabilities;
b. that ANB BANK work with the Mutually Agreed Upon Consultant to ensure that all
employees involved in website development and content development be given web
accessibility training on a periodic basis, including onsite training to create accessible
content at the design and development stages;
c.
that ANB BANK work with the Mutually Agreed Upon Consultant to perform an
automated accessibility audit on a periodic basis to evaluate whether ANB BANK ’s
Website may be equally accessed and enjoyed by individuals with vision related
disabilities on an ongoing basis;
d. that ANB BANK work with the Mutually Agreed Upon Consultant to perform end-
user accessibility/usability testing on a periodic basis with said testing to be performed
by individuals with various disabilities to evaluate whether ANB BANK ’s Website
may be equally accessed and enjoyed by individuals with vision related disabilities on
an ongoing basis;
e.
that ANB BANK work with the Mutually Agreed Upon Consultant to create an
accessibility policy that will be posted on its Website, along with an e-mail address and
tollfree phone number to report accessibility-related problems; and
f.
that Plaintiff, their counsel and its experts monitor Defendant’s Website for up to two
years after the Mutually Agreed Upon Consultant validates it is free of accessibility
errors/violations to ensure ANB BANK has adopted and implemented adequate
accessibility policies.
9.
Web-based technologies have features and content that are modified on a daily, and
in some instances, an hourly, basis, and a one time “fix” to an inaccessible website will not
cause the website to remain accessible without a corresponding change in corporate
policies related to those web-based technologies. To evaluate whether an inaccessible
website has been rendered accessible, and whether corporate policies related to web-based
technologies have been changed in a meaningful manner that will cause the website to
remain accessible, the website must be reviewed on a periodic basis using both automated
accessibility screening tools and end user testing by disabled individuals.
JURISDICTION AND VENUE
10.
This Court has subject-matter jurisdiction over this action under 28 U.S.C. § 1331 and 42
U.S.C. § 12188.
11.
Venue is proper in this district under 28 U.S.C. §1391(b)(1) and (2) because Defendant
conducts and continues to conduct a substantial and significant amount of business in this
District, and a substantial portion of the conduct complained of herein occurred in this
District.
12.
Defendant is subject to personal jurisdiction in this District. Defendant has been and is
committing the acts or omissions alleged herein in the District of Colorado that caused
injury and violated rights the ADA prescribes to Plaintiff and to other blind and other
visually impaired consumers.
13.
A substantial part of the acts and omissions giving rise to Plaintiff’s claims occurred in the
in this District: on several separate occasions, Plaintiff has been denied the full use and
enjoyment of the facilities, goods and services of Defendant’s physical locations and/or
Website in Colorado. These access barriers that Plaintiff encountered have caused a denial
of Plaintiff’s full and equal access multiple times in the past, and now deter Plaintiff on a
regular basis from visiting Defendant’s brick-and mortar physical locations, which Plaintiff
intends to do once the Website is accessible to all.
14.
Defendant also purposefully targets and otherwise solicits business from Colorado
residents through its Website. Because of this targeting, it is not unusual for Defendant to
conduct business with Colorado residents. In fact, the opposite is true: Defendant clearly
does business over the Internet with Colorado residents, having entered into contracts with
Colorado residents that involve the knowing and repeated transmission of computer files
over the Internet. See Gniewkowski v. Lettuce Entertain You, Order, ECF No. 123 (W.D.
Pa Apr. 25, 2017) clarified by Order of Court, ECF No. 169 (W.D. Pa. June 22, 2017)
(Judge Schwab) (The court exercised personal jurisdiction over an out-of-forum defendant
for claims its website is inaccessible to a visually disabled resident of the forum state.); see
also Access Now Inc. v. Otter Products, LLC, Case No. 1:17-cv-10967-PBS (D.Mass. Dec.
4, 2017) (exercising personal jurisdiction over forum-based plaintiff’s website accessibility
claims against out-of-forum website operator).
15.
This Court is empowered to issue a declaratory judgment under 28 U.S.C. §§ 2201 and
2202.
PARTIES
16.
Plaintiff, at all relevant times, is and was a resident of Douglas County, Colorado.
17.
Defendant is and was at all relevant times a Colorado Corporation doing business in
Colorado.
18.
Defendant’s physical locations, its Website and the goods and services offered thereupon,
is a public accommodation within the definition of Title III of the ADA, 42 U.S.C.
§12181(7).
NATURE OF ACTION
19.
The Internet has become a significant source of information, a portal, and a tool for
conducting business, doing everyday activities such as shopping, learning, banking,
researching, as well as many other activities for sighted, blind and visually impaired
persons alike.
20.
In today’s tech-savvy world, blind and visually impaired people have the ability to access
website using keyboards in conjunction with screen access software that vocalizes the
visual information found on a computer screen or displays the content on a refreshable
Braille display. This technology is known as screen-reading software. Screen-reading
software is currently the only method a blind or visually impaired person may
independently access the internet. Unless websites are designed to be read by screen-
reading software, blind and visually impaired persons are unable to fully access websites,
and the information, products, goods and services contained thereon.
21.
Blind and visually impaired users of Windows operating system-enabled computers and
devices have several screen-reading software programs available to them. Some of these
programs are available for purchase and other programs are available without the user
having to purchase the program separately. One such program is NonVisual Desktop
Access, better known as “NVDA.”
22.
For screen-reading software to function, the information on a website must be capable of
being rendered into text. If the website content is not capable of being rendered into text,
the visually impaired user is unable to access the same content available to sighted users.
23.
The international website standards organization, the World Wide Web Consortium,
known throughout the world as W3C, has published version 2.1 of the Web Content
Accessibility Guidelines (“WCAG 2.1”). WCAG 2.1 are well-established guidelines for
making website accessible to blind and visually impaired people. These guidelines are
universally followed by most large business entities and government agencies to ensure
their website are accessible.
STATEMENT OF FACTS
24.
Defendant is a bank that owns and operates its physical branches as well as its Website,
www.anbbank.com, offering features which should allow all consumers to access the
goods and services offered in connection with its physical locations.
25.
Defendant operates multiple branches throughout the United States, including its branch
located at 444 17th Street Denver, CO 80202.
26.
Defendant offers its Website in connection with its physical locations. The goods and
services offered by Defendant through its Website include but are not limited to the
following: branch locations and hours, contact information, and related goods and services
available both online and in branches.
27.
It is, upon information and belief, Defendant’s policy and practice to deny Plaintiff, along
with other blind or visually impaired users, access to Defendant’s Website, and to therefore
specifically deny the goods and services that are offered and integrated with Defendant’s
branches. Due to Defendant’s failure and refusal to remove access barriers to its website,
Plaintiff and visually impaired persons have been and are still being denied equal access to
Defendant’s branches and the numerous goods, services and benefits offered to the public
through its Website.
28.
Plaintiff is a visually impaired and legally blind person, who cannot use a computer without
the assistance of screen-reading software. Plaintiff is, however, a proficient NVDA screen-
reader user and uses it to access the Internet.
29.
During Plaintiff’s visits to the Website, the last occurring in November of 2019, Plaintiff
encountered multiple access barriers that denied him full and equal access to the facilities,
goods and services offered by Defendant to the public. Plaintiff was thus unable to: learn
about branch locations and hours; make an online transaction, and related goods and
services available both online and in branches.
30.
Due to Defendant’s failure to build its Website in a manner that is compatible with screen
reader programs, Plaintiff is and was unable to understand, and thus is denied the benefit
of, much of the content and services he wishes to access or use. For example:
a.
Many features on the Website lacks alt. text, which is the invisible code
embedded beneath a graphical image. As a result, Plaintiff was unable to differentiate
what products were on the screen due to the failure of the Website to adequately
describe its content.
b. Many features on the Website also fail to Add a label element or title attribute for each
field. This is a problem for the visually impaired because the screen reader fails to
communicate the purpose of the page element. It also leads to the user not being able
to understand what he or she is expected to insert into the subject field.
c.
The Website also contains a host of broken links, which is a hyperlink to a non-existent
or empty webpage. For the visually impaired this is especially paralyzing due to the
inability to navigate or otherwise determine where one is on the website once a broken
link is encountered.
31.
As a result of visiting Defendant’s Website and from investigations performed on his
behalf, Plaintiff is aware that the Website includes at least the following additional barriers
blocking his full and equal use:
a.
The Website does not provide a text equivalent for every non-text element;
b. The purpose of each link cannot be determined from the link text alone or from the link
text and its programmatically determined link context;
c.
Web pages lack titles that describe their topic or purpose;
d. Headings and labels do not describe topic or purpose;
e.
Keyboard user interfaces lack a mode of operation where the keyboard focus indicator
is visible;
f.
The default human language of each web page cannot be programmatically determined;
g. The human language of each passage or phrase in the content cannot be
programmatically determined;
h. Labels or instructions are not always provided when content requires user input;
i.
Text cannot be resized up to 200 percent without assistive technology so that it may
still be viewed without loss of content or functionality;
j.
A mechanism is not always available to bypass blocks of content that are repeated on
multiple web pages;
k. A correct reading sequence is not provided on pages where the sequence in which
content is presented affects its meaning;
l.
In content implemented using markup languages, elements do not always have
complete start and end tags, are not nested according to their specifications, may
contain duplicate attributes, and IDs are not always unique; and
m. The name and role of all UI elements cannot be programmatically determined; things
that can be set by the user cannot be programmatically set; and/or notification of
changes to these items is not available to user agents, including assistive technology.
32.
Due to the inaccessibility of Defendant’s Website, blind and visually impaired individuals
such as Plaintiff, who need screen-readers, cannot fully and equally use or enjoy the
facilities, products, and services Defendant offers to the public through its Website. The
access barriers Plaintiff encountered have caused a denial of Plaintiff’s full and equal
access in the past, and now deter Plaintiff on a regular basis from visiting the Website in
order to perform functions equal to the sighted.
33.
These access barriers on Defendant’s Website have deterred Plaintiff from visiting
Defendant’s physical locations and enjoying them equal to sighted individuals because:
Plaintiff was unable to find the location and hours of operation of Defendant’s branches on
its Website and other important information, preventing Plaintiff from visiting the locations
to take advantage of the goods and services that it provides to the public.
34.
If the Website were equally accessible to all, Plaintiff could independently navigate the
Website and complete a desired transaction as sighted individuals do. In fact, Plaintiff
intends to return to the Website when it is equally accessible for visually-impaired
consumers in order to complete his intended transaction, as it is more convenient for
Plaintiff to access the Website to make a transaction than to travel to a physical location to
make the same transaction. However, as long as the Access Barriers continue to exist on
the Website, Plaintiff is prevented from making such a transaction.
35.
These barriers, and others, deny Plaintiff full and equal access to all of the services the
Website offers, and now deter him from attempting to use the Website and/or visit
Defendant physical branches. Still, Plaintiff would like to, and intends to, attempt to access
Defendant’s Website in the future to research the services the Website offers, or to test the
Website for compliance with the ADA.
36.
Due to Defendant’s failure and refusal to remove access barriers to its Website, Plaintiff
and visually impaired persons have been and are still being denied equal access to
Defendant’s Website, and the numerous goods and services and benefits offered to the
public through its Website.
37.
If the Website were accessible, i.e. if Defendant removed the access barriers described
above, Plaintiff could independently research the Website’s offerings, including branch
locations and hours and promotions available at the its physical locations.
38.
Through his attempts to use the Website, Plaintiff has actual knowledge of the access
barriers that make these services inaccessible and independently unusable by blind and
visually impaired people.
39.
Though Defendant may have centralized policies regarding the maintenance and operation
of its Website, upon and information and belief, Defendant has never had a plan or policy
that is reasonably calculated to make its Website fully accessible to, and independently
usable by, individuals with vision related disabilities. As a result, the complained of access
barriers are permanent in nature and likely to persist.
40.
The law requires that Defendant reasonably accommodate Plaintiff’s disabilities by
removing these existing access barriers. Removal of the barriers identified above is readily
achievable and may be carried out without much difficulty or expense.
41.
Plaintiff’s above request for injunctive relief is consistent with the work performed by the
United States Department of Justice, Department of Transportation, and U.S. Architectural
and Transportation Barriers Compliance Board (the “Access Board”), all of whom have
relied upon or mandated that the public-facing pages of website complies with an
international compliance standard known as Web Content Accessibility Guidelines version
2.1 AA (“WCAG 2.1 AA”), which is published by an independent third party known as
the Worldwide Web Consortium (“W3C”).
42.
Plaintiff and the Class have been, and in the absence of an injunction will continue to be,
injured by Defendant’s failure to provide its online content and services in a manner that
is compatible with screen reader technology.
43.
Defendant has long known that screen reader technology is necessary for individuals with
visual disabilities to access its online content and services, and that it is legally responsible
for providing the same in a manner that is compatible with these auxiliary aids.
44.
Indeed, the Disability Rights Section of the DOJ reaffirmed in a 2015 Statement of Interest
before the United States District Court for the District of Massachusetts that it has been a
“longstanding position” of the Department of Justice “that the ADA applies to website of
public accommodations.” See National Association of the Deaf v. Massachusetts Institute
of Technology, No. 3:15-cv-300024-MGM, DOJ Statement of Interest in Opp. To Motion
to Dismiss or Stay, Doc. 34, p. 4 (D. Mass. Jun. 25, 2015) (“MIT Statement of Interest”);
see also National Association of the Deaf. v. Harvard University, No. 3:15-cv-30023-
MGM, DOJ Statement of Interest of the United States of America, Doc. 33, p.4 (D. Mass.
Jun. 25, 2015) (“Harvard Statement of Interest”).
45.
The ADA expressly contemplates the injunctive relief that Plaintiff seeks in this action. In
relevant part, the ADA requires:
In the case of violations of . . . this title, injunctive relief shall include an order to alter
facilities to make such facilities readily accessible to and usable by individuals with
disabilities . . . Where appropriate, injunctive relief shall also include requiring the . . .
modification of a policy . . .
42 U.S.C. § 12188(a)(2).
46.
There is no DOJ administrative proceeding that could provide Plaintiff with Title III
injunctive relief.
47.
While DOJ has rulemaking authority and can bring enforcement actions in court, Congress
has not authorized it to provide an adjudicative administrative process to provide Plaintiff
with relief.
48.
Plaintiff alleges violations of existing and longstanding statutory and regulatory
requirements to provide auxiliary aids or services necessary to ensure effective
communication, and courts routinely decide these types of matters.
49.
Resolution of Plaintiff’s claims does not require the Court to unravel intricate, technical
facts, but rather involves consideration of facts within the conventional competence of the
courts, e.g. (a) whether Defendant offers content and services on its Website, and (b)
whether Plaintiff can access the content and services.
50.
Without injunctive relief, Plaintiff and other visually impaired consumers will continue to
be unable to independently use the Website, thereby violating their rights.
CLASS ACTION ALLEGATIONS
51.
Plaintiff, on behalf of himself and all others similarly situated, seeks to certify a nationwide
class under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind individuals in the United
States who have attempted to access Defendant’s Website and as a result have been denied
access to the equal enjoyment of goods and services, during the relevant statutory period.
52.
Common questions of law and fact exist amongst the Class, including:
a.
Whether Defendant’s Website is a “public accommodation” under the ADA;
b. Whether Defendant’s Website denies the full and equal enjoyment of its products,
services, facilities, privileges, advantages, or accommodations to people with visual
disabilities, thereby violating the ADA.
53.
Plaintiff’s claims are typical of the Class. The Class, like Plaintiff, are visually impaired or
otherwise blind, and claim that Defendant has violated the ADA by failing to remove
access barriers on its Website so it can be independently accessible to the Class.
54.
Plaintiff will fairly and adequately represent and protect the interests of the Class Members
because Plaintiff has retained and is represented by counsel competent and experienced in
complex class action litigation, and because Plaintiff has no interests antagonistic to the
Class Members.
55.
Class certification of the claims is appropriate under Fed. R. Civ. P. 23(b)(2) because
Defendant has acted or refused to act on grounds generally applicable to the Class, making
appropriate both declaratory and injunctive relief with respect to the Class as a whole.
56.
Alternatively, class certification is appropriate under Fed. R. Civ. P. 23(b)(3) because fact
and legal questions common to Class Members predominate over questions affecting only
individual Class Members, and because a class action is superior to other available methods
for the fair and efficient adjudication of this litigation.
57.
Judicial economy will be served by maintaining this lawsuit as a class action in that it is
likely to avoid the burden that would be otherwise placed upon the judicial system by the
filing of numerous similar suits throughout the United States.
FIRST CAUSE OF ACTION
VIOLATIONS OF THE ADA, 42 U.S.C. § 12181 et seq.
58.
Plaintiff, on behalf of himself and the Class Members, repeats and realleges every
allegation of the preceding paragraphs as if fully set forth herein.
59.
Section 302(a) of Title III of the ADA, 42 U.S.C. § 12101 et seq., provides:
No individual shall be discriminated against on the basis of disability in the full and equal
enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of
any place of public accommodation by any person who owns, leases (or leases to), or
operates a place of public accommodation.
42 U.S.C. § 12182(a).
60.
Defendant’s physical locations are a public accommodation within the definition of Title
III of the ADA, 42 U.S.C. § 12181(7). The Website is a service that is offered to the general
public, and as such, must be equally accessible to all potential consumers.
61.
Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny
individuals with disabilities the opportunity to participate in or benefit from the products,
services, facilities, privileges, advantages, or accommodations of an entity. 42 U.S.C. §
12182(b)(1)(A)(i).
62.
Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny
individuals with disabilities an opportunity to participate in or benefit from the products,
services, facilities, privileges, advantages, or accommodation, which is equal to the
opportunities afforded to other individuals. 42 U.S.C. § 12182(b)(1)(A)(ii).
63.
Under Section 302(b)(2) of Title III of the ADA, unlawful discrimination also includes,
among other things:
[A] failure to make reasonable modifications in policies, practices, or procedures, when
such modifications are necessary to afford such goods, services, facilities, privileges,
advantages, or accommodations to individuals with disabilities, unless the entity can
demonstrate that making such modifications would fundamentally alter the nature of such
goods, services, facilities, privileges, advantages or accommodations; and a failure to take
such steps as may be necessary to ensure that no individual with a disability is excluded,
denied services, segregated or otherwise treated differently than other individuals because
of the absence of auxiliary aids and services, unless the entity can demonstrate that taking
such steps would fundamentally alter the nature of the good, service, facility, privilege,
advantage, or accommodation being offered or would result in an undue burden.
42 U.S.C. § 12182(b)(2)(A)(ii)-(iii).
64.
The acts alleged herein constitute violations of Title III of the ADA, and the regulations
promulgated thereunder. Plaintiff, who is a member of a protected class of persons under
the ADA, has a physical disability that substantially limits the major life activity of sight
within the meaning of 42 U.S.C. § 12102(1)(A)-(2)(A). Furthermore, Plaintiff has been
denied full and equal access to the Website, has not been provided services that are
provided to other patrons who are not disabled, and has not been provided any reasonable
accommodation to those services. Defendant has failed to take any prompt and equitable
steps to remedy its discriminatory conduct. These violations are ongoing.
65.
Under 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth and
incorporated therein, Plaintiff, requests relief as set forth below.
SECOND CAUSE OF ACTION
DECLARATORY RELIEF
66.
Plaintiff, on behalf of himself and the Class Members, repeats and realleges every
allegation of the preceding paragraphs as if fully set forth herein.
67.
An actual controversy has arisen and now exists between the parties in that Plaintiff
contends, and is informed and believes that Defendant denies, that its Website contains
access barriers denying blind customers the full and equal access to the products, services
and facilities of its Website, which Defendant owns, operations and controls, fails to
comply with applicable laws including, but not limited to, Title III of the Americans with
Disabilities Act, 42 U.S.C. § 12182, et seq. prohibiting discrimination against the blind.
68.
A judicial declaration is necessary and appropriate at this time in order that each of the
parties may know their respective rights and duties and act accordingly.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff respectfully requests this Court grant the following relief:
69.
A Declaratory Judgment that at the commencement of this action ANB BANK was in
violation of the specific requirements of Title III of the ADA described above, and the
relevant implementing regulations of the ADA, in that ANB BANK took no action that
was reasonably calculated to ensure that its Website is fully accessible to, and
independently usable by, individuals with visual disabilities;
70.
A permanent injunction pursuant to 42 U.S.C. § 12188(a)(2) and 28 CFR § 36.504(a) which
directs Defendant to take all steps necessary to bring its Website into full compliance with
the requirements set forth in the ADA, and its implementing regulations, so that its Website
is fully accessible to, and independently usable by, blind individuals, and which further
directs that the Court shall retain jurisdiction for a period to be determined to ensure that
Defendant has adopted and is following an institutional policy that will in fact cause it to
remain fully in compliance with the law—the specific injunctive relief requested by
Plaintiff is described more fully in paragraph 8 above;
71.
An award of costs and expenses of this action;
72.
Payment of reasonable attorneys’ fees, pursuant to 42 U.S.C. § 12205 and 28 CFR §
36.505, including costs of monitoring Defendant’s compliance with the judgment (see
Hadix v. Johnson, 143 F.3d 246 (6th Cir. 1998), aff'd in part, rev'd in part, 527 U.S. 343
(1999); Jenkins v. Missouri, 127 F.3d 709 (8th Cir. 1997); Walker v. U.S. Dep't of Hous.
& Urban Dev., 99 F.3d 761 (5th Cir. 1996); Stewart v. Gates, 987 F.2d 1450, 1452 (9th
Cir. 1993) (district court should permit compensation for the post judgment monitoring
efforts by the plaintiff’s counsel that are “useful and necessary to ensure compliance with
the court's orders”); Garrity v. Sununu, 752 F.2d 727, 738-39 (1st Cir. 1984); Adams v.
Mathis, 752 F.2d 553 (11th Cir. 1985); Willie M. v. Hunt, 732 F.2d 383, 385, 387 (4th Cir.
1984); Bond v. Stanton, 630 F.2d 1231, 1233-34 (7th Cir. 1980); Northcross v. Board of
Educ., 611 F.2d 624, 637 (6th Cir. 1979) (“Services devoted to reasonable monitoring of
the court's decrees, both to ensure full compliance and to ensure that the plan is indeed
working…are essential to the long-term success of the plaintiff's suit.”) (citing 3rd Circuit’s
support for District Court’s award of prospective fees to plaintiff’s counsel);
73.
An order certifying the Class under Fed. R. Civ. P. 23(a) & (b)(2) and/or (b)(3), appointing
Plaintiff as Class Representative, and his attorneys as Class Counsel; and
74.
Such other and further relief as this Court deems just and proper.
Dated: Asbury Park, New Jersey
January 9, 2020
MARCUS & ZELMAN, LLC
By: /s/ Ari H. Marcus, Esq.
Ari H. Marcus, Esq.
Ari@MarcusZelman.com
701 Cookman Avenue, Suite 300
Asbury Park, New Jersey 07712
Tel: (732) 695-3282
Fax: (732) 298-6256
ATTORNEYS FOR PLAINTIFF
| civil rights, immigration, family |
PfxMFIcBD5gMZwcz2hnm | IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
MICHAEL MENESE, Individually and on )
Behalf of All Others Similarly Situated,
)
CIVIL ACTION FILE NO.
)
Plaintiff,
)
)
v.
)
)
JURY TRIAL DEMANDED
OSP PREVENTION GROUP, INC. and
)
WILLIAM E. MABRY II,
)
)
Defendants.
)
)
COMPLAINT
COMES NOW Plaintiff, by and through his attorneys, and asserts his claims
against Defendants under the Fair Labor Standards Act of 1938, as amended, 29
U.S.C. § 201 et seq. (“FLSA”), for overtime pay compensation and other relief on
the grounds set forth as follows:
INTRODUCTION
1.
This is an action brought pursuant to the Fair Labor Standards Act, 29
U.S.C. 201, et seq. by Plaintiff, a former Property Damage Investigator employed
by Defendants based on Defendants’ common policy and practice of
misclassifying all Property Damage Investigators as exempt from the FLSA’s
overtime pay requirements. As a result, Plaintiff and all other Property Damage
Investigators regularly worked in excess of forty (40) hours per workweek without
receiving overtime pay as required by section 207 of the FLSA.
2.
Plaintiff asks this Court to certify a collective of similarly situated
individuals, to wit, all Property Damage Investigators who have worked for OSP
Prevention Group, Inc., within three years prior to the filing of this Complaint and
who consent in writing to their inclusion in a collective action.
3.
Plaintiff’s Consent to Serve as a Plaintiff Representative in this FLSA action
is filed herewith as Exhibit “A”.
JURISDICTION AND VENUE
4.
The jurisdiction of this Court is invoked pursuant to 29 U.S.C. § 216(b) and
28 U.S.C. § 1331.
5.
Venue properly lies in the Northern District of Georgia under 28 U.S.C.
§ 1391 because Defendants OSP’s principal office address is located in this
judicial district, Defendant Mabry resides in this judicial district, and a substantial
portion of the events giving rise to the claims herein arose in this judicial district.
PARTIES
6.
Plaintiff Michael Menese (“Menese”) is a natural person and former
employee of Defendants, having been employed from on or about April 10, 2015
to on or about July 13, 2015.
7.
Defendant OSP Prevention Group, Inc. (“OSP”) is a domestic corporation
existing under the laws of the State of Georgia and is subject to the jurisdiction of
this Court. OSP may be served with process via service on its registered agent for
service, Wadi Muhaisen, at 10 Glen Lake Parkway, Suite 130, Atlanta, Georgia
30328.
8.
Defendant OSP is subject to the personal jurisdiction of this Court.
9.
Defendant William E. Mabry II (“Mabry”) is a natural person. Mabry may
be served with process at his residence, located at 230 18th Street NW, Unit 1120,
Atlanta, Georgia 30363-1073, or wherever he may be found.
10.
Defendant Mabry is subject to the personal jurisdiction of this Court.
FACTUAL ALLEGATIONS COMMON TO THE PLAINTIFF
AND THE CLASS HE REPRESENTS
11.
Plaintiff brings this action on behalf of himself and all other similarly
situated present and former employees of Defendants (those holding the job title or
performing the job duties of a Property Damage Investigator) who consent to the
representation, pursuant to 29 U.S.C. § 216(b).
12.
Defendant OSP is a risk management company which operates and does
business in multiple states, including New Mexico, Virginia, Maryland and
Georgia.
13.
Defendant OSP, among other services, provides investigation services to
broadband service providers, such as Comcast to investigate and document
property damage done to its customers’ underground property by construction
projects and other work performed by utility companies.
14.
Defendant OSP employed Menese as a Property Damage Investigator from
approximately April 10, 2015 through July 13, 2015.
15.
As a Property Damage Investigator, Menese’s duties, and those of the class
he represents, were to travel to the sites where utility companies or other persons
caused damage to the property of OSP’s customers and to investigate the cause of
the damage and document the damage done, so that OSP’s customers could make
damage reimbursement claims to the utility companies or others responsible for
causing the property damage.
16.
Defendant OSP was and is an “employer” of Plaintiff and the class he
represents as defined in FLSA § 3(d), 29 U.S.C. § 203(d).
17.
Defendant OSP is an “enterprise engaged in commerce or in the production
of goods for commerce” as defined in the FLSA, § 7(a)(1), 29 U.S.C. § 207(a)(1)
and has been in each of the years 2012, 2013, 2014 and 2015.
18.
In 2012, OSP had two or more “employees engaged in commerce” as
defined by 29 U.S.C. § 203(s)(1)(A).
19.
In 2012, OSP had two or more “employees handling, selling or otherwise
working on goods or materials that have been moved in or produced for commerce
by any person” as defined in 29 U.S.C. § 203(s)(1)(A).
20.
Upon information and belief, in 2012, OSP had an annual gross volume of
sales made or business done of not less than $500,000 (exclusive of excise taxes at
the retail level that are separately stated) within the meaning of 29 U.S.C.
§ 203(s)(1)(A).
21.
In 2013, OSP had two or more “employees engaged in commerce” as
defined by 29 U.S.C. § 203(s)(1)(A).
22.
In 2013, OSP had two or more “employees handling, selling or otherwise
working on goods or materials that have been moved in or produced for commerce
by any person” as defined in 29 U.S.C. § 203(s)(1)(A).
23.
Upon information and belief, in 2013, OSP had an annual gross volume of
sales made or business done of not less than $500,000 (exclusive of excise taxes at
the retail level that are separately stated) within the meaning of 29 U.S.C.
§ 203(s)(1)(A).
24.
In 2014, OSP had two or more “employees engaged in commerce” as
defined by 29 U.S.C. § 203(s)(1)(A).
25.
In 2014, OSP had two or more “employees handling, selling or otherwise
working on goods or materials that have been moved in or produced for commerce
by any person” as defined in 29 U.S.C. § 203(s)(1)(A).
26.
Upon information and belief, in 2014, OSP had an annual gross volume of
sales made or business done of not less than $500,000 (exclusive of excise taxes at
the retail level that are separately stated) within the meaning of 29 U.S.C.
§ 203(s)(1)(A).
27.
In 2015, OSP had two or more “employees engaged in commerce” as
defined by 29 U.S.C. § 203(s)(1)(A).
28.
In 2015, OSP had two or more “employees handling, selling or otherwise
working on goods or materials that have been moved in or produced for commerce
by any person” as defined in 29 U.S.C. § 203(s)(1)(A).
29.
Upon information and belief, in 2015, OSP had an annual gross volume of
sales made or business done of not less than $500,000 (exclusive of excise taxes at
the retail level that are separately stated) within the meaning of 29 U.S.C.
§ 203(s)(1)(A).
30.
Plaintiff and the class he represents were and/or are “employee[s]” of
Defendant OSP as defined in 29 U.S.C. § 203(e)(1).
31.
Plaintiff and the class he represents were paid a salary and were not paid an
hourly rate.
32.
Plaintiff’s work period, and that of each member of the class he represents
consisted of a seven day calendar week.
33.
The work period for Plaintiff and the class he represents began on Saturday
and ended on Friday.
34.
The work done by Plaintiff and the class he represents was an integral and
essential part of Defendants’ business.
35.
At all times material hereto, the position of Property Damage Investigator
required no special skills, training, or knowledge beyond general investigation
experience.
36.
At all times material hereto, the position of Property Damage Investigator
did not require a professional license.
37.
At all times material hereto, the position of Property Damage Investigator
did not require a four year college degree.
38.
As a Property Damage Investigator, Plaintiff and the class he represents did
not supervise or manage two or more full time employees or their equivalent.
39.
As a Property Damage Investigator, Plaintiff and the class he represents
spent the majority of their time travelling and working in the field at the location at
which the damage they were investigating occurred.
40.
At all times material hereto, Plaintiff Menese and the other Property Damage
Investigators were not exempt from the maximum hour requirements of the FLSA
by reason of any exemption.
41.
At all times material hereto, OSP did not employ Menese or the other
Property Damage Investigators in a bona fide professional capacity within the
meaning of 29 USC § 213(a).
42.
At all times material hereto, OSP did not employ Menese or the other
Property Damage Investigators in a bona fide administrative capacity within the
meaning of 29 USC § 213(a).
43.
At all times material hereto, OSP did not employ Menese or the other
Property Damage Investigators in a bona fide executive capacity within the
meaning of 29 USC § 213(a).
44.
Defendant Mabry was and is an “employer” within the meaning of the
FLSA, 29 U.S.C. § 203(d) inasmuch as he was acting directly or indirectly in the
interest of OSP in his interactions with Menese and the other Property Damage
Investigators, and he controlled the terms and conditions of employment of
Menese and the other Property Damage Investigators on a day to day basis.
45.
At all times material hereto, Defendant Mabry was involved in the day-to-
day operation of OSP.
46.
At all times material hereto, OSP vested Mabry with supervisory authority
over Menese and the other Property Damage Investigators.
47.
At all times material hereto, Mabry exercised supervisory authority over
Menese and the other Property Damage Investigators.
48.
At all times material hereto, Mabry scheduled Menese’s working hours or
supervised the scheduling of Menese’s working hours.
49.
At all times material hereto, Mabry exercised authority and supervision over
Menese’s compensation and that of the other Property Damage Investigators.
50.
Defendant Mabry exercised the ultimate control over hiring and firing
employees, including Plaintiff.
51.
Defendant Mabry had authority and control over Defendant OSP’s common
policy of misclassifying Property Damage Investigators as exempt from the
FLSA’s overtime pay requirements and Defendant OSP’s failure to pay Property
Damage Investigators overtime pay when they worked in excess of forty (40)
hours in any given workweek.
52.
Defendants have failed to meet the requirements for any of the exemptions
from application of the overtime wage requirements of the Fair Labor Standards
Act under 29 U.S.C. §§ 207 or 213.
53.
Plaintiff and each member of the class he represents were/are required to be
compensated by Defendants at time and one half of his/her regular rate for all
hours worked in excess of forty (40) in any given workweek.
54.
Defendants knew or should have known that Plaintiff and the class he
represents were not exempt from the overtime pay requirements of the FLSA when
they misclassified Property Damage Investigators as exempt.
55.
Upon information and belief, by classifying Property Damage Investigators
as exempt from the overtime pay requirements of the FLSA, Defendants have not
relied on any letter ruling from the Department of Labor indicating that such
practice was permitted under the FLSA.
56.
Upon information and belief, by classifying Property Damage Investigators
as exempt from the overtime pay requirements of the FLSA, Defendants have not
relied on any legal advice indicating that such practice was permitted under the
FLSA.
57.
Defendants have failed and refused to adequately compensate Plaintiff and
the class he represents at the legally required rate of time and one half of his/her
regular rate for all hours worked in excess of forty (40) in any and every given
workweek, and have willfully refused to rectify the situation.
58.
Defendants are liable to Plaintiff and to each member of the class he
represents for compensation for any and all time worked over forty (40) hours per
week at the rate of time and one half of his/her regular hourly rate.
59.
Defendants’ conduct constitute willful violations of 29 U.S.C. § 207 and 215
of the FLSA, entitling Plaintiff and the class he represents to all relief afforded
under the FLSA, including the application of a three (3) year statute of limitations,
the award of liquidated damages, and attorneys’ fees and costs of litigation
pursuant to 29 U.S.C. § 216.
CLAIMS FOR RELIEF
COUNT ONE
VIOLATION OF 29 U.S.C. §§ 207 AND 215
60.
Paragraphs 1 through 59 are incorporated herein by this reference.
61.
Throughout Plaintiff’s employment with Defendants, Plaintiff and other
Property Damage Investigators regularly worked in excess of forty (40) hours per
62.
Defendants paid Plaintiff and other Property Damage Investigators no wages
at all for the overtime hours worked by them.
63.
At all times material hereto, the position of Property Damage Investigator
did not qualify for the administrative exemption because the work involved the use
of skills and technical abilities in gathering factual information, applying known
standards or prescribed procures, determining which procedure to follow or
determining whether prescribed standards of criteria are met within the meaning of
29 C.F.R. §541.203(j). As a result, Defendants were legally required to pay
Plaintiff and other Property Damage Investigators at the rate of time and one half
of his/her regular rate for all hours worked in excess of forty (40) in any and every
given workweek.
64.
Defendants have failed and refused to adequately compensate Plaintiff and
the class he represents at the legally required overtime wage for all work hours
over forty (40) in any and every given workweek, and have willfully refused to
rectify the situation.
65.
Defendants’ failure to compensate Plaintiff and the class he represents at the
overtime rate of time and one half of his/her regular hourly rate for all hours
actually worked over forty (40) hours per week is a violation of §§ 207 and 215 of
the Fair Labor Standards Act of 1938, as amended. Such violation is intentional
and willful. Said violation gives rise to a claim for relief under the FLSA for
unpaid overtime wage compensation for three years prior to the filing of this
Complaint, through the date of judgment in this action, liquidated damages in an
amount equal to the unpaid compensation, declaratory relief, and reasonable
attorneys’ fees and expenses of litigation, pursuant to 29 U.S.C. § 216.
WHEREFORE, Plaintiffs request that this Court:
(a)
Take jurisdiction of this matter;
(b)
Permit this case to proceed as an FLSA collective action under 29
U.S.C. § 216(b) for those employees, past or present, who opt to
participate by filing proper written notice with the Court;
(c)
Issue an Order holding each of the Defendants to be an “employer” as
that term is defined under the FLSA;
(d)
Grant a trial by jury as to all matters properly triable to a jury;
(e)
Issue a judgment declaring that Plaintiff and the class he represents
were covered by the provisions of the FLSA and that Defendants have
failed to comply with the requirements of the FLSA;
(f)
Award Plaintiff proper payment for each overtime hour worked from
April 10, 2015 through July 13, 2015, calculated at the rate of time
and one half the regular hourly rate paid to Plaintiff by Defendants,
and liquidated damages equaling 100% of the overtime wages due to
Plaintiff, as required by the FLSA;
(g)
Award each member of the class Plaintiff represents overtime pay at
the rate of time and one half their regular hourly rate for each hour
worked in excess of forty (40) in each and every workweek, and
liquidated damages equaling 100% of this amount from three years
preceding the filing with this Court of that class member’s signed
Consent to Join FLSA Action;
(h)
Award Plaintiff and each member of the class he represents,
prejudgment interest on all amounts owed;
(i)
Award Plaintiff and each member of the class he represents, nominal
damages;
(j)
Award Plaintiff and each member of the class he represents, their
reasonable attorneys’ fees and costs of litigation; and
(k)
Award any and such other further relief this Court deems just,
equitable and proper.
Respectfully submitted, this 11th day of September 2015.
/s/ Mitchell D. Benjamin
Mitchell D. Benjamin
Georgia Bar No. 049888
Charles R. Bridgers
Georgia Bar No. 080791
Matthew W. Herrington
Georgia Bar No. 275411
DELONG, CALDWELL, BRIDGERS,
FITZPATRICK & BENJAMIN, LLC
3100 Centennial Tower
101 Marietta Street, NW
Atlanta, Georgia 30303
(404) 979-3150 Telephone
(404) 979-3170 Facsimile
benjamin@dcbflegal.com
charlesbridgers@dcbflegal.com
matthew.herrington@dcbflegal.com
ATTORNEYS FOR PLAINTIFF
| employment & labor |