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Jose Villanueva, Miguel v. Davis Bancorp

July 8, 2011

JOSE VILLANUEVA, MIGUEL VILLANUEVA, GLORIA BERNAL, ROSALBA ESCOBAR, LUIS BARBOSA, EBER CORREA, AND LUZ VERONICA CORREA, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,
PLAINTIFFS,
v.
DAVIS BANCORP, INC., DEFENDANT.



The opinion of the court was delivered by: Judge Joan H. Lefkow

OPINION AND ORDER

Plaintiffs, Jose Villanueva, Miguel Villanueva, Gloria Bernal, Rosalba Escobar, Luis Barbosa, Eber Correa, and Luz Veronica Correa, filed this putative class/collective action against Davis Bancorp, Inc. for violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., and the Illinois Minimum Wage Law ("IMWL"), 820 Ill. Comp. Stat. §105/1 et seq. Before the court is plaintiffs' motion for class certification of their IMWL claims. For the following reasons, the motion [#24] is granted.*fn1

BACKGROUND

Davis is an Illinois corporation that transports bank checks on behalf of clients. Plaintiffs are former courier delivery drivers who were contracted with Davis to pick up and drop off financial records at banking centers in the Chicago area. Plaintiffs allege that Davis has a policy of denying overtime pay to its employees in violation of the IMWL.

I. The Rodriguez Litigation

This is the second case filed by Davis's courier drivers alleging violations of the IMWL and the FLSA. On January 21, 2009, Luis Enrique Rodriguez filed a putative class action in this district alleging claims nearly identical to those alleged here.*fn2 See Dkt. #1, Rodriguez v. Davis Bancorp, Inc., Case No. 09-C-372 (hereinafter "Rodriguez"). Before a motion for class certification had been filed, the parties engaged in settlement negotiations before Magistrate Judge Keys. They agreed to resolve the matter as a collective action under the FLSA rather than as a class action under the IMWL. Davis identified thirty-six courier delivery drivers who had worked for it during the relevant time period and mailed an opt-in notice to each of these individuals as required by 29 U.S.C. § 216(b). J.R. Davis Decl. ¶ 5 & Ex. A. Nine drivers consented to participate in the Rodriguez settlement.

On December 8, 2009, Judge Keys entered orders approving the parties' settlement agreement and dismissing the Rodriguez case with prejudice. Dkt. #33, #34 in Rodriguez. The settlement agreement provides that Davis shall have "no duty under this General Agreement to make any payment or provide other consideration to any individual who fails to 'opt in,' with the exception of [Rodriguez], who need only execute and return his Individual Agreement and Release to receive payment from Davis." Dkt. #31-2, ¶ 2 in Rodriguez. Each courier driver who participated in the Rodriguez settlement executed an Individual Settlement and Release that provides:

Release of Wage Claims and Attorneys' Fees. Employee knowingly and voluntarily releases and forever discharges Employer . . . from any and all claims which Employee has or may have against [Employer] for unpaid overtime wages (including any liquidated damages related to those wages) as of the date of execution of this General Agreement, for any alleged violation of the Fair Labor Standards Act or the Illinois Minimum Wage Law that were asserted under any and all federal state or local law and for any unjust enrichment claims relating to any operating expenses of the vehicle used by Employee.

Dkt. #31-2, Ex. A in Rodriguez. The settlement agreement contains an identical provision. Dkt. #31-2, ¶ 5 in Rodriguez. Davis agreed to pay up to $165,000.000 to settle the nine drivers' claims.

II. The Villanueva Litigation

At some point after the Rodriguez settlement, Davis determined that the names of several drivers had not been disclosed to the Rodriguez plaintiffs. Davis now estimates that it employed 159 drivers during the relevant time period. J.R. Davis Decl. ¶ 3. Thus, Davis failed to provide opt-in notice to 123 potential participants in the Rodriguez settlement.

Plaintiffs filed their complaint in this case on December 16, 2009, alleging claims on behalf of those individuals who did not participate in the Rodriguez settlement. Plaintiffs seek to certify the following IMWL overtime wage class:

All persons employed by Defendant in the job position of courier driver since January 21, 2006, through and including the present, who have not been paid overtime for all time worked in excess of forty (40) hours in individual work weeks, and who did not sign a release of their claims as part of the settlement in the matter of Rodriguez v. Davis Bancorp, No. 09 C 0372 (N.D. Ill.).

The statute of limitations for a claim brought under the IMWL is three years. See 820 Ill. Comp. Stat. ยง 105/12(a). Plaintiffs assert that the statute of limitations was tolled between January 21, 2009, when the Rodriguez litigation commenced, ...


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