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Quinn Butler, Individually, and On Behalf of All Others Similarly Situated v. American Cable & Telephone

July 12, 2011

QUINN BUTLER, INDIVIDUALLY, AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,
CHRISTOPHER SKILLIN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, JASON BARTH, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
AMERICAN CABLE & TELEPHONE, LLC AND C. PERRY MOORE, DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Michael T. Mason

MEMORANDUM OPINION AND ORDER

Michael T. Mason, United States Magistrate Judge:

Before the Court is the parties' Agreed Motion for Preliminary Approval of Settlement, Certification of Rule 23 Settlement Class, and Notice of Proposed Settlement to Class Members ([56], re-filed at [125]) (the "Agreed Motion").A group of putative class members(collectively, the "Objectors") oppose the Agreed Motion. The Objectors have also filed a Motion to Strike [100], in which they ask the Court to strike the declaration of Robert Crandall, submitted in support of the Agreed Motion. Both motions have been extensively briefed. A preliminary fairness hearing was held on April 12, 2011, after which we granted the parties and the Objectors leave to file post-hearing briefs [132, 133]. For the reasons set forth below, the parties' Agreed Motion is denied without prejudice and the Objectors' Motion to Strike is denied.

I. Background

A. The Pleadings

On June 24, 2009, Quinn Butler, on behalf of himself and all others similarly situated, filed a putative class action complaint in the Circuit Court of Cook County against American Cable & Telephone, LLC ("ACT") and its manager C. Perry Moore (collectively, "Defendants"). Defendants subsequently removed this matter to the Northern District of Illinois. As explained in more detail below, the complaint was amended on two occasions to add named plaintiffs Christopher Skillin and Jason Barth (collectively with Butler, "Plaintiffs").

The allegations of the operative pleading, the Second Amended Complaint [46], are as follows.ACT is in the business of installing, servicing and disconnecting cable television services throughout Illinois. (Sec. Am. Compl. ¶ 7.) Plaintiff Butler worked for ACT as a cable technician. (Id. ¶¶ 1, 8.) Barth worked and continues to work for ACT as a cable technician. (Id. ¶¶ 3, 8.) Skillin worked and continues to work for ACT as a cable disconnect technician. (¶¶ 2, 8.)

Plaintiffs allege that prior to January 2009, Defendants improperly classified the cable technicians as independent contractors and paid them on a contingent basis depending on the amount of jobs completed each week and without regard to overtime hours worked. (Sec. Am. Compl. ¶ 16.) During this time, Defendants purportedly deducted and withheld 13.8 percent of each technician's wages to compensate for the cost of workers' compensation insurance. (Id.)

Beginning in or around January 2009, ACT allegedly re-classified Plaintiffs and all similarly situated cable technicians as non-exempt employees under Illinois wage and hour laws and paid the technicians at an hourly rate. (Sec. Am. Compl. ¶ 10.) The hourly rate varied and was contingent on the number of jobs each technician completed on a weekly basis. (Id.) Defendants did not compensate technicians for "no access" jobs. (Id. ¶ 11.) No access jobs occurred when a technician attempted to service a location, but was unable to complete the assignment because, through no fault of his own, he was unable to access the necessary equipment. (Id.) According to the allegations of the complaint, Plaintiffs' job duties did not change when they were reclassified as employees and Defendants purportedly maintained supervisory authority over the technicians at all times. (Id.)

According to Plaintiffs, Defendants permitted Plaintiffs to regularly work in excess of 40 hours per week without overtime compensation and directed the technicians to record less time than they actually worked. (Sec. Am. Compl. ¶¶ 18, 20.) Defendants purportedly deducted one hour from each day worked for a meal break, even though Defendants were aware that the technicians were not usually relieved from work for one hour meal breaks. (Id. ¶18.)Defendants also required the technicians to perform a variety of "off-the-clock" tasks, including mapping out directions for their service calls, preparing and cleaning tools and equipment, and completing paperwork. (Id. ¶ 21.) Defendants allegedly failed to accurately record the actual hours worked by the technicians. (Id. ¶ 22.)

Plaintiffs have also alleged that Defendants made a number of improper deductions from their wages and failed to reimburse them for certain employment-related charges. Specifically, Defendants allegedly deducted monies from the Plaintiffs' wages for "Nextel Charges," "Vehicle Use," "Vehicle Deposit," "IL Install Non Labor Chargeback," "Meter Purchase," and "Uniform Cleaning." (Sec. Am. Compl. ¶ 12.) Plaintiffs further allege that Defendants did not reimburse technicians for fuel or toll charges for company vehicles. (Id. ¶13.) Defendants purportedly charged Plaintiffs "tool charges" and did not reimburse them for the cost of tools required to perform their job duties. (Id. ¶14.) Plaintiffs also allege that Defendants deducted charge-back penalties from wages for work that was completed but not properly documented. (Id. ¶ 15.)

Plaintiffs' eight-count complaint includes class claims, as well as an individual claim brought by Butler. Plaintiffs purport to bring their claims against Defendants on behalf of themselves and the following class:

All individuals who were employed by the one or more of the Defendants, its subsidiaries or affiliated companies, in the state of Illinois as cable technicians or other positions performing similar responsibilities for the Defendants at any time during the relevant statute of limitations. (Sec. Am. Compl. ¶ 26.) On behalf of the class, Plaintiffs allege violations of the Illinois Wage Payment and Collection Act ("IWPCA"), 820 ILCS 115/1, et seq., and the Illinois Minimum Wage Law ("IMWL"), 820 ILCS 105/1, et seq. Plaintiffs also allege violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. 201/1, et seq. Additionally, Plaintiffs' complaint includes common law class claims for unjust enrichment, quantum meruit and breach of implied contract. Plaintiffs seek compensatory damages, including all overtime pay owed plus 2% interest, liquidated damages, and costs and attorneys' fees.

In his individual claim, Butler alleges retaliatory discharge, alleging that ACT improperly terminated his employment after he filed a workers' compensation claim for injuries sustained on the job. Butler seeks compensatory and punitive damages, as well as costs and attorneys' fees.

In response to the complaint, Defendants denied all allegations of wrongdoing, disagreed that this matter could be maintained as a class action, and asserted a number of affirmative defenses. (See Defs.' Answers & Affirm. Defenses to Am. Compl. [41, 42].)

B. The Related Bonilla Action

On February 19, 2010, Eric Bonilla ("Bonilla") and Ramiro Perez ("Perez") filed a FLSA collective action against Comcast Corporation and ACT. The case was assigned to District Judge Blanche M. Manning. See Bonilla v. Comcast Corp., No. 10 CV 1127 (N.D. Ill.).The Bonilla plaintiffs also sought to represent a class of cable technicians who were improperly classified as independent contractors and denied benefits such as overtime pay, workers' compensation coverage and guaranteed minimum wage. The Bonilla plaintiffs also allege that they were required to either drive their own vehicles without reimbursement for mileage, depreciation, fuel or insurance, or to pay ACT hundreds of dollars a month for the use of a vehicle. Further, the Bonilla plaintiffs were purportedly charged for, or required to provide, their own uniforms, equipment, Nextel service and digital cameras. As in this matter, the Bonilla plaintiffs allege violations of the IWPCA, the IMWL and the FLSA. The violations purportedly continued after the technicians were re-classified as employees.

Defendants Comcast and ACT moved to dismiss the Bonilla action on the grounds that it was entirely duplicative of this earlier filed action. Alternatively, the Bonilla defendants asked Judge Manning to stay further proceedings pending a disposition in this matter. On January 7, 2011, Judge Manning denied the motion to dismiss, but granted a stay pending this Court's ruling on the pending Agreed Motion.

C. Discovery

The parties proceeded with discovery in this matter, which was ordered closed on August 30, 2010 [17]. According to Plaintiffs, substantial discovery was conducted. In February 2010, ACT produced over 21,000 pages of documents, including electronic payroll data, work orders, and job performance related documents. (See Tr. of Prelim. App. Hr'g at 21-23; Agreed Mot. at 15; Pls.' Reply in Support of Agreed Mot. [94] at 10; Defs' Reply in Support of Agreed Mot. [93] at Ex. 1 - Decl. of Steven J. Pearlman.) Plaintiffs' counsel purportedly spent "close to a hundred hours" reviewing the documents and also interviewed approximately ten putative class members regarding their experiences at ACT and their possible claims. (Tr. of Prelim. App. Hr'g at 23-24.)

The docket also reveals that Defendants filed a motion to compel Plaintiffs to respond to discovery requests [27]. Plaintiff Butler filed a motion to quash a subpoena issued to Skillin [31], who at the time was a non-named party. The District Court granted the parties leave to withdraw their discovery motions when the matter was referred to this Court for a settlement conference [33]. It is undisputed that no depositions were taken.

D. Amendments to the Complaint

On February 26, 2010, Plaintiff Butler sought leave to amend his complaint to add Skillin as an additional named plaintiff and putative class representative. (See Pl.'s Mot. For Leave to File an Am. Compl. Instanter [36].) Judge Bucklo granted Butler's motion to amend on March 4, 2010 [39]. On April 28, 2010, Plaintiffs Butler and Skillin sought, and were granted, leave to add Barth as an additional named plaintiff and putative class representative. (See Pl.'s Mot for Leave to File an Am. Comp. Instanter [43] and 4/28/11 ...


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