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

October 6, 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' Amended Motion for Preliminary Approval of Settlement, Certification of Rule 23 Settlement Class, Certification of FLSA Section 216(b) Collective Action Settlement Class and Notice of Proposed Settlement to Class Members [141] ("Renewed Motion"). A group of objectors has also filed a Motion for Leave to File Instanter Documents Filed by Defendant American Cable & Telephone in Perez v. Comcast [153]. For the reasons set forth below the Renewed Motion is granted and the Motion for Leave to File is denied.

I. Introduction

The parties filed their Renewed Motion after this Court denied, without prejudice, the parties' initial motion for preliminary approval and class certification ("Initial Motion").

See Butler v. Amer. Cable & Tel., LLC, No. 09 CV 5336, 2011 WL 2708399 (N.D. Ill. July 12, 2011). As set forth in our prior opinion denying the Initial Motion [137], we took issue with (1) the parties' failure to clarify the settlement classes for which they sought certification; (2) the amount of the proposed incentive awards; (3) the reversion of unclaimed funds to the Defendants; and (4) the release of Fair Labor Standards Act ("FLSA") claims of class members who did not affirmatively opt-in. Id. The parties have re-visited these issues and again seek, among other things, class certification and preliminary approval. Although we provided a thorough recitation of the facts in our prior opinion, we turn to those facts again in order to resolve the pending motion.

II. Background

Plaintiff Quinn Butler initiated this action in June of 2009 when he filed a putative class action complaint against defendants American Cable & Telephone, LLC ("ACT") and its manager C. Perry Moore (collectively, "Defendants"). The complaint was amended on March 4, 2010 and April 28, 2010 to add named plaintiffs Christopher Skillin and Jason Barth (collectively with Butler, "Plaintiffs").

The allegations of 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. (Id. ¶¶ 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 number 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 pay 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.) According to the allegations of the complaint, Plaintiffs' job duties did not change when they were re-classified as employees and Defendants purportedly maintained supervisory authority over the technicians at all times. (Id.)

According to Plaintiffs, Defendants regularly permitted Plaintiffs to 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 further allege that 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.)

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. On behalf of the putative class, Plaintiffs alleged 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 alleged violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. 201/1, et seq. Additionally, Plaintiffs' complaint included common law claims for unjust enrichment, quantum meruit and breach of implied contract. Plaintiffs sought compensatory damages, including all overtime pay owed plus 2% interest, liquidated damages, and costs and attorneys' fees.

In his individual claim, Butler alleged retaliatory discharge, alleging that ACT improperly terminated his employment after he filed a workers' compensation claim for injuries sustained on the job. Butler sought 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].)

The parties proceeded with discovery, which was ordered closed on August 30, 2010 [17]. As we explained in our prior opinion, 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 [135] at 21-23; Initial Mot. [125] at 15; Pls.' Reply in Support of Initial Mot. [94] at 10; Defs' Reply in Support of Initial 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.) Neither party took any depositions.

On April 29, 2010, the parties participated in a settlement conference before this Court. In addition to counsel for both sides, present at that conference were the three named Plaintiffs, Mark Joanis and C. Perry Moore on behalf of ACT, and Defendants' expert Robert Crandall. The parties reached a settlement agreement on that date, the terms of which we explained in detail in our prior opinion. See Butler, 2011 WL 2708399 at *4-5.

After the parties' filed their Initial Motion seeking class certification and preliminary approval, plaintiffs in the case of Perez v. Comcast Corp., No. 10 CV 1127 (N.D. Ill.) sought leave to appear and file objections to that motion.*fn1 The Perez plaintiffs (or the "Objectors") 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 Perez plaintiffs allege similar violations of the FLSA.

We allowed extensive briefing on the Initial Motion and held a preliminary approval hearing on April 12, 2011. At that hearing the Court questioned the attorneys for the parties and the Objectors, and allowed testimony from ACT's president, Mark Joanis, Plaintiff Barth, and Defendants' expert Robert Crandall.

After the Initial Motion was denied, the parties appeared at a status hearing on August 4, 2011 and reported that they intended to file a renewed motion in light of continuing settlement negotiations. The parties filed that motion on August 15, 2011. Submitted with the Renewed Motion was a revised settlement agreement (the "Agreement") [141-2] executed on August 12, 2011. With a thoroughly developed record before us, we turn to the issues presented in the Renewed Motion.*fn2

III. Class Certification

A. Rule 23 Settlement Classes

The parties now ask the Court to certify, for settlement purposes only, the following classes pursuant to Rule 23:

Rule 23 Settlement Class 1 - Independent Contractor Sub-Class: All individuals who worked for one or more of the Defendants, its subsidiaries or affiliated companies, in the state of Illinois, and classified as independent contractors, holding the title of cable technician or other positions performing similar responsibilities for the Defendants at any time during the time period of February 28, 2008 through March, 2009.

Rule 23 Settlement Class 2 - Employee Sub-Class: All individuals who were employed by one or more of the Defendants, its subsidiaries or affiliated companies, in the state of Illinois, and classified as non-exempt employees, holding the title of cable technician or other positions performing similar responsibilities for the Defendants at any time during the class period of January 10, 2009 through April 29, 2010. (Renewed Mot. at 7.)

We reiterate that Federal Rule of Civil Procedure 23 affords the district courts "broad discretion to determine whether certification of a class-action lawsuit is appropriate." Arreola v. Godinez, 546 F.3d 788, 794 (7th Cir. 2008) (quoting Chavez v. Ill. State Police, 251 F.3d 612, 629 (7th Cir. 2001)). A plaintiff seeking class certification must satisfy each requirement of Rule 23(a) - numerosity, commonality, typicality and adequacy of representation - and one subsection of Rule 23(b). Harper v. Sheriff of Cook County, 581 F.3d 511, 513 (7th Cir. 2009). In addition to those requirements, courts must determine whether the putative class meets two implied prerequisites of Rule 23: (1) that the class definition be sufficiently precise to enable a court to ascertain the identity of class members by reference to objective criteria; and (2) that the named representative be a member of the proposed class.*fn3 Alliance to End Repression v. Rochford, 565 F.2d 975, 977 (7th Cir.1977); Cleary v. Philip Morris USA, Inc., 265 F.R.D. 289, 291 (N.D. Ill. 2010).

But, again, despite the court's broad discretion under Rule 23, when determining whether to certify a class for settlement purposes, the court "may not abandon the Federal Rules merely because a settlement seems fair, or even if the settlement is a 'good deal.'" Uhl v. Thoroughbred Tech. and Telecomm., Inc., 309 F.3d 978, 985 (7th Cir. 2002). Indeed, the requirements of Rule 23 may prove more important for settlement classes where, as the Seventh Circuit put it, "the district court must act almost as a fiduciary of the class...."Id. Nonetheless, when "confronted with a request for settlement-only class certification, a district court need not inquire whether the case, if tried, would present intractable management ...


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