Ellis v. Edward D, Jones & Co., L.P., Civil No. 06-66.

Citation527 F.Supp.2d 439
Decision Date18 December 2007
Docket NumberCivil No. 06-66.
PartiesJames E. ELLIS, Gerald Booher, Mark Tiller, Richard Staszak Ani Weaver, Jack O'Brien and Joshua Dent, on behalf of themselves and all others, similarly situated, Plaintiffs, v. EDWARD D. JONES & CO., L.P. and Does 1 through 10, inclusive, Defendants.
CourtUnited States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania

A. Hoyt Rowell, Daniel O. Myers, Richardson, Patrick, Westbrook & Brickman, Mt. Pleasant, SC, Gary F. Lynch, Carlson Lynch Ltd., New Castle, PA, R. Bruce Carlson, Carlson Lynch, Sewickley, PA, Alfred G. Yates, Jr., Law Offices of Alfred G. Yates, Jr., Domenic A. Bellisario, Pittsburgh, PA, Edward W. Ciolko, Schiffrin & Barroway, Gerald D. Wells, III, Joseph H. Meltzer, Schiffrin, Barroway, Topaz & Kessler, Radnor, PA, Steven D. Bell, Steven D. Bell Co., LPA, Brecksville, OH, Charles Joseph, Joseph & Herzfeld, New York, NY, Jeffrey R. Sadlowski, Steve D. Bell Co., Akron, OH, Clyde H. Charlton, Kevin R. Allen, Scott Edward Cole, Scott Cole & Associates, Oakland, CA, for Plaintiffs.

Amy L. Blaisdell, David M. Harris, Dennis G. Collins, Timothy M. Huskey, Greensfelder, Hemer & Gale, PC, St. Louis, MO, Ronald P. Carnevali, Jr., Michael J. Parrish, Jr., Spence, Custer, Saylor, Wolfe & Rose, Johnstown, PA, for Defendants.

MEMORANDUM OPINION AND ORDER

KIM R. GIBSON, District Judge.

I. SUMMARY
1. History

This case is before the Court as a consolidated class action seeking recovery of overtime benefits which Plaintiffs claim are owed to all securities brokers who worked for Defendant1 during the various class periods. See Document No. 77, p. 42; Document No. 80-2 ¶ ¶ 8-13. On March 16, 2006, Plaintiff Ellis filed suit against Defendant in this district, claiming diversity jurisdiction under 28 U.S.C. § 1332(d)(2)(A) and seeking overtime compensation pursuant to Pennsylvania state wage and hour laws on behalf of himself and other current and former employees of Defendant in that state. Document No. 1; Document No. 80 p. 1. On March 31, 2006, Plaintiff Booher filed suit against Defendant in the United States District Court for the Central District of California, seeking overtime compensation pursuant to federal and state wage and hour laws on behalf of himself and others; the Booher complaint was subsequently amended to remove the California state law claims and add Plaintiffs Tiller and Staszak. Document No. 77 p. 7; Document No. 80, pp. 1-2. Booher was transferred to this Court on August 2, 2006. See 2:06-cv-1028 Document No. 44. But see Document No. 80,2 p. 2 (claiming the case was transferred on July 20, 2006). On September 25, 2006, this Court consolidated the Booher and Ellis cases at docket number 3:06-cv-66. Document No. 20; Document No. 80 p. 2.

On November 27, 2006 Plaintiff Weaver brought suit against Defendant in the Court of Common Pleas of Montgomery County, Ohio, seeking overtime compensation under Ohio's wage and hour laws on behalf of Weaver and other similarly situated persons. Document No. 80 p. 2. The case was removed to the United States District Court for the Southern District of Ohio on December 22, 2006; transferred to this Court; and ultimately consolidated into docket number 3:06-cv-66 on April 20, 2007. Id.; Document No. 40.

Plaintiffs O'Brien and Dent commenced an action against Defendant in the United States District Court for the Southern District of New York on December 11, 2006, seeking overtime compensation under both federal and New York state wage and hour laws on behalf of themselves and other similarly situated persons. Document No. 80, p. 2. That action was transferred to this Court on April 19, 2007 and consolidated into docket number 3:06-cv-66 on May 23, 2007. Id.

Plaintiffs Ellis, Booher, Weaver and O'Brien filed a Consolidated Amended Complaint on October 6, 2006. Document No. 26; Document No. 80 p. 2. The Amended Complaint alleged a national claim under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (hereinafter the FLSA), as well as a claim under Pennsylvania wage and hour laws on behalf of Plaintiffs Ellis, Tiller, Staszak and "all similarly situated current or former" employees of Defendant. Document No. 80 pp. 2-3.

Upon Plaintiffs "unanimous, unopposed agreement," the Court on August 27, 2007 ordered appointment of a Lead Counsel Committee consisting of Carlson Lynch Ltd., Schiffrin Barroway Topaz & Kessler, LLP; Steven D. Bell Co., LPA; and Scott Cole & Associates, APC, with Gary F. Lynch and Carlson Lynch serving as Chair. Document No. 68.

The Parties3 aver that there has been "significant document discovery, with over 400,000 pages of documents and nearly 150 videotapes being produced." Document No. 77, p. 9; Document No. 80 p. 3. The Parties also state that they engaged in a two-day mediation session with mediator Hunter Hughes on March 5-6, 2007, and a second mediation session with mediator David A. Rotman on July 11, 2007. Document No. 77 pp. 9-10; Document No. 80 pp. 3-4. They claim that as a result of the second mediation they have arrived at the Settlement that is now before the Court. Document No. 77 p. 10; Document No. 80 p. 4.

The Settlement calls for Defendant Edward Jones to pay a "maximum settlement amount" of $19,000,000, of which up to $4,750,000 will be paid to Plaintiffs' attorneys; up to $75,000 will be used to pay Plaintiffs' attorneys' litigation costs; $15,000 will be paid to each of the seven named Plaintiffs as an "enhancement"; and up to $225,000 will be used to compensate the Claims Administrator. Document No. 77, pp. 11-13; Document No. 80, p. 4. The Parties estimate that "class members have worked a combined total of 360,000 work months through December, 2006," which, according to the Parties, will provide compensation to the class members at an average rate of approximately $38.00 per work month per claimant.4 Document No. 80 p. 4.

The Parties have moved for leave to file a Second Amended Consolidated Complaint to which Defendant need not respond, and for preliminary approval of the Settlement of which the Second Amended Complaint is a part. Document No. 76; Document No. 77; Document No. 80 p. 3. They explained their positions more fully in the hearing conducted by this Court on October 11, 2007 (hereinafter "the Hearing") and in their Memorandum to the Court, Document No. 82.

2. The Second Consolidated Amended Complaint, Document No. 80-2 (hereinafter SAC)

The SAC divides the plaintiffs into the following classes:5

"Collective Action Class": "All current or former Securities Brokers, excluding those residing in `California," who have claims against Defendant pursuant to 29 U.S.C. § 216(b) "and elect to opt-in to this action...." Document No. 80-2 ¶ 8.

"Pa Class A": "All current Securities Brokers who work for Defendant in the State of Pennsylvania ...." Id. at ¶ 9.

"PA Class B": "All former Securities Brokers who have worked for Defendant in the State of Pennsylvania ... who would otherwise be members of PA Class A." Id. at ¶ 10.

"Ohio Class": "All current and former Securities Brokers who worked for Defendant in the State of Ohio ...." Id. at ¶ 10,

"New York Class": "All current and former Securities Brokers who worked for Defendant in the State of New York...." Id. at ¶ 11.

"Remaining State Law Classes"6: "All current and former Securities Brokers who worked for Defendant in any state other than California, Mississippi, Alabama, Florida, Pennsylvania, Ohio, and New York...." Id. at ¶ 12.

The SAC lists ten causes of action:

Count One alleges willful violations of the FLSA's minimum wage and overtime requirements, 29 U.S.C. §§ 206, 207, and seeks payment of unpaid overtime, liquidated damages, and attorneys' fees and costs. Document No. 80-2 ¶ ¶ 62-69.

Count Two claims that Plaintiffs "would not receive any compensation unless they finalized a sale," and seeks liquidated damages equal to "the unpaid compensation for the hours worked in which [Plaintiffs] did not receive compensation equal to the federal minimum wage," as well as "interest, costs, and reasonable attorneys' fees." Id. at ¶¶ 70-73.

Count Three alleges that Defendant failed to "keep and preserve records with respect to each of its employees" that were sufficient to determine the actual number of hours worked and the actual amount of compensation owed. Id. at ¶ 75. Plaintiffs claim that this constitutes a willful violation of the FLSA "within the meaning of 29 U.S.C. § 255(a)," and that this entitles Plaintiffs to recovery of unpaid overtime, an equal amount as liquidated damages, additional liquidated damages, attorneys' fees and costs.

Count Four alleges violation of the Pennsylvania wage and overtime laws, and seeks payment of wages claimed due to the Pennsylvania classes, as well as costs and attorneys' fees. Id. at ¶ ¶ 78-84.

Count Five realleges violation of the Pennsylvania laws, and seeks liquidated damages of twenty-five percent of the amount owed, pursuant to 43 P.S. § 260.10, plus interest and attorneys' fees. Id. at ¶ ¶ 85-87.

Count Six alleges the failure of Defendant in Pennsylvania to keep employment records and furnish Plaintiffs with pay statements "indicating the number of hours worked during the specific pay period," and seeks "appropriate" relief under the Pennsylvania Labor Laws. Id. at ¶ ¶ 88-91.

Count Seven claims violation of the Ohio state wage and hour laws on behalf of the Ohio class, and seeks payment of "all state overtime wages due to the Ohio Class" as well as costs and attorneys' fees. Id. at ¶ ¶ 92-98; Document No. 80-2

Count Eight seeks a restitution order for payment of all wages owed the New York Class due to Defendant's alleged violations of New York state wage and hour laws. Id. at ¶ ¶ 99-105.

Count Nine alleges violations of the wage and hour laws of all states, and seeks recovery under the laws of every state in the union except, presumably, California, Mississippi, Alabama and Florida. Id. at ¶ ¶ 11-12, 106-12.

Count Ten alleges the...

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