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COA upholds denial of motion for class action

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The Indiana Court of Appeals affirmed the denial of a motion for a class-action suit because a claimant seeking redress pursuant the Wage Claims Act has to first submit the claim to the Department of Labor before filing a lawsuit and can't bypass the statute if another member of the putative class has already submitted a claim.

Sherri Lemon was fired from her job at Wishard Health Services. She received her last regular wages on the following payday, but didn't receive her accumulated sick pay and paid time off until two paydays after she was let go. She sought a referral letter from the DOL granting permission to file a suit under the Wage Claims Act; the letter never mentioned widespread wage claim violations at Wishard.

Lemon filed a putative class-action suit in April 2007, claiming Wishard failed to pay her and at least 100 others in a timely fashioned as required by the Wage Claims Statute. The trial court denied her request for class action certification.

In her appeal in Sherri Lemon v. Wishard Health Services, No. 49A02-0804-CV-344, the Court of Appeals examined the Wage Claims Act, Indiana Code Section 22-2-9-2(a) and ruled a claimant under the statute has to first approach the DOL before he or she can file a lawsuit seeking unpaid wages or penalties, wrote Chief Judge John Baker. Lemon complied with the statute; other putative class members have not.

But the act of seeking class certification doesn't enable putative class members to avoid compliance with the statute, he continued. The act contemplates an individualized review of each claim and the DOL may then choose to pursue the claim, or refer it to the Attorney General who may refer it to a private attorney. The statute makes it clear a claim must work its way through these channels before it could be brought into court. The putative class also can't obtain a referral letter after a lawsuit was filed because the act requires a letter be obtained before the lawsuit is filed. In addition, there is a two-year statute of limitations that has passed for many of the putative class members, and despite Lemon's argument, there is no tolling of the statute of limitations, wrote the chief judge.

In a footnote in the opinion, the appellate court granted Wishard's motion to strike Lemon's reply brief. Even though she was not supposed to refer to a futility argument, Lemon's attorney did so and cited an unrelated deposition in support. The Court of Appeals found her attorney's accusation that Wishard was dishonest to "reflect a lack of professionalism."

"Even more indefensible are counsel's decisions to assert an argument not made to the trial court and to rely on information not in the record - in direct violation of our previous order," he wrote. Her attorney had been warned in the past about making incendiary statements. Because remanding for the trial court to calculate appellate attorney fees for Wishard would probably cost Wishard more preparing for the case than they would recoup, the Court of Appeals decided against it, but warned if Lemon's attorney's behavior reoccurred, it would award appellate attorney fees.

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