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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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  1. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  2. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  3. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  4. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

  5. Mr. Foltz: Your comment that the ACLU is "one of the most wicked and evil organizations in existence today" clearly shows you have no real understanding of what the ACLU does for Americans. The fact that the state is paying out so much in legal fees to the ACLU is clear evidence the ACLU is doing something right, defending all of us from laws that are unconstitutional. The ACLU is the single largest advocacy group for the US Constitution. Every single citizen of the United States owes some level of debt to the ACLU for defending our rights.

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