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Indiana Lawyer Focus

These days, litigation is more often about getting from point A to point B, and that small picture is what’s important to the attorneys involved. While legal theory and precedent are part of the big picture, when navigating a case lawyers often keep their focus on resolving it early. “I’ve seen in my years of practice that the court system is more intent on having parties resolve the case at hand than push through to prove a principle that might be involved,” said Indianapolis attorney John Trimble, who has been involved with the Defense Research Institute and is considered an expert on litigation relating to the national defense bar. “It would be great to take a case to a higher court for a decision that might be relied on in future cases, but we rarely get that chance and have to step back and look at what’s most important to litigants in the case before you.”

That is what happened with a recent case in the U.S. District Court for the Southern District of Indiana, in Wendi Morse, et al. v. MER Corporation, No. 1:08-CV-01389, a suit involving a class of dancers who sued the strip club they worked at on wage dispute and employment law issues. Though they no longer worked at the club when the suit was filed in October 2008, dancers Wendi R. Morse and Felicia Kay Pennington alleged that Dancers Showclub in Indianapolis failed to pay them and others similarly situated in accordance with the Fair Labor Standards Act.

They argued their past employer had incorrectly classified dancers as independent contractors instead of employees and failed to pay them minimum wage, and that the employer had required the women to pay a percentage of their tips to the club and other employees who don’t customarily receive tips, violating 29 U.S.C. Section 203(m).

Dancers don’t receive any wages or other compensation from the club, and they aren’t allowed to dance at any other exotic clubs while working at Dancers Showclub, which the suit claimed set the hours, shifts, and minimum tips the dancers are required to get each shift.

The plaintiffs wanted the club to repay back wages in addition to wages equal to the amount they had to tip-out to the club and other employees, as well as liquidated damages equal in amount to the unpaid compensation and tips found were owed to the dancers.

“As demonstrated above, the factors adopted by the Seventh Circuit for determining whether an individual is an independent contractor or an employee weigh squarely in favor of Entertainers being classified as employees,” the lawsuit stated. “Defendant exercises a broad range of controls over the conduct of Entertainers and over the method and manner in which Entertainers go about performing their job. Entertainers have limited opportunities for profit and virtually no risk of loss, are not permitted to make any investment in, or have any input regarding, the business, are not required to have any specialized skill or training, and have a very limited ability to take initiative and improve their earnings. The relationship between Defendant and Entertainers bears all the hallmarks of an ongoing one and they could hardly be more of an integral part of Defendant’s business. Therefore, Defendant was required to pay wages to Plaintiffs in accordance with the FLSA. Defendant failed to do so.”

Before this case, that issue hadn’t been addressed here in this jurisdiction and plaintiffs referred to various federal precedent from the District and Circuit levels outside of Indiana to make their case.

But U.S. Judge William T. Lawrence in Indianapolis tackled that issue last year, relying on the outside precedent and other employment caselaw to decide that exotic dancers are employees, not independent contractors as the club owner argued in this Morse case. He made the decision based on the factors defined in Secretary of Labor v. Lauritzen, 835 F.2d 1529, 1535 (7th Cir. 1985), and also relied on a similar case out of the 5th Circuit Court of Appeals, Reich v. Circle C. Investments, Inc., 998 F.2d 324 (5th Cir. 1993), where that court found exotic dancers to be employees.

With that ruling, the attorneys in this case sidestepped a trial that had been set for December and instead began more seriously talking about a joint settlement – without turning to a higher appeals court to reweigh whether the District judge’s interpretation was correct.

The litigation originally involved 31 individuals who would be eligible for class status against the club, but many were ultimately dismissed because they couldn’t be located and didn’t participate in prosecuting the dancers’ claims.

The case settled in December, with the club owners paying a total of $79,952 to the 17 plaintiffs - $237.50 for each month a dancer would have worked between Oct. 14, 2005 and the time this agreement was filed by the court in December. The two named plaintiffs for the class, Morse and Pennington, also received an extra lump sum of $5,000 each.

The plaintiffs’ lawyers received nearly $63,048 in fees, a 20 percent reduction from the total they would have charged, the agreement shows. Attorneys Philip Gibbons and Andrew Jones with Gibbons Jones law firm in Indianapolis couldn’t be reached for comment on this litigation before IL deadline. Defense counsel Rick Kammen also couldn’t be reached for comment.

But those who’ve worked in simple or complex litigation say this case isn’t anything out of the ordinary. Rising litigation costs and mediation preference makes settlement more common, according to Indianapolis attorney Tom Schultz, past president of Defense Trial Counsel of Indiana. He said it’s not unusual, even in larger more complex matters, for a settlement to be reached even before those larger matters are resolved. Sometimes, the significant cost of litigation causes parties to move toward a settlement and many times the cost of discovery will cause parties to negotiate and avoid the much larger and costlier issues in a case.

Trimble agreed, but said that even though trial lawyers aren’t focused on the broader legal issues, they are always mindful of those during pre-trial litigation stages and work to make sure the record is efficiently and correctly established.

He recalls what a federal judge once said during a case he was handling and how that applies to any litigation.

“If you’ve gone up on appeal, then you’ve lost,” Trimble recalled the judge saying. “Going to finality for your client is what’s important. Litigation is so expensive and time-consuming, and lawyers want a case over with. They want to be seen as problem-solvers and resolve those disputes as quickly and economically as they can.”•

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  1. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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