ILNews

Motion & discovery

Back to TopCommentsE-mailPrintBookmark and Share
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.”•

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  2. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  3. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  4. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  5. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

ADVERTISEMENT