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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. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

  2. Wow, over a quarter million dollars? That is a a lot of commissary money! Over what time frame? Years I would guess. Anyone ever try to blow the whistle? Probably not, since most Hoosiers who take notice of such things realize that Hoosier whistleblowers are almost always pilloried. If someone did blow the whistle, they were likely fired. The persecution of whistleblowers is a sure sign of far too much government corruption. Details of my own personal experience at the top of Hoosier governance available upon request ... maybe a "fake news" media outlet will have the courage to tell the stories of Hoosier whistleblowers that the "real" Hoosier media (cough) will not deign to touch. (They are part of the problem.)

  3. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  4. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

  5. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

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