Case 3:10-cv-00562-JHM-DW Document 10 Filed 11/03/10 Page 1 of 9 PageID #: 60

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY LOUISVILLE DIVISION WILLIAM WHITLOCK, ) DAVID SKYRM, ) JAMES MIDDLETON, ) Case Number: 3:10-cv-00562 KRISTIN MOORE, ) GARY MUNCY, ) MICHAEL BROWN, ) Electronically filed and ) HOLLY GOODMAN, ) as representatives of a class consisting of all ) individuals who have been employed by FSL ) Management, LLC and/or FSH Management, ) LLC as bartenders, servers or any other tipped ) employment position or any non-management, ) non-tipped position since March 29, 2005 ) ) ) Plaintiffs ) ) v. ) ) FSL MANAGEMENT, LLC ) ENTERTAINMENT CONSULTING ) SERVICES, LLC ) CORDISH OPERATING VENTURES, LLC ) and ) FSH MANAGEMENT, LLC ) ) Defendants ) SECOND AMENDED COMPLAINT Plaintiffs, William Scott Whitlock, James Middleton, David Skyrm, Kristin Moore, Gary Muncy, Michael Brown, and Holly Goodman, by counsel, file this class action complaint and in support thereof state as follows: JURISDICTION AND VENUE

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1.

Plaintiffs Whitlock, Middleton, Moore, Muncy and Goodman are residents of Louisville, Jefferson County, Kentucky. Plaintiff Skyrm is a resident of Jeffersonville, Clark County, Indiana. Plaintiff Brown is a resident of Clarksville, Clark County, Indiana. Defendant FSL Management, LLC is a foreign corporation with its principal office in Baltimore, Maryland. FSL Management, LLC owns and operates the nightclubs known as Tengo sed Cantina located at 432B South 4th Street, Louisville, Kentucky and Angels Rock Bar located at 432 South 4th Street, Louisville, Kentucky. Upon information and belief, FSL Management, LLC is a division of or is managed by Entertainment Consulting Services, LLC. Defendant FSH Management LLC is a Kentucky corporation with its principal office located in Louisville, Jefferson County, Kentucky. FSH Management, LLC owns and operates the nightclub known as Hotel located at 410 South 4th Street, Louisville, Kentucky. Upon information and belief, FSH Management, LLC is division of or is managed by Entertainment Consulting Services, LLC. Defendant Entertainment Consulting Services, LLC is a foreign corporation that is not registered to do business in Kentucky. Upon information and belief, Entertainment Consulting Services, LLC manages the nightclubs owned by FSL Management, LLC and FSH Management, LLC. Defendant Cordish Operating Ventures is a foreign corporation that, upon information and belief, manages or is otherwise related to FSH Management, LLC and FSL Management, LLC. Plaintiffs Whitlock, Skyrm and Middleton were employed by FSL Management at Tengo sed Cantina in Louisville, Kentucky. All decisions regarding their employment with FSL Management, LLC were made in Louisville, Kentucky, thus jurisdiction and venue are proper. Plaintiffs Moore and Muncy were employed by FSL Management at Angels Rock Bar in Louisville, Kentucky. All decisions regarding their employment were made in Louisville, Kentucky, thus jurisdiction and venue are proper. Plaintiffs Brown, Muncy and Goodman were employed by FSH Management at Hotel nightclub in Louisville, Kentucky. All decisions regarding their employment were made in Louisville, Kentucky, thus jurisdiction and venue are proper. FACTS

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9. 10.

The named Plaintiffs were employees as that term is defined by KRS 337.010(1)(e). Defendants are employers as that term is defined by KRS 337.010(1)(d). 2

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WILLIAM SCOTT WHITLOCK 11. Whitlock was employed by FSL Management as a bartender at the Tengo sed Cantina nightclub from October 2007 until his termination on or about November 28, 2009. Throughout Whitlocks employment, he was told he was paid $2.13 per hour plus tips. Whitlock was required to pool his tips with those of other tipped employees and was paid a share of the tip pool. This tip pooling was not voluntary. Whitlock was required to give a minimum of 20% of his share of the tip pool to non-tipped employees working the same shift. Throughout his employment, Whitlock was required to engage in work duties for Defendants benefit for which he was not compensated. On or about November 28, 2009, all employees of four nightclubs managed by FSL Management, LLC, FSH Management, LLC and/or Entertainment Consulting Services, LLC (Hotel, Angels Rock Bar, Tengo sed Cantina and Sport & Social Club) were required to attend a staff meeting. Approximately 120 people attended the meeting. At the meeting, Jake Miller, a regional manager employed by FSL Management LLC, FSH Management, LLC, and/or Entertainment Consulting Services, LLC called seven individuals to the front of the room, including Whitlock. Miller told the seven individuals at the front of the room that he had documentation that they stole money from the nightclubs at which they worked and would not be prosecuted if they left immediately. Millers statement was loud enough for all those attending the meeting to hear it. Millers factual statement was untrue in that Whitlock has never engaged in theft from FSL Management, LLC, Entertainment Consulting Services, LLC or Cordish Operating Ventures. Millers statement that Whitlock engaged in theft from FSL Management was publicized to third parties to whom no qualified or absolute privilege applies. Millers statement was untrue at the time it was made and Miller knew or should have known that the statement was untrue. Millers statement diminished Whitlocks reputation in the community in that it accused Whitlock of engaging in a criminal act and related to his employment.

12. 13. 14. 15. 16.

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20. 21. 22.

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DAVID SKYRM 23. 24. Skyrm was hired in August 2007 as a bartender at Tengo sed Cantina. He was paid $2.13 per hour plus tips. In or about October 2007, Skyrm was promoted to bar manager and was paid $6.00 per hour for all hours up to 40 in a work week. Skyrm worked 70 to 80 hours a week while employed as the bar manager. In or about April 2008, Skyrm was promoted to General Manager of Tengo sed Cantina. Beginning in March 2008, Skyrm was paid a salary of $36,000 per year and worked as much as 90 hours a week. Skyrm resigned his employment as General Manager with Tengo sed Cantina on January 4, 2009. Skyrm continued to work as a bartender allegedly earning $2.13 per hour plus tips until February 14, 2009. Skyrm returned to work as a bartender in or about July 2009. He worked a minimum of 30 hours a week until January 2, 2010. From July 2009 until December 2009, Skyrm was not paid an hourly rate for any hours worked. Skyrm was required to pool his tips with those of other tipped employees and was paid a share of the tip pool. The tip pooling was not voluntary. Skyrm was required to give a minimum of 20% of his share of the tip pool to nontipped employees working the same shift. Throughout his employment, Skyrm was required to perform work duties for Defendants benefit for which he was not compensated. JAMES MIDDLETON 33. Middleton was hired in March or April 2007. He was employed as the head chef at Tengo sed Cantina for the first three months of his employment. He was paid $12.00 per hour. After his first three months of employment, Middleton was demoted to a chef position. He continued to earn $12.00 per hour. Middleton worked as many as 60 hours per week, but was only paid for 40 hours. Middleton also worked as a lunch time server at Tengo sed Cantina. He was compensated solely by tips and received no hourly wage for this work. Throughout his employment, Middleton was required to perform work duties for Defendants benefit for which he was not compensated.

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26. 27. 28. 29. 30. 31. 32.

34. 35. 36. 37.

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KRISTIN MOORE 38. Moore was employed at Angels Rock Bar from in or about August 2008 through November 2009. During that time, Moore worked as a bartender and as an administrative assistant. On or about November 28, 2009, all employees of four nightclubs managed by FSL Management, LLC and/or Entertainment Concepts Investors, LLC (Hotel, Angels Rock Bar, Tengo sed Cantina and Sport & Social Club) were required to attend a staff meeting. Approximately 120 people attended the meeting. At the meeting, Jake Miller, a regional manager employed by FSL Management LLC, FSH Management, LLC and/or Entertainment Consulting Services, LLC, called seven individuals to the front of the room, including Moore. Miller told the seven individuals at the front of the room that he had documentation that they stole money from the nightclubs at which they worked and would not be prosecuted if they left immediately. Millers statement was loud enough for all those attending the meeting to hear it. Millers factual statement was untrue in that Moore has never engaged in theft from FSL Management, LLC, Entertainment Consulting Services, LLC or Cordish Operating Ventures. Millers statement that Moore engaged in theft from FSL Management was publicized to third parties to whom no qualified or absolute privilege applies. Millers statement was untrue at the time it was made and Miller knew or should have known that the statement was untrue. Millers statement diminished Moores reputation in the community in that it accused Moore of engaging in a criminal act and related to her employment. Moore was required to pool her tips with those of other tipped employees and was paid a share of the tip pool. This tip pooling was not voluntary. Moore was required to give a minimum of 20% of her share of the tip pool to non-tipped employees working the same shift. Throughout her employment, Moore was required to engage in work duties for Defendants benefit for which she was not compensated.

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43. 44. 45. 46. 47. 48.

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MICHAEL BROWN 49. 50. 51. Brown was hired in early 2006 as the head of security at Hotel nightclub. He was paid about $16.00 per hour. Brown worked as the head of security at Hotel nightclub until his termination in October 2009. Throughout his employment, Brown was required to perform work duties for Defendants benefit for which he was not compensated. GARY MUNCY 52. Muncy was employed as the Bar Manager at Angels Rock Bar and Hotel nightclubs from 2007 through 2009. He was paid an hourly rate of $7.00 plus tips. Muncy was required to pool his tips with those of other tipped employees and was paid a share of the tip pool. The tip pooling was not voluntary. Muncy was required to give a minimum of 20% of his share of the tip pool to non-tipped employees working the same shift. Throughout his employment, Muncy was required to engage in work duties for Defendants benefit for which he was not compensated. HOLLY GOODMAN 56. 57. Goodman was employed by FSH Management, LLC at Hotel nightclub as beer tub girl from November 2009 through January 2010. Despite being employed at Hotel nightclub to sell beer, Goodman was never included on FSH Managements payroll. She was not paid any hourly wages, but was compensated solely with tips from customers. Goodman was required to pool her tips with those of other tipped employees and was paid a share of the tip pool. The tip pooling was not voluntary. Goodman was required to give a minimum of 20% of her share of the tip pool to non-tipped employees working the same shift. Throughout her employment, Goodman was required to engage in work duties for Defendants benefit for which she was not compensated. CLAIMS 61. 62. Defendants defamed Whitlock and Moore by Millers statements during the November 28, 2009 meeting. Plaintiffs forced participation in a tip pool violates KRS 337.065.

53. 54. 55.

58. 59. 60.

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63. 64.

The failure to pay Plaintiffs for all hours worked in non-tipped employment violates KRS 337.275. The failure to pay Plaintiffs for all hours worked in tipped employment violates KRS 337.055 and 337.060. CLASS ALLEGATIONS

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Plaintiffs file this action as a class action on behalf of all individuals who were employed by the Defendants as bartenders, servers, or any other tipped employment position and any non-management, non-tipped position. This action has been brought and may properly be maintained as a class action pursuant to Federal Rule of Civil Procedure 23 on behalf of Plaintiffs and all others similarly situated with the Class defined as follows: All individuals who have been employed by FSL Management, LLC and/or FSH Management, LLC as bartenders, servers, or any other tipped employment position or any non-management, non-tipped position since March 29, 2005.

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Members of the Class are so numerous that their individual joinder is impracticable. The proposed Class includes hundreds of current and former members. The precise number of Class members is unknown to Plaintiffs, but upon information and belief, it is in excess of 300. The true number of Class members is likely to be known to Defendant and may be notified of the pendency of this action by first class mail, published notice or email notice. There is a well-defined community of interest among members of the Class. The claims of the representative Plaintiffs are typical of the claims of the Class in that the representative Plaintiffs and all Class members were employed by FSH Management and/or FSL Management, were required to work without pay, were required to pool tips and were required to share tips with non-tipped employees. The factual basis of Defendants conduct is common to all Class members and resulted in injury to all Class members. The questions of law and fact in this case are common to all Plaintiffs and Class members and include the following: a. b. c. Did Defendants require Plaintiffs/Class members to engage in promotional activities without pay? Did Defendants require Plaintiffs/Class members to engage in clean up activities without pay? Did Defendants require Plaintiffs/Class members to participate in work related meetings and training activities without pay?

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69.

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d. e. 70.

Did Defendants require Plaintiffs/Class members to share tips in an unlawful tip pool? Did Defendants require Plaintiffs/Class members to share tips with non-tipped employees?

Plaintiffs will fairly and adequately protect the interests of the Class. Plaintiffs have retained counsel with substantial experience in prosecuting wage and hour claims and class action claims. Plaintiffs and their counsel are committed to vigorously prosecuting this action on behalf of the Class they represent and have the financial resources to do so. Neither Plaintiffs nor counsel have any interest adverse to those of the Class. Plaintiffs and members of the Class have suffered and will continue to suffer harm and damage as a result of Defendants conduct. A class action is superior to other available methods for the fair and efficient adjudication of the controversy. Absent a class action, the vast majority of the Class members would likely find the cost of litigating their claims prohibitive and would have no effective remedy at law. Class treatment of common questions of law and fact is superior to multiple individual actions or piecemeal litigation in that class treatment will conserve the resources of the courts and litigants and promote consistency and efficiency of adjudication.

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Wherefore, Plaintiffs respectfully request this Court: a. b. c. d. e. f. g. Certify the Plaintiffs Class, appoint Plaintiffs as Class Representatives and appoint the undersigned counsel of record as Class counsel; Grant trial by jury; Award compensatory damages; Award liquidated damages; Award punitive damages; Award attorneys fees; and, Grant any and all other relief the Court determines appropriate.

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Respectfully submitted, PRIDDY CUTLER MILLER & MEADE, PLLC /s/ Michele D. Henry____ Michele D. Henry Everett C. Hoffman 800 Republic Building 429 W. Muhammad Ali Blvd. Louisville, KY 40202 502-587-8600 502-569-2744 (facsimile) henry@pcmmlaw.com

CERTIFICATE OF SERVICE I certify that a copy of the foregoing was served on this 14th day of September, 2010 by operation of the Courts ECF/CM system upon the following: David Crittenden Boehl Stopher & Graves, LLP 400 West Market Louisville, KY 40202 /s/ Michele D. Henry_ Attorney for Plaintiffs