You're viewing Docket Item 1 from the case VERMA v. 3001 CASTOR, INC. et al. View the full docket and case details.

Download this document:






v.

Plaintiff,


PRIYA VERMA, on behalf of herself and all
others similarly situated,






3001 CASTOR, INC., d/b/a THE PENTHOUSE
CLUB and/or THE PENTHOUSE CLUB @
PHILLY; ABCDE PENNSYLVANIA
MANAGEMENT, LLC and DOE
DEFENDANTS 1-10,





Defendants.















Civil Action No.:


CLASS AND COLLECTIVE
ACTION COMPLAINT


JURY TRIAL DEMANDED

)
)
)
)
)
)
)
)
)
)
)
)
)

Case 2:13-cv-03034-AB Document 1 Filed 05/31/13 Page 1 of 25

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF PENNSYLVANIA



Plaintiff Priya Verma (“Verma” or “Plaintiff”), individually and on behalf of all similarly

situated employees, brings this Class/Collective action lawsuit against Defendants 3001 Castor

Inc., d/b/a The Penthouse Club and/or The Penthouse Club @ Philly,1 ABCDE Pennsylvania

Management, LLC and Doe Defendants 1-10 (collectively “Penthouse Club” or “Defendant”),

seeking to recover for Defendant’s violations of the Fair Labor Standards Act, 29 U.S.C. § 201

et. seq. (the “FLSA”), the Pennsylvania Minimum Wage Act (“PMWA”), 43 P.S. § 333.101, et

seq., the Pennsylvania Wage Payment and Collection Law (“WPCL”), 43 P.S. § 260.1, et seq.

and common law. Plaintiff, on behalf of herself and all others similarly situated, allege as

follows:


1 In corporate filings with the Pennsylvania Department of State, Defendant 3001 Castor Inc. is registered as the
owner of two fictitious names, Penthouse Club @ Philly and The Penthouse Club. Further, on its website,
Defendant identifies itself as the Penthouse Club Philadelphia. Lastly, in its job application, Defendant also
identifies itself as “Penthouse Club Philadelphia.”

Case 2:13-cv-03034-AB Document 1 Filed 05/31/13 Page 2 of 25

INTRODUCTION

1.

As explained herein, under applicable employment laws all employees are entitled

to premium overtime compensation for all hours worked in excess of forty in a given workweek,

unless the employee is determined to be exempt. However, Defendant (as defined herein)

improperly classified Plaintiff and other exotic entertainers (“Dancers”) as “independent

contractors.” Consequently, Defendant failed to pay Plaintiff and class members at least the

applicable minimum wage. In addition, Defendant improperly collects a portion of the tips

Plaintiff and other Dancers receive from customers. Further, Defendant regularly required

Plaintiff and class members to work in excess of forty hours per week, and failed to pay them

premium overtime compensation as required by applicable employment laws. As set forth

herein, such conduct is in violation of applicable state and federal wage and hour laws.

2.

Dancers in Philadelphia, including Plaintiff and her current and former co-

workers, work in an “unorganized” industry where many workers are “disenfranchised” by the

wide disparities in bargaining power between workers and club owners. See Holly Wilmet,

Naked Feminism: The Unionization of the Adult Entertainment Industry, 7 Am. U.J. Gender Soc.

Pol’y & L 465, 466 (1999).

3.

Accordingly, adult entertainment clubs such as Defendant, located at 3001 Castor

Avenue, Philadelphia, Pennsylvania, are well-positioned to take advantage of Dancers and

routinely deny them basic workplace rights.

4.

Over the past two decades, the Department of Labor (“DOL”) and courts across

the country have recognized that Dancers are employees, not independent contractors, and thus

entitled to protection under various state and federal wage and hour laws.

5.

Despite these significant strides, adult night clubs in Philadelphia and across the

country still routinely deny Dancers the basic protections they are accorded under state and



2

Case 2:13-cv-03034-AB Document 1 Filed 05/31/13 Page 3 of 25

federal law. Indeed, the Penthouse Club is no exception. As set forth herein, it regularly

deprives Dancers of their rights under federal law, as well as the laws of the Commonwealth of

Pennsylvania. Plaintiff brings this lawsuit to address these improper pay practices.

SUMMARY OF CLAIMS

6.

Plaintiff brings this action as a collective action to recover unpaid wages, pursuant

to the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq. (“FLSA” or the

“Act”).

7.

In particular, Plaintiff brings this suit on behalf of the following similarly situated

persons:


8.

All current and former Dancers who have worked for Defendant
within the statutory period covered by this Complaint, and elect to
opt-in to this action pursuant to the FLSA, 29 U.S.C. § 216(b)
(“Nationwide Collective Class”).

In addition, Plaintiff also brings this action as a state-wide class action to recover

unpaid wages, including inappropriately withheld tips, pursuant to the Pennsylvania Minimum

Wage Act of 1968 (“PMWA”), the Pennsylvania Wage Payment and Collection Law

(“WPCL”)and common law (the “PA State Laws”).

9.

Specifically, Plaintiff brings this suit on behalf of a class of similarly situated

persons composed of:

All current and former Dancers who have worked for Defendant in
the Commonwealth of Pennsylvania during the statutory period
covered by this Complaint (the “PA Class”).

Plaintiff allege on behalf of the Nationwide Collective Class that they are: (i)

10.

entitled to unpaid minimum wages from Defendant for hours worked for which Defendant failed

to pay the mandatory minimum wage, as required by law; (ii) entitled to unpaid overtime wages



3

Case 2:13-cv-03034-AB Document 1 Filed 05/31/13 Page 4 of 25

for all hours worked in excess of forty in a work week; and (iii) entitled to liquidated damages

pursuant to the FLSA, 29 U.S.C. § 201 et seq.

11.

Plaintiff allege on behalf of the PA Class that Defendant violated the PA State

Laws by, inter alia: (i) failing to pay them the appropriate minimum wages for all hours worked;

(ii) improperly denying them overtime wages for all hours worked in excess of forty hours in a

work week; and (iii) inappropriately withholding and/or deducting unlawful amounts from the

gratuities of the PA Class.

12.

Plaintiff is unaware of the names and the capacities of those defendants sued as

DOES 1 through 10 but will seek leave to amend this Complaint once their identities become

known to Plaintiff. Upon information and belief, Plaintiff alleges that at all relevant times each

defendant was the officer, director, employee, agent, representative, alter ego, or co-conspirator

of each of the other defendants. In engaging in the alleged conduct herein, defendants acted in

the course, scope of, and in furtherance of the aforementioned relationship. Accordingly, unless

otherwise specified herein, Plaintiff will refer to all defendants collectively as “Defendant” and

each allegation pertains to each of the defendants.

PARTIES

13.

Plaintiff Priya Verma (“Verma” or “Plaintiff”) is a resident of the Commonwealth

of Pennsylvania who was employed by Defendant as a “Dancer” in their Castor Avenue location

from in or about August 2009 through October 2009 and then from August 2012 through present.

While employed by Defendant, Plaintiff was improperly classified as an independent contractor

and, consequently, Defendant failed to compensate Plaintiff properly for all hours worked.

14.

Plaintiff has consented in writing to be Plaintiff in this action and have filed their

executed Consent To Sue forms.



4

Case 2:13-cv-03034-AB Document 1 Filed 05/31/13 Page 5 of 25

15.

Defendant 3001 Castor, Inc. is a Pennsylvania corporation that operates an adult

night club located at 3001 Castor Avenue, Philadelphia, Pennsylvania under the names of The

Penthouse Club, Penthouse Club @ Philly and/or The Penthouse Club Philadelphia. Defendant

3001 Castor Inc. employed Plaintiff as a Dancer. Upon information and belief, at all relevant

times, the Penthouse Club’s annual gross volume of sales made or business done was not less

than $500,000.00.

16.

Defendant ABCDE Pennsylvania Management, LLC is a Pennsylvania limited

liability company with its registered office address located 3001 Caster Ave, Philadelphia, PA

19134.

17.

At all relevant

times Defendant has

transacted business,

including

the

employment of Dancers, within the Commonwealth of Pennsylvania, including within this

district.

JURISDICTION AND VENUE

18.

This Court has subject matter jurisdiction over this matter pursuant to 28 U.S.C. §

1331 and 29 U.S.C. § 201 et seq.

19.

This Court also has original jurisdiction over all claims in this action under the

Class Action Fairness Act, 28 U.S.C. § 1332(d). This is a putative class action whereby: (i) the

proposed Rule 23 class consists of over 100 or more members; (ii) at least some of the members

of the proposed class have a different citizenship from Defendant; and (iii) the claims of the

proposed Rule 23 class exceed $5,000,000.00 in the aggregate.

20.

Further, this Court also has supplemental jurisdiction over Plaintiff’ state law

claims pursuant to 28 U.S.C. § 1367 because those claims derive from a common nucleus of

operative facts.



5

Case 2:13-cv-03034-AB Document 1 Filed 05/31/13 Page 6 of 25

21.

Venue is proper in this district pursuant to 28 U.S.C. § 1391(b)(ii) as a substantial

part of the acts or omissions giving rise to the claims alleged herein occurred within this judicial

district, and Defendant is subject to personal jurisdiction in this district..

22.

This Court is empowered to issue a declaratory judgment pursuant to 28 U.S.C.

§§ 2201 and 2202.

FACTUAL ALLEGATIONS

23.

The crux of the FLSA and PA State Laws is, inter alia,: (i) that all employees are

entitled to be paid mandated minimum wages for all hours worked; (ii) that all employees are

entitled to premium overtime compensation for all hours worked in excess of 40 hours a week;

and (iii) that all gratuities earned by an employee are the property of the employee.

24.

Contrary to these basic protections, Defendant improperly classified its Dancers,

including Plaintiff, as “independent contractors” despite Defendant’s near total control over

them. Consequently, Plaintiff and the members of the Classes were: (i) deprived of the

mandated minimum wage for all hours they worked; (ii) deprived of premium overtime

compensation for all hours worked in excess of 40 per workweek; (iii) forced to improperly

share a percentage of their gratuities with Defendant; and (iv) forced to reimburse Defendant for

its ordinary business expenses.

25.

Plaintiff and the members of the Classes are, or were, Dancers who worked at

Defendant’s business location at 3001 Castor Avenue.

26.

The Penthouse Club is operated by Defendant under uniform policies applicable

to all the members of the Classes. Through these policies and procedures, Defendant maintains

significant supervision and control over Plaintiff and members of Classes.



6

Case 2:13-cv-03034-AB Document 1 Filed 05/31/13 Page 7 of 25

27.

Notwithstanding Defendant’s classification of Dancers as

independent

contractors, as set forth below, due to the amount of control Defendant has over its Dancers,

Dancers are legally Defendant’s employees.

Hiring, Firing, and Scheduling

28.

An individual wishing to perform at the Penthouse Club can elect to be treated as

either a “Freelancer” or “Entertainer.” Typically, a “Freelancer” is a visiting dancer who

typically works at another club not within Philadelphia.2 In contrast, Defendant prohibits

“Entertainers” (aka Dancers) from working at any other club while performing at Defendant’s

location.

29.

Defendant has the power to hire and fire Dancers and has rules governing the

conditions under which Dancers work.

30.

A Dancer is required to complete their schedule with the “House Mom” (the

individual who assists the Dancers with feminine issues) by Thursday of each week.

31.

The shifts are limited to the following times: (i) “Day Shift” lasting from noon to

6pm, (ii) “Mid Shift” lasting from 3pm to 9pm, (iii) “Preferred Shift” lasting from 6pm to

midnight, (iv) “Premium Shift” lasting from 8pm to 2am, and (v) “Power Shift” lasting from

10pm to 2am.

32.

Defendant requires Dancers to work a minimum of four (4) shifts per week. If a

Dancer attempts to complete a schedule that contains less than four shifts, they are required to

add another shift before their schedule will be approved. Indeed, Plaintiff attempted to complete

a shift schedule indicating that she only wished to perform Friday, Saturday, and Sunday during

one week. She was told to add another day.


2 Freelancers are required to pay higher house fees (described herein) and are not entitled to such perks as free
drinks or a catered breakfast (for those dancers working the early shift).



7

Case 2:13-cv-03034-AB Document 1 Filed 05/31/13 Page 8 of 25

33.

In addition, Defendant requires each Dancer to work two Saturdays and/or two

Sundays per month.

34.

Defendant’s scheduling policy also requires that all Dancers stay until the end of

their shift. Accordingly, and unlike true independent contractors, Defendant’s Dancers are

required to work a minimum number of hours per week.

35.

If a Dancer misses a scheduled shift, they are required to work a make-up shift or

pay a fine. Defendant requires that the make-up shift be scheduled immediately. Moreover,

Defendant requires that a missed shift be made up on either Monday or Tuesday, typically the

two slowest days for the club.

36.

Further, a Dancer is required to check in with the podium host and House Mom as

soon as they arrive for their shift. Indeed, there is a sign-in book that the House Mom keeps.

37.

Finally, Defendant can determine that a Dancer is “on a break” and not permitted

to perform at the Penthouse Club until contacted by Defendant.

38.

Accordingly, unlike true independent contractors, Dancers are required to work (i)

a set number of hours per week, (ii) a set number of days per week, (iii) and comport their

appearance to Defendant’s requirements even though such requirements have no bearing on the

performance of Dancers’ underlying job duties.

House Fees & Fines

39.

Rather than pay its Dancers the applicable minimum wage (either the applicable

state minimum wage or the federal minimum wage, whichever is higher), Defendant classified

its Dancers as independent contractors and required its Dancers to pay Defendant in order to

work at Defendant’s establishment. Consequently, Defendant does not compensate Dancers in

an amount at least equal to the mandated minimum wage for each hour worked during their shift.



8

Case 2:13-cv-03034-AB Document 1 Filed 05/31/13 Page 9 of 25

40.

Further, Defendant required its Dancers, including Plaintiff and members of the

Classes, to pay “House Fees” for each shift that Dancers work. These fees are posted in the

dressing room, along with other fines described herein.

41.

Typically, the House Fees range from $25 per shift to $75 per shift. If a Dancer is

late for their scheduled shift, Defendant assesses a $10 “late fee” for every 30 minutes a Dancer

is late.3 Incredibly, even if a Dancer notifies management in advance that they will be late, it is a

posted policy that the late fee “may be waived by management” (emphasis in original). Hence, it

is totally within management’s discretion whether to apply a late fee or not to a Dancer.

42.

Importantly, a Dancer must pay all fees every night she works regardless of the

amount of tips she receives. Accordingly, a Dancer must pay the fees even if that means

borrowing money from another Dancer or using the club’s ATM machine.

43.

In addition to these fees, the Penthouse Club routinely issues fines to its Dancers

for failing to comply with Defendant’s policies and procedures. Fines range from $25 to $100

depending on the infraction.

44.

Indeed, Defendant posts at least ten (10) “Enforced Fines” that the Dancers are

subjected to. They include: (i) leaving stage without waiting for their replacement ($25 fine), (ii)

over 30 seconds late for stage set ($25 fine), (iii) chewing gum while on stage ($25 fine), (iv)

talking while on stage ($25 fine), (v) failing to appear for a scheduled shift ($25 fine), (vi) late

paying house fees ($25 fine), (vii) entering the stage from the floor rather than from the staircase

near the DJ booth ($25 fine), (viii) using cell phones or other electronic devices while on stage or

on the floor ($50 fine), (ix) smoking in the building ($100 fine), and (x) leaving early without

management approval ($100 fine).

3 Upon information and belief, a Dancer who elects to work the “Power Shift,” which lasts from 10pm to 2am, is
still charged a late fee because the Dancer did not work a 6 hour shift (i.e., the Dancer did not come in at 8pm and
work the “Premium Shift”).



9

Case 2:13-cv-03034-AB Document 1 Filed 05/31/13 Page 10 of 25

45.

Further, Dancers are subjected to fines for their appearance. For example, if a

Dancer leaves her hair “up” while working, the Dancer can be subjected to a $35 fine.

46.

Further, if a Dancer wishes to engage in certain behavior, they must pay

Defendant a set amount. For example, if a Dancer wishes to leave before the end of her

scheduled shift, she is required to pay Defendant $100. Likewise, if a Dancer does not want to

appear on stage for her entire shift (known as a “stage skip”), she is required to pay Defendant

$150. Indeed, if a Dancer is thrown out of the Penthouse Club, Defendant requires that Dancer

to pay a $500 fee in order to continue performing at the club.

47.

Importantly, Dancers are not permitted to perform at the Penthouse Club if they

have any outstanding fines. Indeed, Defendant maintains a list of all Dancers and the current

fines owed.

48.

If a Dancer does not pay within a set number of days, Defendant imposes a

penalty upon that Dancer. For example, Plaintiff was notified that she had outstanding fines of

$50 as of Monday and that if she did not pay that amount in full by 8pm on the Thursday, the

fine would double.

Tip Retention & Mandatory Tip Outs

49.

It is black letter law that tips received by an employee are the employee’s tips and

an employer has no ownership interest in said tips. Indeed, according to the DOL’s Regulations,

“[t]ips are the property of the employee whether or not the employer has taken a tip credit under

section 3(m) of the FLSA.” 29 C.F.R. § 531.52.

50.

Despite this plain fact, Defendant unlawfully retained a portion of tips Dancers

received from Defendant’s customers.



10

Case 2:13-cv-03034-AB Document 1 Filed 05/31/13 Page 11 of 25

51. Moreover, Defendant also mandates the fees a Dancer may charge customers for

her services. By way of example, Defendant maintains a policy establishing the amount a

Dancer is required to charge for private performances.

52.

Indeed, the DJ and signage on the premises notifies patrons of the cost for a “lap

dance” and “sky box” private dance, thereby eliminating the possibility that a Dancer can set

their own rate. Notably, the DJ gives no indication that Defendant retains a portion of the “lap

dance” or “sky box” charges.

53.

For example, Defendant mandates that a “lap dance” for one song is $30, of

which a Dancer must pay Defendant $10, and that a “sky box” private dance for 30 minutes is

$300, of which a Dancer must pay Defendant $150.

54.

As a result, customers who believe that they are tipping Dancers a certain amount

are actually tipping them less, due to the aforementioned deductions taken by Defendant.

55.

56.

As set forth below, these deductions are in contravention of applicable law.

In addition, Defendant also subjects Dancers to mandatory tip-outs. That is,

Dancers are required to tip certain of Defendant’s employees. Importantly, the individuals that

Defendant requires its Dancers to share their tips with do not provide customer service.

57.

Upon information and belief, Defendant uses these tips paid by dancers to offset

its ordinary business expenses. Stated another way, Defendant requires Dancers to tip these

individuals so that the Penthouse Club can then reduce its labor costs by having the Dancers

supplement the compensation Defendant pays its other employees.

58.

The number of individuals Dancers are required to tip is numerous and the tip

amount is significant. Defendant has a mandatory tip out policy whereby Dancers must each tip



11

Case 2:13-cv-03034-AB Document 1 Filed 05/31/13 Page 12 of 25

a minimum of (i) $10 to the House Mom, (ii) $15 to the club’s DJ, and (iii) $5 to the Podium

Host. The aforementioned amounts are the required minimum tip.

59.

Incredibly, Plaintiff was required to pay the House Mom minimum tip on a night

when the House Mom left early and was not available for most of Plaintiff’s shift.

60.

In addition, Dancers are also required to tip security personnel and the valet

attendant. Notably, Dancers are charged $6 for valet service regardless of whether they park

their car with the valet. Accordingly, Dancers are required to tip Defendant a significant amount

for each shift worked.

61.

For example, on one Friday evening shift, Plaintiff was required to pay the

following fees: (i) $25 house fee, (ii) $15 DJ fee, (iii) $5 security fee, (iv) $10 House Mom, (v)

$5 Podium Host, and (vi) $6 valet. In total, Plaintiff was required to pay $66 to Defendant to

cover various business expenses.

62.

As a result of the mandatory house fees, required tip-outs, and assessed fines,

Dancers sometimes receive little to no actual compensation despite hours of work. Indeed, after

paying all fees, fines, and tip-outs, Plaintiff’s take home compensation one evening was $1.00.

Additional Control

63.

Prior to performing for the first time at the Penthouse Club, Defendant can

instruct a Dancer to change their physical appearance. Indeed, Defendant recently installed a

salon on premises and has directed certain Dancers to go to the salon to have certain work done.

64.

Further, if during their time at the Penthouse Club the Dancer’s look changes,

Defendant can require a Dancer to go to the salon on premises or otherwise adjust their look.

Indeed, during her time at Penthouse Club, Plaintiff was directed by Defendant’s management

personnel to either wear a wig or get hair extensions to cover some thinning hair.



12

Case 2:13-cv-03034-AB Document 1 Filed 05/31/13 Page 13 of 25

65.

The Penthouse Club requires Dancers to wear certain types of clothes, including a

“dancer’s G-string” and shoes of a minimum heel length. If a Dancer does not have such

apparel, they are required to purchase their uniforms from the House Mom, and Defendant does

not reimburse them for the cost of their uniforms. In addition, Defendant does not pay for the

cost of laundering or maintaining these unique uniforms.

66.

Further, Defendant requires every Dancer to perform the club’s signature

motorcycle dance – where two performers are placed onto two motorcycles and then elevated

high above the crowd – at least once during their tenure at the club.

67.

Exemplifying the degree of control Defendant has over Plaintiff and members of

the Classes, Dancers are not permitted to select their own music.

68.

In short, Defendant maintains significant supervision and control over Plaintiff

and members of Classes and sets the rules governing the conditions under which Dancers work.

69.

Such rules include: (i) the minimum number of days a Dancer must work, and at

which time, (ii) that Dancers are required to make up missed shifts within a certain period of

time, including limiting the days in which a Dancer can make up a missed shift (iii) that Dancers

must sign in upon arrival for work, (iv) the minimum number of hours a Dancer must work in a

given day, (v) that Dancers must wear certain uniforms and that if they do not have such

uniforms, they must purchase the uniform from Defendant, (vi) exert control over the Dancers

appearance, including mandating they visit a certain salon, (vii) dance on stage for a set number

of songs and perform at certain stages, as well as the order in which the stages must be danced,

(viii) which music a Dancer may perform to (in other words, a Dancer cannot select their own

music), and (ix) share tips with other employees, including mandating which employees must be

tipped and the minimum amount of the tip.



13

Case 2:13-cv-03034-AB Document 1 Filed 05/31/13 Page 14 of 25

70.

In addition, Defendant prohibits its Dancers from doing a number of activities

while on duty. Such prohibitions include: (i) leaving the stage until the end of the Dancer’s

routine unless excused by the DJ, (ii) changing into street clothes before the end of the Dancer’s

shift, (iii) wearing certain types of platform shoes and/or certain kinds of underwear, (iv)

chewing gum while at work, (v) using profane language with a customer, (vi) discussing the

terms of a Dancer’s compensation with a customer (i.e., what portion of a “lap dance” a Dancer

keeps), and (vii) discussing the club’s operating procedures with a customer (i.e., any fee split

between Dancer and Defendant).

71.

The extent of Defendant’s control over its Dancers is demonstrated by the fact

that Dancers were prohibited from performing at any competing clubs during the same period

they worked at the Penthouse Club. Further, Defendant determined the rate and method of

payment Dancers received, including but not limited to the percentage of tips that the Penthouse

Club would retain and the fact that Dancers would not receive any wages while working at the

club.

72.

Plaintiff typically worked a shift from on or about 8:00 p.m. to 2:00 a.m. Dancers

routinely worked hours in excess of 40 in a week. Indeed, during the Class Period, Plaintiff

worked every day of the week during a particularly hectic week.

73.

Defendant has been unjustly enriched to the detriment of the Classes by: (i)

requiring Dancers to pay money out of their tips to pay for the ordinary business expenses of

Defendant; (ii) requiring Dancers to forfeit a portion of their tips to Defendant; (iii) paying

Dancers less than the mandated minimum wage while failing to comply with the requirements

for doing so; and (v) failing to pay Dancers premium overtime compensation for all hours

worked in excess of forty in a work week.



14

Case 2:13-cv-03034-AB Document 1 Filed 05/31/13 Page 15 of 25

74.

Further evidencing Defendant’s unjust enrichment, when Plaintiff and members

of the Classes appear outside the club on Defendant’s behalf, they receive no remuneration for

their time. For example, last year, Plaintiff appeared at a Philadelphia Phillies baseball game

wearing a uniform supplied by Defendant. She was not compensated for this time.

75.

In addition, Defendant does not compensate Plaintiff or other members of the

Classes for Defendant’s use of the Dancers’ image on Defendant’s website and/or Facebook

page.

76.

At all times relevant to this Complaint, Plaintiff believed she was an employee of

Defendant. Indeed, Plaintiff made appearances at public events representing herself as a Dancer

of Defendant and advertising Defendant’s business.

77.

Evidence generally reflecting the number of uncompensated hours worked by

Dancers in the possession of Defendant.

78. While Plaintiff is unable to state at this time the exact amount owed to the

Classes, Plaintiff believes that such information will become available during the course of

discovery. Irrespective of the foregoing, when an employer fails to keep complete and accurate

time records, employees may establish the hours worked solely by their testimony and the

burden of overcoming such testimony shifts to the employer. See Anderson v. Mt. Clemens

Pottery Co., 328 U.S. 680 (1946).

CLASS & COLLECTIVE ACTION ALLEGATIONS

79.

Plaintiff brings this action on behalf of the Nationwide Collective Class as a

collective action pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 207 and 216(b).

Plaintiff also brings this action as a class action pursuant to Fed. R. Civ. P. 23 on behalf of

herself and the PA Class for claims under the PA State Laws.



15

Case 2:13-cv-03034-AB Document 1 Filed 05/31/13 Page 16 of 25

80.

The claims under the FLSA may be pursued by those who opt-in to this case

pursuant to 29 U.S.C. §216(b). The claims brought pursuant to the PA State Laws may be

pursued by all similarly-situated persons who do not opt out of the PA Class pursuant to

Fed.R.Civ.P. 23.

81.

Upon information and belief, the members of each of the Classes are so numerous

that joinder of all members is impracticable. While the exact number of the members of these

Classes is unknown to Plaintiff at this time, and can only be ascertained through appropriate

discovery, Plaintiff believes there are over a hundred individuals in each of the Classes.

82.

Defendant has acted or has refused to act on grounds generally applicable to the

Classes, thereby making final injunctive relief or corresponding declaratory relief with respect to

the Classes as a whole, appropriate.

83.

The claims of Plaintiff are typical of the claims of the Classes she seeks to

represent. Plaintiff and the members of the Classes work or have worked for Defendant and

were subject to the same compensation policies and practices, including not being compensated

for all hours worked.

84.

Common questions of law and fact exist as to the Classes that predominate over

any questions only affecting them individually and include, but are not limited to, the following:

(a)

whether Plaintiff and Dancers were improperly classified as independent

contractors by Defendant;

(b)

whether Defendant have failed to pay minimum wages for each hour

worked;

(c)

whether Plaintiff and Dancers were required to pay Defendant, in cash,

fees for each shift worked;



16

Case 2:13-cv-03034-AB Document 1 Filed 05/31/13 Page 17 of 25

(d)

whether Defendant improperly retained any portion Plaintiff and Dancers’

tips;

(e)

whether Defendant has failed to pay overtime compensation for all hours

worked in excess of 40 per workweek;

(f)

whether Plaintiff and members of the Classes are entitled to compensatory

damages, and if so, the means of measuring such damages;

(g)

whether Plaintiff and members of the Classes are entitled to restitution;

and

(h)

whether Defendant is liable for attorney’s fees and costs.

85.

Plaintiff will fairly and adequately protect the interests of the Classes as her

interests are in alignment with those of the members of the Classes. They have no interests

adverse to the class they seek to represent, and have retained competent and experienced counsel.

86.

The class action/collective action mechanism is superior to other available

methods for a fair and efficient adjudication of the controversy. The damages suffered by

individual members of the Classes may be relatively small when compared to the expense and

burden of litigation, making it virtually impossible for members of the Classes to individually

seek redress for the wrongs done to them.

87.

Plaintiff and the Classes she seeks to represent have suffered and will continue to

suffer irreparable damage from the illegal policy, practice and custom regarding Defendant’s pay

practices.

88.

Defendant has acted willfully and has engaged in a continuing violation of the

FLSA and PA State Laws.





17

Case 2:13-cv-03034-AB Document 1 Filed 05/31/13 Page 18 of 25

FIRST CLAIM FOR RELIEF

FAIR LABOR STANDARDS ACT MINIMUM WAGE VIOLATIONS

(On Behalf of the Nationwide Collective Class)

89.

Plaintiff, on behalf of herself and the Nationwide Collective Class, reallege and

incorporate by reference the paragraphs above as if they were set forth again herein.

90.

91.

At all relevant times, Defendant has had gross revenues in excess of $500,000.

At all relevant times, Defendant has been and continue to be, an employer

engaged in interstate commerce, within the meaning of the FLSA, 29 U.S.C. §§ 206(a) and

207(a).

92.

At all relevant times, Defendant has employed, and/or continue to employ,

Plaintiff and each of the Nationwide Collective Class Members within the meaning of the FLSA.

93.

Pursuant to Defendant’s compensation policies, rather than pay Dancers the

federally-mandated minimum wage, Defendant improperly classified Plaintiff and other Dancers

as independent contractors.

94.

As a result of the Defendant’s willful practices, Defendant was not entitled to pay

Plaintiff and the members of the Nationwide Collective Class less than the mandated minimum

wage for all hours worked.

95.

Defendant has violated and, continues to violate, the FLSA, 29 U.S.C. §§ 201 et

seq. The foregoing conduct, as alleged, constitutes a willful violation of the FLSA within the

meaning of 29 U.S.C. § 255(a).

96.

Due to Defendant’s FLSA violations, Plaintiff, on behalf of herself and the

members of the Nationwide Collective Class, are entitled to recover from the Defendant,

compensation for unpaid wages; an additional equal amount as liquidated damages; and

reasonable attorneys’ fees and costs and disbursements of this action, pursuant to 29 U.S.C. §

216(b).



18

Case 2:13-cv-03034-AB Document 1 Filed 05/31/13 Page 19 of 25

SECOND CLAIM FOR RELIEF

FAIR LABOR STANDARDS ACT OVERTIME WAGE VIOLATIONS

(On Behalf of the Nationwide Collective Class)

97.

Plaintiff, on behalf of herself and the Nationwide Collective Class, reallege and

incorporate by reference the paragraphs above as if they were set forth again herein.

98.

99.

At all relevant times, Defendant has had gross revenues in excess of $500,000.

At all relevant times, Defendant has been and continue to be, an employer

engaged in interstate commerce, within the meaning of the FLSA, 29 U.S.C. §§ 206(a) and

207(a).

100. At all relevant times, Defendant has employed, and/or continues to employ,

Plaintiff and each of the Nationwide Collective Class Members within the meaning of the FLSA.

101. At relevant times in the period encompassed by this Complaint, Defendant has a

willful policy and practice of refusing to pay premium overtime compensation for all hours

worked in excess of 40 hours per workweek due to Defendant’s improper classification of

Plaintiff and Dancers as independent contractors.

102. Defendant has violated and, continues to violate, the FLSA, 29 U.S.C. §§ 201 et

seq. The foregoing conduct, as alleged, constitutes a willful violation of the FLSA within the

meaning of 29 U.S.C. § 255(a).

103. Due to Defendant’s FLSA violations, Plaintiff, on behalf of herself and the

members of the Nationwide Collective Class, are entitled to recover from the Defendant,

compensation for unpaid wages; an additional equal amount as liquidated damages; and

reasonable attorneys’ fees and costs and disbursements of this action, pursuant to 29 U.S.C. §

216(b).



19

Case 2:13-cv-03034-AB Document 1 Filed 05/31/13 Page 20 of 25



PENNSYLVANIA MINIMUM WAGE ACT– MINIMUM WAGE VIOLATIONS

THIRD CLAIM FOR RELIEF

(On Behalf of the PA Class)

104. Plaintiff, on behalf of herself and the members of the PA Class, reallege and

incorporate by reference the paragraphs above as if they were set forth again herein.

105. At all relevant times, Defendant has employed, and/or continues to employ,

Plaintiff and each of the PA Class Members within the meaning of the PMWA.

106. At relevant times in the period encompassed by this Complaint, Defendant has a

willful policy and practice of improperly classifying Plaintiff and Dancers as independent

contractors and, consequently, failing to pay these individuals the applicable minimum wage for

each hour worked.

107. Pursuant to Defendant’s compensation policies, Defendant improperly classified

Dancers as independent contractors rather than pay Plaintiff and Dancers the Pennsylvania

minimum wage.

108. As a result of Defendant’s willful practices, Defendant was not entitled to pay

Plaintiff and the members of the PA Class less than the Pennsylvania minimum wage for all

hours worked.

109. Defendant has violated and, continues to violate, the PMWA, 43 Pa. C.S.C. §

333.101 et seq.

110. Due to the Defendant’s violations, Plaintiff, on behalf of herself and the members

of the PA Class, are entitled to recover from Defendant the amount of unpaid minimum wages,

attorneys’ fees and costs.



20

Case 2:13-cv-03034-AB Document 1 Filed 05/31/13 Page 21 of 25



PENNSYLVANIA MINIMUM WAGE ACT– OVERTIME WAGE VIOLATIONS

FOURTH CLAIM FOR RELIEF

(On Behalf of the PA Class)

111. Plaintiff, on behalf of herself and the members of the PA Class, reallege and

incorporate by reference the paragraphs above as if they were set forth again herein.

112. At all relevant times, Defendant has employed, and/or continues to employ,

Plaintiff and each of the PA Class Members within the meaning of the PMWA.

113. At relevant times in the period encompassed by this Complaint, Defendant has a

willful policy and practice of refusing to pay premium overtime compensation for all hours

worked in excess of 40 hours per workweek.

114. Pursuant to Defendant’s policies and practices of classifying Plaintiff and Dancers

as independent contractors, Plaintiff and the members of the PA Class were not paid overtime for

all hours worked in excess of forty per week.

115. Defendant has violated and, continues to violate, the PMWA, 43 Pa. C.S.C. §

333.101 et seq.

116. Due to the Defendant’s violations, Plaintiff, on behalf of herself and the members

of the PA Class, are entitled to recover from Defendant the amount of unpaid overtime wages,

attorneys’ fees and costs.

FIFTH CLAIM FOR RELIEF

PENNSYLVANIA WAGE PAYMENT COLLECTION LAW

(On Behalf of the PA Class)



117. Plaintiff, on behalf of herself and the PA Class Members, reallege and incorporate

by reference the paragraphs above as if they were set forth again herein.



21

Case 2:13-cv-03034-AB Document 1 Filed 05/31/13 Page 22 of 25

118. At all relevant times, Defendants have employed, and/or continue to employ,

Plaintiffs and each of the PA Class Members within the meaning of the WPCL.

119. Pursuant to the WPCL, 43 Pa. S. § 260.1 et seq. Plaintiffs and the members of the

PA Class were entitled to receive all compensation due and owing to them on their regular

payday.

120. As a result of Defendants’ unlawful policies, Plaintiffs and the members of the PA

Class have been deprived of compensation due and owing.

121. Further, due to Defendants’ policy of deducting amounts from the tips of

Plaintiffs and the PA Class to offset business expenses, Plaintiffs and the PA Class were subject

to improper deductions from their compensation.

122. Plaintiffs, on behalf of themselves and the members of the PA Class, are entitled

to recover from Defendants the amount of unpaid compensation, and an additional amount of

25% of the unpaid compensation as liquidated damages.

PENNSYLVANIA COMMON LAW – UNJUST ENRICHMENT

SIXTH CLAIM FOR RELIEF

(On Behalf of the PA Class)

123. Plaintiff, on behalf of herself and the PA Class Members, reallege and incorporate

by reference the paragraphs above as if they were set forth again herein.

124. Plaintiff and the members of the PA Class were employed by Defendant within

the meaning of the PA State Laws.

125. At all relevant times, Defendant has a willful policy and practice of denying

Dancers their full share of gratuities.

126. During the class period covered by this Complaint, Defendant has a willful policy

and practice of having Dancers subsidize Defendant’s business expenses by requiring Dancers to



22

Case 2:13-cv-03034-AB Document 1 Filed 05/31/13 Page 23 of 25

tip certain individuals a required minimum amount. Further, Defendant has a willful policy and

practice of not paying Dancers for appearances at events outside the club.

127. Moreover, Plaintiff and Dancers were subjected to unlawful deductions from their

gratuities.

128. Defendant retained the benefits of its unlawful deductions from the gratuities

from Plaintiff and Dancers under circumstances which rendered it inequitable and unjust for

Defendant to retain such benefits.

129. Defendant was unjustly enriched by subjecting Plaintiff and Dancers to such

unlawful deductions.

130. As direct and proximate result of Defendant’s unjust enrichment, Plaintiff and the

members of the PA Class have suffered injury and are entitled to reimbursement, restitution and

disgorgement from Defendant of the benefits conferred by Plaintiff and the PA Class.

131. Plaintiff, on behalf of herself and the members of the PA Class, are entitled to

reimbursement, restitution and disgorgement of monies received by Defendant.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff, individually and/or on behalf of herself and all other similarly

situated members of the Nationwide Collective Class and members of the PA Class:

A.

Designation of this action as a collective action on behalf of the Nationwide

Collective Class, and prompt issuance of notice pursuant to 29 U.S.C. §216(b), apprising them of

the pendency of this action, and permitting them to assert timely FLSA claims in this action by

filing individual Consents to Sue pursuant to 29 U.S.C. §216(b);

B.

Designation of the action as a class action under F.R.C.P. 23 on behalf of the PA

Class;



23

Case 2:13-cv-03034-AB Document 1 Filed 05/31/13 Page 24 of 25

C.

A declaratory judgment that the practices complained of herein are unlawful

under the FLSA and PMWA;

D.

An injunction against Defendant and its officers, agents, successors, employees,

representatives and any and all persons acting in concert with it, as provided by law, from

engaging in each of the unlawful practices, policies and patterns set forth herein;

E.

F.

G.

H.

I.

An award of unpaid minimum wages to Plaintiff and the members of the Classes;

An award of unpaid overtime wages to Plaintiff and the members of the Classes;

Restitution of wages and gratuities improperly retained by Defendant;

An award of liquidated damages to Plaintiff and members of the Classes;

An award of costs and expenses of this action together with reasonable attorneys’

and expert fees to Plaintiff and members of the Classes; and

J.

Such other and further relief as this Court deems just and proper.

DEMAND FOR TRIAL BY JURY

Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiff demands a trial

by jury on all questions of fact raised by this complaint.

Dated: May 31, 2013







Respectfully submitted,

FARUQI & FARUQI, LLP



By:/s/ Gerald D. Wells, III
Gerald D. Wells, III
Robert J. Gray
101 Greenwood Avenue, Suite 600
Jenkintown, PA 19046
Telephone: (215) 277-5770
Facsimile: (215) 277-5771






CARLSON LYNCH LTD

Gary F. Lynch
Sunshine R. Fellows



24

Case 2:13-cv-03034-AB Document 1 Filed 05/31/13 Page 25 of 25

PNC Park
115 Federal Street, Suite 210
Pittsburgh, PA 15212
Telephone: 412-322-9243
Facsimile: 412-231-0246
Attorneys for Plaintiff



25