Case: 4:09-cv-01335-AGF Doc. #: 136 Filed: 04/22/11 Page: 1 of 26 PageID #: 2713

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
WILLIAM TIMOTHY PERRIN, individually )
and on behalf of other similarly situated
)
persons,
)
)
Plaintiff,
)
)
v.
)
)
PAPA JOHN’S INTERNATIONAL, INC.,
)
and PAPA JOHN’S USA, INC.,
)
)
Defendants.
)

Case No. 4:09CV01335 (AGF)
JURY TRIAL DEMANDED

THIRD AMENDED COMPLAINT
Plaintiff William Timothy Perrin, individually and on behalf of all other similarly
situated delivery drivers, for his Third Amended Complaint against defendants Papa
John’s International, Inc. and Papa John’s USA, Inc., alleges as follows:
1.

Defendants operate more than 500 Papa John’s pizza restaurants in the

United States.

Defendants’ restaurants employ delivery drivers who use their own

automobiles to deliver pizza and other food items to customers. Instead of compensating
delivery drivers for the reasonably approximate costs of the business use of their vehicles,
Defendants use a flawed method to determine reimbursement rates that underestimates
the number of miles driven by delivery drivers and provides such an unreasonably low
rate beneath any reasonable approximation of the expenses they incur that the drivers’
unreimbursed expenses cause their wages to fall below the wage rate required by federal
and state minimum wage laws during some or all workweeks.

 Case: 4:09-cv-01335-AGF Doc. #: 136 Filed: 04/22/11 Page: 2 of 26 PageID #: 2714

2.

Plaintiff William Timothy Perrin, and all other similarly situated delivery

drivers, work or previously worked as delivery drivers at Papa John’s restaurants owned
by Defendants. This lawsuit is brought as (a) a collective action under the Fair Labor
Standards Act (FLSA), 29 U.S.C. § 201 et seq., to recover unpaid minimum wages owed
to Plaintiffs and all other similarly situated workers employed by Defendants; and (b) a
Rule 23 class action under various state minimum wage laws that have higher minimum
wage rates than the federal minimum to recover unpaid minimum wages on behalf of
delivery drivers in each of those states.
Jurisdiction and Venue
3.

The FLSA authorizes court actions by private parties to recover damages

for violation of the FLSA’s wage and hour provisions. Jurisdiction over Plaintiff’s FLSA
claim (Count I) is based on 29 U.S.C. § 216(b) and 28 U.S.C. § 1331.
4.

The minimum wage laws of the various states identified in Count II

authorize court actions by private parties to recover damages for violation of the
minimum wage provisions of such states’ laws. This Court has supplemental jurisdiction
over the state law claims under 28 U.S.C. § 1367(a). This Court also has subject matter
jurisdiction over this case under 28 U.S.C. § 1332(d)(2) because the case is brought as a
class action between citizens of different states and the amount in controversy exceeds
$5,000,000, exclusive of interest and costs.
5.

Venue in this district is proper under 28 U.S.C. § 1391(b) and (c) because

Plaintiff Perrin resides in this district and a substantial part of the events giving rise to the
claims occurred in this district.
2

 Case: 4:09-cv-01335-AGF Doc. #: 136 Filed: 04/22/11 Page: 3 of 26 PageID #: 2715

Parties
6.

Defendant Papa John’s International, Inc. is a Delaware corporation that

operates Papa John’s corporate stores in the United States, both in its own name and
through its wholly-owned subsidiary, defendant Papa John’s USA, Inc.
7.

Defendant Papa John’s USA, Inc. is a Kentucky corporation that operates

Papa John’s corporate stores in the United States, including in the Eastern District of
Missouri.
8.

Defendants comprise a single integrated enterprise and jointly operate

hundreds of Papa John’s restaurants in the United States, including in the Eastern District
of Missouri. Because the work performed by Plaintiff and all other delivery drivers
simultaneously benefited both Defendants and directly or indirectly furthered their joint
interests, Defendants are collectively the joint employers of Plaintiff and other similarly
situated employees under the FLSA’s broad definition of “employer.”
9.

Plaintiff William Timothy Perrin has been employed by Defendants from

approximately 1998 through the present as a delivery driver at their Papa John’s store
located in the City of St. Louis, Missouri. Plaintiff Perrin’s Consent to Become a Party
Plaintiff under 29 U.S.C. § 216(b) is attached as Exhibit A to his original Complaint.
10.

Opt-in Plaintiffs Joel Bass, Tim Bauer, Daniel Benton, Tyrone Bowden,

Dexter Bradley, Samuel David Christiansen, William Cox, Virginia Gardner, Natasha
Haney, Bryan Harris, James Johnson, Kevin Johnson, Jamario Kendrick, Aaron Mayhew,
Tom Mitchell, Marniz Moose, Joshua Nowak, Brad Parks, Merle Summers, Aleczander
Vanselow and James Welsch have also been employed by one or both of the Defendants
3

 Case: 4:09-cv-01335-AGF Doc. #: 136 Filed: 04/22/11 Page: 4 of 26 PageID #: 2716

as delivery drivers at stores in the States of Arizona, Georgia, Illinois, Missouri, North
Carolina, and South Carolina, and have filed their respective Consents to Become a Party
Plaintiff with the Court.
General Allegations
Defendants’ Business
11.

Defendants operate hundreds of Papa John’s pizza restaurants in the United

States, including more than 500 such restaurants in Arizona, Florida, Georgia, Illinois,
Indiana, Kansas, Kentucky, Maryland, Missouri, North Carolina, South Carolina,
Tennessee, Texas, and Virginia.
12.

The primary function of Defendants’ Papa John’s restaurants is to sell pizza

and other food items to customers, whether they carry out the food or have it delivered.
13.

Defendants’ restaurants employ delivery drivers who all have the same

primary job duty:

to deliver pizzas and other food items to customers’ homes or

workplaces.
14.

Plaintiff Perrin and all other similarly situated persons have been employed

by Defendants within three years of the filing of this action.
Defendants’ Flawed Reimbursement Policy
15.

Defendants require their delivery drivers to maintain and pay for safe,

legally-operable, and insured automobiles when delivering pizza and other food items.
16.

Defendants’ delivery drivers incur costs for gasoline, vehicle parts and

fluids, automobile repair and maintenance services, automobile insurance, and

4

 Case: 4:09-cv-01335-AGF Doc. #: 136 Filed: 04/22/11 Page: 5 of 26 PageID #: 2717

depreciation (“automobile expenses”) while delivering pizzas for the primary benefit of
Defendants.
17.

Defendants’ delivery driver reimbursement policy applies to Plaintiffs and

all of Defendants’ delivery drivers. Defendants use a corporate consultant, Runzheimer
International (“Runzheimer”), to periodically set its reimbursement rate, which at least
until Defendants purported to rely on a “tip credit” beginning around May 2009, typically
was less than $1.25 for a single delivery, using the same criteria for Plaintiffs and
Defendants’ other delivery drivers.
18.

Defendants do not disclose to their delivery driver employees the

reimbursement formula created by Runzheimer.

Defendants thus prevent their

employees from understanding how they calculate reimbursement rates.
19.

Despite the relative ease of tracking actual miles driven by its drivers,

Defendants do not do so. Instead, Defendants reimburse delivery drivers using a set
amount for each delivery, regardless of length. This method underestimates not only the
automobile expenses per mile incurred by Defendants’ delivery drivers, but also the
number of miles driven by delivery drivers, thereby causing drivers to receive a lower
reimbursement rate than even that contemplated by Defendants’ flawed reimbursement
formula.
20.

The net result of Defendants’ delivery driver reimbursement policy is a

reimbursement of much less than the reasonably approximated automobile expenses of
Defendants’ delivery drivers.

5

 Case: 4:09-cv-01335-AGF Doc. #: 136 Filed: 04/22/11 Page: 6 of 26 PageID #: 2718

21.

During the applicable limitations period, the IRS business mileage

reimbursement rate ranged between $.445 and $.585 per mile.

Likewise, reputable

companies that study the cost of owning and operating a motor vehicle and/or reasonable
reimbursement rates, including the AAA, have determined that the average cost of
owning and operating a vehicle ranged between $.45 and $.55 per mile during the same
period.

These figures represent a reasonable approximation of the average cost of

owning and operating a vehicle for use in delivering pizzas.
22.

The driving conditions associated with the pizza delivery business cause

more frequent maintenance costs, higher costs due to repairs associated with driving, and
more rapid depreciation from driving as much as, and in the manner of, a delivery driver.
Defendants’ delivery drivers further experience lower gas mileage and higher repair costs
than the average driver used to determine the average cost of owning and operating a
vehicle described above due to the nature of the delivery business, including frequent
starting and stopping of the engine, frequent braking, short routes as opposed to highway
driving, and driving under time pressures.
23.

Defendants’ reimbursement policy does not reimburse delivery drivers for

even their out-of-pocket expenses, much less other costs they incur to own and operate
their vehicle, and thus Defendants uniformly fail to reimburse their delivery drivers at
any reasonable approximation of the cost of owning and operating their vehicles for
Defendants’ benefit.
24.

Defendants’ systematic failure to adequately reimburse automobile

expenses constitutes a “kickback” to Defendants such that the hourly wages they pay to
6

 Case: 4:09-cv-01335-AGF Doc. #: 136 Filed: 04/22/11 Page: 7 of 26 PageID #: 2719

Plaintiffs and Defendants’ other delivery drivers are not paid free and clear of all
outstanding obligations to Defendants.
25.

Defendants fail to reasonably approximate the amount of their drivers’

automobile expenses to such an extent that their drivers’ net wages are diminished
beneath both the federal and state minimum wage requirements.
26.

In sum, Defendants’ reimbursement policy and methodology fail to reflect

the realities of delivery drivers’ automobile expenses.
Defendants’ Failure to Reimburse Automobile Expenses Causes Minimum Wage
Violations
27.

Regardless of the precise amount of the per-delivery reimbursement,

Defendants’ reimbursement formula resulted in an unreasonable underestimation of
delivery drivers’ automobile expenses, causing systematic violations of the federal
minimum wage, and also various state minimum wage requirements where Defendants
employ delivery drivers.
28.

Plaintiff Perrin was paid $6.80 per hour from approximately July 2006

through April 2009 and has been paid the federal minimum of $7.25 since about May
2009. Meanwhile, the federal minimum wage was $5.15 per hour before July 24, 2007,
$5.85 per hour effective July 24, 2007, $6.55 per hour effective July 24, 2008, and $7.25
per hour effective July 24, 2009.
29.

Plaintiff Perrin drove a Chevrolet Malibu and Ford Ranger while delivering

pizzas for Defendants.

7

 Case: 4:09-cv-01335-AGF Doc. #: 136 Filed: 04/22/11 Page: 8 of 26 PageID #: 2720

30.

During Plaintiff Perrin’s employment by Defendants, the per delivery

reimbursement rate at the store where Plaintiff worked ranged from approximately $1.00
to $1.50.

Before Defendant’s purported to rely on a “tip credit” beginning in

approximately May 2009, the reimbursement rate did not exceed approximately $1.25 per
delivery.
31.

Throughout his employment with Defendants, Plaintiff Perrin has

experienced an average delivery distance of approximately 5 miles.
32.

Thus, since July 2006, Defendants’ average effective reimbursement rate

for Plaintiff Perrin has ranged from approximately $.20 per mile ($1.00 per delivery / 5
miles per delivery) to at most approximately $.30 per mile ($1.50 per delivery / 5 miles
per delivery).
32.

During this same time period, the IRS business mileage reimbursement rate

has ranged from $.445 to $.585 per mile, which was a reasonable approximation of the
automobile expenses incurred in delivering pizzas. Using the IRS rate as a reasonable
approximation of Plaintiff Perrin’s automobile expenses, every mile driven on the job
decreased Plaintiff’s net wages by approximately $.145 ($.445 - $.30) at minimum to
$.355 ($.585 - $.23) during the recovery period, or between $.725 per delivery ($.145 x 5
miles) and $1.775 per delivery (.355 x 5 miles).
33.

Defendants did not ask Plaintiff Perrin to track his actual automobile

expenses, nor is Plaintiff Perrin an expert in the field of calculating the cost of automobile
usage. However, Plaintiff Perrin’s actual automobile expenses were at the very least $.40
per mile since about July 2006. Using even this conservative under-estimate of Plaintiff
8

 Case: 4:09-cv-01335-AGF Doc. #: 136 Filed: 04/22/11 Page: 9 of 26 PageID #: 2721

Perrin’s actual expenses, as opposed to the applicable IRS rate, every mile driven on the
job decreased his net wages by between about $.20 ($.40 - $.20) and $.10 ($.40 - $.30), or
$1.00 ($.20 x 5 miles) and $.50 ($.10 x 5 miles) per delivery.
34.

During his employment by Defendants, including the period since July

2006, Plaintiff Perrin has typically worked approximately 30-35 hours per week and has
averaged approximately 3 deliveries per hour.

Based on, among other things, the

experiences of the Opt-In Plaintiffs, Plaintiff Perrin’s frequency of delivery during this
time period is a reasonable estimate of the frequency at which Defendants’ other drivers
make deliveries.
35.

Thus, since July 2006, depending on whether Defendants’ reimbursement

rate is compared to the IRS rate or to a conservative under-estimate of Plaintiff Perrin’s
actual expenses, Plaintiff Perrin “kicked back” to Defendants between approximately
$1.50 per hour ($.50 per delivery x 3 deliveries per hour) and $5.325 per hour ($1.775 per
delivery x 3 deliveries per hour), for an effective hourly wage rate between $1.475 ($6.80
per hour - $5.325 kickback) and $5.75 ($7.25 per hour - $1.50 kickback). The amount
Plaintiff Perrin has “kicked back” to Defendants per hour since July 2006 has remained
within that range.
36.

Depending on whether Defendants’ reimbursement rate is compared to the

IRS rate or to a conservative under-estimate of Plaintiff Perrin’s actual expenses,
Defendants compensated Plaintiff Perrin between $5.075 per hour ($6.55 minimum wage
– $1.475 effective wage) and $1.30 per hour ($5.85 minimum wage - $4.55 effective
wage) less than the applicable federal minimum wage. Since July 2006, the amount by
9

 Case: 4:09-cv-01335-AGF Doc. #: 136 Filed: 04/22/11 Page: 10 of 26 PageID #: 2722

which Plaintiff Perrin’s effective wage rate has fallen below the federal minimum wage
has remained within that range.
37.

All of Defendants’ delivery drivers, including the Opt-In Plaintiffs, had

similar experiences to those of Plaintiff Perrin.

They were subject to the same

reimbursement policy; received similar reimbursements; incurred similar automobile
expenses; completed deliveries of similar distances and at similar frequencies; and were
paid hourly wages at or very near the applicable state or federal minimum wage.
38.

All of Defendants’ other delivery drivers were paid at or very near the

applicable federal or state minimum wage prior to May 2009.
39.

Defendants paid Opt-In Plaintiffs the following approximate hourly wages

prior to May 2009: Tyrone Bowden, $6.50; Bryan Harris, $6.50; Merle Summers, $6.50;
William Cox, $6.15; Dexter Bradley, $5.25; Aaron Mayhew, $7.75; Kevin Johnson,
$6.65; Virginia Gardner, $6.50; Joel Bass, $6.35. These wages were consistently at or
very near the applicable minimum wage. None of these Opt-In Plaintiffs received more
than $1.20 more than the federal minimum wage rate during the class period.
40.

Until about May 2009, Defendants did not claim, or rely on, any tip credit

to satisfy federal or state minimum wage requirements.

Since about May 2009,

Defendants have purported to claim, and rely on, a tip credit to satisfy federal and state
minimum wage requirements for some or all of their delivery drivers. However, any tip
credit does not affect the claims as Plaintiffs and other delivery drivers earn a base hourly
wage of exactly the federal minimum with the tip credit, from which unreimbursed job
expenses are deducted to determine net wages.
10

 Case: 4:09-cv-01335-AGF Doc. #: 136 Filed: 04/22/11 Page: 11 of 26 PageID #: 2723

41.

All of Defendants’ other delivery drivers were reimbursed for automobile

expenses at substantially similar reimbursement rates, as promulgated under Defendants’
delivery driver reimbursement policy through its consultant Runzheimer.
42.

Before increasing its reimbursement rate when it attempted to invoke the

tip credit in May 2009, Defendants reimbursed Opt-In Plaintiffs at approximately the
following rates per order delivered: Tyrone Bowden, $1.15; Bryan Harris, $.85 to $1.15;
Merle Summers, $1.10 to $1.20; James Welsch, $.85; William Cox, $1.00; Dexter
Bradley, $1.00; Aaron Mayhew, $1.05; Kevin Johnson, $1.15; Virginia Gardner, $.75;
Joel Bass, $.75 to $1.00. These reimbursement rates are substantially similar to the rates
experienced by Plaintiff Perrin and other delivery drivers. This resulted in effective
mileage reimbursement rates between $.15 and $.24 per mile, which are well below any
reasonable approximation of the cost of operating a vehicle for delivering pizzas. Since
about May 2009, Defendants have reimbursed delivery drivers at a rate of approximately
$1.40 to $1.50 per delivery, which has resulted in an effective mileage reimbursement
rate between $.28 and $.30 per mile, which is still well below any reasonable
approximation of the cost of operating a vehicle for delivering pizzas.
43.

Based on the experience of Plaintiff Perrin and all of the Opt-In Plaintiffs,

Defendants’ delivery drivers typically drive approximately 5 miles per delivery, and they
make approximately 3 deliveries per hour.
44.

Compared to the IRS rate during the class period, the under-

reimbursements provided to Defendants’ delivery drivers ranged between about $.20
($.50 - $.30) and $.435 ($.585 - $.15) per mile, caused under-reimbursements of between
11

 Case: 4:09-cv-01335-AGF Doc. #: 136 Filed: 04/22/11 Page: 12 of 26 PageID #: 2724

about $1.00 ($.20 per mile x 5 miles) and $2.18 ($.435 per mile x 5 miles) per delivery,
and resulted in offsets to the delivery drivers’ wages of between about $3.00 ($1.00 x 3
deliveries) and $6.54 ($2.18 x 3 deliveries) per hour. Since July 2006, the delivery
drivers’ deductions for unreimbursed job expenses have been within that range, leaving
them with net wages below the federal minimum since that time.
45.

Even compared to the lowest IRS rate applicable during times relevant

($.445), the under-reimbursements provided to Defendants’ delivery drivers ranged
between about $.20 ($.445 - $.24) and $.29 ($.445 - $.15) per mile, caused underreimbursements of between about $1.00 ($.20 per mile x 5 miles per delivery) and $1.45
($.29 per mile x 5 miles) per delivery, and resulted in offsets to the delivery drivers’
wages of between about $3.00 ($1.00 x 3 deliveries) and $4.35 ($1.45 x 3 deliveries) per
hour.
46.

Defendants generally did not pay their delivery driver employees more than

$2.00 over the federal minimum wage during the limitations period.
47.

Defendants’

unreasonable

under-reimbursement

diminished

Plaintiff

Perrin’s wages by up to $5.325 per hour worked, and reduced some of the Opt-In
Plaintiffs’ hourly wages by even more. This far exceeds the amount over the federal
minimum wage Defendants paid to any of the Opt-In Plaintiffs or any of Defendants’
delivery drivers.
48.

Because Defendants provided their drivers an hourly wage at or very close

to the applicable federal or state minimum, because applicable state minimum wages did
not exceed $2.00 above the federal minimum during times relevant except for a short
12

 Case: 4:09-cv-01335-AGF Doc. #: 136 Filed: 04/22/11 Page: 13 of 26 PageID #: 2725

time in Illinois that occurred early in the class period and will not affect future opt-ins,
because Defendants did not pay their delivery drivers more than $2.00 over the federal
minimum wage during times relevant, and because the delivery drivers’ unreimbursed
reasonably-approximated automobile expenses were at least $2.00 per hour, the delivery
drivers “kicked back” to Defendants expenses sufficient to cause minimum wage
violations and Defendants provided their delivery drivers net wages below the federal
minimum wage in some or all workweeks.
49.

Based on the allegations set forth above, Defendants’ average under-

reimbursement of automobile expenses over the prior three years has exceeded the
difference between hourly wages in each state in which Defendants operate and the
federal minimum wage during part or all of the limitations period, thereby resulting in
company-wide minimum wage violations.
50.

While the amount of Defendants’ actual reimbursements per delivery vary

over time and based on geographic issues such as the price of gas and other cost
differences, Defendants are relying on the same flawed policy and methodology with
respect to all delivery drivers at all of their other Papa John’s restaurants nationwide.
Thus, although reimbursement amounts may differ somewhat by geographic region, the
amounts of under-reimbursements relative to automobile costs incurred are relatively
consistent between regions.
51.

Defendants’ low reimbursement rates were a frequent complaint of

Defendants’ delivery drivers, including Plaintiff Perrin, yet Defendants continued to

13

 Case: 4:09-cv-01335-AGF Doc. #: 136 Filed: 04/22/11 Page: 14 of 26 PageID #: 2726

reimburse at a rate much less than any reasonable approximation of delivery drivers’
automobile expenses.
52.

The net effect of Defendants’ flawed reimbursement policy, instituted and

approved by company managers, is that they willfully fail to pay the federal minimum
wage to their delivery drivers. Further, Defendants willfully fail to pay minimum wages
required by state law in the time periods during which individual states’ minimum wage
laws require a minimum wage higher than the federal minimum wage. Defendants
thereby enjoy ill-gained profits at the expense of their employees.
Collective and Class Action Allegations
53.

Plaintiff Perrin brings Count I (the FLSA claim) as an “opt-in” collective

action on behalf of similarly situated delivery drivers pursuant to 29 U.S.C. § 216(b).
54.

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

pursuant to 29 U.S.C. § 216(b).
55.

Plaintiff, individually and on behalf of other similarly situated employees,

seeks relief on a collective basis challenging Defendants’ practice of failing to pay
employees federal minimum wage. The number and identity of other plaintiffs yet to
opt-in and consent to be party plaintiffs may be ascertained from Defendants’ records,
and potential class members may be notified of the pendency of this action.
56.

Plaintiff Perrin, the Opt-In Plaintiffs, and all of Defendants’ delivery

drivers are similarly situated in that:
a. They worked as delivery drivers for Defendants delivering pizza and other
food items to Defendants’ customers;

14

 Case: 4:09-cv-01335-AGF Doc. #: 136 Filed: 04/22/11 Page: 15 of 26 PageID #: 2727

b. They delivered pizza and food items using automobiles not owned or
maintained by Defendants;
c. Defendants required them to maintain these automobiles in a safe, legallyoperable, and insured condition to use in delivering Defendants’ pizzas and
other food items;
d. They incurred costs for gasoline, vehicle parts and fluids, automobile repair
and maintenance services, automobile insurance, and depreciation
(“automobile expenses”) while delivering pizzas and food items for the
primary benefit of Defendants;
e. They were subject to similar driving conditions, automobile expenses,
delivery distances, and delivery frequencies;
f. They were subject to the same pay policies and practices of Defendants;
g. They were subject to the same delivery driver reimbursement policy –
which underestimates both automobile expenses per mile and miles per
delivery – and thereby systematically deprived them of reasonably
approximate reimbursements, resulting in their wages falling below the
federal minimum wage in some or all workweeks;
h. They were reimbursed similar set amounts of automobile expenses per
delivery, typically less than $1.25 and;
i. They were paid an hourly wage equal to or very near the applicable state or
federal minimum wage.

15

 Case: 4:09-cv-01335-AGF Doc. #: 136 Filed: 04/22/11 Page: 16 of 26 PageID #: 2728

57.

Plaintiff Perrin brings Count II as a class action under Fed. R. Civ. P. 23, on

behalf of himself and a Class defined as:
All current and former delivery drivers employed by Defendants during the
applicable statute of limitations in the States of Arizona, Florida, Illinois,
Maryland, Missouri, and North Carolina (the “States”).
58.

The state law claims are brought on behalf of all similarly situated persons

who do not opt-out of the Class.
59.

The state law claims in Count II satisfy the numerosity, commonality,

typicality, adequacy and superiority requirements of a class action under Federal Rule of
Civil Procedure 23.
60.

The Class consists of hundreds or thousands of persons who are

geographically dispersed. As a result, the Class is numerous and joinder of all class
members in a single action is impracticable.
61.

Questions of fact and law common to the Class predominate over any

questions affecting only individual members. The questions of law and fact common to
the classes arising from Defendants’ actions include, without limitation, whether
Defendants failed to reasonably approximate and pay automobile expenses for their
delivery driver employees, and whether Defendants failed to pay class members the
minimum wage required by the applicable states’ minimum wage laws.
62.

The questions set forth above predominate over any questions affecting

only individual persons, and a class action is superior with respect to considerations of
consistency, economy, efficiency, fairness, and equity to other available methods for the
fair and efficient adjudication of the state law claims.
16

 Case: 4:09-cv-01335-AGF Doc. #: 136 Filed: 04/22/11 Page: 17 of 26 PageID #: 2729

63.

Plaintiff Perrin’s claims are typical of those of the Class in that Plaintiff

Perrin and the Class members:
a. Worked as delivery drivers for Defendants delivering pizza and other food
items to Defendants’ customers;
b. Delivered pizza and food items using automobiles not owned or maintained
by Defendants;
c. Were required by Defendants to maintain these automobiles in a safe,
legally-operable, and insured condition to use in delivering Defendants’
pizza and other food items;
d. Incurred costs for gasoline, vehicle parts and fluids, automobile repair and
maintenance services, automobile insurance, and depreciation (“automobile
expenses”) while delivering pizzas for the primary benefit of Defendants;
e. Were subject to similar driving conditions, automobile expenses, delivery
distances, and delivery frequencies;
f. Were subject to the same pay policies and practices of Defendants;
g. Were subject to the same delivery driver reimbursement policy—which
underestimates both automobile expenses per mile and miles per delivery—
and

thereby

systematically

deprived

of

reasonably

approximate

reimbursements, resulting in their wages falling below the federal minimum
wage in some or all workweeks;
h. Were reimbursed similar set amounts of automobile expenses per delivery,
typically less than $1.25; and
17

 Case: 4:09-cv-01335-AGF Doc. #: 136 Filed: 04/22/11 Page: 18 of 26 PageID #: 2730

i. Were paid an hourly wage equal to or very near the applicable state or
federal minimum wage.
j. Experienced that under-reimbursements for automobile expenses reduced
net wages below their respective state’s minimum wage.
64.

A class action is the appropriate method for the fair and efficient

adjudication of the state law claims. Defendants have acted or refused to act on grounds
generally applicable to the Class. The presentation of separate actions by individual
Class members creates a risk of inconsistent and varying adjudications, establishing
incompatible standards of conduct for Defendants, and/or substantially impairing or
impeding the ability of Class members to protect their interests.
65.

Plaintiff Perrin is an adequate representative of the Class because he is a

member of the Class and his interests do not conflict with the interests of the Class
members he seeks to represent. The interests of the Class members will be fairly and
adequately protected by Plaintiff Perrin and the undersigned counsel, who have extensive
experience prosecuting complex wage and hour, employment, and class action litigation.
66.

Maintenance of this action as a class action is a fair and efficient method

for adjudicating this controversy. It would be impracticable and undesirable for each
member of the Class who suffered harm to bring a separate action. In addition, the
maintenance of separate actions would place a substantial and unnecessary burden on the
courts and could result in inconsistent adjudications, while a single class action can
determine, with judicial economy, the rights of all Class members.
Count I: Violation of the Fair Labor Standards Act of 1938
18

 Case: 4:09-cv-01335-AGF Doc. #: 136 Filed: 04/22/11 Page: 19 of 26 PageID #: 2731

67.

Plaintiff reasserts and re-alleges the allegations set forth above.

68.

At all relevant times herein, Plaintiff has been entitled to the rights,

protections, and benefits provided under the FLSA, 29 U.S.C. §§ 201, et seq.
69.

The FLSA regulates, among other things, the payment of minimum wage

by employers whose employees are engaged in interstate commerce, or engaged in the
production of goods for commerce, or employed in an enterprise engaged in commerce or
in the production of goods for commerce. 29 U.S.C. §206(a); 29 U.S.C. § 207(a)(1).
70.

Defendants are subject to the FLSA’s minimum wage requirements because

they are an enterprise engaged in interstate commerce and their employees are engaged in
commerce.
71.

Pursuant to Section 6 of the FLSA, codified at 29 U.S.C. § 206, employees

are entitled to be compensated at a rate of at least $5.15 per hour before July 24, 2007;
$5.85 per hour effective July 24, 2007; $6.55 per hour effective July 24, 2008; and $7.25
per hour effective July 24, 2009.
72.

Through approximately May 2009, Defendants were not allowed to avail

themselves of, or rely on, the federal tipped minimum wage rate under the FLSA nor did
Defendants attempt to avail themselves of, or rely on, the federal tipped minimum wage
rate before that time.
73.

Since approximately May 2009, Defendants have purported to avail

themselves of, and rely on, the federal tipped minimum wage rate under the FLSA for
some or all of their delivery drivers.

19

 Case: 4:09-cv-01335-AGF Doc. #: 136 Filed: 04/22/11 Page: 20 of 26 PageID #: 2732

74.

Defendants knew or should have known that their reimbursement policy

and practice failed to compensate delivery drivers at the applicable federal minimum
wage rate.
75.

As alleged herein, Defendants have and continue to uniformly reimburse

delivery drivers less than the reasonably approximate amount of their automobile
expenses to such an extent that it diminishes these employees’ wages beneath the FLSA’s
minimum wage provisions.
76.

Defendants knew or should have known that their reimbursement policy

and methodology fails to compensate delivery drivers at the federal minimum wage.
77.

Defendants, pursuant to their policy and practice, violated the FLSA by

refusing and failing to pay federal minimum wage to Plaintiff and other similarly situated
employees.
78.

Section 13 of the FLSA, codified at 29 U.S.C. § 213, exempts certain

categories of employees from federal minimum wage obligations. None of the FLSA
exemptions apply to Plaintiff or other similarly situated delivery drivers.
79.

Plaintiff and all similarly situated delivery drivers are victims of a uniform

and employer-based compensation policy. This uniform policy, in violation of the FLSA,
has been applied, and continues to be applied, to all delivery driver employees in
Defendants’ restaurants.
80.

Plaintiff and all similarly situated employees are entitled to damages equal

to the minimum wage minus actual wages received after deducting reasonably
approximated automobile expenses within three years from the date each Plaintiff joins
20

 Case: 4:09-cv-01335-AGF Doc. #: 136 Filed: 04/22/11 Page: 21 of 26 PageID #: 2733

this case, plus periods of equitable tolling, because Defendants acted willfully and knew,
or showed reckless disregard for, whether their conduct was unlawful.
81.

Defendants have acted neither in good faith nor with reasonable grounds to

believe that their actions and omissions were not a violation of the FLSA, and as a result,
Plaintiff and other similarly situated employees are entitled to recover an award of
liquidated damages in an amount equal to the amount of unpaid minimum wages under
29 U.S.C. § 216(b). Alternatively, should the Court find Defendants did not act willfully
in failing to pay minimum wage, Plaintiff and all similarly situated employees are entitled
to an award of prejudgment interest at the applicable legal rate.
82.

As a result of the aforesaid willful violations of the FLSA’s minimum wage

provisions, minimum wage compensation has been unlawfully withheld by Defendants
from Plaintiff and all similarly situated employees. Accordingly, Defendants are liable
under 29 U.S.C. § 216(b), together with an additional amount as liquidated damages, prejudgment and post-judgment interest, reasonable attorneys’ fees, and costs of this action.
WHEREFORE, on Count I of this Complaint, Plaintiff and all similarly situated
delivery drivers demand judgment against Defendants and request: (1) compensatory
damages; (2) liquidated damages; (3) attorneys’ fees and costs as allowed by Section
16(b) of the FLSA; (4) pre-judgment and post-judgment interest as provided by law; and
(5) such other relief as the Court deems fair and equitable.
Count II: Violation of State Minimum Wage Laws
83.

Plaintiff Perrin reasserts and re-alleges the allegations set forth above.

21

 Case: 4:09-cv-01335-AGF Doc. #: 136 Filed: 04/22/11 Page: 22 of 26 PageID #: 2734

84.

Plaintiff Perrin brings Count II on behalf a Class of all current and former

delivery drivers employed by Defendants during the applicable limitations period in the
States of Arizona, Florida, Illinois, Maryland, Missouri, and North Carolina (the
“States”).
85.

Defendants’ failure to pay its delivery drivers the federal minimum wage

necessarily caused a corresponding violation of the States’ minimum wage laws during
the time periods in which these States required payment of a higher minimum wage than
the federal minimum. Count II is brought to recover these additional unpaid wages.
86.

At all times relevant, Plaintiff Perrin and members of the Class have been

entitled to the rights, protections, and benefits provided under the States’ laws, as
applicable, and any wage orders and regulations incorporated therein.
87.

Arizona: The aforementioned pay policy and practice by Defendants was

and/or is in violation of the minimum wage provisions of Ariz. Rev. Stat. § 23-362 et seq.
88.

Florida: The aforementioned pay policy and practice by Defendants was

and/or is in violation of the minimum wage provisions of the Florida Minimum Wage
Act, Florida Stat. § 448.110.
89.

Illinois: The aforementioned pay policy and practice by Defendants was

and/or is in violation of the minimum wage provisions of the Illinois Minimum Wage
Law, 820 I.L.C.S. 105/1 et seq.
90.

Maryland: The aforementioned pay policy and practice by Defendants

was and/or is in violation of the minimum wage provisions of the Maryland Wage and
Hour Law, Md. Code § 3-401 et seq.
22

 Case: 4:09-cv-01335-AGF Doc. #: 136 Filed: 04/22/11 Page: 23 of 26 PageID #: 2735

91.

Missouri: The aforementioned pay policy and practice by Defendants was

and/or is in violation of the minimum wage provisions of Mo. Rev. Stat. § 290.500 et
seq.
92.

North Carolina:

The aforementioned pay policy and practice by

Defendants was and/or is in violation of the minimum wage provisions of the North
Carolina Wage and Hour Act, N.C. Gen. Stat. § 95-25.1 et seq.
93.

The States’ minimum wage laws regulate, among other things, the payment

of minimum wage by employers who employ any person in those States, subject to
limited exemptions not applicable herein, and provide or have provided during part or all
of the applicable limitations period for a higher minimum wage than that provided for
under federal law.
94.

During all times relevant to this action, Defendants were the “employer” of

Plaintiff Perrin and the members of the Class within the meaning of the States’ minimum
wage laws.
95.

During all times relevant to this action, Plaintiff Perrin and the Class were

Defendants’ “employees” within the meaning of the States’ minimum wage laws.
96.

Plaintiff Perrin and the Class members are not exempt employees under any

of the States’ minimum wage laws.
97.

Through approximately May 2009, Defendants were not allowed to, and

did not attempt to, avail themselves of, or rely on, any State’s tipped minimum wage rate.

23

 Case: 4:09-cv-01335-AGF Doc. #: 136 Filed: 04/22/11 Page: 24 of 26 PageID #: 2736

98.

Since approximately May 2009, Defendants have purported to avail

themselves of and rely on state tipped minimum wage rates for some or all of their
delivery drivers.
99.

Defendants, pursuant to their policy and practice alleged herein, violated

the States’ minimum wage laws by refusing and failing to pay Plaintiff Perrin and other
similarly situated delivery drivers minimum wage.
100.

Defendants knew or should have known that their policy and practice failed

to pay their delivery drivers a reasonable approximation of their automobile expenses,
and that through this “kick back” of wages Defendants uniformly and systematically
failed to pay the minimum wage required by each of the States’ minimum wage laws.
Additionally and alternatively, Defendants’ knowledge and actions justify an award of
liquidated damages and/or penalties as permitted under the individual States’ minimum
wage laws.
101.

Plaintiff Perrin and the Class are victims of a uniform and employer-based

reimbursement policy regarding automobile expenses. This uniform policy, in violation
of federal minimum wage law and thus necessarily in violation of the States’ minimum
wage laws, has been applied to all Class members in Defendants’ stores throughout the
States.
102.

Plaintiff Perrin and members of the Class are entitled to damages equal to

the difference between the applicable State’s minimum wage and actual wages received
after deducting reasonably approximated automobile expenses within the applicable
limitations period, plus periods of equitable tolling.
24

 Case: 4:09-cv-01335-AGF Doc. #: 136 Filed: 04/22/11 Page: 25 of 26 PageID #: 2737

103.

Plaintiff Perrin and the Class are entitled to an award of liquidated

damages, pre-judgment and post-judgment interest at the applicable legal rate, and for
any other remedy permitted under the applicable State law.
104.

Defendants are liable for Plaintiffs’ attorneys’ fees and costs incurred in

this action as allowed under the applicable State law.
WHEREFORE, on Count II of this Complaint, Plaintiff Perrin and the Class
demand judgment against Defendants and pray for: (1) compensatory damages; (2)
liquidated damages law; (3) pre-judgment and post judgment interest as provided by law;
(4) attorneys’ fees and costs of litigation as provided by law, and (5) such other relief as
the Court deems fair and equitable.
Demand For Jury Trial
Plaintiff hereby requests a trial by jury of all issues triable by jury.

Dated:

April 22, 2011

Respectfully submitted,
STUEVE SIEGEL HANSON LLP
George A. Hanson (MO Bar #43450)
Richard M. Paul III (MO Bar #44233)
Jack D. McInnes (MO Bar #56904)
460 Nichols Road, Suite 200
Kansas City, Missouri 64112
Telephone: (816) 714-7100
Facsimile: (816) 714-7101

25

 Case: 4:09-cv-01335-AGF Doc. #: 136 Filed: 04/22/11 Page: 26 of 26 PageID #: 2738

WEINHAUS & POTASHNICK
/s/ Mark A. Potashnick
Mark A. Potashnick (E.D. Mo. #35970)
11500 Olive Blvd., Suite 133
St. Louis, Missouri 63141
Telephone: (314) 997-9150
Facsimile: (314) 997-9170
ATTORNEYS FOR PLAINTIFF

CERTIFICATE OF SERVICE
The undersigned hereby certifies that the foregoing was served on all attorneys of
record via the Court’s electronic case filing system on the date reflected in the Court’s
electronic case filing records.
/s/ Mark A. Potashnick
ATTORNEY FOR PLAINTIFF

26