Case 3:16-cv-02064-B Document 1 Filed 07/15/16

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
SHANNON SCHOELLHORN,
on behalf of herself and others
similarly situated,

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Plaintiffs,
v.
CAMP GLADIATOR, INC.,
Defendant.

Civil Action No. _______________

ORIGINAL COMPLAINT
TO THE HONORABLE JUDGE OF THIS COURT:
Plaintiff Shannon Schoellhorn, on behalf of herself and others similarly situated
(“Plaintiffs”) file this Original Class Action Complaint against Defendant Camp Gladiator, Inc.
(“CG”), and in support state as follows:
NATURE OF ACTION
1.

First FLSA Claim - Unpaid Interns:

Plaintiffs bring this action to recover

minimum wage compensation owed to them for their work as unpaid “interns” for CG, pursuant
to the Fair Labor Standards Act (“FLSA”) (29 U.S.C. § 201, et seq.). Plaintiffs further seek an
injunction, requiring CG to pay its “intern” trainers at least the minimum wage for each hour of
work that they perform as an “intern” for CG.
2.

Second FLSA Claim - Overtime: Plaintiffs bring this action to recover overtime

compensation owed to them for their work as “Primary Trainers” for CG, pursuant to the Fair
Labor Standards Act (“FLSA”) (29 U.S.C. § 201, et seq.). Plaintiffs further seek an injunction,
requiring CG to formally reclassify its trainers as non-exempt employees, to notify all trainers of

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this reclassification, and to take all necessary steps to ensure that they are complying with the
consequences of that reclassification (e.g., paying employment taxes, paying overtime as
required by law, offering employee health insurance as required by law, etc.).
3.

DTPA Claim: Alternatively, in the event that the finder of fact determines that

Plaintiff is not properly classified as an employees, she seeks to recover economic, actual, and
treble damages under the Texas Deceptive Trade Practices Act (“DTPA”) (Tex. Bus. Comm.
Code, Ch. 17), based on CG’s multiple ommissions and misrepresentations to trainers regarding
the nature of the service it offers, and based on its failure to comply with the Texas Business
Opportunity Act (“BOA”) (Tex. Bus. & Com. Code § 41.302). She further seeks an injunction,
requiring CG to: (1) comply with the BOA by registering with the Texas Secretary of State as
such, obtaining a surety bond, establishing a trust account, or obtaining an irrevocable letter of
credit before recruiting potential trainers, and by providing all current and potential trainers with
the written disclosure statement as required by the BOA; (2) requiring to CG to amend all of its
trainer recruiting materials (online job postings, recruiting videos, social media advertisements,
and the like) to accurately describe the nature of, and the full requirements of, the “Primary
Trainer” opportunity at CG, and (3) to cease use of all inaccurate or misleading trainer
recruitment materials.
JURISDICTION AND VENUE
4.

Jurisdiction is conferred on this Court by 29 U.S.C. § 216, 28 U.S.C. § 1331, and

y. 28 U.S.C. § 1367.
5.

Venue is proper in this Court under 28 U.S.C. § 1441(a).

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PARTIES
6.

The named Plaintiff is a current, non-supervisory employee of Defendant. She is

employed in the position of “Primary Trainer.” She has consented to the filing of this action.
7.

Defendant is a Texas corporation, which can be served with process via its

Registered Agent for service (Ally Kelly Davidson, 2908 Warren Circle, Irving TX 75062), or
via any officer located at its headquarters: 9185 Research Blvd., Ste. 200, Austin TX 78758.
FACTS:
8.

CG is Texas corporation, doing business in the states of Texas, Oklahoma,

Florida, Louisiana, and North Carolina. It operates “bootcamp” style outdoor fitness classes for
large groups of individuals, who are called “campers.” Each “camp” is designed as a 4-week
fitness course.
9.

Campers can purchase a single 4-week “camp,” which allows them to attend as

many bootcamp classes as they like, at as many locations as they like, during that 4-week period.
Campers may also purchase longer-term memberships – for example, a 6-month or 1-year
membership. When a camper purchases this type of long term membership, they are said to have
been “converted” to a “CG BOLD” camper.
10.

Typically, there is one trainer who runs each outdoor bootcamp class. A single

bootcamp class could have anywhere from 5 campers, to well over 100 campers, depending on
the location and time of the class. The trainers who run these bootcamp classes are called
“Primary Trainers.”
11.

To be a Primary Trainer with CG, one must have a current, nationally accredited

personal training certification (such as NSCA, NASM, Cooper, ACE, or ACSM), as well as a
current CPR/AED certification.

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I. THE UNPAID INTERNSHIP:
12.

To become a Primary Trainer with CG, a trainer must first submit a written

application for the job. Qualifications include the certifications listed above, plus “personal
training experience,” and the possession of various personality characteristics (ex:
“communication and listening skills, honesty and personal integrity….passionate, enthusiastic,
personable and driven”). The advertised job responsibilities are:

13.

•

“Design and implement dynamic workouts;

•

Provide fitness motivation, encouragement and education to all campers;

•

Be punctual and professional;

•

Provide exceptional customer service to all clients and members;

•

Stay knowledgeable on current trends in fitness training and exercise science; and

•

Maintain required certifications and CECs.”
Interested trainers are also invited to attend “Information Sessions,” which are

held regularly in and aronud the cities where CG conducts business. These sessions are run by
current CG trainers, and are desigend to give potential new trainers information about becoming
a CG trainer – what type of work it is, what’s required, what the benefits are, the basic pay
structure, information about the company’s background and mission, etc.
14.

After the Information Sesssion, there is often an “audition” or “field interview,” in

which potential trainers are invited to demonstrate their training skills. They typically direct a
brief workout for the other potential trainers in attendance, as if they were conducting a real
bootcamp. They are observed and evaluated by the current CG trainers.
15.

If a trainer is invited by CG to continue past the Audition/Field Interview, he or

she will be invited to begin the “CG Trainer Internship.”

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16.

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As CG states on its website, this internship “is different from those sought to earn

credit for a college course. It is a training program intended for those starting a career with Camp
Gladiator.”

During the Information Sessions, at least one current CG Regional Director

describes the internship as “an extended interview” for the position of Primary Trainer.
17.

During the CG Trainer Internship, potential trainers are given a list of job

requirements that they must fulfill in order to complete their internship and become a fullfledged Primary Trainer. Interns are required, at least, to:
(a)

Attend a certain number of bootcamp classes in their area as “campers.” When
they attend as campers, they are expected to “be a leader on the field,” “take
workout notes,” and “be early and stay late.” This phase may take up to three
weeks to complete.

(b)

Watch a sales training video and engage in role-playing exercises with their
Regional Directors to practice their sales skills.

(c)

Under the direction of current CG trainers, complete a minimum of 10 sales (with
a minimum $690 revenue) within 21 days to new “campers” – e.g., convince a
minimum number of individuals who are new to CG to purchase a single 4-week
camp or a longer-term “CG BOLD” membership.

(d)

Attend at least two marketing events under the supervision of current CG trainers
– for example, help to staff a CG tent at a local 5k run event.

(e)

Act as an “assistant trainer” at a certain number of additional bootcamp classes –
this entails helping the Primary Trainer set up for, and clean up after, the class,
making sure that all campers are checked in, and directing the bootcamp class for
some, or all of the 1-hour camp time.

(f)

Create one workout for each week of the CG bootcamp cycle (e.g., “Endurance,
Functional Training, Interval Training, and Metabolic Conditioning”), and submit
them to the Regional Director.

(g)

Pay their own travel, lodging, and registration costs to attend the “CG Academy”
- a multi-day company workshop held in Austin, Texas.

(h)

Give CG at least 100 email addresses of their friends, family members, or other
acquaintences, so CG can add them to its email marketing list.

(i)

Attend all-trainer meetings with the current CG trainers.

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(j)

Attend various lunches and other social events with current CG trainers.

(k)

Lead a 30-minute minimum workout scheduled by a Regional Director.

(l)

Create and submit a Business Plan to a Regional Director.

(m)

Come up with names of at least 3 other trainers who could be recruited to join
CG, and provide that information to a Regional Director.

(n)

Purchase either a $500.00 or a $750.00 “CG Starter Pack,” which gives the trainer
a CG Email Address, CG Business Cards and a CG Business Card Holder, a few
items of CG logo clothing, and CG logo items to use at their bootcamp classes (a
CG flag, table cover, and fliers) – in short, materials that they will be required to
use when working as a Primary Trainer.

18.

The length of the internship varies, since some potential trainers are able to

complete these tasks faster than others. On average, however, a CG trainer’s internship will last
approximately 6 to 10 weeks.
19.

On average, an intern will work approximately 20 hours per week during their

internship.
20.

CG does not affirmatively designate its interns as “employees,” “independent

contractors,” or otherwise during this time period. It simply refers to them as “interns.” Interns
are not paid for the work that they perform during their internships.
21.

Taking into account the factors considered by the Internal Revenue Service

(“IRS”), by the Texas Workforce Commission (“TWC”), and in the “economic realities” test
often used in FLSA claims, CG Interns are properly classified as employees, not independent
contractors (see e.g. Section II, below – which applies with even greater force to intern trainers,
who have far less responsibility, and far more supervision, than Primary Trainers).
22.

The Department of Labor has developed a six-factor test (see “Fact Sheet #71:

Internship Programs Under The Fair Labor Standards Act”) for determining when it is
permissible not to pay interns for their work. All six factors must be met in order for an

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employer to legally run a “unpaid internship” program. By CG’s own admissions, the CG
internship program does not meet all of these requirements:
DOL Factors

The CG Internship Program

Factor 1:
“The internship, even though it includes
actual operation of the facilities of the
employer, is similar to training which
would be given in an educational
environment.”

On the FAQ section of its website, Defendant
states: “The internship with Camp Gladiator is
different from those sought to earn credit for a
college course. It is a training program intended
for those starting a career with Camp Gladiator.”

Interns are not provided with training that is
(Additional DOL Guidance: “Does it teach similar to the education necessary to become a
skills that can be used in multiple personal trainer. Indeed, potential CG trainers are
employment settings, as opposed to skills expected to obtain that training and certification on
particular to one employer’s operation?”)
their own, through third party providers.
What interns do learn is how to work at CG – they
are taught CG’s training style, its sales model, and
told a little bit about the Primary Trainer job
requirements -- i.e., skills that are particular to
CG’s operation.
Factor 2:
“The internship experience is for the
benefit of the intern.”
Factor 3:
“The intern does not displace regular
employees, but works under close
supervision of existing staff.”

During their internships, interns run the bootcamps
– directing workouts for the campers, setting up
and cleaning up, and checking in campers. They
attend marketing events, attend trainer meetings,
and make sales. In short, they perfrom all of the
routine work of a Primary Trainer.

Defendant derives an immediate advantage from
the intern’s work – particularly with regard to the
Factor 4:
requirements that an intern: (a) close sales for CG,
“The employer that provides the training (b) provide it with email addresses, and (c) recruit
derives no immediate advantage from the additional trainers for CG.
activities of the intern; and on occasion its
operations may actually be impeded.”
(Additional DOL Guidance: “Does the
intern does perform the routine work of the
business on a regular and recurring
basis?”).

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Factor 5:
“The intern is not necessarily entitled to a
job at the conclusion of the internship.”

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This is precisely what the CG internship is for – it
is a “trial period” where current trainers watch an
intern work, evaluate them, and determine whether
they’re good enough to become a Primary Trainer.

(Additional DOL Guidance: “unpaid
internships generally should not be used by
the employer as a trial period for
individuals seeking employment at the
conclusion of the internship period.”).

It is listed on Defendant’s own website under the
“Careers” section, as a step toward becoming a
Primary Trainer. On the FAQ section of its
website, Defendant states: “The internship…is a
training program intended for those starting a
career with Camp Gladiator.” CG openly refers to
the program as “an extended interview.”

Factor 6:
“The employer and the intern understand
that the intern is not entitled to wages for
the time spent in the internship.”

Presumably, interns become aware of this fact at
least once they actually start the internship. Given
Defendant’s failure to meet any of the other five
factors, however, its potential satisfaction of this
factor is of no importance.

23.

CG Interns are not otherwise exempt from the FLSA’s minimum wage

requirements. Nonetheless, interns are paid nothing for the work they perfom.
II. CG MISCLASSIFIES ITS TRAINERS AS INDEPENDENT CONTRACTORS.
24.

CG takes great pains to identify its trainers as “independent contractors,”

“owners,” “operators,” or “business partners.”

They even require their trainers to sign an

“Independent Contractor Agreement.” The factual reality, however, indicates that CG’s trainers
are in fact employees.
25.

The Texas Workforce Commission and the Internal Revenue Service have both

set forth factors that should be considered when classifying a worker as an “employee” or an
“indepenedent contractor.” Federal courts also look to the “economic realities test” to make this
determination – a test which incorporates many of the same factors adopted by the TWC and the
IRS. Under any of these tests, CG’s trainers should be classified as employees:

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True Independent Contractors

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CG Primary Trainers

An Independent Contractor uses his or her
own methods, and thus need not receive
training from the purchaser of those
services.

Trainers are required to attend company-wide
training meetings several times per year to receive
company training. And once every 5 weeks,
trainers must attend a region-wide meeting to
review plans for the next “camp.” New trainers
must attend a “CG Academy.” When running their
bootcamps, trainers must follow CG’s prescribed 4week fitness training schedule, and they cannot
deviate from it.

An Independent Contractor's services are
usually separate from the client's business
and are not integrated or merged into it.

Trainers’ services are, without question, merged
into CG’s overall operation. CG’s success depends
on the trainers’ services, and the trainers’ services
are the sole product that is sold to CG’s customers
(i.e., “campers”). Trainers also make up the vast
majority of CG’s workforce.

A true Independent Contractor is able to
assign another to do the job in his or her
place and need not perform services
personally.

Under their contract with CG, a Trainer’s services
must be rendered personally.
Trainers are
sometimes allowed to use a substitute trainer to fill
in for them, but only with substitutes that are
approved by CG, and that are themselves under
contract with CG.
When this happens, the
substitute is paid directly by CG, and then the cost
of paying that substitute is deducted from the
Trainer’s paycheck. Trainers are not allowed to
“farm out” their camps to other trainers – a
minimum of 80% of their camps must be run them
personally.

Independent Contractors select, hire, pay,
and supervise any helpers used and are
responsible for the results of the helpers'
labor.

Trainers do not have full discretion to select or hire
their substitutes. While they are allowed to use a
substitute, the substitute must have already signed a
contract with CG, and be approved by CG. CG is
responsible for paying the substitute (the cost of
which is then deducted from the Trainer’s
paycheck). Trainers are also limited as to how
often they can use a substitute. At least 80% of a
Trainer’s classes must be run personally by them.

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An Independent Contractor is usually hired
to do one job of limited or indefinite
duration and has no expectation of
continuing work.

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Trainers continue to work for CG month after
month, or year after year, for an indefinite duration.
CG’s website states: “most of our Primary Trainers
choose to pursue this opportunity in a full-time
capacity.” In fact, CG has terminated Trainers who
are unable to commit to CG full time (or, as CG
puts it, to “be all in,” or to “bleed CG.”).

A true Independent Contractor is the master Trainers can conduct their bootcamps only during
of his or her own time and works the days
hours and days that are approved by CG. They also
and hours he or she chooses.
must attend monthly regional meetings, and
national training meetings, at dates and times set by
CG.
A true Independent Contractor cannot be
required to devote full-time service to one
firm exclusively.

As CG’s website states: “most of our Primary
Trainers choose to pursue this opportunity in a fulltime capacity.” In fact, CG has fired Trainers who
are unable to commit to CG full time (or, as CG
puts it, to “be all in,” or to “bleed CG.”).
Some trainers have posted complaints online about
this issue, stating: “ Never have time off so if you
have family, children, pets, bf/gf, might as well tell
send them post cards and text messages because
you hardly see them in real life,” and “Work/Life
balance is non-existent,” and “If you want to grow,
you have to work 16-18 hour days.”

Independent Contractors ordinarily work
where they choose. The workplace may be
away from the client's premises.

Trainers can conduct their bootcamps only at
locations that are approved by CG, and where CG
has executed a rental/lease agreement for the space.

A true Independent Contractor is concerned Trainers perform their fitness training services in
only with the finished product and sets his
the order or sequence set by CG – specifically,
or her own order or sequence of work.
trainers must follow a specific 4-week fitness
training sequence set by CG (endurance, then
strength/agility, then HIIT training, then “peak
week” training). They are not allowed to deviate
from this pattern.
An Independent Contractor is usually not
required to submit regular oral or written
reports about the work in progress.

Trainers are often required to report back to CG
about the number of contacts they’ve made with
their campers (ex: text messages, emails, or calls).
Regular reports are also created showing how many
campers a Trainer has “converted” to “CG BOLD,”
how many new “campers” they’ve signed up, etc.

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An Independent Contractor is normally
paid by the job, either a negotiated flat rate
or upon submission of a bid.

Trainers are paid by CG at stated intervals (10
times per year). They do not submit bids – rather,
they apply for the job through a written job
application, which is followed by an interview and
an “internship” (i.e., unpaid probationary period).

An Independent Contractor ordinarily
provides all of the tools and equipment
necessary to complete the job.

Trainers furnish some of their own tools for their
bootcamps (ex: a few jumpropes, hand weights,
cones, and the like). Most of the tools for the job,
however, are provided by CG (ex: the Trainer iPad
app, the CG website, CG logo marketing items, CG
business cards, CG logo clothing, the CG
“platform” service, advertising and marketing
materials, business and sales training, etc.).
Notably, most of the items that Trainers have to
purchase for themselves can only be used for their
work at CG – not in any other business, because
they are CG-branded.

True Independent Contractors usually have
a substantial financial investment in their
independent business.

Trainers have only a small investment in their own
businesses. They purchase a $500 or $750 CG
“starter pack,” (which, importantly, cannot benefit
the Trainer outside of his/her work for CG, because
it consists of CG-branded materials), and they
purchase a small amount of workout supplies to use
in their camps (campers are required to bring their
own mats and weights, but Trainers will provide
some items, like ropes or kickballs). That is
generally the extent of their financial investment.
CG, on the other hand, invests large amounts of
money in the business – for example, the
company’s web presence, its marketing campaigns
and advertising, its Headquarters employee salaries,
etc. In fact, in the agreement that Trainers are
required to sign with CG, they are required to
acknowledge that “The Company has invested
significantly
in
developmental
cost
in
organizational costs, such as obtaining and
development of customer lists, advertising, website
development and maintenance.”

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An Independent Contractor can either
realize a profit or suffer a loss depending
on the management of expenses and
revenues.

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Trainers realize a profit or loss based primarily on
the location of their bootcamp, and the number of
camps they run. This type of profit or loss is not a
result of their own financial management skills.
In fact, Trainer pay is regularly docked for CG’s
company-wide or region-wide marketing and
advertising expenses. These expenses are docked
from the Trainer’s paycheck, even though the
Trainer did not choose to purchase these services.
Instead, CG Headquarters chooses what it wants to
spend on various marketing campaigns, and then
charges a portion of those costs to the Trainers in
that region. Trainers have no say in what the
company chooses to spend, or on what they are
charged.
Similarly, Trainers are charged approximately $4$5 for each “free” t-shirt that is given to a new
camper at their camp location, and they are charged
approximately $30 whenever a camper uses a
“bring a friend to camp” coupon. The Trainer does
not choose these promotions, or decide their costs.
Instead, CG makes the decision, sets the cost, and
unilaterally deducts it from the Trainer’s pay.
A trainer’s income is not significantly impacted by
his/her choice to spend less on overhead – because
they have no say as to what their overhead costs
will be.

An Independent Contractor often works for
more than one client or firm at the same
time and is not subject to a noncompetition rule.

Trainers ordinarily work just for CG. Although
some may carry on side projects, such as personal
training for one-on-one clients, or selling
nutritional supplements, they are contractually
prohibited from working for “any business the
same as or similar to [CG].”

An Independent Contractor may advertise,
carry business cards, hang out a shingle, or
hold a separate business license.

Trainers typically do not make their bootcamp
fitness training services available to the public
except through CG. They carry CG business cards,
use a CG email address, wear CG-branded clothing
while performing their job duties, and are required
to enter into a non-compete in order to become a
Trainer with CG.

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If the work meets the contract terms, an
Independent Contractor cannot be fired
without liability for breach of contract.

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Trainers can be discharged at any time without
liability on CG’s part. When a PT is terminated,
they are not entitled to any further “profit sharing”
from their camps, no matter how much time, “sweat
equity,” or money they may have put into building
that camp.
Trainer contracts specifically state that they can be
terminated at any time for any reason, and that
there are no ongoing obligations to the Trainer on
the part of CG.

An Independent Contractor is legally
responsible for job completion and, on
quitting, becomes liable for breach of
contract.

26.

A Trainer may quit work at any time without
liability to CG (other than the loss of income from
stopping working). PT contracts specifically state
that they can be terminated at any time for any
reason.

Additionally, CG uses a “Trainer Discipline Notice” form to keep trainers in

check who fail to follow CG’s prescribed rules and methods. Example violations on the form
include: “Location Lobbying,” insufficient “Camp Growth,” insufficient “Team Participation,”
and “Negative Camper Feedback.” For these violations, Trainers can be subjected to a “Yellow
Light Probation,” an “Action Improvement Plan,” or “Termination.” The discipline forms are
submitted to a trainer’s Regional Director, and to “Human Resources” (although, on information
and belief, CG does not actually have a human resources department). This practice is highly
indicative an employment-type relationship.
27.

The IRS Form SS-8 also looks at the following additional factors, which in this

case, also point toward an employee designation:
IRS Factor
“Total number of workers who
performed or are performing the same
or similar services”

CG Primary Trainers
At CG, there are hundreds of Primary Trainers. They
are the bulk of CG’s workforce.

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“How did the worker obtain the job?”

Trainers get the job through a traditional application &
interview process (not a bid).

“How does the worker receive work
assignments?”

Trainers receive their work assignments (e.g., the
location and times for the bootcamp classes, and
directives as to the level of sales of “conversions” that
must be made by the Trainer) from CG headquarters.

“Who is the worker required to contact
if problems or complaints arise?”

Trainers are told to contact their CG Regional
Directors (who act as supervisors) if they have a
question or problem, then if that doesn’t work, to
follow a further chain-of-command within CG.
Trainers are required to report to CG, and fill out a CG
form, if a camper is injured during the bootcamp.

“Describe any meetings the worker is
required to attend and any penalties for
not attending.”

Trainers are required to attend several company-wide
meetings each year. If they do not attend, they can be
terminated or have they paychecks dockeed. They are
also required to attend several “Total Transformation”
marketing blitz events per year – one in their home
region, and two additional “out of region” events.
They must pay for their own travel expenses to attend
these meetings, and if they do not attend, their pay is
docked by thousands of dollars.
Some trainers have posted complaints online about
this issue, stating that CG “Expect[s] you to do
traveling 3-4 times a year to Texas oh and guess what
you pay for your whole trip and if you don’t go they
penalize you by taking money from your check.”

“Does the worker lease equipment,
space, or a facility?”

No, Trainers do not lease the workout spaces or
facilities. CG executes lease or rental agreements with
the parks or other spaces (ex: a church parking lot)
where their bootcamps are held. CG is the only named
party in these agreements – the Trainer is not a party.
Notably, however, CG permits its Trainers to sign
these lease agreements on behalf of CG (another
indication of an employment/agency relationship).

“Whom does the customer pay?”

The customer pays CG, typically by entering their
credit card online, or on a trainer’s CG iPad app.
Payments are directed to CG’s bank account, not the
Trainer’s. To enforce this rule, CG does not allow
Trainers to accept cash payments from customers.

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“Does the worker establish the level of
payment for the services provided or
the products sold?”

CG sets the payment levels, and these are strictly
controlled by CG. Trainers are not allowed to set
different prices, or offer discounts, without CG’s
approval.

“Under whose business name does the
worker perform these services?”

Trainers perform their work under the name of Camp
Gladiator. They wear CG-branded clothing when they
perform their jobs.

“How does the firm represent the
worker to its customers?”

Trainers are represented as CG trainers. They receive
CG business cards, use CG email addresses, and wear
CG apparel when performing their jobs.

Does the firm offer employee benefits?

While CG fails to comply with most laws regarding
employee benefits, it does choose to offer 8 to 11
weeks of maternity leave or sick leave for its Trainers.
It requires them to fill out a CG form to request this
leave, and to submit a medical certification. It limits
the amount of leave a Trainer can take, and has
requirements that the Trainer must meet before being
allowed to take leave – all behaviors that are typical of
an employment reliationship.

28.

This problem cannot be a surprise to CG. A simple “Google” search for “Camp

Gladiator trainer” reveals several online complaints from CG’s trainers about this issue. For
example, one comment states: “The term "contractor" is kind of a joke when you consider all of
the requirements placed on the trainers and how this is really blurring the line between contractor
and employee.” The comment continues: “I know how keeping all of the trainers as contractors
is far more beneficial (financially) for the company but you will continue to see a huge turnover
as long as you keep them that way and add additional requirements (time, money, events).”
Furthermore, CG’s founder and CEO, Ally Davidson, told friends when she started the
company that she wanted to model it after Chick-Fil-A’s franchise set-up. Chick-Fil-A itself has
come under significant legal scrutiny, having been sued at least a dozen times on this issue (e.g.,
that their “independent owners” are actually employees who are misclassified as independent

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contractors). In short, it is simply inconceivable that CG has not previously considered this
misclassification problem.
III. CG IS NOT COMPLYING WITH THE FLSA’S OVERTIME REQUIREMENTS.
29.

Although its Trainers should legally be classified as employees, CG does not keep

track of their hours worked, or comply with the FLSA’s other record-keeping requirements.
30.

Trainers do not always work 40 or more hours per week. Sometimes they work

fewer than 40 hours per week, and other times they work more than 40 hours per week. Their
schedules vary depending on whether, during a particular week, there is: (a) a company retreat,
or meeting that they have to attend at CG headquarters in Austin, Texas; (b) a “TT” marketing
blitz going on in which the Trainer must participate; (c) a higher than everage level of marketing
events taking place; (d) a higher than average level of “promotion” communications with
campers that is required; or (e) other increases in work beyond the “typical” workweek of
conducting camps.
31.

Some trainers will have a significant number of overtime weeks in a year, while

others will have fewer weeks like this. Almost all Trainers, however, will have at least a few
workweeks throughout the year in which they put in over 40 hours of work for CG.
32.

Although Trainers are non-exempt employees under the FLSA, CG does not pay

them overtime for the weeks in which they work over 40 hours. It does not keep records of their
time, attempt to calculate their regular rates of pay, or otherwise make any attempt whatsoever to
comply with FLSA’s requirements.

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IV. CG MISLEADS TRAINERS IN VIOLATION OF THE DTPA
33.

As set forth above, CG contends that its Trainers are not employes, and that it is

not the Trainers’ employer. Instead, CG identifies itself as a “business opportunity” for trainers
– specifically, it says that it sells a “business platform” service to trainers, which can be used by
trainers to begin their own “independent businesses.”

It variously refers to its trainers as

“owners,” “operators,” or “business partners.” In recruitment videos, CG states that “it’s not a
job, it’s a business opportunity.”
34.

Plaintiffs contend that these are false statements, and that the Primary Trainer

position is, in fact, a non-exempt job subject to the requirements of the FLSA. But if CG’s
version of the story is true, then CG is violating the Texas Deceptive Trade Practices Act.
35.

CG tells trainers that they are likely to earn a profit in excess of the consideration

they put forth for the opportunity to become a Primary Trainer (i.e., what they pay for their CG
“starter pack,” plus the time they put in being a CG intern). In fact, CG often suggests that
trainers can easily earn “six figures!” or “$12,000 per camp!” or “up to $100,000!” It does so
verbally, in writing – via email, on Facebook and on online job posting sites – and through other
media (ex: online recruitment videos, and the trainer “information sessions”).
36.

CG says that it will provide the trainer with a location, or assist the trainer in

finding a location, for the operation of their own boot camp class. CG also claims to provide the
trainer with a sales and marketing program (e.g., “advice or training…regarding the sale of [CG]
equipment and services, including operational, managerial, technical, or financial guidelines or
assistance”).

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37.

Page 18 of 31 PageID 18

All of these characteristics make CG a “business opportunity” under the Texas

Business Opportunity Act (Bus. Comm. Code § 51.001, et. seq., actionable via DTPA §
17.50(h)) (“BOA”).
38.

Nonetheless, CG: (a) has not registered as a “business opportunity” with the

Texas Secretary of State before recruiting potential trainers; (b) has not obtained a surety bond,
trust account, or irrevocable letter of credit before recruiting potential trainers; and (c) does not
provide potential CG trainers with the BOA’s required written disclosure statement before asking
them to sign their contract with CG, collecting money from them, or permitting them to work for
CG for free.
39.

CG also disseminates statements that materially misrepresent the character of the

service they offer to potential CG trainers (a violation of the DTPA, § 17.12), and represents that
its service has characteristics and benefits which it does not have (a violation of the DTPA, §
17.46(b)(5)).
40.

For example, CG publicly states:
(a)

On Facebook and several other sites: “All of our trainers own and operate
their locations.”

(b)

On Facebook and several other sites: “There is NO cost to become a Camp
Gladiator Trainer.”

(c)

On Facebook and several other sites: Trainers “create their own schedule.”

(d)

On Facebook and several other sites: “Trainers are able to…earn a lucrative
income.” (noting that “around 30 trainers earn over $100,000 this year
alone,” and that “3 will earn over $250,000”).

(e)

On its website, and multiple other online websites, CG suggests that the
Primary Trainer position is all about fitness training. It only lists the
following job duties: “Design and implement dynamic workouts, Provide
fitness motivation, encouragement and education to all campers, Be
punctual and professional, Provide exceptional customer service to all
clients and members, Stay knowledgeable on current trends in fitness

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training and exercise science, [and] Maintain required certifications and
CECs.” It says nothing about the required sales, the pay-your-own-way
meetings, the required marketing and promotion work, the requirement to
“convert” campers, the requirement to “be all in” and “bleed CG,” or the
similar requirements that have nothing to do with being a personal trainer.
(f)

On personaltrainercity.com: “Camp Gladiator Trainers are called
Operators,” in a business that is “similar to the Chick-Fil-A business
model,” and “trainers…work under the same brand name.”

(g)

On nationalpti.com: “Our pay is very competitive with trainers receiving
more than 70% of what clients pay!”

(h)

On multibriefs.com: “The business model that Camp Gladiator runs is a
business partnership not a franchise. The trainers do not have to pay to run
their own camps,” and “trainers don't have to pay to become a partner,” and
“The amount that trainers make is completely up to their dedication to
CG.”

(i)

On multibriefs.com: “The corporate office provides the backbone, giving
the trainers the opportunity to be creative and have the freedom to operate
their camps as they desire without having to deal with the business aspect.”

(j)

On their own website: “I have tripled my income every year for the past
three years!” (statement from a current trainer).

(k)

On their own website: “we are committed to our trainers becoming
successful business owners.”

(l)

In recruitment videos (posted on Vimeo and Facebook): “we partner with
our trainers to help them build successful and long term businesses.”

(m)

In recruitment videos (posted on Vimeo and Facebook): “we’re going to
show you how some of our top trainers have taken their business from
scratch, to making well over six figures.”

(n)

In recruitment videos (posted on Vimeo and Facebook): “ultimately what
you take away from CG academy is the opportunity to launch your
business.”

(o)

In a recruitment video (posted on Vimeo and Facebook), a trainer describes
why he likes working for CG -- because his “strength is training,” and
unlike when he was on his own, with CG he doesn’t have to “spend
countless hours doing marketing [and] advertising.”

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39.

Page 20 of 31 PageID 20

(p)

In recruitment videos (posted on Vimeo and Facebook): “You don’t have
to do all those things that you dread doing – you get to be a trainer and do
what you love” (describing how CG headquarters handles all of the
“technology,” “accounting,” and “marketing,” so the trainer can focus on
training).

(q)

In recruitment videos (posted on Vimeo and Facebook): Trainers do not
have to make “those awkward phone calls to people and saying ‘hey you
haven’t paid me yet,” – because “they take care of all of that for us, so we
never have to worry about it.”

(r)

In recruitment videos (posted on Vimeo and Facebook): The “headquarters
support” provides Trainers with their “business,” “marketing,”
“accounting,” and “advertising” needs, so they can simply “be great at what
[they] do best…impacting lives on the field” – allowing the trainer “to let
everything go and really focus…on what [they] love to do” (e.g. training).

(s)

In recruitment videos (posted on Vimeo and Facebook): Trainers have “an
opportunity to earn substantial income” – one “makes more now than…at
[her] full time job.” Trainers can “control their income.” The income
potential is “completely limitless.”

(t)

At CG information sessions: “It’s easy to earn six-figures, all you have to
do is get 100 BOLD campers at your location, and then you’ll start earning
the big bucks.”

These statements are at best misleading, and at worst, outright lies. Trainers do

not “own” anything at CG. They have no legal rights to their profits, the income from their
camps, their CG logo materials, or any other part of the business. They cannot sell their
business, or otherwise exercise traditional ownership rights over it. If they leave CG, or if CG
terminates them, they are entitled to nothing – no matter how much “sweat equity” they put into
building up their camps.
40.

It is also false that CG trainers can “just focus on training,” while “leaving the rest

to CG.” Trainers are, in fact, required to perform a great deal of marketing, promotion, and sales
work. In fact, they are punished by CG if they do not do enough of it. CG has also terminated

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trainers who refuse to perform sales and marketing activities. Many trainers claim to spend more
time on their sales and marketing activities than they do actually training.
41.

Trainers must also perform collections work for campers who are behind on

payments. If they fail to succeed in this collection work, and CG headquarters has to step and
achieve the collection itself, the trainer is not given her “profit share” for that camper.
42.

It also false that it “costs nothing” to become a Primary Trainer. Would be

trainers must provide free work for several weeks, and then purchase a “CG Starter Kit” for
$500-$750 before they can become a Primary Trainer. Once they become a Primary Trainer,
they must pay for: (a) the cost of their substitute trainers, if any, (b) the marketing costs for their
region, as determined by CG; (c) equipment for running their bootcamp; (d) an iPad, which is
necessary to run the required CG Trainer iPad app for sales; (e) the “free” t-shirts that are given
to new campers; and (f) various other, often unidentified, “administrative costs,” the amount of
which are determined by CG.
43.

CG’s representations about the income potential are also grossly misleading. CG

is set up like a multi-level-marketing company, wherein trainers at the top of the “chain” earn a
cut of the profit brought in by their “downline” trainers. So while a few trainers at the top of the
chain might make six-figures, this is far from the norm.
44.

CG represents that last year, 30 of its trainers earned over $100,000 (e.g., roughly

$10,000 per camp). This is, of course, the figure they focus on when recruiting new trainers.
They do not disclose the fact that this represents just 6% of CG’s trainer workforce. As of May
2016, the median trainer income for the then-most-recent camp was only $3,238.08. Nearly half
of the trainers (47%) earned less than $3,000.00. A third (33%) of the trainers earned less than

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$2,000.00. 17% of the trainers earned less than $1,000.00. Twelve trainers earned $0.00, and
one trainer even ended up in debt to CG.
Even if one looks just at the trainers who have over 100 “BOLD” campers (the point at
which trainers supposedly will start to make “six figures”), less than a third of them (30%)
earned a camp income that, annualized, would give them over $100,000 per year. It’s generous
to assume that the income a trainer earns in April or May (during the prime training season)
would be replicated at every other camp of the year – so the percentage is likely even smaller
than that.
Under the Texas BOA, this is exactly the type of information that must be disclosed to
potential trainers before they sign a contract with CG, pay CG money, or perform free work for
CG. CG does not do so.
45.

Similarly, CG intentionally refrains from disclosing certain information about its

service to potential CG trainers, with the intention of getting them to: (a) work as an “intern” for
no pay; (b) purchase the “CG Starter Pack;” and/or (c) sign up as a “Primary Trainer” with CG –
transactions into which they would not have entered had they been given the all of the
information they should have been given under law (a violation of the DTPA § 17.46(b)(24)).
46.

For example, CG does not disclose the large number of required meetings, the

amount of required sales and marketing work, the required collections work, or the many
paycheck deductions (which are not just for “expenses,” but are also used as a punishment when
a trainer fails to perform as requested or close enough sales). Nor does it disclose the actual
average or median incomes for its trainers.

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47.

Page 23 of 31 PageID 23

Indeed, in their own recruitment videos, CG says of the “CG Academy” (which

comes after a trainer has already put in significant unpaid work as an intern): “For a lot of
trainers, it is their first peek behind the curtain of what Camp Gladiator really is.”
48.

Due to the above omissions and misrepresentations by CG in its trainer recruiting

activities, many trainers do seek to purchase CG’s business opportunity. Unfortunately, they do
so without the benefit of material information about what they are purchasing.
49.

As a result, trainers are misled into giving up their compensable time (via the

unpaid intership), their actual cash (via the mandatory purchase of a $500-$750 “CG Starter
Pack”), and often, their income potential (via the foregoing of other other jobs that would have
brought them more income). CG’s statements and ommisisons are the producing causes of these
losses to trainers.
50.

Plaintiff has provided Defendant with a preliminary notice of this claim, on July

8, 2016. A full 60-day notice period, however, is not practicable in this case due to the running
of the state of limitations.
51.

CG has also taken actions to dissuade its trainers from asserting their legal rights,

and as a result, the additional 180-days should be added to the DTPA limitations period, as
provided in the DTPA § 17.565. For example:
a) CG tells trainers that their CG contracts (which set forth the terms of their
engagement with CG) are confidential, and cannot be discussed with others;
b) CG openly labels trainers who they deem to be “not all in” or who do not “bleed
CG” as traitors, snakes, or disloyal;
c) On at least one occasion, at a company meeting at CG headquarters, Jeff
Davidson (co-owner) told trainers: “people have tried to sue us before, but we’ve
got plenty of money to fight lawsuits, and we’ll spend whatever it takes to make
sure we win.”

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d) Similarly, Mr. Davidson posted to Facebook, the day after receiving notice of this
claim: “How much would you spend to defend a core value? I think it’s probably
worth everything you have – especially when that value is loyalty” – prompting
responses from other CG higher-ups such as: “If you don’t have loyalty nothing
else matters because no one will ever trust you,” and “people only show loyalty
when something benefits them” – openly demonstrating the blackballing process
that occurs when someone raises a disagreement with CG.
e) In Trainers’ contracts with CG, they are required to “always conduct themselves
“in a positive manner in all communications and actions with...[CG],” and to not
“ever insult....[CG],” or “prejudice....[CG].” In short, CG contractually prohibits
its Trainers from asserting their legal complaints against the company, on pain of
an allegation that they have breached their contract.
FIRST CLAIM (FLSA COLLECTIVE ACTION) FAILURE TO PAY MINIMUM WAGE TO INTERNS
52.

By the acts and ommissions set forth herein, CG has violated Plaintiff’s and the

putative class members’ rights under the FLSA. Specifically, it has failed to pay its “interns”
any wages whatsoever for the compensable, non-exempt work that they have performed for CG.
53.

Plaintiff Shannon Schoellhorn brings this collective action under § 216(b) of the

FLSA on behalf of herself, and on behalf of the proposed Class. She seeks to represent only
those members of the below-described group who, after appropriate notice of their ability to opt
in to this action, have provided consent in writing to be represented by her as required by 29
U.S.C. § 216(b). The proposed Class definition is as follows:
All individuals who have performed any amount of unpaid work as
an “intern” for Camp Gladiator during the Class Period.
54.

The “Class Period” is the time period beginning three (3) years before the date

that an individual class member opts in by filing a consent form with the court.

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55.

Page 25 of 31 PageID 25

This action is appropriate for class or collective action status because Defendant

has acted in the same manner, and followed the same company-wide policies, with regards to all
members of the class. The internship is always unpaid, it has always required essentially the
same type of work of the intern, it has always been treated as an “extended audition” for the role
of Primary Trainer, and it has always suffered from the same lack of compliance with the DOL’s
6-factor test. The internship’s requirements and purposes are set forth in company-wide policy
documents, which are followed uniformly for all internships.

In short, the putative class

members are together the victims of a “single decision, policy, or plan” of CG’s. There is a
discrete question that, if answered “yes” as to the representative plaintiff, can be mechanistically
extrapolated to each member of the class – specifically: “is the internship job exempt under the
FLSA?”

The only individual differences among the putative class members are ones of

computational math (e.g., how many hours did they work), as opposed to subjective, individual
inquiries of coverage.
56.

Defendant’s violation of the FLSA was willful.

It either knew (through

consultation with counsel or a similar consulatant, or through complaints from trainers, or from
its own analysis of the issue) that its interns were likely non-exempt employees, or it has shown
reckless disregard for whether its interns were properly classified (by failing to inquire into the
situation or consult with an attorney or other consultant on the issue).
57.

Plaintiffs seek to recover an amount equal to the required minimum wage

payment for the hours worked by Plaintiffs as “interns” for CG, together with an equal amount as
liquidated damages. Plaintiffs further seek to recover their attorney’s fees, costs, and pre- and
post-judgment interest at the highest rate allowed by law.

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58.

Page 26 of 31 PageID 26

Plaintiffs further seek a declaration that CG’s “interns” are non-exempt

employees under the FLSA, who are entitled to minimum wage and overtime payments. The
legal status of CG’s interns is an actual controversy. Declaring their rights will have the force
and effect of a final judgment, and will serve to ensure all interns – whether or not they opt in to
this collective action – are aware of their status.
59.

Finally, Plaintiffs seek a permanent injunction to be enterred against CG,

requiring it to: (a) going forward, pay its “intern” trainers at least the minimum wage for each
hour of work that they perform as an “intern” for CG; (b) affirmatively notify all future “interns”
that they are non-exempt employees under the FLSA; and (c) otherwise comply with all of the
FLSA’s requirements, including recordkeeping. An injunction is necessary to ensure that CG
continues to comply with the law with regard to all interns – not just the ones who opt into this
collective action. Irreperable harm to future interns is likely to occur unless CG is enjoined –
and there is no possibility of harm to CG in issuing this injunction, since it would only require
CG to comply with the law, as it should have already been doing. This requested injunction is
also in the public interest, because it would send a message to other employers who improperly
use “unpaid interns” that their conduct is unlawful, and should be corrected.
SECOND CLAIM (FLSA COLLECTIVE ACTION) FAILURE TO PAY OVERTIME TO PRIMARY TRAINERS
60.

By the acts and ommissions set forth herein, CG has violated Plaintiff’s and the

putative class members’ rights under the FLSA. Specifically, it has misclassified its Primary
Trainers as independent contractors, and as a result, it has failed to pay them any overtime wages
for the weeks that they have worked in excess of 40 hours.

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61.

Page 27 of 31 PageID 27

Plaintiff Shannon Schoellhorn brings this collective action under § 216(b) of the

FLSA on behalf of herself, and on behalf of the proposed Class. She seeks to represent only
those members of the below-described group who, after appropriate notice of their ability to opt
in to this action, have provided consent in writing to be represented by her as required by 29
U.S.C. § 216(b). The proposed Class definition is as follows:
All individuals who, during the Class Period, have on at least one occasion
performed over 40 hours of work in a single workweek as a Primary Trainer
for Camp Gladiator, and who were not paid any overtime premium for the
work done in excess of 40 hours.
62.

The “Class Period” is the time period beginning three (3) years before the date

that an individual class member opts in by filing a consent form with the court.
63.

This action is appropriate for class or collective action status because Defendant

has acted in the same manner, and followed the same company-wide policies, with regard to all
members of the class. The misclassification decision has been applied across-the-board to all
Primary Trainers. The putative class members are, therefore, together the victims of a “single
decision, policy, or plan” to misclassify them as independent contractors. All Primary Trainers
have the same job description and the same job requirements and duties, and they all work under
the same, company-wide compensation policy. The only individual differences among the
putative class members are ones of computational math (e.g., how many overtime hours did they
work), as opposed to subjective, individual inquiries of coverage.
64.

Defendant’s violation of the FLSA in this regard was willful. It either knew

(through consultation with counsel or a similar consulatant, or through complaints from trainers)
that its trainers could be misclassifed, or it has shown reckless disregard for whether its trainers

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were properly classified (by failing to inquire into the situation or consult with an attorney or
other consultant on the issue).
65.

Plaintiffs seek to recover an amount equal to the overtime payments lawfully

owed to them for the weeks in which they worked over 40 hours, together with an equal amount
as liquidated damages. Plaintiffs further seek to recover their attorney’s fees, costs, and pre- and
post-judgment interest at the highest rate allowed by law.
66.

Plaintiffs further seek a declaration that CG’s Primary Trainers are non-exempt

employees under the FLSA, who are entitled to minimum wage and overtime payments. The
legal status of CG’s Primary Trainers is an actual controversy. Declaring their rights will have
the force and effect of a final judgment, and will serve to ensure that all current and future
Primary Trainers are aware of their legal status.
67.

Finally, Plaintiffs seek a permanent injunction to be enterred against CG,

requiring it to: (a) formally reclassify its trainers as non-exempt employees; (b) to notify all
Primary Trainers of this reclassification; and (c) to take all necessary steps to ensure that they are
complying with the consequences of that reclassification (e.g., paying employment taxes, paying
overtime as required by law, offering employee health insurance as required by law, etc.).
Unless CG is enjoined, irreperable harm is likely to occur against CG’s future and current
Primary Trainers. There is no harm to CG in the issuance of an injunction, since it would only
be required to comply with the law – as it should have been doing already.
THIRD CLAIM –
VIOLATION OF THE TEXAS DECEPTIVE TRADE PRACTICES ACT
(Asserted in the Alternative)
68.

Trainers, including Plaintiff, are “customers” within the meaning of the DTPA.

They are individuals who have sought to purchase the “business platform” service offered by

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CG. CG is a proper defendant under the DTPA – it is a corporation, not subject to any of the
DTPA’s exclusions.
69.

Through their failure to comply with the Texas Business Opportunity Act, and

through their multiple misrepresentations and omissions to potential trainers, as set forth above,
CG has violated the Texas Deceptive Trade Practices Act (“DTPA”).
70.

CG’s actions and ommissions were the producing cause of Plaintiff’s damages.

Specifically, Plaintiff relied on CG’s multiple mispresentations and ommissions when she agreed
to: (a) perform uncompensated work for CG as an “intern;” or (b) pay money to CG for the
opportunity to become a Primary Trainer (ex: purchasing a “CG Starter Pack”); and (c) sign up
to be a Primary Trainer with Camp Gladiator, to her detriment.
71.

Plaintiff seeks to recover her economic damages (ex: the loss of wages associated

with performing uncompensated work for CG as an “intern,” and the amount of money she paid
for her “CG Starter Pack”), her benefit-of-the-bargain damages (ex: the difference between the
value of the CG opportunity as represented by CG, and the fair market value of what she actually
received), her actual damages (lost earning capacity – the difference between what she would
have earned at her old job, which she could have kept [or any other job that she could have
obtained during her time as a Primary Trainer], and what she has actually earned at CG instead),
and mental anguish damages based on CG’s knowing and intentional misrepresentations to her
about the nature of the Primary Trainer opportunity.
72.

Plaintiff further seeks additional, treble damages under Tex. Bus. & Comm. Code

§ 17.50(b)(1), based on CG’s knowing violations.
73.

Plaintiff further seeks an injunction under Tex. Bus. & Comm. Code §

17.50(b)(2), requiring CG to: (1) comply with the BOA by registering with the Texas Secretary

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of State as such, obtaining a surety bond, establishing a trust account, or obtaining an irrevocable
letter of credit before recruiting potential trainers, and by providing all current and potential
trainers with the written disclosure statement as required by the BOA; (2) requiring to CG to
amend all of its trainer recruiting materials (online job postings, recruiting videos, social media
advertisements, and the like) to accurately describe the nature of, and the full requirements of,
the “Primary Trainer” opportunity at CG, and (3) to cease use of all inaccurate or misleading
trainer recruitment materials.
74.

Plaintiff further seek to recover pre and post judgment interest, attorneys’ fees and

costs of court.
REQUEST FOR JURY TRIAL
75.

Plaintiff requests that this case be tried before a jury.
PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Plaintiffs respectfully request that
Defendant be cited to appear and answer herein; that this action be certified as an opt-in class
action as allowed under the FLSA, with notice being given to all potential Plaintiffs of their right
to opt in; and that upon final hearing, the Court grant Plaintiffs and Plaintiff Class members who
have given their consent to suit relief as set forth herein, as well as all further relief, whether
legal, equitable or injunctive, as may be necessitated to effectuate full relief to the Plaintiff and
the Plaintiff class.

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Respectfully submitted,
TREMAIN ARTAZA, PLLC
By:

/s/ Ashley E. Tremain
.
Carmen Artaza
Texas State Bar No. 24055114
Ashley E. Tremain
Texas State Bar No. 24066204

4925 Greenville Ave., Ste. 200
Dallas, Texas 75206
Telephone: 469-573-0229
Facsimile: 214-254-4941
carmen@tremainartaza.com
ashley@tremainartaza.com
ATTORNEYS FOR PLAINTIFFS

CERTIFICATE OF SERVICE
On July 15, 2016, I electronically submitted the foregoing document with the clerk of
court for the U.S. District Court, Northern District of Texas, using the electronic case filing
system of the court. I hereby certify that I have served all counsel and/or pro se parties of record
electronically or by another manner authorized by Federal rule of Civil Procedure 5 (b)(2).
/s/ Ashley E. Tremain

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