Case: 1:18-cv-07081 Document #: 32 Filed: 05/03/19 Page 1 of 30 PageID #:154

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JAMISHA ROSEBAR, BREONA SMITH,

KENYA WILLIAMS-MIX, ADRIEANA
POWELL, SHALAYLA LIDDELL, Case Nos.: 1:18cv7081
JADA ADAMS, PRINCESS WELLINGTON, 1:18cv7460
and LAQUESHIA MILLER, individually and on
behalf of others similarly situated,

Plaintiffs,
vs.

CSWS, L.L.C. d/b/a OCEAN GENTLEMEN’S

CLUB, DEBORAH DIAZ and SEIF EL
SHARIF,

Defendants.

CONSOLIDATED COLLECTIVE AND CLASS ACTION COMPLAINT

WITH JURY DEMAND

Plaintiffs Jamisha Rosebar, Breona Smith, Kenya Williams-Mix, Adrieana Powell,

Shalayla Liddell, Jada Adams, Princess Wellington, and Laqueshia Miller, individually and on

behalf of all others similarly situated, by and through their attorneys, hereby bring this Collective

and Class Action Complaint against Defendants CSWS, L.L.C. d/b/a Ocean Gentlemen’s Club,

Deborah Diaz and Seif El Sharif, and allege upon information and belief, as follows:

INTRODUCTION

1. Plaintiffs bring this action for themselves and all other similarly situated collective

members to recover unpaid minimum and overtime wages, liquidated damages, costs and

reasonable attorneys’ fees as a result of Defendants’ willful violation of the Fair Labor Standards

Act, 29 U.S.C. §201 et seq. (“FLSA”) and attendant regulations at 29 C.F.R. § 516 et seq.

2. Plaintiffs also bring this action for themselves and all other similarly situated Rule 23
 Case: 1:18-cv-07081 Document #: 32 Filed: 05/03/19 Page 2 of 30 PageID #:155

class members to recover unpaid minimum and overtime wages, 2% monthly statutory interest,

costs and reasonable attorneys’ fees and costs as a result of Defendants’ willful violation of the

Illinois Minimum Wage Law, 820 Ill. Comp. Stat. 105/1 et seq. (“IMWL”).

3. Plaintiffs also bring this action for themselves and all other similarly situated Rule 23

class members to recover unlawfully retained tips as a result of Defendants’ willful violation of

the Illinois Wage Payment and Collection Act, 820 Ill. Comp. Stat. 115/1 et seq. (“IWPCA”).

4. Plaintiffs and the putative FLSA collective and Rule 23 class members are

former/current dancers employed by Defendants at Ocean Gentlemen’s Club, located at 5555 W

70th Place, Bedford Park, IL 60638.

5. Defendants improperly classified the dancers as independent contractors to avoid

compliance with the labor laws when the dancers in fact are covered employees under the FLSA,

IMWL, and IWPCA.

6. In determining whether a worker is an employee or an independent contractor under the

FLSA, the Seventh Circuit has applied the “economic reality” test which identifies six (6)

relevant factors considered by the Supreme Court. See Sec'y of Labor v. Lauritzen, 835 F.2d

1529, 1534 (7th Cir. 1987).

7. Under the “economic reality” test, Defendants’ dancers were economically dependent on

Defendants and not in business for themselves as (1) Defendants exercised great control over the

manner in which the dancers performed the work; (2) the dancers did not exercise managerial

skill that affected their opportunity for profit or loss; (3) the dancers did not invest in any

equipment or materials, nor did they hire any helpers, relating to performing the work; (4) the

performance by the dancers did not require any special skills; (5) the dancers continued to work

for Defendants until they quit or were terminated similar to an at-will employment arrangement;

2
 Case: 1:18-cv-07081 Document #: 32 Filed: 05/03/19 Page 3 of 30 PageID #:156

and (6) the dancers performed dance routines integral to Defendants’ entertainment business.

8. By and through this illegal scheme, Defendants failed to pay the dancers any wages or

other form of compensation for their work at the Club.

9. The dancers were compensated solely by way of tips (in cash or by credit card) from

customers for their work at the Club.

10. Defendants set rules requiring the dancers to pay certain fees for each shift they worked

at the Club and imposing certain monetary penalties for failure to adhere to the Club’s rules.

11. Under the FLSA, an employer seeking to rely on tips to supplement an employee’s

wages must comply with 29 U.S.C. § 203(m) which provides, in relevant part, that:

(m)
...
In determining the wage an employer is required to pay a tipped employee, the
amount paid such employee by the employee’s employer shall be an amount equal
to—
(1) the cash wage paid such employee which for purposes of such determination
shall be not less than the cash wage required to be paid such an employee on
August 20, 1996; and
(2) an additional amount on account of the tips received by such employee which
amount is equal to the difference between the wage specified in paragraph (1) and
the wage in effect under section 206 (a)(1) of this title.

The additional amount on account of tips may not exceed the value of the tips
actually received by an employee. The preceding 2 sentences shall not apply with
respect to any tipped employee unless such employee has been informed by the
employer of the provisions of this subsection, and all tips received by such
employee have been retained by the employee, except that this subsection shall
not be construed to prohibit the pooling of tips among employees who
customarily and regularly receive tips.

12. Under the IMWL, an employer seeking to rely on tips to supplement an employee’s

wages must comply with 820 Ill. Comp. Stat. 105/4(c) which provides, in pertinent part, that:

(c)

Every employer of an employee engaged in an occupation in which gratuities

have customarily and usually constituted and have been recognized as part of the

3
 Case: 1:18-cv-07081 Document #: 32 Filed: 05/03/19 Page 4 of 30 PageID #:157

remuneration for hire purposes is entitled to an allowance for gratuities as part of

the hourly wage rate provided in Section 4, subsection (a) in an amount not to
exceed 40% of the applicable minimum wage rate.
...

13. Defendants’ method of compensating the dancers violated the statutes in several

respects:

a. Defendants failed to pay the dancers any “wages.”

b. Defendants retained the dancers’ tips by requiring them to pay a variety of fees

in order to work at the Club, and by imposing draconian fines on them for being

late or otherwise violating Defendants’ panoply of rules and guidelines.

c. Due to Defendants’ failure to make any good faith attempt to comply with the

FLSA, it failed to notify the dancers of the provisions of 29 U.S.C. § 203(m).

14. Because Defendants failed to comply with 29 U.S.C. § 203(m) and 820 Ill. Comp. Stat.

105/4(c), their compensation scheme denied the dancers the statutorily mandated minimum wage

and overtime at a rate of not less than one and one-half (1.5) times their regular rate of pay for

work performed over 40 hours per week.

15. Plaintiffs assert the FLSA claims on behalf of a putative FLSA collective, defined as:

Any individual who worked as a dancer at the Ocean Gentlemen’s Club,

located at 5555 W 70th Place, Bedford Park, IL 60638 at any time from
three (3) years prior to the filing of this Complaint through the date of
judgment.

16. Plaintiffs seek to send a Notice pursuant to 29 U.S.C. § 216(b) to all former and current

dancers at the Ocean Gentlemen’s Club permitting them to assert FLSA claims in this collective

action by filing their individual consent forms.

17. Plaintiffs assert their IMWL, IWPCA, and Common Law claims on behalf of a putative

class pursuant to Fed. R. Civ. P. 23, defined as:

4
 Case: 1:18-cv-07081 Document #: 32 Filed: 05/03/19 Page 5 of 30 PageID #:158

Any individual who worked as a dancer at the Ocean Gentlemen’s Club,

located at 5555 W 70th Place, Bedford Park, IL 60638 at any time within
the applicable statutory period.

18. Defendants have willfully and intentionally committed widespread violations of the

above-described statutes and corresponding regulations, in the manner described herein.

JURISDICTION AND VENUE

19. This Court has subject-matter jurisdiction over Plaintiffs’ FLSA claims pursuant to 28

U.S.C. § 1331 because Plaintiffs’ claims raise a federal question under 29 U.S.C. § 201, et seq.

20. The Court has supplemental jurisdiction over Plaintiffs’ state law claims pursuant to 28

U.S.C. §1367 because those claims derive from a common nucleus of operative facts as

Plaintiffs’ federal claims.

21. The Court has personal jurisdiction over Defendants because they maintain a principal

place of business and reside in the State of Illinois.

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

Defendants employed Plaintiffs in this district and because a substantial portion of the events that

give rise to the Plaintiffs’ claims occurred in this district.

PARTIES

23. Defendant CSWS, L.L.C. doing business as Ocean Gentlemen’s Club (“CSWS”), is a

for-profit entity created and existing under and by virtue of the laws of the State of Illinois.

24. According to the Illinois Secretary of State website, CSWS maintains a principal place

of business at 5555 W 70th Place, Bedford Park, IL 60638 and has the following designated

agent: Deborah Ann Diaz, 5555 W 70th Place, Bedford Park, 60630.

25. According to the Illinois Secretary of State website, CSWS has the following two (2)

managers: Seif El Sharif, 17032-38 S Halsted, Harvey, IL 60426 and Deborah Diaz, 1600 S

5
 Case: 1:18-cv-07081 Document #: 32 Filed: 05/03/19 Page 6 of 30 PageID #:159

Prairie Ave Ste 2404, Chicago, IL 60616.

26. Defendant Deborah Diaz (“Diaz”) is the owner, shareholder and an officer of CSWS.

27. Diaz is the owner, shareholder and president of Mermaids, Inc., an Illinois corporation,

which has membership interest in CSWS.

28. Defendant Seif El Sharif (“El Sharif”) is the owner, shareholder and an officer of CSWS.

29. El Sharif is the owner, shareholder and managing member of Seif LLC, an Indiana

registered entity, which has membership interest in CSWS.

30. Diaz is personally involved in the daily operation of Ocean Gentlemen’s Club.

31. Diaz is present at Ocean Gentlemen’s Club on a regular basis.

32. Diaz and management handle bookkeeping at Ocean Gentlemen’s Club.

33. El Sharif is personally involved in the daily operation of Ocean Gentlemen’s Club.

34. El Sharif is present at Ocean Gentlemen’s Club on a regular basis.

35. Diaz is personally involved in the daily management of the staff including managers,

house parents, bouncers and dancers at the Ocean Gentlemen’s Club.

36. El Sharif is personally involved in the daily management of the staff including

managers, house parents, bouncers and dancers at the Ocean Gentlemen’s Club.

37. Diaz has personally determined the compensation policies and work schedules, duties

and conditions applicable to all dancers at the Ocean Gentlemen’s Club.

38. El Sharif has personally determined the compensation policies and work schedules,

duties and conditions applicable to all dancers at the Ocean Gentlemen’s Club.

39. Diaz has personally implemented and enforced a set of rules and guidelines applicable to

all dancers’ work at the Ocean Gentlemen’s Club.

40. El Sharif has personally implemented and enforced a set of rules and guidelines

6
 Case: 1:18-cv-07081 Document #: 32 Filed: 05/03/19 Page 7 of 30 PageID #:160

applicable to all dancers’ work at the Ocean Gentlemen’s Club.

41. Diaz possessed and exercised the authority to hire and fire the dancers at the Ocean

Gentlemen’s Club.

42. El Sharif possessed and exercised the authority to hire and fire the dancers at the Ocean

Gentlemen’s Club.

43. Plaintiff Jamisha Rosebar is a resident of the County of Cook and State of Illinois.

44. Ms. Rosebar worked for Defendants as a dancer at the Ocean Gentlemen’s Club, located

at 5555 W 70th Place, Bedford Park, IL 60638, from approximately August 2017 to August

2018.

45. Ms. Rosebar’s written consent to become an FLSA party plaintiff, previously filed on

October 22, 2018, is attached hereto as Exhibit A.

46. Plaintiff Breona Smith is a resident of the County of Cook and State of Illinois.

47. Ms. Smith worked for Defendants as a dancer at the Ocean Gentlemen’s Club, located at

5555 W 70th Place, Bedford Park, IL 60638, from approximately July 2017 to September 2018.

48. Ms. Smith’s written consent to become an FLSA party plaintiff, previously filed on

January 9, 2019, is attached hereto as Exhibit A.

49. Plaintiff Kenya Williams-Mix is a resident of Iowa.

50. Ms. Williams-Mix worked for Defendants as a dancer at the Ocean Gentlemen’s Club,

located at 5555 W 70th Place, Bedford Park, IL 60638, from approximately July 2017 to October

2018.

51. Ms. Williams-Mix’s written consent to become an FLSA party plaintiff was filed on

11/13/2018 in Case: 1:18cv7460 [Dkt. 6] and is attached hereto as Exhibit A.

52. Plaintiff Adrieana Powell is a resident of the County of Cook and State of Illinois.

7
 Case: 1:18-cv-07081 Document #: 32 Filed: 05/03/19 Page 8 of 30 PageID #:161

53. Ms. Powell’s written consent to become an FLSA party plaintiff was filed on 11/13/2018

in Case: 1:18cv7460 [Dkt. 7] and is attached hereto as Exhibit A.

54. Plaintiff Shalayla Liddell is a resident of the County of Cook and State of Illinois.

55. Ms. Liddell worked for Defendants as a dancer at the Ocean Gentlemen’s Club, located

at 5555 W 70th Place, Bedford Park, IL 60638, from approximately November 2017 to July

2018.

56. Ms. Liddell’s written consent to become an FLSA party plaintiff was filed on

11/13/2018 in Case: 1:18cv7460 [Dkt. 8] and is attached hereto as Exhibit A.

57. Plaintiff Jada Adams is a resident of the County of Cook and State of Illinois.

58. Ms. Adams’ written consent to become an FLSA party plaintiff was filed on 11/13/2018

in Case: 1:18cv7460 [Dkt. 9] and is attached hereto as Exhibit A.

59. Plaintiff Princess Wellington is a resident of the County of Cook and State of Illinois.

60. Ms. Wellington’s written consent to become an FLSA party plaintiff was filed on

11/13/2018 in Case: 1:18cv7460 [Dkt. 11] and is attached hereto as Exhibit A.

61. Plaintiff Laqueshia Miller is a resident of the County of Cook and State of Illinois.

62. Ms. Miller worked for Defendants as a dancer at the Ocean Gentlemen’s Club, located at

5555 W 70th Place, Bedford Park, IL 60638, from summer of 2017 through late November of

2018.

63. Ms. Miller’s written consent to become an FLSA party plaintiff is attached hereto as

Exhibit A.

64. Plaintiffs worked as dancers at Defendants’ place of business located in Bedford Park in

the State of Illinois.

FACTUAL ALLEGATIONS

8
 Case: 1:18-cv-07081 Document #: 32 Filed: 05/03/19 Page 9 of 30 PageID #:162

65. Defendants have operated and controlled an enterprise engaged in commerce as defined

under the FLSA.

66. Defendants have generated over $500,000.00 in revenue per year.

67. Defendants have had two (2) or more employees handling, selling, or otherwise working

on goods or materials that have been moved in or produced for commerce.

68. Defendants have engaged in ordinary commercial activities within the meaning of the

FLSA that result in sales made or business done.

69. Defendants have provided adult entertainment, food, and alcoholic drinks that moved in

interstate commerce.

70. Defendants have employees handling, selling, or working on food and alcoholic

beverages that have moved in interstate commerce.

71. Defendants have recorded videos and images of the dancers’ performance and posted

them on the internet including its own website and social media accounts such as Google+,

Instagram, Facebook and Tumblr for advertisement of the Club’s business in interstate

commerce.

72. The dancers’ performance entails dancing to music streamed and/or downloaded from

the internet.

73. Defendants were the “employers” of Plaintiffs and similarly situated dancers within the

meaning of 29 U.S.C. § 203(d) and 820 Ill. Comp. Stat. 105/3(c).

74. The dancers including Plaintiffs were “employees” of Defendants within the meaning of

29 U.S.C. § 203(e)(1) and 820 Ill. Comp. Stat. 105/3(d).

75. Defendants knowingly “suffered or permitted” the dancers including Plaintiffs to work

and thus “employed” them within the meaning of 29 U.S.C. §203(g) and 820 Ill. Comp. Stat.

9
 Case: 1:18-cv-07081 Document #: 32 Filed: 05/03/19 Page 10 of 30 PageID #:163

105/3(d).

76. Defendants, directly or indirectly, hired the dancers including Plaintiffs and determined

the rate and method of the payment of their wages.

77. Defendants controlled the work conditions, protocols, applications and assignments of

employment of the dancers including Plaintiffs.

78. As a matter of common policy and practice, Defendants misclassify all of their dancers

as independent contractors and use an elaborate scheme in an attempt to evade their minimum

wage and overtime obligations under the law.

79. As the dancers at the Ocean Gentlemen’s Club, Plaintiffs and the putative FLSA

collective and Rule 23 class members performed duties including performing various dance

routines dictated by Defendants, interacting with patrons, and handling customers’ tips.

80. Defendants did not pay the dancers any wages or other form of compensation for their

work at the Club.

81. The dancers were compensated solely by way of tips (in cash or by credit card) from

customers for their work at the Club.

82. Defendants required the dancers to work at least three (3) scheduled days per week.

83. In 2018, Defendants began requiring dancers to work at least four (4) scheduled days per

week.

84. In 2018, Defendants also began requiring dancers to work at least one weekday (Monday

through Thursday) in order to able to work a weekend (Friday through Sunday).

85. Plaintiffs regularly performed night shifts lasting 9 hours (7 p.m. to 4 a.m.), 8 hours (7

p.m. to 3 a.m. or 8 p.m. to 4 p.m.), or 7 hours (8 p.m. to 3 a.m.).

86. Also, when the Club was short of dancers, Plaintiffs were required to work extra time

10
 Case: 1:18-cv-07081 Document #: 32 Filed: 05/03/19 Page 11 of 30 PageID #:164

such as afternoon shifts in addition to their scheduled night shift.

87. Plaintiffs, each and all, worked for Defendants more than forty hours per week during

many weeks of their employment.

88. Plaintiff Rosebar estimated that approximately more than half of the time when she

worked for Defendants, she was working over forty (40) hours a week.

89. Plaintiff Rosebar regularly worked four (4) to five (5) days a week.

90. For instance, Ms. Rosebar worked over 40 hours in a workweek in weeks of September

7, 2017, October 5, 2017, March 17, 2018, May 20, 2018, June 20, 2018, July 10, 2018, and

July 24, 2018.

91. Plaintiff Smith estimated that approximately more than half of the time when she worked

for Defendants, she was working over forty (40) hours a week.

92. Plaintiff Smith regularly worked four (4) to five (5) days a week.

93. For instance, in the week of approximately July 24, 2017, Ms. Smith worked five days a

week from approximately 5-6 PM until closing (approximately 2-4 AM). Ms. Smith worked over

40 hours in this workweek.

94. For instance, Plaintiff Kenya Williams-Mix worked on July 19, 20, 21, 22 and 24th of

2018. She worked from approximately 7:00 PM to 4:30 AM and worked a total of approximately

47.5 hours in this week.

95. Plaintiff Powell on several occasions worked five days and a total of approximately 47.5

hours in a week.

96. Plaintiff Shalayla Liddell worked six (6) days a week, every day except Monday, and

over 40 hours in each week, in her first two weeks of employment with Defendants, beginning in

early March 2018.

11
 Case: 1:18-cv-07081 Document #: 32 Filed: 05/03/19 Page 12 of 30 PageID #:165

97. Ms. Liddell worked from March 9, 2018 to March 16, 2018 every day except Monday

from opening until closing; that is, she worked over 40 hours in that workweek.

98. Ms. Liddell worked the week before her birthday, which was on Wednesday, March 21st

2018; she worked every day until her birthday and she worked over 40 hours in that workweek.

99. On Ms. Liddell’s birthday there were no customers and she made no wages, so she asked

to leave. Defendants made her pay them a $100 fine for leaving and did not allow her to leave

the premises until she paid Defendants the $100 fine.

100. Ms. Liddell could barely pay this fine because business was slow the entire week and

Defendants were taking most of the money she made from customers through various fines and

penalties, such as making her pay late fees the entire week despite Ms. Liddell arriving at work

before 7 PM and working until closing.

101. Plaintiff Adams worked Monday, Tuesday, Wednesday, Friday and Saturday in a

workweek in March of 2018. Ms. Adams worked a total of approximately 47.5 hours in this

workweek.

102. Plaintiff Wellington regularly worked five day weeks of approximately 47.5 hours and

occasionally worked seven day work weeks of approximately 66.5 hours.

103. Plaintiff Miller worked over 40 hours in the week of October 15, 2018.

104. Because Defendants did not pay the dancers including Plaintiffs any wages or other form

of compensation for their work at the Club, the dancers were not paid the federal and state

prescribed minimum wage for all hours they worked.

105. Because Defendants did not pay the dancers including Plaintiffs any wages for their

work at the Club, the dancers were not paid overtime at a rate of not less than one and one-half

(1.5) times the regular rate of pay for work performed over forty (40) hours per week.

12
 Case: 1:18-cv-07081 Document #: 32 Filed: 05/03/19 Page 13 of 30 PageID #:166

106. Further, Defendants illegally retained significant portions of the tips received by the

dancers by requiring the dancers including Plaintiffs to pay a variety of fees for every shift they

worked and imposing fines, such as a late fee for arriving late and a fee for not coming to work.

107. Defendants set rules requiring the dancers to pay certain fees for each shift they worked

at the Club, which fees included, but were not limited to:

 $50 for House Fee/Rent Fee/Walking-in Fee to the Club;

 $20 to Club’s management;
 $20 to House parent;
 $20 to Disc jockey; and
 $35 to security/bouncers.

108. Defendants also set rules imposing extensive monetary penalties upon the dancers,

which penalties included, but were not limited to:

 a $50 to $100 fine for being late to work;

 a $100 fine for not coming to work;
 a $20 fine for being late to the stage; and
 a $500 fine for missing any mandatory meetings.

109. Defendants also deducted an unreasonable 10% “bank fee” before any credit card tips

were paid to the dancers.

110. Defendants never made any of the disclosures required by 29 U.S.C. 203(m) to the

dancers including Plaintiffs.

111. The dancers have been subjected to the common unlawful policies and practices of

Defendants as stated herein that violated the FLSA, IMWL, and the IWPCA.

112. As a result of Defendants’ common unlawful policies, the dancers including Plaintiffs

were not compensated the statutorily mandated minimum wage and overtime at a rate of not less

than one and one-half (1.5) times their regular rate of pay for work performed over forty (40)

hours per week.

113. All actions and agreements by Defendants described herein were willful and intentional,

13
 Case: 1:18-cv-07081 Document #: 32 Filed: 05/03/19 Page 14 of 30 PageID #:167

and they were not the result of mistake or inadvertence.

114. Defendants were aware that the FLSA, IMWL, and IWPCA apply to their business at all

relevant times and that, under the economic reality test applicable to determining employment

status under those laws, the dancers including Plaintiffs were improperly classified as

independent contractors when the dancers in fact should be classified as employees.

115. Dancers working under conditions similar to those employed with Defendants have been

determined to be employees––not independent contractors—in other FLSA cases.

116. Despite notice of their violations, Defendants continued to intentionally misclassify the

dancers, fail to pay them minimum wage, knowingly suffered and permitted them to work in

excess of forty (40) hours during a workweek without paying overtime compensation, and failed

to comply with the “tip credit” provisions of 29 U.S.C. § 203(m).

117. Defendants’ wrongful acts and/or omissions/commissions, as alleged herein, were not

made in good faith, or in conformity with or in reliance on any written administrative regulation,

order, ruling, approval, or interpretation by the state and/or U.S. Department of Labor and/or any

state department of labor, or any administrative practice or enforcement practice or enforcement

policy of such departments.

118. Defendants’ violations of the above-described federal and state wage and hour statutes

and regulations were willful, arbitrary, unreasonable and in bad faith.

THE ECONOMIC REALITY TEST

119. Under the economic reality test, employee status turns on whether the individual is, as a

matter of economic reality, in business for himself or herself and truly independent or, rather, is

economically dependent upon finding employment in others.

120. The Seventh Circuit applies an “economic reality” test to determine whether an

14
 Case: 1:18-cv-07081 Document #: 32 Filed: 05/03/19 Page 15 of 30 PageID #:168

individual is an employee or an independent contractor for FLSA purposes. The factors

considered include:

(1) the nature and degree of the alleged employer’s control as to

the manner in which the work is to be performed; (2) the alleged
employee’s opportunity for profit or loss depending upon his
managerial skill; (3) the alleged employee's investment in
equipment or materials required for his task, or his employment of
workers; (4) whether the service rendered requires a special skill;
(5) the degree of permanency and duration of the working
relationship; (6) the extent to which the service rendered is an
integral part of the alleged employer's business.

Sec'y of Labor v. Lauritzen, 835 F.2d 1529, 1534 (7th Cir. 1987).

121. The totality of circumstances surrounding the employment relationship between

Defendants and the dancers establishes economic dependence by the dancers on Defendants and

employee status. Here, the dancers including Plaintiffs are not in business for themselves and

truly independent, but rather are economically dependent upon their employment with

Defendants.

Degree of Control Exercised by Defendants

122. The dancers did not exert control over any meaningful part of Defendants’ business

operations and did not stand as a separate economic entity from Defendants.

123. Defendants had complete control over the business operations, including without

limitation advertising and promotion, business and financial relationships with customers,

services offered, and customer volume.

124. Moreover, Defendants exercised substantial control over all aspects of the working

relationship with the dancers.

The Dancers’ Opportunity For Profit or Loss and Their Relative Investment

125. Defendants managed all aspects of their business operation, including without limitation,

15
 Case: 1:18-cv-07081 Document #: 32 Filed: 05/03/19 Page 16 of 30 PageID #:169

attracting customers, establishing business and customer relationships, maintaining the premises,

establishing the hours of operation, coordinating advertising, and hiring and controlling the staff.

Defendants provided all necessary capital to open and operate the business.

126. Defendants determined the prices charged to customers for different dance

performances.

127. The dancers had no responsibility for any aspect of Defendants’ ongoing business risk.

The Dancers’ Investment in Materials and Other Employees

128. The dancers made no financial investment in Defendants’ facilities, advertising,

maintenance, and staffing. All capital investment and risk belongs to Defendants.

129. The dancers’ investment is limited to their own dancing attire. Absent Defendants’

investment and provision of the business, the dancers would earn nothing.

130. The dancers did not hire any employees or subcontractors.

Degree of Skill and Independent Initiative Required to Perform the Work

131. The dancers did not exercise the skill and initiative of a person in business for

themselves.

132. The dancers were not required to have any specialized or unusual skills to perform their

job. Most of the skills utilized in performing dances are commensurate with those exercised by

ordinary people.

133. The dancers did not have the opportunity to exercise the business skills and initiative

necessary to elevate their status to that of independent contractors: they owned no enterprise, nor

did they maintain a separate business structure or facility.

Permanence or Duration of the Working Relationship

134. Plaintiff Rosebar worked as a dancer for Defendants from approximately August 2017 to

16
 Case: 1:18-cv-07081 Document #: 32 Filed: 05/03/19 Page 17 of 30 PageID #:170

August 2018.

135. Plaintiff Smith worked as a dancer for Defendants from approximately July 2017 to

September 2018.

136. Plaintiff Williams-Mix worked for Defendants as a dancer from approximately July

2017 to October 2018.

137. Plaintiff Liddell worked for Defendants as a dancer from approximately November 2017

to July 2018.

138. Plaintiff Miller worked for Defendants as a dancer from summer of 2017 through late

November of 2018.

139. The dancers continued to work for Defendants until they quit or were terminated similar

to an at-will employment arrangement.

Extent to Which the Work is an Integral Part of Employer’s Business

140. The dancers performed dance routines integral to Defendants’ entertainment business

141. Defendants’ operation is wholly dependent on the dancers and the performances they

give for Defendants’ customers.

142. The primary “product” or “good” Defendants are in business to sell consists of

performances provided by the dancers.

COLLECTIVE ACTION ALLEGATIONS

143. Plaintiffs re-allege and incorporate all previous paragraphs herein.

144. Plaintiffs bring this action pursuant to Section 216(b) of the FLSA, as an opt-in

representative action, for and on behalf of all dancers at the Ocean Gentlemen’s Club who have

been affected by Defendants’ common policies and practices which include failure to pay

minimum and overtime wages, in violation of the Fair Labor Standards Act, 29 U.S.C. § 201, et

seq. (“FLSA”) and attendant regulations at 29 C.F.R. § 516, et seq.

17
 Case: 1:18-cv-07081 Document #: 32 Filed: 05/03/19 Page 18 of 30 PageID #:171

145. Plaintiffs bring this action pursuant to 29 U.S.C. § 216(b) of the FLSA on behalf of:

Any individual who worked as a dancer at the Ocean Gentlemen’s Club,

located at 5555 W 70th Place, Bedford Park, IL 60638 at any time from
three (3) years prior to the filing of this Complaint through the date of
judgment.

Plaintiffs reserve the right to amend this definition as necessary.

146. Plaintiffs bring this collective action against Defendants to recover unpaid minimum and

overtime wages, liquidated damages, and reasonable attorneys’ fees and costs pursuant to 29

U.S.C. § 216(b).

147. The collective action further alleges a willful violation of the FLSA and seeks an

additional, third year of limitations.

148. Plaintiffs seek to send Notice to all to all former and current dancers at the Ocean

Gentlemen’s Club permitting them to assert FLSA claims in this collective action by filing their

individual consent forms, as provided by 29 U.S.C. § 216(b) and supporting case law.

149. Certification of the collective action under the FLSA is appropriate because the

employees described herein are “similarly situated” to Plaintiffs under 29 U.S.C. § 216(b). The

class of employees on behalf of whom Plaintiffs bring this collective action are similarly situated

because: (a) they had the same job positions and performed the same or similar job duties as one

another on behalf of Defendants; (b) they were subject to the same or similar unlawful practices

and policies as stated herein; and (c) their claims are based upon the same factual and legal

theories.

150. Plaintiffs anticipate that there will be no difficulty in the management of this litigation.

This litigation presents claims under the FLSA, a type that have often been prosecuted on a class

wide basis, and the manner of identifying the collective and providing any monetary relief to it

can be effectuated from a review of Defendants’ records.

18
 Case: 1:18-cv-07081 Document #: 32 Filed: 05/03/19 Page 19 of 30 PageID #:172

151. Plaintiffs and the putative FLSA collective members demand a trial by jury.

RULE 23 CLASS ACTION ALLEGATIONS

152. Plaintiffs re-allege and incorporate all previous paragraphs herein.

153. Plaintiffs also seek to maintain this action pursuant to Fed. R. of Civ. P. 23, as an

opt-out class action, for an on behalf all dancers at the Ocean Gentlemen’s Club who have been

affected by Defendants’ common policies and practices which include failure to pay minimum

and overtime wages, in violation of the Illinois Minimum Wage Law, 820 Ill. Comp. Stat. 105/1,

et seq. (“IMWL”) and unlawful retention of tips, in violation of the Illinois Wage Payment and

Collection Act (“IWPCA”).

154. Plaintiffs bring this Rule 23 class action as to their state law and Common Law claims

on behalf of:

Any individual who worked as a dancer at the Ocean Gentlemen’s Club,

located at 5555 W 70th Place, Bedford Park, IL 60638 at any time during
the applicable statutory period.

Plaintiffs reserve the right to amend this definition as necessary.

155. Plaintiffs bring this Rule 23 class action as to the IMWL claims against Defendants to

recover unpaid minimum and overtime wages, 2% monthly statutory interest, costs and

reasonable attorneys’ fees and costs pursuant to 820 Ill. Comp. Stat. 105/12.

156. Plaintiffs bring this Rule 23 class action as to the IWPCA claims against Defendants to

recover unlawfully retained tips to which plaintiffs were entitled to keep under the terms of their

written agreement with Defendants.

157. Plaintiffs bring this Rule 23 class action as to their Quantum Meruit and Unjust

Enrichment claims against Defendants to recover the benefit they conferred upon Defendants

through their uncompensated labor, by which Defendants were unjustly enriched.

19
 Case: 1:18-cv-07081 Document #: 32 Filed: 05/03/19 Page 20 of 30 PageID #:173

158. The members of the Rule 23 class are so numerous that joinder of all class members in

this case would be impractical. The Rule 23 class members should be easy to identify from

Defendants’ records.

159. There is a well-defined community of interest among the Rule 23 class members and

common questions of law and fact predominate in this action over any questions affecting

each individual class member. These common legal and factual questions, include, but are

not limited to, the following: whether the Rule 23 class members were paid the statutorily

mandated minimum wages and overtime compensation at a rate of not less than one and one-half

(1.5) times their regular rate of pay for work performed over forty (40) hours per week and

whether the Rule 23 class members had their tips stolen by management.

160. Plaintiffs’ claims are typical of those of the Rule 23 class members in that they and

all other class members suffered damages as a direct and proximate result of Defendants’

common and systemic payroll policies and practices. All of the class members were

subject to the same corporate practices of Defendants, as alleged herein. Any lawsuit

brought by a dancer of Defendants would be identical to a suit brought by any other dancers

for the same violations and separate litigation would cause a risk of inconsistent results.

161. Plaintiffs were employed by Defendants in the same capacity as all of the class

members. All class members were treated the same or similarly by management with

respect to pay or lack thereof. This treatment included, but was not limited to, failure to pay

minimum and overtime wages. Thus, there are common questions of law and fact which are

applicable to each and every one of the class members.

162. Plaintiffs will fully and adequately protect the interests of the class members and have

retained counsel who are qualified and experienced in the prosecution of nationwide wage and

20
 Case: 1:18-cv-07081 Document #: 32 Filed: 05/03/19 Page 21 of 30 PageID #:174

hour class actions. Plaintiffs and their counsel do not have interests that are contrary to, or

conflicting with, the interests of the class members.

163. Defendants’ corporate-wide policies and practices affected all class members similarly,

and Defendants benefited from the same type of unfair and/or wrongful acts as to each class

member. Plaintiffs’ claim arises from the same legal theories as all other class members.

Therefore, this case will be more manageable and efficient as a Rule 23 class action. Plaintiffs

and their counsel know of no unusual difficulties in this case.

164. Plaintiffs and the Rule 23 class members demand a trial by jury.

COUNT I
(29 U.S.C. § 216(b) Collective Action)
Violation of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq.
(Failure to Pay Minimum and Overtime Wages)
(Unlawful Tip Retention)

165. Plaintiffs re-allege and incorporate all previous paragraphs herein and further allege as

follows.

166. At all times relevant to this action, Defendants were an employer under 29 U.S.C. § 203(d)

of the FLSA, subject to the provisions of 29 U.S.C. § 201 et seq.

167. Defendants are engaged in interstate commerce, or in the production of goods for

commerce, as defined by the FLSA.

168. At all times relevant to this action, Plaintiffs and the putative FLSA collective members

were an “employee” of Defendants within the meaning of 29 U.S.C. § 203(e)(1) of the FLSA.

169. Plaintiffs and the putative FLSA collective members either (1) engaged in commerce, (2)

engaged in the production of goods for commerce, or (3) were employed in an enterprise engaged in

commerce or in the production of goods for commerce.

170. At all times relevant to this action, Defendants “suffered or permitted” Plaintiffs and the

21
 Case: 1:18-cv-07081 Document #: 32 Filed: 05/03/19 Page 22 of 30 PageID #:175

putative FLSA collective members to work and thus “employed” them within the meaning of 29

U.S.C. § 203(g) of the FLSA.

171. At all times relevant to this action, Defendants improperly classified Plaintiffs and the

putative FLSA collective members as independent contractors to avoid compliance with the FLSA

when the dancers in fact are FLSA covered employees.

172. Defendants did not pay Plaintiffs and the putative FLSA collective members any wages

or other form of compensation for their work at the Club.

173. Plaintiffs and the putative FLSA collective members were compensated solely by way of

tips (in cash or by credit card) from customers for their work at the Club.

174. As a result of Defendants’ common unlawful policies, Plaintiffs and the putative FLSA

collective members were not compensated the statutorily mandated minimum wage and overtime

at a rate of not less than one and one-half (1.5) times their regular rate of pay for work performed

over forty (40) hours per week.

175. At all times relevant to this action, Defendants never made any of the disclosures

required by 29 U.S.C. 203(m) to Plaintiffs and the putative FLSA collective members.

176. Pursuant to the amendment to the Fair Labor Standards Act (FLSA) in the omnibus

budget bill, “Consolidated Appropriations Act, 2018,” employers “may not keep tips received by

its employees for any purposes, including allowing managers or supervisors to keep any portion

of employees’ tips, regardless of whether or not the employer takes a tip credit.” 29 U.S.C. §

203(m)(2)(B).

177. Fact Sheet # 15 of the U.S. Department of Labor concerning the application of the FLSA

to employees who receive tips provides that “[a] tip is the sole property of the tipped employee

regardless of whether the employer takes a tip credit.” See Fact Sheet # 15.

22
 Case: 1:18-cv-07081 Document #: 32 Filed: 05/03/19 Page 23 of 30 PageID #:176

178. At all times relevant to this action, Defendants illegally retained significant portions of

the tips received by Plaintiffs and the putative FLSA collective members by imposing fees and

fines against the tips they received from customers.

179. Defendants’ conduct and practices, described herein, were willful, intentional,

unreasonable, arbitrary, and in bad faith.

180. Because Defendants willfully violated the FLSA, a three (3) year statute of limitations

shall apply to such violation pursuant to 29 U.S.C. § 255(a).

181. As a result of Defendants’ uniform and common policies and practices described above,

Plaintiffs and the putative FLSA collective members were illegally deprived of minimum and

overtime wages earned, in such amounts to be determined at trial, and are entitled to recovery of

such total unpaid amounts, liquidated damages, reasonable attorneys’ fees, costs and other

compensation pursuant to 29 U.S.C § 216(b).

COUNT II
(Fed R. Civ. P. 23 Class Action)
Violation of the Illinois Minimum Wage Law, 820 Ill. Comp. Stat. 105/1, et seq.
(Failure to Pay Minimum and Overtime Wages)
(Unlawful Tip Retention)

182. Plaintiffs re-allege and incorporate all previous paragraphs herein and further allege as

follows.

183. At all times relevant to the action, Defendants were “employers” covered by the mandates

of the Illinois Minimum Wage Law, and Plaintiffs and other class members are employees entitled

to the IMWL’s protections.

184. The IMWL requires employers to pay their employees minimum wages and

time-and-a-half their regular rate of pay of hours worked in excess of forty (40) per week. See

820 Ill. Comp. Stat. 105/4 and 4a.

23
 Case: 1:18-cv-07081 Document #: 32 Filed: 05/03/19 Page 24 of 30 PageID #:177

185. At all times relevant to this action, Defendants improperly classified Plaintiffs and other

class members as independent contractors to avoid compliance with the IMWL when the dancers

in fact are FLSA covered employees.

186. Defendants did not pay Plaintiffs and other class members any wages or other form of

compensation for their work at the Club.

187. Plaintiffs and other class members were compensated solely by way of tips (in cash or by

credit card) from customers for their work at the Club.

188. As a result of Defendants’ common unlawful policies, Plaintiffs and other class members

were not compensated the statutorily mandated minimum wage and overtime at a rate of not less

than one and one-half (1.5) times their regular rate of pay for work performed over forty (40)

hours per week.

189. At all times relevant to this action, Defendants illegally retained significant portions of

the tips received by Plaintiffs and other class members by, among others, imposing fees and fines

against the tips they received from customers.

190. Defendants’ conduct and practices, described herein, were willful, intentional,

unreasonable, arbitrary, and in bad faith.

191. 820 Ill. Comp. Stat. 105/12(a) provides that an employee who is not paid in accordance

with the Illinois Minimum Wage Law “the employee may recover in a civil action the amount of

any such underpayments together with costs and such reasonable attorney’s fees as may be

allowed by the Court, and damages of 2% of the amount of any such underpayments for each

month following the date of payment during which such underpayments remain unpaid.”

192. As a result of Defendants’ uniform and common policies and practices described above,

Plaintiffs and other class members were illegally deprived of minimum and overtime wages

24
 Case: 1:18-cv-07081 Document #: 32 Filed: 05/03/19 Page 25 of 30 PageID #:178

earned, in such amounts to be determined at trial, and are entitled to recovery of such total

unpaid amounts, 2% monthly statutory interest, reasonable attorneys’ fees, costs and other

compensation pursuant to 820 Ill. Comp. Stat. 105/12(a).

COUNT III
(Fed R. Civ. P. 23 Class Action)
Violation of the Illinois Wage Payment and Collection Act “IWPCA”
(Unlawful Tip Retention)

193. Plaintiffs reallege and incorporate by reference all the preceding paragraphs, as if fully

set forth herein.

194. Each and all Defendants are “employers” under the definitions provided by the IWPCA.

195. In accordance with IWPCA, the definition of an employer includes: “any officer of a

corporation or agents of an employer who knowingly permit such employer to violate the

provisions of this Act shall be deemed to be the employers of the employees of the corporation”.

196. Plaintiffs and other class members are all “employees” under the definitions provided by

the IWPCA.

197. Defendants administered a policy at all relevant times of taking and retaining Plaintiffs’

tips by, among others, imposing fees and fines against the tips they received from customers.

198. Defendants’ unlawful conduct was and is not inadvertent, de minimis, isolated or

sporadic, but widespread, repeated and part of a pattern and practice of conduct affecting all

class members, including Plaintiffs.

199. Plaintiffs and other class members signed a written agreement with Defendants that

specified that dancers were to “keep tips that she receives from customers of the club” but in fact

the Defendants stole their tips.

200. Since Plaintiffs and other class members had a written agreement with Defendants that

entitled dancers to retain all tips received from customers and Defendants subsequently retained

25
 Case: 1:18-cv-07081 Document #: 32 Filed: 05/03/19 Page 26 of 30 PageID #:179

these tips, these tips constitute compensation due by Defendants (the “employer”) to Plaintiffs

and other class members (the “employees”).

201. Plaintiffs and other class members are entitled to recovery of the unlawfully retained

tips, as well as additional damages, pursuant to the IWPCA.

COUNT IV
(Fed R. Civ. P. 23 Class Action)
Unjust Enrichment/Quantum Meruit

202. Plaintiffs hereby re-allege and incorporate by reference the preceding paragraphs

as if they were set forth again herein.

203. All of the time spent by Plaintiffs and other class members in the performance of their

duties as dancers for Defendants was for the sole benefit of Defendants.

204. Defendants had full knowledge of all duties performed by dancers because Defendants

owned and operated the private club where dancers worked and implemented all policies and

procedures dancers were subject to.

205. Defendants knowingly and willingly accepted the benefits of Plaintiffs’ and other class

members’ uncompensated labor.

206. By willingly receiving and retaining the value of Plaintiffs’ and other class members’

labor without providing adequate compensation to Plaintiffs and other class members in

exchange for their labor, Defendants were unjustly enriched at the expense of Plaintiffs and other

class members.

207. By unlawfully demanding and retaining Plaintiffs’ and other class members’ gratuities

and failing to pay them any wages, Defendants were further unjustly enriched at the expense of

Plaintiffs and other class members.

208. Defendants’ conduct was willful and not the result of mistake or inadvertence.

26
 Case: 1:18-cv-07081 Document #: 32 Filed: 05/03/19 Page 27 of 30 PageID #:180

209. It would be inequitable for Defendants to retain the benefits received at the expense of

Plaintiffs and other class members.

210. As a direct result of Defendants’ unlawful, unjust and inequitable conduct, Plaintiffs and

other class members suffered injury, incurred damages and financial loss in an amount to be

determined at trial.

211. Plaintiffs plead this Common Law claim in the alternative.

212. Accordingly, Plaintiffs seek appropriate relief against Defendants including damages,

restitution, a refund of all tips paid to Defendants and other employees of Defendants,

prejudgment interest, attorneys’ fees and costs and all other relief that the Court deems just and

appropriate.

213. Further, Plaintiffs plead this claim for those damages not covered by wage laws, such as

“gap time”.

RELIEF REQUESTED

WHEREFORE, Plaintiffs respectfully request that this Court grant the following relief

against Defendants, and each of them, individually, jointly and severally, as follows:

(A) A declaratory judgment that Defendants’ wage practices alleged herein violate the

minimum wage and overtime provisions of the Fair Labor Standards Act, 29 U.S.C. §

201, et seq., and attendant regulations at 29 C.F.R. § 516, et seq.;

(B) A declaratory judgment that Defendants’ wage practices alleged herein violate the Illinois

Minimum Wage Law, 820 Ill. Comp. Stat. 105/1, et seq. (“IMWL”);

(C) A declaratory judgment that Defendants’ wage practices alleged herein violate the Illinois

Wage Payment and Collection Act (“IWPCA”);

(D) An Order for injunctive relief ordering Defendants to comply with the FLSA, IMWL and

27
 Case: 1:18-cv-07081 Document #: 32 Filed: 05/03/19 Page 28 of 30 PageID #:181

IWPCA and end all of the illegal wage practices alleged herein;

(E) Certifying this case as a collective action in accordance with 29 U.S.C. § 216(b) with

respect to the FLSA claims set forth herein;

(F) Certifying this action as a class action pursuant to Fed R. Civ. P. 23 with respect to the

IMWL claims set forth herein;

(G) Certifying this action as a class action pursuant to Fed R. Civ. P. 23 with respect to the

IWPCA claims set forth herein;

(H) Ordering Defendants to disclose in computer format, or in print if no computer readable

format is available, the names, addresses, e-mail addresses, telephone numbers, dates of

birth, job titles, dates of employment and locations of employment of all FLSA collective

and Rule 23 class members;

(I) Authorizing Plaintiffs’ counsel to send notice(s) of this action to all FLSA collective and

Rule 23 class members, including the publishing of notice in a manner that is reasonably

calculated to apprise the FLSA collective members of their rights by law to join and

participate in this lawsuit;

(J) Designating Lead Plaintiffs as the representatives of the FLSA collective and Rule 23

class in this action;

(K) Designating the undersigned counsel as counsel for the FLSA collective and Rule 23

Class in this action;

(L) Judgment for damages for all unpaid minimum and overtime wages and liquidated

damages to which Plaintiffs and the FLSA collective members are lawfully entitled under

the FLSA, 29 U.S.C. § 201, et seq., and attendant regulations at 29 C.F.R. § 516, et seq.;

(M) Judgment for damages for all unpaid minimum and overtime wages and 2% monthly

28
 Case: 1:18-cv-07081 Document #: 32 Filed: 05/03/19 Page 29 of 30 PageID #:182

statutory interest to which Plaintiffs and the Rule 23 class members are lawfully entitled

under 820 Ill. Comp. Stat. 105/12(a);

(N) Judgment for the amount of unlawfully retained tips and damages of 2% of this amount

for each month following the date of payment during which this amount remained

unpaid, in addition to attorney’s fees, pursuant to 820 ILCS 115/14 of the IWPCA.

(O) An incentive award for the Lead Plaintiffs for serving as representatives of the FLSA

collective and Rule 23 class in this action;

(P) An award for reasonable attorneys’ fees and costs incurred by Plaintiffs in this action as

provided by the FLSA, IMWL, and IWPCA;

(Q) Judgment for any and all civil penalties to which Plaintiffs and the FLSA collective and

Rule 23 class members may be entitled; and

(R) Such other and further relief as to this Court may deem necessary, just and proper.

JURY DEMAND

Plaintiffs, individually and on behalf of all other FLSA collective and Rule 23 class

members, by and through their attorneys, hereby demand a trial by jury pursuant to Rule 38 of

the Federal Rules of Civil Procedure and the court rules and statutes made and provided with

respect to the above entitled claims.

Dated: May 3, 2019 /s/ Jason T. Brown

Jason T. Brown
Nicholas Conlon (pro hac vice)
Ching-Yuan (“Tony”) Teng (pro hac vice)
BROWN, LLC
500 N. Michigan Ave., Suite 600
Chicago, Illinois 60611
T: (877) 561-0000
F: (855) 582-5297
[email protected]
[email protected]
[email protected]

29
Case: 1:18-cv-07081 Document #: 32 Filed: 05/03/19 Page 30 of 30 PageID #:183

Lead Counsel for Plaintiffs

The Law Office of John C. Ireland

636 Spruce Street South Elgin ILL 60177
630-464-9675
Fax: 630-206-0889
[email protected]

David Fish
The Fish Law Firm, P.C.
200 E. 5th Avenue, Suite 123
Naperville, IL 60563
Direct: (331) 425-7083
Fax: (630) 778-0400
[email protected]

Attorneys for Plaintiffs

30