Campbell v. Marshall International, LLC et al

Filing 46

MEMORANDUM Opinion and Order signed by the Honorable Elaine E. Bucklo on 8/1/2022. Mailed notice. (mgh, )

Case: 1:20-cv-05321 Document #: 46 Filed: 08/01/22 Page 1 of 16 PageID #:418

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Brandi Campbell, individually
and on behalf of all others
similarly situated,
Plaintiffs,
v.
Marshall International, LLC
d/b/a Gold Club Chicago a/k/a
the Gold Room, and Pera M.
Odishoo,
Defendants.

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No. 20 C 5321

Memorandum Opinion & Order
Plaintiff Brandi Campbell formerly worked as an exotic dancer
for defendant Gold Club Chicago a/k/a the Gold Room (the “Club”),
managed at the time of suit by defendant Pera M. Odishoo. She
alleges that she was not paid as required by the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 216(b),

because she was

misclassified as an independent contractor. Plaintiff seeks to
represent

all

similarly

situated

individuals

in

a

collective

action under the FLSA as well as in a class action under Illinois
state law.
Before

me

is

plaintiff’s

motion

for

conditional

class

certification and notice to putative class members pursuant to
§ 216(b) of the FLSA. Plaintiff seeks to include in the action

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“all individuals who have worked as exotic dancers for the [Club]
in Stone Park, Illinois, between three years prior to the filing
of this Motion and the entry of judgment in this case.” Dkt. No.
17 at 12. As required by Bigger v. Facebook, Inc., 947 F.3d 1043
(7th Cir. 2020), I

gave defendants an opportunity

to submit

evidence showing the existence of a valid arbitration agreement
for each employee they seek to exclude from receiving notice. Dkt.
No. 38. I have jurisdiction over the FLSA claim under 28 U.S.C.
§ 1331

and

29

U.S.C.

§ 216(b).

For

the

following

reasons,

plaintiff’s motion is granted in part.
I.
The FLSA authorizes employees to bring their FLSA claims in
a collective action on behalf of themselves and other “similarly
situated” employees. 29 U.S.C. § 216(b). Because the statute does
not specify collective action procedures, district courts have
“wide discretion to manage collective actions.” Alvarez v. City of
Chi., 605 F.3d 445, 449 (7th Cir. 2010) (citing Hoffmann-La Roche
Inc. v. Sperling, 493 U.S. 165, 171 (1989)). Courts in this
district routinely employ a “two-step process” to decide whether
a FLSA suit should proceed as a collective action. Jirak v. Abbott
Lab’ys, Inc., 566 F. Supp. 2d 845, 847 (N.D. Ill. 2008).
The first step is conditional certification, “a mechanism
used by district courts to establish whether potential plaintiffs
in the FLSA collective action should be sent a notice of their
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eligibility to participate and given the opportunity to opt in to
the collective action.” Ervin v. OS Rest. Servs., Inc., 632 F.3d
971, 974 (7th Cir. 2011). At the conditional certification stage,
plaintiff need only make a “modest factual showing” to demonstrate
that she and other potential claimants “were victims of a common
policy or plan that violated the law.” Russell v. Ill. Bell Tel.
Co., 575 F. Supp. 2d 930, 933 (N.D. Ill. 2008) (citation and
internal quotation marks omitted). Plaintiff can satisfy this
standard by offering “some evidence in the form of affidavits,
declarations, deposition testimony, or other documents to support
the

allegations

that

other

similarly

situated

employees

were

subjected to a common policy that violated the law.” Lieberman v.
Altounion Constr., Inc., No. 19-cv-0910, 2019 WL 6467321, at *2
(N.D. Ill. Dec. 2, 2019) (citations omitted).
In a sworn declaration, plaintiff claims that she and other
dancers were misclassified as independent contractors even though
defendants exercised substantial control over their work. Dkt. No.
17-1 at 7 ¶ 4. For example, plaintiff alleges that defendants
determined: how much could be charged for a private dance and for
time spent in the VIP room, id. at 8 ¶¶ 7–8; rules governing the
dancers’ conduct in the VIP room, id.; what dancers were required
to wear on certain theme nights, id. at 8–9 ¶ 9; when and how often
dancers were required to be on stage, id. at 10 ¶ 12; when dancers
could leave the Club, id. ¶ 14; and various other aspects of how
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the dancers carried out their work, see id. at 9–10 ¶¶ 10–11, 13.
Despite this alleged control, plaintiff and the other dancers did
not receive an hourly wage, but instead received all their pay in
the form of customer tips. Id. at 10 ¶ 15. From this compensation,
plaintiff and other dancers were required to pay house fees to
defendants for every shift that they worked. Id. at 8 ¶ 6. This
sworn declaration makes the requisite minimal factual showing that
plaintiff and similarly situated individuals were subjected to a
common practice in violation of the FLSA.
Defendants do not oppose this evidence and the cases they
cite are distinguishable from this one. In those cases, courts
denied conditional certification because

plaintiffs sought to

include in a collective action individuals whose roles differed
from their own, see Freeman v. Wal-Mart Stores, Inc., 256 F. Supp.
2d 941, 943, 945 (W.D. Ark. 2003) (attempting to include all
“salaried Wal-Mart employees, below officer-level”); StreeterDougan v. Kirkston Mortg. Lending, LLC, No. 3:13-cv-00166-RLY-WGH,
2013 WL 6174936, at *2 (S.D. Ind. Nov. 21, 2013) (attempting to
include

all

“loan

officers”

where

plaintiff

was

a

“loan

processor”), or individuals who worked at different locations, see
Boyd v. Alutiiq Glob. Sols., No. 11-cv-0753, 2011 WL 3511085, at
*4–6 (N.D. Ill. Aug. 8, 2011) (attempting to include individuals
from various locations even though named plaintiffs all worked at
one location). In each of those cases, the plaintiffs failed to
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show that their proposed classes comprised similarly situated
individuals. By contrast, plaintiff here seeks to include one type
of worker from one location--exotic dancers at the Club--and has
offered sufficient evidence to warrant conditional certification.
II.
Defendants argue that even if plaintiff’s individual FLSA
claim can proceed,1 the other dancers cannot join the action
because they signed mutual arbitration agreements that bar them
from doing so. It is well settled that “a court may not authorize
notice to individuals whom the court has been shown entered mutual
arbitration agreements waiving their right to join the action.”
Bigger, 947 F.3d at 1050. Notifying these individuals would be
inefficient and could engender abuse of the collective action
mechanism by ratcheting up pressure on defendants to settle. See
id. at 1049. Accordingly, defendants must be given the opportunity
to “show, by a preponderance of the evidence, the existence of a
valid arbitration agreement for each employee it seeks to exclude
from receiving notice.” Id. at 1050 (citation omitted).
Defendants here were given that opportunity, see Dkt. No. 38,
and have filed an “Offer of Proof” arguing for the exclusion of
“each and every Entertainer” from this collective action based on

Because I denied defendants’ Rule 12(b)(3) motion to dismiss
plaintiff’s individual claim, Dkt. No. 38, their argument that
plaintiff’s individual claim is moot fails.
1

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the purported existence of valid arbitration agreements signed by
the dancers. Dkt. No. 39. In addition, defendants submitted eight
agreements signed by various dancers--including the one signed by
plaintiff--that

they

claim

represent

a

“sampling”

of

the

agreements signed by all the dancers. Exhs. 1–8, Dkt. Nos. 39-1
through 39-8.2 Defendants also submitted a list identifying all
the dancers they claim signed an arbitration agreement, Exh. 10,
Dkt. No. 42,3 and a declaration by manager Brian Cunningham, Exh.
9, Dkt. No. 41.
Putting

aside

the

dancers

who

signed

the

agreements

in

Exhibits 1–8, defendants have not shown by a preponderance of the
evidence that the dancers listed in Exhibit 10 signed valid
arbitration agreements. Under Bigger, defendants must “show the
existence

and

validity

of

an

arbitration

agreement

for

each

employee it seeks to exclude from receiving notice” and I am not
required to “simply take an employer at its word.” 947 F.3d at
1050–51 (emphasis added). It is not enough to offer agreements

Among the agreements submitted by defendants, there are two
versions which, for simplicity, I will refer to as “Version 1” and
“Version 2.” There are the agreements signed by Isabel Sturla,
Marie Ihouchy, Elvina Leonitova, and Caitlynn Kijowski (“Version
1”), Exhs. 1–4, and there are the remaining four agreements
(“Version 2”), Exhs. 5–8.
2

Even though defendants submitted this list late, I will consider
it for purposes of the present motion because doing so does not
affect the outcome.
3

6

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signed by eight dancers and then to assure me, without additional
evidence, that the same goes for over 150 other dancers.
Although defendants have shown the existence of the seven
arbitration agreements in Exhibits 1–7,4 plaintiff contends that
these agreements are invalid because they contain unconscionable
provisions.5
defenses

It

such

is

as

true

. . .

invalidate

arbitration

Casarotto,

517

U.S.

that

“generally

unconscionability,
agreements.”

681,

687

(1996)

Dr.’s

applicable
may

be

applied

Assocs.,

(citations

contract
to

Inc.

v.

omitted).

In

assessing these defenses, “[a]n agreement to arbitrate is treated
like any other contract,” Gibson v. Neighborhood Health Clinics,
Inc., 121 F.3d 1126, 1130 (7th Cir. 1997) (citation omitted), and
state contract law “determine[s] which contracts are binding under
[Federal Arbitration Act] § 2,” Arthur Andersen LLP v. Carlisle,
556 U.S. 624, 630–31 (2009) (citations omitted). The agreements at

Because I previously concluded that defendants waived their right
to arbitrate claims brought by plaintiff, Dkt. No. 16 at 6, I need
not consider the arbitration agreement that she signed, which
defendants submitted with the other seven. See Exh. 8.
4

Plaintiff also argues that, regardless of whether I find the
arbitration provisions unconscionable, the dancers who signed
Version 1 of the agreement did not agree to arbitrate claims
against the Club’s owners and managers, like defendant Odishoo.
However, in Illinois, “[a] contract that gives a party a right to
arbitration may extend that right to the party’s agents, even when
the agents did not sign the agreement.” Claus v. Lakeview Ins.
Agency of Ill., Ltd., No. 1-11-1361, 2011 WL 10099278, at *3 (Ill.
App. Ct. 2011). Therefore, this argument fails.
5

7

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issue specify that Illinois law controls, see, e.g., Exh. 1 ¶ 20;
Exh. 5 ¶ 20, and the parties do not dispute this provision.
Plaintiff first argues that the forum selection clause in
Version 1 of the agreement, which requires arbitration to take
place in Colorado, is unconscionable. While the validity of a forum
selection clause is typically analyzed under federal law, the
Seventh Circuit has held that, “[i]n contracts containing a choice
of law clause, . . . the law designated in the choice of law clause
[is] used to determine the validity of the forum selection clause.”
Jackson v. Payday Fin., LLC, 764 F.3d 765, 775 (7th Cir. 2014)
(citing Abbott Lab’ys v. Takeda Pharm. Co., 476 F.3d 421, 423 (7th
Cir. 2007); additional citation omitted). Here, as stated above,
the agreements specify that Illinois law controls. Hence, Illinois
law governs the forum selection clause’s validity.
Under Illinois law, “[a] forum selection clause in a contract
is prima facie valid and should be enforced unless the opposing
party shows that enforcement would be unreasonable under the
circumstances.” IFC Credit Corp. v. Rieker Shoe Corp., 881 N.E.2d
382, 389 (Ill. App. Ct. 2007) (citation omitted). To determine the
reasonableness

of

a

forum

selection

clause,

courts

should

consider:
(1) the law that governs the formation and construction
of the contract; (2) the residency of the parties; (3)
the place of execution and/or performance of the
contract; (4) the location of the parties and their
witnesses; (5) the inconvenience to the parties of any
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particular location; and (6) whether the clause was
equally bargained for.
Id. at 389–90 (citation omitted). Applying these factors reveals
that the forum selection clause in Version 1 of the agreement is
unreasonable under the circumstances.
The first, third, and sixth factors are straightforward and
weigh in plaintiff’s favor. The contract was executed and performed
in Illinois and Illinois law governs the formation and construction
of the contract, so the first and third factors suggest that
Illinois, not Colorado, is the appropriate forum. The sixth factor
favors plaintiff because the clause is “contained in boilerplate
language,”6 so it “indicates unequal bargaining power.” Id. at 389
(citation omitted).
The remaining factors are neutral or arguably weigh against
a finding of reasonableness as well. The parties’ submissions do
not reveal any connection between either party and the state of
Colorado. Indeed, in their answer to the complaint, defendants
admit that the Club is “an Illinois limited liability company with
its principal place of business” in Illinois. Dkt. No. 44 ¶ 5.
Thus, although the current residencies of defendant Odishoo and
the four dancers who signed Version 1 of the agreement are unknown,
the residency of defendant Club is Illinois, so the second factor

Defendants effectively concede that the agreements are
boilerplate by asserting that the eight agreements they submitted
are representative of the agreements signed by all other dancers.
6

9

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favors plaintiff. Similarly, as to the fourth factor, the Club is
located in Illinois, so even though the locations of the dancers
and the parties’ witnesses are uncertain, this factor also weighs
in plaintiff’s favor. The fifth factor is neutral because the
parties have not submitted evidence as to the current location of
the dancers or the individuals who would represent the Club in an
arbitration proceeding in Colorado. Nor has any evidence been
submitted as to the inconvenience that traveling to Colorado may
cause.
The forum selection clause in Version 1 of the agreement is
therefore unreasonable.

Consequently, defendants have

not met

their burden to show by a preponderance of the evidence “the
validity of an arbitration agreement” for Isabel Sturla, Marie
Ihouchy, Elvina Leonitova, and Caitlynn Kijowski, and these four
dancers should not be excluded from receiving notice of this
action. Bigger, 947 F.3d at 1050–51.
Plaintiff next takes aim at the provision in both versions of
the agreement requiring that the parties equally split the costs
of

arbitration,

claiming

such

an

arrangement

would

be

prohibitively expensive for the dancers. To prevail, plaintiff
“must

provide

some

individualized

evidence”

that

the

dancers

“likely will face prohibitive costs in the arbitration at issue
and that [they are] financially incapable of meeting those costs.”
Livingston v. Assocs. Fin., Inc., 339 F.3d 553, 557 (7th Cir.
10

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2003). Because plaintiff has not offered this evidence, I cannot
find this provision unconscionable.
Finally,
versions

of

plaintiff
the

maintains

agreement

that

allowing

the

the

provision

prevailing

in

both

party

in

arbitration to be awarded “costs incurred for the proceedings,
including reasonable attorneys’ fees,” see, e.g., Exh. 7 ¶ 21(E),
is unconscionable because it impermissibly displaces the FLSA’s
fee-shifting scheme. However, the Seventh Circuit has held that
whether an arbitration provision can alter cost- and fee-splitting
rules specified in federal statutes is an issue for “the arbitrator
rather than the court.” Carbajal v. H & R Block Tax Servs., Inc.,
372 F.3d 903, 906 (7th Cir. 2004); see also Pantel v. TMG of Ill.,
LLC, No. 07 C 7252, 2008 WL 5516489, at *2–3 (N.D. Ill. Nov. 17,
2008).
Accordingly,

the

dancers

who

signed

Version

2

of

the

agreement--Cynthia Bohannon, Jennifer Garcia, and Hannah Elliott
--are excluded from receiving notice.7

Nothing in this opinion should be understood to preclude these
three dancers from challenging the validity of their agreements
and offering the evidence that I found lacking here in future
proceedings. Nor does anything in this opinion prevent other
dancers who opt in to this FLSA action from challenging the
validity of their agreements later in this litigation, should
defendants attempt to have them dismissed.
7

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III.
Defendants raise three objections to plaintiff’s proposed
notice. See Dkt. No. 17-1. First, defendants argue that the notice
should be amended to

“inform potential opt-ins if there are

circumstances under which they may have to bear costs or pay fees
to Plaintiff’s counsel.” Dkt. No. 26 at 9–10. Several courts have
found similar language inappropriate because it has the capacity
to “unreasonably chill participation in” a FLSA action. King v.
ITT Cont’l Baking Co., No. 84 C 3410, 1986 WL 2628, at *3 (N.D.
Ill. Feb. 18, 1986); see also Dennis v. Greatland Home Health
Servs., Inc., 438 F. Supp. 3d 898, 901 (N.D. Ill. 2020). I agree,
and

therefore

decline

to

include

the

language

proposed

by

defendants.
Nor am I convinced by defendants’ objection to plaintiff’s
request for production of potential plaintiffs’ last-known email
addresses and phone numbers, and authorization of notice via email
and text message. In defendants’ view, physical mail notice is
enough. However, email notice in FLSA actions is now “the norm.”
Grosscup v. KPW Mgmt., Inc., 261 F. Supp. 3d 867, 880 (N.D. Ill.
2017) (collecting cases). Authorization of notice by text message
is increasingly common, particularly where potential plaintiffs
are transitory, which plaintiff claims in her affidavit is the
case here. See Brashier v. Quincy Prop., LLC, No. 3:17-CV-3022,
2018 WL 1934069, at *6–7 (C.D. Ill. Apr. 24, 2018). Defendants
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contend

that

unnecessarily

notice

by

intrusive

email
and

and

text

unwarranted.

message
But

“any

would

be

moderate

intrusion caused by such a text message [or email] is outweighed
by the interest in apprising all potential class members of this
action.” Dennis, 438 F. Supp. 3d at 902.
Defendants also object to the sending of a reminder notice
after the initial notice. However, reminder notices are regularly
authorized because they further “[t]he purpose of a step-one
notice,” which is “to inform potential class members of their
rights.” Knox v. Jones Grp., 208 F. Supp. 3d 954, 964 (S.D. Ind.
2016); see also Ivery v. RMH Franchise Corp., 280 F. Supp. 3d 1121,
1140 (N.D. Ill. 2017); Boltinghouse v. Abbott Lab’ys, Inc., 196 F.
Supp. 3d 838, 844 (N.D. Ill. 2016). Defendants claim that potential
plaintiffs could interpret a reminder notice as encouragement by
the court to join the action. But allowing a single deadline
reminder does not expose the court to “the appearance of endorsing
the action’s merits,” Bigger, 947 F.3d at 1049, especially where,
as here, the notice makes clear that the court has not taken a
position on the action’s merits. See Black v. P.F. Chang’s China
Bistro, Inc., No. 16-cv-3958, 2017 WL 2080408, at *12 (N.D. Ill.
May 15, 2017) (approving reminder notice where defendant argued it
was “unnecessary” and might be seen as improper “encouragement” by
the court because “the notice disclaims that the [c]ourt has taken
a position on the case’s merits”); Knox, 208 F. Supp. 3d at 964–
13

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65 (“Deadline reminders are commonplace and will not appear to
endorse the merits of the case.”). Accordingly, I will authorize
a reminder notice to be sent in this case.
I approve of the remainder of the proposed notice, which I
find reasonable and to which defendants do not object. See Kelly
v. Bank of Am., N.A., No. 10 C 5332, 2011 WL 7718421, at *1 (N.D.
Ill. Sept. 23, 2011) (“Absent reasonable objections by either the
defendant or the Court, plaintiffs should be allowed to use the
language

of

their

choice

in

drafting

the

notice.”

(citation

omitted)).
IV.
Finally,

plaintiff

requests

that

I

toll

the

statute

of

limitations for the claims of potential opt-in plaintiffs from the
filing of the motion on August 12, 2021, Dkt. No. 17, until the
date notice is issued. Equitable tolling may be appropriate if (1)
the party has diligently pursued his or her rights and (2) some
extraordinary circumstance stood in the way and prevented timely
filing. McQuiggin v. Perkins, 569 U.S. 383, 391 (2013). There is
no reason to infer a lack of diligence on the part of plaintiff or
any of the potential plaintiffs. Additionally, several courts have
found that the time it takes for a court to rule on a motion for
conditional

certification

of

a

FLSA

collective

action

can

constitute an “extraordinary circumstance.” See, e.g., Bergman v.

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Kindred Healthcare, Inc., 949 F. Supp. 2d 852, 860–61 (N.D. Ill.
2013). I accordingly toll the statute of limitations as requested.
V.
For the foregoing reasons, I grant plaintiff’s motion in part
as follows:
1. I conditionally certify a collective action by plaintiff and
similarly

situated

individuals

pursuant

to

29

U.S.C.

§ 216(b), and equitably toll the statute of limitations for
the claims of putative opt-in plaintiffs from the date that
plaintiff filed her motion for conditional certification
until the date notice is issued. The class is defined as: All
individuals who have worked as exotic dancers for the Gold
Room in Stone Park, Illinois, between three years prior to
the filing of the motion for conditional certification and
the entry of judgment in this case.
2. I approve plaintiff’s proposed notice, Dkt. No. 17-1, and the
requested 90-day opt-in period.
3. Within twenty-one days of this order, defendant Club shall
provide to plaintiff’s counsel in a computer-readable file
the

following

information

regarding

all

potential

class

members: full name; last known address(es) with city, state,
and

zip

address

code;
if

last

known

applicable);

email

address(es)

last

known

15

(non-company

mobile

telephone

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number(s);

beginning

date(s)

of

employment;

and

ending

date(s) of employment (if applicable).
4. Plaintiff is authorized to send the approved notice by firstclass U.S. Mail, email, and text message to all potential
members of the approved collective action to inform them of
their right to opt in to this lawsuit. Plaintiff may also
send a reminder notice halfway through the opt-in period.
Plaintiff may not send

any

notice to the

three

dancers

identified in the opinion above.

ENTER ORDER:

_____________________________
Elaine E. Bucklo
United States District Judge
Dated: August 1, 2022

16