How Many Peopel Can Sue Toby Keith's Bar and Grill?

class action_Toby KeithThe 2015 Major League Baseball All-Star Game festivities in and around Great American Ball Park in Cincinnati were a mix of success and failure. Home-town favorite Todd Frazier won the Home Run Derby, the commissioner allowed Reds legend Pete Rose to participate in ceremonies, and numerous events entertained fans for five consecutive days.[1] However, the game itself drew a record-low television rating,[2] and the festivities did not keep the neighborhood's "Toby Keith's I Love This Bar & Grill" restaurant (located next door to the ball park) from going out of business. In fact, the restaurant's owners now face a class action lawsuit alleging a host of claims, including breach of contract, fraud, and violations of the Fair Labor Standards Act ("FLSA") and the Worker Adjustment and Retraining Notification Act ("WARN Act"). Turecky v. Boomtown Entm't, LLC, No. 1:15-cv-527, U.S.D.C., Southern District of Ohio (Aug. 12, 2015) ("Complaint" or "Compl.").

Restaurant employee Stephanie Turecky ("Ms. Turecky"), the lawsuit's named plaintiff, worked as a bartender at Toby Keith's before and during the All-Star Game festivities. Id., ¶ 12. She alleges:

1.     The defendants "had been notified that they were in default of their lease prior to the beginning of the All-Star Week ... and more than 60 days prior to the closing of the Cincinnati Toby Keith's restaurant, but intended to maximize their income from the large crowds associated with the All-Star Week before closing down." Id., ¶ 22.

2.     "[O]n or about July 7, 2015, [the defendants] conspired to release or post a work schedule for Plaintiff and the other similarly situated employees for the period including the All-Star Week, despite knowing that they would be closing" immediately after the All-Star Week. Id., ¶ 23.

3.     The "restaurant abruptly closed its doors on July 16, 2015, two days after" the All-Star game; the defendants "gave no prior notice of the closure to restaurant employees." Id., ¶ 4.

4.     The defendants "issued Plaintiff and other similarly situated employees paychecks for their final pay period," but those checks cannot be cashed because there is no money in the account (which defendants knew when they issued the paychecks). Id., ¶¶ 25-26.

The lawsuit seeks class certification, but it may have an uphill battle to meet the requirements. The first hurdle for Ms. Turecky will be the "numerosity" prerequisite. Fed. R. Civ. P. 23(a)(1). Specifically, she is required "to demonstrate affirmatively" that "the class is so numerous that joinder of all members is impracticable." Id.; Turnage v. Norfold S. Corp., 307 Fed. Appx. 918, 921 (6th Cir. 2009) (plaintiffs failed to demonstrate that the number of people in the class was sufficiently numerous to make joinder impracticable). "While large numbers [of plaintiffs] may, in many cases, indicate impracticability of joinder, numbers are not a perfect predictor." Turnage, 307 Fed. Appx. at 921. "[W]hen class size reaches substantial proportions…the impracticability requirement is usually satisfied by the numbers alone." Id. (internal citation and quotation omitted).[1] However, "[r]ather than naming a specific number, Rule 23 places the size of the class in the context of actual impracticability of joinder." Id. "[T]here is no strict numerical test for determining impracticability of joinder." Id., quoting In re American Medical Systems, Inc., 75 F.3d 1069, 1079 (6th Cir. 1996).

Ms. Turecky's Complaint contains only a few allegations concerning impracticability of joinder. She alleges that "[a]lthough the precise number of the Class members is unknown to Plaintiff, upon information and belief the number is at least 50, such that joinder is impractical." Compl., ¶ 36. She also states that "the names and addresses of the persons who are Class members are available from Defendants." Id., ¶ 48.

Although Turnage  involved a different factual situation (a private nuisance caused by a train derailment and subsequent chemical spill), the Sixth Circuit's reasoning for concluding that the numerosity criterion was not met shows that Ms. Turecky may have a difficult time showing impracticality of joinder. "When considering whether joinder would be practicable in a given case, courts may consider ease of identifying members and determining addresses, ease of service on members if joined, and geographical dispersion among other things." Turnage, 307 Fed. Appx. at 921 (internal quotation and citation omitted). The Court also stated that "[r]egardless of the actual number of plaintiffs in this case, their proximity to each other and the discrete and obvious nature of the harm make identifying and contacting them relatively easy." Id. The same appears to be true with Ms. Turecky's case. In addition to a relatively low number of potential plaintiffs ("at least 50"), presumably they all live in close proximity to the restaurant, can be easily identified and contacted by using the work schedule (or other employment records), and suffered discrete and obvious harm.

While it is possible that Ms. Turecky's class will be certified, the party seeking class certification bears the burden of proof, and impracticability of joinder must be "positively shown" and not speculative. In re American Medical Systems, 75 F.3d at 1079; Turnage, 307 Fed. Appx. at 921; Whitlock, 2012 U.S. Dist. LEXIS 112859 at *2, 7 (certifying class of "at least 424" employees in unpaid wage claim). Yet, even if the case is not certified, the attention that it has received in the local media serves as a reminder to businesses that face impending closure to (1) provide employees with any requisite notice, and (2) pay employees before closing bank accounts.


[1] See


[3] Accord: Whitlock v. FSL Mgmt., LLC, No. 3:10CV-00562-JHM, 2012 U.S. Dist. LEXIS 112859, *7 (W.D. Ky. Aug. 10, 2012) ("The 'sheer number of potential litigants in a class, especially if it is more than several hundred, can be the only factor needed to satisfy Rule 23(a)(1)") (emphasis added), quoting Bacon v. Honda of Am. Mfg., Inc., 370 F.3d 565, 570 (6th Cir. 2004).


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Michael Mayer |