This is an interesting and rather unique situation. Two lawyers who represent a putative class of workers who filed a class action under the Fair Labor Standards Act now want to withdraw from the case. They assert that they have had no contact with their clients, the named plaintiffs, for many weeks. The workers are suing a cannabis company and they allege the employer did not pay them for so-called donning and duffing time. The case is entitled Dutcher et al. v. Cresco Labs Inc. et al. and was filed in federal court in the Northern District of Illinois.
The lawyers told the Judge that withdrawing was their “only alternative” as they have tried to contact their clients in many different manners (e.g. phone, text, email). Their clients also must comply with certain discovery demands and the lawyers are also unable to do that because of the lack of communication. The lawyer stated that “we feel at this point it’s impossible to prosecute this case on their behalf when they’re clearly not interested in participating in this litigation any longer.”
The Company had filed a motion to dismiss the breach of contract claim which was to be argued but that was postponed. The Judge noted that whether there was a valid contract “was going to be a very interesting matter, but it will have to wait for another case.” The Judge admonished the plaintiffs, asserting that he will direct them to explain why their entire suit should not be dismissed based on their failure to respond to discovery.
The suit was a traditional donning-and-duffing case, with workers claiming pay for the preliminary activity of changing into protective clothing before their shifts started, as well as a “mandatory on-site pre-shift health screening procedure.” They also claimed they did not get lunch time because of the time it took to change out of and then back into their gear. The Company claimed that a class certification was completely inappropriate because the Court would be required to apply different state laws to class members, who work in nine States where the Company maintains facilities. The workers want to represent a nationwide class and a separate class of Massachusetts based workers.
Maybe these lawyers got too far out in front of their own case. Maybe they should have made sure that their so-called representative plaintiffs, i.e. the named plaintiffs, were ready to see the thing through and, at a minimum, cooperate with them and the judicial process by complying with basic discovery demands. Maybe now, the entire case goes down.