Superior Court of Massachusetts, Suffolk, Business Litigation Session
Kanika MISRA et al., Individually and on Behalf of All Others Similarly Situated
CREDICO (USA), LLC et al.
MEMORANDUM AND ORDER ON CREDICOâS PARTIAL MOTION TO
Kenneth W. Salinger, Justice of the Superior Court
Plaintiffs allege that Credico (USA), LLC, DFW Consultants,
Inc., and Jason Ward operated as their joint employers.
Plaintiffs claim that Defendants violated Massachusetts law
by misclassifying employees as independent contractors and by
failing to make minimum wage and overtime payments that were
required by law.
action was originally brought by Kanika Misra and Craig
Levine, on behalf of themselves and others who worked for
Defendants in Massachusetts.
moved to dismiss all claims against it on the ground that Ms.
Misra and Mr. Levine had opted into a prior federal lawsuit
in New York, joining in a collective action asserting similar
claims against Credico under the federal Fair Labor Standards
Act (the "FLSA"). Credico argues that Misra and
Levine could have asserted claims against it under
Massachusetts law in the prior action, final judgment in
Credicoâs favor has now been entered in that case, and this
action is therefore barred by the doctrine of res judicata or
then filed amended complaints adding four other named
plaintiffs. Juan Melo, Jaqueline Sill, and Lee Tremblay never
opted into the prior FLSA collective action. Mr. Jacksonâs
attempt to opt-in was rejected as untimely.
Court will treat the motion to dismiss as directed only at
the claims asserted against Credico by Ms. Misra and Mr.
Levine, as the parties agreed during oral argument.
Court will ALLOW the motion to the extent that it seeks
dismissal of the claims by Misra and Levin. Those claims are
barred by the doctrine of claim preclusion because they could
have been asserted in the prior FLSA lawsuit, it is not clear
that the federal court would have declined to exercise
supplemental jurisdiction over those claims, and final
judgment has now entered in that prior case. The Court
will deny the motion to dismiss with respect to the claims
asserted by Mr. Melo Mr. Jackson, Ms. Sill, or Mr. Tremblay,
on behalf of themselves and other putative class members who
did not opt into the prior action.
Prior Federal Action
2015, four individuals sued Credico and Comex, Inc., in
federal court in Illinois. That lawsuit was transferred on
plaintiffsâ motion to the Southern District of New York,
where it was docketed as Vasto v. Credico (USA) LLC,
Vasto plaintiffs alleged that Credico and Comex
operated as joint employers and misclassified workers as
independent contractors. They brought a putative FLSA
collective action, under 29 U.S.C. § 216(b), claiming
that Credico and Comex violated the FLSA by not paying
required minimum wages and overtime. They also brought
putative class actions, under Fed.R.Civ.P. 23, claiming that
Credico and Comex violated similar requirements under New
York and Arizona law.
2016, the federal court conditionally certified Vasto as an
FLSA collective action. Notice of the action was sent to
everyone who had done face-to-face marketing work for any
subcontractor of Credico in the United States, within the
past three years, while classified as independent
contractors. The notice informed those workers of their right
to opt to participate in the Vasto case as a
court then approved the form of a notice to be sent to all
such workers, informing them of their right to file a form
opting in to the Vasto collective action. The
federal judge ordered that any further amendments to the
complaint by the then-existing plaintiffs be filed by July
10, 2016, and that any additional plaintiff wishing to opt-in
to the FLSA collective action had to do so by August 15,
represent that more than 1, 700 individuals from 36 different
states filed consents requesting to opt-in to the
Vasto collective action under the FLSA.
and Levine opted to join in the FLSA collective action in the
Vasto case. They both signed forms stating that they
"consent and agree to become a âparty-plaintiffâ
in" that case, understand that the lawsuit is brought
under the FLSA, and "consent, agree, and opt in to
become a plaintiff ...