Case 2:20-cv-00207-LEW Document 1 Filed 06/15/20 Page 1 of 9 PageID #: 1
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`CIVIL ACTION NO: _______________
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MAINE
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`CHAD HELMS,
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`on behalf of himself and all
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`others similarly situated,
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`Plaintiff,
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`v.
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`BIMBO BAKERIES USA, INC. and,
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`BIMBO FOODS BAKERIES
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`DISTRIBUTION, LLC
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`Defendants.
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`____________________________________)
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`CLASS ACTION AND INDIVIDUAL COMPLAINT
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`I.
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`INTRODUCTION
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`This is an action brought on behalf of individuals who are current and former delivery
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`drivers or “Distributors” of Defendants Bimbo Bakeries USA, Inc. and Bimbo Foods Bakeries
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`Distribution, LLC (together, “Bimbo” or “Defendants”) challenging the unlawful
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`misclassification of them as independent contractors instead of employees. Plaintiff asserts
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`claims on his own behalf and a class of all other Maine “Distributors” pursuant to Rule 23 for
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`violations of the Maine’s wage payment and deductions statute, 26 M.R.S.A. §629, and Maine’s
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`overtime statute, 26 M.R.S.A. §664. Plaintiff also asserts an individual claim for violations of the
`Federal Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201, et seq.
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`II.
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`PARTIES
`1.
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`Plaintiff Chad Helms1 is an adult resident of Minot, Maine. Since approximately
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`June 2013 to May 2020,2 Helms has delivered breads and baked goods on behalf of Defendants
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`in Maine. During the relevant time, he was Defendants’ employee as that term is defined under
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`Maine law and the FLSA.
`2.
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`Defendant Bimbo Bakeries USA, Inc. is a corporate entity with its headquarters in
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`Horsham, Pennsylvania. Defendant Bimbo Bakeries USA, Inc. conducts business through
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`distribution facilities across the United States.
`3.
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`Defendant Bimbo Foods Bakeries, LLC is corporate entity with its headquarters
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`in Horsham, Pennsylvania. It conducts business through distribution facilities across the United
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`States.
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`4.
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`Defendants are engaged in interstate commerce and employ individuals engaged
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`in interstate commerce and are therefore covered by the FLSA, and they are “employers” as that
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`term is defined under Maine’s statutes.
`III.
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`JURISDICTION AND VENUE
`5.
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`The Court has original jurisdiction over the FLSA claims asserted in this matter
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`pursuant to 29 U.S.C. § 216(b) and 28 U.S.C. § 1331.
`6.
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`The Court has supplemental jurisdiction over the state law claims pursuant to 28
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`1
`The named Plaintiff originally filed opt-in consent forms to participate in an FLSA
`collective action in the District of New Hampshire, Camp v. Bimbo Bakeries, et al., C.A. No.
`1:18-cv-00378-SM (D.N.H.). Upon Defendants’ Motion, Judge McAuliffe dismissed the opt-in
`plaintiffs who worked outside of New Hampshire, finding that there was no personal jurisdiction
`over Defendants in that forum for the claims of out-of-state plaintiffs. Plaintiff is therefore filing
`his claims here in Maine where he resides and works for Bimbo Bakeries, where a substantial
`part of the events giving rise to this action occurred, and where the Defendants are subject to
`personal jurisdiction.
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`2
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`Under Maine law, the relevant statute of limitations is six years. See 14 M.R.S.A. § 752.
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`U.S.C. § 1367.
`7.
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`The Court also has jurisdiction over this Action pursuant to 28 U.S.C. § 1332(a)
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`and (d) where the parties are citizens of different states and the amounts in controversy exceed
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`the statutory amounts.
`8.
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`Venue in this forum is proper pursuant to 28 U.S.C. §§ 1391(a) and (b), because a
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`substantial part of the events giving rise to this action occurred in this District and the Defendant
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`is subject to personal jurisdiction in this District.
`IV.
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`STATEMENT OF FACTS
`9.
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`The business of Defendants and their affiliates consists of delivering breads and
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`baked goods to grocery stores and other outlets across the United States under the brand names
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`Sara Lee, Nature’s Harvest, and others.
`10.
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`Defendants pay workers including Plaintiff to deliver and distribute these breads and
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`baked goods within specific geographic regions unilaterally determined by Defendants and these
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`areas are referred to as “routes” or “territories.”
`11.
`12.
`13.
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`Defendants refer to these individuals as “Distributors” or “IBPs.”
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`Plaintiff worked for Defendants in Maine.
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`The duties of Plaintiff and other Distributors entail, at least in part, driving
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`vehicles weighing less than 10,000 pounds because, for example, Plaintiff and others often visit
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`stores in their personal vehicles to drop off small orders of products and to arrange displays.
`14.
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`On a typical week, Distributors such as the named Plaintiff work at least forty
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`hours per week delivering the baked goods for Defendants. This work mainly consists of driving
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`vehicles to stores within a territory designated by Bimbo, delivering Bimbo’s products to these
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`stores, and arranging the products on the shelves according to Bimbo’s display standards.
`15.
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`Plaintiff Helms generally worked approximately 45 to 50 hours per week and has
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`sometimes worked 60 to 65 hours per week for Defendants.
`16.
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`Defendants treat Plaintiff and other IBPs as independent contractors, claiming that
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`they are not entitled to the protections of state and federal employment laws.
`17.
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`Nevertheless, the work of Plaintiff and other IBPs is part of Defendants regular
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`business and their work is integral to Defendants’ baked goods distribution business, and
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`Defendants also directly employ delivery drivers who perform the same work for Defendants but
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`who are treated as W2 employees.
`18.
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`In order to work for Defendants, Plaintiff and other IBPs were required to pay a
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`substantial sum of money to purchase purported “Distribution Rights”. Most IBPs finance these
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`purchases through loans facilitated by Defendants (often via Advantafirst Capital Financial
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`Services, LLC, which is a wholly-owned subsidiary of Defendants’ parent company).
`19.
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`Plaintiff and other IBPs are not engaged in independent businesses or distinct
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`callings. Rather, Plaintiff and IBPs generally work exclusively for Defendants and (where
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`applicable) their associated corporate entities generally exist for the sole purpose of working for
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`Defendants. In fact, Plaintiff and other IBPs are prohibited from performing any similar delivery
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`work for another company.
`20.
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`Defendants exercise virtually unlimited control over Plaintiff’s and IBP’s work,
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`dictating all prices, requiring Plaintiff and IBPs to deliver to stores that are not profitable,
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`employing supervisors who travel to stores in Plaintiff’ territories to review their work, and
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`threatening to terminate Plaintiff and IBPs whose work does not satisfy Defendants’ standards.
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`On May 21, 2020, Defendants unilaterally terminated its working relationship with Plaintiff
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`Helms due to alleged unsatisfactory work.
`21.
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`Defendants unilaterally determine the “price” that its customers (i.e., the grocery
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`stores) must pay Defendants for the products that IBPs are required to deliver to Defendants’
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`customers.
`22.
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`Defendants then pay Plaintiff and other IBPs compensation for their distribution
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`services each week, in an amount roughly equal to the difference between the amount of money
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`that Defendants’ customers pay for products and the amount of money that Defendants purport to
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`“charge” Distributors for Defendants’ products.
`23.
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`Indeed, Defendants have directly paid weekly compensation to Plaintiff and other
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`IBPs pursuant to the arrangement described above during the relevant statutory period as direct
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`compensation for their delivery services.
`24.
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`Plaintiff and other IBP’s routinely work more than forty hours per week, and they
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`are not paid any “time-and-a-half” overtime premium for their hours worked over forty.
`25.
`Each week, Defendants also make deductions from the earnings of Plaintiff and
`other IBPs. These deductions are itemized on weekly “settlement sheets” and include, inter alia,
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`deductions for route loan repayments, use of Defendants’ electronic equipment, lost or stolen
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`product that is never purchased at retail locations, insurance coverage that benefits Defendants,
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`supplies, truck lease payments, penalties for returning too much stale product to Defendants, and
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`other fines and penalties.
`26.
`In addition, Plaintiff and other IBPs regularly incur work-related expenses for,
`inter alia, gas, vehicle maintenance/repair, and insurance. Defendants do not reimburse Plaintiff
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`and other IBPs for such expenses, which are directly related to the work Plaintiff and other IBPs
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`perform for Defendants.
`27.
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`Defendants’ misclassification of its delivery drivers as independent contractors
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`and the additional violations of Maine law described above were willful and undertaken in bad
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`faith because, among other reasons, delivery drivers who provide identical services as Plaintiff
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`have been held to be employees of Defendants. See Matter of Cowan, 159 A.3d 1312 (N.Y. App.
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`Div. 2018) (holding that Bimbo Bakeries “exercised sufficient supervision, direction and control
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`over [IBP] to establish an employer-employee relationship under common-law principles.”).
`V.
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`CLASS ACTION ALLEGATIONS
`28.
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`Plaintiff brings this action under Federal Rule of Civil Procedure 23 on behalf of
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`the following proposed class:
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`All individuals who, either individually or through a corporate entity,
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`personally deliver or have delivered Defendants’ products as a Distributor or
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`IBP during the relevant statutory period from a warehouse location in Maine,
`excluding only those who have filed arbitration demands asserting Maine wage
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`claims prior to the filing of this complaint.
`29.
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`Upon information and belief, there are more than forty members of the class. The
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`members of each class are so numerous that joinder of all of them is impracticable, and treatment
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`of a class action is the superior method to adjudicate the class members’ claims.
`30.
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`There are issues of law and fact common to all class members because
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`Defendants have misclassified them as independent contractors rather than as employees and
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`have unlawfully deprived them of the wages and overtime pay to which employees are entitled.
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`These questions of law and fact predominate over any questions affecting only individual class
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`members.
`31.
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`class.
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`Plaintiff and class counsel will fairly and adequately represent the interests of the
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`COUNT I
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`(Overtime under 26 M.R.S.A. §664 on behalf of the Class)
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`32.
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`Under the Maine Minimum Wage and Overtime Law, 26 M.R.S.A. §664(3)(H),
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`Plaintiff Helms and the members of the Maine Class are employees of Defendants and, therefore,
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`are entitled to overtime. As set forth above, Defendants did not pay them any overtime premium
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`for hours worked over forty. Pursuant to 26 M.R.S.A. §670, the Plaintiff and Maine Class
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`members are entitled to the amount of overtime which is owed to them and which is unpaid in
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`addition to an amount equal to such overtime due as liquidated damages plus the cost of suit and
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`reasonable attorneys’ fees.
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`COUNT II
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`(Unlawful Deductions under 26 M.R.S.A. §629 on behalf of the Class)
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`33.
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`As stated above, Plaintiff Helms and the members of the class were required to
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`incur certain wage deductions and expenses related to their work for Defendants, all of which
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`benefitted Defendants. Specifically, in their weekly “settlement, statement” or paycheck, the
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`Defendants deduct certain expenses as a condition of the Plaintiffs being able to retain and
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`secure their work with Defendants, including deductions for route loan repayments, use of
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`Defendants’ electronic equipment, lost or stolen product that is never purchased at retail
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`locations, insurance coverage that benefits Defendants, supplies, truck lease payments, penalties
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`for returning too much stale product to Defendants, and other similar deductions. These
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`deductions are in violation of 26 M.R.S.A. § 629. In addition, Defendants passed along certain
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`work-related expenses to Plaintiff Helms and the Maine Class members without reimbursement,
`including, inter alia, gas, vehicle maintenance/repair, and insurance, also in violation of 26
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`M.R.S.A. § 629.
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`COUNT III
`(Individual FLSA Claim)
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`34.
`The FLSA requires that employees receive overtime premium compensation
`calculated at 150% of their regular pay rate for all hours worked over 40 per week. See 29
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`U.S.C. § 207(a)(1). Defendants are employers required to comply with the FLSA’s overtime pay
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`mandate, and Plaintiff is an employee entitled to the mandate’s protections.
`35.
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`Defendants violated the FLSA by failing to pay Plaintiff overtime premium
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`compensation for hours worked over 40 per week.
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff asks this honorable Court to enter the following relief:
`A.
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`An Order certifying the class defined herein comprised of similarly situated
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`individuals pursuant to Fed. R. Civ. P. 23;
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`B.
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`C.
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`D.
`E.
`F.
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`An award of damages for all unpaid wages, expenditures, costs, deductions,
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`benefits, or other losses resulting from Defendants’ misclassification, as described
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`above (on a class basis under State law and individually under the FLSA);
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`Restitution of the payments made by Plaintiff and class members in order to
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`purchase their routes, and all other business expenses born by Plaintiff and class
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`members on behalf of Defendants, in an amount sufficient to make them whole;
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`Statutory liquidated damages, pursuant to applicable state and federal law;
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`Attorneys’ fees and costs; and
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`Such other legal and equitable relief as the Court deems just and proper.
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`Case 2:20-cv-00207-LEW Document 1 Filed 06/15/20 Page 9 of 9 PageID #: 9
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`Dated: June 11, 2020
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`Respectfully submitted,
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`CHAD HELMS on behalf of himself and all others
`similarly situated
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`By his attorneys,
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`_/s/ Benjamin I. Grant____________________
`Benjamin I. Grant (Bar No. 3355)
`Kaplan & Grant
`136 Commercial Street, Suite 302
`Portland, Maine 04101
`(207) 780-6700
`bgrant@kaplanandgrant.com
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`AND
`Harold L. Lichten (pro hac vice admission
`anticipated)
`Matthew W. Thomson (pro hac vice admission
`anticipated)
`Zachary L. Rubin (pro hac vice admission
`anticipated)
`LICHTEN & LISS-RIORDAN, P.C.
`729 Boylston St. Suite 2000
`Boston, MA 02116
`(617) 994-5800
`Fax (617) 994-5801
`hlichten@llrlaw.com
`mthomson@llrlaw.com
`zrubin@llrlaw.com
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