Case 4:20-cv-40065-TSH Document 1 Filed 06/04/20 Page 1 of 8
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`IN THE UNITED STATES DISTRICT COURT
`DISTRICT OF MASSACHUSETTS
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`CIVIL ACTION NO: 4:20-CV-40065
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`____________________________________
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`ANDRE ROBERTS,
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`on behalf of himself and all
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`others similarly situated,
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`)
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`Plaintiff,
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`)
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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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`)
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`Defendants.
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`)
`____________________________________)
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`CLASS AND INDIVIDUAL ACTION COMPLAINT
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`
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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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`violations of the Massachusetts Wage Act (“MWA”), Mass. Gen. Laws ch. 149, §§ 148, et seq.
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`on a class basis and individual claims under the federal Fair Labor Standards Act (“FLSA”).1
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`1
`Plaintiff was recently dismissed from a Fair Labor Standards Act (“FLSA”) collective
`action styled Camp v. Bimbo Bakeries USA, Inc., 1:18-cv-00378, after the New Hampshire
`District Court determined that Bristol-Myers Squibb Co. v. Superior Court of California, __ U.S.
`__, 137 S. Ct. 1773, 198 L. Ed. 395 (2017), prevented it from exercising personal jurisdiction
`over Defendants with respect to the FLSA claims of individuals (such as Plaintiff) who did not
`work in New Hampshire. See Camp, 2020 U.S. Dist. LEXIS 60997 (D.N.H. Apr. 7, 2020).
`Plaintiff’s FLSA claims are tolled as of the date he opted-in to Camp (i.e., September 3, 2019).
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`1
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`
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`IN THE UNITED STATES DISTRICT COURT
`DISTRICT OF MASSACHUSETTS
`
`CIVIL ACTION NO: 4:20-CV-40065
`
`
`
`
`____________________________________
`
`
`
`
`
`
`)
`ANDRE ROBERTS,
`
`
`)
`on behalf of himself and all
`
`
`)
`others similarly situated,
`
`
`)
`
`
`
`
`
`
`)
`
`Plaintiff,
`
`
`
`)
`
`
`
`
`
`
`)
`
`v.
`
`
`
`
`)
`
`
`
`
`
`
`)
`BIMBO BAKERIES USA, INC. and,
`)
`BIMBO FOODS BAKERIES
`
`)
`DISTRIBUTION, LLC
`
`
`)
`
`Defendants.
`
`
`
`)
`____________________________________)
`
`
`
`CLASS AND INDIVIDUAL ACTION COMPLAINT
`
`
`
`INTRODUCTION
`
`This is an action brought on behalf of individuals who are current and former delivery
`
`drivers or “Distributors” of Defendants Bimbo Bakeries USA, Inc. and Bimbo Foods Bakeries
`
`Distribution, LLC (together, “Bimbo” or “Defendants”) challenging the unlawful
`
`misclassification of them as independent contractors instead of employees. Plaintiff asserts
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`violations of the Massachusetts Wage Act (“MWA”), Mass. Gen. Laws ch. 149, §§ 148, et seq.
`
`on a class basis and individual claims under the federal Fair Labor Standards Act (“FLSA”).1
`
`
`1
`Plaintiff was recently dismissed from a Fair Labor Standards Act (“FLSA”) collective
`action styled Camp v. Bimbo Bakeries USA, Inc., 1:18-cv-00378, after the New Hampshire
`District Court determined that Bristol-Myers Squibb Co. v. Superior Court of California, __ U.S.
`__, 137 S. Ct. 1773, 198 L. Ed. 395 (2017), prevented it from exercising personal jurisdiction
`over Defendants with respect to the FLSA claims of individuals (such as Plaintiff) who did not
`work in New Hampshire. See Camp, 2020 U.S. Dist. LEXIS 60997 (D.N.H. Apr. 7, 2020).
`Plaintiff’s FLSA claims are tolled as of the date he opted-in to Camp (i.e., September 3, 2019).
`
`1
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`Case 4:20-cv-40065-TSH Document 1 Filed 06/04/20 Page 2 of 8
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`PARTIES
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`1.
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`Plaintiff Andre Roberts is an adult resident of Worcester, Massachusetts. From
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`approximately March 2012 through 2019, Roberts delivered breads and baked goods on behalf of
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`Defendants in Massachusetts. During the relevant time, he was Defendants’ employee as that
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`term is defined under Massachusetts law and the FLSA.
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`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.
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`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 the respective laws of Massachusetts.
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`JURISDICTION AND VENUE
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`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.
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`6.
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`The Court has supplemental jurisdiction over the state law claims pursuant to 28
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`U.S.C. § 1367.
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`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 limits.
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`2
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`Case 4:20-cv-40065-TSH Document 1 Filed 06/04/20 Page 3 of 8
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`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
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`Defendants are subject to personal jurisdiction in this District.
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`FACTS
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`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.
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`10.
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`Defendants pay workers to deliver and distribute these breads and baked goods
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`within specific geographic regions unilaterally determined by Defendants and these areas are
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`referred to as “routes” or “territories.”
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`11.
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`Defendants now require most workers to form corporations as a condition of
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`working for Defendants. Defendants refer to these individuals as “IBPs.”
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`12.
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`13.
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`Plaintiff worked for Defendants in Massachusetts.
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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.
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`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.
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`15.
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`Plaintiff Roberts estimates having worked approximately 60 hours per week
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`during his tenure working for Defendants.
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`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.
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`3
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`Case 4:20-cv-40065-TSH Document 1 Filed 06/04/20 Page 4 of 8
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`17.
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`Nevertheless, the work of Plaintiff and other IBPs falls squarely within
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`Defendants’ usual course of business and their work is integral to Defendants’ baked goods
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`distribution business, and Defendants also directly employ delivery drivers who perform the
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`same work for Defendants but who are treated as W2 employees.
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`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 a wholly-owned subsidiary of Defendants’ parent company).
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`19.
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`Plaintiff and other IBPs are not engaged in independent businesses. Rather,
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`Plaintiff and IBPs generally work exclusively for Defendants and (where applicable) their
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`associated corporate entities generally exist for the sole purpose of working for Defendants. In
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`fact, Plaintiff and other IBPs are prohibited from performing any similar delivery work for
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`another company.
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`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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`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.
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`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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`4
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`Case 4:20-cv-40065-TSH Document 1 Filed 06/04/20 Page 5 of 8
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`“charge” IBPs for Defendants’ products.
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`23.
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`Indeed, Defendants have directly paid compensation to Plaintiff and other IBPs
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`pursuant to the arrangement described above during the relevant statutory period up until the
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`present as direct compensation for their delivery services.
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`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.
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`25.
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`Each week, Defendants also make deductions from the earnings of Plaintiff and
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`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.
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`26.
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`In addition, Plaintiff and other IBOs regularly incur work-related expenses for,
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`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.
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`27.
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`Though Plaintiff regularly work more than forty hours per week, Defendants do not
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`provide any overtime premium for those hours worked over forty each week.
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`28.
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`Defendants’ misclassification of its delivery drivers as independent contractors
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`and the additional violations Massachusetts law described above were willful and undertaken in
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`bad faith because, among other reasons, delivery drivers who provide identical services as
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`Plaintiff have been held to be employees of Defendants. See Matter of Cowan, 159 A.3d 1312
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`(N.Y. App. Div. 2018) (holding that Bimbo Bakeries “exercised sufficient supervision, direction
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`5
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`Case 4:20-cv-40065-TSH Document 1 Filed 06/04/20 Page 6 of 8
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`and control over [IBP] to establish an employer-employee relationship under common-law
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`principles.).
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`CLASS AND COLLECTIVE ACTION ALLEGATIONS
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`29.
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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, personally deliver
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`or have delivered Defendants’ products as a Distributor or IBP during the relevant
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`statutory period in Massachusetts, excluding only those who have filed arbitration
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`demands asserting Massachusetts Wage Act claims prior to the filing of this complaint.
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`30.
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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.
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`31.
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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 wage treatment and benefits accorded employees. These
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`questions of law and fact predominate over any questions affecting only individual class
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`members.
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`32.
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`Plaintiff and class counsel will fairly and adequately represent the interests of the
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`class.
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`COUNT I
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`(INDIVIDUAL CLAIM AND CLASS CLAIM)
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`33.
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`The actions described above are in violation Massachusetts Wage Laws.
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`Defendants have committed a violation of M.G.L. c. 149, § 148 for failure to pay all wages,
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`including taking unauthorized deductions from the Plaintiff Roberts’ and the Class’ pay, and
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`6
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`Case 4:20-cv-40065-TSH Document 1 Filed 06/04/20 Page 7 of 8
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`unlawfully requiring Plaintiff to bear Defendants’ business expenses, and a violation of M.G.L. c.
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`151, § 1A for failing to pay the Plaintiff at the required overtime rate.
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`COUNT II
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`(INDIVIDUAL FLSA CLAIMS)
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`34.
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`The FLSA requires that employees receive overtime premium compensation
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`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.
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`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:
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`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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`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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`C.
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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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`D.
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`E.
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`F.
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`7
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`Case 4:20-cv-40065-TSH Document 1 Filed 06/04/20 Page 8 of 8
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`Dated: June 4, 2020
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`Respectfully submitted,
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`ANDRE ROBERTS on behalf of himself and all
`others similarly situated
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`By his attorneys,
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`/s/ Harold Lichten_____
`Harold L. Lichten (BBO #549689)
`Matthew W. Thomson (BBO #682745)
`Zachary L. Rubin (BBO # 704485)
`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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`8
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