CLASS ACTION

We’ve all received those notices in the mail telling us that if we fill out a form, we are entitled to a free coupon to our favorite store. If you’ve taken the time to read deeper, you may also have noticed that, while you got a coupon for a free car wash, the law firm handling the case made millions of dollars representing hundreds of thousands of clients. These types of situations have understandably put a bad taste in people’s mouths when it comes to class actions. What you may not have heard about is that, in many cases, you and others like you, may be entitled to fair and full compensation in a class action. At Hollingshead & Dudley, we aren’t interested in taking class actions where our clients are only going to receive a coupon for a free pizza. We are only interested in cases where we believe the entire class can truly benefit from each other.

What Types of Class Actions Does Hollingshead & Dudley Take?

Although there are literally thousands of potential types of class actions under state and federal law, there are several types that our firm most frequently sees.

OVERTIME AND MINIMUM WAGE CLASS ACTIONS
Under federal and Missouri law, employers are required to pay employees minimum wage. The law also requires employers to pay most employees overtime for working more than 40 hours per week. The federal law governing overtime and minimum wages is the Fair Labor Standards act “FLSA.” Although most of us have grown up believing that if you are “salaried,” you aren’t entitled to overtime pay, federal and Missouri law disagree. Unless you are considered an “exempt” employee under the law, your employer must pay you both minimum wage and at least time and a half for each hour worked over 40 hours per week.

There are many different types of overtime and minimum wage class actions. Most commonly, however, our firm represent clients who have been misclassified (either as an independent contractor or an exempt employee) or who have worked hours for training or on breaks/lunch and haven’t been compensated. There are two common types of “misclassified” workers.

The first are workers who are being paid as independent contractors, but who should actually be classified as employees. Companies always prefer to classify workers as independent contractors for tax reasons and because the company can avoid paying independent contractors minimum wage or overtime. From a tax standpoint, companies are not required to pay the company’s normal portion of taxes (i.e. unemployment, social security, etc.) for compensation paid to independent contractors. Thus, the company saves money. Under the law, however, the primary question is “how much control over a worker does the company have?” If a company is telling a worker when to come to work, providing the equipment, overseeing the workers’ job performance, etc., then the worker can normally not be classified as an independent contractor. On the other hand, if the worker more or less chooses his or her hours, uses his or her own equipment, and is paid per job (as opposed to per hour), the worker can usually be declared an independent contractor. For example, if a company hires a person to paint a building, and the painter is being paid a flat fee for painting the building, the worker could properly be classified as an independent contractor. On the other hand, if a company hired a painter on a full-time basis to paint other people’s houses, and the company provided the painting supplies, told the painters when to work, and paid the workers by the hour, the worker would almost certainly be an “employee” under the law.

The second type of misclassification occurs when a company labels a worker as “exempt” under the FLSA, but the worker should really have been classified as “non-exempt” and thus subject to minimum wage and overtime pay. Just as you may have believed that “salaried” workers are exempt from being paid overtime, many companies also incorrectly believe the same thing. While the law is quite complex, if you believe you believe your company has misclassified you, and you should be entitled to overtime, contact Hollingshead & Dudley today for a free consultation.

MISSOURI MERCHANDISING PRACTICES ACT CASES
The Missouri Merchandising Practices Act (known as the “MMPA”) is a powerful Missouri law which prohibits businesses from misleading consumers in the sale of merchandise, real estate, and services. Under the law, companies are prohibited from engaging in false advertising or, in any manner, misleading a consumer. Common examples of MMPA violations include rolling back odometers on vehicles, lying about prior issues with a car or home, falsely claiming that a product is capable of doing certain things that it is not capable of, etc. If you believe that you have been mislead in the purchase of a product or home, please contact Hollingshead & Dudley today for a free consultation.

FAIR DEBT COLLECTION PRACTICES ACT CASES
The Fair Debt Collections Practices Act (known as the “FDCPA”) is a federal law that prevents debt collectors (such as law firms and collection agencies) from using unfair practices in attempting to collect a debt. We all know that debt collectors can be aggressive. However, the FDCPA was designed to put limits on how far a debt collector can go to collect a debt. As examples, the FCPA prohibits debt collectors from:

  • Communicating at an unusual time or place that he or she knows would be inconvenient to the consumer (the person who allegedly owes the debt). The debt collector must assume that it is inconvenient for a consumer to be contacted after 8 p.m. and before 9 a.m. based on the time at the consumer’s location;
  • Contacting a consumer who the debt collector knows to be represented by an attorney;
  • Contacting the consumer’s place of employment if the debt collector has reason to believe the consumer’s employer prohibits the consumer from receiving calls at work;
  • Contacting anybody (without the consumer’s express permission), other than the consumer, his or her attorney, the original creditor, or a consumer reporting agency (such as Experian, Transunion, or Equifax);
  • Continuing to contact the consumer after the consumer has provided the debt collector with written notice that the consumer is refusing to pay the debt or that the consumer no longer wishes to be contacted;
  • Harassing, oppressing, or abusing a consumer. The FDCPA gives some examples of what would constitute harassment, oppression, or abuse such as:
  • Threatening violence or other criminal means to hurt the consumer’s reputation or property;
  • Using obscene or profane language;
  • Publishing a list of consumers who allegedly owe debts;
  • Causing a telephone to ring or engaging any person in telephone calls repeatedly or continuously with intent to annoy, abuse, or harass any person at the number called; and
  • Making a telephone call without disclosing that the caller is a debt collector.

Using any false, deceptive, or misleading representation as a means of collecting a debt. The FDCPA gives some examples of what constitutes false, deceptive, or misleading representation, such as:

  • Falsely stating or implying that the debt collector is working on behalf of the government;
  • Falsely representing the amount or legal status of the debt. Here, debt collectors will commonly threaten to file a lawsuit against a debtor, even though the statute of limitations has expired;
  • Falsely claiming to be an attorney or associated with a law firm (unless the debt collector actually is an attorney or calling from a law firm);
    Falsely claiming that failing to pay the debt will result in imprisonment. You need to be aware that, with certain exceptions such as tax debts and child support, it is unconstitutional to imprison a person for failing to pay a debt. Thus, any claim to the contrary is false and a violation of the FDCPA;
  • Threatening to take any action that cannot be legally taken or that the debt collector does not, in fact, intent to take;
  • Inferring that the consumer has committed a crime by failing to pay a debt;
  • Communicating or threatening to communicate the consumer’s unpaid debt to a third party. Debt collectors will sometimes threaten to tell the consumer’s spouse, ex-spouse, or employer about a debt. Under the FDCPA, this type of threat is unlawful;
  • Failing to disclose to the consumer (on the first attempt to collect a debt) that the debt collector is attempting to collect a debt;
  • Falsely claiming that any document provided to a consumer is a legal document such as a lawsuit, garnishment, or lien; and
  • Falsely claiming to be associated with a consumer reporting agency.

Using “unfair practices” in an attempt to collect a debt. The FDCPA gives some examples of what constitutes “unfair practices,” such as:

  • Attempting to collect an amount that is not authorized by the agreement creating the debt. Commonly, debt collectors will attempt to collect interest, attorney’s fees, collection costs, etc. Unless the underlying agreement authorizes the collection of these types of fees, it is unlawful for the debt collector to attempt to collect them from the consumer;
  • Coercing a consumer into writing a post-dated check and then subsequently threatening the consumer with criminal prosecution for “writing a bad check”;
  • Causing charges to be accrued by the consumer such as by making collect calls or sending telegrams;
  • Communicating with a consumer about a debt by post card; and
  • Using any language or symbol, other than the debt collector’s address, on any envelope communicating with a consumer. Many debt collectors, in an attempt to embarrass a consumer and coerce the consumer into paying the debt, will include language on the envelope such as “ATTEMPT TO COLLECT A DEBT.” Doing so is illegal under the FDCPA. Similarly, if the collection agency’s name indicates that it is a collection agency (i.e. “ABC Collection Agency”), it may not include its name on the envelope. However, if the collection agency’s name does not indicate that it is a collection agency, it may include its name (i.e. “ABC Corporation”).

In addition to the requirements listed above, the FDCPA also has very specific requirements on the validation of any debt that a debt collector is attempting to collect. For example, within five days of the debt collector’s initial communication with a consumer, the debt collector (unless the initial communication already disclosed these things) must send the consumer a written notice containing:

  • The amount of the debt;
  • The name of the creditor to whom the debt is owed;
  • A statement that unless the consumer, within 30 days after receipt of the notice, disputes the validity of the debt, the debt will be assumed valid by the debt collector;
  • A statement that, if the consumer disputes the debt within 30 days, the debt collector will obtain verification of the debt from the original creditor (i.e. the credit card company, etc.); and
  • A statement that, upon the consumer’s written request within the 30 day period, the debt collector will provide the consumer with the name and address of the original creditor.

It is important to note the FDCPA explicitly states that, even if you do not dispute the validity of the debt within the 30 day period, failing to dispute the debt DOES NOT constitute an admission that the debt is valid. If you are currently receiving communication from a debt collector, you are likely very interested in learning more about the law. To read the full text of the FDCPA, go to:
FDCPA text

If you believe that a debt collector has violated the provisions of the FDCPA, call Hollingshead & Dudley immediately for a free consultation.

How Much Money Could I Get?

Like most things in law, the answer is “it depends.” Depending on what type of class action you are involved in, your available damages will vary. For example, under the FLSA, you are entitled to back pay (i.e. the amount of wages you should have received had the employer followed the law). You are also entitled to an additional amount equal to your back pay as punishment to the employer, as well as attorneys’ fees. For example, if your unpaid overtime was $20,000, you would be entitle to an additional $20,000 as punishment to the employer (for a total of $40,000). In MMPA cases, you are entitled to your actual losses, attorneys’ fees, and possibly punitive damages (i.e. damages designed to punish the company for violating the law). The amount of your compensation will be closely tied to the amount of money you actually lost as a result of the company’s illegal conduct. For example, if the seller lied to you about the condition of a home you purchases, and it cost you $50,000 to repair the home, you would be entitled to $50,000, in addition to other damages available to you. In FDCPA cases, you are entitled to collect your actual losses, an additional $1,000 per violation of the law, as well as attorneys’ fees. In FDCPA cases, you actual losses may oftentimes include increased interest rates, denial of loans, etc.

Why Should I Hire Hollingshead & Dudley?

The easy answer is RESULTS! At Hollingshead & Dudley, we have received numerous favorable class action results on behalf of our clients, including settlements in excess of a million dollars. You are probably wondering, how does the firm get paid? The answer is, we take class actions on a contingency fee basis. That is, we take a percentage of the total amount we recover for the entire class. Unlike many areas of law, the firm’s percentage must be approved by the court. Thus, the court ensures that every class member gets fair compensation, as do the attorneys working on the clients’ behalves. Because the firm takes these types of cases on a contingency fee basis, if the firm accepts your case, we don’t get paid until we are able to reach a favorable result for our clients.

You may also be wondering, “because a class action has so many plaintiffs involved, who decides if the case settles?” In every class action, any settlement reached on behalf of the class must be approved by the court. The judge will decide if the total settlement is fair to all class members, and as stated above, the judge determines the amount of attorney’s fees to provide to the classes’ attorneys.

If you believe that you may have a class action (including a class action different than the examples provided above), contact Hollingshead & Dudley immediately for a free consultation.

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