United States District Court, S.D. Ohio, Eastern Division
Deavers Magistrate Judge.
OPINION & ORDER
ALGENON L. MARBLEY UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendants Buckeye
Association of Club Executives and The Owners'
Coalition's Motion to Dismiss (ECF No. 93). For the
reasons set forth below, the Motion to Dismiss is DENIED.
Cleveland Ave Restaurant, Inc., known as "Sirens"
is an adult entertainment club in Columbus, Ohio. (ECF No. 74
at ¶ 2). Defendants F. Sharrak, M. Sharrak, Sullivan,
Alkammo, and Nelson are all individuals associated with
Sirens (collectively, with Sirens, the "Sirens
Defendants"): F. Sharrak directed pay policies and made
hiring and firing decisions, M. Sharrak is one of the owners,
Sullivan was the General Manager, Alkammo was a part-owner or
investor, and Nelson is the director of operations.
(Id. at ¶¶ 13-27). The Sirens Defendants
employed Plaintiff Jessica Hogan in various roles at
different times, including as an exotic dancer, a bartender,
a waitress, and a "friction monitor, " which is a
security/monitoring function. (Id. at ¶¶
29, 40). Ms. Hogan alleges that the Sirens Defendants
employed a number of unlawful pay practices, including
charging her fees when she performed exotic dances for
customers, charging her 10% on all customer tips left on
credit cards, and requiring her to pay tips to non-tipped
employees. (Id. at ¶ 3).
Sirens utilizes a "Tenant System" by which it
requires dancers to sign a "Lease Agreement"
purporting to establish the dancers as independent
contractors or renters/lessees under a lease agreement.
(Id. at ¶¶ 1, 45). Thus, Sirens does not
pay the dancers any wages, and instead requires them to pay
the club "rent" of $50 each night they perform.
(Id. at ¶¶ 1, 48). The Lease Agreement
also includes a "damages" provision, requiring the
dancer to pay $50 for "each lease time" that the
dancer misses. (Id. at ¶ 48). Under the
agreement, the club owner establishes a "fixed fee for
the price of specialty dances" such as private,
champagne, and table dances. (Id.). The agreement
notes that dancers "may be subjected to advances by
customers, to depictions or portrayals of explicit fantasy
sexual conduct, or to similar types of behavior, " but
purports to require the dancer to submit, "not be
offended by such conduct, " and to assume all associated
risks. (Id.). Finally, the owner is entitled to
"modify, delete or add to any of the conditions
contained" in the Lease Agreement "without
notice" to the dancer. (Id.).
Buckeye Association of Club Executives ("BACE") and
the Owners' Coalition ("OC") are the two main
Ohio entertainment club industry trade associations.
(Id. at ¶ 5). According to the Amended
Complaint, BACE and OC are responsible for the use of the
Tenant System. (Id. at ¶¶ 5, 36). BACE and
OC's member clubs, including Sirens, use the Tenant
System pursuant to a mutual understanding and common plan
that amounts to an "industry agreement" designed to
deny exotic dancers their rightful minimum wages.
(Id. at ¶¶ 36, 45).
October 6, 2015, Ms. Hogan filed this wage and hour lawsuit
as a collective and class action against the Sirens
Defendants alleging that their policies and actions
violate the Fair Labor Standards Act ("FLSA"), 29
U.S.C. §§ 201, et seq., ; Article II
§ 34(a) of the Ohio Constitution; and § 4113.15 of
the Ohio Revised Code. (ECF No. 1 at 10-12). On May 19, 2017,
Ms. Hogan filed an Amended Complaint, this time adding
Defendants BACE and OC. (ECF No. 74). As with the initial
Complaint, the Amended Complaint includes collective action
and class action allegations against the Sirens
Defendants. In addition to the class and collective
allegations against the Sirens Defendants, Ms. Hogan brings
both statewide collective and statewide class allegations in
the Amended Complaint. First, the "Statewide Class
Action" is brought against a defendant class
encompassing Sirens, BACE, OC, and the BACE-member adult
entertainment clubs throughout Ohio that have used and/or are
using the Lease Agreement and/or the Tenant System.
(Id. at ¶ 73). The "Statewide Plaintiff
Class" is defined as:
All persons who performed exotic dancing at any BACE-member
adult entertainment club in Ohio within the past six years
while subject to the Lease Agreement, the Tenant System, or
any similar ruleset.
(Id. at ¶ 75). The "Statewide Defendant
Class" is defined as:
All BACE-member adult entertainment clubs and employers in
Ohio within the past six years that used and/or are using the
Lease Agreement, the Tenant System, or any similar ruleset.
(Id. at ¶ 77). Second, a statewide collective
action is brought against the same Statewide Defendant Class,
on behalf of the "Statewide ...