United States District Court, S.D. West Virginia, Charleston
JOSEPH ATKINS, JUSTIN ROACH, and JAMES HULL, individually, and on behalf of a class of similarly-situated persons, Plaintiffs,
AT&T MOBILITY SERVICES, LLC, Defendant.
MEMORANDUM OPINION & ORDER
T. Copenhaver, Jr, Judge
is the plaintiffs' motion to remand, filed on May 23,
Joseph Atkins, Justin Roach, and James Hullinitiated this
putative class action in the Circuit Court for Kanawha
County, West Virginia on September 15, 2015. See
Compl., ECF No. 1-1, Ex. 1-1, at 6-13 (“Compl.”).
The plaintiffs were employed in a sales capacity by defendant
AT&T Mobility Services, LLC (“AT&T”)
between September 2010 and September 2015, and were
compensated by both hourly wages and sales commissions
through the AT&T consumer retail sales compensation plan
(“Commission Plan”). See Pls.' Memo.
Supp. Mot. Remand, ECF No. 6 (“Pls.' Memo.”),
at 2. The Commission Plan applied “chargebacks”
based on certain events that reduced the monthly commission
payment to employees. See id.
complaint filed in state court alleges that the
“chargeback” process implemented by AT&T
constitutes an assignment of wages to AT&T for which
AT&T did not obtain a valid wage assignment from the
plaintiffs, as required under the West Virginia Wage Payment
and Collection Act (“WPCA”), W.Va. Code §
21-5-1 et seq. See Compl. ¶¶ 13-23. The
plaintiffs also assert that AT&T violated the WPCA by
failing “to pay other former employees all of the wages
they had earned within the time periods mandated by the
WPCA.” See id. ¶¶ 24-30. The
plaintiffs sought relief on behalf of the following proposed
class (“First Class Definition”):
All persons formerly employed by the Defendant in West
Virginia within five years of the filing of the filing [sic]
of this Complaint who fit both of the following criteria:
(a) Whose employment wages were assigned by Defendant without
an assignment (1) having been in place for a period not
exceeding one year from the date of the assignment; (2)
acknowledged by the party making the same before a notary
public or other officer authorized to take acknowledgements;
(3) specifying thereon the total amount due and collectible
by virtue of the assignment; (4) stating that three fourths
of the periodical earnings or wages of the assignor shall at
all times be exempt from such assignment; and (5) the written
acceptance of the employer of the assignor to the making
thereof, is endorsed thereon,  and
(b) Who were not paid after the cessation of their employment
all of the wages they had earned within the time periods
mandated by West Virginia Wage Payment and Collection Act.
Id. ¶ 32. The complaint did not allege any
specific damage amounts on either an individual or class
basis. See generally id.; see also
Def.'s Resp. to Pls.' Mot. Remand, ECF No. 7
(“Def.'s Resp.”), at 3.
plaintiffs filed a motion for class certification on May 15,
2017 and proposed the following class definition
(“Second Class Definition”):
All persons formerly or currently employed by the Defendant
in West Virginia within five years of the filing of this
Complaint through the present whose employment wages were
assigned by Defendant without first obtaining a wage
assignment pursuant to West Virginia's Wage Payment and
Collection Act, West Virginia Code § 21-5-1, et
Pls.' Mot. Class Cert., ECF No. 5-2, Ex. B., at 3.
AT&T opposed the motion for class certification on
several grounds, including the scope of the proposed class.
See Notice of Removal, ECF No. 1, at 4.
circuit court held a hearing on the motion for class
certification on March 22, 2018. See Pls.'
Memo., at 3.
hearing, the plaintiffs moved to amend the proposed class
definition. See Class Cert. Hearing Transcript, ECF
No. 5-3, Ex. C, at 13-14. The judge orally granted the
amended definition and certified the class as such. See
id. at 14-15.
plaintiffs prepared a proposed order with the following class
definition (“Third Class Definition”):
All commissioned employees currently or formerly employed by
Defendant in West Virginia within five years of the filing of
this complaint through the present who were subject to
AT&T Mobility's consumer related sales compensation
policy. The class excludes any persons with an existing
arbitration clause with AT&T, as well as any persons who
have released their claims.
See Notice of Removal, ECF No. 1, at 5. AT&T did
not address this proposed order. See Pls.'