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Atkins v. AT&T Mobility Services, LLC

United States District Court, S.D. West Virginia, Charleston

October 15, 2019

JOSEPH ATKINS, JUSTIN ROACH, and JAMES HULL, individually, and on behalf of a class of similarly-situated persons, Plaintiffs,
v.
AT&T MOBILITY SERVICES, LLC, Defendant.

          MEMORANDUM OPINION & ORDER

          John T. Copenhaver, Jr, Judge

         Pending is the plaintiffs' motion to remand, filed on May 23, 2018.

         I. Background

         Plaintiffs Joseph Atkins, Justin Roach, and James Hull[1]initiated 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.

         The 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, [2] 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.

         The 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 seq.

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.

         The circuit court held a hearing on the motion for class certification on March 22, 2018. See Pls.' Memo., at 3.

         At the 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.

         The 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.' ...


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