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					                                      AAA ARBITRATION FORUM
 1

 2                                                      )
     CLASS ACTION REPRESENTATIVES,                      )       CASE NO.
 3                                                      )
            CLAIMANTS,                                  )
 4                                                      )
                   v.                                   )       ARBITRATOR:
 5                                                      )
     24 HOUR FITNESS USA, INC.,                         )
 6                                                      )
            RESPONDENT.                                 )
 7

 8
              CLASS ACTION COMPLAINT AND DEMAND FOR ARBITRATION
 9
            Action is brought by California Claimants and FLSA Claimants against Respondent
10
     24 HOUR FITNESS USA, INC., a California corporation also doing business as 24 HOUR
11
     FITNESS (hereinafter "Respondent").
12
            The two groups of claimants make the following three distinct claims. First, as part of
13
     a California class action pursuant to Code of Civil Procedure section 382, California Claimants
14

15
     bring claims for damages and resulting penalties for the failure by Respondent to pay all wages,

16
     including overtime and commissions, due to persons employed in the State of California from

17   January 1, 2002 to the present (hereinafter "California Class"). California Claimants are informed

18   and believe the total number of members in the California Class exceeds 20,000 individuals.

19          Second, as claims under California's Unfair Competition Law, California Claimants

20   seek equitable and injunctive relief including (a) restitution for unpaid wages, including

21   overtime, and commissions to themselves and in the interest of the general public to all affected

22   employees employed in the State of California; (b) to enforce Labor Code penalties, and (c) for
23   an injunction in their own interest and in the interest of the general public.
24          Third, FLSA Claimants bring claims as a class action under 29 U.S.C. § 216(b). The
25   class FLSA Claimants represent consists of all current of former employees of Respondent
26   employed from January 1, 2003 to the present, within the United States but outside the State
27   of California, to recover from Respondent unpaid wages, including overtime, commissions,
28   liquidated damages, and/or any other recovery authorized under the FLSA (hereinafter "FLSA
                                                   - 1 -

                           CLASS ACTION COMPLAINT AND DEMAND FOR ARBITRATION
 1   Class"). FLSA Claimants are informed and believe the total number of members in the FLSA
 2   Class exceeds 10,000 individuals.
 3

 4                                            II. THE PARTIES
 5
           A. CALIFORNIA CLAIMANTS
 6
           1.    California Claimants are natural persons and residents of the State of California.
 7
     During the relevant time periods, California Claimants were employed by Respondent in the
 8
     State of California.
 9

10
           B. FLSA CLAIMANTS
11
          2.     FLSA Claimants are natural persons and residents within the United States but
12
     outside the State of California. During the relevant time periods, FLSA Claimants were
13
     employed by Respondent within the United States but outside the State of California.
14

15
            C. RESPONDENT
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            3.     Respondent 24 HOUR FITNESS, USA, INC. is, and at all relevant times
17
     mentioned herein was, a California corporation also doing business as 24 HOUR FITNESS under
18
     the laws of the State of California with places of business in Los Angeles County. Hereinafter
19
     Respondent 24 HOUR FITNESS, USA, INC. shall be referred to as 24 HOUR FITNESS.
20
            4. Respondent is a “person(s)” as defined in Labor Code section 18 and an
21
     “employer(s)” as that term is used in the Labor Code and IWC Orders regulating wages and
22
     working conditions.
23

24

25
                                         III. CLASS ALLEGATIONS

26
            5. The wrongful acts or omissions were and are a uniform practice that affected all

27
     putative class members equally, Respondent, by its practices and policies, has violated the rights

28

                                                   - 2 -

                            CLASS ACTION COMPLAINT AND DEMAND FOR ARBITRATION
 1   of its employees under the California Labor Code, the Unfair Competition Law, and the FLSA.
 2   The questions raised are therefore of common or general interest to the class members, and they
 3   have a well defined community of interest in the questions of law and fact raised in this action.
 4   Each of the class members in the California class action and the FLSA class action are bound
 5   under the same respective legal theory in that Respondent did undertake a uniform and systematic
 6   set of policies and procedures with respect to the compensation of the respective class members.
 7   The only recognizable difference amount class members will be the amounts owed to each
 8   individual member.
 9          6.     The classes each of the respective Claimant groups seek to represent, as
10   described above, are distinct and clearly ascertainable. The rights of these individuals under the
11   California Labor Code and FLSA have been violated because Respondent, inter alia, improperly
12   calculated wages, required work "off-the-clock," misclassified salaried employees as "exempt,"
13   failed to pay wages and overtime, failed to pay lawfully earned commission, and issued non-
14   compliant wage stubs. The claims of each of Claimant group are typical of those of their
15   respective class members, as they now suffer and have suffered in the past from the same
16   violations of the law as the class. California Claimants and FLSA Claimants have retained
17   competent counsel to represent them, and will fairly and adequately represent the interests of
18   each of the proposed classes.
19          7.     Based on information and belief, there are over thirty thousand (30,000) current
20   and past employees who have been subject to Respondent's unlawful and wrongful practices, and
21   therefore, their numerosity makes it impractical to bring them all before this forum, and
22   disposition of their claims in a class action is a benefit to the parties and to the court.
23          8.     A class action is superior to other available means for the fair and efficient
24   adjudication of this controversy. Individual joinder of all class members is not practicable, and
25   questions of law and fact common to the class predominate over any questions affecting only
26   individual members of the class. Each member of the class has been damaged and is entitled to
27   recover. Class action treatment will allow those similarly situated persons to litigate their claims
28

                                                    - 3 -

                           CLASS ACTION COMPLAINT AND DEMAND FOR ARBITRATION
 1   in a manner that is most efficient and economical for the parties and the judicial system.
 2          9. A class action is appropriate since Claimants' damages, although by no means
 3   inconsequential, do not rise to the level to make prosecution of individual claims economically
 4   feasible for Claimants to pursue. The right to the appropriate wage was surreptitiously ignored,
 5   and the injury, although substantial, has only been discovered on an ex post facto basis, making
 6   it economically unfeasible to pursue remedies other than a class action. The burden and expense
 7   of individual litigation makes it economically unfeasible for the members of the class to seek
 8   redress other than through a class action. Consequently, there would be a failure of justice
 9   but for the maintenance of a class action.
10          10.     The prosecution of individual remedies by members of the Claimant class would
11   tend to establish inconsistent standards of conduct for the Respondent and would result in the
12   impairment of class members' rights and the disposition of their interests through actions to which
13   they were not parties.
14          11.       Claimants know of no difficulty which will be encountered in the management
15   of this litigation which would preclude its maintenance as a class action.
16          12.       Claimants have incurred and, during the pendency of this action, will incur
17   attorneys' fees and expenses. Such attorneys' fees and expenses are necessary for the prosecution
18   of this action and will result in a benefit to the class.
19          13.      Upon information and belief, Respondent was aware of the facts herein alleged
20
     at the time they failed to perform the duties alleged herein.
21
            14.     The names and addresses of the persons who are members of the class are
22
     available from Respondent's records and are therefore known to Respondent. Notice can be
23
     provided to the members of the class by mail, or by using techniques and a form of notice
24
     similar to those customarily used in class actions under California law, with the costs of
25
     any notice to be borne by Respondent.
26

27

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                                                     - 4 -

                              CLASS ACTION COMPLAINT AND DEMAND FOR ARBITRATION
 1                                      IV. FACTUAL ALLEGATIONS
 2          15.        Respondent engages in the business of operating health-clubs throughout the State
 3   of California and throughout the United States. At each health-club Respondent employed, and
 4   continues to employ, personal trainers, fitness managers, sales counselors, assistant general
 5   managers, operations managers, and general managers. Respondent has developed elaborate
 6   personal training programs, offered through personal trainers and marketed to the general public.
 7   The services offered and provided by Respondent, through the personal trainers and fitness
 8   managers, include personal evaluations, (physical, dietary, and nutrition assessments and
 9   counseling), coupled with personal training sessions. The programs include detailed physical
10   examinations, body measurements, dietary menu and nutrition planning, and detailed
11   computerized assessments of a members' progress toward specific physical and dietary goals.
12           16.         Respondent required personal trainers, as part of their job duties, to undertake
13   numerous tasks in addition to providing personal training sessions. These tasks include, but are
14   not limited to:
15
            (a)          Selling personal training sessions, and dietary supplements to the general
16
                        public and/or club members;
17
            (b)          Meeting with club members and undertaking initial personal training
18
                        interviews that include assisting in preparing all forms in members' "passport" file
19
                        including welcome letters, member assessment forms or Physical Assessment
20
                        Readiness Questionnaire (PAR-Q), food preference questionnaires, favorite
21
                        foods questionnaires, and client consent forms, and a members' goals and review
22
                        forms;
23
            (c)          Receiving a medical history of the client including, if necessary, conducting
24
                        follow-up contacts with the member or members' medical providers;
25
            (d)          Conducting a physical assessment of the member including a posture
26
                                 analysis and core strength assessment;
27
            (e)          Measuring physical characteristics including scale weight, and body
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                                                    - 5 -

                             CLASS ACTION COMPLAINT AND DEMAND FOR ARBITRATION
 1         composition assessments (body fat composition), and girth measurements
 2         for evaluating initial physical characteristics and to provide a benchmark
 3         for changes in the body, including skin folds and other methods of body
 4         assessment, and measuring the resting heart rate;
 5
     (f)   Entering data on 24 Hour Fitness computer system of members'
 6
           information and assessments including measurements taken in the initial
 7
           assessment;
 8
     (g)   Setting up personal paper files for personal training members;
 9
     (h)   Evaluation of members' food intake questionnaires and favorite food
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           questionnaires and development of a nutritional program with individual diet
11
           and meal planning personally developed for each member;
12
     (i)   To contact members prior to personal training sessions by telephone to
13
           schedule personal training sessions, confirm scheduled sessions, and to
14
           encourage members' progress;
15
     (j)   To log personal training sessions scheduled in a master appointment
16
           book; to log the personal training sessions in a training session log; to
17
           log the personal training session in the 24 Hour Fitness computer;
18
     (k)   To maintain and update each club members dietary menus and documents
19
            in their personal file; to monitor caloric intake and types of foods and
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            nutrition;
21
     (l)   Conduct periodic re-evaluation and assessment of members physical
22
           progress including girth measurements, body fat composition, heart rate,
23
           and muscle growth;
24

25
     (m)   Updating computer system files of each client including date entry of

26
           periodic assessments;

27   (n)   The development, ongoing evaluation and modification of personal training

28         programs for each member personally and individually developed for that

                                   - 6 -

            CLASS ACTION COMPLAINT AND DEMAND FOR ARBITRATION
 1                     member;
 2            (o)     Meeting with members to discuss progress and goals;
 3           (p)      Administrative duties such as maintaining and filling out forms, time cards,
 4                    and computer entry; and
 5
             (q)      Organizing and cleaning of the health-club by re-stacking weights, weight bars,
 6
                      or exercise equipment;
 7
              (r)     Other tasks or duties which may be discovered through discovery in this
 8
                      matter.
 9
            17.      Respondent routinely required employees to work more than 5 hours at a time
10
     without a break. Employees routinely were not permitted to take a one hour meal period or
11
     even a 30 minute meal period as required by law.
12
             18.     Respondent routinely scheduled employees to work consecutive hours(over
13
     five) during a given day without interruption. Respondent routinely required personal
14
     trainers, when not conducting personal training sessions, to undertake other tasks as stated above
15
     in between personal training sessions. Routinely, personal trainers would be required to work in
16
     between personal training session appointments and at the end of the day would have routinely
17
     worked in excess of eight hours per day. The work of personal trainers was routinely required to
18
     be performed "off-the-clock."
19
             19.     Respondent also employed floor supervisors, fitness managers, operations
20
     managers, assistant general managers, and general managers (collectively "Managers") as salaried
21
     employees, who were classified by Respondent as "exempt" under California law and the FLSA.
22
     In fact, the Managers performed more than 50% of their work performing tasks and duties that are
23
     not covered by California classifications or FLSA classifications for "exempt" work. Managers
24
     were routinely misclassified as exempt and were not paid overtime for work in excess of eight (8)
25
     hours in a day and forty (40) hours in a week.
26
              20.    Respondent also employed sales counselors, personal trainers, assistant general
27
     managers and general managers on a commission basis for sales of new club memberships,
28

                                                  - 7 -

                          CLASS ACTION COMPLAINT AND DEMAND FOR ARBITRATION
 1   training sessions, and supplements and fitness products. The commissions were not paid as
 2   required by California law and the FLSA.
 3             21.      Respondent did not keep accurate payroll records as required by California law
 4   and the FLSA.
 5             22.       Respondent routinely provided pay stubs to Claimants, and each of them, that did
 6   not accurately reflect all of the hours worked by the personal trainers as required by Labor Code § 226.
 7

 8                                         V. FIRST CAUSE OF ACTION
 9    (By California Claimants Individually and As California Class Action Against Respondent)
           (Failure to Pay All Wages, Overtime and Commissions Under California Law)
10
               23.       California Claimants repeat, re-allege and incorporate paragraphs 1 through 24,
11
     inclusive, as though fully set forth herein.
12
               24.       On January 1, 2000, Labor Code § 510(a) was enacted and provides:
13

14                       Eight hours of labor constitutes a day's work. Any work in
                         excess of eight hours in one workday and any work in excess of
15                       40 hours in any one workweek and the first eight hours worked
                         on the seventh day of work in any one workweek shall be
16                       compensated at the rate of no less than one and one-half-times the
                         regular rate of pay for an employee. Any work in excess of 12
17                       hours in one day shall be compensated at the rate of no less than
                         twice the regular rate of pay for an employee. In addition, any
18                       work in excess of eight hours on any seventh day of any
                         workweek, shall be compensated at the rate of no less than twice
19                       the regular rate of pay of an employee.

20
                 25.      Labor Code § 1194(a) states:
21

22                         Notwithstanding any agreement to work for a lesser wage, any
                           employee receiving less than the legal minimum wage or the
23
                           legal overtime compensation applicable to the employee is
24                         entitled to recover in a civil action the unpaid balance of the full
                           amount of this minimum wage or overtime compensation,
25                         including interest thereon, reasonable attorney's fees, and costs
                           of suit.
26

27

28

                                                        - 8 -

                             CLASS ACTION COMPLAINT AND DEMAND FOR ARBITRATION
 1        26.         Labor Code § 204 states in pertinent part:
 2
                     All wages, other than those mentioned in Section 201, 202, 204.1,
 3                   or 204.2, earned by any person in any employment are due and
                     payable twice during each calendar month, on days designated in
 4                   advance by the employer as the regular paydays.

 5         27.      Under California Law, if an employee receives a draw against

 6   commissions to be earned at a future date, the "draw" must be equal at least to the

 7   minimum wage and overtime due the employee for each pay period, unless the

 8   employee is exempt. Although the draw may be reconciled against earned

 9   commissions at an agreed date or when the commission is earned, the draw is

10   considered the basic wage and is due for each period the employee works even

11   though commissions do not equal or exceed the amount of the draws, unless there is

12   a specific agreement to the contrary (Agnew v. Cameron) (1967) 247 Cal.App.2d

13   619. Respondent may not deduct from the commissions for refunds or returns.

14         28.       Under California Law, Respondent is required to pay wages for each

15   hour worked, and overtime wages when non-exempt employees work over 8 hours

16   in a day or 40 hours in a week by calculating the hourly rate and then computing the

17   overtime premium amount owed. California Claimants, and similarly situated

18   current and former employees of Respondent who are putative class members, have

19   worked for Respondent without being paid for all hours worked and all

20   commissions earned.

21          29.      As a result of Respondent's violation of statutory duties to comply with

22   statutory wage and commission requirements, as more fully set forth above, California

23   Claimants were damaged in an amount above the jurisdictional limits of this court.

24          30.      California Claimants seek as damages all wages and commissions owed to

25   individuals employed as Personal Trainers, Floor Supervisors/Asst. Fitness Managers, Fitness

26   Managers, Front Desk Supervisors, Operating Managers, Sales Counselors, and General

27   Managers. Claimants' investigation is continuing, however, under information and belief

28   the amount claimed is above the jurisdictional minimum requirements of the Superior Court

                                                  - 9 -

                           CLASS ACTION COMPLAINT AND DEMAND FOR ARBITRATION
 1   of California and Federal District Courts. California Claimants will seek leave of court to amend
 2   according to proof at the time of trial.
 3              31.    California Claimants are entitled to and therefore request an award of pre-
 4   judgment interest on the unpaid wages set forth herein.
 5              32. California Claimants have incurred, and will continue to incur attorney fees and
 6   costs in the prosecution of this action. California Claimants seek attorneys' fees under all
 7   applicable provisions of law. Wherefore, California Claimants pray judgment as set forth herein
 8
     below.
 9
                                  VI. SECOND CAUSE OF ACTION
10            (By California Claimants Individually and As California Class Action Against
                                              Respondent)
11                       (Waiting Time Penalties California Labor Code §§ 203)
12              33.    California Claimants repeat, re-allege and incorporate paragraphs 1 through 34,
13
     inclusive, as though fully set forth herein.
14
                34.    California Labor Code sections 201 and 202 require Respondent to pay its
15
     employees all wages due immediately upon discharge or 72 hours after an employee quits.
16
     California Labor Code section 203 provides that if an employer willfully fails to timely pay such
17
     wages the employer must, as a penalty, continue to pay the subject employees' wages until the
18
     back wages are paid in full or an action is commenced. The penalty cannot exceed 30 days of
19
     wages. A worker need not prove malice or intentional conduct in establishing their claim for
20
     waiting time penalties, but merely establish the employer did not do something it was obligated
21
     to do. (See Mamika v. Barca (1998) 68 Cal. App. 4th 487; Barnhill v. Robert Saunders & Co.
22
     (1981) 125 Cal.App.3d 1.)
23
                 35.    California Claimants, and similarly situated former employees who are putative
24
     class members, are entitled to unpaid compensation, but to date have not received such
25
     compensation. As a consequence of Respondent's willful conduct in not paying compensation
26
     for all hours worked, and similarly situated installers who are putative class members, are
27
     entitled to 30 days wages as penalty under Labor Code section 203, together with interest
28

                                                    - 10 -

                            CLASS ACTION COMPLAINT AND DEMAND FOR ARBITRATION
 1   thereon and attorney's fees and costs. Wherefore, California Claimants prays judgment as set
 2   forth herein below.
 3

 4                                  VII. THIRD CAUSE OF ACTION
 5             (By California Claimants Individually and As a California Class Action
                                            Against Respondent)
 6           (Penalties for Failure to Itemize Wage Stubs Pursuant to Labor Code § 226)
 7

 8           36.      California Claimants repeat, re-allege and incorporate herein by this reference

 9   all of the allegations set forth in paragraphs 1 through 37, inclusive.

10           37.      Respondent knowingly and intentionally failed to provide California Claimants,

11   and similarly situated current and former employees who are putative class members, with accurate,

12   itemized wage statements in compliance with Labor Code § 226. Such failures in Respondent's

13   itemized wage statements included, among other things, not accurately showing the number of

14   all hours worked, including overtime hours, and/or incorrectly reporting gross wages earned.

15           38.       As a direct result of Respondent's failure, California Claimants were injured

16   and are entitled to recover an amount to be proved at trial, of not less than $100.00 for each

17   violation up to $4,000.00.

18           39.       California Claimants, and similarly situated current and former employees who

19   are putative class members, are entitled to statutory penalties and attorney fees pursuant to Labor
20   Code § 226 and Civil Code § 1021.5. Wherefore, California Claimants pray judgment as set forth
21   herein below.
22                                   VIII. FOURTH CAUSE OF ACTION

23
      (By California Claimants Individually and As California Class Action Against Respondent)
24      (Failure to Afford Mandatory Breaks or Meal Periods as Required by IWC Orders)
25
             40.      California Claimants, repeat, re-allege and incorporate by this reference the
26
     allegations set forth in paragraphs 1 through 41, inclusive as though fully set forth below.
27
             41.     At all times during California Claimants' employment with Respondent,
28

                                                   - 11 -

                           CLASS ACTION COMPLAINT AND DEMAND FOR ARBITRATION
 1
     California Claimants were covered by the provisions of Industrial Wage Commission Orders,
 2
     including IWC orders 4-2000 and 4-2001.
 3
             42.     The IWC Wage Orders provide in applicable part:
 4
              (A) No employer shall employ any person for a work period of more than
 5
              five (5) hours without a meal period of not less than 30 minutes, except that
 6
              when a work period of not more than six (6) hours will complete the day's
              work the meal period may be waived by mutual consent of the employer and
 7
              employee. In the case of employees covered by a valid collective bargaining
              agreement, the parties to the collective bargaining agreement may agree to a
 8
              meal period that commences after no more than six (6) hours of work.

 9           (B) An employer may not employ an employee for a work period of more
              than ten (10) hours per day without providing the employee with a second
10
             meal period of not less than 30 minutes, except that if the total hours
11           worked is no more than 12 hours, the second meal period may be waived by
             mutual consent of the employer and the employee only if the first meal
12
             period was not waived.
13
             (C) Unless the employee is relieved of all duty during a 30 minute meal
14
             period, the meal period shall be considered an "on duty" meal period and
15           counted as time worked. An "on duty" meal period shall be permitted only
             when the nature of the work prevents an employee from being relieved of
16
             all duty and when by written agreement between the parties an on-the-job
17           paid meal period is agreed to. The written agreement shall state that the
             employee may, in writing, revoke the agreement at any time.
18

19
            43.      California Labor Code § 226.7(b) states:
20

21            (b) If an employer fails to provide an employee a meal period or rest period
              in accordance with an applicable order of the Industrial Welfare
22            Commission, the employer shall pay the employee one additional hour of
              pay at the employee's regular rate of compensation for each work day that the
23            meal or rest period is not provided.
24          44.      Respondent routinely failed to provide the California Claimants, and the
25   putative class, with a 30 minute unpaid meal period within the first 5 hours of work in
26   compliance with IWC Orders and Labor Code § 226.7. As a result of Respondent's failure,
27   California Claimants are entitled to recover an amount to be proved at trial, of not less than one
28   additional hour of pay at Claimants' regular rate of compensation for each workday that the meal
                                                  - 12 -

                          CLASS ACTION COMPLAINT AND DEMAND FOR ARBITRATION
 1   period was not provided.
 2            45.     California Claimants are entitled to and therefore request an award of pre-
 3   judgment interest on the unpaid wages set forth herein.
 4            46.     California Claimants have incurred, and will continue to incur attorney fees and
 5   costs in the prosecution of this action. California Claimants seek attorneys' fees under all
 6   applicable provisions of law. Wherefore, California Claimants pray judgment as set forth herein
 7   below.
 8                                   IX. FIFTH CAUSE OF ACTION
 9
                (By California Claimants Individually and As Against Respondent)
10   (Equitable and Injunctive Relief for Unlawful Business Practices in Violation of California
                          Business and Professions Code §§ 17200 et seq.)
11

12            47.     California Claimants, repeat, re-allege and incorporate by this reference
13   the allegations set forth in paragraphs 1 through 49, inclusive as though fully set forth
14   below.
15            48.    In addition to bringing this action as a class action, California Claimants
16   bring it as private attorneys general on behalf of themselves and general public, including
17   former, current and future employees of Respondent, pursuant to Business and Professions
18   Code sections 17200 et seq. to enjoin Respondent from engaging in the practices alleged in
19
     this complaint and to require Respondent to restore to those persons affected all monies
20
     wrongfully obtained from them by Respondent’s unfair business practices.
21
              49.     At all times relevant hereto, California Business and Professions Code §§ et
22
     seq. were in full force and effect. Section 17200 of the Business and Professions 17200 Code
23
     provides, in relevant part, that "unfair competition shall mean and include any unlawful,
24
     unfair, or fraudulent business act or practice..."
25
              50.     Respondent is a "persons" as defined under Business and Professions Code
26
     § 17021. Each of the directors, officers, and/or agents of Respondent, are equally responsible for
27
     the acts of the other directors, officers, employees and/or agents as set forth in the Business and
28

                                                   - 13 -

                           CLASS ACTION COMPLAINT AND DEMAND FOR ARBITRATION
 1   Professions Code § 17095.
 2           51.      California Claimants bring this action in the interest of themselves, as
 3   representatives, and in the interest of other employees of Respondent, and in the interest of the
 4   public pursuant to § 17203 of the California Business and Professions Code. California
 5   Claimants bring this cause of action seeking restitution for the wages and commissions owed for
 6   the failure to pay all wages, including overtime wages, and commissions because Respondent's
 7   compensation system did not include the payment for all wages and for the overtime or
 8   premium wages of class members, who are members of the general public, and worked more
 9   then 8 hours in a day and/or 40 hours in a week. California Claimants also request an injunction
10   prohibiting Respondent from not paying wages now and in the future.
11           52.      California Claimants bring this action to pursue claims during a four year
12   statute of limitations under § 17208 of the California Business and Professions Code.
13           53.      The following practices of Respondent are unlawful and unfair business
14   practices under California Business and Professions Code §§ 17200 et seq.:
15                    (a)    failure to pay all wages and commissions under Labor Code and all
16                           other applicable laws;
17                    (b)    failure to provide rest breaks and meal periods pursuant to IWC wage
18                           orders.
19                    (c)    violation of Labor Codes § 226 (improper wage stubs).
20
                      (d)    unjust enrichment due to the failure to pay wages including overtime
21
                             wages.
22
            54.       At all times material to this action, Respondent's conduct described above
23
     is an unfair, unlawful and/or fraudulent business practice in violation of California
24
     Business & Professions Code §§ 17200, et seq.
25
            55.       As set forth below, California Claimants are informed and believe and
26
     thereupon allege, that by failing to pay wages to all employees at Respondent's business,
27
     Respondent has engaged in business within the State of California, as set forth and defined in
28

                                                  - 14 -

                            CLASS ACTION COMPLAINT AND DEMAND FOR ARBITRATION
 1   Business and Professions Code §§ 17026, 17029, and 17073, in a manner that injured
 2   competitors, lead to misrepresentations to the public about the manner in which Respondent
 3   engaged in business, and/or destroying competition in violation of Business and Professions Code
 4   § 17043. Upon information and belief, California Claimants allege that Respondent engaged in
 5   the acts and omissions heretofore alleged for the purpose of profiting from lower labor costs,
 6   including employer taxes, workers compensation insurance, employer related expenses, and
 7   obtaining an unlawful or unfair advantage in the California health-club market, all in a scheme to
 8   engage in unfair competition, at the expense of their employees and to the detriment of public
 9   policy for the lawful employment of employees.
10          56.       Pursuant to Business and Professions Code §§ 17071 and 17075, the failure
11   of Respondent to pay all wages, including overtime wages, and commissions is admissible as
12   evidence of Respondent's intent to violate the California Unfair Practices Act.
13          57.       At all times material to this action, Respondent's conduct results in economic
14   loss to the following workers: California Claimants and former, current, and future similarly-
15   affected employees of Respondent.
16
            58.       As California Claimants are informed and believe and thereon allege that as a
17
     direct and proximate result of these acts and omissions, the Respondent was able to unfairly
18
     compete in the State of California by not paying all wages in violation of the Labor Code and
19
     the Business and Professions Code.
20
            59.       As California Claimants are informed and believe and thereon allege
21
     that the Respondent, by committing the above-described acts, has deceived the public
22
     by illegally depriving its employees of wages thus injuring its employees.
23
             60.      Business and Professions Code § 17203 provides that the Court may
24
     restore to an aggrieved party any money or property acquired by means of unlawful
25
     and unfair business practices. California Claimants seek restitution of all unpaid
26
     wages owing to them and members of the general public, according to proof, that the
27
     Respondent has enjoyed as a result of the unfair business practices.
28

                                                  - 15 -

                          CLASS ACTION COMPLAINT AND DEMAND FOR ARBITRATION
 1           61.      Section 7202 of the California Business and Professions Code states:
 2   "Notwithstanding Section 3369 of the Civil Code, specific or preventive relief may be granted
 3   to enforce a penalty, forfeiture, or penal law in a case of unfair competition."
 4           62.      In addition to restoration of all wages owed, California Claimants seek to
 5
     enforce penalties in the interest of themselves, in the interest of other employees of Respondent,
 6
     and in the interest of the general public pursuant to § 17202:
 7
                    (a)     violation of Labor Codes § 203 (waiting time penalties);
 8
                    (b)     extra hour of pay for not authorizing or permitting breaks or meal
 9
                            periods (Labor Code 226.7); and
10
                    (c)     violation of Labor Codes § 226 (improper wage stubs).
11
             63.      Private enforcement of these rights is necessary, as no other agency has raised a
12
     claim to protect these workers. There is a financial burden incurred in pursuing this action which
13
     would be unjust to place on California Claimants, because the burden of enforcing workforce-
14
     wide rights is disproportionate to that of enforcing only Claimants' individual claims. It would be
15
     against the interests of justice to force payment of attorney fees from Claimants' recovery in this
16
     action. Therefore, attorney fees are appropriate and sought pursuant to all applicable laws,
17
     including but not limited to California Code of Civil Procedure § 1021.5. Wherefore, California
18
     Claimants pray judgment as set forth herein below.
19

20
                                   X. SIXTH CAUSE OF ACTION
21
                     (By FSLA Claimants Individually and As Against Respondent)
22                 (For Willful Nonpayment of Wages, Overtime and Commissions in
                                     Violation of 29 U.S.C. § 207)
23

24          64.     FSLA Claimants, repeat, re-allege and incorporate by this reference the allegations
25   set forth in paragraphs 1 through 65, inclusive as though fully set forth below.
26
           65.     FSLA Claimants bring these claims on behalf of all current and former employees
27
     of Respondent employed as personal trainers, floor supervisors, fitness managers, operating
28

                                                  - 16 -

                           CLASS ACTION COMPLAINT AND DEMAND FOR ARBITRATION
 1   managers, sales counselors, assistant general managers, and general managers in the United
 2   States, except for the State of California.
 3         66.     FSLA Claimants are informed and believe Respondent was advised by human
 4   resource professionals, attorneys and/or other professionals, employees and advisors
 5
     knowledgeable about the requirements of the Fair Labor Standards Act of 1938, 29 U.S.C.
 6
     §§ 201 et seq. to pay overtime compensation at a rate of one and one-half times the regular rate,
 7
     and to pay commissions as required under the FLSA. FLSA Claimants allege that they knew or
 8
     should have known that FLSA Claimants worked in excess of 40 hours in a workweek and that
 9
     FLSA Claimants' commissions were not being paid as required under the FLSA. FLSA
10
     Claimants are informed and believe and thereon allege that at all times herein mentioned,
11
     Respondent knew that it had a duty to compensate FLSA Claimants and class members at the
12
     proper overtime rates and commission as required by the FLSA, and that Respondent had the
13
     financial ability to pay such overtime compensation, but willfully, knowingly and intentionally
14
     failed to do so.
15
           67.      Notwithstanding such knowledge, Respondent failed to compensate FLSA
16
     Claimants at the rate of one and one-half times their regular rate of pay for all hours worked in
17
     excess of 40 hours in a workweek. Respondent has either recklessly or knowingly and
18
     intentionally failed to properly compensate FLSA Claimants for all of the overtime hours FLSA
19
     Claimants worked and all commissions earned.
20
           68.      FLSA Claimants are informed and believe and thereon allege that Respondent
21
     similarly failed to pay overtime compensation at the proper rate of one and one-half times the
22
     regular rate and failed to pay minimum wages, overtime, and commission to all other persons
23
     similarly employed by 24 Hour Fitness throughout the United States.
24

25
           69.          In doing all the things described and alleged, Respondent deprived FLSA

26
     Claimants, and other similarly situated employees, of their rights, privileges and

27   immunities secured to them by federal law which clearly sets forth that they were

28   entitled to. Respondent knew, or should have known, that its reckless and/or willful and

                                                   - 17 -

                             CLASS ACTION COMPLAINT AND DEMAND FOR ARBITRATION
 1   intentional failure to pay FLSA Claimants wages, overtime and commission violates
 2   these rights, privileges and immunities.
 3          70.        As a direct and proximate result of Respondent's actions and inactions, FLSA
 4   Claimants and other similarly situated employees have been damaged, and are entitled to
 5
     compensatory and/or liquidated damages in an amount according to proof at trial including, but
 6
     not limited to, a sum in excess to that required by 29 U.S.C § 216(b).
 7
            71.        FSLA Claimants are entitled to and therefore request an award of pre-
 8
     judgment interest on the unpaid wages set forth herein.
 9
            72.      FSLA Claimants have incurred and will continue to incur attorney fees and costs
10
     in the prosecution of this action. FSLA Claimants seek attorneys' fees under all applicable
11
     provisions of law. Wherefore, California Claimants pray judgment as set forth herein below.
12

13                                  XI. SEVENTH CAUSE OF ACTION

14                  (By FSLA Claimants Individually and As Against Respondent)
                     For Willful Late Payment of Overtime in Violation of § 207(a)
15                                 Of the Fair Labor Standards Act

16
            73.        FLSA Claimants reassert and re-allege paragraphs 1 through 74, above,
17
     inclusive, as though fully set forth herein and incorporates said paragraphs herein by reference.
18
            74.      Respondent has either recklessly or knowingly and intentionally failed and
19
     refused to compensate FLSA Claimants and all other similarly situated persons for overtime
20
     compensation earned in a particular work period by the regular pay day for the period in which
21
     the work ended.
22
            75.      Respondent has delayed the payment of overtime for a period longer than is
23
     reasonably necessary for them to compute and arrange for payments of the amounts due. As set
24
     forth above, Respondent knew or should have known that FLSA Claimants were working in
25
     non-exempt jobs in excess of 40 hours per week workweek without overtime compensation.
26
     Notwithstanding such knowledge, Respondent failed to pay FLSA Claimants for their
27
     overtime hours worked in a timely manner as required under the FLSA.
28

                                                  - 18 -

                            CLASS ACTION COMPLAINT AND DEMAND FOR ARBITRATION
 1          76.      Although Respondent has been appraised of the law regarding the payment of
 2   hours covered by the FLSA, Respondent routinely failed to compensate FLSA Claimants
 3   for their overtime in a timely manner.
 4          77.      In doing all the things described and alleged, Respondent deprived FLSA
 5   Claimants and similarly situated persons of their rights, privileges and immunities secured to
 6   them by federal law which clearly sets forth that FLSA Claimants are entitled to be paid for
 7   overtime hours worked in a workweek by the regular pay day for the period in which such
 8   workweek ended. Respondent knew or should have known that their reckless and/or willful and
 9   intentional failure to pay in a timely manner for the overtime worked by FLSA Claimants and
10   others violates these rights, privileges and immunities.
11           78.     As a direct proximate result of Respondent's actions and inactions, FLSA
12   Claimants and other similarly situated persons have been damaged, and are entitled to
13   compensatory and/or liquidated damages in an amount according to proof including, but not
14   limited to, a sum equivalent to and in addition to their overtime compensation which was paid
15   late for the three years preceding the date of their opt-in into the present actions as required by
16   29 U.S.C. § 216(b).
17           79.     FSLA Claimants are entitled to and therefore request an award of pre-
18   judgment interest on the unpaid wages set forth herein.
19
             80.     FSLA Claimants have incurred, and will continue to incur attorney fees and
20
     costs in the prosecution of this action. FSLA Claimants seek attorneys' fees under all applicable
21
     provisions of law. Wherefore, California Claimants pray judgment as set forth herein below.
22

23
                                    XII. ATTORNEY FEES AND COSTS
24
            81.      Enforcement of federal and state statutory provisions enacted to protect workers
25
     and to ensure proper and prompt payment of wages due to employees is a fundamental public
26
     policy. Consequently, Claimants' success in this action will result in the enforcement of
27
     important rights affecting the public interest and will confer a significant benefit upon the
28

                                                   - 19 -

                           CLASS ACTION COMPLAINT AND DEMAND FOR ARBITRATION
 1   general public. Private enforcement of the rights enumerated herein is necessary as no public
 2   agency has pursued enforcement for the class. Claimants are incurring a financial burden in
 3   pursuing this action and it would be against the interest of justice to require the payment of any
 4   attorney's fees and costs from any recovery that might be obtained herein. As prayed for below,
 5
     Claimants and their counsel all other counsel retained by Claimants, are entitled to and seeks an
 6
     award of attorneys' fees and costs pursuant to Code of Civil Procedure § 1021.5, Labor Code §
 7
     1194, the FSLA and all other applicable laws.
 8

 9
                                  XIII. PRAYER FOR RELIEF
10
              WHEREFORE, Claimants pray for judgment against Respondent as follows:
11

12

13
     FOR THE FIRST THROUGH FOURTH CAUSES OF ACTION:

14
              l.      To certify the action as a class action as to current and former employees

15
     of Respondent employed in the State of California and/or various sub-classes of similarly

16   situated employees;

17           2.      To name Claimants counsel as class counsel;

18           3.      For damages for unpaid wages, including overtime and commissions,

19   and such general and special damages as may be appropriate, according to proof at trial;

20           4.      For 30 days waiting-time penalties under Labor Code Section 203.

21           5.      Penalties of not less than $100.00 for each violation of Labor Code Section
22   226 and up to $4,000.00 per employee.
23           6.      Statutory penalties under Labor Code Sections 204, 210, 558(a)(3).
24           7.      For damages unpaid wages for extra hours calculated at one extra hour for each
25   day where no rest period was provided and at one extra hour where no meal period was
26   provided. (Labor Code 226.7)
27

28

                                                  - 20 -

                           CLASS ACTION COMPLAINT AND DEMAND FOR ARBITRATION
 1   FOR THE FIFTH CAUSE OF ACTION:
 2             1.   An award of restitution to Claimants and other of Respondent's similarly
 3   situated affected employees employed at any time during the four years preceding filing of the
 4   complaint, in the amount equal to all unpaid wages, including overtime wages, and
 5
     commissions owed to each of them, in a total amount to be proven at trial, plus interest as
 6
     provided by statute.
 7
               2.    Restitution, including unpaid wages, unpaid regular wages, overtime wages,
 8
     commissions, interest and owing by Respondent to workers employed at any time during the
 9
     four years preceding filing of the complaint, where such wages and interest apportioned
10
     directly to a worker to whom the restitution is owed and who has been identified by the
11
     Respondent.
12
               3.     Labor Code penalties pursuant to Labor Code Sections 203, 210, 226, and
13
     226.7,
14
               4.     A permanent and mandatory injunction as provided under California Business
15
     and Professions Code §§ 17200 et seq. ordering Respondent, now and in the future, to pay
16
     employees the proper wage, and issue wage stubs that comply with California Labor Code
17
     section 226, in compliance with applicable state wage laws, and to provide rest periods and meal
18
     periods as required.
19
               5.     Equitable remedies including, but not limited to, an equitable accounting, as the
20
     court deems just and proper under the circumstances.
21

22
     FOR THE SIXTH AND SEVENTH CAUSES OF ACTION:
23
               1.    To certify the action as a class action as to current and former employees of
24
     Respondent employed in the United States, except the State of California, and/or various
25
     sub-classes of similarly situated employees;
26
              2.      To name Claimants counsel as class counsel;
27
              3.      All actual consequential, liquidated and incidental losses and damages,
28

                                                 - 21 -

                            CLASS ACTION COMPLAINT AND DEMAND FOR ARBITRATION
 1   according to proof at time of trial;
 2             4.       Such other damages as may be allowed in accordance with the Federal Rules of
 3   Civil Procedure, Rule 54(c), and 29 U.S.C. § 216(b) according to proof;
 4             5.       Liquidated damages, attorneys fees, and costs pursuant to 29 U.S.C.
 5   § 216(b); and
 6             6.      Any and all relief, including equitable relief, as the Court may deem just and
 7   proper.
 8

 9   FOR ALL CAUSES OF ACTION:
10             1.    For recovery of reasonable attorney's fees and costs of suit incurred by Claimants
11   in the interest of themselves, other employees, and the general public in the prosecution of this
12   action pursuant to applicable law, including without limitation, class action remedies, California
13   Labor Code §§ 1194, 2802, 226, 2699 and California Code of Civil Procedure § 1021.5 and 29
14   U.S.C. § 216(b);
15             2. For expenses and costs of suit; and
16
               3.    For pre-judgment interest;
17
               4. Such other relief as the court deems just and proper under the circumstances.
18

19
     Respectfully submitted,
20

21
     ___________________________
22

23
     Dated: _________________________
24

25

26

27

28

                                                   - 22 -

                            CLASS ACTION COMPLAINT AND DEMAND FOR ARBITRATION
                                           PROOF OF SERVICE
 1                                        Code Civ. Proc. § 1013a(3)
 2
              I am employed in the County of Orange, State of California. I am over the age of 18. On
 3

 4
     ______________ I served the foregoing document(s) described as:

 5

 6   STATEMENT OF CLAIM
     1.      CALIFORNIA CLASS ACTION COMPLAINT
 7           FOR DAMAGES [CAL. CCP § 382]
 8   2.      FOR UNFAIR BUS. PRACTICES [CAL. BUS. & PROF. CODE § 17200 et seq.]
 9   3.      CLASS ACTION, EXCLUDING CALIFORNIA, FOR CLAIMS UNDER FAIR
             LABOR STANDARDS ACT [29 U.S.C. § 216(b)]]
10
     DEMAND FOR ARBITRATION
11
     on all parties to this action as follows:
12
             _____ _transmitting the foregoing document(s), via facsimile to the fax number(s) set
13                  forth below on this date.
14
             _____ depositing the foregoing document(s) in the United States mail in California
15
                   in a sealed envelope with postage thereon fully prepaid, addressed
                   as set forth below.
16
            _____ personally serving the foregoing document(s) to the address(es) set forth below,
17                 or by leaving the document(s) with the secretary in charge.
           ____
18           _____ causing personal delivery of the document(s) listed above to the address(es) set
                   forth below.
19

20
                                     SEE ATTACHED SERVICE LIST
21

22           I am "readily familiar" with the firm's practice of collection and processing mail.
     Under that practice, it would be deposited with the U.S. Postal Service on that same day
23   with postage thereon fully prepaid in California in the ordinary course of business. I am aware
     that on motion of the party served, service is presumed invalid if postal cancellation date
24   or postage meter date is more than one day after date of deposit for mailing in affidavit.
25          I declare under penalty of perjury under the laws of the State of California that the
     foregoing is true and correct. Executed on _______________ in California.
26

27
     __________________________

28   Dated:_____________________

                                                  - 23 -

                           CLASS ACTION COMPLAINT AND DEMAND FOR ARBITRATION

				
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