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SOUTHPOLE, WICKED FASHIONS CLASSACTION COMPLAINT

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SOUTHPOLE, WICKED FASHIONS CLASSACTION COMPLAINT Powered By Docstoc
					Case 2:09-cv-02422-KSH-MAS

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Filed 05/20/2009

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COLE, SCHOTZ, MEISEL, FORMAN & LEONARD, P.A. A Professional Corporation Court Plaza North 25 Main Street P. O. Box 800 Hackensack, New Jersey 07602-0800 (201) 489-3000 (201) 489-1536 Facsimile LAW OFFICES OF HENRY L. KIM P.C. 460 Bergen Blvd. Suite 201 Palisades Park NJ 07650 (201) 585-7400 (201) 585-7422 Facsimile Attorneys for Plaintiffs THOMAS PYO and TAE WOOK RIM, on : behalf of themselves and all others similarly : situated, : : Plaintiffs, : : v. : : : WICKED FASHIONS INC. d/b/a : SOUTHPOLE, DAVID KHYM, and : JOHNS DOE 1-10, : : Defendants. : : UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CIVIL ACTION NO. Civil Action CLASS ACTION COMPLAINT AND JURY DEMAND

Plaintiffs, Thomas Pyo (“Pyo”), residing at 234 Jefferson Avenue, Tenafly, N.J. 07670 and Tae Wook Rim (“Rim”), residing at 201 Edgewater Towne Center, Edgewater, N.J. 07020, on behalf of themselves and all others similarly situated, by their attorneys, Cole, Schotz, Meisel, Forman & Leonard, P.A., and Law Offices of Henry L. Kim P.C., by way of Complaint against Defendants, Wicked Fashions, Inc. d/b/a Southpole (“Southpole”, the “Company” or

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“Defendant”), David Khym (“Khym”) and Johns Doe 1-10 (collectively, “Defendants”), allege as follows: INTRODUCTION 1. This is an action brought by Pyo and Rim (collectively, the “Named Plaintiffs”),

on their own behalf and on behalf of all others similarly situated (“Plaintiffs”), alleging , inter alia, willful national origin discrimination and intentional wage and hour abuses based upon Southpole’s policy and practice of requiring employees of Korean origin to work overtime without pay while generally not requiring non-Korean employees to work overtime, in violation of, inter alia, Title VII of the Civil Rights Act of 1964 (“Title VII”), the New Jersey Law Against Discrimination (“NJLAD”), the Fair Labor Standards Act (“FLSA”) and New Jersey’s Wage and Hour Laws and Regulations (“NJWHLR”). JURISDICTION AND VENUE 2. This Court has subject matter jurisdiction over this action pursuant to 28

U.S.C. § 1331, 42 U.S.C. § 2000e-2(a)(1) et seq. and 29 U.S.C. § 201 et seq., and has supplemental jurisdiction over all other claims pursuant to 28 U.S.C. § 1367 as they are so related to claims in this action within such original jurisdiction that they form part of the same case or controversy. 3. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b) in that Southpole

resides or is found, and a substantial part of the events or omissions giving rise to the claims occurred, in this District. FIRST COUNT Identification of the Parties 4. Southpole is an enterprise engaged in commerce and in the manufacture,

production, distribution and sale of goods for interstate commerce of what is known as 2
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“streetwear, urban or hip hop clothing,” with its headquarters located at 222 Bridge Plaza South, Fort Lee, N.J. 07024. Southpole has retained various rap stars to promote its gritty street image, including Coolio, Mobb Deep, Ciara and Keyshia Cole. 5. Southpole employs approximately three hundred (300) non-exempt employees

of which approximately 90% are of Korean national origin. Southpole has annual sales in excess of $400 million. 6. The Named Plaintiffs are former non-exempt production employees of

Southpole who worked substantial overtime hours without pay and who were from time to time assigned to various departments until their employment was terminated. Pyo worked in production from approximately April, 2006 to December, 2008 and Rim in production, sales planning and operations from approximately January 2005 to late March 2009. 7. Khym, the President and Chief Executive Officer of Southpole, founded the

Company in 1991. A native Asian, Khym used his knowledge of Asian culture and his ability to speak Korean to lower the prices which previously had been charged for streetwear sold to young consumers. 8. Khym and Defendants Johns Doe 1-10 (“Johns Doe”) are individual officers,

directors and/or managing agents of Southpole who may have personal liability for unpaid wages. Plaintiffs will seek to amend the Complaint to allege the true names of the John Doe individuals when they become known. Southpole Required Non-Exempt Employees of Korean Origin to Work Overtime 9. At all relevant times, Southpole was Plaintiffs’ “employer” within the meaning

of the FSLA and the NJWHLR and, as such, had the power to hire and fire its employees, set their wages, issue W-2 forms, control terms of employment, and maintain employee records as required by law. 3
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10.

Southpole’s non-exempt employees of Korean national origin, including those

in various departments such as production, merchandising, operations and sales planning, were expected by the Company to start work by 9:00 a.m., but were routinely required to work without pay well beyond 6:00 p.m. under the guise of “getting the job done.” Such a practice has gone on for years at Southpole, including throughout the class period. 11. While expecting employees of Korean national origin to work overtime without

pay, the Company “encouraged” employees of non-Korean origin to punch out by 6:00 p.m. each day so as to not exceed forty (40) hours of work in any given week. Upon information and belief, the Company and its executives, who are of Korean origin, feared that, unlike “compliant” and “quiet” Korean employees, the other employees would be so “legalistic” and “demanding” that it would be harder to control them. Defendant’s Willful Failure to Pay Overtime to Employees of Korean Origin 12. At all relevant times, Southpole has maintained a professionally drafted

employee handbook wherein it expressly acknowledges its legal duty to pay non-exempt employees for hours worked in excess of forty (40) hours per week. Moreover, at all relevant times Southpole has had a human resource department which possesses the expertise sufficient to carry out its legal obligations under the various wage and hour and discrimination laws and has had a full time in-house legal counsel whose responsibility it is to render legal advice to ensure that the Company is in compliance with its various legal requirements. 13. Notwithstanding the above and despite enjoying record profits, Southpole has

expected and required its non-exempt employees of Korean national origin to work in excess of forty (40) hours per week without pay throughout the proposed class period, and the

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Company has not kept accurate records of their daily starting and quitting times or daily and weekly hours worked, as required by federal and state law. 14. The Company’s failure to comply with such legal requirements was willful,

wanton, malicious and in reckless disregard to Plaintiffs’ rights. Class Action Allegations 15. The Named Plaintiffs bring this action individually and as class representatives

on behalf of themselves and all other current and former non-exempt Southpole employees of Korean national origin who at any time during the class period worked more than forty (40) hours in any given week without overtime pay. 16. Upon information and belief, at any given time during the class period

Southpole employed approximately three hundred (300) non-exempt employees of which the vast majority are of Korean origin. Accordingly, the Named Plaintiffs are informed and believe, and on this basis allege, that with attrition and job turnover for other reasons, the class may exceed five hundred persons, that the class is so numerous that joinder of all members is impracticable, that there are questions of law or fact common to the class, and that members of the class are similarly situated. Therefore, the Named Plaintiffs submit that this class should be certified as a class action. 17. The Named Plaintiffs are proper representatives of this class and will fairly and

more than adequately represent the class. The class representatives’ claims are typical of the claims of all members of the class in that all class members allege that they were the victims of the Company’s single policy and/or uniform pattern and practice of not paying overtime to employees of Korean national origin. 18. This action should be certified as a class action because the prosecution of

separate actions by individual members of the class would create a risk of either inconsistent or 5
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varying adjudications with respect to individual members of the class, or adjudications with respect to individual members of the class that would as a practical matter be dispositive of the interests of the other members not parties to the adjudication, or substantially impair or impede their ability to protect their interests. 19. Questions of law and fact common to the class predominate over any questions

affecting individual members because the central issue in this litigation will be the impropriety of the Company’s single policy and/or uniform pattern and practice of failing and/or refusing to pay overtime to non-exempt employees of Korean national origin. 20. Proceeding as a class action is also superior to other available methods for the

fair and efficient adjudication of the controversy. It will result in enormous savings to both the courts and the class in litigating common issues on a classwide instead of on a repetitive, individual basis. Moreover, despite the relatively small size of individual class members’ claims, their aggregate value, coupled with economies of scale inherent in litigating substantially similar claims on a common basis, will enable this case to be litigated as a class action on a cost-effective basis especially when compared with repetitive individual litigations. 21. The class representatives’ claims are not subject to any unique defenses nor do

any interests of the class representatives in this litigation conflict with the interests of any potential class member. 22. Counsel for the class has over twenty-five (25) years’ experience handling class

actions and other forms of complex employment and other litigation and will appropriately represent the Named Plaintiffs and the class. 23. Plaintiffs anticipate that there will be no difficulty in the management of this

litigation. This litigation presents Title VII, NJLAD, FLSA and NJWHLR claims of a type

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that often and typically are prosecuted on a class-wide basis, and the manner of identifying the class and providing monetary relief to it can easily be determined from a review of Southpole’s records. 24. The Named Plaintiffs and others similarly situated have been substantially

damaged by Defendants’ wrongful conduct. CAUSE FOR ACTION (Violations Of Title VII Of The Civil Rights Act Of 1964) 25. Southpole violated, among other things, Title VII of the Civil Rights of 1964,

by, inter alia, engaging in a pattern and practice of failing to pay overtime to Plaintiffs on the basis of their national origin. 26. The aforesaid actions and/or inactions of Southpole were willful, wanton,

malicious and in reckless disregard of Plaintiffs’ rights. WHEREFORE, the Named Plaintiffs, individually and on behalf of all others similarly situated, demand judgment against Defendant, Wicked Fashions, Inc., as follows: A. B. C. D. E. F. the circumstances. Damages; Punitive damages; Reasonable attorneys’ fees; Interest; Costs of suit; and Such other and further relief as the Court deems just and equitable under

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SECOND COUNT (Violations of the NJLAD) 27. The Named Plaintiffs, on behalf of themselves and all other similarly situated,

repeat and reallege all of the allegations set forth in Paragraphs 1 through 26 as if same were fully set forth at length herein. 28. Defendants violated, among other things, the NJLAD by, inter alia, engaging in

a pattern and practice of failing to pay overtime to Plaintiffs on the basis of their national origin. 29. Khym and Defendants John Doe 1-10 are individual officers, directors and/or

managing agents of Southpole who have personal liability for unpaid wages, interest and/or other damages due the Named Plaintiffs and the class. 30. The aforesaid actions and/or inactions of Defendants were willful, wanton,

malicious and in reckless disregard of Plaintiffs’ rights. WHEREFORE, the Named Plaintiffs, individually and on behalf of all others similarly situated, demand judgment against Defendants, jointly, severally and/or in the alternative, as follows: A. B. C. D. E. F. the circumstances. Damages; Punitive damages; Reasonable attorneys’ fees; Interest; Costs of suit; and Such other and further relief as the Court deems just and equitable under

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THIRD COUNT (Violations of the FLSA) 31. The Named Plaintiffs, on behalf of themselves and all other similarly situated,

repeat and reallege all of the allegations set forth in Paragraphs 1 through 30 as if same were fully set forth at length herein. 32. Southpole violated, among other things, the FLSA by, inter alia, engaging in a

pattern and practice of failing to pay overtime to non-exempt employees of Korean origin. 33. The aforesaid actions were willful, wanton, malicious and in reckless disregard

of Plaintiffs’ rights. WHEREFORE, the Named Plaintiffs, individually and on behalf of all others similarly situated, demand judgment against Wicked Fashions, Inc. as follows: A. B. C. D. E. F. G. the circumstances. FOURTH COUNT (Violations of NJWHLR) 34. The Named Plaintiffs, on behalf of themselves and all other similarly situated, Damages; Liquidated damages; Punitive damages; Reasonable attorneys’ fees; Interest; Costs of suit; and Such other and further relief as the Court deems just and equitable under

repeat and reallege all of the allegations set forth in Paragraphs 1 through 33 as if same were fully set forth at length herein.

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35.

Defendants violated, among other things, the NJWHLR by, inter alia, engaging

in a pattern and practice of failing to pay overtime to non-exempt employees of Korean origin. 36. Khym and Defendants Johns Doe 1-10 are individual officers, directors and/or

managing agents of Southpole who have personal liability for unpaid wages, interest and/or other damages due the Named Plaintiffs and the class. 37. The aforesaid actions and/or inactions of Defendants were willful, wanton,

malicious and in reckless disregard of Plaintiffs’ rights. WHEREFORE, the Named Plaintiffs, individually and on behalf of all others similarly situated, demand judgment against Defendants, jointly, severally and/or in the alternative, as follows: A. B. C. D. E. F. the circumstances. COLE, SCHOTZ, MEISEL, FORMAN & LEONARD, P.A. Attorneys for Plaintiffs By: DATED: May 20, 2009 /s/ Steven Adler Steven I. Adler Damages; Punitive damages; Reasonable attorneys’ fees; Interest; Costs of suit; and Such other and further relief as the Court deems just and equitable under

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JURY DEMAND Plaintiffs hereby demand a trial by jury on all issues so triable. COLE, SCHOTZ, MEISEL, FORMAN & LEONARD, P.A. Attorneys for Plaintiffs By: /s/ Steven Adler Steven I. Adler

DATED: May 20, 2009

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