Nicholas Malfitano Dec. 22, 2015, 8:52am


PHILADELPHIA – A bakery company’s motion to enforce a March 2014 settlement regarding wage and overtime costs has been denied, and a related breach of contract matter being heard in federal court in New Jersey does not violate the terms of that same settlement.

In a Dec. 15 decision, Judge Mitchell S. Goldberg of the U.S. District Court for the Eastern District of Pennsylvania said the separate, individual claims brought by plaintiff Robert K. Dando Jr. against Bimbo Bakeries USA in the District Court of New Jersey do not conflict with the “Released Claims” provision of the 2014 settlement agreement.

In that prior case, a class action suit, Dando and several other independent truck drivers sued Bimbo Bakeries, seeking proper wage and overtime compensation as employees and not independent contractors, and for alleged violations of the Fair Labor Standards Act (FLSA).

“In short, the plaintiffs essentially argued that Bimbo Bakeries exerted the type of control typically found in an employer-employee relationship, while neglecting to compensate class plaintiffs accordingly under the FLSA,” Goldberg said.

After that case was settled with the defendants, they executed their right of first refusal on the settlement’s distribution agreement – which Dando said was tantamount to “swindling” him out of about $79,900.

Dando subsequently filed suit against the company, and the litigation was removed to the District Court of New Jersey. Bimbo Bakeries countered with its belief this separate suit violated the “Released Claims” stipulation in the prior case’s settlement, and filed a motion for summary judgment to that effect.

Judge Noel L. Hillman of the District Court of the New Jersey denied that motion, finding Dando’s separate suit did not have an “identical factual predicate."

Goldberg explained Dando did not sign the release form in the March 2014 settlement agreement, nor did he collect the $900 available to each claimant.

Three days before the settlement was approved, on March 2, 2014, Dando said he was approached with an offer to purchase his distribution rights to sell the defendant’s products in a certain geographic area, for the price of $289,900.

After Dando lowered the price down to $210,000, the defendant utilized its right of first refusal to purchase the distribution rights. Dando said this action constituted breach of contract, while at the same time stating this separate litigation had no real connection or relational basis to the earlier class action suit. Goldberg agreed.

“None of Dando’s factual allegations have anything to do with his status as an employee, the number of hours he worked for Bimbo Bakeries, his rate of pay, his ability to sell competing products, or his adherence to certain unwritten policies imposed by Bimbo Bakeries’ management,” Goldberg said.

In the end, Goldberg concurred with Hillman that the cases do not share an “identical factual predicate” and denied the defendants’ motion for summary judgment, as well as their motion to enforce the terms of the settlement agreement to bar the case currently being heard in the District Court of New Jersey.

The plaintiff is represented by J. Edward McCain III and Zakia E. Moore of the Law Office of J. Edward McCain III, in Philadelphia.

The defendant is represented by Steven R. Wall and Michael L. Banks of Morgan Lewis Bockius, also in Philadelphia.

U.S. District Court for the Eastern District of Pennsylvania case 2:10-cv-03154

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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