Judge closes book on class action filed against Pepsi by merchandisers

By Jon Campisi | Jan 10, 2012

A federal judge in western Pennsylvania appears to be closing a case in which Pepsi merchandisers were suing the soda retailer for allegedly not paying overtime compensation.

Chief United States District Judge Gary L. Lancaster of the U.S. District Court for the Western District of Pennsylvania ordered the case closed after the court was made aware that the parties in the class action suit had apparently reached an agreement.

The pending settlement, the terms of which were undisclosed, stemmed from the case of Dennis Thieret et al v. Bottling Group LLC, doing business as Pepsi Beverage Company.

Thirty-five merchandisers from the McKees Rocks, Pa. soda plant had earlier filed suit against the company, seeking to recover unpaid overtime wages they claimed they were owed in their capacity as non-exempt employees.

According to court papers, Pittsburgh, Pa. attorney Ernest B. Orsatti informed Pepsi counsel on March 4 of last year that he was planning to file suit 10 days later “unless the matter could be amicably resolved.”

At the request of the defendant’s counsel, Orsatti initially delayed in filing the suit, but then reconsidered after it was apparent that the matter would not be resolved outside of court.

The lawsuit had accused Pepsi of violating the federal act that requires all non-exempt employees to be paid at the rate of two-and-a-half times the regular hourly rate of pay for all hours worked in excess of 40 per week.

“Plaintiffs believe that Pepsi’s violation of the Act was willful because, despite knowledge that plaintiffs were not exempt under the Motor Carriers exemption or any other exemption, and plaintiffs knowledge of the results of a similar lawsuit involving a related company, Frito-Lay, Inc., Pepsi continued to refuse and continues [to refuse] to pay overtime in accordance with the Act,” the lawsuit had read.

In addition to the overtime pay, the plaintiffs had sought liquidated damages, interest, attorney’s fees and other litigation costs.

In his order dated Jan. 9, Lancaster directed the clerk of court to mark the case closed.

“Nothing contained in this order shall be considered a dismissal or disposition of this matter and this court shall retain jurisdiction,” the order states. “Should further proceedings in it become necessary, or desirable, either party may initiate it in the same manner as if this order had not been entered.”

In a brief emailed response to an inquiry about the supposed resolution, plaintiff’s attorney Orsatti said the settlement is not public and is not technically finalized as of yet.

“It is subject to a contingency which has not yet been satisfied,” Orsatti wrote.

Orsatti declined further comment.

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