Case 2:18-cv-05174-AB Document 1 Filed 11/29/18 Page 1 of 32
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
VICTOR FUENTES, individually Civil Action No.: ( %- S- J7 'f and on behalf of all others similarly situated, Complaint -- Class Action
Plaintiff, Jury Trial Demanded v. /
ROY AL DUTCH SHELL PLC, SHELL OIL COMPANY, PENNZOIL-QUAKER STATE COMP ANY and JIFFY LUBE INTERNATIONAL, INC.,
Defendants.
INTRODUCTION
I. Average hourly pay at Jiffy Lube shops in the United States ranges from approximately $8.14 per hour for an Entry Level Technician to $16. 88 per hour for an lnspector. 1 In contrast, the United States' "living wage"-the
··approximate income needed to meet a family's basic needs"-is $15.12. ~
2. Likely contributing to this wage gap, according to a study by two
Princeton economists, are no-poach provisions in franchise agreements which
1 https://www .indeed.com/cmp/Jiffy-Lube/salaries 2 Massachusetts Institute of Technology (MIT), http://bit.ly/20P0QvY.
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prohibit one shop owner from offering work to employees of another shop
owner. 3 Jiffy Lube-which has more than 2,000 shops across the country
imposed such a no-poach clause in both of its standard franchise agreements. 4
Owners of a Jiffy Lube franchise, for example, cannot hire anyone who works or has worked at another Jiffy Lube within the previous six months. One of the
Princeton study' s authors explains that these no-poach provisions can
"significantly influence pay" by obviating the need for franchise owners to compete for the best workers. 5
3. Another study, co-authored by Eric Posner, a professor at the
University of Chicago Law School, found that "[w]hen a franchisor requires the different franchisees within its chain not to poach each other's workers ... the no-poaching agreement is anticompetitive, and will tend to suppress the wages of workers. " 6
4. Many states, such as California and Oklahoma, prohibit non- compete clauses in employment agreements. But by facilitating agreements between franchise owners not to compete for each other's workers, major brands like Jiffy Lube have been able to effectively utilize and enforce these prohibited clauses.
3 https://nyti.ms/2Ik0on9. 4 Jiffy Lube has two distinct franchise agreements; one that includes a "Products Program" requiring use of Pennzoil products, and one that does not. 5 Id. 6 http://bit.ly/2DBGJSE.
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5. Federal courts recognize that these no-poach clauses in franchise agreements are anticompetitive agreements between and among franchisors and franchisees to reduce worker wages. For instance, in June 2018 a federal court upheld a federal antitrust claim against McDonald's for its no-poach clause, opining that "[e]ven a person with a rudimentary understanding of economics would understand" that if McDonald's franchises do not compete with each other for workers, wages "would stagnate. " 7 Another federal court ruled similarly in an antitrust action pertaining to Jimmy John's no-poach agreements. 8
6. Many states' attorneys general are investigating franchise businesses for their no-poach practices, and, as of October 15, 2018, at least 30 national chains have already entered consent decrees with the Washington
Attorney General, pledging to remove no-poach provisions from their franchise agreements. 9
7. While eliminating these anticompetitive clauses will help workers going forward, current and former employees of Jiffy Lube shops-including
Plaintiff Victor Fuentes-are owed antitrust damages for years of wage suppression. This action seeks to recover these damages and obtain additional injunctive relief on behalf of Mr. Fuentes and similarly situated Jiffy Lube
7 Deslandes v. McDonald's USA, LLC, No. 17 C 4857, 2018 WL 3105955, at *5 (N.D.111. June 25, 2018) (citation omitted). 8 Butler v. Jimmy John's Franchise, LLC, No. 18-cv-0133-MJR-RJD, 2018 WL 3631577 (S.D.111. July 31, 2018). 9 https://bit.ly/2SegSm W.
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workers.
8. Jiffy Lube's no-poach provision violates Section 1 of the Sherman
Act, 15 U .S.C. § I. By conspiring with and facilitating franchisees to enter into agreements not to compete with one another and with Jiffy Lube itself, Jiffy
Lube harmed Plaintiff and the class by suppressing their wages.
JURISDICTION AND VENUE
9. This action is instituted under Sections 4 and 16 of the Clayton
Act, 15 U.S.C. §§15 and 26, to recover treble damages and the costs of this suit, including reasonable attorneys' fees, against Defendants for the injuries sustained by Plaintiff as a result of Defendants' violations of Section 1 of the
Sherman Act, 15 U .S.C. § I and to enjoin further violations.
IO. Under Sections 4 and 16 of the Clayton Act, 15 U.S.C. §§15 and
26 and Section 4 of the Sherman Act, 15 U .S .C. §4, as well as 28 U .S .C. § § 1331,
1332(d), and 1337, the Court has subject matter jurisdiction to prevent and restrain the Defendants from violating Section I of the Sherman Act, 15 U.S.C.
§ 1.
11. Venue is proper in this judicial district under Sections 4, 12, and
16 of the Clayton Act, 15 U.S.C. §§15, 22, and 26, and under 28 U.S.C.
§ 1391 (b)(2) and (c)(2). Jiffy Lube transacts or has transacted business in this district, and many of the events that gave rise to this action occurred in this district.
12. Jiffy Lube is in the business of selling convenient lubrication, oil
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change, and light repair services for cars and light trucks to customers through independently owned and operated franchise shops. These shops may be found in 4 7 of the 50 states in the U.S. Jiffy Lube has substantial business activities with each franchised shop, including entering into a contractual franchise agreement with the owner of the franchise. Jiffy Lube engages in substantial activities at issue in this Complaint that flow through and substantially affect interstate commerce.
PLANTIFF
13. Plaintiff Victor Fuentes is a resident of Greenacres, Florida. He was employed by Mid-Atlantic Lubes, Inc., a franchisee that owns and operates approximately 20 Jiffy Lube shops in Pennsylvania and New Jersey. Fuentes was employed for about three months at the shop located in Montgomeryville,
Pennsylvania, starting as an Entry Level Technician and eventually rising to the position of Customer Service Advisor. About a year later, Fuentes obtained employment with Atlantic Coast Enterprises, LLC, a franchisee that owns and operates approximately 50 Jiffy Lube shops in Florida and South Carolina.
Fuentes was employed for about a year and a half at Jiffy Lube shops owned by this franchisee in Fort Lauderdale and Boca Raton, Florida.
DEFENDANTS
14. Defendant Royal Dutch Shell pie ("Shell") is a British-Dutch oil and gas company headquartered in the Netherlands and incorporated in the
United Kingdom. Shell owns the Jiffy Lube brand through its subsidiaries Shell
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Oil Company ("SOC"), Pennzoil-Quaker State Company ("Pennzoil"), and Jiffy
Lube International, Inc. ("JLI", collectively, "Defendants" or "Jiffy Lube").
15. SOC, a wholly-owned subsidiary of Shell, is a Delaware corporation headquartered in Houston, Texas.
16. Pennzoil, a wholly-owned subsidiary of Shell, is a Delaware corporation headquartered in Houston, Texas.
17. JLI, a wholly-owned subsidiary of Shell, is a Delaware corporation headquartered in Houston, Texas.
I 8. Jiffy Lube is in the business of selling convenient lubrication, oil change, and light repair services for cars and light trucks to customers through independently owned and operated franchise shops.
AGENTS AND CO-CONSPIRATORS
19. The acts alleged against Defendants in this action were authorized, ordered, or conducted by Defendants' officers, agents, employees, or representatives actively engaged rn the management and operation of
Defendants' businesses and affairs.
20. Various other corporations and persons that are not named defendants in this action, including Jiffy Lube franchisees, participated as co conspirators in the violations alleged and performed acts and made statements in furtherance of the violations alleged.
21. Each Defendant acted as the principal, agent, or joint venture of, or for, other Defendants with respect to the acts, violations, and common course of
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conduct alleged by Plaintiff.
FACTUAL ALLEGATIONS
The Franchise Model
22. Jiffy Lube operates under a franchise model which involves the owner of a business (the franchisor) licensing, in return for a fee, to third parties
(the franchisees) the right to operate a business or distribute goods and/or services using the franchisor's business name and systems (which varies depending on the franchisor) for an agreed period of time.
23. The franchise fee may be an upfront payment by the franchisee to the franchisor, an ongoing fee (e.g., an agreed percentage of revenue or profit) or a combination of the two. Franchising is an alternative to the franchisor building, owning and operating all of the stores or shops in the chain.
The Jiffy Lube System
24. Founded in 1979, there are now more than 2,000 Jiffy Lube shops across the United States and Canada, with the vast majority located in the U.S.
Jiffy Lube operates its business on a franchise model. Every Jiffy Lube shop is owned by an independent franchisee - Jiffy Lube itself does not operate any shops. It is the largest "quick lube" chain in the United States. The primary service provided by Jiffy Lube shops is the "Jiffy Lube Signature
Service® Oil Change," but shops also provide a wide variety of other light automotive repair services.
25. In the "Careers" section of its website, Jiffy Lube tells prospective
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employees that employment with Jiffy Lube is "[m]ore than just a job, but a step toward a career that lets you instantly see the results of your hard work ... " and that "Jiffy Lube provides employees with a safe and enriching work environment
10 ••• " Jiffy Lube further assures applicants that they'll "be working with one of the most reputable companies in the business, one with a stake in your success because it enhances our customers' trust in Jiffy Lube." Id.
The No-Poach Clause
26. To own a Jiffy Lube franchise, an aspiring franchisee must sign a standard franchise agreement with Jiffy Lube, with a typical term of 20 years.
In addition, a franchisee must pay a franchise fee of approximately $35,000, training and other fees, and a percentage of monthly gross sales as a royalty to
Jiffy Lube. Franchisees and managers of Jiffy Lube shops are required to attend training programs at Jiffy Lube training centers, with at least some of the cost borne by the franchisees. The total investment necessary to begin operating a
Jiffy Lube franchise shop is between approximately $234,000 and $372,650, exclusive of real estate and construction costs.
27. Beginning at an unknown date and continuing through at least
March 30, 2016, Jiffy Lube incorporated a clause into its standard franchise agreements prohibiting Jiffy Lube franchisees from soliciting or hiring existing employees of Jiffy Lube shops (the "No-Poach Clause"). Specifically, Jiffy Lube
10 https:/ /www.jiffylube.com/careers
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and franchisees agreed to the following:
Franchisee covenants that during the term of this Agreement, Franchisee will not employ or seek to employ any person who is or within the preceding six months has been an employee of Franchisor or of any System franchisee of Franchisor, either directly or indirectly, for itself or through, on behalf of, or in conjunction with any person.
28. Jiffy Lube franchisees also agreed that Jiffy Lube had the unilateral power to terminate their franchises upon a franchisee's default, which includes franchisees' failing to comply with the No-Poach Clause. Jiffy Lube franchisees, therefore, ignore the No-Poach Clause at their peril and to their financial detriment.
Jiffy Lube Shops are Independent Businesses that Compete With Each Other
29. As established by Jiffy Lube's standard franchise agreements, each Jiffy Lube franchise is operated as an independently owned and managed business, by an entity that is separate from Jiffy Lube. Specifically, the standard agreements state that each Jiffy Lube franchisee is:
an independent contractor with the right to complete control and direction of the Franchised Center, subject only to the conditions and covenants established within this Agreement, the Manual and the System Manuals. No agency, employment or partnership is created or implied by the terms of this Agreement. Franchisee's business is totally separate from Franchisor.
Jiffy Lube licenses to franchisees the right to use the Jiffy Lube brand and system in the operation of these independently owned franchise shops.
30. Jiffy Lube shops are all independently owned and operated franchises, which compete among each other. In executing a Jiffy Lube franchise agreement, a franchisee specifically acknowledges and represents that it is an
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independent business person or entity.
The No-Poach Clause Benefits Jiffy Lube Shop Owners at the Expense of Employees and Consumers
31. Although each Jiffy Lube shop is an independently owned and operated business that competes with other Jiffy Lube shops-and although each franchisee contractually is solely responsible for all aspects of the employment relationship with its employees, with the sole right to hire, discipline, promote, demote, transfer, discharge, and establish wages, hours, benefits, and employment policies, among other things-Jiffy Lube and its franchisees have agreed not to compete among each other for workers. This agreement is expressly stated in Jiffy Lube franchise agreements.
32. Jiffy Lube enforced a no-poaching conspiracy among itself and franchisees for years in order to suppress wages.
3 3. The Jiffy Lube franchise agreement contains an integration clause.
Franchisees specifically contract that, with limited exceptions, franchises are governed by the terms of the franchise agreement a franchisee executes and not by terms later agreed to by other franchisees. Jiffy Lube informs prospective franchisees that the terms of the contract will govern the franchise.
34. The Jiffy Lube Franchise Disclosure Document includes a list of all Jiffy Lube franchisees, organized by state, city, and street address.
Franchisees thus know that these entities are the other franchisees as to whom the No-Poach Clause memorialized in the franchise agreement applies.
35. The No-Poach Clause would not be in the independent interest of
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Jiffy Lube shop owners if they were acting unilaterally. The profitability of each shop is critically dependent upon the quality of the workers they employ. It is therefore in the independent interest of Jiffy Lube and each Jiffy Lube franchisee to compete for the most conscientious, talented and experienced employees.
36. The No-Poach Clause artificially restricts the ability of Jiffy Lube and its franchisees to hire employees in a manner consistent with their individual economic interests. But by acting in concert, they also protect themselves from having their own employees poached by other Jiffy Lube shops that may place value on those employees for their training, experience or work ethic. This allows Jiffy Lube shop owners to retain their best employees without having to pay market wages or provide them with attractive working conditions and opportunities for promotion.
3 7. The No-Poach Clause does not benefit consumers because it does not help to incentivize Jiffy Lube or its franchisees to invest in training workers to improve the services they provide at Jiffy Lube shops.
3 8. Consumers can gain from competition among employers because a more competitive workforce may create more or better goods and services.
Further, although unemployment is at record lows, wage growth remains sluggish. Low-paid workers regularly rely on public assistance to supplement their income. Higher wages would lessen the strain on public assistance, benefiting all consumers.
39. Critically, the No-Poach Clause does not benefit Jiffy Lube shop
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employees because it does not spur Jiffy Lube and its franchisees to invest in
higher wages, benefits, and improved working conditions to compete for their
labor. Because employees are not rewarded appropriately for their efforts, they
are not motivated to excel at their jobs. Competition among employers helps
actual and potential employees through higher wages, better benefits, or other
terms of employment.
40. Jiffy Lube and its franchisees have a shared anticompetitive
motive to keep labor costs low. As noted above, franchisees pay Jiffy Lube
royalties based on a percentage of gross sales. Cost of labor therefore has a
direct impact on franchisees' profitability. By agreeing not to compete for labor,
they act against their unilateral self-interest, but serve and benefit from their
shared interest.
41. But for the No-Poach Clause, each Jiffy Lube franchise is its own
economic decision-maker with respect to hiring, firing, staffing, promotions and
employee wages. But for the No-Poach Clause, each Jiffy Lube shop would compete with each other for the best-performing and most qualified employees.
Jiffy Lube Systematically Suppresses Employee Wages and Mobility Through the No Poach Clause
42. Low wages are consistent across Jiffy Lube shops. This has allowed Jiffy Lube owners and executives, and Jiffy Lube franchisees, to enrich themselves financially while full-time, hardworking employees often must resort to government benefits just to survive. A material reason for this is that Jiffy
Lube has orchestrated an agreement among franchisees to stifle employee wages
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and mobility.
43. If Jiffy Lube shop owners had to either pay and promote good
employees, or lose them to competitor locations, they would be forced to pay
competitive wages and provide competitive promotion opportunities. However,
because of the No-Poach Clause-and because their workers' levels of
education, training and experience within Jiffy Lube shops are unique and not
easily transferrable to other shops-franchisees do not compete with each other,
and they do not have to compete with non-Jiffy Lube businesses for their
employees, excepting entry-level positions.
44. Jiffy Lube and its franchisees are well-versed in no-poaching
efforts as they regularly employ highly restrictive "unfair competition"
agreements binding the franchise owners. Pursuant to the franchise agreements,
both during and after the franchise term, Jiffy Lube franchisees are contractually
prohibited from engaging indirectly or directly in any other business
"substantially similar" to a Jiffy Lube shop.
45. Jiffy Lube's form employment applications include a specific
inquiry into whether the candidate has previously been employed at a Jiffy Lube shop. The application requests information about the dates, location, and supervisor relating to any such employment. The potential employer can use this information to quickly determine whether the No-Poach Clause is implicated for an applicant.
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Jiffy Lube Employees Cannot Easily Leverage Their Skills to Gain Employment Elsewhere
46. Training, education, and experience at Jiffy Lube shops are not easily transferrable to other shops for a number of reasons.
4 7. Jiffy Lube reserves for itself the right to specify or require certain brands or models of communications equipment, computer systems, hardware for back-office and point-of-sale systems, printers and peripherals, backup systems, and the like.
48. Franchisees pay system-support fees for these proprietary systems and acknowledge that these systems provide access to confidential and proprietary information. Experience with these systems affords little value to other brand shops.
49. Franchisees use approved or mandatory suppliers and vendors affiliated with Jiffy Lube. Experience with these vendors is of little value to other shops.
50. Franchisees also utilize proprietary operating procedures, described in Jiffy Lube proprietary operating materials.
51. A no-poach agreement like the agreement among Jiffy Lube and its franchisees reduces employees' outside options and renders them less likely to quit, thereby increasing the share of net-returns captured by Jiffy Lube employers. Further, a no-poach agreement among all Jiffy Lube shop owners increases the specificity and one-off nature of human capital investment, as training that is productive throughout the chain can be used only by a single
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franchisee pursuant to the agreement.
A Competitive Labor Market Would Include Solicitation and Hiring of Jiffy Lube Shop Employees by Other Jiffy Lube Shop Owners
52. All Jiffy Lube shops compete with each other. In a free, properly functioning and lawfully competitive labor market, Jiffy Lube franchisees would openly compete for labor by soliciting current employees of one or more other
Jiffy Lube shops (i.e., attempting to "poach" other shops' employees).
53. For all these reasons, the fundamental principle of free competition applies to the labor market as well as to trade. "In terms of suppressing competition, companies agreeing not to compete for each other's employees is the same as companies agreeing not to compete for each other's customers." 11
54. According to Peter Cappelli, Wharton management professor and director of Wharton's Center for Human Resources, a no-poaching agreement is unfair to employees and such a pact "benefits the companies at the expense of their employees." Mr. Cappelli notes that the reason such agreements are illegal and violate both antitrust and employment laws is because "[c]ompanies could achieve the same results by making it attractive enough for employees not to leave." 12
11 Joseph Harrington, Wharton professor of business economics and public policy, https ://whr. tn/ScKBx2. 12 Id.
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55. The collusion of employers to refrain from hiring each other's employees restricts employee mobility. This raises employers' power in the market at the expense of employees and diminishes employees' bargaining power. This is especially harmful to employees of Jiffy Lube shops as those employees are frequently paid below a living wage, and the marketable skills they acquire through their work at such shops primarily have value only to other such shops and do not easily transfer to other automotive service shops or businesses. No-poach agreements have anti-competitive impact in labor markets analogous to that of mergers in product markets.
56. Although unemployment in the United States is currently very low, wage growth stagnates. A decade removed from the Great Recession, wage growth has remained stuck below 3 percent. 13 A growing number of commentators identify proliferating no-poaching agreements-including those used within franchise systems-and dubious employee non-compete agreements as significant contributors to the atrophy in wage growth. 14
Government Action in Response to Illegal No-Poach Agreements
57. The United States Department of Justice (DOJ) has pursued and resolved civil antitrust investigations relating to no-poach agreements made between or among employers. For instance, in 2010, DOJ settlements with six high-tech employers prohibited those companies from engaging rn
11 See https://bit.ly/2FEpagY. 14 See, e.g., https://nyti.ms/2Ik0on9; https://nyti.ms/2t04myZ.
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anticompetitive no-solicitation agreements relating to their employees on a going-forward basis.
58. The 2016 DOJ/FTC Antitrust Guidance for Human Resource
Professionals states: "Naked wage-fixing or no-poaching agreements among employers, whether entered into directly or through a third party intermediary, are per se illegal under the antitrust laws."
59. In July 2018, attorneys general (A Gs) of 11 states announced an investigation into no-poaching hiring practices at a number of franchise chains.
According to a release from Illinois Attorney General ("AG") Lisa Madigan, the state is investigating no-poach agreements because those agreements "unfairly stop[] low-income workers from advancing and depress[] their wages." The state
AGs demanded documents and information from franchisors about their no- poach practices.
60. On or about August 12, 2018, State of Washington Attorney
General Bob Ferguson announced that in order to avoid lawsuits, certain franchisors had reached agreements to discontinue enforcement of no-poach provisions and to take steps to remove no-poach language from franchise agreements going forward.
REPRESENTATIVE PLAINTIFF ALLEGATIONS AND ANTITRUST INJURY
61. Plaintiff Victor Fuentes began working at the Jiffy Lube shop in
Montgomeryville, Pennsylvania in or around October of 2015. At all relevant times, Fuentes was an at-will employee.
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62. Fuentes was initially hired as an Entry Level Technician, with an hourly wage of $8.00. His excellent work quickly earned him promotions to various roles, including Upper Bay Technician and Customer Service Advisor.
Pay raises associated with these promotions were promised, but never received.
63. In or around December 2015, Fuentes decided that he would move to South Florida in 2016 to be closer to family. He requested to be transferred to a Jiffy Lube shop in South Florida, but was told that this was not possible, because that would involve employment with a different franchisee than the one for which he currently worked.
64. Unable to obtain employment at a South Florida Jiffy Lube shop,
Fuentes gave notice at the Montgomeryville shop where he was working, and left around January, 2016. He moved to South Florida in or around May of 2016.
65. Fuentes held various jobs in South Florida during the remainder of 2016, but wasn't able to find anything satisfactory. Finally, after the waiting period required by the No-Poach Clause expired, Fuentes was able to obtain employment as an Entry Level Technician at a Jiffy Lube shop in Fort
Lauderdale, Florida, with an hourly wage of $10.00.
66. Just as in Montgomeryville, Fuentes's excellent work quickly earned him promotions to various roles, including Customer Service Advisor and eventually Shift Manager. He received a raise to $11.00 per hour and performance-related bonuses. Over the course of his employment, he worked at the Fort Lauderdale shop, as well as two shops in Boca Raton that were owned
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by the same franchisee.
6 7. In December of 2017, Fuentes decided to move back to
Pennsylvania, and sought a transfer to a Jiffy Lube shop there. Again, he was
denied due to the No-Poach Agreement. In July of 2018, Fuentes left his
employment with Jiffy Lube.
68. The no-poach agreement among Jiffy Lube and its franchisees
suppressed Plaintiff's wages, inhibited his employment mobility, and lessened
his professional work opportunities.
Antitrust Injury
69. Plaintiff suffered reduced wages, reduced employment benefits, loss of professional growth opportunities, and worsened working conditions because of the express agreement to restrain trade among Jiffy Lube and its franchisees, as orchestrated, facilitated and enforced by Jiffy Lube itself.
70. Suppressed wages and employment benefits resulting from employers' agreement not to compete with each other in the labor market is injury of the type the antitrust laws were intended to prevent and flows directly from illegal nature of the No-Poach Clause.
71. The potential for broader collusion in franchise chains is enhanced when no-poach agreements are in place. Collusion is promoted when the no poach agreements can be easily generated and monitored among a concentrated group of competitors who all stand to gain profits from the collusion while maintaining similar costs.
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72. The Jiffy Lube No-Poach Clause significantly restricts
employment opportunities for low-wage workers at all Jiffy Lube shops,
including those who have not sought employment with a competitor shop and
those who have not been contacted by a competitor shop. Such a restriction
causes a wider effect upon all Jiffy Lube shop employees.
73. Plaintiff was a victim of the No-Poach Clause. By adhering to that
agreement, otherwise independently owned and operated competitor businesses
suppressed wages and stifled labor market competition for improved employment
opportunities.
CLASS ALLEGATIONS
74. Plaintiff brings this action on behalf of himself, and on behalf of
a nationwide class pursuant to Federal Rules of Civil Procedure, Rules 23(a),
23(b)(2), and/or 23(b)(3) described as follows: "All persons in the United States
who are current or former employees of a Jiffy Lube shop operated by Jiffy Lube
or a franchisee from at least 20 IO forward (the 'Class')."
7 5. Excluded from the Class are Defendants, their affiliates, officers
and directors, and the Court. Plaintiff reserves the right to modify, change, or expand the Class definition on discovery and further investigation.
76. Numerosity: While the exact number of members of the Class is
unknown to Plaintiff at this time, and can only be determined by appropriate discovery, membership in the Class is ascertainable based upon the records maintained by Defendants. At this time, Plaintiff is informed and believes that
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the Class includes thousands of members. Therefore, the Class is sufficiently
numerous that joinder of all members of the Class in a single action is
impracticable under Federal Rule of Civil Procedure Rule 23(a)(l ), and the
resolution of their claims through a class action will benefit the parties and the
Court.
77. Existence and Predominance of Common Questions of Fact and
Law: Common questions of fact and law exist as to all members of the Class
(Class Members). These questions predominate over questions affecting
individual Class Members. These common legal and factual questions include,
but are not limited to, whether:
a. Defendants engaged rn unlawful contracts, combinations, and/or
conspiracies in restraint of trade and commerce;
b. Defendants violated the Sherman Antitrust Act, 15 U .S .C. § § 1, et
seq.;
c. Defendants should be required to disclose the existence of such
agreements, contracts, combinations, and/or conspiracies;
d. P1aintiff and Class Members are entitled to damages, restitution,
disgorgement, equitable relief, and/or other relief; and
e. The amount and nature of such relief to be awarded to Plaintiff
and the Class.
78. Typicality: Plaintiff's claims are typical of the claims of the other members of the Class which he seeks to represent under Federal Rule of Civil
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Procedure 23(a)(3) because Plaintiff and each member of the Class have been
subjected to the same unlawful, deceptive, and improper practices and has been
damaged in the same manner thereby.
79. Adequacy: Plaintiff will fairly and adequately represent and
protect the interests of the Class as required by Federal Rule of Civil Procedure
Rule 23(a)(4). Plaintiff has no interests adverse to those of the Class Members.
Further, Plaintiff is committed to the vigorous prosecution of this action and, to
that end, Plaintiff has retained counsel who are competent and experienced in
handling class action litigation on behalf of consumers.
80. Superiority: A class action is superior to all other available
methods of the fair and efficient adjudication of the claims asserted in this action
under Federal Rule of Civil Procedure 23(b)(3) because:
a. The expense and burden of individual litigation make it economically
unfeasible for members of the Class to seek to redress their claims other
than through the procedure of a class action;
b. If separate actions were brought by individual members of the Class,
the resulting duplicity of lawsuits would cause members to seek to redress
their claims other than through the procedure of a class action; and
c. Absent a class action, Defendants likely would retain the benefits of
their wrongdoing, and there would be a failure of justice.
81. Defendants have acted, and refused to act, on grounds generally applicable to the Class, thereby making appropriate final equitable relief with
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respect to the Class as a whole.
FRAUDULENT CONCEALMENT
82. Plaintiff and Class Members had neither actual nor constructive
knowledge of the unlawful no-poach and no-hiring conspiracy orchestrated by
Defendants, nor would any reasonable amount of diligence by Plaintiff or the
Class have put them on notice of the conspiracy. Any statute of limitations is
therefore tolled by Defendants' intentional concealment of their No-Poach
Clause. Plaintiff and Class members were deceived regarding Defendants'
collusion to suppress wages and employment mobility and could not reasonably
discover the Defendants' anticompetitive conduct.
83. Neither Defendants nor franchisees disclosed the existence of the
no-poach conspiracy to Plaintiff or Class Members.
84. Public statements by Jiffy Lube conceal the fact that it
orchestrated and engaged in a no-poach conspiracy with its franchisees.
85. Plaintiff and the Class would thus have no reason to know of the
No-Poach Clause evidenced by franchisees' contractual undertakings with
Defendants. Plaintiff and the Class are not parties to franchisees' contractual
franchise agreements with Defendants. Nor are these contracts routinely
provided to Plaintiff and Class Members.
86. Although Defendants provided their form franchise documents to
state regulators, franchise disclosure documents and form franchise agreements are made available by Defendants only upon request by prospective franchisees.
-23- Case 2:18-cv-05174-AB Document 1 Filed 11/29/18 Page 24 of 32
Obtaining Defendants' historic franchise disclosure documents and form franchise agreements is even more difficult.
87. In order to obtain Defendants' current franchise disclosure documents and form franchise agreement from Jiffy Lube, a prospective franchisee must submit an application (with supporting documents) seeking to open a franchise. Only after Jiffy Lube reviews the application to ensure that the franchisee meets initial qualifications does Jiffy Lube provide the franchise disclosure document. Prospective franchisees are told that in order to qualify for consideration, they should have a minimum of $150,000 in liquid assets, a net worth of $450,000 or greater, and the ability to obtain financing to cover the cost of opening a location.
88. Defendants' franchise disclosure documents and form franchise agreements are not routinely provided to employees (or prospective employees) of franchisees, whether by Defendants, by franchisee employers, by regulators, or by anyone else. Historic franchise disclosure documents and form franchise agreements would never be available to franchisee employees or prospective employees.
89. Because of Defendants' successful deceptions and other concealment efforts described herein, Plaintiff and Class Members had no reason to know Defendants had conspired to suppress compensation or employee mobility.
90. As a result of Defendants' fraudulent concealment of the
-24- Case 2:18-cv-05174-AB Document 1 Filed 11/29/18 Page 25 of 32
conspiracy, the running of any statute of limitations has been tolled with respect
to the claims that Plaintiff and the Class Members have as a result of the
anticompetitive and unlawful conduct alleged herein.
CLAIM FOR RELIEF
COUNT I: VIOLATIONS OF SECTION 1 OF THE SHERMAN ANTITRUST ACT
91. Plaintiff, on behalf of himself and all others similarly situated, re-
alleges and incorporates by reference the allegations contained in paragraphs 1
through 90 of this Complaint, and further alleges against Defendants as follows:
92. Defendants orchestrated, entered into, and engaged in unlawful
contracts, combinations in the form of trust or otherwise, and/or conspiracies in
restraint of trade and commerce in violation of Section 1 of the Sherman
Antitrust Act, 15 U .S.C. § 1, et seq.
93. Defendants engaged in predatory and anti-competitive behavior by
orchestrating an agreement to restrict competition among Jiffy Lube shop
owners, which unfairly suppressed employee wages, and unreasonably restrained
trade.
94. Defendants' conduct included concerted efforts, actions and
undertakings between and among the Defendants and franchise owners with the
intent, purpose, and effect of: (a) artificially suppressing the compensation of
Plaintiff and Class Members; (b) eliminating competition among Jiffy Lube shop
owners for skilled labor; and (c) restraining employees' ability to secure better compensation, advancement, benefits, and working conditions.
-25- Case 2:18-cv-05174-AB Document 1 Filed 11/29/18 Page 26 of 32
95. Defendants perpetrated the scheme with the specific intent of
lowering costs to the benefit of Defendants and franchise owners.
96. Defendants' conduct in furtherance of the no-poach agreement was
authorized, ordered, or executed by their officers, directors, agents, employees,
or representatives while actively engaging in the management of Defendants'
affairs.
97. Plaintiff and Class Members have received lower compensation
from Jiffy Lube shops than they otherwise would have received in the absence
of Defendants' unlawful conduct and, as a result, have been injured in their
property and have suffered damages in an amount according to proof at trial.
98. Defendants' contracts, combinations, and/or conspiracies are per
se violations of Section 1 of the Sherman Antitrust Act.
99. In the alternative, Defendants are liable under a "quick look"
analysis where an observer with even a rudimentary understanding of economics
could conclude that the arrangements in question would have an anticompetitive
effect on employees and labor.
100. Defendants' contracts, combinations, and/or conspiracies have had
a substantial effect on interstate commerce.
IO I. As a direct and proximate result of Defendants' contracts,
combination, and/or conspiracy to restrain trade and commerce, Plaintiff and
Class Members have suffered injury to their business or property and will continue to suffer economic injury and deprivation of the benefit of free and fair
-26- Case 2:18-cv-05174-AB Document 1 Filed 11/29/18 Page 27 of 32
competition.
102. Plaintiff and the Class Members are entitled to treble damages, attorneys' fees, reasonable expenses, costs of suit, and, pursuant to 15 U.S.C.
§26, injunctive relief, for the violations of the Sherman Antitrust Act and the threatened continuing violations alleged herein.
PRAYER FOR RELIEF
I 03. Wherefore, Plaintiff, on behalf of himself and Members of the
Class, requests that this Court:
A. Determine that the claims alleged herein may be maintained as a Class
Action under Rule 23 of the Federal Rules of Civil Procedure, and issue
an order certifying the Class as defined above;
B. Appoint Plaintiff as the representative of the Class and his counsel as
Class Counsel;
C. Declare that Defendants' actions as set forth in this Complaint violate
the law;
D. Award Plaintiff and the Class damages in an amount according to proof
against Defendants for Defendants' violations of 15 U .S .C. § 1, to be
trebled in accordance with those laws;
E. Award all actual, general, special, incidental, statutory, punitive, and
consequential damages and restitution to which Plaintiff and the Class
Members are entitled;
F. Permanently enjoin Defendants from enforcing or adhering to any
-27- Case 2:18-cv-05174-AB Document 1 Filed 11/29/18 Page 28 of 32
existing agreement that unreasonably restricts competition as described
herein;
G. Permanently enjoining and restraining Defendants from establishing
any similar agreement unreasonably restricting competition for employees
except as prescribed by this Court;
H. Order Defendants to notify all Class Members that they have the
unrestricted right to seek employment at any Jiffy Lube shop;
I. Declare Defendants to be financially responsible for the costs and
expenses of a Court-approved notice program by mail, broadcast media,
and publication designed to give immediate notification to Class Members;
J. Award pre-judgment and post-judgment interest on such monetary relief;
K. Award reasonable attorneys' fees, costs and litigation expense; and
L. Grant such further relief that this Court deems just and proper.
JURY DEMAND
Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiff demands a trial by jury of all issues so triable.
-28- Case 2:18-cv-05174-AB Document 1 Filed 11/29/18 Page 29 of 32
Dated: November 29, 2018
John A. Yanchunis j yanch [email protected] Florida Bar No. 324681 Marcio W. Valladares m val [email protected] Florida Bar No. 0986917 MORGAN & :MORGAN COMPLEX LITIGATION GROUP 201 North Franklin Street, Seventh Floor Tampa, Florida 33602 l~)ep~: (813) 22:Yft505 x.~17,1 CVl ~ r~,...«----- Isl Kevin Clancy Boylan Kevin Clancy Boylan c [email protected] Pennsylvania Bar No. 314117 MORGAN & MORGAN 1600 John F. Kennedy Blvd, Suite 900 Philad~lh' , PA 19102 Telephoe:~
lsfMic ael L. Schrag Michael L. Schrag (pro hac vice to be submitted) [email protected] Eric H. Gibbs (pro hac vice to be submitted) [email protected] Joshua J. Bloomfield (pro hac vice to be submitted) [email protected] GIBBS LAW GROUP LLP 505 14th Street, Suite 1110 Oakland, California 94612 Telephone: ) 350-9700 Facsimile: 0) 350-9701 ~
ls/fc orge W. Sampson George W. Sampson (pro hac vice to be submitted)
-29- Case 2:18-cv-05174-AB Document 1 Filed 11/29/18 Page 30 of 32
[email protected] SAMPSON DUNLAP LLP 1001 4th Ave., Suite 3200 Seattle, WA 98154 Telephone: (206) 369-3962
Attorneys for Plaintiff Victor Fuentes and the Proposed Class
-30- Case 2:18-cv-05174-AB Document 1 Filed 11/29/18 Page 31 of 32
ATTORNEY ATTACHMENT
Isl John A. Yanchunis John A. Yanchunis jyanch u [email protected] m Florida Bar No. 324681 Marcia W. Valladares [email protected] Florida Bar No. 098691 7 MORGAN & MORGAN COMPLEX LITIGATION GROUP 201 North Franklin Street, Seventh Floor Tampa, Florida 33602 Telephone: (813) 223-5505
Isl Kevin Clancy Bovian Kevin Clancy Boylan [email protected] Pennsylvania Bar No. 314117 MORGAN & MORGAN 1600 John F. Kennedy Blvd, Suite 900 Philadelphia, PA 19102 Telephone: (215) 446-9795
Isl Michael L. Schrag Michael L. Schrag (pro hac vice to be submitted) [email protected] Eric H. Gibbs (pro hac vice to be submitted) [email protected] Joshua J. Bloomfield (pro hac vice to be submitted) [email protected] GIBBS LAW GROUP LLP 505 14th Street, Suite 111 o Oakland, California 94612 Telephone: (510) 350-9700 Facsimile: (510) 350-9701
Isl George W. Sampson George W. Sampson Case 2:18-cv-05174-AB Document 1 Filed 11/29/18 Page 32 of 32
(pro hac vice to be submitted) george@sam psond unlap. com SAMPSON DUNLAP LLP 1001 4th Ave., Suite 3200 Seattle, WA 98154 Telephone: (206) 369-3962 \ - Case 2:18-cv-05174-AB Document 1-1 Filed 11/29/18 Page 1 of 1 JS 44 (Rev 06il 7) CIVIL COVER SHEET ) i-S114 The JS 44 c1v1l cover sheet and the mformation contamed herem neither replace nor supplement the filmg and service of pleadmgs or other papers as reqmred by law, except as provided by local rules of court This form, approved by the Jud1c1al Conference of the Umted States m September 1974, 1s reqmred for the use of the Clerk of Court for the purpose ofm1t1atmg the c1v1l docket sheet (SFF JNS1RU('T10NS ON NEX1 PAGF Or THIS H>RMJ I. (b) County of Residence of First Listed Plamt1ff County of Residence of First Listed Defendant (E.XCEP T TN /; S PLAINTT (IN US PLAINT/ff CASE'S ONLY) NOTE IN LAND CONDFMNATION CASES, USE THE LOCATION OF THE TRACT OF l AND INVOl VfD ( c) Attorneys (firm Name Address and Telephone Attomeys (If Known) Morgan & Morgan 201 N F ranklm Street 7th Floor. Tampa FL 33602 (see attachment) II. BASIS Of' .n;rusm ION (Plpcean "X mOneBoxOnty) III. CITIZENSHIP OF PRINCIPAL PARTlESrnacean ·x mOneBoxforPiamuff (/.or Dtverstl), ( 'ases Only) and One Box for Dejendanl) '.J I V S Government Question PTF F PTF DEF Plamtiff S Government Not a Party) Citizen of Tius Stale I Incorporated or Pnnc1pal Place cl 4 '.J of Busmess ln Tius State cl 2 L: S Government Incorporated and Pnnupal Place (J 5 Defendant of Busmess In Another State cl 3 Foreign Nation cl 6 IV. 'SATURE OF SUIT (Place an "X mOneBoxOnlyJ Chck here for Nature of Smt Code Descn t1ons /.tt':OON ,, ";t~ ¥~ (b E cl 110 lnsurance PERSONAL INJURY PERSONAL INJl'R\' ('J 62 5 Drug Related Seizure "J 422 Appeal 28 USC 158 (J 375 False Clauns Act cl 120 Manne '.'J 310 Airplane ('J 365 Personal Injury · of Property 21 use 881 cl 423 Withdrawal ::J 376 Qm Tam (11 L:SC :'.J 130 Miller Act "J 315 Airplane Product Product L1ab1hty cl 690 Other 28 l!SC 157 3729(a)) cl 140 Negotiable Instrument L1ab1hty cl 36 7 Health Care, cl 400 State Reapporbonment 8 150 Recovery of Overpayment cl 320 Assault, Libel & Phannaceutical X 410 Antitrust & Fnforcement of Judgment Slander Personal Injury (J 820 C opynghts 8 4 30 Banks and Bank mg '.J 151 Medicare Act ::J 330 Federal Employers' Product l ,ab1hty cl 830 Patent (J 4 50 Commerce :J 152 Recovery of Defaulted l rnb1hty cl 368 Asbestos Personal cl 835 Patent · Abbreviated cl 460 Deportation Student Loans "J 340 Manne Injury Product New Drug Apphcauon cl 4 70 Racketeer Influenced and (Excludes Veterans) cl 34 5 Manne Product L1ab1hty (J 840 Trademark Corrupt Organizations cl I 5 3 Recovery of Overpayment L1ab1hty PERSONAL PROPER I\' cl 480 Consumer Credit of Veteran's Benefits cl 350 Motor Vehicle cl 370 Other Fraud '.'J 710 Fair Labor Standards cl 861 HIA ( 1395ft) cl 490 Cable/Sat TV 8 160 Stockholders' Swts cl 355 Motor Vehicle (J 37 l Truth m Lendmg Act cl 862 Black Lung (92 3) :J 850 Secunties/Commodtnes, ('J 190 Other Contract ('J 380 Other Personal 8 720 Labor/Management cl 863 DJWC,DIWW (405(g)) Exchange (J 195 Contract Product Lrnb1hty Property Damage Relations cl 864 SSID Title XVI cl 890 Other Statutory Act10ns '1 196 Franchise cl 385 Property Damage cl 740 RaJlway Labor Act cl 865 RSI (405(g)J "J 891 Agncultural Acts Product L1abtl1ty cl 751 Fannly and Medical cl 893 Fnvmmmental Matters Leave Act cl 895 Freedom of lnfonnatton cl 790 Other Labor L11Igation Act cl 210 Land Condenmat1on (J 440 Other ClVII Rights Habeas Corpus: cl 791 Employee Retirement ::J 870 Taxes (I.: S Plamtiff eJ 896 Arbitration cl 220 Foreclosure cl 441 Votmg cl 46 3 Aben Detamee Income Secunty Act or Defendant) "J 899 Adtmmstrauve Procedure cl 230 Rent Lease & EJecbnent cl 442 Employment "J 510 Motions to Vacate :1 871 IRS Third Party Act/Review or Appeal of cl 240 Torts to Land cl 44 3 Housmg/ Sentence 26 i.;sc 7609 Agency Dec1s1on "J 24 5 Tort Product L1ab1hty Accommodations :'.J 5 30 General eJ 950 ConstitubOnahty of cl 290 All Other Real Property CJ 44 5 Amer w1D1sab1hties · :J 5 35 Death Penalty State Statutes Employment Other: ::J 462 Naturalization Apphcallon (J 446 Arner wlD1sab1hties · cl 540 Mandamus & Other cl 465 Other hrumgration Other cl 5 50 CIYll Rights Actions cl 448 f.rlncation (J 555 Pnson Condttion n 560 CMI DetaJnee - Condttions of Confinement V. RIGIS (Place an ''X' m One Box Only) 1'( 1 ngmal :1 2 Removed from Remanded from cl 4 Remstated or cl 5 Transferred from n 6 Mullld1stnct '.1 8 Mult1d1stnct Proceed.mg State Court Appellate Court Reopened Another D1stnct L1t1gat1on · L1t1gat10n · (specifyJ Transfer Direct File C1 e the U S CIVIi Statute under which you are fihng (Do "ot cite jurisdictioltal statutes ""less diversity) 16 - Claton Act 15 USC sec 15 & 26 and section 4 of the Sherman Act 15 USC sections 4 1331 1332 1337 Br ef descnpt10n of cause V elations of the Sherman Act and Cla ton Act VII. REQUESTED N CHECK IF THIS IS A CLASS ACTION DEMAND$ CHECK Yt.S only 1f de CO!\'IPLAINT l,"NDER RUU: 23, FR Cv P .n.:RY DEMAND: VIII. RELATED C 29 2018~ IF ASY DOCKET Nt:MBER F AITORNEY OF RFCORD RECEIPT# AMOUNT APPL YING If P Jl,'I)GF MAG JLDGE Case 2:18-cv-05174-AB Document 1-2 Filed 11/29/18 Page 1 of 1 L~HED STATES DISTRICT COt:RT FOR THE EASTER""J DISTRICT OF PENNSYLV~""JIA DESIG!'/A TIO~ FORM (to be used by counsel or pro se platnttff to tnd1cate the category of the case for the purpose ofassignment to the appropnate calendar) Addr\ss~tlaintiff:~_ 3go2.. -:J:nle:f-_c.,rc.le.~ Green A_cfe.S fL "3~Ylo3 V I r 1-·'-l LvoP' ' AddressofDetendant: .. 7~~"1~·._fvl d_A_M s+ree+• H()V.si-ot1, T~ 72.{Jo"L. PlaceofAccident,IncidentorTransaction: Floi'1d~" _ _ ------··------ RELATED CASE, IF ANY: Case Number: Judge:. Date Temunated Civil cases are deemed related when Yes is answered to any of the followmg questions 1. ls this case related to property included in an earher numbered suit pendmg or within one year YesD No~ previously termmated action in this court? 2. Does this case involve the same issue of fact or grow out of the 5ame transaction as a pnor suit YesD No~ pendmg or withm one year previously terminated action m this court? 3 Does this case involve the vahd1ty or mfringement of a patent already m suit or any earlier YesO No~ numbered case pendmg or within one year previously te inated action of this court9 4 ls this case a second or successive habeas corpus, s YesD No [iJ--- case filed by the same md1vidual? I certify that, to my knowledge, the within case related to any case now pending or withm one year previously termmated action m :::~rt ,x;7;;r;:_:;; ~ ~/l///L_ Attorney-at-Law I Pro Se Plaintiff Attorney ID # (if applicable) CIVIL: (Place a ,Jin one category only) A. Federal Question Cases: B. Diversity Jurisdiction Cases: lndernmty Contract, Marine Contract, and All Other Contract5 DI Insurance Contract and Other Contracts FELA D 2 Airplane Personal Injury Jones Act-Personal lnJury D 3. Assault, Defamation t1trust D 4. Marme Personal Injury tent D s Motor Vehicle Personal Injury abor-Management Relations D 6. Other Personal Injury (Please specify) ivil Rights D 7. Products Liability Habeas Corpus D s. Products Liability - Asbestos Securities Act(s) Cases D 9. All other Diversity Cases Social Security Review Cases (Please specify) _ All other Federal Question Cases (Please specify) ___ ARBITRATION CERTIFICATION {! I (The effect of this certzficatwn 1s to remove the case from ehgib1/ity for arb1tratwn) -_.,,. n"( ~o y( ,t- ~sel of record or pro se plamtiff, do hereby certify ursuant to Local Civil Rule 53 .2, § 3(c) (2), that to the best ofmy knowledge and belief, the damages recoverable in this civil action case exceed the sum of $150,000 00 exclusive of mterest and costs NOV 29 2018. Reltef other than monetary damages 1s sought. ~ .- ~ ~ .,,. DATE_IJ/~'1)101~ {~-- __Jl!lllr _ Attorney-at-Law~"<== I Pro Se Plamttff Attorney ID # (if applicable) NOTE A tnal de novo WIii be a tnal by Jury only 1fthere has been comphance With FR C P 38 C'iv 609 (;,WJ8) Case 2:18-cv-05174-AB Document 1-3 Filed 11/29/18 Page 1 of 1 IN THE UNITED STATES DISTRICT COt;RT FOR THE EASTER.i1" DISTRICT OF PENNSYLVANIA CASE MANAGEMENT TRACK DESIGNATION }'ORM Victor Fuentes. ind1v1dually and on behalf of all CIVIL ACTION others s1m1larly situated. Complaint - Class Action V. Jury Trial Demanded Royal Dutch Shell PLC. Shell Oil Co, Pennzoil Quaker State Co and Jiffy Lube NO. \8 -5 lli In accordance with the Civil Justice Expense and Delay Reduction Plan of this court, counsel for plaintiff shall complete a Case Management Track Designation Form in all civil cases at the time of filing the complaint and serve a copy on all defendants. (See § I :03 ofthe plan set forth on the reverse side of this form.) In the event that a defendant does not agree with the plaintiff regarding said designation, that defendant shall, with its first appearance, submit to the clerk of court and serve on the plaintiff and all other parties, a Case Management Track Designation Form specifying the track to which that defendant believes the case should be assigned. SELECT ONE OF THE FOLLOWING CASE MANAGEMENT TRACKS: (a) Habeas Corpus - Cases brought under 28 U.S.C. § 2241 through§ 2255. ( ) (b) Social Security - Cases requesting review of a decision of the Secretary of l lealth and Human Services denying plaintiff Social Security Benefits. ( ) (c) Arbitration Cases required to be designated for arbitration under Local Civil Rule 53.2. ( ) (d) Asbestos - Cases involving claims for personal injury or property damage from exposure to asbestos. ( ) (e) Special Management - Cases that do not fall into tracks (a) through (d) that are commonly referred to as complex and that need special or intense management by the court. (See reverse side of this form for a detailed explanation of special management cases.) (f) Standard Management - Cases that do not fall into any one of the other tracks. 11/29/2018 Victor Fuentes. etal Date Attorney-at-law Attorney for 215-446-9795 215-446-9795 cboylan@forthepeople com Telephone FAX Number E-Mail Address (Ci\'. 660) 10/02 NOV 29 2018~ ClassAction.org This complaint is part of ClassAction.org's searchable class action lawsuit database and can be found in this post: Antitrust Class Action Claims Current, Former Jiffy Lube Workers Owed Unpaid Wages Due to No- Poach Clauses