Justin Barkley et al. v. Pizza Hut of America Inc. – Pizza Hut Can’t Arbitrate Fla. Delivery Driver Wage Dispute

Law360, New York (August 11, 2014, 4:46 PM ET) — A Florida federal judge on Friday declined to compel arbitration in a proposed class action launched by delivery drivers accusing Pizza Hut of America Inc. of underreimbursing them for driving expenses, saying the chain couldn’t prove that three of the plaintiffs signed an arbitration agreement.

U.S. District Judge Roy B. Dalton Jr. rejected an attempt by Pizza Hut and its parent company Yum Brands Inc. to force into arbitration a suit launched by delivery drivers Justin Barkley, Brian Phillips and Jerry Walsh accusing the pizza chain of effectively paying them below minimum wage, saying the pizza chain still hasn’t produced an actual arbitration agreement purportedly signed by the three plaintiffs.

“The court simply will not order plaintiffs to arbitrate when there is essentially zero evidence that they ever even saw, let alone assented to, an arbitration agreement,” Judge Dalton said. “The motion is therefore due to be denied.”

The judge didn’t buy the argument that because it was Pizza Hut’s policy for the delivery drivers to sign the arbitration agreements, then they must have done so even if the company couldn’t locate the agreements for Barkley, Phillips and Walsh.

Judge Dalton held that the defendants had not met their burden to make out a prima facie case that there was a written agreement at all to bring the case within the purview of the Federal Arbitration Act, according to the order.

But if Pizza Hut or Yum Brands actually do locate the alleged documents or if they have other sufficient evidence demonstrating that the plaintiffs actually signed or otherwise assented to such agreements, they may renew their motion, Judge Dalton added.

Barkley, Phillips and Walsh, along with a fourth plaintiff Al Fata, were part of an earlier 2011 class action launched by delivery drivers that’s still winding through the Florida federal court. That earlier case is going through with individual arbitration proceedings because Pizza Hut found arbitration agreements for the other drivers in the class.

Barkley, Phillips, Walsh and Fata launched the instant putative class action in March, saying they weren’t covered by any arbitration agreements since Pizza Hut hadn’t produced them and alleging violations of the Florida Minimum Wage Act.

They had alleged that Pizza Hut and Yum Brands systematically underreimbursed their delivery drivers for their driving expenses, thereby pushing the drivers’ wages well below the minimum wage. And then in an effort to avoid liability to the Florida delivery drivers whom it subjected to poverty wages, Pizza Hut attempted to rely on arbitration agreements to deny some drivers their day in court, the plaintiffs maintained.

But Pizza Hut subsequently found an arbitration agreement for Fata so his claim is now severed from the instant suit and transferred to U.S. District Judge Steven D. Merryday, who is overseeing the earlier class action, Hanna v. Pizza Hut of America Inc., for arbitration proceedings, according to the order.

The plaintiffs’ attorney Jeremiah Frei-Pearson of Finkelstein Blankinship Frei-Pearson & Garber LLP said in a statement to Law360 on Monday that he was very pleased with the court’s decision denying Pizza Hut’s motion to compel arbitration and he looks forward to vindicating his clients’ minimum wage rights in federal court.

“Too often, employers are able to use arbitration agreements to rob employees of their legal rights,” Frei-Pearson said. “Here, Pizza Hut tried to deny its Florida delivery drivers their day in court based upon alleged arbitration agreements that do not even exist. As Judge Dalton recognized, this is a bridge too far.”

Counsel for the defendants could not be immediately reached for comment on Monday.

The plaintiffs are represented by Jeremiah Frei-Pearson of Finkelstein Blankinship Frei-Pearson & Garber LLP and C. Ryan Morgan of Morgan & Morgan PA.

Pizza Hut and Yum Brands are represented by Lori Y. Baggett of Carlton Fields Jorden Burt PA.

The case is Justin Barkley et al. v. Pizza Hut of America Inc. et al., case number 6:14-cv-00376, in the U.S. District Court for the Middle District of Florida, Orlando Division.

–Editing by Katherine Rautenberg.