St. Louis Daily Record

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September 5, 2007 =	Your=20 Direct Link to Legal & Business News in St Louis,=20 Missouri

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Judge qualifies suit = as=20 possible class action

By=20 Donna Walter
09/05/2007

A Phoenix-based maker of audio = equipment=20 faces a possible class-action lawsuit = concerning=20 overtime pay after a decision last week = by a St.=20 Louis federal judge.

U.S. District Judge Catherine E. = Perry=20 approved conditional certification of a = suit=20 against Mitek Corp. filed last year by a = former=20 employee who claims he is owed overtime = pay.=20

Mark Schleipfer worked for Mitek from = October=20 1990 until May 2006 as director of = corporate=20 sponsorship and as vice president of = marketing=20 logistics. Despite his titles, the = Marble Hill=20 resident argues he wasn=92t a managerial = employee=20 =96 just =93first among equals,=94 = according to=20 Perry=92s order.

Schleipfer says his job consisted of=20 promotional work at trade shows and the = manual=20 labor that went along with it =96 = setting up and=20 tearing down booths and displays. He = said he=20 also maintained farmland and buildings = and=20 performed other duties at a ranch Mitek = owns=20 near Marble Hill, about 100 miles south = of St.=20 Louis.

It=92s unclear what the ranch has to = do with=20 Mitek=92s primary business of = manufacturing audio=20 equipment for homes, vehicles and = businesses.=20 The company has facilities in Illinois,=20 Wisconsin, Texas and Arizona.

Schleipfer alleges he and other Mitek = employees at the ranch were told to view = the job=20 =93as a lifestyle choice=94 when they = were told the=20 company didn=92t pay for overtime work. =

The class proposed by Schleipfer = would=20 consist of former and current employees = who=20 since Feb. 1, 2004, performed = promotional work=20 and manual labor in any workweek; worked = more=20 than 40 hours doing so; and weren=92t = compensated=20 for the overtime they worked.

=93We think the judge=92s order was a = relatively=20 straightforward application of existing = law. =85=20 And though the 8th Circuit hasn=92t = spoken=20 directly on the test for conditional=20 certification, Judge Perry=92s ruling = was=20 consistent with other judges in Missouri = and=20 other states within the 8th Circuit,=94 = said=20 Schleipfer=92s attorney, Bradford B. = Lear of Lear=20 & Werts in Columbia, Mo.

Lear=92s law partner, Todd C. Werts, = is also=20 working on the Fair Labor Standards Act = lawsuit.=20

Mitek argues that Schleipfer was = responsible=20 for managing the entire marketing = department and=20 the ranch and that he was authorized to = enter=20 into contracts on behalf of the company, = make=20 purchases, ship products, and make = hiring and=20 firing recommendations, according to = Perry=92s=20 order.

Because Mitek classified Schleipfer = as a=20 managerial employee, it did not pay him=20 overtime.

Mitek=92s founder and CEO, Lloyd = Ivey, is also=20 named as a defendant.

Perry did not look at the merits of=20 Schleipfer=92s claim when she granted = the=20 conditional certification. Rather, she=20 determined the allegations of the = putative class=20 all derived from a single cause =96 = Mitek=92s policy=20 to deprive them of overtime = compensation.

Mitek argues that Schleipfer can=92t, = as a=20 managerial employee, represent a class = of=20 plaintiffs in an overtime-pay lawsuit. = But Perry=20 said it=92s too soon to make this = decision because=20 it goes to the merits of the case.

=93After discovery is complete and = the matter=20 is fully briefed, I may decertify the = collective=20 action

for this [or some other] reason = advanced by=20 Mitek,=94 Perry wrote in her order. = =93But I cannot=20

deny conditional certification of the = proposed collective action simply = because=20 Schleipfer may not ultimately prevail on = his=20 FLSA claim.=94

Schleipfer expects the class to total = at=20 least 40 or 50 plaintiffs.

The plaintiff=92s next step is to = send notices=20 to prospective class members to give = them the=20 opportunity to opt in to the lawsuit. = Lear said=20 he and Werts will be working with = Mitek=92s=20 attorneys in the next week or two to = identify=20 the prospective class members.

Mitek is represented by Hinshaw & = Culberson attorneys Lori L. Hoadley, = John L.=20 Gilbert and Terese A. Drew. Hoadley had = no=20 comment about the = decision.

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