Labor & Employment Law Daily Wrap Up, WAGE-HOUR—CLASS ACTIONS—S.D. Ill.: Court rules exotic dancer’s motion for partial summary judgment as to employer liability premature, (Sep 9, 2025)

By Ronald Miller, J.D.

The well-established “standard operating procedure” in the Seventh Circuit is that “the class certification decision and the attendant notice to the class come before any decision on the defendant’s liability.”

An exotic dancer was denied her motion for partial summary judgment as to liability for wage violations under the Illinois Wage Payment and Collection Act and the Illinois Minimum Wage Law against an adult entertainment club on the basis that the motion was premature. The federal district court in Illinois observed that the Seventh Circuit’s “standard operating procedure” is that notice to the class comes before any decision on the defendant’s liability. This order of events is based on the language of Rule 23 and the rule against one-way intervention, whereby potential class members can wait to decide whether to enter a class action suit until after they know how the case will be decided (Jones v. Miss Kitty’s, Inc., No. 3:23-CV-1327-MAB (S.D. Ill. Sept. 8, 2025)).

In April 2023, the plaintiff, an exotic dancer, brought a putative class/collective action on behalf of herself and other exotic dancers at an adult entertainment club alleging that the club failed to pay dancers any wages for the hours they worked, unlawfully required dancers to relinquish a portion of the tips they earned, and unlawfully charged dancers a stage fee for each shift that they worked.

Potential class members. In June 2024, the court granted the employee’s unopposed motion for class certification, and classes were certified under Rule 23(b)(3) on claims under the Illinois Wage Payment and Collection Act (IWPCA), and the Illinois Minimum Wage Law (IMWL). While the notice itself and an opt-out form have both been agreed to by the parties, identifying the potential class members to whom the notice should be sent has been problematic. The employer had produced photo identification cards for only eight class members and two sign-up sheets that contained stage names for 29 dancers.

Motion for sanctions. The club’s limited production prompted the employee to file a motion for sanctions, in which she argued that the employer failed to preserve material information and documents relating to the putative class members’ identities. Although the court agreed that the employer’s limited production was questionable, it denied the employee’s motion because she failed to show that the employer had destroyed any records, or that it had acted in bad faith. The court found that her motion was premature.

Summary judgment notion. About a month and a half after the motion for sanctions was denied, and well before the discovery deadline and dispositive motion deadline, the employee filed a motion for partial summary judgment, seeking a determination that the employer was liable on the class-wide claims under the IWPCA and the IMWL.

Rule against one-way intervention. The well-established “standard operating procedure” in the Seventh Circuit is that “the class certification decision and the attendant notice to the class come before any decision on the defendant’s liability.” This order of events is based on the language of Rule 23 and the rule against one-way intervention, that is allowing potential class members to wait to decide whether to enter a class action suit until after they know how the case will be decided.

The Seventh Circuit has explained that “[i]f an individual plaintiff were to get a favorable ruling on the merits prior to certification—and its corresponding notice and opportunity to opt out—then class members are incentivized to remain in the lawsuit to take advantage of the favorable ruling.” But if an individual plaintiff got an unfavorable ruling on the merits, then class members are incentivized to opt out of the class and avoid being bound by the adverse decision; only the named plaintiff would be bound by a judgment in favor of the defendant. “Allowing class members to decide whether or not to be bound by a judgment depending on whether it is favorable or unfavorable is ‘strikingly unfair’ to the defendant.” Therefore, “a member of the class must cast his lot at the beginning of the suit and all parties are bound, for good or ill, by the results.”

In this case, the classes have been certified but class members have not yet been provided with notice or an opportunity to opt out of the suit. The employee did not acknowledge the authority holding that notice and an opportunity to opt out should occur before any ruling on the merits, nor did she explain why the court would be justified in not following the preferred procedure in this instance. Accordingly, the employee prematurely moved for partial summary judgment. The court observed that ruling on the employee’s motion now would potentially prejudice the employer by creating an opportunity for one-way intervention.

The case is No. 3:23-CV-1327-MAB.

Judge: Beatty, M.

Attorneys: Gregg Cohen Greenberg (Zipin, Amster & Greenberg) for Isis Jones. Mark S. Peebles (Peebles & Associates) for Miss Kitty’s, Inc.

Companies: Miss Kitty’s, Inc.

Cases: WageHour ClassActions EvidenceDiscovery CoverageLiability MinimumWage IllinoisNews