Mitchell Benjamin, Delong Caldwell Bridgers Fitzpatrick & Benjamin LLC, Atlanta (Photo: John Disney/ALM) Mitchell Benjamin of Delong Caldwell Bridgers Fitzpatrick & Benjamin, Atlanta (Photo: John Disney/ALM)

Swinging Richards, Atlanta’s self-described “favorite gay male strip club,” has been ordered to swing more than $800,000 in the direction of five of its dancers and their lawyers after a federal jury found the club’s practice of making them work for tips only and to pay other club staffers was a willful violation of the Fair Labor Standards Act.

The judgment, entered May 31 after a trial earlier in the month, comes after a similar suit ended last year with the club and its owner, C.B. Jones II, paying more than $1.3 million to settle FLSA claims filed by 37 dancers.

Plaintiffs attorneys Mitchell Benjamin and Matthew Herrington of Delong, Caldwell, Bridgers, Fitzpatrick & Benjamin said the trial judge had already ruled that Swinging Richards violated the FLSA’s minimum wage requirements, but that the jury still had to consider the issue of wilfulness, a retaliation claim and damages.  

Given the settlement in the earlier case, Herrington said his side was surprised another deal wasn’t hatched. “We did have settlement negotiations, but they only started after the pretrial conference,” he said. “By that time, time we had gone through the entire litigation, and our clients were ready to go to trial.”

Benjamin said he thought the defense proceeded to trial in order to appeal Judge Steve Jones’ earlier ruling in the U. S. District Court for the Northern District of Georgia granting summary judgment on the plaintiffs’ claim that the club had violated the FLSA.

Swinging Richards’ lawyer, Atlanta solo Herbert Schlanger, confirmed that that issue was one of several he planned to appeal.

“Of course, nobody goes to trial to appeal,” said Schlanger, but the summary judgment “will definitely be part of the appeal.”

Schlanger said a number of Jones’ rulings effectively shut down his defense, including the judge’s refusal to allow testimony as to how many hours the plaintiffs actually worked.

He also said the court excluded a key Department of Labor ruling from 1993 specifically allowing nude-dancing clubs to avoid paying the minimum wage if they allowed dancers to keep set table-dance fees.

Swinging Richards charges a set $10 fee for a table dance, he said.

According to the lawyers and court filings, dancers at the club were paid nothing for their work and were only remunerated with tips from patrons. Additionally, they were required to pay “kickbacks” to other club employees, such as doormen and security personnel, a set fee for each shift they worked, along with other fees such as a “house fee,” DJ fee” and “T-shirt fee.”  

When the class action that settled last year was filed in 2013, one of the dancers who opted into the class then left the club for a short time. The dancer was told by the manager that he would only be rehired if he dropped out of the class, which he did, according to the plaintiffs’ documents.

That dancer, Robert Casey, was among the plaintiffs in the just-decided case, and his claims included unlawful retaliation.

During jury selection, the lawyers said the racy nature of the plaintiffs and their work was a concern but not really a problem.

“We were very open: ‘We represent male dancers,’” said Benjamin. “Most of them did not have any issues with it. One said, ‘I won’t judge you, but God will.’ She was excused.”

But there was concern about the facts underlying the case, they said.

“These are not Chippendale dancers stripping for women; they’re dancing for male patrons,” said Benjamin. “We were concerned about all kinds of possible prejudice, whether for people taking their clothes off for money or against the gay community.”

“But one of our real issues was jury nullification,” said Herrington, noting that his clients make “a lot of money, maybe more than most people on the jury.”

During a two-day trial, “the only real issue was the amount of damages and whether the violation was willful,” said Herrington. “Willfulness was important because it precludes the court from finding that the defendant acted in good faith when it considers liquidated damages.”

On May 9, the jury took about an hour to affirm that the club had acted willfully in failing to pay the plaintiffs’ minimum wage and had retaliated against Casey.

The panel “basically adopted our spreadsheets” as to the amount of back wages and kickbacks owed to each plaintiff, Herrington said.

Last week Jones entered his order, calculating the amounts due each plaintiff and doubling them as the value of liquidated damages.

He also added $169,027 in attorney fees and costs, for a total award of $814,374.  

Herrington said the verdict reflected their arguments that the dancers deserved to be paid, no matter how well they did on tips.  

The FLSA already takes into account people who earn tips,” he said. “There’s no exemption for someone who makes lots of tips.”