Fla. Security Cos. Look To Ditch No-Poach Conspiracy Suit
Florida May 18 2019
The owners of multiple private security guard companies and their attorneys fought back Wednesday against a proposed class action accusing them of running a no-poaching conspiracy to suppress security guard wages, arguing the suit is trying to transform uncontroversial noncompete agreements into a federal antitrust case.
Florida-based KKP Holdings LLC and Critical Intervention Services Inc. and their counsel the Solomon Law Group PA say former private security guard Michael W. Kenny’s lawsuit against them fails to allege any actual antitrust claims. They say the suit is trying to use “creative pleading” to weaponize Florida state court orders enforcing noncompete agreements and transform them into a federal antitrust violation.
“This lawsuit seeks to turn those state court orders on their heads and forever alter, without doctrinal support, the landscape of employment litigation throughout the country,” the defendants said.
Kenny’s lawsuit, filed in March in the Middle District of Florida, accuses KKP, CIS, their owners and their outside counsel of entering into no-hiring agreements with rivals in order to suppress wages and restrict the mobility of private security guards.
Kenny worked for CIS as a security guard for more than a month in 2016, making less than $12 an hour, according to the suit. When he was hired, the company had him sign a nonsolicitation, noncompetition and confidentiality agreement. The suit alleges that those agreements, along with the deals the companies cut with rivals, have helped keep the average private security guard wages in Florida at approximately $12.09, which is significantly below the national average of $14.78 per hour.
The suit claims that since 2014, the Solomon Law Group and its attorneys have helped the companies negotiate the illegal no-poaching, no-hiring agreements with rivals. The law firm also represented the companies in enforcing the contracts against rivals in at least two lawsuits, further enforcing the conspiracy, the suit alleges.
But the defendants point out that the Florida state courts signed off on those contracts, and Kenny’s lawsuit steps on the jurisdiction of the Florida courts that approved them.
They also say that Kenny alleges only sparse facts relating to two competitors and does not present any facts showing that he suffered an antitrust injury. He does not include any information about where he applied for employment after he was dismissed from CIS, whether those companies had no-poach agreements with CIS and whether he was denied employment at these other companies, according to the dismissal motion.
The suit asserts a single claim under the Sherman Act and seeks an injunction barring the alleged collusive conduct. It also asks the court to award treble damages and to certify a class of CIS and KKP private security guards who have worked for the company since Jan. 1, 2014.
Kenny’s attorney Jonathan Pollard told Law360 that the defendants could file whatever they want, but it would not change the facts of the case.
“Restraints of trade that target low-wage workers serve no purpose other than to illegally eliminate competition and suppress wages,” Pollard said. “Nothing will alter that fundamental truth.”
A representative for the defendants could not immediately be reached for comment Thursday.
Kenny is represented by Jonathan Pollard of Pollard PLLC.
The defendants are represented by Michael C. Marsh, Ryan Roman and Donnie M. King of Akerman LLP.
The case is Kenny v. Critical Intervention Services Inc. et al., case number 8:19-cv-00636, in the U.S. District Court for the Middle District of Florida.
