(In the Alternative)  RESCISSION OF OPERATING AGREEMENT AND UNJUST ENRICHEMTN  (Brought by Plaintiffs on behalf of themselves and the Rule 23 Class)   14.  Defendant Flowers Foods, Inc. is a corporation whose business consists of  developing, baking, and distributing bakery and snack food products to retail customers, using a  centralized network of communication, distribution, and warehousing facilities. Distributors are  integrated into Flowers' existing network of operations. Three of Defendant Flowers Foods's  bakeries and several of its warehouses are operated by Defendants LePage and CK.   16.  The Distributors then deliver the product to Defendants' retailer-customers at the  time and place specified by Defendants.   17.  The distribution agreement between Defendants and its Distributors (including  Plaintiffs) has no specific end date and can be terminated by either party at any time with limited  notice.   18.  Defendant Flowers Foods markets its bakery and snack products to retailers such  as Wal-Mart, Harris Teeter, Target, Dollar General, and other grocery stores and mass  merchants. Defendant Flowers Foods negotiates with the retailers to set virtually all terms of the  relationship including:  a)  wholesale and retail prices for products;  b)  service and delivery agreements;  c)  shelf space to display products;  d)  product selection;  e)  promotional pricing for products;  f)  the right to display promotional materials;  g)  print advertisements in retailers' newspaper ads; and  h)  virtually every other term of the arrangement.   19.  In some cases, Flowers Foods negotiates and agrees with retailers and fast food  restaurants to manufacture and distribute the retailer's store brand (or private label) bread  products.   21.  Some fresh-baked products are identical to shelf stable products but Flowers sells  the warehouse branded product at a lower price than the fresh branded product in direct  competition with Distributors.   22.  The relationship between each member of the proposed Classes and Defendants is  essentially the same in material respects.   23.  Defendants reserved the right to control Plaintiffs and the members of the  proposed Classes in the performance of the manner and means of their work.   24.  The work performed by Plaintiffs and Distributors simultaneously benefits or  benefited both Flowers Foods, Inc. and any Flowers subsidiary with whom the Distributor  entered a distributor agreement. Plaintiffs and Distributors were hired for the purpose of  distributing products for Flowers Foods, Inc.   25.  Plaintiffs and members of the proposed Classes must strictly follow Defendants'  instructions and adhere to the pricing, policies, and procedures negotiated between Defendants  and their retailer-customers.   26.  Distributors use Defendants' hand-held computer to log the delivery, and  Defendants bill customers using the data entered into the computer by the Distributors. The  terms of the sale are negotiated between Defendants and its retailer-customer.   28.  Defendants retain the exclusive right to control the manner and means by which  Plaintiffs and the Distributors perform their jobs.   29.  Defendants represented to Plaintiffs and other Distributors that they would run  their businesses independently, have the discretion to use their business judgment, and have the  ability to manage their businesses to increase profitability.   31.  Plaintiffs and members of the Classes were, or are, required to accept Defendants'  conditions of employment or face termination.   32.  In another example, Defendants routinely modify a Distributor's product orders to  increase the amount of the order. If a Distributor refuses the additional product, Defendants bill  the Distributor for the product and deduct the cost from the Distributor's wages.   33.  Defendants require the Distributors to process all transactions through a hand-held  computer it provides to them. The hand held computer controls the product prices, maintains  customer information, tracks mileage, and monitors business performance.   35.  Distributors' investment in equipment to operate their route is relatively low.  Many distributors use their personal vehicles and a trailer to transport Flowers products to  retailers. Apart from the purchase of a small trailer, there is no other investment necessary  because Defendants provide computer equipment, administrative support, warehouse space,  advertisements, promotional materials, bakery trays, market advice, strategic development, and  virtually every other business necessity. Plaintiffs and Distributors typically drive a small box  truck five days a week, and routinely use their small personal cars to transport Flowers products.  Defendants even arrange for insurance and vehicle financing on behalf of Distributors;  Distributors pay for the insurance through wage deductions.   36.  The distribution job performed by Plaintiffs and Distributors does not require  specialized skills.   37.  Plaintiffs and Distributors provide services that are an integral part of Defendants'  enterprise, a baked goods distribution system.   38.  Despite their pervasive control over the means and manner of the Plaintiffs' and  Distributors' work, Defendants have uniformly classified all Distributors as "independent  contractors."   40.  Plaintiffs and Distributors have incurred expenses for equipment, insurance,  product loss, product return, and other expenses that Defendants have required them to purchase  or pay, or that are necessary for their work.   41.  Plaintiffs and Distributors work, on average, a total of 50-55 hours during a  seven-day workweek for which no Plaintiff or, upon information and belief, member of the  proposed Classes has received overtime premium wages.   42.  Defendants' mischaracterization of the Distributors as "independent contractors,"  the concealment or non-disclosure of the true nature of the relationship between Defendants and  the Distributors, and the attendant deprivation of substantial rights and benefits of employment  are part of an on-going unlawful practice by Defendants which this Court should enjoin.  43.  Plaintiffs bring Count I of this Complaint as a collective action, alleging  violations of the FLSA on behalf of themselves and all similarly situated individuals. The  proposed FLSA Collective Class is defined as:  All persons who are or have performed work as "Distributors" for  any Defendant in the State of Vermont under a "Distributor  Agreement" or a similar written contract that they entered into  during the period commencing three years prior to the filing of this  Complaint through the trial in this action.  Plaintiffs reserve the right to modify this definition prior to conditional certification of the FLSA  Collective Class.   44.  Plaintiffs have consented in writing to be a part of this action pursuant to 29  U.S.C. § 216(b). Plaintiffs' signed consent forms are attached as Exhibit A.   46.  Plaintiffs and members of the FLSA Collective Class routinely worked in excess  of forty ( 40) hours in a week without overtime compensation.   47.  Plaintiffs and members of the FLSA Collective Class routinely drove their  personal vehicle in the performance of their work for Defendants and/or drove a box truck with a  gross motor vehicle weight of 10,000 pounds or less.   48.  Upon information and belief, Defendants knew that Plaintiffs and all similarly  situated individuals performed work that required overtime pay and knowingly and willfully  failed to pay Plaintiffs and similarly situated individual's overtime wages due and owing.   49.  Defendants have therefore operated under a scheme to deprive Plaintiffs and the  FLSA Collective Class of overtime compensation by failing to properly compensate them for all  time worked.   50.  Defendants' conduct, as set forth in this Complaint, was willful and has caused  significant damages to Plaintiffs and the FLSA Collective Class.   51.  Defendants are liable under the FLSA for failing to properly compensate  Plaintiffs and all similarly situated individuals, and notice of this lawsuit should be sent to them.  Those similarly situated individuals are known to Defendants and are readily identifiable through  Defendants' payroll records.  53.  Numerosity: Members of the Rule 23 Class are so numerous that their individual  joinder is impracticable. The precise number of Class members is unknown to Plaintiffs.  However, upon information and belief, it is in excess of 40 individuals. The true number of Class  members is, however, likely to be known by Defendants, and thus, Class members may be  notified of the pendency of this action by first class mail, electronic, and published notice.   55.  Typicality: Plaintiffs' claims are typical of the other members of the Rule 23  Class. Plaintiffs are informed and believe that, like other distributors, Plaintiffs were  misclassified as "independent contractors" when they actually were statutory and common-law  employees, and were therefore deprived the protections of employee status under the law.  Plaintiffs had the same duties and responsibilities as other Rule 23 Class members, and were  subject to the same policies and practices, and the same or substantially similar conditions of  employment.   57.  Predominance: This case should be certified as a class action because the common  questions of law and fact concerning Defendants' liability predominate over any individual  questions, including the amount of damages incurred by each person.   58.  Superiority: A class action is the only realistic method available for the fair and  efficient adjudication of the claims of the Rule 23 Class. The expense and burden of individual  litigation makes it impracticable for members of the Rule 23 Class to seek redress individually  for the wrongful conduct alleged in this Complaint. Were each individual member required to  bring a separate lawsuit, the resulting multiplicity of proceedings would cause undue hardship  and expense for the litigants and the Court, and create the risk of inconsistent rulings, which  would be contrary to the interest of justice and equity. Litigating these claims in a single action  will streamline discovery and avoid needless repetition of evidence at trial.  59.  Plaintiffs re-allege and incorporate by reference each and every allegation set  forth in the preceding paragraphs.   60.  Section 207(a)(1) ofthe FLSA provides in pertinent part:  Except as otherwise provided in this section, no employer shall  employ any of his employees who in any work week is engaged in  commerce or in the production of goods for commerce, for a work  week longer than forty hours unless such employee receives  compensation for his employment in excess of the hours above  specified at a rate not less than one and one-half times the regular  rate at which he is employed.   62.  For purposes of the FLSA, the employment practices of Defendants were and are  uniform in all respects material to the claims asserted in this Complaint throughout the State of  Vermont.   63.  Plaintiffs and the other members of the FLSA Collective Class, either regularly or  from time to time, worked more than 40 hours per week, but did not receive overtime pay.   64.  At all relevant times, Defendants have had gross operating revenues in excess of  $500,000.   65.  In committing the wrongful acts alleged to be in violation of the FLSA,  Defendants acted willfully in that they knowingly, deliberately, and intentionally failed to pay  overtime premium wages to Plaintiffs and other members of the FLSA Collective Class.   66.  As a result of Defendants' failure to pay overtime premium wages, Plaintiffs and  the other members of the FLSA Collective Class were damaged in an amount to be proved at  trial.   67.  Therefore, Plaintiffs demand that they and the other members of the FLSA  Collective Class be paid overtime compensation as required by the FLSA for every hour of  overtime worked in any work week for which they were not compensated, plus interest,  damages, penalties, and attorneys' fees as provided by law.  68.  Plaintiffs re-allege and incorporate by reference each and every allegation set  forth in the preceding Paragraphs.   70.  Plaintiffs re-allege and incorporate by reference each and every allegation set  forth in the preceding Paragraphs.   71.  As established above, Plaintiffs and the Rule 23 Class members are employees,  not independent contractors.   72.  It is unlawful under 21 V.S.A. § 342(a)(1) for an employer to require or permit an  employee to work without paying compensation for all hours worked.   73.  It is unlawful under 21 V.S.A. § 384(b) for an employer to require or permit a  non-exempt employee to work in excess of 40 hours per week without paying overtime.   75.  The position of Distributors does not meet the standards for any exemption under  Vermont Wage Law, 21 V.S.A. § 384(b).   77.  Defendants' actions, described above constitute continuing violations of  Vermont's Employment Practices Laws.   78.  As set forth above, the Plaintiffs and other members of the Rule 23 Class have  sustained losses in compensation as a proximate result of defendants' violations of Vermont  Law. Accordingly, the Plaintiffs, on behalf of themselves and the Rule 23 Class members, seek  damages in the amount of their unpaid earned compensation, including for amounts unlawfully  deducted, plus liquidated damages, as provided by 21 V.S.A. §§ 347 and 395, as well as for  penalties as provided by law under 21 V.S.A. §§ 345 and 394.   79.  Plaintiffs, on behalf of themselves and Rule 23 Class members, seek recovery of  their attorneys' fees and costs, as provided by 21 V.S.A. §§ 347 and 395.  80.  Plaintiffs re-allege and incorporate by reference each and every allegation set  forth in the preceding paragraphs.   81.  The Vermont Consumer Fraud Act prohibits unfair or deceptive acts or practices  m commerce. 9 V.S.A. § 2453.   82.  Plaintiffs and the Rule 23 Class members are "consumers" within the meaning of  the Act because they "purchase[], lease[], contract[] for, or otherwise agree[] to pay  consideration for goods or services not for resale in the ordinary course of [their] trade or  business but for the use or benefit of his or her business or in connection with the operation of  his or her business." 9 V.S.A. § 2451a(a).   84.  A deceptive act or practice is a material representation, practice, or omission  likely to mislead a reasonable consumer. See, e.g., Madowitz v. Woods at Killington Owners  Ass'n Inc., 93 A.3d 571,579 (Vt. 2014).   85.  Defendants' acts, including but not limited to Defendants' failure to disclose their  competing interests to Plaintiffs in connection with Plaintiffs' purchase of their Distributorship,  was an unfair or deceptive omission that is actionable under the statute.   86.  Defendants' represented to Plaintiffs and Rule 23 Class members that they would  not act in such a way as to undermine Distributors' business and that they would cooperate with  Distributors in their sales efforts. In reality, Defendants acted to undermine Plaintiffs and the  Rule 23 Class members business by:  a.  Requiring Distributors to pay the costs to deliver near-zero profit margin  store brand bread so that Flowers Foods may have a competitive  advantage with the retailer with respect to other product lines;  b.  Requiring Distributors to service locations that are unprofitable (i.e. the  Distributor essentially services the location for free or at a loss when he  includes the cost of vehicle fuel and related expenses) in a particular  territory so that Defendants can enjoy the right to service other locations  for the retailer, which may be profitable for the Defendants;  c.  Other unfair and deceptive acts that undermined Plaintiffs' and the Rule  23 Class members' business.   88.  Plaintiffs and the Rule 23 Class have been adversely affected and directly harmed  by these Defendants' representations, practices, and omissions because it caused them to have  fewer orders to fill, sell less product, and consequently, affected their profits.   89.  Accordingly, Plaintiffs and the Rule 23 Class seek all the statutory remedies to  which they are entitled under 9 V.S.A. § 2461(b), including, but not limited to, injunctive relief,  compensatory damages, a multiplier to be applied to those damages, prejudgment interest, costs  and attorneys' fees.  90.  Plaintiffs re-allege and incorporate by reference each and every allegation set  forth in the preceding Paragraphs.   91.  As shown above, despite the express terms of the Distribution Agreement,  Plaintiffs' and the Rule 23 Class members' relationship with Defendants satisfies the test for  employment and not for independent contractor status.   92.  As a result of this mischaracterization, Plaintiffs and the Rule 23 Class have been  deprived of the benefits of employment and have been forced to pay substantial sums of their  own money for work-related expenses.   93.  The Distribution Agreement is therefore void as against the public policy of  Vermont and must be rescinded.   95.  Plaintiffs and the Rule 23 Class have rendered services to the Defendants, with  the Defendants knowledge, and under circumstances that make it reasonable for the Plaintiffs  and the Rule 23 Class to expect payment and inequitable for the Defendants to retain. Plaintiffs  and the Rule 23 Class are therefore entitled to the quantum meruit value of the services rendered  to Defendants.  DECLARATORY JUDGMENT  (Brought by Plaintiffs on behalf of themselves and the Rule 23 Class)   VIOLATION OF THE FAIR LABOR STANDARDS ACT OF 1938  29 U.S.C. §§ 201 et seq.  Overtime Violations  (Brought by Plaintiffs on behalf of themselves and the FLSA Collective Class)   VIOLATION OF VERMONT EMPLOYMENT PRACTICES LAW  21 V.S.A. §§ 341 et seq.  (Brought by Plaintiffs on behalf of themselves and the Rule 23 Class)   VIOLATION OF VERMONT'S CONSUMER FRAUD ACT  9 V.S.A. § 2451 et seq.  (Brought by Plaintiffs on behalf of themselves and the Rule 23 Class)  