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Perez v. Paragon Contractors Corp.

United States District Court, D. Utah, Central Division

September 10, 2018

THOMAS E. PEREZ, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, Plaintiff,
v.
PARAGON CONTRACTORS CORP. and BRIAN JESSOP, individually Defendants.

          MEMORANDUM DECISION INCLUDING FINDINGS OF FACT AND CONCLUSIONS OF LAW AND CONTEMPT ORDER

          David Nuffer, United States District Judge.

         On June 1, 2016, Defendants were found to be in contempt of a 2007 Permanent Injunction prohibiting future violations of the FLSA's child labor provisions.[1] Just over a year later, Plaintiff filed another show cause motion[2] arguing that Defendant Paragon Contractors Corporation (“Paragon”) simply changed its name to Par 2 Contractors, LLC (“Par 2”), and promptly resumed using child labor. Plaintiff alleges that Par 2, as a successor in interest to Paragon, is bound by the 2007 injunction. Defendants deny that Par 2 is a successor to Paragon.

         An evidentiary hearing was held on February 26-27, 2018.[3] Plaintiff was represented by Karen E. Bobela, attorney for the United States Department of Labor. Defendants were represented by Rick Sutherland. Par 2, an intervening party, was represented by Jeffrey Matura. The testimony of witnesse was heard and several exhibits and joint stipulations by the parties were received. After considering all of the evidence and the arguments of counsel, it is determined that Par 2, as a successor to Paragon and Brian Jessop, individually, violated the permanent injunction on November 29, 2007.

         FINDINGS OF FACT .................................................................................................................... 2

         CONCLUSIONS OF LAW .......................................................................................................... 24

         A. Par 2, as a successor to Paragon, qualifies as a “person[] in active concert or participation with them” capable of violation of the injunction. . .......................................................... 24

         B. Defendants and Par 2 are in Contempt of the 2007 Injunction ......................................... 32

         C. Conclusion ........................................................................................................................ 34

         ORDER ......................................................................................................................................... 35

         FINDINGS OF FACT[4], [5]

         1. A Permanent Injunction against Defendants Paragon, Brian Jessop, and James Jessop was entered on November 29, 2007.[6] Pursuant to the injunction:

Defendants shall not, contrary to Sections 12(c) and 15(a)(4) of the FLSA, employ, suffer or permit minors to work in commerce or in the production of goods for commerce, or in an enterprise engaged in commerce or in the production of goods for commerce, within the meaning of the FLSA under conditions constituting oppressive child labor as defined in § 3(1) of the FLSA, 29 U.S.C. § 203(1), and in occupations therein declared to be hazardous as defined in the regulations found at 29 C.F.R. Part 570 (Subparts C and E).

         2. The Injunction enjoins and restrains “defendants, their officers, agents, servants, employees, and those persons in active concert or participation with them who receive actual notice of [the injunction].”[7]

         3. On June 1, 2016, following an evidentiary hearing, Defendants Paragon and Brian Jessop were found to be in contempt of the 2007 injunction.[8]

         4. A Sanctions Order was entered on December 6, 2016, finding:

Here, shortly after being caught using child labor in the construction industry and agreeing to the entry of the Injunction, Defendants secretly began profiting from child labor once again. Defendants sought to conceal their knowing and willful violation of the Injunction. They told employees to lie about the child labor and even developed signals and strategies for hiding child workers during inspections. They failed to maintain records of work performed on the Ranch, denied the Department access to the Ranch, refused to provide names of employees who worked at the Ranch, refused to respond to subpoenas, and made incredible denials of their involvement with the work at the Ranch.[9]

         Additionally, a specific finding was entered that Defendants were “not credible, ” and their testimony was “evasive and often . . . contradicted by other witnesses' testimony.”[10]

         5. It was also determined that “Defendants have left the Court with no assurance that they are in compliance with its order or that they will, on their own accord, comply in the future.”[11]As a remedy for Defendants' contempt, a special master was appointed to monitor Defendants' compliance with the injunction, and Defendants were ordered to make an initial payment of $200, 000 to the Department of Labor to place into an interest bearing account to serve as a fund to compensate children for their work.[12]

         6. Plaintiff filed another show cause motion on September 25, 2017, alleging that Defendants and Par 2 Contractors, LLC, as successor in interest to Paragon, were again in contempt of the 2007 injunction, as well as the Order Appointing Special Master.[13]

         7. Defendants appealed the sacntions order to the United States Court of Appeals for the Tenth Circuit. In March 2018, the Tenth Circuit affirmed Judge Campbell's finding of contempt and the compensatory damages contempt sanction, but reversed the appointment of a special master.[14]

         8. In light of the Tenth Circuit's decision, the parties stipulated that the only issue currently before this Court is whether Defendants and Par 2, as a successor in interest to Paragon, violated the 2007 Permanent Injunction.[15]

         Par 2 is a Successor in Interest to Paragon

         There has been a substantial continuity in operations, work force, location, management, working conditions and methods of production between Paragon and Par 2.

         9. Par 2 is a commercial framing company, as was Paragon.[16]

         10. Par 2 filed Articles of Incorporation with the Utah Secretary of State on December 2, 2013, but it did not begin to operate as a business until August 2014.[17]

         11. While Paragon remains an active company, it has no contracts for work, jobs, or employees.[18] Paragon sold most of its tools and equipment over the last few years.[19] At most, Paragon had “a job or two” that was “still going on” in 2016 somewhere in Louisiana, but Brian Jessop does not remember any details of the job.[20] Paragon had no jobs or contracts for work in 2017.[21]

         12. Brian Jessop testified that he has been downsizing Paragon's operations since 2011 for personal reasons, but his testimony is inconsistent with Paragon's tax records, that he read into the record, establishing that Paragon's gross receipts and sales were $5, 619, 108 in 2010, $6, 683.579 in 2011, and $6, 088, 107 in 2012.[22]

         13. Porter Brothers is a general contractor located in Gilbert, Arizona.[23] Porter Brothers hired Paragon as a subcontractor for various jobs between 2013 and 2015.[24] In May 2015, Porter Brothers received a bid from the same individuals it worked with at Paragon, but under the company name Par 2 Contractors, LLC, and Porter Brothers has worked with Par 2 (and not Paragon) ever since.[25]

         14. Like Paragon, Par 2 does work for large commercial hotels like Hyatt and Marriott, universities, and other large scale commercial projects.[26]

         15. Par 2's annual dollar volume of business w a s $1, 030, 998 in 2014, $5, 753, 562 in 2015, and $8, 022, 510.87 (YTD at the time of Wage Hour's investigation) in 2016.[27]

         16. Paragon's address is 1065 W. Utah Avenue, Hildale, UT, 84784.[28] Par 2 shared the same address from the time it incorporated up until the summer of 2017.[29]

         17. Paragon's phone No. was (435) 874-1310.[30] Par 2 used the same phone No. for several years.[31] Jake Barlow claimed that Par 2 eventually got a new phone No. but he could not recall when and there is no evidence to support his testimony.[32] Don Jessop also could not recall when Par 2 got a separate phone number.[33]

         18. All of Par 2's upper level employees are former employees or management of Paragon:

         Brian Jessop:

a. Brian Jessop was the owner of and estimator for Paragon, and he continues to be an estimator for Par 2.[34]
b. Brian Jessop is a party to the 2007 Injunction.[35]
c. Brian Jessop is also a supervisor for Par 2, as reflected on a Fall Protection Pre-Test that he signed for Kimball Barlow in November 2015 in the capacity of a supervisor for Par 2.[36]
d. Par 2's foreman identified Brian Jessop as Par 2's safety coordinator in November 2016.[37]
e. When contractors like Porter Brothers sent bid requests to Par 2, they sent the requests to Brian Jessop, and the bids Porter Brothers received from Par 2 had Brian Jessop's name at the bottom of them.[38]
f. Brian Jessop communicated with estimators and project managers from Porter Brothers-on behalf of Par 2-to clarify proposals and contracts for work.[39]
g. On several occasions, Brian Jessop authorized material changes to proposals on behalf of Par 2.[40]
h. Brian Jessop was also the primary contact person identified on at least one of Par 2's subcontractor agreements with Porter Brothers, [41] on another contractor's (Bonneville Builders) subcontractor list, [42] and on another Par 2 subcontract agreement with Wadman Corporation.[43]
i. Brian Jessop has been involved with most of Par 2's bids since Par 2 was formed, including making material changes to bids.[44]
j. Brian Jessop's involvement is not limited to the bidding process; he also oversees the day to day operations of Par 2's work sites through the completion of Par 2's work.[45]

         Don Jessop:

a. Don Jessop is Brian Jessop's brother.[46]
b. Don Jessop's declaration states he was employed by Paragon until 2004.[47]However, in August 2017, Don Jessop told the U.S. Department of Labor, Wage Hour Division (“Wage Hour”) that he worked for Paragon between 1998 and 2006.[48] At trial, Don Jessop testified that he worked as a foreman for Paragon between 2013 and 2015.[49] Dennis Porter also confirmed that Don Jessop worked as a foreman for Paragon between 2013 and 2015.[50]
c. In contrast, Brian Jessop testified that Don Jessop worked for Paragon between 2002 and 2004, but he acknowledged that Don Jessop appears on Paragon's employee list provided to Wage Hour pursuant to a subpoena in 2012.[51]

         Jake Barlow:

a. Jake Barlow worked for Paragon from at least 2011 to 2014 before he joined Par 2.[52]
b. Along with Brian Jessop, Jake Barlow was a primary point of contact for contractors at Paragon.[53]
c. Jake Barlow continued to be the point of contact for contractors at Par 2.[54]
d. Jake Barlow signed OSHA's Form 300A for Paragon in the capacity of “Office Manager” and “Manager” between 2012 and 2014.[55] He continued to sign OSHA's Form 300A for Par 2 in the same capacity.[56]
e. Jake Barlow also did timekeeping, payroll and accounting for Paragon, and he continued to do timekeeping, payroll and accounting for Par 2.[57]

         Benjamin Barlow:

a. Benjamin Barlow was authorized to sign IRS Form W-9 on behalf of Paragon in 2012.[58] He continued to work for Par 2 and was identified as a main point of contact for Par 2, along with Jake Barlow, to Arizona Division of Occupational Safety and Health (“ADOSH”) inspector Jeff Wilson (“Inspector Wilson”).[59]
b. Benjamin Barlow also identified himself to ADOSH as Par 2's safety manager and signed a settlement agreement with ADOSH on behalf of Par 2.[60]James Jessop:
a. James (“Jim”) Jessop is Brian Jessop's brother.[61]
b. He is the Vice President of Paragon.[62]
c. He is a party to the 2007 Permanent Injunction.[63]
d. James Jessop was also designated as, and held himself out to be, a management official for Par 2 to ADOSH Inspector Wilson during his inspection.[64]

         Kimball Barlow:

a. Kimball Barlow was employed by Paragon and his name appears on the cover page of Paragon's 2014 Occupational Safety and Health Policy; and he continued to be employed as a foreman for Par 2.[65]

         19. Par 2 has between 20 to 30 employees.[66] In August 2017, Don Jessop told Wage Hour that he has hired only two or three former Paragon employees to work at Par 2.[67] However, a comparison of employee lists provided by Paragon and Par 2 reflect that at least nineteen employees overlap between the companies.[68] These employees include: William Barlow, Williamson Dutson, Kimball Barlow, Randall Barlow, Leonard Barlow, Tobias Dutson, Leroy Barlow, Jr., Winston Barlow, Winston Zitting, Aaron Barlow, Philip Barlow, Jared Dutson, Derek Jessop, Thomas Jessop, Tennyson Barlow, Keith Dutson, Benjamin Barlow, Jake Barlow, and Don Jessop.[69] In addition, although Brian Jessop and James Jessop deny being employed by Par 2, there evidence to the contrary.[70]

         20. Paragon's Occupational Safety and Health Policy also transferred to Par 2.[71] Par 2 produced it to ADOSH Inspector Wilson as its own policy during an inspection in August 2015.[72]

         21. Similarly, Par 2 produced to Inspector Wilson several OSHA forms bearing Paragon's name as records of compliance with OSHA regulations.[73] Inspector Wilson accepted the records bearing Paragon's name as records belonging to Par 2 when he discovered Paragon operated as Par 2.[74]

         22. During a subsequent inspection in November 2016, Par 2 again produced records bearing Paragon Contractors' name to ADOSH Inspector Brooks Rogers.[75]

         23. Paragon and Par 2 use the same proposal forms to solicit work from contractors and Brian Jessop signed the proposals for both companies.[76] Paragon and Par 2 produced employee lists on nearly identical forms as well.[77] In an effort to explain this, Don Jessop testified that he is not sure whether Par 2 inherited the same software used by Paragon or purchased something different.[78]

         24. Par 2's Office Manager, Jake Barlow, uses Paragon's signature line on emails sent from his Par 2 email account.[79]

         25. Par 2 received some tools, equipment, and vehicles from Paragon; but neither Don nor Brian Jessop would elaborate with respect to what tools, equipment, or vehicles were transferred from Paragon to Par 2. For example, Don Jessop declared that “Par 2 Contractors did not receive all of its tools, equipment, or vehicles from Paragon.”[80] Brian Jessop declared “neither Don Jessop nor Par 2 purchased any equipment or tools from me or Paragon.”[81] At the hearing, Brian Jessop testified that some of Paragon's equipment and tools “could have” ended up in the hands of Par 2, but he could not think of anything specifically; despite having sold all of Paragon's tools and equipment himself.[82] He also is “not real sure” if Paragon is lending any equipment or tools to anyone at Par 2, but he thinks “there's a good chance” that when Paragon's employees went to work for Par 2 they took tools with them.[83] Similarly, Don Jessop vaguely testified that Par 2 has borrowed “a couple of pieces of equipment” from Paragon but he could not provide any detail regarding any arrangements between the companies.[84] The only example he provided was a telescopic forklift Par 2 borrowed and the only information he could provide with respect to the underlying arrangement between the companies was that “we went to where it was and moved it so that we could use it.”[85]

         26. At least one contractor (Porter Brothers) that did business with Paragon for several years believed that Paragon changed its name to Par 2 in 2015.[86] Porter Brothers emailed Brian Jessop on May 1, 2015, asking for a new W-9 because Paragon's company name changed.[87] Jake Barlow responded the same day, copying Brian Jessop, with a W-9 for Par 2 attached.[88] Jake Barlow's signature line included Paragon's company name and phone number.[89] Porter Brothers also continued to refer to the company as Paragon on job sites even after the name change to Par 2.[90] Other contractors continued to use email addresses associated with Paragon (pcctrades@gmail.com) for Par 2 business.[91]

         27. Similarly, some of Par 2's employees continued to identify their employer as Paragon even after the name change occurred.[92]

         Par 2 had notice of the 2007 Permanent Injunction

         28. At least five Par 2 employees and members of management have notice of the 2007

         Permanent Injunction.

         29. Brian Jessop and Jim Jessop are individually named on and had actual notice of the 2007 Permanent Injunction.[93] As explained above, Brian Jessop and James Jessop continued to work for Par 2 when Paragon ceased business operations.[94]

         30. Before he went to work for Par 2, Jake Barlow assisted Paragon with gathering and producing documents pursuant to the Department of Labor's subpoena issued to Paragon in 2013 in the course of Wage Hour's child labor investigation surrounding the pecan harvest.[95] Underlying that subpoena and investigation was the 2007 Permanent Injunction against Defendants.[96] Jake Barlow understood the purpose of the subpoena and Wage Hour's investigation.[97]

         31. Don Jessop was a Director for Paragon Contractors Corporation between 2000 and 2010, during which time the 2007 Permanent Injunction was entered.[98]

         32. Keith Dutson is a former employee of Paragon and current employee for Par 2.[99]Brian Jessop testified that he never informed Keith Dutson of the 2007 Permanent Injunction; however, Keith Dutson was involved in subpoena enforcement proceedings with respect to Wage Hour's child labor investigation that culminated in the finding of Paragon and Brian Jessop's contempt of the injunction and was therefore aware of the injunction at least as of that time.[100]

         Par 2 is able to provide relief

         33. Par 2's annual dollar volume of business exceeded $8 million in 2016.[101] Par 2 operates in several states and works with a variety of contractors.[102] There is no evidence to support a finding that Par 2 is unable to provide relief in this case.

         Par 2 violated the 2007 injunction

         34. Wage Hour Investigator Jacob Goehl (“WHI Goehl”) investigated Par 2 for compliance with the Fair Labor Standards Act in 2016.[103] The investigation occurred at the same location where ADOSH did an investigation at the Marriot Residence Inn in Flagstaff, Arizona.[104]Par 2 was the subcontractor at this job site for Porter Brothers and pursuant to the subcontract agreement Brian Jessop was the primary point of contact for this job.[105] Brian Jessop not only prepared the bid for this job, but he maintained communication with Porter Brothers with respect to this job.[106]

         35. WHI Goehl found Par 2's foreman, Phil Barlow, to be “cagey” throughout the investigation.[107] WHI Goehl held an initial conference and conducted nearly eight hours of surveillance of the job site, where he observed Par 2's employees engaging in rough framing activities and utilizing power nail guns on or about the roof.[108]

         36. Based on records produced by Par 2, WHI Goehl discovered that two of the framers working on the site were 17 years old.[109] He confirmed with Jake Barlow and Par 2's attorney that all of the framers, including the 17-year olds, used power nail guns and worked on the roof.[110] Jake Barlow and Par 2's attorney did not provide any information that was contrary to WHI Goehl's findings or disagree with his conclusions.[111]

         37. WHI Goehl determined that Par 2's employment of these minors violated the child labor provisions of Fair Labor Standards Act of 1938 (29 U.S.C. § 212), and related regulations, including Hazardous Order 5 (29 C.F.R. § 570.55, occupations involved in the operation of power-driven wood-working machines) and Hazardous Order 16 (29 C.F.R. § 570.67, occupations in roofing operations and on or about a roof).[112] These regulations prohibit the employment of minors under the age of 18 from working in such occupations.[113]

         38. During the closing conference, Par 2's attorney told WHI Goehl that Par 2, being from an extremely rural area in Hildale, UT, likely became accustomed to allowing 17-year olds to perform these types of tasks and was unaware that any rules existed to indicate that it was illegal.[114]

         39. Wage Hour assessed a civil money penalty in the amount of $6, 920.00; Par 2 accepted the violations, paid the penalty, and the case was administratively closed.[115] Because Par 2 paid the penalty and did not contest the violations, Wage Hour's administrative determination became a final order and not subject to administrative or judicial review.[116]

         Defendants' witnesses are not credible

         Brian Jessop

         40. U.S. District Court Magistrate Judge Furse, U.S. District Court Judge Shelby, and U.S. District Court Judge Campbell have all determined that Brian Jessop is not credible. In the Findings of Fact and Conclusions of Law following the first contempt proceeding against Defendants in this action, Judge Campbell “found Brian Jessop not credible.”[117] She noted:

This court is not the first judge in this case to find Brian Jessop not to be a credible witness. During proceedings brought by the Secretary to enforce subpoenas issued to Paragon and Brian Jessop, Magistrate Judge Evelyn Furse wrote: “Mr. Jessop's claimed lack of knowledge [was] disingenuous.” Harris v. Paragon Contractors Corp., No. 2:13-cv-00281, slip op. at 2 (D. Utah June 20, 2013) (decision and recommendation to enforce subpoenas). Judge Furse found “Brian Jessop's claim not to know a single person who harvested ground nuts at SUPR lack[ed] believability.” Id. at 3. She also found that Mr. Jessop's denial of knowing who the FLDS Bishop was for two months made it clear that “Mr. Jessop simply did not want to provide that information.” Id. When reviewing Judge Furse's conclusions for correctness, U.S. District Court Judge Robert Shelby made “the same findings.” Harris v. Paragon Contractors Corp., No. 2:13-cv-00281, slip op. at 3 (D. Utah Aug. 21, 2013) (order adopting Judge Furse's decision and recommendation to enforce subpoenas). Judge Shelby said, “It is simply not credible that Mr. Jessop is unable to name a single person who harvested the ground nuts when the harvest resulted in Mr. Jessop and Paragon's financial gain.” Id.

         41. Brian Jessop's emails from his Par 2 email account also undermine his credibility:

         a. According to Brian Jessop he “helped” Par 2 since the company was formed.[118] In addition to what is set forth above, Brian Jessop's assistance included communicating with estimators and contractors and reviewing contracts to ensure they are consistent with the estimate.[119] Brian Jessop estimated that he spent approximately two to three hours a night each week on these tasks, or maybe 20 hours a month (and sometimes more), between 2014 to the present.[120] Brian Jessop characterizes his involvement with Par 2's for-profit corporation between 2014 to the present as volunteer work.[121]

         b. To do this work, Don Jessop authorized Brian Jessop to open an email account (par2brian@speedmail.us) to communicate with contractors on behalf of Par 2.[122] The Department of Labor issued a subpoena to Brian Jessop on September 8, 2017, requesting all electronic correspondence sent to or from par2brian@speedmail.us between August 15, 2014 and the present.[123] Brian Jessop produced only 16 emails in response to the subpoena, all of which were junk mail.[124] He produced no emails from his sent, deleted, or any other folders and he claimed that is because he keeps his email “cleaned out” (with the apparent exception of junk mail).[125]

         c. Wage Hour also issued a subpoena to Par 2 requesting all electronic correspondence sent to or from par2brian@speedmail.us between August 15, 2014 and the present.[126] Though he confirmed that he authorized Brian Jessop to open this email account on behalf of Par 2, Don Jessop refused to produce emails to or from that account in response to the subpoena on the basis that he did not control the server and he was unwilling to ask Brian Jessop to produce them voluntarily.[127]

         d. Plaintiff obtained numerous emails from an independent source reflecting Brian Jessop's material involvement in Par 2's day to day business operations.[128] Most of the emails were sent during regular business hours, not in the evenings as Brian Jessop claimed, and the content of the emails is not limited to project estimates or contracts.[129] Rather, the content of the emails reflect Brian Jessop's active involvement in Par 2's construction sites - long after Par 2 obtained the contract for work - and they deal with specific items related to the erection of columns, windows that need to be hung, screen walls that need to be framed, anchor bolt problems, and punch list items that need to be done after completion of a project.[130] Brian Jessop conceded that he sent “many” similar emails like the ones in Exhibits 7-11.[131] All of these emails were sent after the entry of the Order Appointing Special Master.[132], [133]

         42. As of the date of the hearing, Brian Jessop had paid $162, 000 to the Department of Labor in accordance with Judge Campbell's sanctions order, despite his claim that he had been unemployed up until July 2017.[134] He explained that the money came from family and friends “as though [he] borrowed it from them.”[135]

         43. The nature and extent of Brian Jessop's involvement with Par 2 was reinforced by what Wage Hour discovered when it attempted to serve a subpoena to Par 2.[136] After discovering that Par 2 was located in the same business complex as Paragon, the Wage Hour investigator rang the buzzer located outside the building and spoke to a woman who said everyone from Par 2 was out for lunch, but she would try to get a hold of her “boss.”[137] The investigator asked if the person she was trying to get a hold of was Brian Jessop and she said yes and confirmed that Brian Jessop works for Par 2.[138] The woman refused to provide her name or any additional information.[139]

         Don Jessop

         44. Though he claims to be responsible for all decisions regarding Par 2, Don Jessop was unfamiliar with several aspects of the company during his August 2017 initial conference with Wage Hour, including: Par 2's annual dollar volume of business; its Employer Identification Number; how business records are kept by the company; when the workweek began; how employees are paid for travel time, overtime, or per diem; whether employees receive sick leave; and whether Par 2 provides lodging for employees.[140] Similarly, although Don Jessop claimed to do the hiring and firing and set rates of pay for Par 2 employees, he was not sure how many salaried employees he had (he could only guess himself, Jake Barlow, and Benjamin Barlow) and he did not know what Jake or Benjamin Barlow's salaries were.[141]

         45. When Wage Hour asked if Par 2 employs any former Paragon employees, Don Jessop stated he hired “two or three employees from Paragon.”[142] This is inconsistent with the employee lists produced by Paragon and Par 2 pursuant to subpoenas, which reflect an overlap of approximately 19-21 employees that used to work for Paragon who now work for Par 2.[143]

         46. During the initial conference with Wage Hour in August 2017, Don Jessop attempted to minimize the nature and extent of Brian Jessop's involvement with Par 2.[144] He claimed that Brian Jessop sometimes provides assistance in the evenings by ensuring bids are in the appropriate range.[145] He described bidding and estimating as a “hobby” for Brian to explain why Brian is happy to do this work for free as a favor for his brother.[146] Towards the end of the initial conference, Don stated that Brian had been involved more than usual recently, as Par 2 had been really busy and he had to lean on him more as a result; and he confirmed that Brian handles most of the bids/proposals for Par 2 and communicates regularly with contractors on behalf of Par 2.[147] Despite these facts, Don Jessop denies that Brian Jessop has ever been employed by or received wages from Par 2.[148]

         47. A side-by-side comparison of the records produced by Porter Brothers[149] and those produced by Par 2[150] demonstrates that Par 2 removed Brian Jessop's name from the contract documents in several locations. In the contracts produced by Porter Brothers, “Respectfully, Brian Jessop” appears at the bottom of each work proposal.[151] In the identical contracts produced by Par 2 to Wage Hour pursuant to a subpoena, “Respectfully, Brian Jessop” has been erased from the document.[152] Similarly, in at least one location the contract price is crossed out and re-written with a box that says “per phone call with Brian Jessop 5/21/15.”[153] In the identical proposal produced by Par 2, the text box has been altered to read “per phone call 5/21/15” and “with Brian Jessop” has been deleted.[154] Par 2 also removed Brian Jessop's name from the subcontract itself before producing it to Wage Hour.[155] The only explanation Don Jessop could provide for producing altered documents to Wage Hour pursuant to a federal subpoena is that the alterations were made as part of Par 2's “filing process.”[156]

         Jake Barlow

         48. Par 2 provided numerous OSHA forms bearing Paragon's name to ADOSH, on two separate occasions over a year apart.[157] Jake Barlow claims that Benjamin Barlow accidentally sent the Paragon OSHA forms to Inspector Wilson in September 2015;[158] and that he accidentally sent the Paragon OSHA forms to Inspector Brooks in November 2016.[159] His explanation for both “mistakes” is that he kept these forms from his employment at Paragon and he intended to use them as templates for Par 2.[160] This explanation lacks credibility. Especially considering that Don Jessop reviewed all of the documents sent to ADOSH before production was made.[161] The earliest OSHA form for Par 2 was signed in 2016.[162] Moreover, Jake Barlow conceded that the OSHA forms are fillable, writable PDF documents found directly on OSHA's website where the “template” is pre-populated.[163]

         49. Jake Barlow signed the OSHA forms for Paragon and Par 2 as “Office Manager” or “Manager.”[164] But he claims signing as a manager for Paragon for years 2012 and 2013 was also an “accident.”[165]

         50. Jake Barlow also claims that Par 2 mistakenly produced Paragon's safety and health policy to ADOSH.[166] According to him, he intended to use Paragon's policy, but replace Paragon's name with Par 2 within the document.[167]

         51. Jake Barlow made another “mistake” when he emailed Porter Brothers on May 1, 2015, from his Par 2 email account with “Paragon Contractors” in his signature line.[168] He explained that he copied Brian Jessop on this email “so that he knew that I had clarified for Carli Porter that Par 2 Contractors was providing the services on the Sedona Marriott project, not Paragon.”[169] But he made no such “clarification” in the email and this explanation does not address the fact that his signature line from his Par 2 email address bears Paragon's name.[170] In response to an email from Porter Brothers stating “I noticed that you (sic) company name changed in the attachment. Can you please send over a new W-9 form?”, Jake Barlow simply responded “Carli see attached” and provided Par 2's W-9 as requested.[171]

         52. Jake Barlow denies having any knowledge of Brian Jessop's involvement with Par 2, despite the fact that Brian Jessop is his uncle, and despite the nature and extent of Brian Jessop's involvement at Par 2 by his own admission and other evidence in this case.[172]

         CONCLUSIONS OF LAW

         A. Par 2, as a successor to Paragon, qualifies as a “person[] in active concert or participation with them” capable of violation of the injunction.

         The Supreme Court in Regal Knitwear Co. v. NLRB found that those denominated “successors and assigns” could be held liable for damages flowing from failure to abide by an injunction.[173] “Successors and assigns may. . .be instrumentalities through which defendant seeks to evade an order or may come within the description of persons in active concert or participation with them in the violation of an injunction. If they are, by that fact they are brought within [the] scope of contempt proceedings by the rules of civil procedure [Rule 65(d)].”[174] Likewise, the Supreme Court has held that injunctions to prevent violations of the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq. (1985), may be enforced by contempt proceedings “against the corporation, its agents and officers and those individuals associated with it in ...


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