Lang et al v. Directv, Inc. et al
ORDER AND REASONS granting 126 Motion for Conditional Class Certification pursuant to Section 216(b) of the the Fair Labor Standards Act. Parties shall meet and discuss the proposed notice and consent to sue forms within ten days of the date this order is signed. Parties shall submit the proposed notice and consent to sue forms, with any objections, to the Court within fifteen days of the date this order is signed. Further ORDER denying 207 Motion to Strike Declarations. Signed by Judge Nannette Jolivette Brown on 12/30/11. (jtd)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CHRISTIAN LANG, et al.
DIRECTV, INC., et al.
CIVIL ACTION NO. 10-1085 “G”(1)
JUDGE NANNETTE JOLIVETTE
MAGISTRATE JUDGE SALLY
ORDER AND REASONS
Before the Court in the above styled and numbered cause is Plaintiffs’ Motion for
Conditional Class Certification of Collective Action Under the Fair Labor Standards Act. Also
before the Court is Defendants’ Motion to Strike Declarations. The Court heard oral argument on
these motions on December 7, 2011.
Having considered the motions, the responses, the reply, the oral arguments of the parties,
the record, and the applicable law, for the following reasons, the Court will grant the Motion for
Conditional Class Certification and deny the Motion to Strike Declarations.
This case was filed in the Twenty-Second Judicial District Court for the Parish of
St. Tammany, State of Louisiana, on February 22, 2010 and removed to the Eastern District of
Louisiana on April 9, 2010 (Clerk’s Doc. No. 1) on the basis of federal question jurisdiction. On
August 13, 2010, Plaintiffs filed their First Amended Complaint (Clerk’s Doc. No. 43), which
incorporated the original state court complaint by reference. Defendants filed an Answer on
September 7, 2010 (Clerk’s Doc. No. 46).
In this matter, Plaintiffs seek to bring a collective action under the Fair Labor Standards Act
(“FLSA”)1, alleging that DirectTV, Inc. (“DirecTV”) and JP&D Digital Satellite Systems, Inc.
(“JP&D”) (collectively “Defendants”) engaged in violations of minimum wage, overtime,
retaliation, and record-keeping laws. Plaintiffs are satellite television technicians who installed
DirecTV systems in customers’ homes in Louisiana and other states, and they seek to represent a
class of similarly situated individuals. Plaintiffs Christian Lang, Larry Tucker, Edward Humphrey,
and Gary Smith are the four named plaintiffs asserting their rights and those of similarly situated
satellite technicians. The other plaintiffs are individuals who have already opted-in to this action
under the scheme set forth in the FLSA, which allows individuals to opt-in even before the class has
Defendant DirecTV is the nation’s largest provider of satellite television services and
provides for the installation and maintenance of its system both by hiring technicians directly and
by contracting with entities known as Home Service Providers (“HSPs”). Defendant JP&D was an
HSP for DirecTV at all relevant times. JP&D further subcontracted work to various companies,
including one entity that is no longer a party to this action, Modern Day Satellite. Three of the four
named plaintiffs worked exclusively for Modern Day, while the fourth worked primarily with
Modern Day but also worked with two other subcontractors. Plaintiffs allege that despite what
appears to be a subcontracting arrangement, they were actually employed by both DirecTV and
JP&D as joint employers.
Plaintiffs allege that Defendants failed to record or pay wages, or deducted wages, for time
actually worked. Allegedly, Plaintiffs regularly worked over 40 hours per work week in order to
29 U.S.C. § 201, et seq.
complete their job assignments but did not receive overtime compensation or received compensation
for fewer overtime hours than they worked or were compensated at an incorrect rate. These
allegedly uncompensated hours include time worked before the first customer of the day, after the
last customer of the day, travel time, and periods during which work was performed during meal
time. Plaintiffs also allege a “charge-back scheme” in which Defendants improperly withheld sums
from Plaintiffs’ pay, resulting in Plaintiffs sometimes allegedly being charged more than they earned
on a particular job. Additionally, Defendants allegedly “withheld uniform and tool costs from
Plaintiffs’ paychecks, failed to compensate Plaintiffs for accrued but unused vacation time and failed
to properly pay Plaintiffs for fuel and mileage, and improperly ‘charged’ plaintiffs for the failures
of defendants’ equipment.”2
Furthermore, Plaintiffs allege retaliation in violation of Section 216 of the FLSA. Plaintiffs
allege that JP&D sent emails to HSPs and satellite installation/servicing subcontractors in the region
“blackballing” the named Plaintiffs from any DirecTV jobs, and Plaintiffs allege that the notices
“directly linked the prohibition to the Plaintiffs [sic] assertion of FLSA rights.”3 Plaintiffs submit
that these notices effectively ended Plaintiffs’ ability to work in their chosen field. Plaintiffs also
allege that DirecTV has similarly refused to hire some of the named plaintiffs for installations and
service calls because they asserted their FLSA rights. Specifically, named plaintiff Christian Lang
was allegedly refused a job servicing DirecTV jobs because of an email from JP&D instructing the
employer not to hire him because of his FLSA claim.
See Clerk’s Doc. No. 43, Ex. 1 at ¶ 21.
See Clerk’s Doc. No. 43 at ¶ 44.
Additionally, Plaintiffs bring a class action for alleged violations of the Louisiana Wage
Payment Act (“LWPA”). Plaintiffs also originally brought a claim for fraud under state law, but
Chief Judge Sarah Vance dismissed that claim on August 13, 2010 (Clerk’s Doc. No. 42). At that
time, Judge Vance denied the remainder of Defendants’ motion to dismiss certain claims (Clerk’s
Doc. No. 42). Judge Vance then granted an ex parte motion by Plaintiffs to dismiss their intentional
infliction of emotional distress, negligent infliction of emotional distress, and conversion claims
(Clerk’s Doc. No. 142). Plaintiffs’ Motion for Conditional Class Certification of Collective Action
Under the Fair Labor Standards Act was filed on April 6, 2011(Clerk’s Doc. No. 126).4 On July 12,
2011, Judge Vance denied Defendants’ motion for partial summary judgment seeking dismissal of
the claims of plaintiffs Christian Lang, Larry Tucker, and Edward Dwayne Humphrey (Clerk’s Doc.
This case was transferred to this Court on October 6, 2011 (Clerk’s Doc. No. 200).
Regarding their remaining claims, Plaintiffs seek unpaid wages owed, liquidated damages pursuant
to 29 U.S.C. § 216(b) and/or prejudgment interest, and attorneys’ fees pursuant to 29 U.S.C.
§ 216(b), and the named plaintiffs seek to be deemed class representatives, bringing an action on
behalf of others similarly situated pursuant to 29 U.S.C. § 216(b). Plaintiffs also seek an injunction
mandating a cease to the alleged retaliatory “blackballing.” Here, Plaintiffs seek conditional
certification of their FLSA collective action, which Defendants oppose, and Defendants move to
strike the declarations of opt-in plaintiffs John Buckley and Stanley C.E. Belmont made in support
of conditional certification.
Defendants filed a Motion to Strike Declarations relied upon by Plaintiffs in Plaintiffs’
Motion for Conditional Class Certification of Collective Action Under the Fair Labor Standards Act,
on November 15, 2011 (Clerk’s Doc. No. 207).
II. Law and Analysis
A. Applicability of the Fair Labor Standards Act
The FLSA sets forth requirements for minimum wage, overtime pay, and record keeping for
employees who are not excepted because they hold an executive, administrative, or professional
position.5 The FLSA also creates a private right of action for employees when these rights are
violated.6 By the terms of the FLSA, these rights are created for employees against employers.
Accordingly, one must be an employee of a covered employer to bring an action under the FLSA.
The FLSA defines an employer as “any person acting directly or indirectly in the interest of an
employer in relation to an employee,”7 while an employee is “any individual employed by an
employer.”8 Under the FLSA, to “employ” means “to suffer or permit to work.”9
Generally, in determining whether an employment relationship exists, courts look to several
(1) the degree of control exercised by the alleged employer; (2) the extent of the
relative investments of the worker and the alleged employer; (3) the degree to which
the worker’s opportunity for profit or loss is determined by the alleged employer; (4)
the skill and initiative required in performing the job; and (5) the permanency of the
29 U.S.C. §§ 206(a)(1), 207(a)(1), 213(a)(1). The employer bears the burden of proving
the applicability of an exemption. Corning Glass Works v. Brennan, 417 U.S. 188, 197 (1974).
29 U.S.C. § 216(b).
29 U.S.C. § 203(d).
29 U.S.C. § 203(e)(1).
29 U.S.C. § 203(g).
Thibault v. Bellsouth Telecomms., Inc., 612 F.3d 843, 846 (5th Cir. 2010).
Courts that have looked to these factors in determining whether satellite and cable technicians are
employees under the FLSA have come to mixed results.11
Some courts have considered whether non-traditional employment situations qualify under
the FLSA. For instance, the Supreme Court has held that members of a cooperative who worked
from home qualified as employees where the “management fixes the piece rates at which [the
employees] work,” “the management can expel them for substandard work or for failure to obey the
regulations,” and “in other words, [where the management can] hire or fire the [workers].”12 The
Court concluded that, “if the ‘economic reality’ rather than ‘technical concepts’ is to be the test of
employment, these homeworkers are employees.”13 Not only this, but joint employers may be held
liable for violating the FLSA.14
Importantly, lower courts have found that the FLSA’s definition of employer is so broad that
the case may proceed even where there exist threshold questions regarding employment status.15
Compare Freund v. Hi-Tech Satellite, Inc., 185 Fed. Appx. 782 (11th Cir. 2006); Herman
v. Mid-Atlantic Installation Servs., Inc., 164 F.Supp.2d. 667 (D. Md. 2000), aff’d, 16 Fed. Appx. 104
(4th Cir. 2001); and Dole v. Amerilink Corp., 729 F.Supp. 73 (E.D. Mo. 1990) with Parrilla v.
Allcom Const. & Installation Servs., No. 6:08-cv-1967, 2009 WL 2868432 (M.D. Fla., Aug. 31,
2009) (cable installer was employee, not independent contractor); and Santelices v. Cable Wiring,
147 F.Supp.2d 1313, 1323 (S.D. Fla. 2001) (genuine issue of material fact existed as to whether
cable installer was an employee).
Goldberg v. Whitaker House Coop., Inc., 366 U.S. 28, 32-33 (1961).
Id. at 33 (citations omitted).
29 C.F.R. § 791.2 (“all joint employers are responsible, both individually and jointly, for
compliance with all of the applicable provisions of the act”).
Fernandes da Silva v. Royal Constr. of La., LLC, No. 08-4021, 2009 U.S. Dist. LEXIS
100692, at * 8-9 (E.D. La., Oct. 29, 2009) (Lemmon, J.) (refusing to dismiss plaintiffs’ claims
because questions existed regarding whether the defendant was an employer or joint employer of
plaintiffs). Accord, Nobles v. State Farm Mutual Auto. Ins. Co., No. 10-CV-04175, 2011 U.S. Dist.
LEXIS 95379, at *10 (W.D. Mo., Aug. 25, 2011) (holding that plaintiffs sufficiently alleged joint
Here, Plaintiffs allege that DirecTV employed a field operations labor scheme in which technicians
were improperly misclassified as independent contractors, in order to circumvent FLSA
requirements. Plaintiffs further allege that DirecTV used in-house software to specifically assign
work orders and routes for technicians. Although technicians were required to purchase their own
tools and uniforms and typically supplied their own trucks, the tools were mandated by DirecTV,
the uniforms bore the DirecTV logo, and trucks typically were required to bear DirecTV placards
on the doors. Further, Plaintiffs allege that DirecTV analyzes the performance of technicians, can
have individuals fired, and demands exclusivity from its workers. Plaintiffs also allege a system of
nationwide compensation. Defendants counter that each individual HSP had “complete discretion
over the manner and means” of performance and that the individual HSPs employ their own support
personnel, maintain their own payroll and employment records, and pay their own employees. In
sum, Defendants argue that a typical subcontracting relationship existed here. Plaintiffs respond that
this situation is anything but a typical subcontracting relationship, and furthermore, Plaintiffs argue,
Defendants are at least joint employers of the technicians, which would make them liable under the
This Court need not decide at this juncture the exact nature of the employment relationship
here. As in other actions where threshold employment questions existed,17 Plaintiffs have alleged
enough to satisfy the initial burden at this stage. The fact that questions remain about the
employment status of DirecTV regarding the named plaintiffs and proposed class of plaintiffs will
employer status such that conditional class certification could be granted).
29 C.F.R. § 791.2.
Fernandes da Silva, 2009 U.S. Dist. LEXIS 100692, at * 8-9; Nobles, 2011 U.S. Dist.
LEXIS 95379, at *10.
not stop this Court from considering the propriety of conditionally certifying the collective action.18
Although courts have later decertified actions because of employment relationship questions,19 this
does not alter the present burden at the conditional certification stage considered here.
B. Class Certification Under the Fair Labor Standards Act
1. Applicable Law
Under the FLSA, one or more employees can pursue a class action in a representative
capacity on behalf of similarly situated employees.20 Such collective actions allow similarly situated
plaintiffs “the advantage of lower individual costs to vindicate rights by the pooling of resources”
and benefits the judicial system “by efficient resolution in one proceeding of common issues of law
and fact.”21 However, the FLSA does not define the requirements for employees to be deemed
“similarly situated,” and the district courts have “the requisite procedural authority to manage the
process of joining multiple parties in a manner that is orderly, sensible, and not otherwise contrary
to statutory commands or the provisions of the Federal Rules of Civil Procedure.”22 In FLSA
collective actions, district courts have broad discretion to grant certification and broad authority over
See, e.g., Mooney, 54 F.3d 1207, 1216 (5th Cir. 1995), overruled on other grounds by
Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003).
“An action to recover the liability . . . may be maintained against any employer (including
a public agency) in any Federal or State court of competent jurisdiction by any one or more
employees for and in behalf of himself or themselves and other employees similarly situated.” Id.
Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989).
Id. at 171.
notice in order to prevent the misuse of such actions,23 and courts “have refused to permit FLSA
suits to proceed as collective actions if the individualized inquiries required” would eliminate the
benefits of the collective action.24 The Fifth Circuit has not yet definitively “ruled on how district
courts should determine whether plaintiffs are sufficiently ‘similarly situated’ to advance their
claims together in a single § 216(b) action,”25 so within the Fifth Circuit, this discretion is typically
exercised using one of two approaches.26
(a) The Lusardi Approach
The first routinely utilized method is a two-step approach originally articulated in Lusardi
v. Xerox Corporation.27 Under this approach, the court first determines at the “notice stage” whether
notice should be given to potential members of the class action, and this determination is usually
made on the basis of “only . . . the pleadings and any affidavits.”28 The parties must be similarly
situated, and an ad hoc, case-by-case analysis is used.29 Though the standard is lenient, “it is by no
Clay v. Huntington Ingalls, Inc., No. 09-7625, Clerk’s Doc. No. 109, at p. 8 (E.D. La.,
Sept. 29, 2011) (Zainey, J.).
Acevedo v. Allsup’s Convenience Stores, Inc., 600 F.3d 516, 518-19 (5th Cir. 2010).
See Mooney, 54 F.3d at 1213-14.
118 F.R.D. 351 (D.N.J. 1987).
Mooney, 54 F.3d at 1213-14.
Id. at 1213.
means automatic.”30 The burden to show that plaintiffs are similarly situated rests on the plaintiff,31
but “[a] plaintiff need only demonstrate a reasonable basis for the allegation that a class of similarly
situated persons may exist.”32 Plaintiffs must be similarly situated; they need not be identically
situated,33 and even plaintiffs who operate in different geographical locations and under different
managers and supervisors may be deemed similarly situated in some circumstances, such as when
they share similar job titles and responsibilities.34 “Whether at the notice stage or on later review,
collective action certification is not precluded by the fact that the putative plaintiffs performed
various jobs in differing departments and locations.”35
However, “[a] plaintiff must do more than show the mere existence of other similarly
situated persons, because there is no guarantee that those persons will actually seek to join the
lawsuit.”36 Generally, a plaintiff must demonstrate that “(1) there is a reasonable basis for crediting
Lima v. Int’l Catastrophe Solutions, Inc., 493 F.Supp.2d 793, 798 (E.D. La. 2007).
England v. New Century Fin. Corp., 370 F.Supp.2d 504, 507 (M.D. La. 2005).
Lima, 493 F.Supp.2d at 798 (emphasis added).
Crain v. Helmerich & Payne Int’l Drilling Co., No. 92–0043, 1992 WL 91946 (E.D. La.,
Apr. 16, 1992).
Kuperman v. ICF Int’l, No. 08-565, 2008 U.S. Dist. LEXIS 88605, at *21-22 (E.D. La.,
Oct. 31, 2008) (Barbier, J.).
Donohue v. Francis Serv., Inc., No. 04-170, 2004 WL 1161366, at * 2 (E.D. La., May 24,
2004) (citations omitted) (granting conditional certification where plaintiffs alleged a common
policy of employer denying employees payment and finding affidavits and other documentary
evidence sufficient to support the allegations). “The Court rejects defendants’ argument that such
a class is problematic because it includes individuals from various positions, locations, etc.; the law
is plain that that does not undermine the ‘similarly situated’ requirement.” Id. at *3.
Tolentino v. C & J Spec-Rent Servs., Inc., 716 F.Supp.2d 642, 647 (S.D. Tex. 2010) (citing
Ali v. Sugarland Petroleum, No. 4:09–cv–0170, 2009 WL 5173508, at *2 (S.D. Tex., Dec. 22,
2009). See also, H & R Block, Ltd. v. Housden, 186 F.R.D. 399, 400 (E.D. Tex. 1999) (“[A]lthough
the assertion that aggrieved individuals exist; (2) those aggrieved individuals are similarly situated
to the plaintiff in relevant respects given the claims and defenses asserted; and (3) those individuals
want to opt in to the lawsuit.”37 Only those employees who affirmatively “opt-in” to the suit are
bound by a collective action under the FLSA.38
Because the court typically has little evidence at this stage, the determination of conditional
certification “is made using a fairly lenient standard, and typically results in ‘conditional
certification’ of a representative class.”39 Generally, courts do not require more than “substantial
allegations that the putative class members were together the victims of a single decision, policy,
or plan,”40 and only a modest factual basis is required. In determining whether plaintiffs have made
substantial allegations of a single plan, courts often look to “whether potential plaintiffs were
identified . . . whether affidavits of potential plaintiffs were submitted . . . and whether evidence of
a widespread discriminatory plan was submitted.”41
the standard for satisfying the first step is lenient, . . . the court still requires at least substantial
allegations that the putative class members were together victims of a single decision, policy or
plan. . . .”)(internal quotation omitted)).
Morales v. Thang Hung Corp., 4:08-2795, 2009 WL 2524601, at *2 (S.D. Tex., Aug. 14,
2009). See also, Hickson v. U.S. Postal Service, No. 5:09-CV-83, 2010 U.S. Dist. LEXIS 104112,
at * 18 (E.D. Tex., July 22, 2010).
29 U.S.C. § 216(b) (“[N]o employee shall be a party plaintiff to any such action unless
he gives his consent in writing to become such a party and such consent is filed in the court in which
such action is brought.”).
Mooney, 54 F.3d at 1214.
Id. (quoting Sperling v. Hoffman-La Roche, Inc., 118 F.R.D. 392, 407 (D.N.J. 1988));
Xavier v. Belfor USA Group, Inc., 585 F.Supp.2d 873, 877 (E.D. La. 2008) (requiring plaintiffs
present at least some evidence beyond unsupported factual assertions of a “single decision, policy,
or plan”). See also, H & R Block, 186 F.R.D. at 400.
H & R Block, 186 F.R.D. at 400.
If conditional certification is granted, the case then proceeds through discovery as a class
action to the “merits stage,” at which time the defendants may move for decertification.42 At that
time, a more stringent approach governs and Lusardi applies a three-factor test, considering: (1) the
extent to which employment settings are similar or disparate; (2) the extent to which any of the
employer’s defenses are common or individuated; and (3) fairness and procedural concerns.43 The
court then makes “a factual determination on the similarly situated question,”44 either allowing the
representative action “to proceed to trial” or decertifying the class and dismissing without prejudice
the claims of opt-in plaintiffs.45 Generally, the matter is less appropriate for certification when
plaintiffs’ job experiences are more dissimilar and when the employer’s defenses are more
Although the Fifth Circuit has not specifically endorsed decertification in this manner,46 the
Fifth Circuit has affirmed a district court’s decertification decision based on the use of this Lusardi
approach.47 This approach “is consistent with the Fifth Circuit’s statements that there is a
fundamental, irreconcilable difference between the class action described by Rule 23, Fed. R. Civ.
Mooney, 54 F.3d at 1214.
Kuperman, 2008 WL 4809167 at *5 (quoting Johnson v. Big Lots Stores, Inc., 561
F.Supp.2d 567, 573 (E.D. La. 2008) (conditional certification the majority approach)).
Mooney, 54 F.3d at 1214.
Id. at 1216 (“In so holding we specifically do not endorse the methodology employed by
the district court, and do not sanction any particular methodology. We simply need not decide the
appropriate methodology under these facts, and therefore leave that inquiry for another day.”).
Id. at 1215-16.
P., and the collective action provided by the FLSA.”48
(b) The Shushan Approach
The Fifth Circuit has recognized a second method of analysis,49 the “spurious class action”
approach characterized by Shushan v. University of Colorado.50 The court in Shushan determined
that “while the ‘opt-in’ feature of section 216 is manifestly ‘irreconcilable’ with the ‘opt-out’ feature
of rule 23, it does not necessarily follow that every other feature of rule 23 is similarly irreconcilable
with section 216.”51 Accordingly, the court held that it would be unreasonable to assume that the
Rule 23 inquiries were discarded merely because the opt-out feature was discarded, particularly
since “[i]f rule 23 were wholly inapplicable, then [a class] under section 216 would be practically
formless. . . .”52
Under this Shushan analysis, the inquiry is “coextensive” with Rule 23 class certification53
and plaintiffs must prove the existence of a definable, manageable class, as well as that plaintiffs are
proper representatives of the class.54 This requires plaintiffs to provide individualized proof that the
Smith v. Servicemaster Holding Corp., No. 10-444, 2011 WL 4591088 (M.D. La., Sept.
30, 2011) (noting the important difference between opt-in and opt-out class actions) (citing Sandoz
v. Cingular Wireless LLC, 553 F.3d 913, 916 (5th Cir. 2008)). See also, LaChapelle v. OwensIllinois, Inc., 513 F.2d 286, 288 (5th Cir. 1975).
Mooney, 54 F.3d at 1216.
132 F.R.D. 263 (D. Colo. 1990).
Id. at 266 (citations omitted).
Mooney, 54 F.3d at 1214.
Shushan, 132 F.R.D. at 268.
claims of every single opt-in plaintiff can be presented to a jury with some measure of efficiency,
and the analysis is more akin to that for class certification under Rule 23 of the Federal Rules of
Civil Procedure.55 Plaintiffs must “satisfy all of the requirements of rule 23, insofar as those
requirements are consistent with 29 U.S.C.A. § 216(b) (West 1965)”56 – an approach deemed
intermediate between the few district courts that have held “that rule 23 applies in toto” and the
majority of courts that “have suggested, by way of holdings or broad dicta, that rule 23 simply does
not apply to section 216 actions.”57
(c) “Hybrid” Approach
Though not explicitly endorsed by the Fifth Circuit, some district courts have found that
sometimes “the parties will have engaged in discovery, perhaps limited or perhaps extensive, and
so the standard for certification at the notice stage will appropriately be less lenient.”58 This does
not, however, raise the plaintiffs’ burden at the conditional certification stage to the level that applies
Id. (“I cannot accept the extraordinary assertion that an aggrieved party can file a
complaint, claiming to represent a class whose preliminary scope is defined by him, and by that act
alone obtain a court order which conditionally determines the parameters of the potential class and
requires discovery concerning the members of that class. Before I conditionally determine the scope
of the class, plaintiffs will need to satisfy me that there exists a definable, manageable class and that
they are proper representatives of the class.”).
Id. at 265.
Id. at 265 (collecting cases).
Clay, No. 09-7625, Clerk’s Doc. No. 109, at p. 7 (citing McNight v. D. Houston, Inc., 756
F.Supp.2d 794, 802 (S.D. Tex. 2010). See also, Basco v. Wal-Mart Stores, Inc., No. 00-3184, 2004
WL 1497709 (E.D. La., July 2, 2004); Pfohl v. Farmers Ins. Group, No. 03-3080, 2004 WL 554834,
*3 (C.D. Cal., Mar. 1, 2004) (moving directly to second stage where parties did not dispute
discovery was undertaken); Morisky v. Public Serv. Elec. & Gas Co., 111 F.Supp.2d 493, 498
(D.N.J. 2000) (applying stricter standard where discovery was completed).
at the decertification stage.59 “That standard is only appropriate after discovery is largely complete
and the case is ready for trial.” Instead, some courts apply a hybrid approach.
Although nominally utilizing the Lusardi approach, the court in Basco v. Wal-Mart Stores,
Inc.60 found that the extensive discovery that had been conducted warranted considerations typically
left to the second stage of Lusardi.61 Accordingly, the court first found that plaintiffs had not carried
their burden “to demonstrate identifiable facts or legal nexus that binds the claims so that hearing
the cases together promotes judicial efficiency.”62 The court then considered the disparate settings,
various defenses available, and fairness and procedural considerations, noting that “[i]t would be
a waste of the Court’s and the litigants’ time and resources to notify a large and diverse class only
to later determine that the matter should not proceed as a collective action because the class
members are not similarly situated.”63
No. 00-3184, 2004 WL 1497709 (E.D. La., July 2, 2004).
Id. at *4-5 (“Because the aim of collective actions is to promote judicial economy, and
substantial discovery has already been undertaken such that the Court can make an educated
decision as to whether certifying this matter as a collective action would survive the decertification
process, the ends of judicial economy require the Court to make that enquiry at this stage.”). Some
other courts have determined that extensive discovery warrants a heightened standard such that “the
similarly situated inquiry is more stringent and the two-step inquiry collapses into one step.” Odem
v. Centex Homes, No. 3:08-CV-1196, 2010 WL 424216, at *3-4 (N.D. Tex., Feb. 4, 2010); Valcho
v. Dallas Cnty. Hosp. Dist., 574 F.Supp.2d 618, 622 (N.D. Tex. 2007).
Id. at *7.
Id. at *5. Ultimately, the court concluded that there was no evidence of a unified policy,
plaintiffs were not similarly situated, and large manageability concerns were present. Id. at *8.
Similarly, in Clay, the court determined that “a more demanding analysis of the certification
issue is appropriate in light of the substantial discovery that [had] taken place”64 and found that the
court should not “simply ignore the fact that certain individualized defenses might apply and
postpone the issue until decertification.”65 In ultimately finding the claims too individuated for
collective action, Judge Zainey further stated, “The Court is not inclined to believe that the correct
course of action is to blithely certify the action with a blind eye toward deficiencies that discovery
has already revealed.”66
Courts utilizing this hybrid approach appear to recognize “that a decision to certify, even if
subject to correction at the decertification stage, is not without consequences.”67 Too much leniency
at the notice stage can lead to a “frivolous fishing expedition conducted by the plaintiff at the
employer’s expense”68 and can create great settlement pressure early in the case.69 Furthermore,
extreme leniency at the notice stage can result in conditional certification that must later be revoked
Clay, No. 09-7625, Clerk’s Doc. No. 109, at p. 12.
Id. at p. 12-13.
Clay, No. 09-7625, Clerk’s Doc. No. 109, at p. 10.
Lima, 493 F.Supp.2d at 799 (quoting Lentz v. Spanky’s Rest. II, Inc., 491 F.Supp.2d 663,
669 (N.D. Tex. 2007)).
Clay, No. 09-7625, Clerk’s Doc. No. 109, at p. 11.
on the eve of trial70 or even after trial,71 when it becomes obvious that manageability concerns make
collective action impossible.
2. Plaintiffs’ Motion for Conditional Certification
(a) Standard to Be Applied
In order to determine whether this Court should conditionally certify the class proposed by
Plaintiffs, this Court must first determine under which standard it will evaluate the conditional
certification motion. Unsurprisingly, Plaintiffs suggest this Court should follow the more lenient
Lusardi approach, while Defendants argue that a more stringent standard is warranted because of
the allegedly extensive amount of discovery that has occurred.72 Defendants argue that the amount
of discovery conducted thus far should cause the Court to use a standard more similar to that of a
Rule 23 class action determination.
Before this case was reassigned, Judge Vance declared, “This Court will use the Lusardi
approach in determining whether this case is appropriate for collective treatment.”73 Accordingly,
this Court holds that it would unfairly prejudice Plaintiffs if this Court were to now apply a
heightened standard for conditional certification. Plaintiffs have operated under the assumption that
Lusardi would be applied, and they would likely desire to make additional arguments regarding
Espenscheid v. DirectSat USA, LLC, No. 09-CV-625, 2011 U.S. Dist. LEXIS 56062
(W.D. Wisc., May 23, 2011).
Johnson, 561 F.Supp.2d at 568.
According to Defendants, DirecTV and JP&D have produced thousands of records over
the past twenty months, with no outstanding requests for production or interrogatories remaining.
Clerk’s Doc. No. 42, at p. 28.
manageability and merits before this Court makes a determination on a different basis. Furthermore,
although the more lenient Lusardi approach is not the only recognized method for conditional class
certification, it is the more common approach and routinely used by courts in this District.74 This
Court is leery to apply even Basco or Clay scrutiny at this time, despite the discovery that has
proceeded, given that the Fifth Circuit has not yet indicated that discovery warrants a heightened
(b) Sufficiency under the Lusardi Standard
Application of the Lusardi standard does not mean that Plaintiffs automatically prevail on
the conditional certification issue. Plaintiffs must still meet their burden of demonstrating a
reasonable basis for believing that aggrieved individuals exist, that those aggrieved individuals are
similarly situated to Plaintiffs, and that those individuals desire to opt-in to this lawsuit.75
Here, Plaintiffs allege that each member of the collective action:
(1) worked as a technician installing and servicing DirecTV equipment at DirecTV
customer locations throughout the United States; (2) was assigned work orders by
DirecTV based upon DirecTV’s needs; (3) was initially credited with a flat, task
based amount upon completing the task; and (4) was subjected to national policies
See, e.g., Melson v. Directech Southwest, Inc., No. 07-1087, 2008 U.S. Dist. LEXIS 48525
(E.D. La. 2008); Johnson, 561 F.Supp.2d at 569. See also, Sandoz, 553 F.3d 913, 915 n.2 (referring
to the Lusardi approach as the “typical” manner for collective actions); England, 370 F.Supp.2d at
509; Hickson, 2010 U.S. Dist. LEXIS 104112, at * 18 (stating “[t]he Lusardi two-step approach is
the more generally accepted method of analysis among federal courts. . .”); Smith, 2011 WL
4591088, at *1 (referring to Lusardi as the “prevailing method”). See also, 7B C. Wright & A.
Miller, Federal Practice & Procedure § 1807 (3d ed.2002) (stating that “most courts in collective
actions follow a two-stage certification process”).
Morales, 2009 WL 2524601 at *2.
of DirecTV that affected every aspect of their role as a technician and particularly
how much pay they ultimately received.76
Plaintiffs allege that the employment situations of all satellite technicians in the class are
identical in that all are employed in the field, they lack a physical work address, they receive orders
from DirecTV, and they proceed in the same fashion with the same general routines, which can be
sufficient to establish the similarly situated requirement.77 Further, Plaintiffs allege that all contracts
between HSPs and DirecTV were identical. Defendants respond that three of the four named
plaintiffs worked exclusively with one subcontractor to JP&D, Modern Day, while the fourth named
plaintiff worked primarily with Modern Day but also worked with two other subcontractors.
Defendants are willing to concede that individuals who worked for subcontractor Modern Day are
similarly situated, but argue that the class certification requested exceeds the bounds of similarly
situated individuals. According to Defendants, the job duties of the Plaintiffs require individualized
analysis and were too varied for Plaintiffs to be similarly situated to one another. Defendants’
arguments are not entirely without merit, and they may well succeed upon a later motion to decertify
after further discovery is conducted. However, the Court need not consider these arguments at this
time. The burden upon Plaintiffs at this stage is light, and they have met that burden by
demonstrating a class of similarly situated individuals performing the same job functions in the field
under the same employment scheme. Furthermore, Plaintiffs have provided affidavits that indicate
that individuals wish to opt-in to the present suit; in fact, several individuals have already done so.
Clerk’s Doc. No. 126-3 at p. 9.
See Kuperman, 2008 U.S. Dist. LEXIS 88605, at *21-22.
To gain conditional certification, Plaintiffs additionally must allege a common scheme. To
this effect, Plaintiffs allege a top-down compensation scheme to purposefully and wrongly classify
technicians as independent contractors through a national HSP network. Plaintiffs claim that all of
DirecTV’s 17,000 technicians were classified as independent contractors by 200778 and that a
nationwide policy governed compensation for those technicians.79 Under this alleged policy,
technicians illegally were paid piece-rate, without regard to the time expended to complete a job.80
Plaintiffs allege that this policy was national, affecting all technicians, no matter for which HSP they
worked, and that DirecTV was in charge of scheduling and dispatching technicians through its
company-wide computer system.
Plaintiffs also allege a charge-back scheme in which DirecTV had 90 days to make
deductions from the specified rates established for technicians’ tasks. Plaintiffs allege that these
charge-backs were then passed through HSPs to the technicians. Plaintiffs specifically note two
types of chargebacks employed by DirecTV: “On Time Guarantee” and “Office of the President.”
Defendants respond that “HSPs have complete autonomy in the way they pay their independent
contractor technicians and subcontracting companies – DIRECTV has no knowledge or involvement
Defendants respond that this allegation is “patently false” and counter that 43% of
installation and service work is performed by employees of DirecTV’s own entity, DirecTV Home
Defendants respond that the sole authority to determine the manner in which work was
performed rested with each individual HSP, not with DirecTV.
Plaintiffs not only allege this in their pleadings, but also they provide affidavits in which
individual plaintiffs state that they were paid on a “per-job basis” despite regularly working
in their pay practices”81 and deny allegations of a “pass-through” scheme.82 Defendants further
direct the Court to deposition testimony, demonstrating that different subcontracting companies
differently imposed chargebacks and that chargebacks were discretionary. However, even if this
is true, Defendants could potentially still be liable as joint employers.83
The Court finds that Plaintiffs have met this lenient standard of proof, having put forth
substantial allegations of a “single decision, policy, or plan”84 by alleging that DirecTV purposefully
misclassifies satellite technicians as independent contractors, despite the large degree of control that
DirecTV exerts over the technicians, in order to circumvent FLSA requirements. Plaintiffs do not
simply allege that DirecTV is involved, but instead cite the use of in-house software to manage work
orders. Furthermore, Plaintiffs have submitted numerous affidavits suggesting that individuals
desire to opt-in to this suit, evidence that other courts have found pertinent to this inquiry.85 This
Court is certainly mindful of the manageability concerns expressed in cases such as Basco, Clay,
and Johnson, as well as those expressed by the Defendants in their briefings and oral argument.
However, the Court finds that these arguments are more appropriately addressed upon a motion to
decertify the class at step two of the Lusardi analysis.
Clerk’s Doc. No. 212 at p. 11.
Defendants claim that the incentive payments and deductions of an HSP to its
subcontractors were different from the incentives and deductions imposed by DirecTV upon its
29 C.F.R. § 791.2.
Mooney, 54 F.3d at 1214.
H & R Block, 186 F.R.D. at 400.
B. The Motion to Strike Declarations
1. Applicable Law
The Federal Rules of Civil Procedure provide that “[a]n affidavit or declaration used to
support or oppose a motion must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to testify on the matters
stated.”86 Similarly, under the Federal Rules of Evidence, “A witness may testify to a matter only
if evidence is introduced sufficient to support a finding that the witness has personal knowledge of
the matter.”87 On a motion to certify, the standard to determine admissibility is no different from
that on other motions.88
However, simply because a declaration employs boilerplate language does not mean that the
statements do not reflect personal knowledge. “There is no rule that requires plaintiffs to compose
affidavits in their own words, without the assistance of counsel,”89 and common declarations may
Fed. R. Civ. P. 56(c)(4).
Fed. R. Evid. 602. See also, Owen v. Golf & Tennis Pro Shop, Inc., No. 09-571, 2010
WL 3859640, at *5 (E.D. Tex., Sept. 30, 2010); Brauninger v. Default Mgm’t Solutions, L.L.C., No.
05-688, 2006 U.S. Dist. LEXIS 85380, at *7 (E.D. La., Nov. 22, 2006); Bright v. Ashcroft, 259 F.
Supp. 2d. 494, 498 (E.D. La. 2003) (striking statements not based upon personal knowledge).
Xavier, No. 06-491, Clerk’s Doc. No. 334, at p. 7,(E.D. La., Sept. 22, 2008) (Zainey, J.).
Mathews v. ALC Partner, Inc., No. 08-10636, 2009 U.S. Dist. LEXIS 75097, at *12-13
(E.D. Mich., Aug. 29, 2009).
be reasonable where there is great similarity.90 Additionally, declarants can have personal
knowledge about others by virtue of their job duties.91
In a case also arising under the FLSA, one district court recognized that the defendant raised
valid concerns regarding personal knowledge and foundation for identical or nearly identical
statements, but the court determined that such “deficiencies” “do not mandate the declarations be
stricken.”92 Instead, questions regarding the personal knowledge of the declarant, where he does
allege that his statements are based on personal knowledge, “go to the weight, rather than the
admissibility of the declaration.”93
Additionally, some courts have determined that “plaintiffs need not come forward with
evidence in a form admissible at trial” at the conditional certification stage, so long as the evidence
is “at a minimum” based on personal knowledge.94 The court need only require a “minimal showing
of similarity established by allegations and declarations” at this stage.95
Lima, 493 F.Supp.2d at 798-99. See also, Noble v. Serco, Inc., No. 08-76, 2009 WL
3154252 (E.D. Ky., Sept. 28, 2009) (“where the declarants have had similar experiences, it is not
necessary that each of them come up with a creative way to state the same allegations”).
Howard v. Securitas Security Servs., USA Inc., No. 08-2746, 2009 WL 140126, at *4
(N.D. Ill., Jan. 20, 2009).
Hickson, 2010 U.S. Dist. LEXIS 104112, at *41.
Ellington Credit Fund, Ltd. v. Select Portfolio Servicing, Inc., No. 07-421, 2007 WL
3256210 (W.D. Tex., Nov. 2, 2007). Accord, EEOC v. Columbia Sussex Corp., 632 F.Supp.2d 576,
583 (M.D. La. 2009) (“any such inconsistencies. . . go to the credibility and weight . . . rather than
Howard, 2009 WL 140126, at *3 (“The most reasonable approach to the respective
evidentiary burdens of the plaintiff during the two stages is one that requires a stricter standard of
proof in the second stage . . . .”).
Id. at *5 (quotation omitted).
2. Defendants’ Motion to Strike
By this motion, Defendants seek to strike the declarations of opt-in technicians John Buckley
and Stanley C.E. Belmont, submitted by Plaintiffs in support of Plaintiffs’ Motion for Conditional
Certification. Defendants allege that based on the deposition testimony of these witnesses, the
declarations should be stricken because the deposition testimony allegedly “confirms that the
Declarations do not contain facts of which they [the declarants] have personal knowledge, and in
some cases, contain assertion which the plaintiffs now acknowledge are simply false.”96
Specifically, Defendants argue that these declarations are merely identical, pre-printed forms
wherein the declarants had only to fill in their names, places of domicile, and the states where the
declarants purportedly worked on DirecTV systems. Defendants argue that these statements are
unreliable and inadmissible because of their generalized nature and because they are allegedly not
based upon the personal knowledge of the declarants. Accordingly, Defendants argue that these
declarations are insufficient as a matter of law to satisfy the requirements for conditional
certification of a collective action under the FLSA.
The Defendants also base their argument that the declarations are inadmissible upon their
allegation that the declarations are not in the declarants’ own words and that they were prepared by
counsel without input from the purported declarants. Additionally, Defendants argue that the
statements are hearsay because they concern matters about which the technicians have allegedly
admitted they lack personal knowledge. As a result, according to Defendants, the declarations “are
not competent evidence and should not be considered in connection with the Motion to Certify.”97
See Clerk’s Doc. No. 207.
See Clerk’s Doc. No. 207, Ex. 1.
The declarations, however, specifically declare that the declarant has “personal knowledge
of all facts and circumstances in this declaration” and that “the foregoing is true and correct to the
best of [the declarant’s] knowledge.” Further, plaintiffs need not compose affidavits in their own
words.98 These Plaintiffs have personal knowledge of their own hours and compensation schemes,
and they attest to having knowledge of the general compensation scheme utilized by their employer,
thus meeting the personal knowledge requirement.
Furthermore, to the extent that these declarations exhibit deficiencies, striking them is a
harsh remedy that is not mandated here,99 particularly given the light burden Plaintiffs must meet
on a motion for conditional certification. Rather, such questions go to the weight or credibility of
the declarations100 – an inquiry more appropriate for a later stage in these proceedings.
The declarations are sufficient to meet the “minimal showing” required for conditional certification,
and they need not be stricken.
For the reasons set forth above, the Court grants the Motion for Conditional Class
Certification and denies the Motion to Strike Declarations.
IT IS HEREBY ORDERED that the Plaintiffs’ Motion for Conditional Class Certification
pursuant to Section 216(b) of the Fair Labor Standards Act is GRANTED.
IT IS FURTHER ORDERED that the parties shall meet and discuss the proposed notice
and consent to sue forms within ten days of the date this order is signed.
Lima, 493 F.Supp.2d at 798-99; Noble, 2009 WL 3154252.
Hickson, 2010 U.S. Dist. LEXIS 104112, at *41.
Id.; Ellington Credit Fund, 2007 WL 3256210; EEOC, 632 F.Supp.2d at 583.
IT IS FURTHER ORDERED that the parties shall submit the proposed notice and consent
to sue forms, with any objections, to the Court within fifteen days of the date this order is signed.
IT IS FURTHER ORDERED that Defendants’ Motion to Strike Declarations is DENIED.
NEW ORLEANS, LOUISIANA this 30th day of December, 2011.
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE
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