Lang et al v. Directv, Inc. et al

Filing 305

ORDER & REASONS: for the reasons stated, IT IS HEREBY ORDERED that plas' 288 Motion To Enforce Court's Prior Orders is DENIED and that DirecTV will not be required to provide information as to all missing data fields from DirecTV's initial production of information regarding potential class members; IT IS FURTHER ORDERED that DirecTV must work with its HSPs to ensure the accuracy of data and that DirecTV must certify to this Court, within thirty (30) days of this order, what Di recTV has done to comply with this and the Court's May 31, 2012 orders; IT IS FURTHER ORDERED that Plas must certify to this Court, within thirty (30) days of this order, what Plas have done to meet their obligations under the Court's May 3 1,2012 order. IT IS FURTHER ORDERED that DirecTV must inform this Court, within thirty (30) days of this order, what responses were received from DirecTV contractors as a result of the letter sent to contractors by DirecTVs Associate General Counsel. Signed by Judge Nannette Jolivette Brown on 8/9/2012. (rll, ) Modified on 8/9/2012 to edit doc type (rll, ).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CHRISTIAN LANG, et al.

CIVIL ACTION

VERSUS

NO. 10-1085

DIRECTV, INC., et al.

SECTION: “G”(1)

ORDER AND REASONS
Before the Court is Plaintiffs’ Motion to Enforce Prior Orders,1 wherein Plaintiffs allege that
Defendant DirecTV, Inc. (“DirecTV”) has delivered a deficient initial class list and failed to produce
all information in its possession in violation of this Court’s order regarding the procedure for
dissemination of the parties’ joint notice to potential members of the collective action.2 Having
considered the motion, the response, the additional memoranda submitted, the record, and the
applicable law, for the following reasons, the Court will deny the motion but will order DirecTV to
work with its Home Service Providers (“HSPs”) to ensure accuracy and will order DirecTV to certify
to the Court, within thirty (30) days of this order, what DirecTV has done to comply with this and
the Court’s May 31, 2012 orders. Additionally, the Court will order Plaintiffs to certify to the Court,
within thirty (30) days of this order, what Plaintiffs have done to meet their obligations under the
Court’s May 31, 2012 order. Further, the Court will order Defendants to inform this Court, within
thirty (30) days of this order, what responses were received from DirecTV contractors as a result of
the letter sent to them by DirecTV’s Associate General Counsel.3

1

Rec. Doc. 288.

2

Rec. Doc. 277.

3

See Rec. Doc. 288-7.

1

I. Background
This case was removed to this Court from the 22nd Judicial District Court for the Parish of
St. Tammany, State of Louisiana, on April 9, 2010.4 The case involves a conditionally certified
collective action brought under the Fair Labor Standards Act (“FLSA”),5 in which Plaintiffs have
alleged that the remaining defendants DirectTV, Inc. and JP&D Digital Satellite Systems, Inc.
(collectively, “Defendants”) engaged in violations of minimum wage, overtime, retaliation, and
record-keeping laws.
On May 31, 2012, this Court entered an order outlining the procedure for dissemination of
the parties’ joint notice to potential members of the collective action.6 Specifically, the order set
forth a two-step process. In the first step, DirecTV was directed to provide an initial class list to
Plaintiffs, listing “information within DirecTV’s possession: name, address, telephone number, tech
number(s), and date of birth.”7 The order noted that “[i]f necessary, DirecTV shall work with its
Home Service Providers and other affiliated entities to ensure the information is accurate and
updated.”8 Plaintiffs’ Third Party Administrator was then to perform an advanced address search
using the information provided and then to disseminate the approved Notice and Consent to Join
forms to potential class members.9 Procedures and time periods for dissemination were set forth in
4

Rec. Doc. 1.

5

29 U.S.C. § 201, et seq.

6

Rec. Doc. 277.

7

Id. at ¶ 2. By consent of the parties, the order was subsequently amended to include e-mail addresses
within the information to be provided. See Rec. Docs. 279 and 280. For ease of reference, the Court will refer to the
May 31, 2012 order, but it will consider the content of that order as amended.
8

Id.

9

Id. at ¶ 3(a).

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the order.10 In the second step, DirecTV was directed to “work with its Home Service Providers and
other affiliated entities to ensure the information is accurate and updated” for “any class member
whose notice was undeliverable, (which shall include potential plaintiffs whose Notice was returned
as undeliverable, whose address was incomplete, and/or for whom DirecTV did not initially supply
a home address).”11 The parties now dispute whether DirecTV has fulfilled its obligations under this
procedure outlined in the Court’s May 31, 2012 order.
As a result of this dispute, on July 31, 2012, Plaintiffs filed the pending Motion to Enforce
Prior Orders (“Motion to Enforce”), which was set for hearing on August 15, 2012.12 Concurrently,
Plaintiffs also filed an Ex Parte Motion to Expedite Consideration of the Motion to Enforce
(“Plaintiffs’ Motion to Expedite”).13 On August 2, 2012, Defendants filed a memorandum in
opposition to Plaintiffs’ Motion to Expedite,14 and Defendants subsequently filed a Motion to
Continue Submission Date on Motion to Enforce (“Motion to Continue”), which was set for hearing
on August 29, 2012.15 Defendants sought to expedite consideration of their Motion to Continue,16
and Plaintiffs filed a memorandum in opposition to Defendants’ Motion to Continue.17 This Court
granted Plaintiffs’ Motion to Expedite, setting the Motion to Enforce for submission on August 8,

10

Id. at ¶ 3.

11

Id. at ¶ 5.

12

Rec. Doc. 288.

13

Rec. Doc. 290.

14

Rec. Doc. 293.

15

Rec. Doc. 296.

16

Rec. Doc. 297.

17

Rec. Doc. 299.

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2012.18 Accordingly, the Court denied as moot Defendants’ motions.19 On August 7, 2012,
Defendants filed their response in opposition to the pending Motion to Enforce.20 The Motion to
Enforce is now before this Court on the briefs, oral argument having been requested and denied.21

II. Arguments and Analysis
A. Parties’ Arguments
Here, Plaintiffs allege that DirecTV “failed to utilize available resources to provide an
accurate and updated list”; “failed to produce relevant data from the Home Service Providers (HSPs)
and subcontractors”; and “failed to work internally with [DirecTV’s] field services personnel
(DirecTV Home Services), and with its Home Service Providers (HSP) and other affiliated entities
to ensure the information is accurate and updated.”22 Specifically, Plaintiffs allege that DirecTV has
done nothing more than print off a “very deficient and outdated list from its limited Seibel
database.”23 Plaintiffs cite the data produced by DirecTV, noting a lack of birth data and limited
information provided for relevant fields such as email addresses, phone numbers, and mailing
addresses.24 Plaintiffs thus seek an order compelling DirecTV “to provide plaintiffs’ counsel with
an amended and supplemental list of all former and current satellite technicians who performed work
18

Rec. Doc. 300.

19

Rec. Doc. 301.

20

Rec. Doc. 302.

21

Rec. Docs. 303 and 304.

22

Rec. Doc. 288 at ¶¶ 4-5.

23

Rec. Doc. 288-1 at p. 3.

24

Id. at pp. 2-3.

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orders at DirecTV customer sites [within the relevant period].”25
According to Plaintiffs, DirecTV is “obligated to work with HSPs and other affiliated entities
to provide Plaintiffs with a list identifying all class members and providing certain identifying
information about those class members.”26 Plaintiffs allege that the requested information is either
within DirecTV’s possession or is readily obtainable by DirecTV,27 and Plaintiffs contend that this
Court should require DirecTV to provide all of the information missing from its first production
within thirty (30) days.28 Additionally, Plaintiffs argue that DirecTV has attempted to chill the right
of workers to exercise their rights under the FLSA by way of a letter sent by DirecTV’s Associate
General Counsel to DirecTV’s HSPs and affiliated entities.29
In response, Defendants first note that the Court’s order required DirecTV to produce only
that data which was “in its possession.”30 Defendants then argue that DirecTV provided Plaintiffs
with the basic contact information within its possession “and more.”31 Defendants contend that
DirecTV contacted “each of the hundreds of entities that engaged the claimants at issue and asked
them to update the information to ensure accuracy.”32 Thus, Defendants contend that they met their
obligations under the first step of the notice procedure and further note that Plaintiffs were obligated

25

Rec Doc. 288 at p. 2.

26

Rec. Doc. 288-1 at p. 1.

27

Id. at p. 3.

28

Id. at p. 11.

29

Id. at p. 9 (citing “Exhibit F,” Rec. Doc. 288-7).

30

Rec. Doc. 302 at p. 3.

31

Id. at p. 4.

32

Id.

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to perform an advanced address search based on the information provided by DirecTV, rather than
simply to disseminate notices using the information provided by DirecTV,33 which Defendants allege
Plaintiffs have not done.34 Further, Defendants cite to various representations made by Plaintiffs that
they, Plaintiffs, would bear the brunt of the efforts and expense regarding notice.35 Defendants argue
that DirecTV was not required to consult the records of every HSP it has acquired and then update
their Siebel database or to sift through hundreds of boxes of records in order to update their records.36
Additionally, according to Defendants, “[i]f the plaintiffs want [] more information from non-parties,
they have (and have always had) the ability to get it”37 and Defendants’ records have “for years . . .
been available to the plaintiffs under Rule 34 for inspection and copying.”38 Defendants assert that
they have not withheld any information and that they have provided everything reasonably within
their possession.39 In sum, Defendants argue that they have met their obligations under this Court’s
order and that this motion is simply an attempt by Plaintiffs to shift the costs and burden of the notice
procedure onto Defendants.40

33

Id. at p. 5.

34

Id. at p. 9.

35

Id. at p. 5-7. Specifically, Defendants cite to Plaintiffs’ counsel’s statements at oral argument on the
motion for conditional certification of the collective action that “W e can do this” and that the only information
Plaintiffs needed to effectuate notice was the names of the potential class members. Id. at p. 6 (citations omitted).
Likewise, Defendants cite to Plaintiffs’ counsel’s assurances to the Court that “we’re going to pay the cost of this
notice” and “the risk is ours.” Id. at p. 7 n.10 (citation omitted).
36

Id. at p. 7.

37

Id. at p. 6.

38

Id. at pp. 7-8.

39

Id. at p. 8.

40

Id. at p. 10.

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B. Analysis
When considering whether to conditionally certify this collective action, this Court expressed
great concern about the costs and burdens of the notice process. However, time and again, Plaintiffs
assured this Court that they “[had] the operations to go ahead and administer the notice process” and
that “[they could] do it.”41 At the certification hearing, Plaintiffs’ counsel specifically assured the
Court that “another significant factor is we’re going to pay the costs of this notice. The plaintiffs are
going to do that.”42 Now, Plaintiffs seek to have Defendants go to great lengths to provide all
requested data fields for all proposed class members. The Court will not allow Plaintiffs to so
significantly shift the burden of notice onto Defendants.
According to this Court’s May 31, 2012 order, at the first step of the notice procedure,
DirecTV was ordered only to provide that information which was in its possession.43 Although
DirecTV was obligated to work with its HSPs and other affiliated entities to ensure the information
was accurate,44 it was not obligated to do anything and everything necessary to obtain all desired
information for all proposed class members. Further, in order to meet this obligation, DirecTV’s
Associate General Counsel sent a letter to DirecTV’s contractors requesting that they provide
updated information to DirecTV if they believed the information in the Siebel database was
outdated.45 Although Plaintiffs contend that this letter was a thinly veiled threat that had just the

41

Transcript, pp. 20-21, lines 18-19 and 25-1.

42

Transcript, p. 34, lines 5-7.

43

See Rec. Doc. 277 at ¶ 2.

44

See id.

45

See Rec. Doc. 288-7.

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opposite effect, it is not clear to this Court that this letter had any chilling effect on contractors’
willingness to provide updated information. Instead, it appears that this letter was meant to obtain
updated information and meet Defendants’ obligations under this Court’s order. However, in order
to better assess the effect of this letter, the Court will require DirecTV to inform this Court, within
thirty (30) days of this order, what responses were received from DirecTV contractors as a result of
this letter. Likewise and within the same time period, the Court will require DirecTV to inform this
Court of other actions taken by DirecTV to ensure the accuracy of the data provided.
Additionally, the Court agrees with Defendants that Plaintiffs were obligated to do more than
simply disseminate notices using only the information provided by Defendants. Specifically,
Plaintiffs were to conduct an advanced address search to update the information provided to them
by DirecTV before disseminating the initial notices. From the briefings, it is not readily apparent
to this Court that Plaintiffs met this obligation. Accordingly, the Court will require Plaintiffs to
inform this Court, within thirty (30) days of this order, what actions Plaintiffs have taken to meet this
obligation.

III. Conclusion
For the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiffs’ Motion to Enforce46 is DENIED and that
DirecTV will not be required to provide information as to all missing data fields from DirecTV’s
initial production of information regarding potential class members.
IT IS FURTHER ORDERED that DirecTV must work with its HSPs to ensure the accuracy
46

Rec. Doc. 288.

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of data and that DirecTV must certify to this Court, within thirty (30) days of this order, what
DirecTVhas done to comply with this and the Court’s May 31, 2012 orders.
IT IS FURTHER ORDERED that Plaintiffs must certify to this Court, within thirty (30)
days of this order, what Plaintiffs have done to meet their obligations under the Court’s May 31,
2012 order.
IT IS FURTHER ORDERED that DirecTV must inform this Court, within thirty (30) days
of this order, what responses were received from DirecTV contractors as a result of the letter sent
to contractors by DirecTV’s Associate General Counsel.
NEW ORLEANS, LOUISIANA, this ____ day of August, 2012.
9th

_________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

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