Butler et al v. Directsat USA, LLC et al
Filing
278
MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 9/18/14. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
JEFFRY BUTLER, ET AL.
:
v.
:
Civil Action No. DKC 10-2747
:
DIRECTSAT USA, LLC, ET AL.
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this Fair
Labor
Standards
Act
collective
action
case
is
a
motion
to
decertify the conditionally certified collective action (ECF No.
202),
filed
by
UniTek
USA,
LLC
(“UGS”).
Defendants
(“UniTek”),
DirectSAT
and
USA,
UniTek
LLC
Global
(“DirectSAT”),
Services,
Inc
Also pending are motions to seal filed by Defendants
and Plaintiffs.1
(ECF Nos. 247 and 253).
The issues have been
fully briefed and the court now rules, no hearing being deemed
necessary.
Local
Rule
105.6.
For
the
following
reasons,
Defendants’ motion to decertify, and motion to seal will be
granted in part and denied in part.
Plaintiffs’ motion to seal
will be denied.
1
Defendants’ motion for summary judgment (ECF No. 257), and
the related motions to seal (ECF Nos. 265 and 270), will be
resolved
in
a
separate
memorandum
opinion
and
order.
Plaintiffs’ more recently filed motion for reconsideration (ECF
No. 275), is not yet ripe.
I.
Background
Defendant
DirectSAT,
a
subsidiary
of
UniTek
and
UGS,
provides satellite installation services to DirecTV customers
throughout
the
country.
Plaintiff
is
a
technician
who
previously installed, upgraded, and serviced DirecTV equipment
at customer locations in Maryland, Virginia, and the District of
Columbia.2
Defendants classified Plaintiff’s position as non-
exempt under federal and state wage and hour laws.
Plaintiff
began working for Defendants as a technician in October 2007 and
held this position until July 20, 2008, when he was promoted to
warehouse manager.
week.
He typically worked six or seven days per
Although initially based out of DirectSAT’s warehouse in
Capitol
Heights,
Maryland,
Plaintiff
transferred
to
the
warehouse in Waldorf, Maryland (“D.C. South”), after the Capitol
Heights (“D.C. North”) warehouse closed.
Technicians were paid pursuant to a “job rate” or “piece
rate” system.
Technicians would be given assignments at the
beginning of the day, go out into the field and complete those
assignments, report back as to the work performed, and be paid
based on credits that accounted for quantity and type of work,
2
This case originally had two named Plaintiffs: Jeffry
Butler and Charles N. Dorsey. In June 2012, Plaintiffs moved to
withdraw Mr. Dorsey as a named Plaintiff, explaining that his
inactivity suggested that he had abandoned the litigation. (ECF
No. 82). The motion was granted on August 7, 2012 (ECF No. 94),
leaving Mr. Butler as the only named Plaintiff.
2
as opposed to an hourly wage.3
Technicians were instructed to
clock-in when they arrived at their first job-site and clock-out
when
they
left
their
last
job-site
of
the
day.
Plaintiff
alleges that he regularly worked more than forty hours per week
without
proper
overtime
compensation
and,
furthermore,
was
encouraged by Defendants to begin work before the start of his
route and continue working after completing his last work order,
thereby performing work without being paid.
This sort of work
included receiving work orders at home, mapping out his route,
preparing satellite dishes, and loading and unloading equipment
from his company vehicle.
3
Plaintiff alleges that Defendants had
Federal regulations explain the piece rate system:
When an employee is employed on a piece-rate
basis, the regular hourly rate of pay is
computed by adding together total earnings
for the workweek from piece rates and all
other sources (such as production bonuses)
and any sums paid for waiting time or other
hours worked (except statutory exclusions).
This sum is then divided by the number of
hours worked in the week for which such
compensation
was
paid,
to
yield
the
pieceworker’s “regular rate” for that week.
For
overtime
work
the
pieceworker
is
entitled to be paid, in addition to the
total weekly earnings at this regular rate
for all hours worked, a sum equivalent to
one-half this regular rate of pay multiplied
by the number of hours worked in excess of
40 in the week.
29 C.F.R. § 778.111(a).
3
a uniform policy and practice to encourage unpaid work and deny
earned overtime.
On
October
4,
2010,
Plaintiff
brought
suit
against
Defendants alleging violations of the Fair Labor Standards Act
(“FLSA”) (Count I), the Maryland Wage and Hour Law (“MWHL”)
(Count
II),
the
Maryland
Wage
Payment
and
Collection
Law
(“MWPCL”) (Count III), and the District of Columbia Minimum Wage
Law (“DCMWL”) (Count IV).
(ECF No. 1).
As to the FLSA claim,
Plaintiff sought to represent a collective of all technicians
employed by Defendants in Virginia, Maryland, and the District
of Columbia during the applicable statute of limitations period
for unpaid overtime.
similarly
situated
Plaintiff alleges that the collective is
in
that
they
all
had
similar
duties,
performed similar tasks, were subjected to the same requirements
under the FLSA to be paid overtime wages unless specifically
exempted thereunder, were subjected to similar pay plans, were
required to work and did work more than forty hours per week,
and were not paid one and one-half times their regular rate for
overtime
Plaintiff
worked.
As
sought
to
to
the
Maryland
represent
a
and
class
D.C.
law
comprised
claims,
of
all
technicians employed by Defendants during the applicable statute
of
limitations
period
in
Maryland
and
D.C.,
respectively.
Defendants filed a motion to dismiss and the court, through
Memorandum Opinion and Order dated July 6, 2011, granted in part
4
Defendants’ motion, dismissing Plaintiff’s MWPCL claim (Count
III).
(ECF Nos. 28 and 29).
Plaintiff has seemingly abandoned
representing a class on his state law claims as he failed to
move
for
deadline.
conditional
certification
(ECF No. 79).
by
the
October
1,
2012
On November 1, 2011, Plaintiff moved
for conditional certification of an FLSA collective action and
to facilitate notice pursuant to 29 U.S.C. § 216(b).
41).
(ECF No.
On April 10, 2012, Plaintiff’s motion was granted and a
collective
consisting
of
all
technicians
based
out
of
Defendants’ Waldorf and Beltsville warehouses during the past
three
years
disseminated.
was
conditionally
certified
(ECF No. 65 and 66).
and
notices
were
At one point, fifty-two
(52) technicians declared their desire to be opt-in Plaintiffs,
but many opt-in Plaintiffs have been dismissed for a variety of
reasons, leaving Mr. Butler as the named Plaintiff and twentyfive
(25)
opt-in
Plaintiffs
remaining
(collectively
“Plaintiffs”).
On February 3, 2014, Defendants filed a motion to decertify
the conditionally certified collective action.
Defendants
also
filed
an
unopposed
motion
(ECF No. 202).
to
seal
certain
exhibits attached to their decertification motion (ECF No. 247).
Plaintiffs filed an opposition on March 28, 2014 (ECF No. 251),
to which Defendants replied on April 11, 2014 (ECF No. 255).
5
Similar to Defendants, Plaintiffs filed a motion to seal certain
exhibits to his opposition (ECF No. 253), which sits unopposed.
II.
Motion for Decertification
A.
Standard of Review
Under the FLSA, a collective action for unpaid minimum or
overtime wages may be maintained “by any one or more employees
for and in behalf of himself or themselves and other employees
similarly situated.”
29 U.S.C. § 216(b) (emphasis added).
“In
deciding whether to certify a collective action under the FLSA,
courts generally follow a two-stage process.”
Inc., 756 F.Supp.2d 682, 686 (D.Md. 2010).
Syrja v. Westat,
In the first stage,
commonly referred to as the “notice stage,” the court makes a
“threshold
determination
demonstrated
that
of
potential
‘whether
class
the
members
plaintiffs
are
have
‘similarly
situated,’ such that court-facilitated notice to putative class
members would be appropriate.”
Id.
(quoting Camper v. Home
Quality Mgmt., Inc., 200 F.R.D. 516, 519 (D.Md. 2000)).
The
court granted conditional certification in this case on April
10, 2012.
See Butler v. DirectSAT USA, LLC, 876 F.Supp.2d 560
(D.Md. 2012).
In the second stage, following the close of discovery, the
“court engages in a more stringent inquiry to determine whether
the
plaintiff
class
is
[in
fact]
‘similarly
situated’
in
accordance with the requirements of [Section] 216, and renders a
6
final
decision
collective
regarding
action.”
the
propriety
Dorsey
v.
TGT
of
proceeding
Consulting,
as
LLC,
a
888
F.Supp.2d 670, 686 (D.Md. 2012) (quoting Syrja, 756 F.Supp.2d at
686)
(first
alteration
in
original).
Generally,
“plaintiffs
bear the burden of showing that their claims are ‘similarly
situated,’”
and
“district
courts
have
broad
discretion
to
determine whether a collective action is an appropriate means
for prosecuting an FLSA cause of action.”
Zink,
LLC,
dissimilarity
F.Supp.2d
“In
omitted).
769
considering
of
the
Gionfriddo v. Jason
880,
886
(D.Md.
a
motion
to
plaintiff
class,
courts
2011)
decertify
have
(citation
alleging
considered
three factors: (1) the disparate factual and employment settings
of the individual plaintiffs; (2) the various defenses available
to defendant which appear to be individual to each plaintiff;
and
(3)
fairness
and
procedural
considerations.”
Rawls
v.
Augustine Home Health Care, Inc., 244 F.R.D. 298, 300 (D.Md.
2007).
“Similarly situated” does not mean “identical,” however.
Gionfriddo, 769 F.Supp.2d at 886 (citing Hipp v. Liberty Nat’l
Life Ins. Co., 252 F.3d 1208, 1217 (11th Cir. 2001)).
B.
Analysis
1.
Plaintiffs’ Factual and Employment Settings
“The first factor of the decertification analysis involves
an assessment of whether Plaintiffs have provided evidence of a
company-wide policy which may violate the FLSA, as well as an
7
assessment
of
Plaintiffs’
supervision, and salary.”
Rawls,
244
F.R.D.
individual
and
at
job
duties,
geographic
Dorsey, 888 F.Supp.2d at 687 (quoting
300).
variable
Defendants
nature
of
the
submit
they
contend
technicians
numerous
varying
worked
are
hours:
that
technicians’
renders them unfit for collective adjudication.
what
location,
claims
They point to
complications.
one
the
technician
First,
would
work
twenty hours in a week while another technician would work more
than forty hours that same week.
worked
hours
on
a
could
piece-rate
fluctuate
system,
rate
system
the
depending
assignments he received.
Additionally, because they
on
same
the
technician’s
amount
and
weekly
types
of
Defendants maintain that the piece-
provides
the
second
complication:
because
technicians differ in their effort and efficiency, the hourly
wage paid to a technician varied from job to job and worker to
worker.
who
As an example, they point to testimony from Mr. Adams,
testified
compensation
that
rate
Trans. 33:6-12).
his
changed
Third,
worked,
weekly.
(ECF
production
No.
rate,
202-22,
at
and
11,
Similarly, Mr. Alston testified that every day
on the job was different.
19).
hours
Defendants
(ECF No. 202-24, at 9, Trans. 14:17allege
that
under-reporting
of
time
worked may be due to a host of different reasons, some benign
and
some
representing
potentially
unlawful
conduct.
For
example, they state that Mr. Bovell testified that his general
8
feeling was that he had to look efficient on his time sheets to
keep
his
job.
(ECF
No.
202-25,
at
10,
Trans.
31:7-17).
Similarly, Mr. Grainger said that he was advised that appearing
more productive would better position him for a promotion.
(ECF
No. 202-30, at 26, Trans. 44:12-19; see also No. 202-34, at 20,
Trans. 46:22-24 (Kilson Dep.) (same)).
Mr. Stone testified that
he falsified hours worked to keep his “score” high which would
help him keep his job.
18).
(ECF No. 202-46, at 16, Trans. 29:10-
Defendants point to Mr. Tanoh to show contrast; Mr. Tanoh
testified that he underreported his time so that he would get
assigned more jobs.
He was never told by anyone to underreport
his time so as to appear more efficient.
31,
Trans.
53:7-22).
The
fourth
(ECF No. 202-47, at
complication
cited
by
Defendants is that Plaintiffs do not have records of the time
that they actually worked that went unreported on their official
time sheets.
Defendants contend that more than half of the opt-
in Plaintiffs have produced no records at all, let alone actual
records demonstrating hours allegedly worked but not recorded.
Defendants also point to testimony from technicians who stated
that they could not identify which time sheets are accurate and
which are not. (See, e.g., ECF Nos. 202-25, at 10, Trans. 31:1822; 202-47, at 26, Trans. 40:10-14).
9
Plaintiff
contends
that
he
and
the
twenty-five
opt-in
Plaintiffs all:
worked
for
Defendants
as
fulltime
technicians
in
the
state
of
Maryland.
Plaintiffs typically worked 8-10 hour shifts
5-6 days per week.
They shared the same
primary
duty
—
performing
Direct
TV
installations and service calls and were
paid an hourly rate based upon the jobs they
completed and time they worked each week.
Plaintiffs were all “home dispatched” which
meant
they
drove
their
company
owned
vehicles directly from home to their first
job assignment each day and from their last
job back home at the end of each day.
(ECF No. 251, at 7 (citations omitted)).
Plaintiffs contend
that the evidence demonstrates that they were required to record
their start time as the time they arrived at their first job and
their end time as the time they completed their last job.
While
they were not instructed or permitted to record time worked
outside of those times, Plaintiffs maintain that they all were
required to perform compensable work before their “start time,”
including accessing their work assignments and mapping out that
day’s route, as well as calling that day’s customers to confirm
the
appointment
and
provide
an
estimated
time
of
arrival.
Similarly, Plaintiffs assert that Defendants required them to
perform work after their “end time.”
Plaintiff
a
vehicle,
which
was
Defendants provided each
considered
the
technician’s
“roaming office;” Plaintiffs contend that Defendants required
them to unload their equipment and secure it in their home, and
10
then inspect the vehicle at the end of each day.
submit
that,
technician’s
despite
roaming
considering
office,
the
vehicle
Defendants
did
Plaintiffs
to
not
be
the
permit
Plaintiffs to record the time they spent driving to their first
job of the day.
Furthermore, “virtually all Plaintiffs who were
asked testified that they would assemble satellite dishes at
home and off-the-clock.”
(ECF No. 251, at 12).
In support of their position that the off-the-clock work
they performed was done pursuant to official company policy,
Plaintiffs point to the testimony of Mr. Kenneth Hildibrand,
former General Manager of D.C. North, and Joseph Harley, former
Field Supervisor at D.C. South, who each testified that the
technician’s
office.
company-provided
van
was
akin
to
his
rolling
(ECF No. 251-1, at 8, Trans. 22:16-18; No. 251-2, at 7,
Trans. 20:12-16).
DirectSAT wanted its technicians at their
first job between 8:00 am and 8:30 am.
Trans. 26:10-13).
(ECF No. 251-1, at 9,
Technicians were typically expected to work
at least five days a week, but sometimes worked six days a week.
(ECF No. 251-1, at 10, Trans. 32:14-19; No. 251-1, at 6, Trans.
20:3-8).
Technicians were to list their start time as when they
arrived at their first job of the day and list their end time as
when they left their last job of the day.
(ECF No. 251-1, at
11, Trans. 34:1-14; No. 251-2, at 10, Trans. 34:13 - 35:1).
Mr.
Hildibrand
the
testified
that
time
11
spent
by
technicians
in
morning checking the day’s assignments, pre-calling customers,
bringing
their
meters
between
the
home
and
vehicle
at
the
beginning and end of the day, and driving between their home and
the first and last assignment of the day did not count as being
“on-the-clock.”
(ECF No. 251-1, at 16, 17, Trans. 34:25 - 35:3,
61:1:18, 63:21 - 64:3).
Mr. Hildibrand and Mr. Harley both
testified that the technicians at D.C. South operated in the
same manner and subject to the same rules as the technicians at
D.C. North.
(ECF No. 251-1, at 19-20, Trans. 69:15 - 70:1; No.
251-2, at 15, Trans. 52:6 - 53:17).
Walter Hanson, a former General Manager of DirectSAT who
worked out of the Maryland offices stated that “[t]echnicians
regularly performed work before arriving at their first job and
after
completing
their
last
job
without
pay[,]
including”
preparing satellite dishes, loading and unloading equipment from
their
vehicles,
attending
weekly
meetings
at
DirectSAT’s
offices, receiving their assignments for the day, pre-calling
customers, and washing and maintaining their vehicles.
(ECF No.
251-3 ¶ 11).
Furthermore, company policy — reflected in various employee
handbooks — stated that an employee’s start time was when he
arrived at work and his end time was when he left his last job.
(ECF
No.
252).
Technicians
were
required
to
call
their
customers at the beginning of each day to confirm the job and
12
provide an estimated time of arrival.
(ECF No. 252-5).
Company
policy stated that time spent traveling between home and the
first
or
travel
last
job
between
compensable.
was
jobs
not
was
considered
hours
considered
hours
worked,
whereas
worked
and
was
Overtime compensation was permitted provided the
technician obtained advanced authorization.
(ECF No. 252-6).
The differences among technicians are not significant or,
alternatively, go more toward damages than liability.
The fact
that some technicians occasionally worked fewer than forty hours
a week (even considering the alleged unpaid work) means that
Defendants
overtime
are
pay
not
liable
under
the
to
FLSA,
these
but
individuals
this
for
difference
is
unpaid
not
so
prevalent as to preclude liability to the collective as a whole;
instead, it can be addressed in Plaintiffs’ individual damages
calculations.
Similarly, the fact that Mr. Tanoh testified that
he underreported his hours because he wanted to receive more
jobs does not render the collective dissimilar on this issue,
especially
in
light
stating otherwise.
of
the
testimony
from
other
Plaintiffs
Furthermore, one’s motivation for performing
off-the-clock work is not relevant for FLSA purposes if the
employer knows or should know about it.
Corp.,
580
F.Supp.2d
785.13
(noting
that
528,
“it
537
is
See Falcon v. Starbucks
(S.D.Tex.
the
duty
of
2008);
the
29
C.F.R.
management
§
to
exercise its control and see that the work is not performed if
13
it does not want it to be performed”).
Moreover, the fact that
Plaintiffs’ damages calculations are more difficult because the
technicians’
hourly
rates
fluctuated
due
to
the
piece-rate
system, is not by itself a reason to decertify a collective.
Finally,
the
absence
of
records
documenting
Plaintiffs’
off-the-clock work is not fatal to the collective.
The FLSA
makes clear that employers, not employees, bear the ultimate
responsibility for ensuring that employee time sheets are an
accurate record of all hours worked by the employees.
§
211(c).
Plaintiffs
bear
the
burden
of
proving
29 U.S.C.
that
they
performed overtime work for which they were not compensated, but
this burden is not insurmountable.
See Anderson v. Mt. Clemens
Pottery Co., 328 U.S. 680, 686-87 (1946).
Where, as here, the
employer does not have precise records of the employee’s hours,
an employee has carried out his burden if he
proves that he has in fact performed work
for which he was improperly compensated and
if he produces sufficient evidence to show
the amount and extent of that work as a
matter of just and reasonable inference.
The burden then shifts to the employer to
come forward with evidence of the precise
amount of work performed or with evidence to
negative the reasonableness of the inference
to be drawn from the employee’s evidence.
If the employer fails to produce such
evidence, the court may then award damages
to the employee, even though the result be
only approximate.
Id. at 687-88; see also Pforr v. Food Lion Inc., 851 F.2d 106,
108 (4th Cir. 1988) (The FLSA “does not mandate that a plaintiff
14
prove
each
hour
of
overtime
work
with
unerring
accuracy
or
certainty.”).
Defendants
further
argue
that
decertification
is
appropriate because there is no common policy, plan, or scheme
to violate the FLSA.
Defendants’ policy was for technicians to
record all time worked and to pay for hours worked, even if it
constituted
theory
of
unlawful
policy.
liability
overtime.
liability
plan,
According
does
but
not
rather
Defendants
requires
to
Defendants,
involve
unlawful
maintain
application
deviations
that
individualized
the
Plaintiffs’
from
Plaintiffs’
factual
a
of
lawful
theory
inquiries
an
of
because
Defendants’ liability as to one Plaintiff cannot be generalized
to extend to other Plaintiffs, let alone the entire collective.
Defendants state that these varying theories are demonstrated by
each Plaintiff’s testimony which illustrates that technicians
received different directions from their supervisors that some
followed and others did not.
each
technician’s
separate
circumstances
mini-trials
inappropriate
for
Defendants argue that analyzing
a
for
would
each
collective
essentially
technician,
action.
lead
making
Defendants
to
it
provide
several examples, including the practice of building satellite
dishes at home, which they contend that some technicians engaged
in while others did not, and that the technicians had varying
15
reasons
for
their
given
practice.4
In
regard
to
paperwork,
Defendants note that some technicians reported doing it off-theclock,
(see
ECF
No.
202-25,
at
11-13,
Trans.
38:20
-
40:17
(Bovell Dep.)); (ECF No. 202-34, at 18, Trans. 44:23-25 (Kilson
Dep.)), but another technician reported never doing it at home,
(ECF No. 202-23, at 14-15, Trans. 38:24 - 39:2 (Albu Dep.)).
As
for meetings, Defendants point out that some technicians claim
they
did
not
record
warehouse
meetings
on
their
while others admit that they did record this time.
timesheets,
(See ECF No.
202-30, at 20, Trans. 35:6-10 (Grainger Dep.)); (ECF No. 202-47,
at 5-6, Trans. 8:20 - 9:5 (Tanoh Dep.)).
4
Defendants argue that
Some technicians testified that they built them at home
because they were ordered to.
(See ECF No. 202-31, at 20-24,
Trans. 45:20 - 49:13 (Green Dep.)) (noting that supervisors told
him to build dishes before going out into the field); (ECF No.
251-7, at 16, Trans. 54:5-10 (Cromer Dep.)); (ECF No. 251-26, at
35-36, Trans. 34:22 - 35:20 (Rodgers Dep.)). Another technician
testified that he built dishes at home but did not elaborate as
to his reasons, (ECF No. 252-32, at 9, Trans. 29:4-20 (Newman
Dep.)), while other technicians testified that they assembled
satellite dishes at home in order to be more productive in the
field.
(ECF No. 251-5, at 22, Trans. 21:2-6 (Adams)).
Other
technicians admitted that they built satellites at home but were
not required to do so. (See ECF No. 202-33, at 16, Trans. 63:213 (Jones Dep.)) (noting that he occasionally built dishes at
home to speed up the process but was not required to do so);
(ECF No. 202-42, at 21, Trans. 40:4 - 41:13 (Nicholls Dep.))
(noting that he built dishes at home but was never instructed
not to record this time)).
Still other technicians were never
so ordered and never built satellite dishes at home.
(See ECF
No. 202-23, at 14, Trans. 38:20-23 (Albu Dep.)); (ECF No. 44:21
— 45:1 (Alston Dep.)). Still others testified that they did not
have to assemble dishes at home, but preferred to do so because
it helped ensure they would make their appointments.
(ECF No.
251-9, at 14, Trans. 46:1-15 (Leftwood Dep.)); (ECF No. 251-12,
at 13, Trans. 42:3-21 (Shaffer)).
16
the inconsistency among the collective is so great that there is
no effort saved by using the collective action device.
In response, Plaintiffs contend that Defendants are making
too
much
of
technicians.
the
differences
between
and
among
individual
In a wage-and-hour action, there are always going
to be differences among workers’ hours, but that is not a reason
to
deny
records
certification
for
[Plaintiffs
all
especially
twenty-six
contend
that]
where,
Plaintiffs
calculating
as
here,
exist.
damages
the
time
“Accordingly,
will
involve
a
ministerial exercise of adding unpaid pre- and post-shift time
to Plaintiffs’ time records.”
(ECF No. 251, at 26).
Second, Plaintiffs argue that the fact that the piece-rate
system results in differing effective hourly wages is not a
reason to deny certification because the timesheets exist, which
provide
the
hourly
rates
for
each
technician.
Accordingly,
Plaintiffs assert that determining the rate of pay and overtime
pay is another simple ministerial exercise.
Third, Plaintiffs contend that Defendants are incorrect in
their position that the technicians underreported their time for
a variety of reasons.
Plaintiffs maintain that the evidence
demonstrates that Plaintiffs were instructed and only permitted
to record their start time as the time they arrived at the first
job site and their end time as the time they completed their
last job, despite the fact that they performed compensable work
17
before and after those times.
Finally, it is Defendants’ — not
Plaintiffs’ — responsibility to keep records of the time worked
by
the
technicians.
“several
layers
of
Plaintiffs
evidence”
assert
showing
that
time
this
case
worked,
has
including
Plaintiffs’ testimony, time records, GPS logs, and data from the
online assignment tool.
They argue that the supposed variances
are not detrimental to the claims, are eclipsed by Defendants’
overarching
scheme,
and
can
be
managed
through
applicable to all twenty-six Plaintiffs.
that
the
“Defendants
evidence
marshalled
uniformly
required
common
proof
Plaintiffs also state
to-date
Plaintiffs
demonstrates
to
work
before
that
the
start of their first job and after the end of their last job
performing the same exact tasks.”
(ECF No. 251, at 24).
“A collective action does not necessitate that there be no
differences
among
individualized
class
inquiry
members,
in
nor
connection
does
with
it
prohibit
fashioning
the
specific relief or damages to be awarded to each class member.”
LaFleur v. Dollar Tree Stores, Inc., No. 2:12-CV-00363, 2014 WL
934379, at *10 (E.D.Va. Mar. 7, 2014) (quoting Houston v. URS
Corp., 591 F.Supp.2d 827, 832 (E.D.Va. 2008) (internal quotation
marks omitted)).
The court should determine whether “there is a
meaningful nexus that binds Plaintiffs’ claims together and that
the similarities in their claims outweigh their differences.”
Falcon, 580 F.Supp.2d at 540.
The existence of a common policy
18
“may
assuage
concerns
circumstances.”
about
Crawford
plaintiffs’
v.
otherwise
Lexington-Fayette
varied
Urban
Cnty.
Gov’t, No. 06-299-JBC, 2008 WL 2885230, at *5 (E.D.Ky. July 22,
2008)
(quoting
Wilks
v.
Pep
Boys,
No.
3:02-0837,
2006
WL
2821700, at *3 (M.D.Tenn. Sept. 26, 2006)); see also England v.
New Century Fin. Corp., 370 F.Supp.2d 504, 507 (M.D.La. 2005)
(“If there is sufficient evidence of an employer’s pattern of
subjecting employees to the same improper practice, that would
be
sufficient
to
warrant
collective adjudication.”).
a
finding
of
similarity
justifying
The present case does not involve a
situation where Defendants had a policy — that included paying
for work done before and after the first and last job of the day
— which was administered improperly.
Here, Plaintiffs allege,
and there is corroborating evidence, that Defendants’ policy was
that compensation began upon arrival at the first job and ended
upon
departure
requirement
from
that
compensable hours.
they
the
last
perform
job,
various
despite
tasks
the
outside
alleged
of
the
Whether such a policy existed and its scope
will be determined at trial.
The evidence demonstrates that
there was a policy that technicians pre-call customers before
driving to their first job of the day.
In regard to building
satellite dishes, while not every technician testifies to doing
so, a sufficient number of technicians have stated that they
spent
time
off-the-clock
building
19
dishes
pursuant
to
either
explicit
or
implicit
instructions
from
their
supervisors.
Similarly, Plaintiffs’ claims for time spent driving from their
homes
to
their
first
job
sites
counsel against decertification.
that
while
the
plaintiffs
are
are
sufficiently
similar
to
“A fact finder may conclude
not
required
to
perform
such
tasks, there may be an expectation or unwritten policy that such
work
be
(citing
performed.”
Hill
v.
Crawford,
Muscogee
Cnty.
2008
WL
School
2885230,
Dist.,
at
No.
*7
n.6
4:03-CV-60
(CDL), 2005 WL 3526669, at *3 (M.D.Ga. Dec. 20, 2005)).
There
are certainly differences among the technicians, but they are
not so great to defeat the collective mechanism.
See Kasten v.
Saint-Gobain Performance Plastics Corp., 556 F.Supp.2d 941, 957
(W.D.Wis. 2008) (“If one zooms in close enough on anything,
differences
will
abound.”).
“While
actual
hours
worked
and
wages due may vary within the collective, district courts in the
Fourth Circuit have clarified that ‘[d]ifferences as to time
actually worked, wages actually due and hours involved’ do not
preclude a finding of a ‘similarly situated’ class.”
LaFleur,
2014 WL 934379, at *6 (quoting Romero v. Mountaire Farms, Inc.,
796 F.Supp.2d 700, 705 (E.D.N.C. 2011)).
differences
to
which
Defendant[s]
“Here, many of the
point[]
go
to
damages, not liability across the entire class.
individual
It is well-
established that the fact that individualized findings regarding
damages
may
be
necessary
20
does
not
require
class
decertification.”
Andrako v. U.S. Steel Corp., 788 F.Supp.2d
372, 381 (W.D.Pa. 2011) (internal citation and quotation marks
omitted).
Defendants
make
much
collective in Espenscheid.5
of
the
decision
decertifying
the
See Espenscheid v. DirectSat USA,
LLC, 705 F.3d 770 (7th Cir. 2013).
The opinions of the district
court and the United States Court of Appeals for the Seventh
Circuit affirming the decertification reflect that the decisive
concern was that the plaintiffs had not presented a realistic
possibility of approximating damages correctly for a nationwide
5
On July 21, 2014, Defendants filed a motion for leave to
file a supplement to their motion to decertify based on
Plaintiffs’ recent admissions regarding Espenscheid and another
FLSA case involving DirectSAT technicians: Farmer v. DirectSat
USA, LLC.
(ECF No. 271).
They contend that Plaintiffs have
taken wildly different positions on the import and value of the
rulings in these two cases between their opposition to decertify
and opposition to summary judgment and, because of that,
Defendants should be allowed to file a supplement pointing out
these alleged hypocrisies.
Plaintiffs moved to strike this
supplement as an impermissible surreply. (ECF No. 272).
This is a surreply, which may not be filed unless otherwise
ordered by the court. Local Rule 105.2(a). Although a district
court has discretion to allow a surreply, surreplies are
generally disfavored. Chubb & Son v. C.C. Complete Servs., LLC,
919 F.Supp.2d 666, 679 (D.Md. 2013).
A surreply may be
permitted “when the moving party would be unable to contest
matters presented to the court for the first time in the
opposing party’s reply.” Khoury v. Meserve, 268 F.Supp.2d 600,
605 (D.Md. 2003).
Defendants’ motion will be denied.
In
Espenscheid,
summary
judgment
was
denied
and
later
the
collective was decertified.
There is nothing improper about a
party leaning on the ruling that supports his position and
distancing himself from the ruling that hurts his position.
21
collective of 2,341 technicians, given each plaintiff’s varied
experiences.
plaintiffs
See
have
‘representative’
Espenscheid,
not
705
indicated
proof
would
F.3d
how
enable
at
773-75
their
these
(“The
method
workers
separated when it came time to calculate damages. . . .
to
of
be
With no
genuinely representative evidence having been suggested by class
counsel,
judge
2341
separate
bifurcated
Plaintiffs,
damages
it
the
is
hearings
proceedings.”).
possible
individually
loomed
if
to
need
go
even
Here,
through
be.
if
the
with
each
Furthermore,
district
twenty-six
Plaintiff’s
the
Seventh
Circuit equated the standard to maintain an FLSA collective with
that for maintaining a class action pursuant to Fed.R.Civ.P. 23.
Id. at 771-72.
many
courts
The standards are not the same, however, and
have
resisted
using
them
interchangeably.
See
Dorsey, 888 F.Supp.2d at 687 & 687 n.14 (collecting cases).
2.
“The
Individual Defenses
individualized
defenses
factor
assesses
whether
potential defenses pertain to the plaintiff class or whether the
potential
trial.”
first
defenses
require
proof
of
Rawls, 244 F.R.D. at 300.
individualized
defense
is
individualized
facts
at
Defendants argue that the
the
statute
of
limitations,
which they argue pertains to Butler and eight opt-in Plaintiffs
whom they allege only have a viable FLSA claim if they extend
the
statute
of
limitations
to
22
three
years
by
proving
willfulness.
If this case proceeds as a collective with nine
Plaintiffs having to prove willfulness, Defendants contend that
they will be prejudiced as to the remaining opt-in Plaintiffs
who do not need to prove willfulness.
These arguments are unavailing.
To the extent Plaintiffs
are alleging that their work was uncompensated due to a policy,
proof
that
such
a
policy
existed
can
be
ascertained
not
by
inquiring into each technician, but instead by looking at the
collective
as
a
whole
and
Defendants’
overarching
policies.
Additionally, Defendants will not be prejudiced by letting the
collective attempt to prove willfulness for the benefit of only
some of the opt-in Plaintiffs.
proceeding
on
a
claim
that
If an individual plaintiff was
fell
within
the
normal
two-year
limitations period, it would not be considered prejudicial to an
employer if, for whatever reason, the employee desired to go
beyond
what
is
required
by
attempting
Such overachieving is not prejudicial.
to
prove
willfulness.
See Johnson v. Wave Comm
GR LLC, No. 6:10-CV-346, 2014 WL 988512, at *5 (N.D.N.Y. Mar.
14,
2014)
(“It
adjudication
of
would
these
be
inefficient
claims
merely
to
deny
because
the
the
collective
statute
of
limitations must be applied to each plaintiff individually when
determining damages.”).
Defendants
next
argue
that
Butler
and
four
opt-in
Plaintiffs were also opt-in plaintiffs in the Espenscheid case
23
and, as such, were party plaintiffs.
judgment
and
preclusive
decertification
effect
on
their
claims in the present case.
Plaintiffs
is
not
so
Consequently, the summary
rulings
in
individual
that
and
case
have
collective
a
action
A defense as to five of twenty-six
great
as
to
counsel
in
favor
of
decertification.
Defendants submit that they will also assert a lack of
knowledge defense for any off-the-clock work performed by each
individual
Plaintiff.
Defendants
make
similar
arguments
as
those rejected above as to the individualized nature of this
defense.
It
is
not
apparent,
however,
why
this
defense
is
individualized as opposed to adjudicated on a collective basis.
The question of whether Defendants were aware of the “off the
clock”
work
could
representative
Defendants
adequately
testimony.
also
discrepancies
be
argue
between
raised
Falcon,
that
at
580
claims
by
F.Supp.2d
Plaintiffs’
their
trial
at
depositions
and
create
using
540.
reveal
numerous
credibility concerns that strike at the heart of the liability
analysis.
‘are
“Contradictions
matters
of
in
testimony
credibility
individualized defenses.’”
for
among
the
the
plaintiffs
factfinder,
not
Crawford, 2008 WL 2885230, at *10
(quoting Pendlebury v. Starbucks Coffee Co., 518 F.Supp.2d 1345,
1362 (S.D.Fla. 2007)).
24
Finally, Defendants note that Plaintiffs admit that certain
workweeks are not at issue in their respective claims, but for
varying
reasons,
including
that:
their
production
was
below
twenty hours and would be ineligible for overtime even if the
outside hours were added; they were on light duty, leave of
absence, jury duty, or on paid time off.
additional
hours
worked
do
not
Defendants add that
necessarily
raise
an
FLSA
overtime claim if the added hours still equal less than forty
hours per week.
These concerns are not so individualized to
move the needle away from certification especially where there
is
evidence
of
overarching
practices.
The
fact
that
some
technicians worked fewer than forty hours during some weeks can
be
handled
during
the
damages
phase,
if
and
when
it
is
determined that the collective worked any uncompensated time.
3.
Fairness and Procedural Considerations
The final factor takes into account fairness and procedural
considerations.
Under this factor, the court considers:
the primary objectives of allowance of a
collective action under § 216(b), namely (1)
to lower costs to the plaintiffs through the
pooling of resources; and (2) to limit the
controversy
to
one
proceeding
which
efficiently resolves common issues of law
and fact that arose from the same alleged
activity.
The court also must determine
whether it can coherently manage the class
in a manner that will not prejudice any
party.
25
Dorsey, 888 F.Supp.2d at 689 (quoting Rawls, 244 F.R.D. at 302).
Defendants rest their argument on the latter question, arguing
that the record demonstrates that each Plaintiff’s claim must be
determined
on
mini-trials
a
on
case-by-case
liability
basis,
and
resulting
damages.
in
They
individual
contend
that
maintaining the collective will only serve to confuse the jury,
conflate legal and factual issues that must be kept distinct,
and potentially infringe upon Defendants’ due process rights.
In response, Plaintiffs argue that Defendants already have
individualized discovery from all twenty-six Plaintiffs and have
the necessary evidence to proceed to trial.
the
alternative
individual
inconsistent
to
lawsuits,
the
collective
resulting
adjudications.
in
They contend that
action
piecemeal
Plaintiffs
note
is
twenty-six
litigation
that
each
and
trial
would use much of the same evidence and witnesses, to further
their argument that common questions can be answered with common
proof:
“Defendants’ liability will be established through the
testimony of its own management personnel and its own internal
business
records,
.
.
.
[and]
will
be
through the testimony of the Plaintiffs.”
Procedural
efficiency
and
fairness
further
established
(ECF No. 251, at 29).
counsel
maintaining this suit as a collective action.
in
favor
of
The potential
damages in this case are relatively low, and therefore “each
individual Plaintiff would be unlikely to pursue his or her
26
claim because of the costs involved relative to the damages
sought.”
LLC,
763
breaking
Rawls, 244 F.R.D. at 302; see also Monroe v. FTS USA,
F.Supp.2d
up
claims
979,
of
996
300
(W.D.Tenn.
plaintiffs
2011)
would
(noting
“hinder,
preclude, their resolution by judicial means”).
that
if
not
“‘A district
court has wide discretion to manage collective actions,’ and
many fairness and due process concerns can be addressed through
trial
management,
such
as
the
bifurcation
of
liability
and
damages, and/or dividing the action into various subclasses.”
Thompson v. Bruister and Assocs., Inc., 967 F.Supp.2d 1204, 1222
(M.D.Tenn. 2013) (quoting Alvarez v. City of Chicago, 605 F.3d
445, 449 (7th Cir. 2010)).
While Defendants are correct that
perhaps not every task performed by every opt-in Plaintiff can
be compensated, these issues can be worked out in the damages
phase.
Going forward, this case will be divided into two stages:
liability
whether:
and
(1)
damages.
the
The
collective
liability
performed
phase
overtime
will
focus
hours
on
without
compensation; (2) those worked hours were compensable under the
FLSA or, rather, were de minimis or preliminary or postliminary
to a principal activity; (3) if compensable, Defendants knew or
should have known that the collective worked overtime but failed
to compensate them for it; and (4) any other defenses raised by
27
Defendants.
If liability is found as to one or more of the
eligible tasks, the case will proceed to phase two: damages.
In
the
damages
phase,
Plaintiffs
will
need
to
present
representative evidence to calculate damages or, more likely,
each
Plaintiff
will
need
to
submit
subject to challenge by Defendants.
a
damages
calculation,
While this phase could lead
to in essence twenty-six mini-trials on the question of damages,
it would still be more efficient than having twenty-six minitrials on damages and liability.
Defendants overlook that while
the collective action may not be a perfect for all aspects of
this
litigation,
it
still
litigation cannot offer.
Inc.,
No.
provides
benefits
that
piecemeal
See Bobbitt v. Broadband Interactive,
8:11-cv-2855-T-24
MAP,
2013
WL
5720329,
at
*17
(M.D.Fla. Oct. 21, 2013) (“Common evidence can be used for the
liability phase.
The fact that common evidence, by itself, will
not be sufficient for the damages phase (if liability is proven)
does not undermine the judicial economy that can be achieved
from
this
case
proceeding
as
a
collective
action.”).
Accordingly, the motion to decertify will be denied.
III. Motions to Seal
Plaintiffs and Defendants have each filed unopposed motions
to
seal
selected
exhibits
decertify and opposition.
that
accompanied
their
motion
to
Defendants seek to seal Exhibits 1-4,
11-12, and 47-87 to their motion to decertify.
28
These include a
full copy of DirectSAT’s Employee Policy Manual (ECF No. 203);
full copies of DirectSAT’s Employee Handbook (ECF Nos. 204-206);
a “Payroll Explanation and Compliance Form” completed by every
Plaintiff (ECF No. 207); numerous copies of Defendants’ rate
sheet signed by Plaintiffs (ECF No. 208); copies of paystubs
(ECF Nos. 209-211, 231, and 244); copies of Defendants’ paycheck
verification procedures signed by each Plaintiff (ECF No. 212);
personnel
documents
for
various
opt-in
Plaintiffs
and
Butler
(ECF Nos. 213-215, 218-222, 224-229, and 232-235); timesheets
(ECF Nos. 217, 223, 230, and 236-243); and “Manager Reports”
which track each technicians’ work time (ECF Nos. 245-246).
Plaintiffs seek to seal Exhibits D, O, P, U, V, W, Y, Z, EE
& FF to their opposition to the motion to decertify (ECF Nos.
252 to 252-9).
opt-in
These exhibits are a signed acknowledgment by
Plaintiff
Murray
of
Defendants’
paycheck
verification
procedures (ECF No. 252); Defendants’ vehicle policy (ECF No.
252-1); Defendants’ GPS policy (ECF No. 252-2); a corrective
action form prepared for opt-in Plaintiff Murray (ECF No. 2523);
a
completed
“Truck
Kit/Tool
Issuance
Plaintiff Poindexter (ECF No. 252-4); a
Form”
for
opt-in
signed acknowledgement
by opt-in Plaintiff Poindexter of Defendants’ Technician Cell
Phone
(ECF
Policy
No.
(ECF
252-6);
No.
252-5);
Defendants’
Defendants’
behavior
timekeeping
policy
for
policy
technicians
(ECF No. 252-7); a timesheet for opt-in Plaintiff Adams (ECF No.
29
252-8);
and
a
paystub
for
opt-in
Plaintiff
Adams
(ECF
No.
252-9).
“The right of public access to documents or materials filed
in a district court derives from two independent sources: the
common law and the First Amendment.”
Va. Dep’t of State Police
v. Wash. Post, 386 F.3d 567, 575 (4th Cir. 2004).
“The common
law presumes a right of the public to inspect and copy ‘all
judicial records and documents,’” id. at 575 (quoting Stone v.
Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 180 (4th Cir. 1988)),
although this presumption “‘can be rebutted if countervailing
interests
heavily
outweigh
the
public
interests
in
access.’”
Id. (quoting Rushford v. New Yorker Magazine, Inc., 846 F.2d
249, 253 (4th Cir. 1988)); see also Nixon v. Warner Commc’ns,
Inc.,
435
U.S.
balancing
589,
analysis,
presumption
bears
597–99
“[t]he
the
(1978).
party
burden
of
Under
to
showing
common
law
overcome
seeking
the
some
interest that outweighs the presumption.”
253.
this
significant
Rushford, 846 F.2d at
“Ultimately, under the common law[,] the decision whether
to grant or restrict access to judicial records or documents is
a matter of a district court’s ‘supervisory power,’ and it is
one
‘best
court.’”
left
to
the
sound
discretion
of
the
[district]
Va. Dep’t of State Police, 386 F.3d at 575 (quoting
Nixon, 435 U.S. at 598–99) (second alteration in original).
30
In addition to the public’s common law right of access, the
First Amendment provides a “more rigorous” right of access for
certain “judicial records and documents.”
Va. Dep’t of State
Police, 386 F.3d at 575-76; see also In re Application of the
United
States
2703(D),
707
“significant”
for
F.3d
an
Order
283,
distinction
290
Pursuant
(4th
between
Cir.
the
to
18
2013)
two
U.S.C.
Section
(explaining
rights
of
the
access).
Where the First Amendment does apply, access may be denied “only
on the basis of a compelling governmental interest, and only if
the
denial
is
narrowly
tailored
to
serve
that
interest.”
Stone, 855 F.2d at 180.
“For a right of access to a document to exist under either
the First Amendment or the common law, the document must be a
‘judicial record’” in the first instance.
707
F.3d
at
290.
The
Fourth
Circuit
In re Application,
recently
held
that
judicially authored or created documents are “judicial records,”
as are documents filed with the court that “play a role in the
adjudicative process, or adjudicate substantive rights.”
Id.
(citing Rushford, 846 F.2d at 252; In re Policy Mgt. Sys. Corp.,
67 F.3d 296 (4th Cir. 1995) (unpublished table decision)).
Thus, as a substantive matter, when a district court is
presented with a request to seal certain documents, it must
determine two things: (1) whether the documents in question are
judicial records to which the common law presumption of access
31
applies; and (2) whether the documents are also protected by the
more
rigorous
Application,
First
707
Amendment
F.3d
at
290;
right
see
of
also
access.
Va.
Dep't
In
of
re
State
Police, 386 F.3d at 576.
The sealing of any judicial record must also comport with
certain procedural requirements.
First, the non-moving party
must be provided with notice of the request to seal and an
opportunity to object.
235 (4th Cir. 1984).
In re Knight Publ’g Co., 743 F.2d 231,
This requirement may be satisfied by either
notifying the persons present in the courtroom or by docketing
the motion “reasonably in advance of deciding the issue.”
at 234.
Id.
In addition, “less drastic alternatives to sealing”
must be considered.
Va. Dep’t of State Police, 386 F.3d at 576;
see also Local Rule 105.11 (requiring any motion to seal to
include
both
“proposed
reasons
supported
by
specific
factual
representations to justify the sealing” and “an explanation why
alternatives
protection”).
to
sealing
would
not
provide
sufficient
Finally, if sealing is ordered, such an order
must “state the reasons (and specific supporting findings)” for
sealing and must explain why sealing is preferable over its
alternatives.
Va. Dep’t of State Police, 386 F.3d at 576.
Defendants submit that the exhibits related to their motion
to decertify should be sealed as they were deemed confidential
pursuant to the court-approved Confidentiality Stipulation (ECF
32
Nos.
37
and
proprietary
employee
38)
because
business
personnel
they
information
files
commercial information.
that
contain
and/or
contain
confidential
were
and
produced
sensitive
from
personal
and
The full copies of Defendants’ employee
handbooks and policy manuals will remain under seal.
While
Plaintiffs cite to their contents as evidence of Defendants’
allegedly
unlawful
portions
of
policies,
those
Plaintiffs
documents
submit
with
their
the
relevant
oppositions.
Consequently, the full copies submitted by Defendants can remain
under seal.
The copies of the rate sheet and manager reports will also
remain under seal.
The information contained in them — the
rates paid for different jobs performed and the salary for every
technician, whether or not he is a Plaintiff — is not relevant
to
the
disposition
confidential
of
the
information
that
motion
can
to
remain
decertify
under
and
seal.
is
See
Pittston Co. v. United States, 368 F.3d 385, 406 (4th Cir. 2004)
Defendants’
desire
to
seal
the
copies
of
the
payroll
explanation and compliance form and the paycheck verification
procedure is not so obvious.
Defendants maintain that this form
constitutes confidential and proprietary business and commercial
information
related
to:
DirectSAT’s
payroll
system,
how
DirectSAT compensates its technicians, DirectSAT’s formula for
calculating a technician’s wages, and the procedures in place
33
for how a DirectSAT technician must report any discrepancies or
inaccuracies in his pay.
they
appear
to
be
But after reviewing these documents,
substantially
similar
to
the
document
addressing piece-rate calculations that was previously found to
be undeserving of sealing.
Furthermore, Defendants, in their
motion, discuss in essence the piece-rate system and rely on
Plaintiffs’ failure to utilize dispute mechanisms in regard to
pay in support of their motion.
The crux of this case is how
Plaintiffs were paid for their work and whether Defendants knew
or should have known about that uncompensated work.
While it is
true that Judge Schulze previously sealed these documents, her
decision was in the context of a discovery dispute, not a motion
to decertify a collective.
See Marks v. Licul, No. DKC 13-0347,
2013 WL 6014026, at *8 (D.Md. Nov. 7, 2013) (whether a document
should
be
sealed
specific”).
is
“context-specific
rather
than
content-
Defendants will have fourteen (14) days to file a
renewed motion to seal with redactions to Exhibits 11, (ECF No.
207), and 50, (ECF No. 212), to their motion to decertify, or
explain why those documents must be sealed in their entirety.
The
technicians’
employee
files
will
remain
under
seal.
They consist of a checklist for technicians leaving the company
and,
for
showing
Butler,
when
he
warehouse manager.
(ECF
No.
214),
a
change
left
his
technician
of
position
position
to
form
become
a
The opt-in Plaintiffs’ forms were used by
34
Defendants
only
to
illustrate
when
various
opt-in
Plaintiffs
stopped working for Defendants and, in some cases, to illustrate
potential statute of limitations issues.
They were not relied
upon in adjudicating the motion to decertify but the parties are
on
notice
that
in
a
different
context
there
may
not
be
sufficient justification to seal if, for instance, Defendants
are asserting a statute of limitations defense and need to prove
when a technician stopped working.
Next,
Defendants
seek
to
seal
in
their
entirety
collection of timesheets and earnings statements.
contend
that
information
these
that
specifically
the
documents
should
be
employee’s
contain
kept
social
Defendants
personal
confidential
security
a
and
employee
sensitive,
number,
marital
status, number of exemptions, employee identification numbers
and/or home address.
The presence of this information is not by
itself a sufficient reason to justify sealing these documents in
their entirety.
be
filed
5.2(a).
in
It is not apparent why these documents cannot
redacted
form
in
accordance
with
Fed.R.Civ.P.
In addition, every Plaintiff’s home address is listed
on either the complaint or their opt-in forms, which have never
been
filed
fourteen
under
(14)
seal.
days
to
Consequently,
file
a
renewed
Defendants
will
have
motion
seal
with
to
redactions to the timesheets and earnings statements filed in
35
conjunction with their motion to decertify, or explain why those
documents must be sealed in their entirety.
Plaintiffs, on the other hand, do not attempt to justify
their sealed documents beyond stating that have been designated
confidential pursuant to the Confidentiality Stipulation.
No. 253).
(ECF
Reliance on a boilerplate confidentiality order, with
no attempt to redact portions of the filings, is insufficient
for a motion to seal.
See Visual Mining, Inc. v. Ziegler, No.
PWG
690905,
12-3227,
2014
WL
at
*5
(D.Md.
Feb.
21,
2014)
(denying motion to seal when the only justification was that the
documents are “confidential” under a court-approved Protective
Order); Under Armour, Inc. v. Body Armor Nutrition, LLC, No.
JKB-12-1283,
2013
WL
5375444,
at
*9
(D.Md.
Aug.
23,
2013).
Plaintiffs’ failure to provide any factual support justifying
its
motion
to
seal
is
especially
puzzling
given
that
in
an
earlier decision in this case, the undersigned noted that a
party’s
reliance
on
a
confidentiality
order
alone
is
insufficient to satisfy the “specific factual representations”
that Local Rule 105.11 requires.
n.18.
Butler, 876 F.Supp.2d at 576
Plaintiffs will have fourteen (14) days to file a renewed
motion to seal with redacted versions or, alternatively, explain
why one or more of these documents must be sealed in their
entirety.
portions
Examining
of
the
Defendants’
documents,
employee
36
it
is
not
handbook
apparent
outlining
why
the
timekeeping, cellphone, and other policies relevant and relied
upon by both parties in their unsealed briefs should be sealed.
Other documents include the timesheets and earnings statements
discussed above.
With regard to the employee discipline form
and product inventory, it seems readily capable of redaction, in
order to make public information aiding Plaintiffs’ position.
IV.
Conclusion
For
the
foregoing
reasons,
decertification will be denied.
Defendants’
motion
for
Defendants’ motion to seal will
be granted in part and denied in part, while Plaintiffs’ motion
to seal will be denied.
A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
37
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