Butler et al v. Directsat USA, LLC et al

Filing 316

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 4/29/2015. (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
This collective action was brought under the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 201, et seq., by Plaintiff
Jeffry Butler (“Butler”) against Defendants DirectSAT USA, LLC
(“DirectSAT”),

UniTek

USA,

LLC

(“UniTek”),

and

UniTek

Global

Services, Inc. (“UGS”) (collectively “Defendants”).

DirectSAT

is

satellite

a

subsidiary

installation
country.

of

UniTek

services

Butler

is

to
a

and

UGS,

DirecTV

technician

and

provides

customers
who

throughout

previously

the

installed,

upgraded, and serviced DirecTV equipment at customer locations
in Maryland, Virginia, and the District of Columbia.

Butler

brought this suit against Defendants for their alleged failure
to pay overtime wages in violation of the FLSA and various state
wage laws.

As to the FLSA claim, Butler sought to represent a

collective

of

all

technicians

employed

by

Defendants

Virginia, Maryland, and the District of Columbia.

in

Conditional

certification of the FLSA collective was granted on April 10,

2012.

(ECF Nos. 65 and 66).

Defendants filed a motion to

decertify the collective on February 3, 2014, which was denied
on September 18, 2014.
presently

consists

of

(ECF Nos. 278 and 279).
named

Plaintiff

Butler

The collective
and

opt-in Plaintiffs (collectively “Plaintiffs”).1

twenty-five

On May 12, 2014,

Defendants moved for summary judgment, which was granted in part
and denied in part on October 16, 2014.

(ECF Nos. 301 and 302).

Shortly after issuance of the summary judgment opinion, this
case

was

administratively

closed

notice of suggestion of bankruptcy.

because

Defendants

filed

a

(ECF Nos. 311 and 312).

On March 17, 2015, Plaintiffs filed a motion to lift the
bankruptcy stay, which is currently pending before the court.
(ECF No. 315).
action

are

Also pending and ready for resolution in this

several

motions

that

were

filed

administrative closing of this case, namely:
reconsideration

of

the

July

6,

2011

prior

to

the

(1) a motion for

order

that

dismissed

Plaintiffs’ Maryland Wage Payment and Collection Law (“MWPCL”)
claim

(ECF

No.

275);

(2)

a

motion

filed

by

Defendants

for

certification of an interlocutory appeal pursuant to 28 U.S.C. §
1292(b) of the undersigned’s September 18, 2014 order denying
decertification (ECF No. 298); (3) a motion to set a trial date

1

 This memorandum opinion includes only the facts relevant to
the disposition of the presently pending motions.
A full
procedural history and factual description of the dispute
between the parties can be found in previous opinions.
(ECF
Nos. 28, 65, 190, 278, and 301).  

2

filed

by

Plaintiffs

(ECF

No.

310);

and

(4)

several

renewed

motions to seal various exhibits that were filed in conjunction
with the parties’ decertification and summary judgment motions
(ECF Nos. 280, 299, 303, and 309).

The issues have been briefed

and the court now rules, no hearing being deemed necessary.
Local Rule 105.6.
to

lift

granted.
MWPCL

the

bankruptcy

Plaintiffs’

claim

granted.

For the following reasons, Plaintiffs’ motion

and

their

stay

motion

and
for

motion

to

reopen

this

case

reconsideration
set

a

trial

of

date

will

be

Butler’s
will

be

Defendants’ motion for certification will be denied.

Finally, the renewed motions to seal will be granted in part and
denied in part.
I.

Motion to Lift Bankruptcy Stay
Defendants filed a suggestion of bankruptcy on November 13,

2014, advising that UGS and “its affiliated debtors and debtors
in possession” had filed a Chapter 11 petition and that the
instant

case

was

subject

to

an

pursuant to 11 U.S.C. § 362(a).

automatic

bankruptcy

(ECF No. 311).

stay

On the same

date, the court issued an order administratively closing this
case without prejudice to Plaintiffs’ right to reopen it upon a
showing of good cause.

(ECF No. 312).

On March 17, 2015, Plaintiffs filed a “motion to lift the
stay,” in which they indicate that the bankruptcy court handling
Defendants’ Chapter 11 proceeding issued a confirmation order
3

and plan of reorganization on January 5, 2015.

(ECF No. 315).

Plaintiffs note that pursuant to the bankruptcy judge’s order,
the bankruptcy stay was lifted in this litigation as of the
effective date of the reorganization plan, which was January 13,
2015,

and

Plaintiffs

were

granted

permission

litigating their claims against Defendants.
58-61).

to

continue

(ECF No. 315-1, at

Defendants did not respond to this motion, however,

they had previously filed a notification on January 15, 2015,
indicating that the Bankruptcy Court had confirmed their Chapter
11 plan of reorganization.
When a debtor files for bankruptcy protection, 11 U.S.C. §
362(a)(1) automatically stays “the commencement or continuation
. . .

of

a

judicial,

administrative,

or

other

action

or

proceeding against the debtor that was . . . commenced before
the commencement of the case under this title.”

The “chief

purpose” of the automatic stay provision is “to allow for a
systematic,

equitable

liquidation

proceeding

by

avoiding

a

‘chaotic and uncontrolled scramble for the debtor’s assets in a
variety

of

uncoordinated

proceedings

in

different

courts.’”

Safety–Kleen, Inc. v. Wyche, 274 F.3d 846, 864 (4th Cir. 2001)
(quoting Fidelity Mortgage Investors v. Camelia Builders, Inc.,
550 F.2d 47, 55 (2d Cir. 1976)).

“Relief from the stay can be

granted only by the bankruptcy court having jurisdiction over a
debtor’s case.”

Constitution Bank v. Tubbs, 68 F.3d 685, 691 (3d
4

Cir. 1995).

“Unless relief from the stay is granted, the stay

continues until the bankruptcy case is dismissed or closed, or
discharge [of the debtor’s debts] is granted or denied.”
691-92 (citing 11 U.S.C. § 362(c)).
proceedings,

the

bankruptcy

court’s

Id. at

In Chapter 11 bankruptcy
confirmation

of

the

plan

“discharges the debtor from any [dischargeable] debt[,]” unless
otherwise provided for in the plan of reorganization.

11 U.S.C.

§ 1141(d)(1); see also U.S. v. White, 466 F.3d 1241, 1245-46 &
1245 nn.7-8 (11th Cir. 2006) (citing 11 U.S.C. §§ 362(c)(2) and
1141(d)(1)).
Here, the bankruptcy court confirmed Defendants’ Chapter 11
Plan of reorganization on January 5, 2015.
order,

the

bankruptcy

judge

In his confirmation

specifically

addressed

the

Plaintiffs’ current suit:
With respect to the plaintiffs [] and any
members or putative members of any class or
subclass [] in the following litigations
[including] Butler, et al v. DirectSat, USA,
LLC, et al., 10 cv 2747 (District of
Maryland)[,] [] any stay or injunction
imposed by this Confirmation Order, the Plan
or any other Order of the Bankruptcy Court,
as applicable, is immediately removed as of
the Effective Date of the Plan and is lifted
in order to permit Plaintiffs and all other
parties to fully litigate their Claims and
the Claims of the Class members[.]
(ECF No. 315-1 ¶ 72).

Defendants’ reorganization plan became

effective January 13, 2015, which lifted the bankruptcy stay.

5

(ECF Nos. 313, 313-1, and 315).

Accordingly, Plaintiffs’ motion

will be granted and this case will be reopened. 
II.

Motion for Reconsideration
Plaintiffs move for reconsideration of the undersigned’s

July 6, 2011 memorandum opinion and order (ECF Nos. 28 and 29),
which dismissed their Maryland Wage Payment and Collection Law
(“MWPCL”) claim (count III) based on “an intervening change in
controlling law.”
dismissed

(ECF No. 275).

Plaintiffs’

claim

based

The July 6, 2011 opinion
on

the

understanding

that

“[t]he MWPCL does not specifically address payment of overtime
wages

or

provide

a

cause

failure to pay overtime.”
specifically

notes

that

of

action

directed

at

(ECF No. 28, at 16).
“other

judges

in

this

employer’s
The opinion

district

have

rejected plaintiffs’ attempts to state claims for violation of
the MWPCL where [like here] the parties’ core dispute is whether
plaintiffs

were

entitled

to

overtime

wages

at

all

and

not

whether overtime wages were paid on a regular basis or upon
termination.”

(Id.).

Plaintiffs assert that the dismissal of their MWPCL claim
was based on the improper determination that Plaintiffs’ claim
for overtime wages did not fall within the scope of the MWPCL.
Plaintiffs point out that after the court issued its July 6,
2011

decision,

the

Court

of

Appeals

of

Maryland

reached

a

different conclusion in Peters v. Early Healthcare Giver, Inc.,
6

439

Md.

646

(2014),

finding

that

the

MWPCL

does

provide

a

vehicle for recovering unpaid overtime wages.
In response, Defendants argue that Plaintiffs’ motion for
reconsideration of their MWPCL claim must be denied because it
relies upon the same argument that was previously rejected at
the motion to dismiss stage — that the 2010 Amendment to the
MWPCL

made

explicit

that

unpaid

recoverable under the MWPCL.
Plaintiffs’
pleading

MWPCL

claim

deficiencies

overtime

wage

claims

were

In addition, Defendants argue that

was
that

dismissed
are

Defendants add that “even if []

in

2011

equally
Peters

because

present

of

today.

finally resolves the

question of whether the 2010 amendments to the MWPCL provide a
private

right

amendments

of

have

action
no

for

bearing”

allegedly
on

this

unpaid

case

overtime,

because

they

said
were

enacted after the only remaining named Plaintiff, Jeffry Butler,
was no longer employed by DirectSat.

(ECF No. 277, at 2-3).

Defendants argue that neither the 2010 Amendments to the MWPCL
nor the Peter court’s interpretation of the same were intended
to apply retroactively and therefore, should not be applied to
Butler whose employment with Defendants ended in 2008.
Because
interlocutory

Plaintiffs
order,

Fed.R.Civ.P. 54(b).

seek

their

reconsideration

motion

is

of

properly

a

non-final,

analyzed

under

See Fed.R.Civ.P. 54(b) (“[A]ny order or

other decision, however designated, that adjudicates fewer than
7

all the claims or the rights and liabilities of fewer than all
the parties does not end the action . . . and may be revised at
any time before the entry of a judgment adjudicating all the
claims and all the parties' rights and liabilities.”).

The

precise standard governing a motion for reconsideration of an
interlocutory
articulated

in

order
Rules

is

unclear.

59(e)

and

Although

60(b)

are

not

the

standards

binding

in

an

analysis of Rule 54(b) motions, see Am. Canoe Ass'n v. Murphy
Farms, Inc., 326 F.3d 504, 514 (4th Cir. 2003), courts frequently
look

to

these

standards

for

guidance

in

considering

such

motions, see Cohens v. Md. Dep't of Human Res., 933 F.Supp.2d
735, 741 (D.Md. 2013).

Under Rule 59(e), a motion to alter or

amend a final judgment may be granted only “(1) to accommodate
an intervening change in controlling law; (2) to account for new
evidence not available at trial; or (3) to correct a clear error
of law or prevent manifest injustice.”

Pac. Ins. Co. v. Am.

Nat'l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998).

Under

Rule 60(b), a court may grant relief from a judgment or order
for:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence; (3) fraud or misconduct by the
opposing party; (4) voidness; (5) satisfaction; or (6) any other
reason that justifies relief.

Fed.R.Civ.P. 60(b).

Judge Hazel recently discussed in Chavez v. Besies Corp.,
No. GJH-14-1338, 2014 WL 5298032, at *2-3 (D.Md. Oct. 10, 2014),
8

the scope of the MWPCL as clarified by the Court of Appeals of
Maryland in two opinions it issued in 2014:
“[I]t is well-settled that the federal
courts are bound by the interpretation
placed on state statutes by the highest
courts of the state.”
Wetzel v. Edwards,
635 F.2d 283, 289 (4th Cir. 1980). With that
understanding, this Court turns to a recent
decision where the Maryland Court of Appeals
addressed the issue raised by Defendant.
Marshall v. Safeway, 437 Md. 542, 88 A.3d
735 (Md. 2014).
There, the Maryland Court
of Appeals found that the MWPCL generally
provides an employee with a cause of action
against an employer, not just for the
failure to pay wages on time, but also for
“the refusal of employers to pay wages
lawfully due.”
Id. at 561–62, 88 A.3d at
746.
In explaining the MWPCL, Maryland’s
highest court stated, “what the timing
relates to is what must be paid — all
compensation that is due.”
Id. at 560, 88
A.3d. at 745. The Maryland Court of Appeals
reasoned that unlawfully withholding any
part
of
a
wage
violates
the
MWPCL’s
provision that wages must be paid on time.
Id.
. . . .
Moreover, in August of this year, the
Maryland Court of Appeals reiterated the
reach of the MWPCL in Peters v. Early
Healthcare Giver, Inc., 439 Md. 646, 97 A.3d
621 (Md. 2014). There, the Court of Appeals
explained:
Maryland has two wage enforcement
laws . . . the [M]WHL and the
[M]WPCL.
The [M]WHL aims to
protect
Maryland
workers
by
providing a minimum wage standard.
The [M]WPCL requires an employer
to pay its employees regularly
while employed, and in full at the
9

termination of employment.
Read
together,
these
statutes
allow
employees to recover unlawfully
withheld
wages
from
their
employer, and provide an employee
two avenues to do so.
Id. at 646, 97 A.3d at 624–25.
In

light

of

the

Court

of

Appeals

of

Maryland’s

clarifications in Marshall and Peters as to the scope of the
MWPCL, Plaintiff Butler’s MWPCL claim will be reinstated.

The

pleading deficiencies that were identified in 2011 were based on
a

misunderstanding

of

the

scope

of

the

law.

Defendants’

argument that the “change in the law” articulated in Peters does
not apply to Butler because he was only employed by Defendants
until July 2008 and there is a presumption against retroactive
application of the MWPCL 2010 Amendment will be rejected for
several

reasons.

As

explained

by

the

Court

of

Appeals

of

Maryland in Marshall and Peters, the scope of the MWPCL was
always intended to provide employees a basis for recovering any
unpaid wages they were entitled to and was not meant to be
restricted to recovering wage payments when they were untimely.
Marshall, 437 Md. at 556-62; Peters, 439 Md. at 653-55.

The

court further articulated in Peters that it had been called upon
to clarify the scope of the MWPCL “in the face of federal court
decisions that continued to restrict its application.”

439 Md.

at 654 (citing McLaughlin v. Murphy, 372 F.Supp.2d 465 (D.Md.

10

2004);

Williams

v.

Maryland

616, 622 n.4 (D.Md. 2007).2
which

added

“wages,”

“overtime

did

not

wages”

change

the

Office

Relocators,

485

F.Supp.2d

The 2010 Amendment to the MWPCL,
to

the

law;

statute’s

rather,

it

definition
was

passed

of
to

provide clarification of the intended scope of the MWPCL, which
previously

had

been

misconstrued.

The

presumption

against

retroactivity is therefore inapplicable to Butler’s MWPCL claim
for overtime pay because the MWPCL was all along intended to
provide a private cause of action for unpaid overtime wages,

2

  Specifically, the court noted that:

In
response
to
[the
federal
district
court’s] decisions, the Legislature amended
the WPCL by adding “overtime wages” to the
statute’s definition of “wages” for the sole
purpose of “correct[ing] . . . . [t]he 2004
holding in McLaughlin v. Murphy and the 2007
holding in Williams v. Maryland Office
Relocators, Inc. [that] misinterpreted our
state law to say that Marylanders who are
owed overtime cannot seek the full damages
they are owed from employers who fail to
properly
pay
them
overtime.”
See
Del.
Josephine A. Peña–Melnyk, Testimony on House
Bill 214 (House Econ. Matters Comm. Feb. 18,
2010 and Sen. Fin. Comm. April 1, 2010); see
also 2010 Md. Laws, ch. 99 (S.B. 694); 2010
Md. Laws, ch. 100 (H.B. 214) (hereinafter
“2010 Amendment”).
Id. at 654 n.7.

11

including during Butler’s employment as a DirectSat technician
from October 2007 until July 2008.3
III. Motion for Certification of an Interlocutory Appeal
A.

Background

Following the close of discovery, Defendants filed a motion
to decertify Plaintiffs’ conditionally certified collective on
the grounds that the Plaintiffs were not similarly situated and
should not be permitted to proceed as a collective.
202).

On

September

decertification

was

18,

denied.

2014,
(ECF

Defendants’
Nos.

278

and

(ECF No.

motion

for

279).

As

explained in the September 18, 2014 opinion, in the second and
final stage of the certification process:
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 final decision
regarding the propriety of proceeding as a
collective
action.”
Dorsey
v.
TGT
Consulting, LLC, 888 F.Supp.2d 670, 686
(D.Md. 2012) (quoting Syrja [v. Westat,
Inc., 756 F.Supp.2d 682, 686 (D.Md. 2010)].
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.”
Gionfriddo v. Jason Zink, LLC, 769 F.Supp.2d
880, 886 (D.Md. 2011) (citation omitted).

3

Indeed, the plaintiff in Peters sought and received
overtime wages for work performed during a similar time period
of April 2008 to April 2009 that preceded the 2010 Amendment.
439 Md. at 650.  

12

“In
considering
a
motion
to
decertify
alleging dissimilarity of the plaintiff
class, courts have 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)).
(ECF

No.

278,

at

6-7)

original).

After

parties,

(first

undersigned

the

reviewing

and

the

found

second

evidence

that

alterations

presented

although

by

“[t]here

in
the

[were]

certainly differences among the technicians, [] they [were] not
so great to defeat the collective mechanism.”
addition,
among

the

undersigned

technicians

assessments

than

related
to

acknowledged
more

to

that

their

establishing

(Id. at 20).
the

In

differences

individual

liability,

damages

and

that

representative proof could be used to show whether Defendants in
fact

had

policies

compensable

tasks

in

place

outside

of

requiring
their

Plaintiffs

compensable

to

hours.

opinion notes that:
Going forward, this case will be divided
into two stages: liability and damages. The
liability phase will focus on whether:
(1)
the collective performed overtime hours
without compensation; (2) those worked hours
were compensable under the FLSA or, rather,
were
de
minimis
or
preliminary
or
13

perform
The

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 Defendants.
If liability is found as to one or more of
the eligible tasks, the case will proceed to
phase two: damages.
(Id.

at

27-28).

As

for

the

damages

phase,

the

undersigned

foresaw that in all likelihood each “Plaintiff will need to
submit

a

damages

Defendants.

calculation,

subject

to

challenge

by

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 mini-trials on damages and
liability.”
On
certify

(Id. at 28).

September
the

26,

September

2014,
18,

Defendants
2014

moved

opinion

to

and

amend
order

interlocutory appeal pursuant to 28 U.S.C. § 1292(b).
298).

The motion is fully briefed.

Defendants

request

that

the

court

certify

the

1.
Whether a FLSA collective action can
remain
certified
for
trial
without
Plaintiffs identifying and establishing the
representativeness of intended proof for
either liability or damages, and where the
Court must conduct “mini-trial” for each and
every member of the collective to ascertain
damages.
2.
Whether proceedings in [a] certified
FLSA collective action can be bifurcated
where
liability
and
damages
for
an

for

(ECF No.

(ECF Nos. 300 and 308).

questions for immediate interlocutory review:

14

and

following

individual’s
claim
are
intertwined and interwoven.

inextricably

(ECF No. 298).
B.

Analysis

“[Section] 1292(b) provides a mechanism by which litigants
can bring an immediate appeal of a non-final order upon the
consent of both the district court and the court of appeals.”
In re Cement Antitrust Litig., 673 F.2d 1020, 1026 (9th Cir.
1982).

Section 1292(b) states in pertinent part:
When a district judge, in making in a civil action
an order not otherwise appealable under this
section, shall be of the opinion that such order
involves a controlling question of law as to which
there is substantial ground for difference of
opinion and that an immediate appeal from the order
may materially advance the ultimate termination of
the litigation, he shall so state in writing in such
order.

Thus, a defendant seeking an interlocutory appeal pursuant to
section 1292(b) must “show (1) that a controlling question of
law exists (2) about which there is a substantial basis for
difference of opinion and (3) that an immediate appeal from the
order may materially advance the ultimate termination of the
litigation.”
(M.D.N.C.
appeal

is

Riley v. Dow Corning Corp., 876 F.Supp. 728, 731

1992).
firmly

The
in

decision

the

to

district

certify
court’s

an

interlocutory

discretion.

Id.

Unless all of the statutory criteria are satisfied, however,
“the district court may not and should not certify its order

15

. . . for an immediate appeal under section 1292(b).”

Ahrenholz

v. Bd. of Trs. of the Univ. of Ill., 219 F.3d 674, 676 (7th Cir.
2000); see also Riley, 876 F.Supp. at 731 (stating that Section
1292(b) “requires strict adherence to all statutory requirements
before certification will be allowed”).

Moreover, the United

States Court of Appeals for the Fourth Circuit has cautioned
that “[section] 1292(b) should be used sparingly and . . . that
its

requirements

must

be

strictly

construed.”

Myles

v.

Laffitte, 881 F.2d 125, 127 (4th Cir. 1989); see also Riley, 876
F.Supp. at 731 (“The legislative history of [Section 1292(b)]
suggests that there is a strong federal policy against piecemeal
appeals.”); Beck v. Commc’ns Workers of Am., 468 F.Supp. 93, 95–
96 (D.Md. 1979) (“Section 1292(b), a narrow exception to the
long-standing

rule

against

exceptional cases.”).

piecemeal

appeals,

is

limited

to

Certification under section 1292(b) is

improper if it is simply “to provide early review of difficult
rulings in hard cases.”

City of Charleston, S.C. v. Hotels.com,

LP, 586 F.Supp.2d 538, 548 (D.S.C. 2008).
The term “question of law” for purposes of section 1292(b),
refers

to

“a

question

of

the

meaning

of

a

statutory

or

constitutional provision, regulation, or common law doctrine,”
Lynn v. Monarch Recovery Mgmt., Inc., 953 F.Supp.2d 612, 623
(D.Md. 2013), as opposed to “questions of law heavily freighted
with

the

necessity

for

factual
16

assessment.”

Fannin

v.

CSX

Transp., Inc., 873 F.2d 1438, at *5 (4th Cir. 1989) (unpublished
table decision).
thought

not

the

“Such ‘questions of law’ have usually been
kind

of

‘controlling’

question

proper

for

interlocutory review under § 1292(b)[,]” because they “inflict[]
upon courts of appeals an unaccustomed and illsuited role as
factfinders.”

Id.;

see also In re Text Messaging Antitrust

Litig., 630 F.3d 622, 626 (7th Cir. 2010) (“[A] pure question of
law [is] something the court of appeals could decide quickly and
cleanly without having to study the record[.]”).

Rather, a

“controlling question of law” applies to a “narrow question of
pure law whose resolution would be completely dispositive of the
litigation, either as a legal or practical matter.”
F.2d

at

*5.

Moreover,

“[a]

controlling

Fannin, 873

question

of

law

[includes] every order [that], if erroneous, would be reversible
error on final appeal.”

Lynn, 953 F.Supp.2d at 623 (quoting

Katz v. Carte Blanche Corp., 496 F.2d 747, 755 (3d Cir. 1974)).
Defendants argue that this motion for certification of an
interlocutory appeal presents multiple controlling questions of
law because the court’s certification decision turned on:
an express rejection of multiple legal
conclusions adopted by the Seventh Circuit
in the case of Espenscheid v. DirectSAT USA,
Cir.
2013).
LLC,
705
F.3d
770
(7th
Specifically, this Court has permitted FLSA
certification for trial without requiring
Plaintiffs to specifically identify their
representative
proof[.]
In
Espenscheid,
however, the Seventh Circuit emphasized the
17

necessity of proving representativeness to
establish both class-wide liability and
class-wide damages in a collective[.]
(ECF No. 298-1, at 8).

Defendants contend that it is improper

to permit Plaintiffs to proceed as a collective when “minitrials” on damages loom for each Plaintiff.

Defendants assert

that the decision to bifurcate the trial is also a “controlling
question

of

law”

because

the

liability

and

damages

determinations are interwoven and cannot be separated without
compromising Defendants’ rights to a fair trial.

Defendants

assert that the court’s intended method of bifurcation “suggests
a liability-only proceeding that depends upon the adoption of an
overall ‘average technician’ representing every other technician
in the collective.”

(ECF No. 298-1, at 10).

Defendants contend

that this representative method of establishing liability would
prejudice

them

individualized
collective[.]”

because

it

defenses

would
as

to

preclude

them

“absent

from

members

pursuing
of

the

(Id. at 11).

Defendants have not met their burden of showing exceptional
circumstances

to

justify

certification

of

an

interlocutory

appeal because the issues raised by them are not “controlling
question of law.”

The questions Defendants hope to certify —

whether Plaintiffs may try their FLSA collective claims using
individualized rather than representative proof, and whether the
court

may

bifurcate

the

trial
18

into

a

liability

and

damages

phases — are procedural challenges to the methods the court
selected for the parties to try this case.

Despite how they may

be articulated, Defendants’ procedural challenges in actuality
are

also

substantive

decision,

as

challenges

evidenced

by

to

the

the

fact

court’s
that

certification

Defendants’

seek

reversal of the certification decision itself, rather than a
ruling

from

the

Fourth

Circuit

requiring

Plaintiffs

to

use

representative testimony in a non-bifurcated trial.
As they are currently framed, the questions Defendants hope
to raise on interlocutory appeal relate to the undersigned’s
determinations on the procedural methods Plaintiffs may use to
present their case, in particular, the use of 26 “mini-trials”
on

damages

rather

than

representative

testimony,

and

the

bifurcation of the trial into separate liability and damages
phases.

These

determinations

are

not

“questions

of

law,”

however, they are procedural, trial management decisions that
are within the court’s discretion.
Carpenter,

558

U.S.

100,

106

See Mohawk Indus., Inc. v.

(2009)

(“Permitting

piecemeal,

prejudgment appeals, we have recognized, undermines ‘efficient
judicial administration’ and encroaches upon the prerogatives of
district court judges, who play a ‘special role’ in managing
ongoing
Risjord,

litigation.
449

U.S.

(quoting
368,

374

Firestone

Tire

(1981));

see

&

Rubber

also

Co.

v.

Thompson

v.

Bruister & Assocs., Inc., 967 F.Supp.2d 1204, 1222 (M.D.Tenn.
19

2013)

(“[A]

collective

district

actions,

court

[]

and

has
many

wide

discretion

fairness

and

to
due

manage
process

concerns can be addressed through trial management, such as the
bifurcation of liability and damages, and/or dividing the action
into

various

marks

subclasses.”)

omitted);

see

also

(internal
Gionfriddo,

citations
769

and

quotation

F.Supp.2d

at

886

(“[D]istrict courts have broad discretion to determine whether a
collective action is an appropriate means for prosecuting an
FLSA cause of action.”).

Moreover, they are not “controlling”

because “litigation will ‘necessarily continue regardless of how
[these procedural] questions [are] decided.’”

LaFleur v. Dollar

Tree Stores, Inc., No. 2:12-CI-00363, 2014 WL 2121721, at *2
(E.D.Va. May 20, 2014) (quoting North Carolina v. ex rel. Howes
v. W.R. Peele, Sr. Trust, 889 F.Supp. 849, 853 (E.D.N.C. 1995)).
In addition, as recognized by the Supreme Court of the United
States

in

Hoffmann-La

Roche

Inc.

v.

Sperling,

493

U.S.

165

(1989), trial courts have considerable authority and relatively
broad discretion in managing FLSA collective actions:
Section 216(b)’s affirmative permission for
employees to proceed on behalf of those
similarly situated must grant the court 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.
. . . .
20

[U]nder the terms of Rule 83, courts, in any
case “not provided for by rule,” may
“regulate their practice in any manner not
inconsistent with” federal or local rules.
Rule 83 endorses measures to regulate the
actions of the parties to a multiparty suit.
This authority is well settled, as courts
traditionally have exercised considerable
authority “to manage their own affairs so as
to achieve the orderly and expeditious
disposition of cases.”
Id. at 170-73 (internal citations omitted).
Here, Defendants do not identify a rule addressing the use
of

individualized

rather,

they

proof

point

and

to

bifurcation

the

Seventh

in

FLSA

Circuit’s

collectives;
decision

in

Espenscheid, 705 F.3d 770 (7th Cir. 2013), which affirmed the
trial court’s decision to decertify a collective, Espenscheid v.
DirectSat USA, LLC, No. 09-CV-625-BBC, 2011 WL 2009967 (W.D.Wis.
May

23,

2011),

as

supporting

the

legal

proposition

that

collectives must identify representative evidence to establish
class-wide liability and damages.
prior

opinion,

Espenscheid
Circuit’s

to

As explained in the court’s

however,

the

trial

decertify

that

collective

affirmation

of

that

court’s

decision

and

were

decision
the
based

in

Seventh
on

the

specific facts of that case, which are readily distinguishable
from the present case.
context-specific

and

In other words, their decisions were
were

not

meant

to

proscribe

widely-

applicable rules on the requisite procedures for trying FLSA

21

collectives.4

Accordingly, the procedural decisions challenged

by Defendants are not “questions of law” as contemplated by 28
U.S.C. § 1292(b).
To

the

extent

Defendants

are

challenging

the

underlying

determination that Plaintiffs’ are “similarly situated” and may
proceed as a collective, this is also not a pure “question of
law”

under

section

1292(b)

but

is

more

appropriately

characterized as the application of a legal standard to a set of
facts.

See Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233,

1262 (11th Cir. 2008) (“[U]ltimately, whether a collective action
is

appropriate

depends

largely

on

the

factual

question

of

whether the plaintiff employees are similarly situated to one
another.”) (emphasis added); see LaFleur, 2014 WL 2121721, at
*1-2 (denying movant’s request for an interlocutory appeal of
the

trial

court’s

certification

decision

because

movant’s

“proposed questions are not pure questions of law; rather, they
would

require

extensively”).

the

Fourth

Circuit

to

study

the

record

Moreover, the court’s determination regarding

4

  Specifically, the trial court’s decision to decertify the
collective was based on the fact that the plaintiffs had not
presented a realistic possibility of approximating damages for a
class of 2,341 plaintiffs because they could not show that their
“representative proof” could accurately approximate damages for
each plaintiff and it was too burdensome to hold 2,341 minitrials on damages. Here, the undersigned had determined that 26
mini-trials on Plaintiffs’ individual damages would not be too
burdensome and would be more efficient than holding 26 separate
trials.  

22

the propriety of letting this case proceeds as a collective is
particularly not a candidate for interlocutory review as it is a
discretionary

determination

that

was

made

after

the

court

applied the three factor test for determining whether Plaintiffs
are similarly situated to the evidence presented by the parties.
Although Defendants object to the undersigned’s determination
that Plaintiffs are similarly situated and permitted to proceed
as a collective, this is does not render it a “question of law”
as contemplated by section 1292(b).

Indeed, a review of the

underlying certification decision by the Fourth Circuit could
not be decided quickly and cleanly; instead, it would require
the court to dig through the factual record in this case to
determine whether this court abused its discretion by finding
that the collective is similarly situated.

See Morgan v. Family

Dollar Stores, Inc., 551 F.3d 1233 (11th Cir. 2008) (“[W]e review
a

district

court’s

§

216(b)

certification

for

abuse

of

discretion.”).
Even if the issues raised by Defendants could be considered
“controlling questions of law,” Defendants have not shown that a
“substantial

basis

for

difference

of

opinion”

exists

on

a

controlling legal issue within the meaning of Section 1292(b).
An issue presents a substantial ground for difference of opinion
if courts, as opposed to parties, disagree on a controlling
legal issue.

McDaniel v. Mehfoud, 708 F.Supp. 754, 756 (E.D.Va.
23

1989),

appeal

dismissed,

927

F.2d

596

(4th

Cir.

1991)

(unpublished opinion); see also Couch v. Telescope, Inc., 611
F.3d 629, 633 (9th Cir. 2010) (“To determine if a ‘substantial
ground for difference of opinion’ exists under § 1292(b), courts
must examine to what extent the controlling law is unclear.”).
Simply because “settled law might be applied differently does
not establish a substantial ground for difference of opinion.”
Id.
Espenscheid

does not evidence a substantial disagreement

over a controlling question of law; rather, it involves variant
outcome based on the application of settled law to a different
factual scenario.

See Stevens v. HMSHost Corp., No. 10-CV-3571

ILG VVP, 2015 WL 926007, at *4 (E.D.N.Y. Mar. 4, 2015) (“Given
the overwhelming agreement between district and circuit courts
as to the propriety of the factors this Court considered in
reaching

[its]

conclusion

[that

the

conditionally

certified

collective was not similarly situated], it cannot be said that
there are grounds for substantial differences in opinion on a
controlling question of law.”).

In addition, Espenscheid does

not support that there is a substantial ground for difference in
opinion on whether plaintiffs in collective actions:

(1) must

use representative rather than individualized testimony; or (2)
may

bifurcate

the

liability

and

damages

Indeed, most collective actions settle, but:
24

phases

of

trial.

[i]n the few reported cases that have
proceeded to trial, courts have bifurcated
the proceedings, allowing the collective
action to proceed first on a representative
or group basis for the liability stage of
the litigation.
Certification then is
reviewed at the remedial stage, in order to
determine whether the litigation should
continue
as
a
group
action,
whether
subclasses should be established, or whether
the
action
should
be
dismantled
into
individual trials.
7B Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal
Practice and Procedure § 1807 (3d ed. 2005) (citing Rodolico v.
Unisys Corp., 199 F.R.D. 468 (E.D.N.Y. 2001)).
undersigned’s

decision

to

certify

this

Accordingly, the

collective

and

the

procedures that have were provisionally approved for trying this
case are within the court’s discretion and accord with those
used by other trial courts.
Because the three criteria for an immediate appeal under
Section

1292(b)

certification

must

and

all

be

satisfied

Defendants

have

in

not

order

met

the

to

warrant

first

two

criteria, there is no need to go further and discuss whether
resolution

of

litigation.”

their

questions

Defendants’

will

motion

“materially

for

advance

certification

this

will

be

denied.5

5

 On November 3, 2014, Plaintiffs filed a motion to set trial
date,
arguing
that
because
Defendants’
motions
for
decertification and summary judgment had been denied in full or
in part, the case was ready to proceed to trial. (ECF No. 310).
As Defendants’ motion for interlocutory appeal will be denied,

25

IV.

Motions to Seal
In

adjudicating

the

parties’

substantive

motions

for

decertification and summary judgment, the court also decided the
motions
motions.

to

seal

that

were

filed

in

conjunction

with

these

Defendants’ motions to seal were granted in part and

denied in part, and Plaintiffs’ motions to seal were denied.
For all sealing requests that were denied, the parties were
directed

to

file

renewed

motions

to

seal

with

adequate

justifications as to why certain exhibits were required to be
sealed in their entirety or to provide redacted versions of
these exhibits.

(ECF Nos. 278, 279, 301, and 302).

For the

sake of brevity, the standard for reviewing motions to seal will
not be repeated below, as it was provided in the September 18,
2014 memorandum opinion.
A.

Exhibits Related to the Parties’ Decertification
Motions

On September 26, 2014, Defendants filed a renewed motion to
seal certain exhibits to its decertification motion.
280).

In

this

renewed

motion,

Defendants

(ECF No.

withdraw

their

confidentiality designations for their payroll compliance and
explanation form (Exhibit 11; ECF No. 207), and their paycheck
verification procedure forms (Exhibit 50; ECF No. 212).

These

this case is ready to proceed to trial. Thus, Plaintiffs motion
to set a trial date will be granted, and the court will hold a
telephone conference with the parties on a date set forth in the
accompanying order to set a trial date.
26

documents will be unsealed.

Defendants also submitted redacted

versions of employee pay stubs (Exhibits 47-49, 71, and 85; ECF
Nos. 281-83, 288, and 297), and timesheets (Exhibits 56-57, 63,
70,

and

77-84;

ECF

Nos.

reasonable

redactions

Defendants’

renewed

to

motion

284-87

and

289-96),

employees’

personal

to

seal

fully

that

include

information.

complies

with

the

court’s foregoing memorandum opinion order (ECF No. 278 and 279)
as well as Local Rule 105.11, and therefore, will be granted.
Defendants indicate that following the court’s September
18, 2014 order, which directed Plaintiffs to refile a renewed
motion to seal the exhibits to its opposition to Defendants’
decertification motion, Plaintiffs informed Defendants that they
did not intend to maintain the confidentiality designations of
any of their exhibits that were originally filed under seal.
(ECF No. 299-1).

Because Plaintiffs refused to maintain the

confidentiality of these materials, which were originally deemed
confidential

pursuant

to

the

court-approved

Confidentiality

Stipulation during discovery (ECF Nos. 37 and 38), Defendants
assert that they have been forced to do so themselves by filing
the instant motion to seal.

(ECF No. 299).

their confidentiality designations for:

Defendants withdraw

a paycheck verification

form signed by opt-in Plaintiff Lionel Murray (Exhibit D; ECF
No. 252); a corrective action form prepared for opt-in Plaintiff
Lionel Murray (Exhibit U; ECF No. 252-3); a timesheet for opt-in
27

Plaintiff Christopher Adams (Exhibit EE; ECF No. 252-8); and a
pay stub for opt-in Plaintiff Christopher Adams (ECF No. FF; ECF
No. 252-9).

Defendants assert that Plaintiffs appear to be

waiving confidentiality with respect to the information in these
documents.

Although these exhibits do contain some personal

information

of

Plaintiffs,

they

will

be

unsealed

because

Plaintiffs have waived any assertion of confidentiality and none
of

the

information

contained

therein,

such

as

employee

identification numbers, requires redaction under Federal Rule of
Civil Procedure 5.2.6

Defendants seek to maintain under seal

Plaintiffs’ Exhibits O, P, W, Y, and Z (ECF Nos. 252-1, 252-2,
252-5,

252-6,

and

252-7),

all

of

which

are

excerpts

employee handbooks or policy manuals of Defendants.
argue

that

“[f]or

the

same

reasons

this

Court

from

Defendants
sealed

the

complete copies of handbooks and policy manuals, so too should
this Court keep excerpts of those handbooks and policy manuals
under

seal

information.”

—

i.e.,

they

contain

(ECF No. 299, at 3).

proprietary

business

In discussing Defendants’

original motion to seal, the undersigned noted that Defendants
were permitted to keep full copies of their employee handbook

6

  Rule
5.2
requires
parties
and
non-parties
making
“electronic or paper filing[s] with the court” to make certain
redactions if the filing contains “an individual’s socialsecurity number, taxpayer-identification number, or birth date,
the name of an individual known to be a minor, or a financialaccount number[.]”

28

and

policy

manuals

under

seal

with

“the

relevant

Plaintiffs

had

submitted

documents”

with

their

opposition.

the

understanding
portions

(ECF

No.

that

of

278,

those

at

33).

Similarly, in denying Plaintiffs’ original motion to seal, it
was noted that “it is not apparent why portions of Defendants’
employee

handbook

outlining

the

timekeeping,

cellphone,

and

other policies relevant and relied upon by both parties in their
unsealed briefs should be sealed.

Defendants renewed motion to

seal the same documents provides no factual support as required
by Local Rule 105.11 to justify sealing these excerpts in their
entirety, nor do Defendants indicate why these policy excerpts
are incapable of redaction.7
will

be

unsealed.

Plaintiff’s
Form.”

Exhibit

In
V,

Accordingly, the policy excerpts

addition,
a

completed

(ECF No. 252-4).

Defendants
“Truck

seek

Kit/Tool

to

seal

Issuance

Defendants contend that this form

contains “confidential and proprietary information related to
DirectSat’s

business,

including,

inter

alia,

the

price

of

certain equipment provided to and used by its technicians to
perform

installation

jobs.”

(ECF

No.

299

¶

5).

Again,

Defendants provide no factual support for why the price of the
tools

they

provide

to

their

technicians

is

proprietary

7

    Local

Rule 105.11 requires parties seeking to seal
documents to provide “specific factual representations to
justify sealing” in order to avoid this exact quandary, where
the court is left to speculate as to why sealing is necessary. 
29

information

that

requires

this

form

to

be

sealed

in

its

entirety.
B.

Exhibits Related to the Parties’ Summary Judgment
Motions

On October 22, 2014, Defendants filed a renewed motion to
seal certain exhibits to its motion for summary judgment.
No. 303).

(ECF

Defendants filed redacted versions of Butler’s:

pay

stub (Exhibit 6; ECF 306); timesheets (Exhibit 5; ECF No. 305);
and personnel documents (Exhibits 4 and 18; ECF Nos. 304 and
307), which only redacted confidential personal information such
as social security numbers.
to

seal

fully

complies

Because Defendants’ renewed motion

with

the

court

foregoing

memorandum

opinion and order (ECF No. 301 and 302) as well as Local Rule
105.11, it will be granted.
Following
after

being

Plaintiffs

the

issuance

directed

took

a

their exhibits.

to

of

the

summary

judgment

file

a

renewed

motion

familiar

stance

on

the

opinion,
to

seal,

confidentiality

of

They informed Defendants on October 29, 2014,

that they were not going to maintain the confidentiality of the
exhibits

that

were

opposing

summary

filed

judgment

in

conjunction

(ECF

No.

with

309-1),

their

and

thereafter,

Defendants filed a motion to seal these exhibits.
309).

There

Plaintiffs

used

is
to

substantial
support

overlap

their

30

between

opposition

(ECF No.

the
to

motion

exhibits

Defendants’

motion for decertification and to support their opposition to
summary judgment; accordingly, most of the exhibits at issue in
this motion to seal were discussed above.

Defendants provide

the exact same justifications in this motion as they did in the
prior motion for why they are withdrawing their confidentiality
designations or why they seek to retain an exhibit under seal.
Accordingly,
Defendants
Plaintiff
Butler’s

the

exhibits

withdraw
Butler’s

form

their

statements

(Exhibit
signed

receive

the

confidentiality

earning

timesheets

verification

will

by

I;

ECF

opt-in

treatment.

designations

(Exhibit
No.

same

H);8

269-1);

Plaintiff

for:

Plaintiff

a

paycheck

Lionel

Murray

(Exhibit J; ECF No. 269-2); a corrective action form prepared
for opt-in Plaintiff Lionel Murray (Exhibit M; ECF No. 269-4).
For the same reasons discussed above, these exhibits will be
unsealed.

Again, Defendants seek to retain under seal excerpts

from their employee handbooks and policy manuals and their Truck
Kit/Tool Issuance Form.

(Exhibits L, N, O, P, and Q; ECF Nos.

269-3, 269-5, 269-6, 269-7, and 269-8).
provided

the

same

cursory

explanation

Because Defendants have
that

these

exhibits

contain “proprietary business information” without any factual
support or proposed redactions, these exhibits will be unsealed.

8

    Although Plaintiffs indicated in ECF No. 268-8 that they
would be filing Exhibit H under seal, this exhibit was never
filed.  

31

V.

Conclusion
For the foregoing reasons, Plaintiffs’ motions to lift the

bankruptcy stay and reopen this case and for reconsideration of
their MWPCL claim will be granted.

The parties are directed to

file a jointly proposed revised scheduling order regarding how
they plan to proceed on the MWPCL claim.

Defendants’ motion for

certification of an interlocutory appeal will be denied.

The

renewed motions to seal filed by Defendants will be granted in
part and denied in part.

A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

32