Arnold et al v. DirecTV, Inc. et al
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiffs Motion for Rule 23 Certification of Missouri State Law Claim [ 241 ] is DENIED. IT IS FURTHER ORDERED that Defendants Motions for Decertification as to the DirecTV Home Services Subclass [ 319 ], DirectSat Subclass [ 326 ], Mastec Subclass [ 333 ] and Multiband Subclass [ 352 ] are GRANTED. The claims of all opt-in Plaintiffs are DISMISSED without prejudice, leaving before the Court the named Plaintiffs who originated this action. Plaintiffs counsel shall notify the opt-in Plaintiffs that the collective action has been decertified and their FLSA claims are no longer pending before this Court and file a notice with the Court confirming that they have done so. IT IS FURTHER ORDERED that the applicable statute of limitations for the FLSA claims of the Plaintiffs who have opted into the collective action is tolled for period of 120 days from the date of this Memorandum and Order. IT IS FURTHER ORDERED that within 30 days of the date of this Memorandum and Order, the remaining parties shall file a joint proposed schedule for the remainder of the litigation, including a proposed trial date. Signed by District Judge John A. Ross on 3/31/17. (JAB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
JAMIE ARNOLD, et al.,
DIRECTV, LLC, et al.,
Case No. 4:10-CV-352-JAR
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s Motion for Rule 23 Certification of
Missouri State Law Claim (Doc. No. 241) and Defendants’ Motions for Decertification as to the
DirecTV Home Services Subclass (Doc. No. 319), DirectSat Subclass (Doc. No. 326), Mastec
Subclass (Doc. No. 333), and Multiband Subclass (Doc. No. 352). The motions have been
extensively briefed and are ready for disposition.1
As set out in the Court’s previous orders, Plaintiffs are former satellite installation and
service technicians classified as W-2 employees of one of DirecTV’s Home Services Providers
(“HSPs”) - MasTec, Multiband, DirectSat, DirecTV Home Services, and DTV Home Services
II, LLC (and its predecessor entities). Plaintiffs bring this action against DirecTV as their joint
employer asserting claims under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et
seq., and the Missouri Minimum Wage Law (“MMWL”), Mo. Rev. Stat. §§ 290.500 et seq.
Plaintiffs allege that the piece rate pay system used throughout DirecTV’s provider network
The Court held oral argument on December 17, 2015. Since that time the parties have worked together
on a number of different issues in the case. The motions are now finally submitted for the Court’s ruling.
fails to compensate them for work deemed nonproductive. On September 28, 2012, the Court
conditionally certified Plaintiffs’ FLSA claim to proceed as a collective action with four FLSA
subclasses (Doc. Nos. 121, 134, 200).2 In so doing, the Court found Plaintiffs’ allegations
sufficient to clear the relatively low hurdle of showing that potential class members were not
paid for all hours worked as a result of DirecTV’s piece rate pay policy (Doc. No. 121 at 7).
Following discovery, and on the basis of a complete evidentiary record, DirecTV now moves to
decertify the FLSA subclasses and Plaintiffs move to certify the state law claim for class action
status under Rule 23.3
Each FLSA subclass is defined as:
Persons who (1) filed a consent to join this lawsuit; (2) are currently working or previously
worked as an Installation or Service Technician for [MasTec, Multiband, DirectSat, or DirecTV
Home Services] as a W-2 employee for any period of time within 3.5 years of the date of
consenting to join the suit; (3) exclusively installed and/or serviced DirecTV equipment; (4)
were paid on a piece-rate basis, meaning they were paid specific amounts for certain tasks they
completed; and (5) worked more than 40 hours in a week.
The limitations period was tolled for 180 days while DirecTV’s motion to dismiss was under submission
(see Doc. Nos. 46, 49), making the applicable period 3.5 years from the date each opt-in consented to
join this action.
The proposed state law class is defined as:
Persons who are currently working or previously worked as an Installation or Service Technician
within the State of Missouri for DTV Home Services II, LLC or its predecessors Up
Communications Services, LLC and AeroSat USA, LLC as a W‐2 employee for any period of
time from March 2, 2008 to the present; (3) exclusively installed and/or serviced DIRECTV
equipment; (4) were paid on a piece‐rate basis, meaning they were paid specific amounts for
certain tasks they completed; (5) worked more than 40 hours in a week; and (6) are not subject
to a valid and enforceable agreement requiring these claims to be arbitrated.
DirecTV’s motions for decertification
A collective action under the FLSA to recover overtime compensation 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). The FLSA does not define the term
“similarly situated.” Kautsch v. Premier Comm’ns, 504 F. Supp. 2d 685, 689 (W.D. Mo.
2007). Nevertheless, district courts in this circuit consistently apply a two-step process to
make the determination. Kennedy v. Boulevard Bank, No. 4:12CV40 JCH, 2012 WL
3637766, at *2 (E.D. Mo. Aug. 22, 2012) (collecting cases). At the initial conditional
certification stage, the Plaintiffs’ burden is not rigorous; they must only show a “colorable
basis for their claim” and “that a class of similarly situated plaintiffs exists.” White v. 14051
Manchester Inc., 301 F.R.D. 368, 372 (E.D. Mo. 2014) (citation omitted). At the
decertification stage, however, the standard is stricter, and three factors are analyzed based
on information gained from discovery: (1) the disparate factual and employment settings of
the individual plaintiffs; (2) the various defenses available to defendant that appear to be
individual to each plaintiff, and (3) fairness and procedural considerations. White, 301
F.R.D. at 372. Although this test appears to be less stringent than the standard to certify a
class under Rule 23, given the analytical overlap, “it is not mere coincidence that courts
facing parallel motions to decertify an FLSA collective action under Section 216(b) and to
certify a class action under Rule 23 have tended to allow either both actions or neither to
proceed on a collective basis.” Davenport v. Charter Comm’ns, LLC, No. 4:12CV00007 AGF,
2017 WL 878029, at *8 (E.D. Mo. Mar. 6, 2017) (quoting Ruiz v. Citibank, N.A., 93 F. Supp.
3d 279, 298-99 (S.D.N.Y. 2015)).
“Similarly situated” under a decertification analysis does not necessarily mean identical;
“the question is simply whether the differences among the plaintiffs outweigh the similarities of
the practices to which they were allegedly subjected.” Id. “If the [class members] are similarly
situated, the district court allows the representative action to proceed to trial. If not, the district
court decertifies the class, dismisses without prejudice the opt-in plaintiffs, and allows the
class representative to proceed to trial on her individual claims. The decision to certify or
decertify a collective action under section 216(b) is within the district court’s discretion.”
White v. Baptist Mem’l Health Care Corp., No. 08-2478, 2011 WL 1883959, at *4 (W.D.
Tenn. May 17, 2011), aff’d, 699 F.3d 869 (6th Cir. 2012) (citations and internal quotation
DirecTV moves for decertification first because Plaintiffs cannot show a violation of the
FLSA; rather, DirecTV claims Plaintiffs were paid for each hour worked and that their overtime
pay was calculated in compliance with the FLSA and its regulations. Next, DirecTV asserts that
Plaintiffs have failed to show they are similarly situated because the evidence relevant to their
claims varies widely among the subclasses, and among the members within each subclass.
DirecTV also states that credibility issues with the deposed opt-in Plaintiffs make trial by
representative testimony improper. Finally, DirecTV contends there are individual defenses it
may assert against each Plaintiff, and that fairness and procedural considerations weigh against
maintaining a collective action in this case.
Factual and employment settings of the individual plaintiffs
“Plaintiffs seeking to maintain an opt-in class action bear the burden to show that they are
similarly situated with respect to their job requirements and pay provisions.” Kautsch v. Premier
Comm’ns, No. 06-CV-04035–NKL, 2008 WL 294271, at *1 (W.D. Mo. Jan. 31, 2008). Here,
Plaintiffs assert that the factual and employment settings within the subclasses are common with
respect to the core questions that define this case - (1) whether DirecTV is an “employer” of the
technicians under the FLSA, and (2) whether the technicians were paid for nonproductive work
as required by the FLSA - and that both of these questions are susceptible of being answered
with common proof (Doc. No. 383 at 20).
Joint employer issue
A threshold question to DirecTV’s liability, and the subject of cross-motions for
summary judgment (Doc. Nos. 340, 344, 348, 361) which the Court has already ruled upon, is
whether it “employs” the technicians as that term is defined by the FLSA. 4 The joint employer
analysis is “inherently fact intensive” because it requires an assessment of the record in light of
multiple factors, including: (i) the power to hire and fire employees; (ii) supervision and control
of employee work schedules or conditions of employment; (iii) determination of the rate and
method of payment; and (iv) maintenance of employment records. See Thornton v. Charter
Commc’ns, LLC, No. 4:12CV479 SNLJ, 2014 WL 4794320, at *9 (E.D. Mo. Sept. 25, 2014).
No one factor is dispositive; courts examine the “economic realities” of the working
relationship, with the level of control the alleged employer has over significant aspects of the
plaintiffs’ employment central to the determination of employer status. See Saunders v. Ace
The question of employment is not disputed as to the DirecTV Home Services subclass because
DirecTV treats those technicians as W-2 employees.
Mortgage Funding, Inc., No. CIV. 05-1437DWFSRN, 2007 WL 4165294, at *4 (D. Minn. Nov.
Plaintiffs argue that the parties’ employment relationship can be proven on common
evidence of company-wide policies and practices, summarized as follows:
All technicians were required to perform their work in compliance with DirecTV’s
internal policies and procedures.
All technicians were required to complete an installer certification program as well
as other training by DirecTV before they could be hired.
All technicians were required to undergo DirecTV training throughout their
employment on both the technical aspects of their job but also on customer service and
even their personal appearance.
All technicians were required by DirecTV to wear uniforms and ID badges displaying
the DirecTV logo.
All technicians were monitored by DirecTV throughout the day via its Siebel computer
DirecTV effectively controlled the work schedules of all technicians by assigning
jobs through its own computer systems.
(Doc. No. 383 at 21) According to Plaintiffs, this evidence demonstrates that, as a matter of
economic reality, DirecTV employed the technicians.
The briefing on the parties’ cross-motions for summary judgment highlights the
substantial factual disputes and contested inferences on the joint employer issue and
demonstrates that an individualized inquiry into the employment circumstances of each Plaintiff
is necessary to determine whether he or she was jointly employed by DirecTV and the
respective HSPs. DirecTV does not deny that it sets requirements for technician training,
certification, drug screening and criminal background checks, but argues this is done in the
context of quality control, and not indicative of joint employment status. And while DirecTV
exercises some supervision and control over technicians’ work schedules and conditions of
employment through its Siebel system, the extent of that control is disputed. The evidence of
record is further controverted as to DirecTV’s influence on the technicians’ rate of pay and
access to HSP employment records. In its Memorandum and Order, incorporated by reference
herein, the Court concluded that the material facts necessary to an analysis of the factors
indicative of joint employment are genuinely disputed and thus preclude summary judgment in
favor of either side. Because the joint employer analysis is “inherently fact intensive,” the
varying employment circumstances of the collective class members create individual defenses
which make this issue unsuitable for collective treatment.
Piece rate pay system
“Plaintiffs may be similarly situated when they suffer from a single, FLSA-violating
policy, and when proof of that policy or of conduct in conformity with that policy proves a
violation as to all the plaintiffs.” Bouaphakeo v. Tyson Foods, Inc., 765 F.3d 791, 796 (8th Cir.
2014), aff’d, 136 S. Ct. 1036 (2016). Plaintiffs assert that across all subclasses, technicians were
paid piece rate for installing and servicing DirecTV equipment. Rate cards showed the different
tasks deemed productive and the amounts paid for “closing” work orders with those tasks.
Plaintiffs claim that time spent on tasks not associated with a work order, such as traveling
between jobs, attending weekly meetings, receiving and reviewing work schedules, calling
customers, and organizing and maintaining work vehicles, was “non-productive” time that was
not compensated in violation of the FLSA’s requirement that a worker be paid for all hours
worked. See 29 C.F.R. §§ 778.311, .318(a). Plaintiffs argue that because the piece rate pay
system used throughout DirecTV’s provider network was applied equally to all members of the
subclasses, their challenge to the pay system satisfies the similarly situated requirement of
Section 216(b) (Doc. No. 383 at 23).
In support of decertification, DirecTV first argues the subclasses must be decertified
because Plaintiffs cannot show a policy that violates the FLSA. Plaintiffs’ payroll records and
deposition testimony demonstrate that DirecTV paid additional compensation for nonproductive
time and also guaranteed minimum pay adjustments if the regular rate of pay, calculated by
dividing weekly earnings by total reported hours, was insufficient to satisfy the minimum wage
requirement. This argument was raised in DirecTV’s motions for summary judgment on
liability (Doc. Nos. 315, 322, 329, 336, 355), which the Court has already ruled upon. In its
Memorandum and Order, incorporated by reference herein, the Court concluded that based on
the conflicting evidence presented, DirecTV could not establish, as a matter of law, that
Plaintiffs’ regular rate of pay, and thus overtime premiums, were properly calculated in
compliance with the FLSA.
Next, DirecTV argues that Plaintiffs’ claim cannot be tried with representative proof
because the pay practices regarding the allegedly uncompensated, nonproductive tasks were far
from uniform across the subclasses, and in fact varied from technician to technician and from
site to site. DirecTV offers evidence, in the form of opt-in Plaintiffs’ deposition testimony and
discovery questionnaires, that technicians were paid differently for tasks such as drive time,
attending meetings and maintaining their vehicles. For instance, DirecTV Home Services
Plaintiff Jonathan Spencer testified he was paid hourly for large amounts of drive time; on a
single paycheck dated November 25, 2011, Spencer received 43.5 hours of hourly pay form
drive time (Deposition of Jonathan Spencer (“Spencer Depo.”), Doc. No. 320-7 at 125:1-14;
166:24-167:2, 239:4-6; 242:21-243:12). Plaintiff Vincent Torrie stated that when his time
between jobs exceeded 45 minutes, his supervisor awarded him a flat amount of “Other
Essential Pay” (Deposition of Vincent Torrie (“Torrie Depo.”), Doc. No. 320-14 at 99:218
101:15). Still another Plaintiff testified he never drove between jobs because he only performed
one installation a day (Deposition of Christopher Ragland (“Ragland Depo.”), Doc. No. 328-23
All Plaintiffs deposed admitted they were paid hourly for some meeting time, although
the practices varied by site as to how much meeting time they were paid for. For instance,
DirectSat Plaintiff Robert Guice testified that at his site, technicians were allowed to claim one
to two hours as meeting time, in addition to the time spent cleaning out their vehicles and
loading supplies for the week (Deposition of Robert J. Guice, Jr. (“Guice Depo.”), Doc. No.
328-1 at 118:14-23). Plaintiff Michael Logeman testified that most meeting time was recorded
and paid hourly; however, if a meeting ran long, the time recorded would occasionally be
converted from hourly meeting to production time (Deposition of Michael Logeman (“Logeman
Depo.”), Doc. No. 328-6 at 107:6-109:14; 209:5-210:13). As for time spent on vehicle
maintenance, DirectSat Plaintiff Michael Erickson testified he was paid hourly for
approximately 60 minutes per month for vehicle maintenance (Deposition of Michael Erickson
(“Erickson Depo.”), Doc. No. 328-17 at 151:4-19; 235:9-15), whereas other Plaintiffs did not
recall being paid specifically for vehicle maintenance - on an hourly basis or otherwise (see,
e.g., Deposition of Alan Jacobson (“Jacobson Depo.”), Doc. No. 328-5 at 134:14-17);
Deposition of Gene John (“John Depo.”), Doc. No. 328-20 at 85:10-17, 112:24-113:7).
Some Plaintiffs testified to instances where a supervisor could award them additional
pay. DirecTV Home Services opt-ins were eligible for “Other Essential Pay” (“OEP”) for tasks
not listed on a work order at the discretion of their supervisor or other management personnel at
their location. OEP is listed on compensation statements as a separate line item, but the
statements do not indicate for what OEP was paid. Thus, DirecTV argues, a statement by
statement, technician by technician, site by site inquiry would be necessary to determine
whether a technician was already paid via OEP for so-called non-productive tasks for which
they are seeking compensation in this action.
Plaintiffs’ testimony was equally varied regarding the reporting of alleged
nonproductive time, with some technicians recording their nonproductive time on their
timesheets while others did not, or did so inconsistently. (Doc. No. 320 at 11-15; Doc. No. 327
at 14-16; Doc. No. 334 at 13-14; Doc. No. 353 at 11-13) One Plaintiff admitted that whether he
recorded all of his hours worked depended on which site he was working out of (Deposition of
Lonnie Spicer (“Spicer Depo.”), Doc. No. 354-2 at 105:7-106:14). Named Plaintiff Parr
testified that his supervisors would stop assigning him work when he came close to 40 hours for
the week. As a result, he would intentionally not punch in on his handheld device “in order to
get more work” (Deposition of Steven Parr (“Parr Depo.”), Doc. No. 354-1 at 60:22-61:17;
Some Plaintiffs were able to record time in the “Other” category on their timesheets. At
some sites, technicians could only use the “Other” category for vehicle maintenance (see, e.g.,
Deposition of Patrick Gorman (“Gorman Depo.”), Doc. No. 332-8 at 121:14-18; Deposition of
Anthony Davis (“Davis Depo.”), Doc. No. 332-5 at 146:19-147:4), while at other sites,
technicians used the “Other” category for time spent getting supplies from the warehouse,
calling customers, assembling satellite dishes at home before his route, and assisting other techs
(Deposition of Aaron Hunt (“Hunt Depo.”), Doc. No. 332-9 at 126:13-21; 128:3-25; 183:22185:6). Named Plaintiff Guice testified he was not allowed to use the “Other” category unless it
was approved by the GM, who would instruct the technicians on whether to use the “meeting”
category or the “other” category to record time for certain tasks (Guice Depo. at 117:10-118:5).
Some Plaintiffs admitted they lacked knowledge about the pay practices regarding nonproductive time at the other DirecTV locations where subclass members worked.
The record further demonstrates that Plaintiffs had varying levels of understanding of
the piece rate pay system. Some technicians were trained on the pay system; others were not.
Some technicians signed timesheet certifications stating they understood that the piece rate pay
included compensation for all hours worked. Some technicians acknowledged they never looked
at their paystubs or asked anyone about their pay; others reviewed their weekly performance
and compensation statements to verify their pay was correct. A number of MasTech Plaintiffs
signed a Working Time Policy as well as other documents acknowledging MasTec’s pay and
timekeeping policies. Over half of the Multiband Plaintiffs were subject to collective bargaining
agreements that required a technician to notify his supervisor once he hit 35 hours for the week,
at which point the supervisor could choose not to assign him more work orders. DirecTV argues
this evidence demonstrates that whether technicians understood what was included in their piece
rate pay is an individualized inquiry that cannot be tried with representative proof.
In sum, DirecTV asserts that Plaintiffs’ claims cannot form the basis of a collective
action because the pay practices articulated by the Plaintiffs are too varied across the subclasses.
Each Plaintiff’s proof of violation will be individualized because it depends on how or if they
reported their alleged nonproductive time, and how or if they were paid for the alleged
nonproductive tasks. These variations in Plaintiffs’ testimony demonstrate that one Plaintiff’s
testimony at trial would not be representative of the class.
In support of their argument for decertification, DirecTV cites Espenscheid v. DirectSat
USA, LLC, 705 F.3d 770 (7th Cir. 2013), a hybrid Rule 23 and FLSA collective action case.
Plaintiffs were cable installers who alleged that their employer compelled them to do work for
which they were not compensated and to work more than 40 hours a week without being paid
overtime. The district court initially denied the defendant’s motion for FLSA decertification,
concluding that - despite differences among the employees’ deposition testimony - their
“primary challenge was to defendants’ uniform policies and practices” and that the differences
could be managed by subclassing. As the case approached trial, however, the court became
concerned with the plaintiffs’ trial plan, which proposed presenting testimony at trial from 42
“representative” class members to determine liability for the entire class (2,341 technicians)
without regard to the subclasses identified by the court. Therefore, on its own motion, the court
decertified the subclasses on the eve of trial. Thereafter, the plaintiffs settled and the suit was
dismissed. The settlement reserved the plaintiffs’ right to appeal the decertification, and they
appealed. Id. at 772.
On appeal, the Seventh Circuit analyzed whether it was feasible to try the claims
collectively from a practical perspective, and generally concluded that the proposed
“representative” evidence in the plaintiffs’ trial plan would not provide a reasonable basis for
determining whether each employee had been underpaid and by how much. The Espenscheid
court distinguished the varied work circumstances of the technicians from a situation where
every class member worked the exact same number of hours but was not paid overtime, in
which case “damages could be computed effortlessly, mechanically, from the number of days he
worked each week and his hourly wage. And when ‘it appear[s] that the calculation of monetary
relief will be mechanical, formulaic, a task not for a trier of fact but for a computer program, so
that there is no need for notice …, the district court can award that relief without terminating the
class action and leaving the class members to their own devices.’” Id. at 773 (internal quotation
omitted). The Seventh Circuit disagreed that the varying circumstances of the proposed class
members could be smoothed over by extrapolations from the testimony of 42 “representative”
members of the class, stating that
[E]ven if the 42, though not a random sample, turned out by pure happenstance to be
representative in the sense that the number of hours they worked per week on average
when they should have been paid (or paid more) but were not was equal to the average
number of hours of the entire class, this would not enable the damages of any members
of the class other than the 42 to be calculated. To extrapolate from the experience of the
42 to that of the 2341 would require that all 2341 have done roughly the same amount of
work, including the same amount of overtime work, and had been paid the same wage.
Id. at 774. Thus, the Court affirmed decertification of the subclasses. See also Farmer v.
DirectSat USA, LLC, No. 08CV3962, 2013 WL 2457956, at *7 (N.D. Ill. June 6, 2013)
(decertifying an FLSA collective action in light of Espenscheid).
In their opposition to decertification, Plaintiffs contend that DirecTV’s liability can be
established with common evidence that all technicians were subject to the same pay policies
that, as amended from time to time, described the piece‐rate pay system at issue. All technicians
used the same time sheets that referenced pay codes which had uniform meanings for different
types of work. Each day, all technicians were required to plan their routes based on their
assigned schedules and inventory their work vehicle to confirm they had all of the necessary
equipment and materials to complete the assigned work orders. All technicians were required to
call their morning appointments by 8:30 a.m. and their afternoon appointments by 12:30 p.m.
Plaintiffs assert that throughout the class period, technicians were not paid for calling customers
or cleaning, organizing, and maintaining their work vehicles. (Plaintiffs do, however,
acknowledge differences between the subclasses regarding payment for meetings and driving
between jobs.) (Doc. No. 383 at 24-29)
With regard to damages, Plaintiffs offer a report by their proffered expert, statistician L.
Scott Baggett, Ph.D. (Doc. No. 385-3), which describes a methodology for calculating damages.
Plaintiffs have also submitted a trial plan (Doc. No. 457) for the Court’s consideration.5
According to their trial plan, Plaintiffs will present the jury with Dr. Baggett’s summary of how
those class members who responded to their discovery questionnaire answered basic questions
on whether they were paid for the principal tasks at issue in this lawsuit (Doc. No. 457 at 50).
The questionnaire asked each class member whether they were paid for traveling between jobs,
attending weekly meetings, receiving and reviewing schedules, calling customers, or organizing
and maintaining their work vehicles. Plaintiffs could answer that: (a) they were paid hourly for
those tasks; (b) those tasks were part of their piece rate pay; (c) they did not know whether they
were paid for those tasks; or (d) they were not paid for them at all. (Id.) Based on the
questionnaire data, Plaintiffs plan to ask the jury to arrive at a reasonable estimate of unpaid
time. (Id. at 55) Plaintiffs assert that through their expert witness Dr. Baggett, they will then
essentially recalculate their regular rate of pay for each week during the relevant period by
backing out the estimated time spent on those “non-productive” tasks they contend was not paid
under the piece rate system.6
Plaintiffs concede that individual damages will vary, but argue the technicians within
each subclass suffered sufficiently similar damages to allow a jury to use representative
evidence to establish a reasonable estimate of unpaid time. Plaintiffs rely on the Supreme
Court’s recent opinion in Tyson Foods, 136 S. Ct. 1036, which holds that representative or
The Court has also considered DirecTV’s opposition to Plaintiffs’ trial plan. (Doc. No. 460)
DirecTV seeks to preclude Dr. Baggett’s proposed testimony and report under Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993) (Doc. No. 313).
statistical samples can be used to establish or defend against liability in FLSA cases. In Tyson
Foods, the Court found the plaintiffs’ overtime pay should be calculated to include the time
spent putting on and taking off (“donning and doffing”) protective gear. Id. at 1042. Because
Tyson failed to record the time each employee spent donning and doffing the protective gear,
the plaintiffs provided their own evidence regarding donning and doffing time. Id. at 1042-43.
The plaintiffs’ evidence (which the Supreme Court refers to as “representative evidence”)
included employee testimony, video recordings of donning and doffing, and a report performed
by an industrial relations expert (estimating donning and doffing time at 18 to 21-25 minutes
per day). Id. In light of the evidentiary gap created by Tyson’s failure to keep records, the Court
permitted plaintiffs to use the representative evidence. Id. at 1047. The Court noted several
factors supporting the relevance of the representative evidence, including that Tyson had not
kept records of individual employees’ “donning and doffing” time, and that class members were
similarly situated, working at the same factory, performing the same work, and being paid under
the same policy. Id. at 1047-48.
Under these circumstances, the experiences of a subset of employees can indeed be
probative as to the experiences of all of them. In this case, however, the evidence of record
demonstrates that Plaintiffs would not be able to testify about a single, uniform policy given
each Plaintiff’s varied experiences. As in Espenscheid, because Plaintiffs were paid on a piecerate basis, the variance between the hours worked by each technician each week prevents them
from extrapolating from the experiences of a few to the experiences of all. “The use of
representative testimony is justified only where it is reasonable to believe that the testifying
witnesses’ experiences are sufficiently similar to those of the rest of the non-testifying
plaintiffs.” Roussell v. Brinker Int’l, Inc., CIV.A. H-05-3733, 2008 WL 2714079, *22 (S.D.
Tex. July 9, 2008). Where a purported unlawful policy impacts Plaintiffs in different and
individual ways, “there is not one single decision, policy, or plan but rather multiple policies
that require decertification. White, 301 F.R.D. at *374. Accordingly, the Court finds the
disparate factual and employment setting of the Plaintiffs, and particularly the variances in the
piece rate pay systems that affected the Plaintiffs, weighs in favor of decertification.
Plaintiffs note that decertification has been denied in four other DirecTV-technician
cases where the technicians’ factual and employment settings were found to be sufficiently
similar with respect to the challenged policies to warrant class treatment, citing Kautsch v.
Premier Comm’ns, No. 06-CV-04035-NKL, 2008 WL 294271 (W.D. Jan. 31, 2008), Thompson
v. Bruister & Assocs., 967 F. Supp. 2d 1204 (M.D. Tenn. 2013), Butler v. DirectSat USA, LLC,
47 F. Supp. 3d 300 (D. Md. 2014), Jacks v. DirectSat USA, LLC, No. 10-CV-1707, 2015 WL
1087897 (N.D. Ill. Mar. 10, 2015) (certifying a class for resolution of particular liability issues).
(Doc. No. 383 at 55-61)
The cases upon which Plaintiffs rely are largely distinguishable. In Kautsch, the court
noted that Premier’s evidence weighing in favor of decertification went mostly to damages, and
that the court could create damages subclasses if plaintiffs established liability at trial. 2008 WL
294271, *4. The majority of issues DirecTV has raised here, however, relate to liability.
Likewise in Butler, the court found the differences among the technicians were not significant
or, alternatively, went more towards damages than liability. 47 F. Supp. 3d at 312. And because
Butler involved only 26 plaintiffs, the court stated it could go through each Plaintiff’s damages
individually if need be. Id. at 312-13. Here, there are four nationwide subclasses of technicians,
four different W-2 employers, and approximately 800 class members. Bruister is distinguishable
in that the policies and procedures governing the technicians’ work did not vary among the
defendants’ locations, and the time-keeping, payroll, and human resources policies and
procedures were all set by defendants’ management and applied uniformly to all technicians
regardless of work location. 967 F. Supp. 2d at 1220. Jacks involved the decertification of a
Rule 23 class. Because there is no procedural mechanism under the FLSA to certify a class only
as to particular issues, Jacks is inapplicable to the decertification issues presented in this case.
“The individualized defenses factor assesses whether potential defenses pertain to the
plaintiff class or whether the potential defenses require proof of individualized facts at trial.”
Butler v. DirectSAT USA, LLC, 47 F. Supp. 3d 300, 313 (D. Md. 2014) (quoting Rawls v.
Augustine Home Health Care, Inc., 244 F.R.D. 298, 300 (D. Md. 2007)).
DirecTV asserts it has numerous defenses to the claims of individual Plaintiffs which it
is entitled to litigate, including the applicability of the 7(i) exemption, the Employee
Commuting Flexibility Act, 29 U.S.C. § 254(a), the Portal-to-Portal Act, 29 U.S.C. § 254, the
doctrine of unclean hands for false reporting of time, the doctrine of judicial estoppel as to
claims that accrued prior to filing for bankruptcy but were not disclosed, the failure of certain
Plaintiffs to fit within the class definition, and the statute of limitations. (Doc. No. 320 at 23-31;
Doc. No. 327 at 28-37; Doc. No. 334 at 24-31; Doc. No. 353 at 26-35) In addition, DirecTV
contends that a number of DirecTV Home Services Plaintiffs received a settlement in a prior
wage and hour lawsuit against DirecTV, Cicero v. DirecTV, No. 07-1182 (C.D. Cal.), which
operates as a release of part of their claims herein (Doc. No. 320 at 27-28), and that as many as
20 DirecTV Home Services Plaintiffs who worked in California and Colorado received more
overtime than is required under federal, entitling DirecTV to a set-off for those payments (id. at
28-29).7 Lastly, DirecTV asserts that the claims of 64 Multiband subclass members subject to
various collective bargaining agreements are subject to dismissal under the Labor Management
Relations Act (Doc. No. 353 at 27-28).
The Court has already ruled on DirecTV’s motions for summary judgment, finding that
the applicability of the 7(i) exemption and the Employee Commuting Flexibility Act, as well as
the statute of limitations issue (and willfulness), are not common questions that can be
determined as a matter of law based on representative testimony. Defenses raised as to
individual Plaintiffs, i.e., unclean hands, judicial estoppel, and the failure of certain Plaintiffs to
fit within the class definition, further highlight the distinctions between the Plaintiffs’ claims
and, therefore, favor decertification. See Lugo v. Farmer’s Pride Inc., 737 F. Supp. 2d 291, 30001 (E.D. Penn. 2010) (“Because individualized defenses prevent an efficient proceeding with a
representative class, several courts have granted motions for decertification on this basis.”);
Martin v. Citizens Financial Group, Inc., 2013 WL 1234081 at *8 (E.D. Pa.) (plaintiffs’
disparate factual and employment settings and individualized defenses require that the collective
action be decertified).
Fairness and procedural considerations
Finally, under the fairness and procedural considerations factor, the Court must
“determine whether it can coherently manage the class in a manner that will not prejudice any
party.” Rawls, 244 F.R.D. at 302 (D. Md. 2007) (internal quotation omitted). “The court should
consider the primary objectives of allowance of a collective action under § 216(b), namely (1)
Plaintiffs do not disagree that DirecTV are entitled to a credit for daily overtime premiums for certain
employees who worked in California and Colorado and assert that this issue should be able to be
resolved outside the presence of the jury, along with DirecTV’s claims that certain technicians do not
meet the class definition because they were not paid piece rate or did not record over 40 hours of work in
a week during the recovery period. (Doc. No. 383 at 49-50 n. 94)
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.” White, 301 F.R.D. at 377 (quoting Moss v. Crawford & Co., 201 F.R.D.
398, 410 (W.D. Pa. 2000)). Plaintiffs broadly state that fairness and procedural considerations
favor collective treatment in this case (Doc. No. 383 at 52), whereas DirecTV contends that
trying this case on a collective basis will lead to jury confusion and violate its due process rights
(Doc. No. 334 at 33-34). Further, DirecTV notes that Plaintiffs’ counsel is currently pursuing
FLSA claims against DirecTV on behalf of 474 technicians in separate individual cases across
the country. See In re DirecTV Wage & Hour Litigation, MDL Case No. 2594 (ECF No. 38 at
25). (Doc. No. 320 at 34; Doc. No. 327 at 38; Doc. No. 334 at 33; Doc. No. 353 at 37)
Plaintiffs expended a tremendous amount of effort on a detailed trial plan in an effort to
show that this case could be manageably tried on representative evidence. In their plan,
Plaintiffs submit a sample verdict director comprised of six questions the jury would have to
answer regarding the claims of each of the five sub-classes (four FLSA subclasses and one Rule
23 state law class). (Doc. No. 457 at 10) Although the jury may return different answers to the
same question for each subclass, it will be constrained to provide just one answer for all class
members in the same subclass. The evidence for the jury consists of a set of proposed
stipulations (id. at 14), four witnesses whose testimony ostensibly relates to all sub-classes, and
three witnesses for each of the subclasses, Mastec, Multiband, DirectSat, AeroSat, and DirecTV
Home Services, with only two subclass members testifying for each subclass (id. at 15-24).
Plaintiffs’ trial plan also includes examples of the documentary evidence they intend to
introduce (id. at 25-49), and identifies their expert, Dr. Baggett, who will summarize the class
members’ discovery questionnaire responses regarding their allegedly unpaid work (id. at 5054)
DirecTV opposes the plan, arguing that it fails to account for the variances in Plaintiffs’
testimony and other evidence discussed herein that demonstrates the individualized nature of the
material issues in this case. (Doc. No. 460 at 1-2) Furthermore, the trial plan does not address
how the Court and the parties should handle the individualized evidence necessary to DirecTV’s
statutory defenses to each subclass member’s claims. (Id. at 2) DirecTV also argues that by
allowing Plaintiff’s purported expert to substitute a summary of the discovery questionnaire
responses for the testimony of the class members themselves, it will be deprived of its right to
cross-examine Plaintiffs on fundamental aspects of their claims. (Id. at 4)
The Court has considered Plaintiffs’ trial plan, and finds that proceeding collectively on
the individualized claims of hundreds of technicians would most certainly result in jury
confusion as well as prejudice to DirecTV. Based on the evidence presented, Plaintiffs’ claims
are dependent upon factors such as site location, work state, supervisor, individual technicians’
practice with respect to recording productive and nonproductive time, and whether they had
written agreements regarding their pay. While some evidence will likely overlap between
Plaintiffs, “each Plaintiff’s claim is, at its core, an individualized one that will be dominated by
individualized proof,” requiring a jury to sort out all of that evidence – Plaintiff by Plaintiff - to
make specific, fact-intensive findings. Acfalle v. DirecTV, Inc., No. 2:13CV08108-SVW-E,
Doc. No. 101 at 2-3 (C.D. Cal. Aug. 14, 2015).
The Court recognizes that the FLSA is a remedial statute and that the purposes of
Section 216 weigh heavily in favor of allowing cases to proceed collectively. Roussell v.
Brinker International, Inc., No. H-05-3733, 2008 WL 2714079, at *24 (S.D. Texas July 9,
2008). Given the significant differences in Plaintiffs’ factual and employment settings, however,
the Court believes that fairness and procedural considerations ultimately favor decertification.
White, 301 F.R.D. at 378. The disparate facts concerning whether there was an agreement or
understanding as to what was covered by piece rate pay, whether and how often each Plaintiff
performed “nonproductive” tasks, whether they recorded that time, and how they were
instructed to record that time, together with DirecTV’s individualized defenses, make it
impracticable to try the claims of the named Plaintiffs and the opt-in Plaintiffs in a collective
For these reasons, the Court will decertify the FLSA collective action and the four
subclasses. The named Plaintiffs’ claims remain pending.
II. Plaintiffs’ motion for Rule 23 certification
Rule 23(a) establishes four prerequisite conditions to maintain a class action commonly
referred to as (1) numerosity, which means the class must be “so numerous that joinder of all
members is impracticable,” (2) commonality, which requires that “there are questions of law or
fact common to the class,” (3) typicality, which requires that “the claims or defenses of the
representative parties are typical of the claims or defenses of the class,” and (4) adequacy,
which ensures that “the representative parties will fairly and adequately protect the interests of
the class.” White, 301 F.R.D. at 379-80; Fed. R. Civ. P. 23(a); see also Paxton v. Union Nat’l
Bank, 688 F.2d 552, 559 (8th Cir. 1982). A class action plaintiff “must also satisfy through
evidentiary proof at least one of the provisions of Rule 23(b).” Davenport v. Charter
Communications, LLC, 302 F.R.D. 520, 528 (E.D. Mo. 2014) (quoting Comcast Corp. v.
Behrend, 133 S. Ct. 1426, 1432 (2013)). The provision at issue here is Rule 23(b)(3), which
requires a court to find that “that the questions of law or fact common to class members
predominate over any questions affecting only individual members, and that a class action is
superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.
R. Civ. P. 23(b)(3).
Plaintiffs have the burden of showing the Rule 23 requirements are met and that the
class should be certified. Luiken v. Domino’s Pizza, LLC, 705 F.3d 370, 372 (8th Cir. 2013);
Coleman v. Watt, 40 F.3d 255, 258 (8th Cir. 1994). The Court has an affirmative duty to
consider the merits of an action “to the extent that they overlap with class certification issues.”
Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 2011) (“a district court must
consider the merits if they overlap with the Rule 23(a) requirements”) (citing Wal-Mart Stores,
Inc. v. Dukes, 131 S. Ct. 2541, 2551-52 (2011); Hanon v. Dataproducts Corp., 976 F.2d 497,
509 (9th Cir. 1992)).
DirecTV opposes certification on the grounds that Plaintiffs cannot satisfy the
commonality, typicality and predominance requirements of Rule 23,8 and fail to meet the other
requirements of Rule 23. In addition, DirecTV argues that class certification cannot be granted
on the issue of joint employment because without a showing of liability, this issue is moot, and
because the joint employment factors are not susceptible to common proof. Because the analysis
of the commonality and typicality requirements of Rule 23(a) tend to merge, see Ruiz, 93 F.
DirecTV does not directly address the numerosity requirement, except to assert that the small number
of plaintiffs (186 technicians) could pursue individual claims against Defendants (see Doc. No. 247 at
44), and the adequacy of the proposed class counsel is not at issue.
Supp. 3d at 288 (citations omitted), the Court will focus on the commonality requirements of
Rule 23(a)(2) and the predominance and superiority requirements of Rule 23(b)(3).
Rule 23(a)(2) commonality and Rule 23(b)(3) predominance
Rule 23(a)(2) requires “questions of law or fact common to the class.” Fed. R. Civ. P.
23(a)(2). Commonality is typically not difficult for class action plaintiffs to meet. White, 301
F.R.D. at 380; see also Rikard v. U.S. Auto Prot., L.L.C., 287 F.R.D. 486, 489-90 (E.D. Mo.
2012) (“The commonality requirement imposes a very light burden on a plaintiff seeking to
certify a class and is easily satisfied.”) (quoting Mund v. EMCC, Inc., 259 F.R.D. 180, 183 (D.
Minn. 2009)). As the Supreme Court has explained, “any competently crafted class complaint
literally raises common questions,” but “[w]hat matters to class certification is not the raising of
common questions - even in droves - but, rather the capacity of a class wide proceeding to
generate common answers apt to drive the resolution of the litigation.” Dukes, 131 S. Ct. at
2551 (emphasis in original) (citations omitted). In other words, Plaintiffs’ claim must “depend
upon a common contention … of such a nature that … determination of its truth or falsity will
resolve an issue that is central to the validity of each one of the [individual plaintiff’s] claims in
one stroke.” Id. Even a single common question that meets this standard satisfies Rule 23(a)(2),
and where Plaintiffs identify at least one common question, differences between class members’
claims are less relevant. Dukes, 131 S. Ct. at 2556 (“We consider dissimilarities not in order to
determine (as Rule 23(b)(3) requires) whether common questions predominate, but in order to
determine (as Rule 23(a)(2) requires) whether there is even a single common question.”)
(emphasis in original).
The Rule 23(b)(3) predominance inquiry is “far more demanding than the requirement
of commonality.” Luiken, 705 F.3d at 377 (citation omitted). Rule 23(b)(3) “permits
certification only if the court finds that the questions of law or fact common to class members
predominate over any questions affecting only individual members.” Comcast Corp. v.
Behrend, 133 S. Ct. 1426, 1430 (2013). “The predominance inquiry requires an analysis of
whether a prima facie showing of liability can be proved by common evidence or whether this
showing varies from member to member.” Halvorson v. Auto-Owners Ins. Co., 718 F.3d 773,
778 (8th Cir. 2013) (citing Avritt v. Reliastar Life Ins. Co., 615 F.3d 1023, 1029 (8th Cir.
Plaintiffs contend that common issues predominate because all members of the proposed
class were subject to DirecTV’s piece-rate pay system (Doc. No. 241 at 19-23), and because
damages can be determined on a classwide basis (id. at 23-27). Technicians were paid for
completing a variety of installation-related tasks listed on a rate card. (See Doc. No. 242-3; Rule
30(b)(6) Deposition of Rebecca Sellers (R. Sellers Depo.), Doc. No. 242-4 at 141:9-17;
Deposition of Valerie Kirby (V. Kirby Depo.), Doc. No. 242-1 at 155:6-21) Their pay was not
determined by the number of completed installations, but rather by the number of completed
tasks. In addition, the Aero Sat employee handbook states that technicians’ pay “consist[s] of
some type of productivity, quality or piecework component.” (R. Sellers Depo. at 88:15-89:6;
247-10) DirecTV’s witnesses testified that class member technicians were paid piece-rate. (R.
Sellers Depo. at 95:18-96:19; Rule 30(b)(6) Deposition of John Sellers (J. Sellers Depo.) Doc.
No. 242-7 at 76:9-21)
DirecTV argues the predominance requirement has not been met because there are no
common answers to whether DirecTV is liable as a joint employer (Doc. No. 247 at 39-43);
whether Plaintiffs and the proposed class were properly compensated under the piece-rate
system (id. at 28-30); whether there was an agreement or understanding about non-productive
time (id. at 31-35); and because damages cannot be determined on a classwide basis (id. at 3539)
The Court finds Plaintiffs have not shown predominance based upon their “common
evidence” of a piece-rate pay policy. “Even if Rule 23(a)’s commonality requirement may be
satisfied by that shared experience, the predominance criterion is far more demanding.” White,
301 F.R.D. at 382 (quoting Amchem Products, Inc. v. Windsor, 521 U.S. 591, 623-24 (1997)).
As discussed in detail above, the evidence before the Court indicates there are a number of
factual and legal questions particular to each proposed class member, including whether each
member worked more than 40 hours per week, worked time that was not recorded, and was not
paid for that time. Thus, an individualized analysis, technician-by-technician, and week-byweek, must be performed to determine whether they were compensated for all hours worked
under the piece-rate system in effect. Likewise, whether each technician had an agreement or
understanding that their pay per work order was intended to compensate them for so-called
nonproductive time is an individual question. See Benton v. Labels Direct, Inc., No.
4:14CV01293-ERW, 2014 WL 4659640, *6 (E.D. Mo. Sept. 17, 2014) (holding that
predominance requirement was not satisfied where “class adjudication would involve separate
mini-trials to determine a variety of factual and legal questions particular to each member,”
including whether each member worked more than 40 total hours weekly during the relevant
period, worked time that was not recorded in the timekeeping system, and was not paid for such
time). Such questions speak to both predominance and superiority. Ruiz, 93 F. Supp. 3d at 295.
Moreover, Plaintiffs’ proposed damages analysis cannot be performed on a classwide
basis. As the Seventh Circuit recognized in Espenscheid, because the technicians varied in the
amount they worked, the amount of overtime they worked, and the efficiency with which they
worked, even if Plaintiffs could establish an “average” number of overtime hours through
representative proof, some technicians would receive a windfall while others would be
undercompensated. See Espenscheid, 705 F.3d at 774. Further, Plaintiffs here have insufficient
records to establish their individualized unreported work time. Plaintiffs Arnold and Feger have
testified they have no records supporting the number of hours they worked, did not record, and
were not compensated for. Consequently, as in Espenscheid, to calculate damages here, the
hours Plaintiffs worked would need to be reconstructed from “memory, inferred from the
particulars of the jobs the technicians did, or estimated in other ways” which were unique to the
individual technician. Farmer, 2010 WL 3927640, at *7. Thus, individual testimony regarding
damages will be necessary, making decertification appropriate.
Rule 23(b)(3) superiority
The second inquiry under Rule 23(b)(3) calls for a court to determine whether a class
action is “superior to other available methods for fairly and efficiently adjudicating the
controversy.” Relevant factors to be considered in making this determination include: (A) the
class members' interests in individually controlling the prosecution or defense of separate
actions; (B) the extent and nature of any litigation concerning the controversy already begun by
or against class members; (C) the desirability or undesirability of concentrating the litigation of
the claims in the particular forum; and (D) the likely difficulties in managing a class action. Fed.
R. Civ. P. 23(b)(3)(A)-(D).
For the reasons discussed above, and particularly with regard to the last factor, a class
action would not be the superior method for resolving the claims of the state law class for
unpaid overtime. Without common proof of practices resulting in work without pay, the
litigation would devolve into a series of mini-trials involving each class member’s individual
circumstances, which contravenes the efficiency goals of class certification. See Doyel v.
McDonald’s Corp., No. 4:08CV1198 CAS, 2010 WL 3199685, *9 (E.D. Mo. Aug. 12, 2010)
(finding no superiority where case “would devolve into a series of mini-trials for each class
member and each instance of alleged time shaving or off-the-clock work.”).
To the extent there are common questions of law or fact regarding DirecTV’s piece rate
pay policy, those questions are outweighed by the differences among the members of the
proposed state law class. As discussed in detail above, Plaintiffs’ claims are dependent on a
number of necessarily individualized inquiries that confirms the impracticability of proceeding
as a class. Accordingly, Plaintiffs’ motion for Rule 23 certification will be denied.9 In addition,
because the opt-in Plaintiffs are not similarly situated, DirecTV’s motions to decertify the FLSA
subclasses will be granted. The named Plaintiffs’ claims will remain pending before this Court,
but the Court will dismiss the Opt-in Plaintiffs’ claims without prejudice. To avoid prejudice to
those Opt-in Plaintiffs who wish to file individual lawsuits, the Court will toll the applicable
statute of limitations for 120 days after entry of this Memorandum and Order. See Davenport,
2017 WL 878029, at *11.
Plaintiffs argue in the alternative for certification of a limited issues class under Rule 23(c)(4). (Doc.
No. 241 at 28) There is a conflict in authority on whether such a class may properly be certified under
Rule 23. In re St. Jude Med., Inc., 522 F.3d 836, 841 (8th Cir. 2008) (citations omitted). Even courts that
have approved “issue certification” have declined to certify such classes where the predominance of
individual issues is such that limited class certification would do little to increase the efficiency of the
litigation. Id.; see also McLaughlin v. American Tobacco Co., 522 F.3d 215, 234 (2d Cir. 2008) (issue
certification would not “materially advance the litigation because it would not dispose of larger issues
such as reliance, injury, and damages”); In re Baycol Prods. Litig., 218 F.R.D. 197, 209 (D. Minn. 2003)
(concluding that issue certification under Rule 23(c)(4) was not appropriate, because “individual trials
will still be required to determine issues of causation, damages, and applicable defenses.”). Given the
individual issues discussed above, the Court finds this is such a case.
IT IS HEREBY ORDERED that Plaintiff’s Motion for Rule 23 Certification of
Missouri State Law Claim  is DENIED.
IT IS FURTHER ORDERED that Defendants’ Motions for Decertification as to the
DirecTV Home Services Subclass , DirectSat Subclass , Mastec Subclass  and
Multiband Subclass  are GRANTED. The claims of all opt-in Plaintiffs are DISMISSED
without prejudice, leaving before the Court the named Plaintiffs who originated this action.
Plaintiffs’ counsel shall notify the opt-in Plaintiffs that the collective action has been decertified
and their FLSA claims are no longer pending before this Court and file a notice with the Court
confirming that they have done so.10
IT IS FURTHER ORDERED that the applicable statute of limitations for the FLSA
claims of the Plaintiffs who have opted into the collective action is tolled for period of 120 days
from the date of this Memorandum and Order.
IT IS FURTHER ORDERED that within 30 days of the date of this Memorandum and
Order, the remaining parties shall file a joint proposed schedule for the remainder of the
litigation, including a proposed trial date.
Dated this 31st day of March, 2017.
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE
This Order does not revive the claims of those opt-in Plaintiffs who have previously been dismissed
with prejudice for failure to comply with discovery orders in this case (see Doc. Nos. 214, 471).
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