Flood v. Just Energy Marketing Corp. et al

Filing 157

OPINION & ORDER re: 144 MOTION to Certify Class in accordance with Rules 23(a) and (b)(3). filed by Kevin Flood. Just Energy has moved for summary judgment on the basis that plaintiff Flood was an "outside salesman" and t herefore exempt from the requirements of the FLSA and NYLL. Also pending before this Court is plaintiff's motion to certify a class pursuant to Federal Rule of Civil Procedure 23. (As further set forth in this Order.) Accordingly, the Court di rects any opt-in plaintiff who believes he or she is situated differently than Flood to file a Rule 56.1 statement setting forth such distinguishing facts not later than Friday, February 3, 2017. The Court will assume that if no separate Rule 56.1 statement is filed, the facts are materially similar and will enter judgment accordingly. Defendants must respond to any submissions not later than Friday, February 17, 2017. For the reasons set forth above, defendants' motion for summary j udgment is GRANTED, and plaintiff's motion for class certification is DENIED as moot. The Clerk of Court is directed to close the motion at ECF No. 144. (Signed by Judge Katherine B. Forrest on 1/20/2017) (cf) (Main Document 157 replaced on 1/20/2017) (cf).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
KEVIN FLOOD,
:
:
:
Plaintiff,
:
-v:
:
JUST ENERGY MARKETING CORP., et al.,
:
:
:
Defendants.
:
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KATHERINE B. FORREST, District Judge:

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: January 20, 2017

7:15-cv-2012 (KBF)
OPINION & ORDER

Kevin Flood brings this wage-and-hour action against Just Energy Marketing
Corp., Just Energy New York Corp., and Just Energy Group, Inc. (collectively, “Just
Energy”). Plaintiff alleges, individually and on behalf of other door-to-door workers
who solicited new accounts for Just Energy, that defendants failed to pay him
wages and overtime in violation of the Fair Labor Standards Act (“FLSA”) and the
New York Labor Law (“NYLL”). The Court previously certified a conditional FLSA
collective action, and over 100 individuals have opted in.
Just Energy has moved for summary judgment on the basis that plaintiff
Flood was an “outside salesman” and therefore exempt from the requirements of the
FLSA and NYLL. 1 Also pending before this Court is plaintiff’s motion to certify a
class pursuant to Federal Rule of Civil Procedure 23. Because there is no genuine
dispute as to a material fact that Flood was an exempt outside salesperson,

This motion was filed prior to the 29 U.S.C. § 216(b) certification and opt-in of the additional
plaintiffs. As discussed at the end of this opinion, a grant of summary judgment as to Flood’s claim
does not resolve the action as to the additional plaintiffs.
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defendants’ motion for summary judgment is GRANTED, and plaintiff’s class
certification motion is DENIED as moot.
I.

FACTUAL AND PROCEDURAL BACKGROUND
Unless otherwise noted, the following facts are undisputed.
Just Energy Group, Inc. is a Canadian corporation. (Defs. 56.1 ¶ 2, ECF No.

59-3.) Just Energy Marketing Corp. and Just Energy New York Corp., Delaware
corporations doing business in New York, market and sell natural gas and
electricity to residential and commercial customers. 2 (Id. ¶¶ 3-5.) For convenience,
the Court will refer to defendants as “Just Energy.”
Just Energy hired Flood to go door to door to solicit customers for its energy
services. (Id. ¶ 8.) Plaintiff signed an independent contractor agreement (“IC
Agreement”) with Just Energy in September 2011, (IC Agreement, ECF No. 59-5),
and worked for defendants through November 2014, (Defs. 56.1 ¶¶ 16, 27). It is
undisputed that Flood spent approximately 75 to 80 percent of his time going door
to door and was paid entirely on commission. (Id. ¶¶ 17, 18, 29.) In addition, he
was eligible to earn “reconciliation and residual payments” for customers who
stayed with Just Energy for a certain length of time. (Id. ¶ 19.) Flood testified that
he obtained more than 8,000 new contracts for Just Energy as a door-to-door
salesman and that he earned approximately $10,000 for the four months he was
with Just Energy in 2011, $70,000 in both 2012 and 2013, and $42,000 during the
eleven months he was engaged with Just Energy in 2014. (Id. ¶¶ 28, 35; Pl. Resp.
Plaintiff rejects defendants’ use of the word “customer.” Because the Court finds that Flood was an
exempt “outside salesman,” as described in more detail below, the Court finds the use of the word to
be appropriate.

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Defs. 56.1 ¶ 28.) Plaintiff was a top performer for Just Energy, and often qualified
for incentives or awards, including trips to London, the Dominican Republic,
Ireland, Scotland, and Hawaii. (Defs. 56.1 ¶¶ 34, 35.) Flood contends that this
success was due in part to the fact that he “worked fifty out of fifty two weeks per
year and worked a minimum of five days per week, and sometimes worked six or
seven days per week,” (Pl. 56.1 ¶ 21, ECF No. 59-3; see also id. ¶ 25), and no less
than sixty hours per week, (id. ¶ 22).
The parties dispute the extent to which Just Energy exercised supervision
over Flood. It is undisputed that plaintiff attended an orientation session when he
first started working for Just Energy, during which he was provided an orientation
manual, and that he also attended daily, morning meetings at the regional sales
office. (Defs. 56.1 ¶¶ 21, 22, 30.) It is also undisputed that plaintiff was provided a
script to use when knocking on doors, (id. ¶ 39), which he added to, (id. ¶ 40; Flood
Dep. 161:11-22, ECF No. 59-4), and that, in order to avoid confusion with the utility
company, he was required to wear an identification badge and a company shirt, (Pl.
56.1 ¶ 15; Independent Contractor Orientation Manual 31, ECF Nos. 66-9 to -22).
According to Flood, Just Energy required its workers to take the company van to
and from the field, designated the areas where they would work each day, and
controlled their hours. (Pl. 56.1 ¶¶ 18, 19, 20, 26.) And although there is no
evidence that Just Energy required of Flood anything beyond canvassing (such as
networking with potential customers or researching client leads), Flood testified

3

that he “developed all customers, whether they were residential or commercial, on
[his] own.” (Flood Dep. 79:17-19.)
Completed customer contracts were forwarded from the regional sales office
to a corporate office in Canada for processing, (Defs. 56.1 ¶ 53), and the parties
agree there were several reasons why a sale might not go through. First, there
could be issues with a third-party verification call. When residents agree to use
Just Energy, they are required to complete a verification call, which is designed to
prevent fraud and ensure they understand their purchase. (Id. ¶ 43.) A sale will
not go through if the third-party caller cannot verify the resident’s information. In
plaintiff’s experience, the two biggest reasons why a sale would not go through were
when residents cancelled due to the length of the third-party verification call, or
because the verifier spoke in broken English. (Id. ¶ 50.) Second, residents could
change their mind or cancel. (Id. ¶ 49.) Third, some residents put a “slam block” on
their utility accounts to prevent the use of energy service companies like Just
Energy without their permission. (Id. ¶ 51.) And fourth, a utility company might
disqualify someone for having a large balance. (Id. ¶ 52.)
The crux of Flood’s argument against his designation as an “outside
salesman” is that he had “no authority to approve a new customer for an energy
contract with Just Energy. Just Energy or the utility had final discretion whether
to accept the applicant as a new customer.” (Pl. Resp. Defs. 56.1 ¶ 2.) In his
deposition, however, Flood testified that he was unaware of any situation in which
Just Energy arbitrarily rejected a sale. (Flood Dep. 238:5-11.) Plaintiff more

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recently has attempted to modify this position by pointing to several “Predict-a-Bill”
orders in Staten Island that he says Just Energy rejected after-the-fact. (Pl. 56.1 ¶
31.) Flood also argues that Just Energy would claw back his commissions, for
example, if a customer cancelled an account before the end of the term or the
contract was changed to an “in house” account by Just Energy. (Pl. Resp. Defs. 56.1
¶ 17.)
Flood filed this lawsuit on March 17, 2015, alleging that defendants failed to
pay him and those similarly situated wages and overtime in violation of the FLSA
(Count One) and the NYLL (Counts Two and Three). 3 (Compl.) On December 23,
2015, Just Energy moved for summary judgment in its favor on all of Flood’s claims.
(Mot. Summ. J., ECF No. 59.) On January 25, 2016, the Honorable Analisa Torres,
who was then presiding over this action, granted plaintiff’s motion for conditional
collective action certification pursuant to the FLSA. (ECF No. 64.) On April 25,
2016, plaintiff filed a motion for class certification pursuant to Federal Rule of Civil
Procedure 23 for the wage-and-hour claims under the NYLL. (ECF No. 144.) The
case was transferred to the undersigned on November 22, 2016. Just Energy’s
motion for summary judgment and Flood’s motion for class certification are now
fully submitted.

Count Two is a class action claim alleging violations of the minimum wage and overtime provisions
of the NYLL, (Compl. ¶¶ 63-70, ECF No. 1), and Count Three alleges violations of Section 191 of the
NYLL, which concerns frequency of payments for earned wages, and Section 198, which allows an
employee to recover costs and other remedies for bringing a civil action to recover unpaid wages, (id.
¶¶ 71-75). See, e.g., Ethelberth v. Choice Sec. Co., 91 F. Supp. 3d 339, 358 n.17 (E.D.N.Y. 2015).
3

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II.

LEGAL PRINCIPLES
1.

Summary Judgment.

Summary judgment may not be granted unless a movant shows, based on
admissible evidence, “that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The
moving party bears the burden of demonstrating “the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On summary
judgment, the Court must “construe all evidence in the light most favorable to the
nonmoving party, drawing all inferences and resolving all ambiguities in its favor.”

Dickerson v. Napolitano, 604 F.3d 732, 740 (2d Cir. 2010). The Court’s function on
summary judgment is to determine whether there exist any genuine issues of
material fact to be tried, not to resolve any factual disputes. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248-49 (1986).
2.

Class Certification.

A plaintiff seeking certification of a class must prove by a preponderance of
the evidence that its proposed class meets the requirements of Federal Rule of Civil
Procedure 23(a) and, if those requirements are met, that the class is maintainable
under at least one of the subdivisions of Federal Rule of Civil Procedure 23(b). See

Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 345 (2011); Teamsters Local 445
Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 196, 201-02 (2d Cir. 2008).
Here, Flood asserts that he has met the requirements of Rule 23(b)(3).
Pursuant to Rule 23(a), a court must determine whether a proposed class
satisfies four requirements: (1) numerosity, (2) commonality, (3) typicality, and (4)
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adequacy of representation. Rule 23(b)(3) allows certification if “the questions of
law or fact common to class members predominate over any questions affecting only
individual members, and . . . a class action is superior to other available methods for
fairly and efficiently adjudicating the controversy.” See also Johnson v. Nextel

Commc’ns Inc., 780 F.3d 128, 137 (2d Cir. 2015). In determining whether class
certification is appropriate, the district court must receive enough evidence—by
affidavits, documents, or testimony—to be satisfied by a preponderance of the
evidence that each Rule 23 requirement has been met. See Teamsters Local 445,
546 F.3d at 202.
III.

ANALYSIS
1.

FLSA & NYLL.

a. Legal Principles
The FLSA imposes minimum-wage and maximum-hour requirements on
employers. 29 U.S.C. §§ 206-207. Those requirements, however, do not apply to
workers employed “in the capacity of outside salesm[e]n.” Id. § 213(a)(1); see also

Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2161 (2012). “Because
the FLSA is a remedial law, [courts] must narrowly construe its exemptions.”

Reiseck v. Universal Commc’ns of Miami, Inc., 591 F.3d 101, 104 (2d Cir. 2010)
(footnote omitted). Moreover, an employer bears the burden of establishing that an
exemption applies. See Young v. Cooper Cameron Corp., 586 F.3d 201, 204 (2d Cir.
2009).
An “outside salesman” is an employee “(1) [w]hose primary duty is: (i) making
sales . . . ; or (ii) obtaining orders or contracts for services or for the use of facilities,”
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and “(2) [w]ho is customarily and regularly engaged away from the employer’s place
or places of business in performing such primary duty.” 29 C.F.R. § 541.500(a)
(defining “outside salesman” as authorized by the FLSA exemption provision, 29
U.S.C. § 213(a)(1)); see also N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.2 (noting
that the NYLL’s overtime provision is subject to the FLSA exemptions); Gold v. N.Y.

Life Ins. Co., 730 F.3d 137, 140, 145 (2d Cir. 2013) (same). A sale “includes any
sale, exchange, contract to sell, consignment for sale, shipment for sale, or other
disposition.” 29 U.S.C. § 203(k). The U.S. Supreme Court has explained that “other
disposition” must be interpreted to mean “those arrangements that are tantamount,
in a particular industry, to a paradigmatic sale of a commodity.” 4 Christopher, 132
S. Ct. at 2171-72.
Courts also consider whether the employee bears indicia of an outside
salesperson. Just Energy points to the “hallmark activities” listed in a case from
this district, including “(1) whether the employee generates commissions for himself
through his work, (2) the level of supervision of the employee, (3) the amount of
work done away from the employer’s place of business, (4) whether the employee
independently solicits new business, and (5) the extent to which the employee’s
work is unsuitable to an hourly wage.” Chenensky v. N.Y. Life Ins. Co., No. 07 Civ.
11504, 2009 WL 4975237, at *5 (S.D.N.Y. Dec. 22, 2009) (citing 29 C.F.R.
§ 541.700). For his part, Flood points to a case from the Northern District of Ohio
involving Just Energy subsidiaries that examined factors such as “whether the
Although Christopher dealt with the unique regulatory environment of the pharmaceutical
industry, 132 S. Ct. at 2172 & n.23, it interpreted the FLSA provisions that apply to this case and,
therefore, its reasoning assists in guiding the Court’s analysis here.

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employees: (1) receive commission compensation; (2) receive specialized sales
training; (3) must solicit new business; (4) were hired for their sales experience; and
(5) were directly supervised.” Hurt v. Commerce Energy, Inc., No. 12 Civ. 758, 2013
WL 4427257, at *5 (N.D. Ohio Aug. 15, 2013) (footnotes omitted).
In all events, it is clear that “[t]he question of how the [employees] spent
their working time . . . is a question of fact. The question whether their particular
activities excluded them from the overtime benefits of the FLSA is a question of
law.” Ramos v. Baldor Specialty Foods, Inc., 687 F.3d 554, 558 (2d Cir. 2012)
(alterations in original) (quoting Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709,
714 (1986)).

b. Discussion
The parties do not dispute that Flood is “customarily and regularly engaged
away from the employer’s place or places of business,” 29 C.F.R. § 541.500(a); accord
N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.2. (See, e.g., Defs. Mem. Law 10, ECF
No. 59-1; Pl. Resp. Opp’n 18, ECF No. 66.) They disagree, however, as to whether
Flood’s primary duty was “making sales” or “obtaining orders or contracts for
services.” The Court concludes that the undisputed material facts demonstrate that
Flood’s primary duty met these requirements.
In plaintiff’s own words, he was a “salesperson.” (Flood Dep. 272:11-16.) The
title fits: he was paid exclusively on commission, (Defs. 56.1 ¶¶ 17, 18), spent 75 to
80 percent of his time going door to door, (id. ¶ 29), was “the last salesperson to
touch the customer,” (Flood Dep. 272:5-8), and could not think of any situation

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where Just Energy arbitrarily rejected a sale, (id. at 238:5-14 (reasoning that
“[t]hey want as much business as they can get”)). Flood points to commissions that
allegedly were withdrawn from the Staten Island Predict-a-Bill program to
demonstrate Just Energy’s final authority over sales approval, (Pl. 56.1 ¶ 31), but
this does not alter his fundamental status. (In addition, there is no evidence in the
record to support this contention other than plaintiff’s speculation, (see Flood Dep.
174:9-176:6).) See Barkley v. Penn Yan Cent. Sch. Dist., 442 F. App’x 581, 582 (2d
Cir. 2011) (summary order). And although it is true that Flood may have been
subject to some supervision, to conclude—based on that—that he was not a
salesperson would be to discard the functional, rather than formal, inquiry the
Court is tasked with performing. See Christopher, 132 S. Ct. at 2170 (“The
statute’s emphasis on the ‘capacity’ of the employee counsels in favor of a functional,
rather than a formal, inquiry, one that views an employee’s responsibilities in the
context of the particular industry in which the employee works.”).
Flood argues that his primary duty could not have been “making sales” or
“obtaining orders or contracts for services” given that, pursuant to the IC
Agreement, a contract for Just Energy’s services was not “effective” until it was
approved by defendants. (IC Agreement at 2; see also Customer Agreement 2, ECF
Nos. 66-34 to -35 (“This Agreement takes effect when you sign it and is conditional
upon our acceptance of it. Our acceptance of this Agreement is at our sole
discretion.”).) The Court disagrees. If he was not making the sale, who was? No

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one? This makes no sense. Indeed, he was paid commissions based directly on
sales he had made. The proof is in the pudding, so to speak.
There is nothing in the FLSA or the NYLL that limits the definition of an
outside salesperson to someone who has the unfettered discretion to finalize a
binding sale. In fact, the Department of Labor’s (“DOL”) preamble to the 2004
FLSA regulations, to which the Supreme Court has turned for guidance in
interpreting the scope of the outside salesperson exemption, see Christopher, 132 S.
Ct. at 2163, counsels against plaintiff’s categorical interpretation. The preamble
defines an outside salesperson as someone who “in some sense” makes sales.
Defining and Delimiting the Exemptions for Executive, Administrative,
Professional, Outside Sales and Computer Employees, 69 Fed. Reg. 22,122, 22,162
(Apr. 23, 2004). It also states that employees “have a primary duty of making sales
if they ‘obtain a commitment to buy’ from the customer and are credited with the
sale.” Id. (quoting 1949 Weiss Report at 83). Indeed, for the outside salesperson
exemption to apply, Flood was required only to have “direct[ed] efforts toward the
consummation of a sale.” 29 C.F.R. § 541.503(c) (distinguishing exempt
“promotional work” from non-exempt “promotional work”). These regulations “cast
doubt on the Hurt court’s conclusion that, because Just Energy retained the right to
rescind applications for service, the plaintiffs there did not ‘mak[e] sales’ as that
term is used in FLSA.” Dailey v. Just Energy Marketing Corp., No. 14 Civ. 2012,
2015 WL 4498430, at *4 n.1 (N.D. Cal. July 23, 2015).

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Here, there is no dispute that Flood “direct[ed] efforts toward the
consummation of a sale.” 29 C.F.R. § 541.503(c). He also “obtain[ed] a commitment
to buy” from those residents he convinced to use Just Energy’s services and was
credited with the sale—his commission was based on how many customers he
recruited to Just Energy. It is clear that Flood was an outside salesperson: when he
knocked on doors, he was responsible for culling potential customers from ineligible
residents; he, and only he, attempted (often quite successfully) to sell them energy
services; and the record indicates that, once the residents signed up for Just
Energy’s services, defendants did little other than make sure there were no
technical or legal issues with processing the contracts. Accordingly, there is no
genuine dispute that Flood’s primary duty was “making sales.”
To the extent the Court is required to analyze external indicia or “hallmark
activities,” they do not create a triable issue of fact. 5 See Hurt, 2013 WL 4427257,
at *5; Chenensky, 2009 WL 4975237, at *5. It is undisputed that Flood received a
commission, primarily worked away from Just Energy’s regional sales offices, and
received sales training. And while Just Energy did not require its door-to-door
workers to have sales experience, (Pl. 56.1 ¶ 10), it is undisputed that Flood had
previously worked as a salesperson, (Defs. 56.1 ¶¶ 7, 11). The parties, however,
dispute the extent to which Flood was supervised by Just Energy, and the degree to
5

The parties dispute what weight the Court should give these factors. The Supreme Court in

Christopher looked to “external indicia” as further support for its conclusion that petitioners “made

sales” for purposes of the FLSA. 132 S. Ct. at 2172-73. The Court notes that other courts in this
Circuit generally have looked to such indicia “to assist in the adjudication of ‘mixed duties’ cases,
where the employees engage in sales and also perform a significant amount of non-sales work . . . . In
such cases, the question is not—as it is here—whether the employees make sales at all, but whether
their work primarily consists of making those sales.” Amendola v. Bristol-Myers Squibb Co., 558 F.
Supp. 2d 459, 471-72 (S.D.N.Y. 2008).

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which he was able to solicit his own customers. The Court does not view some
supervision as being irreconcilable with the outside salesperson exemption. At the
least, the Court agrees with the conclusion of another district court addressing a
similar case involving Just Energy’s door-to-door workers, that “the external indicia
of outside sales activity traditionally applied in the FLSA context are neutral as
applied to Plaintiff.” Dailey, 2015 WL 4498430, at *5.
Even if Flood did not “make sales,” the Court concludes that Flood “obtain[ed]
orders or contracts for services.” 29 C.F.R. § 541.500(a)(ii). According to the
relevant federal regulation, “[t]he word ‘services’ extends the outside sales
exemption to employees who sell or take orders for a service, which may be
performed for the customer by someone other than the person taking the order.” Id.
§ 541.501(d). Flood argues that gas and electricity are commodities, not services,
and therefore, his door-to-door activity on behalf of Just Energy does not fit within
this exemption. (Pl. Resp. Opp’n 23.) The Court recognizes that the Consumer
Agreement that Just Energy purchasers signed refers to Just Energy as both a
commodity supplier and services provider. 6 (Customer Agreement 1 (“I choose [Just
Energy] to supply natural gas and/or electricity commodity . . . [and] I agree to
initiate commodity service.” (emphases added).) The law in New York, however,
where plaintiff worked for Just Energy, (Defs. 56.1 ¶ 20; Pl. 56.1 ¶ 11), is clear that
the sale of electricity is a service, not a good. See, e.g., Norcon Power Partners, L.P.

Although the sample Customer Agreement provided by plaintiff apparently is an outdated version
used by a Just Energy predecessor, defendants agree that it “is fairly representative of the various
customer agreements Just Energy has utilized during the relevant time period.” (Defs. Reply 10 n.5,
ECF No. 72.)
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v. Niagara Mohawk Power Corp., 163 F.3d 153, 155 (2d Cir. 1998) (“[T]he UCC does
not apply to sale of electricity which is a service under New York law.”); United

States v. Consol. Edison Co. of N.Y., Inc., 590 F. Supp. 266, 269 (S.D.N.Y. 1984) (“In
New York, electricity is not considered ‘goods’ and the U.C.C. therefore is not
directly applicable to contracts involving the provision of electricity.”) (citing Farina

v. Niagara Mohawk Power Corp., 438 N.Y.S.2d 645, 647 (App. Div. 1981)). The
Energy Services Company Consumers Bill of Rights, a consumer-protection law
targeting abuses in the energy services market, further supports this
interpretation. See N.Y. Gen. Bus. Law § 349-d. That law defines “energy services”
to mean “electricity and/or natural gas”; an “energy services company” to mean “an
entity eligible to sell energy services to end-use customers using the transmission or
distribution system of a utility”; a “customer” to mean “any person who is sold or
offered an energy services contract”; and “door-to-door sales” to mean “the sale of
energy services in which the [company or company’s representative] personally
solicits the sale.” Id. § 349-d(1) (emphases added). Accordingly, plaintiff’s
argument to the contrary does not withstand scrutiny.
The Court finds unconvincing Flood’s additional arguments that he raises in
an attempt to demonstrate triable issues of fact. First, plaintiff contends that
defendants are barred from relitigating the outside salesperson exemption under
the doctrine of offensive issue preclusion, or offensive collateral estoppel, because
the jury in Hurt determined that Just Energy violated the FLSA. (Pl. Resp. Opp’n
14.) In order for a plaintiff to bar a defendant from litigating an issue on collateral

14

estoppel grounds, “(1) the issues in both proceedings must be identical, (2) the issue
in the prior proceeding must have been actually litigated and actually decided, (3)
there must have been a full and fair opportunity for litigation in the prior
proceeding, and (4) the issue previously litigated must have been necessary to
support a valid and final judgment on the merits.” Faulkner v. Nat’l Geographic

Enters. Inc., 409 F.3d 26, 37 (2d Cir. 2005) (quoting Gelb v. Royal Globe Ins. Co.,
798 F.2d 38, 44 (2d Cir. 1986)). These factors, however, “are required but not
sufficient. In addition, a court must satisfy itself that application of the doctrine is
fair.” Bear, Stearns & Co. v. 1109580 Ontario, Inc., 409 F.3d 87, 91 (2d Cir. 2005)
(citing Parklane Hosiery Co. v. Shore, 439 U.S. 322, 331 (1979)).
Here, Flood seeks to employ collateral estoppel offensively. As an initial
matter, the issues faced by the Hurt court are not identical to those present here: (1)
although the principles behind the outside salesperson exemption were litigated in

Hurt, the facts concerning Flood himself were not before that court; (2) the jury
instructions in Hurt deviated from Second Circuit law relating to “making sales,” as
described above, (see Hurt Jury Instrs., ECF No. 66-47); and (3) the Hurt jury did
not consider whether the plaintiffs in that case “obtained orders or contracts for
services,” (see id.). In addition, there has been no final judgment in the Hurt case.
The last entry on that docket is a denial by the Court of Appeals for the Sixth
Circuit of the Hurt defendants’ petition to appeal an interlocutory order of the
district court. (Order, Hurt v. Commerce Energy, Inc., No. 12 Civ. 758 (N.D. Ohio
Nov. 9, 2015), ECF No. 854.) “[A]lthough failure to appeal does not prevent

15

preclusion, inability to obtain appellate review, or the lack of such review once an
appeal is taken, does prevent preclusion.” Gelb, 798 F.2d at 44 (citations omitted).
Finally, “[a]llowing offensive collateral estoppel may . . . be unfair to a defendant if
the judgment relied upon as a basis for the estoppel is itself inconsistent with one or
more previous judgments in favor of the defendant.” Bear, Stearns & Co., 409 F.3d
at 91 (quoting Parklane Hosiery, 439 U.S. at 330). The district court in the
Northern District of California came to a different conclusion than in Hurt, see

Dailey, 2015 WL 4498430, at *3, finding on summary judgment that a Just Energy
door-to-door worker was an exempt outside salesperson under California law, which
has been interpreted to be consistent with the FLSA in all material respects, see

Campanelli v. Hershey Co., 765 F. Supp. 2d 1185, 1189 n.10 (N.D. Cal. 2011) (“The
parties do not dispute that under California law the outside sales and
administrative exemptions are similar to those under the FLSA.”). To the extent
offensive collateral estoppel even could apply, therefore, the Court will not allow
Flood “to cherrypick one decision that was unfavorable to the defendant[s] and
ignore other decision(s) favoring the defendant[s] on the same issue.” Wills v.

RadioShack Corp., 981 F. Supp. 2d 245, 265 (S.D.N.Y. 2013). In all events, the
parties spend a great deal of time arguing over whether the courts in Hurt and

Wilkins v. Just Energy Group, Inc., 308 F.R.D. 170 (N.D. Ill. 2015), 7 which found

Wilkins brought that lawsuit pursuant to the Illinois Minimum Wage Law (“IMWL”). Although
“courts have generally interpreted [the FLSA and IMWL] to be coextensive,” Wilkins, 308 F.R.D. at
178, the Dailey court also pointed out that the Wilkins Court “appears to have added a requirement
that the orders or contracts be ‘consummated’ in order to satisfy the outside salesperson exemption,”
Dailey, 2015 WL 4498430, at *4. As the Court already has explained, there is no “consummation”
requirement under the FLSA or NYLL.
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that the “outside salesman” exemption did not apply to Just Energy door-to-door
workers, or the Dailey court, which found that a Just Energy salesperson was
exempt, arrived at the proper conclusion. To the extent the cases conflict, the Court
agrees with the Dailey court’s reasoning.
Finally, Flood points to DOL Opinion Letters in support of his position. (See
Compl. Ex. B, ECF No. 1; Pl. Resp. Opp’n Ex. E, ECF No. 66-5.) These are
inapposite. As Flood recognizes, the DOL letters “concluded . . . that door-to-door
workers like Plaintiff were employees, and not independent contractors.” (Pl. Resp.
Opp’n 2.) That is an entirely different issue from whether an employee is or is not
an “outside salesman.” Accordingly, the DOL Opinion Letters have no bearing on
the Court’s conclusion that Flood is exempt from the FLSA’s and NYLL’s reach.
2.

Class Certification.

Because Flood’s claims do not survive Just Energy’s motion for summary
judgment, the Court denies his motion for class certification as moot.
3.

Remaining Plaintiffs.

Defendants’ motion for summary judgment, which was filed before Judge
Torres certified the conditional FLSA collective action, is directed at Flood only.
However, over 100 opt-in plaintiffs remain in the case. Each plaintiff may or may
not have job responsibilities materially similar to Flood’s. If similar, the Court’s
determination above will be applicable. But if different, additional analysis will be
required. Accordingly, the Court directs any opt-in plaintiff who believes he or she
is situated differently than Flood to file a Rule 56.1 statement setting forth such
distinguishing facts not later than Friday, February 3, 2017. The Court will
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assume that if no separate Rule 56.1 statement is filed, the facts are materially
similar and will enter judgment accordingly. Defendants must respond to any
submissions not later than Friday, February 17, 2017.
IV.

CONCLUSION
For the reasons set forth above, defendants’ motion for summary judgment is

GRANTED, and plaintiff’s motion for class certification is DENIED as moot.
The Clerk of Court is directed to close the motion at ECF No. 144.
SO ORDERED.
Dated:

New York, New York
January 20, 2017

_________________________________________
KATHERINE B. FORREST
United States District Judge

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