United States District Court, E.D. Arkansas, Western Division
DAVID POINTER; MICHAEL MONDAY; and MICHAEL HALL, all individually and on behalf of all others similarly situated PLAINTIFFS
DIRECTV LLC; DAVID MOSES, d/b/a Sky Connect, Endeavor Communications, Endeavor Holdings, and Sky High Communications; MOSES CAPITAL GROUP LLC; and MOSES HOLDINGS LLC DEFENDANTS
MARSHALL JR. UNITED STATES DISTRICT JUDGE.
Monday, and Hall all worked through Endeavor Communications
installing and repairing equipment for satellite-fed TV and
Internet. No 1 at 7. Endeavor was David Moses's
creature, an unincorporated entity that had a contract with
DirecTV. No 1 at 6. The workers say they were
misclassified as independent contractors and weren't paid
minimum wages or overtime for long hours on the job. No 1
at 2. Endeavor and DirecTV ended their relationship in
2017; Moses encountered financial problems; and he's in
bankruptcy. No 33. (The stay was lifted so the claim
against him here could proceed. No 41.) The workers
allege they were employed by Moses and DirecTV. They seek
conditional certification of a FLSA collective group. No
47. DirecTV resists, arguing that Moses alone is
responsible for any wage violations and that the three former
workers aren't similarly situated to others in the
proposed group. No 58. Moses hasn't opposed
conditional certification. But he has provided an affidavit
that strongly supports DirecTV's current and future
arguments. No 58-1.
the parties. The workers' claims against Moses Capital
Group LLC, Moses Holdings LLC, and several other
non-incorporated entities -Sky Connect, Endeavor Holdings,
and Sky High Communications - are dismissed without
prejudice. As best the Court can tell, there's nothing in
the current papers adequately linking these parties to this
case. Moses says there was no connection. The workers can
explore what they call Moses's "cadre" of
businesses in discovery. But there's no need for any
defendant beyond Moses, Endeavor Communications, and DirecTV
at this point.
the group. The former workers' motion to conditionally
certify one, No 47, is granted as modified. Pointer
and Monday, as well as others, were all similarly affected by
Moses's across-the-board decision to classify technicians
as independent contractors and his piece-work payment
structure. The Court's exclusion of managers from the
group (see below) addresses DirecTV's point about them.
Hall may be uniquely situated - apparently, he was never paid
at all. He'll stay in for now. Discovery will reveal
whether there needs to be a "never-paid" sub-group,
whether Hall's claims should be severed as unique, or
whether they fail as a matter of law. A handful of other
former Endeavor workers have expressed interest. All this is
sufficient to clear the low bar for conditional
certification. Smith v. Frac tech Services,
LLC, No. 4:09-cv-679-JLH (E.D. Ark. 24 Nov. 2009). The
Court reserves a final ruling on the joint-employer issue.
For now, it suffices to say that the former workers have
documented that DirecTV exercised significant control over
who Moses engaged, the work required, and the work done.
While these folks were instructed not to say that they were
DirecTV employees, their shirts, ID badges, and other logos
all invoked the company. And the specifications for their
work, some of which the Court has sealed as confidential
business information, all had DirecTV roots. These are not
wage-related matters. But if the former workers can carry the
day on the joint-employer issue, then DirecTV will probably
be bound (for good or for ill) by how Moses decided to
structure his dealings with the technicians.
Court therefore conditionally certifies the following group:
All satellite installation and repair technicians who worked
for David Moses d/b/a Endeavor Communications from
[insert date, three years back from the mailing
date] and continuing through the date on which final
judgment is entered in this action, who provided installation
and repair services for DIRECTV customers, who were not
managers, and who were classified as independent contractors
at any time during this period.
October 2018, Moses and DirecTV must supplement their prior
production and provide plaintiffs' counsel (in an
electronic spreadsheet) an updated list of names, addresses,
and addresses of potential group members, insofar as either
Moses or DirecTV has this information.
Court approves the amended proposed notice and consent forms,
No 61-1, Exhibit A, with these changes:
• Update the list of defendants;
• Revise the sentence in the consent form about future
actions. It should read: I consent to join any related case
against Moses or DirecTV that may result from the Court's
decision about final certification in this case;
• Insert 31 December 2018 as the last date to opt in.
The Court overrules the other ...