KIMBERLY DOTSON, JENNIFER CONNOR, and AMENDA MCCONNELL v. TZ INSURANCE SOLUTIONS LLC d.b.a. TRANZACT
CourtDistrict Court, D. New Jersey
Date FiledOctober 12, 2026
Docket2:25-cv-13323
StatusUnknown
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Full Opinion
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
KIMBERLY DOTSON, JENNIFER
CONNOR, and AMENDA MCCONNELL,
individually, and on behalf of others similarly
situated,
Plaintiff, Case No. 2:25-cv-13323 (BRM) (MAH)
v. OPINION
TZ INSURANCE SOLUTIONS LLC d.b.a.
TRANZACT, a New Jersey Company,
Defendant.
MARTINOTTI, DISTRICT JUDGE
Before the Court is Defendant TZ Insurance Solutions LLC’s (“Defendant”) appeal of
Magistrate Judge Hammer’s July 29, 2026 Order (the “Order”) (ECF No. 73) granting conditional
certification, or, in the alternative, request to certify an interlocutory appeal. (ECF No. 75.)
Plaintiffs Kimberly Dotson (“Dotson”), Jennifer Connor (“Connor”), and Amenda McConnell
(“McConnell”) (collectively, “Plaintiffs”) filed an opposition (ECF No. 84) and Defendant filed a
reply (ECF No. 85). Having reviewed the parties’ submissions filed in connection with this appeal
and having declined to hold oral argument pursuant to Federal Rule of Civil Procedure 78(b), for
the reasons set forth below and for good cause having been shown, Defendant’s appeal
(ECF No. 75) is DENIED.
I. BACKGROUND
The Court incorporates by reference the underlying facts as accurately set forth in the Judge
Hammer’s March 10, 2026 Opinion. (ECF No. 52.)
On July 15, 2025, Dotson and Connor filed a complaint on behalf of themselves and all
others similarly situated against Defendant alleging violations of 29 U.S.C. § 201, the Fair Labor
Standards Act (“FLSA”), and common law. (ECF No. 1.) Defendant filed an answer to the
complaint (ECF No. 13) and, later, a partial motion to dismiss (ECF No. 20-1).
On October 10, 2026, Plaintiffs filed an amended complaint (the “FAC”) (ECF No. 26),
which Defendant answered (ECF No. 35). On November 17, 2025, Defendant filed another partial
motion to dismiss, requesting this Court dismiss Plaintiffs’ allegations that Defendant willfully
violated the FLSA. (ECF No. 36.) The Court denied Defendant’s partial motion to dismiss. (ECF
Nos. 52, 53.)
Plaintiffs are current and former employees of Defendant. (ECF No. 26 ¶¶ 38, 41, 44.)
They were or are employed as hourly insurance sales agents (“Sales Agents”) and all worked
remotely for Defendant. (Id.) Plaintiffs allege, as relevant to this appeal, Defendant violated the
FLSA by not compensating Sales Agents for all time worked. (Id. ¶¶ 14–16.) Specifically, Plaintiffs
allege two violations of the FLSA. First, they allege Defendant failed to compensate Sales Agents
for pre-shift, meal-period, and post-shift bootup and boot down work Defendant required them to
complete. (Id. ¶¶ 75–95.) Second, Defendant underpaid Sales Agents for overtime because it
excluded non-discretionary bonus and commission payments from the Sales Agents’ regular rate
of pay. (Id. ¶ 125.)
On February 11, 2026, Plaintiffs filed a motion for conditional certification of a collective
of similarly situated Sales Agents. (ECF No. 46.) Defendant opposed the motion (ECF No. 63),
Plaintiffs responded (ECF No. 67) and Defendant filed a sur-reply (ECF No. 71).
On July 29, 2026, Judge Hammer granted Plaintiffs’ motion for conditional certification.
(ECF Nos. 72, 73.) On August 12, 2026, Defendant brought this appeal of Judge Hammer’s
Opinion and Order. (ECF No. 75.)
II. LEGAL STANDARD
With respect to a district judge’s review of a magistrate judge’s decision, Federal Rule of
Civil Procedure 72(a) states: “The district judge . . . must consider timely objections and modify
or set aside any part of the order that is clearly erroneous or is contrary to law.” Similarly, this
Court’s Local Rules provide “[a]ny party may appeal from a Magistrate Judge’s determination of
a non-dispositive matter within 14 days” and the district court “shall consider the appeal and/or
cross-appeal and set aside any portion of the Magistrate Judge’s order found to be clearly erroneous
or contrary to law.” L. Civ. R. 72.1(c)(1)(A).
A district judge may reverse a magistrate judge’s order if the order is shown to be “clearly
erroneous or contrary to law” on the record before the magistrate judge. 28 U.S.C. § 636(b)(1)(A)
(“A judge of the court may reconsider any pretrial matter [properly referred to the magistrate judge]
where it has been shown that the magistrate judge’s order is clearly erroneous or contrary to law.”);
Fed. R. Civ. P. 72(a); L. Civ. R. 72.1(c)(1)(A); Haines v. Liggett Grp., Inc., 975 F.2d 81, 93 (3d
Cir. 1992) (describing the District Court as having a “clearly erroneous review function,” permitted
only to review the record that was before the magistrate judge). The burden of showing that a
ruling is clearly erroneous or contrary to law rests with the party filing the appeal. See Marks v.
Struble, Civ. A. No. 03-6225, 347 F. Supp. 2d 136, 149 (D.N.J. 2004).
A district judge may find a magistrate judge’s decision “clearly erroneous” when it is “left
with the definite and firm conviction that a mistake has been committed.” Dome Petrol. Ltd. v.
Empers. Mut. Liab. Ins. Co., Civ. A. No. 84–97, 131 F.R.D. 63, 65 (D.N.J. 1990) (citing United
States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)); accord Kounelis v. Sherrer, Civ. A. No. 04-
4714, 529 F. Supp. 2d 503, 518 (D.N.J. 2008). However, “[w]here there are two permissible views
of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” United States
v. Waterman, 755 F.3d 171, 174 (3d Cir. 2014) (citing Anderson v. Bessemer City, 470 U.S. 564,
574 (1985)). The magistrate judge’s ruling is “contrary to law” if it misinterpreted or misapplied
applicable law. Kounelis, 529 F. Supp. 2d at 518; Gunter v. Ridgewood Energy Corp., Civ. A. No.
95-438, 32 F. Supp. 2d 162, 164 (D.N.J. 1998).
III. DECISION
Defendant argues the Order is clearly erroneous and contrary to law for three reasons. First,
Defendant contends the Order failed to conduct the necessary analysis. (ECF No. 75-1 at 6.)
Second, Defendant contends the Order improperly expanded the definition of the collective beyond
the FAC because there was neither analysis nor supporting evidence that the expanded collective
was similarly situated to Plaintiffs. (ECF No. 85 at 12.) Third, Defendant contends the Order
incorrectly conditionally certified a claim that is not cognizable under the FLSA. (ECF No. 75-1
at 6–7.) Defendant alternatively argues the Court should certify “the question whether the
traditional two-step [FLSA collective certification] framework, including the concept of
‘conditional certification,’ remains a proper standard for facilitating notice under 29 U.S.C.
§ 216(b)” for interlocutory appeal. (Id. at 24.)
The Court addresses each of Defendant’s arguments in turn.
A. Sufficiency of the Order’s Analysis
Defendant argues the Order failed to engage in the analysis necessary for conditionally
certifying Plaintiffs’ proposed collective because, in its view, Judge Hammer did not examine the
affidavits and substantive evidence it submitted. (Id. at 5–6.)
Plaintiffs argue Judge Hammer found, and was correct in finding, that the evidence
Defendant put forth went to the merits of Plaintiffs’ claims which Judge Hammer could not
consider on a motion for conditional certification. (ECF No. 84 at 18–21.)
The Third Circuit has outlined a two-step process for determining whether a plaintiff’s
FLSA suit may proceed as a collective action. Camesi v. Univ. of Pittsburgh Med. Ctr., 729 F.3d
239, 243 (3d Cir. 2013). “The first step, so-called conditional certification, requires a named
plaintiff to make a ‘modest factual showing’—something beyond mere speculation—to
demonstrate a factual nexus between the manner in which the employer’s alleged policy affected
him or her and the manner in which it affected the proposed collective action members.” Halle v.
W. Penn Allegheny Health Sys. Inc., 842 F.3d 215, 224 (3d Cir. 2016) (quoting Zavala v. Wal-Mart
Stores Inc., 691 F.3d 527, 536 n.4 (3d Cir. 2012)). At this step, the Court must “determin[e] whether
‘similarly situated’ plaintiffs do in fact exist” but does not yet have to determine “whether plaintiffs
who have opted in are in fact ‘similarly situated’ to the named plaintiffs.” Zavala, 691 F.3d at 536
n.4 (quoting Myers v. Hertz Corp., 624 F.3d 537, 555 (2d Cir. 2010)). To determine whether the
similarly situated showing has been made, “a court examines ‘both the pleadings and affidavits in
support of or in opposition to the proposed collective action.’” Kaynaroglu v. Avis Budget Grp.,
Inc., 773 F. Supp. 3d 169, 185 (D.N.J. 2025). Similarly situated means “subjected to some common
employer practice that, if proved, would help demonstrate a violation of the FLSA.” Zavala, 691
F.3d at 538.
Accordingly, Judge Hammer was correct in defining the inquiry here as “merely whether
Plaintiffs have shown there are other Sales Agents who have been denied compensation for work
done off-the-clock, including overtime hours, and denied bonuses for reaching specified
enrollment levels.” (ECF No. 72 at 6.) Judge Hammer also conducted the required analysis,
determining Plaintiffs “sufficiently demonstrate[d], via allegations and evidence, the requisite
‘modest factual showing’ of a nexus between the impact of Defendant’s policy on Plaintiffs and
on the proposed collective class members.” (Id.) He further concluded “evidence beyond pure
speculation exists to support Plaintiffs’ and the other Sales Agents’ claims that they performed
similar work for the same employer, were subject to the same policies and procedures, and suffered
the same type of harm arising from the same alleged violation of the FLSA.” (id. at 8.) While Judge
Hammer’s conclusion was based on Plaintiffs’ declarations (id. at 6–8), courts in this circuit have
consistently found declarations sufficient to satisfy Plaintiff’s burden of demonstrating similarly
situated plaintiffs exist. See Schelhas v. Hackensack Meridian Health, Inc., No. 23-CV-2466, 2026
WL 881581 at *6 (D.N.J. Mar. 31, 2026) (collecting cases).
Judge Hammer did not fail to examine Defendant’s evidence in making this decision, rather
he determined Defendant’s evidence did not go to the issue before him. Judge Hammer held that
Defendant’s arguments that Plaintiffs claims were individualized “[a]re not relevant at this stage”
and its arguments that Plaintiffs had not demonstrated an unlawful practice or policy were merits
disputes. (ECF No. 72 at 9.) This finding was neither clearly erroneous nor contrary to law. The
merits of a plaintiff’s underlying FLSA claim are not assessed at the conditional certification stage.
Goodman v. Burlington Coat Factory, Civ. A. No. 11-4395, 2012 WL 5944000, at *6 (D.N.J. Nov.
20, 2012). The evidence Defendant alleges Judge Hammer ignored went to the merits of Plaintiffs’
claims. Defendant submitted declarations explaining the timekeeping process on which it trains its
Sales Agents (see ECF No. 63–1) and detailing two studies it previously commissioned to estimate
the time it takes its Sales Agents to bootup and login or shut down and log out (see ECF No. 63–
2). This evidence seeks to disprove Plaintiffs’ allegations of the timekeeping processes Defendant
required them to perform and the amount of time the processes took Plaintiffs: the merits of
Plaintiffs’ claims. It was proper for Judge Hammer not to make those determinations at this stage.
B. Propriety of the Collective’s Definition
Defendant argues Judge Hammer failed to conduct the analysis required to conditionally
certify a collective and he accordingly certified an overbroad collective. (ECF No. 85 at 10–13.)
Specifically, Defendant contends non-remote and remote Sales Agents are not similarly situated
and Judge Hammer failed to find that they are. (ECF No. 75-1 at 19–21.)
Plaintiffs argue Judge Hammer was not bound by the collective definition alleged in the
FAC and the Order could properly find all Sales Agents were similarly situated based on the
evidence put forth. (ECF No. 84 at 16.)
Judge Hammer held Plaintiffs made the requisite showing that they were similarly situated
to all Sales Agents, relying on Plaintiffs’ declarations alleging Sales Agents were subject to the
same company-wide policies. (ECF No. 72 at 7–8.) Defendant’s allegation that “no facts exist in
the record to support such a finding” is incorrect. Rather, the Plaintiffs’ declarations alleged the
same policies applied to all Sales Agents (see generally ECF Nos. 46-2, 46-3, 46-4, 46-5) and
Defendant’s declarations described both timekeeping training and timekeeping policies applicable
to all Sales Agents (see ECF No. 63-1) and its bootup and login compensation policy for all Sales
Agents (ECF Nos. 63-1, 63-2). Plaintiffs also submitted Defendant’s job postings for the Sales
Agent position, both remote and location-specific, which listed uniform responsibilities for all
Sales Agents. (ECF No. 46-6.) This evidence can support a finding that all Sales Agents are subject
to the same treatment by Defendant, amounting to the required modest factual showing that all
Sales Agents would also be subject to the practices Plaintiffs allege. Judge Hammer was not yet
required to determine the members of the collective were in fact similarly situated to the named
plaintiffs. See Symczyk v. Genesis Healthcare Corp., 656 F.3d 189, 193 (3d Cir. 2011), rev’d on
other grounds, 596 U.S. 66 (2013) (explaining it is not until the final certification step that the
court makes a “conclusive determination as to whether each [opt-in plaintiff to the collective] is in
fact similarly situated to the named plaintiff[s]”). Afterall, “some courts have required nothing
more than ‘substantial allegations that the putative class members were together the victims of a
single decision, policy or plan.’” Moeck v. Gray Supply Corp., Civ. A. No. 03-1950, 2006 WL
42368, at *4 (D.N.J. Jan. 5, 2006) (citing Morisky v. Public Serv. Elec. & Gas Co., 111 F. Supp. 2d
493, 497 (D.N.J. 2000)).
C. Cognizability of Claim Conditionally Certified
Defendant argues the Judge Hammer improperly conditionally certified a breach of
contract claim as an FLSA claim and the Order could not have certified that claim because
Plaintiffs did not plead it in the FAC. (ECF No. 75-1 at 21–24; ECF No. 85 at 13–16.)
Plaintiffs argue their claim is cognizable under the FLSA and Defendants arguments are
merits disputes improper for the conditional certification stage. (ECF No. 84 at 23–25.)
First, Defendant’s allegation that Judge Hammer certified a collective for a claim not
alleged in the FAC is unfounded. Plaintiffs’ FAC alleged Defendant’s “fail[ure] to include all
commissions and non-discretionary bonus payments in the calculation of the Sales Agents’
overtime rates” was a violation of the FLSA for Plaintiffs and members of the collective. (ECF
No. 26 ¶ 144; see also id. ¶¶ 125, 141).1
1 This Court previously noted this allegation was put forth in the FAC. (ECF No. 52 at 7.)
Defendant also learned this was an FLSA allegation in the parties’ briefings on Defendant’s partial
motion to dismiss, when Defendant argued that Plaintiffs’ allegation did not support the plausible
inference of willfulness required for a willful violation of the FLSA. (ECF No. 41 at 9.)
Second, Defendant’s allegation that Plaintiffs’ claim is not cognizable under the FLSA
misconstrues the claim Judge Hammer conditionally certified. Plaintiffs sought conditional
certification for their claim that Defendant “paid all Sales Agents at a deficient overtime rate
because it did not incorporate bonuses earned (but not paid) into the calculation of [the Sales
Agents’] overtime rate, as required by the FLSA.” (ECF No. 46 at 21–22.) Defendant is correct in
stating “Plaintiffs’ FAC [did] not plead that the failure to pay certain bonus payments constitutes a
violation of the FLSA” and “Plaintiffs expressly plead that Defendant’s failure to pay commissions
at an agreed rate constitutes a ‘breach of contract.’” (ECF No. 75-1 at 22.) However, that claim is
separate from the FLSA claim Judge Hammer conditionally certified: insufficient overtime pay as
a result of Defendant’s failure to pay the bonus payments.
The Third Circuit has declined to accept the view that the “regular rate of pay” under the
FLSA “must always be the actual wages.” Vadino v. A. Valey Eng’rs, 903 F.2d 253, 266 (3d Cir.
1990). In situations where a Plaintiff both disputes receiving the regular rate of pay and alleges a
resulting FLSA violation, the Third Circuit envisioned the Plaintiff could concurrently bring these
claims but the FLSA claim would be dependent on the resolution of the other claim. Id. This is
precisely what Plaintiffs did here: they brought their claims concurrently. While Defendant is
correct that a breach of contract action is not cognizable under the FLSA, a claim that an overtime
rate was not calculated in compliance with the FLSA is. Accordingly, it was not contrary to law
for Judge Hammer to conditionally certify the collective action on this claim.
D. Interlocutory Review
Defendant argues this Court should certify for interlocutory appeal the question of whether
the two-step framework the Third Circuit employs to facilitate notice for FLSA actions remains
proper. (ECF No. 75-1 at 24.)
Plaintiffs argue Defendant is seeking to relitigate Third Circuit precedent and does not meet
the statutory requirements for interlocutory appeal. (ECF No. 84 at 26.)
Interlocutory appeals are governed by 28 U.S.C. § 1292(b). A district court may certify an
order for interlocutory appeal if: (1) the order involves a controlling question of law, (2) there is a
“substantial ground for difference of opinion” about that question of law, and (3) immediate appeal
may materially advance the ultimate termination of the litigation. 28 U.S.C. § 1292(b); Katz v.
Carte Blanche Corp., 496 F.2d 747, 754 (3d Cir. 1974). However, a district court should certify an
interlocutory appeal “sparingly” and “only in ‘exceptional circumstances’ that justify a departure
from the basic policy of postponing review until the entry of the final order.” Fiscus v. Combus
Finance AG, Civ. A. No. 03-1329, 2006 WL 2845736, at *1 (D.N.J. Sept. 28, 2006) (citing Hulmes
v. Honda Motor Co., 936 F. Supp. 195, 208 (D.N.J. 1996)); see also Kapossy v. McGraw-Hill, Inc.,
942 F. Supp. 996, 1001 (D.N.J. 1996) (“A motion should not be granted merely because a party
disagrees with the ruling of the district judge.” (internal quotation marks omitted)). Even if the
moving party meets all criteria under § 1292(b), the district court may still deny certification as
“permission to appeal is wholly within the discretion of the courts.” Bachowski v. Usery, 545 F.2d
363, 368 (3d Cir. 1976); see also United States v. Riddick, 669 F. App’x 613, 613 n.2 (3d Cir. 2016)
(finding an order denying a request to certify questions for appeal was unreviewable (citing
Forsyth v. Kleindienst, 599 F.2d 1203, 1208 (3d Cir. 1979))).
The Court evaluates each Section 1292(b) criteria in turn.
1. Controlling Question of Law
An interlocutory appeal is typically reserved for “pure” and “controlling” questions of law.
See 28 U.S.C. § 1292(b). A “pure” question of law is one pertaining to the “meaning of a statutory
or constitutional provision, regulation, or common law doctrine.” ADP, LLC v. Ultimate Software
Grp., Inc., Civ. A. No. 16-8664, 2018 WL 1838003, at *4 (D.N.J. Apr. 17, 2018) (quoting
Ahrenholz v. Bd. of Trs. of Univ. of Illinois, 219 F.3d 674, 676 (7th Cir. 2000)). “[Q]uestions about
a district court’s application of facts of the case to established legal standards are not controlling
questions of law for purposes of section 1292(b).” Juice Ent., LLC v. Live Nation Ent., Inc., 353 F.
Supp. 3d 309, 312–13 (D.N.J. 2018) (quoting Morgan v. Ford Motor Co., Civ. A. No. 06-1080,
2007 WL 269806, at *2 (D.N.J. Jan. 25, 2007)); see also In re Barsan Contractors, Civ. A. No.
04-12362, 2010 WL 3907116, at *5 (D.N.J. Sept. 30, 2010) (“Misapplication of the law to the facts
is not a question of law.”). In other words, interlocutory appeal is generally “not suitable for
reviewing mixed questions of law and fact.” Johnson v. Nat’l Collegiate Athletic Ass’n, 108 F.4th
163, 183 (3d Cir. 2024) (Porter, J., concurring) (citing Resol. Tr. Corp. v. Cityfed Fin. Corp., 57
F.3d 1231, 1236 n.6 (3d Cir. 1995)). “A question is ‘controlling’ if its incorrect disposition would
require reversal of the final judgment.” Kapossy, 942 F. Supp. at 1001 (internal quotation marks
omitted).
Defendant argues the question of which framework the Court must apply is a controlling
question of law because Judge Hammer’s Order was premised on the two-step certification
framework, as this Court’s order will be. (ECF No. 85 at 16.)
Plaintiffs argue this is not a controlling question of law, but rather an application of facts
to established legal standards. (ECF No. 84 at 28.)
The question of what framework applies for determining whether a plaintiff’s FLSA suit
may proceed as a collective action is a controlling question of law here. It is an interpretation of
the meaning of 29 U.S.C. § 216(b) and application of the incorrect framework would require
reversal.
2. Substantial Ground for Difference of Opinion
Substantial ground for a difference of opinion “must arise out of genuine doubt as to the
correct legal standard.” Hulmes, 936 F. Supp. at 208. “A party’s disagreement with the district
court’s ruling does not constitute a ‘substantial ground for difference of opinion’ within the
meaning of § 1292(b).” Id. “The clearest evidence of ‘substantial grounds for difference of opinion’
is where ‘there are conflicting interpretations from numerous courts.’” Knopick v. Downey, 963 F.
Supp. 2d 378, 398 (M.D. Pa. 2013) (citing Beazer E., Inc. v. The Mead Corp., Civ. A. No. 91-408,
2006 WL 2927627, *2 (W.D. Pa. Oct. 12, 2006)). However, a court may find a lack of substantial
grounds for a difference of opinion even if district and circuit courts have arrived at contrary
holdings, provided those holdings are not controlling. See Smith v. Conseco Life Ins. Co., Civ. A.
No. 13-5253, 2014 WL 5361746 (D.N.J. Oct. 21, 2014) (citing Interfaith Cmty. Org., Inc. v. PPG
Indus. Inc., 702 F. Supp. 2d 295, 319 (D.N.J. Mar. 26, 2010)).
Defendant argues there is substantial ground for difference of opinion because three federal
courts of appeals have recently reexamined and rejected the two-step framework Judge Hammer
used to decide Plaintiffs’ motion for conditional certification. (ECF No. 75-1 at 26–28.)
Plaintiffs argue disagreement between the Third Circuit and other circuits does not create
substantial ground for difference of opinion. (ECF No. 84 at 29–33.)
Here, the Third Circuit is clear on which framework applies: the two-step framework. See
Camesi, 729 F.3d at 243 (citing Zavala, 691 F.3d at 535 (“Courts in our Circuit follow a two-step
process for deciding whether an action may properly proceed as a collective action under the
FLSA.”)); see also In re Citizens Bank, N.A., 15 F.4th 607, 611 (3d Cir. 2021) (explaining the two-
step process of conditional certification and certification). Accordingly, this Court finds lack of
substantial grounds for a difference of opinion, as the decisions of the Fifth, Sixth, and Seventh
Circuit Defendant cites to are not binding precedent. See Freedom Med., Inc. v. Gillespie, 2013
WL 3819366, at *5 (E.D. Pa. July 24, 2013) (“A circuit split between our Court of Appeals and
the courts of appeals for other circuits does not make Third Circuit precedent any less binding and
cannot be said to create a ‘substantial ground for difference of opinion’ when it comes to issues of
law before this Court.”).
3. Materially Advance the Ultimate Termination of the Litigation
An interlocutory appeal materially advances the litigation’s ultimate termination if it will:
(1) eliminate the need for trial; (2) eliminate complex issues from the action; or (3) eliminate issues
that make discovery more difficult and more expensive. In re Dwek, Civ. A. No. 10-4259, 2011
WL 487582, *4 (D.N.J. Feb. 4, 2011) (citing L.R. v. Manheim Twp. Sch. Dist., 540 F. Supp. 2d.
603, 613 (E.D. Pa. Mar. 26, 2008)). A critical factor is whether the interlocutory appeal will cause
excessive delay. See Hulmes, 936 F. Supp. at 212 (noting “[d]elay is a particularly strong ground
for denying appeal if certification is sought from a ruling made shortly before trial” (quoting
Baranski v. Serhant, 602 F. Supp. 33, 36 (N.D. Ill. 1985)).
Defendant argues an interlocutory appeal will materially advance the termination of this
litigation because resolving the issue of certification “may avoid years of notice, opt-in discovery,
and collective action proceedings conducted under a legal framework that may ultimately be
rejected” and the issue “concerns the threshold mechanism by which additional plaintiffs [will]
enter the litigation.” (ECF No. 85 at 17.)
Plaintiffs argue an interlocutory appeal will delay the termination of this litigation because
it will not eliminate the need for a trial, eliminate complex issues, or make discovery easier and
less costly, but rather have the opposite result. (ECF No. 84 at 34.)
Here, certification would not eliminate the need for trial as it would only alter how the
Court determines which Plaintiffs receive notice and an opportunity to opt-in. Plaintiffs’
substantive claims would remain regardless of certification. It does, however, have the potential to
eliminate complex issues and issues that make discovery more difficult and expensive because it
could reduce the potential number of opt-in plaintiffs which in turn could decrease the amount of
discovery conducted in this matter as well as decrease the number of similarly situated
determinations this Court must make.
Nevertheless, as explained in the foregoing, Defendant failed to carry its burden of
demonstrating all three requirements for interlocutory appeal are met in its appeal of the Magistrate
Judge’s Order (ECF No. 75-1) or in their Reply Brief to Plaintiff’s Opposition (ECF No. 85). Even
if Defendant had met its burden, the Court would still retain discretion to deny the request, which
it finds good cause to do. Therefore, Defendant’s request to certify the issue of which framework
applies for interlocutory appeal is denied.
IV. CONCLUSION
For the reasons set forth above, Defendant’s appeal and alternative request for certification
of an interlocutory appeal (ECF No. 75) is DENIED. An appropriate order follows.
Date: October 12, 2026 /s/ Brian R. Martinotti
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE