This is not to say that variance in damages across class members cannot serve as a basis for decertification. In fact, in a recent case cited by DirecTV in its supplemental brief, the Seventh Circuit in Espenscheid v. DirectSat USA, LLC, 705 F.3d 770 (7th Cir.2013) upheld the decertification of a collective action for this very reason. Though not controlling, Espenscheid gives pause for thought because it involved similar claims and echoes many of the concerns raised by Defendants.

On December 30, 2008, pursuant to Federal Rule of Civil Procedure 23, the Court certified an IMWL class of "all individuals who were employed by DirectSat as service technicians or production technicians in the state of Illinois between December 3, 2006 and June 11, 2008." See Dkt. 40. Defendants now move to decertify that class, arguing that the Seventh Circuit's recent decision in Espenscheid v. DirectSat USA, LLC, 705 F.3d 770 (7th Cir. 2013), requires decertification. For the following reasons, the Court agrees and grants Defendants' motion.

A collective action under § 216(b) differs from a class action under Federal Rule of Civil Procedure 23 in that Rule 23 binds class members unless they opt out of the class, whereas collective action members are bound under § 216(b) only if they opt in to the action by providing their written consent. Espenscheid v. DirectSat USA, LLC, 705 F.3d 770, 771 (7th Cir. 2013). Although the Seventh Circuit has not decided this issue, "the majority of courts . . . have adopted a two-step process for determining whether an FLSA lawsuit should proceed as a collective action."

It is unclear whether it would similarly import the other requirements of Rule 23. In Espenscheid v. DirectSat USA, LLC , 705 F.3d 770 (7th Cir. 2013), the Seventh Circuit did suggest that the section 216(b) and Rule 23 standards are already "largely merged ..., though with some terminological differences." Id. at 772.

This case satisfies the policy behind FLSA collective actions and Congress's remedial intent by consolidating many small, related claims of employees for which proceeding individually would be too costly to be practical. See Hoffmann-La Roche Inc. v. Sperling , 493 U.S. 165, 170, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989) (noting that FLSA collective actions give plaintiffs the "advantage of lower individual costs to vindicate rights by the pooling of resources"); Espenscheid v. DirectSat USA, LLC , 705 F.3d 770, 776 (7th Cir. 2013) ("[W]here it is class treatment or nothing, the district court must carefully explore the possible ways of overcoming problems in calculating individual damages."). Because all FTS Technicians allege a common, FLSA-violating policy, "[t]he judicial system benefits by efficient resolution in one proceeding of common issues of law and fact."

This case satisfies the policy behind FLSA collective actions and Congress's remedial intent by consolidating many small, related claims of employees for which proceeding individually would be too costly to be practical. See Hoffmann–La Roche Inc. v. Sperling, 493 U.S. 165, 170, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989) (noting that FLSA collective actions give plaintiffs the “advantage of lower individual costs to vindicate rights by the pooling of resources”); Espenscheid v. DirectSat USA, LLC, 705 F.3d 770, 776 (7th Cir.2013) ( “[W]here it is class treatment or nothing, the district court must carefully explore the possible ways of overcoming problems in calculating individual damages.”). Because all FTS Technicians allege a common, FLSA-violating policy, “[t]he judicial system benefits by efficient resolution in one proceeding of common issues of law and fact.”

Plaintiffs must present a plan to conduct a class trial. Zinser v. Accufix Research Inst., 253 F.3d 1180, 1189 (9th Cir. 2001), quoting Chin v. Chrysler Corp., 182 F.R.D. 448, 454 (D.N.J. 1998) (plaintiff "bears the burden of demonstrating a suitable and realistic plan for trial of the class claims"). Absent an acceptable trial plan, the court should decertify. Valentino v. Carter-Wallace, Inc., 97 F. 3d 1227, 1234 (9th Cir. 1996) (decertifying class because plaintiff made no showing "of how the class trial could be conducted"); Espenscheid v. DirectSat USA, LLC, 2011 WL 2009967, at *17 (W.D. WI, May 23, 2011) (decertifying class because plaintiffs failed to "propos[e] a trial plan that would lead to a fair result"), aff'd, 705 F. 3d 770 (7th Cir. 2013). B. Decertification under FLSA

Class counsel responded by "opposing bifurcation and subclasses and refusing to suggest a feasible alternative, including a feasible method of determining damages." Espenscheid v. DirectSat USA, LLC, 705 F.3d 770, 775-76 (7th Cir. 2013). Eventually, class counsel acquiesced to dividing the class into subclasses, but still maintained that "it would be 'difficult' for [them] to provide an objective framework identifying each class member within the current class definitions without making individualized findings of liability."

A typical class action includes all putative plaintiffs that meet the class's definition unless they opt out, whereas plaintiffs who want to become part of a collective action must affirmatively opt-in. SeeAlvarez , 605 F.3d at 448 ; see alsoEspenscheid v. DirectSat USA, LLC , 705 F.3d 770, 771 (7th Cir. 2013). FLSA says as much: "[n]o employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought."

Walling v. National Ice & Fuel Corp., 158 F.2d 28, 29 (7th Cir. 1946). The standards for class certification under Rule 23 have largely merged with those for certifying a collective action, Espenscheid v. DirectSat USA, LLC, 705 F.3d 770, 772 (7th Cir. 2013), and under Rule 23, the commonality inquiry requires that the class have a "common contention" that is "capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke." Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011).