Chao v. Hotel Oasis, Inc.

United States Court of Appeals
For the First Circuit

No. 06-1021

ELAINE L. CHAO, Secretary of Labor,
United States Department of Labor,

Plaintiff, Appellee,

v.

HOTEL OASIS, INC., d/b/a PARADOR OASIS;
LIONEL LUGO-RODRÍGUEZ, Individually and as President
of Hotel Oasis, Inc.,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Daniel R. Domínguez, U.S. District Judge]

Before

Torruella, Circuit Judge,
Selya and Cyr, Senior Circuit Judges.

Mauricio Hernández-Arroyo, for appellants.
Mary J. Rieser, Attorney, U.S. Department of Labor, Office of
the Solicitor, Fair Labor Standards Division, with whom Jonathan L.
Snare, Acting Solicitor of Labor, Steven J. Mandel, Associate
Solicitor, and Paul L. Frieden, Counsel for Appellate Litigation,
were on brief, for appellee.

June 28, 2007
 TORRUELLA, Circuit Judge. This case arises from an

investigation of defendant-appellant Hotel Oasis, Inc. ("Oasis") by

the Wage and Hour Division of the U.S. Department of Labor. The

district court found multiple minimum wage and overtime violations,

and entered judgment against Oasis and its president. The

employers appeal the district court's judgment, alleging error in

the court's failure to set aside a stipulation entered prior to

trial, its conclusion that Oasis's president is personally liable

as an employer, and its discretionary decision to award liquidated

damages. We affirm on all grounds.

I. Background

Oasis operates a hotel and restaurant facility in

southwestern Puerto Rico. Defendant-appellant Dr. Lionel Lugo-

Rodríguez ("Lugo") is the president of the corporation, runs the

hotel, and manages its employees. Oasis's records and employee

testimony show that between October 3, 1990 and June 30, 1993,1

employees were paid less than minimum wage, were not paid for

training time or meetings held during non-working hours, were paid

in cash "off the books," and were not paid appropriately for

overtime. Oasis also maintained two sets of payroll records for

the same employees, covering the same time periods, one showing

1
Oasis had been investigated twice before, and violations of
minimum wage and overtime laws had been found on both occasions.
Oasis agreed both times to pay the back wages and comply in the
future.

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fewer hours at a higher rate, and the other showing more hours at

a sub-minimum wage rate. Oasis contends that two sets of books

were necessary, one for temporary employees and one for permanent

employees.

On April 5, 1994, the Secretary of Labor (the

"Secretary") filed a complaint in the United States District Court

for the District of Puerto Rico against Oasis and Lugo

(collectively, "Defendants"), alleging violations of the minimum

wage, overtime, and recordkeeping provisions of the Fair Labor

Standards Act ("FLSA"), 29 U.S.C. §§ 215-216. The Secretary also

sought liquidated damages pursuant to § 216(c), and a permanent

injunction pursuant to § 217, enjoining Oasis from further

violations of the FLSA. In their answer to the complaint,

Defendants raised an affirmative defense that the FLSA did not

apply to Oasis because Oasis's "annual dollar value" ("ADV") was

less than $500,000. See 29 U.S.C. § 203(s)(1)(a).

On February 9, 1996, during a pre-trial conference, Jorge

Sala, then-counsel for Oasis, stipulated that Oasis had an ADV of

at least $500,000 per year from April 1, 1991 to October 1, 1995

(the "Sala Stipulation").2 In exchange, the Secretary agreed that

Oasis was in compliance with the FLSA thereafter. Defendants point

2
The minutes for that conference stated that Defendants "withdraw
the ADV defense." The minutes were amended on April 22, 1996, to
reflect that Defendants "waive[d] the ADV defense though the third
quarter of 1995."

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out that discovery had not been concluded at the time Sala entered

the stipulation, and that Defendants had refused to execute a

similar stipulation mailed to them ten weeks earlier by counsel for

the Secretary. On July 18, 1996, Sala filed a motion to withdraw

as counsel, and Defendants hired a new attorney.

During a September 6, 1996 telephone status conference,

Defendants attempted to renew their ADV defense, apparently

claiming that Sala did not have the authority to enter into the

stipulation.3 On September 16, 1996, the district court issued an

order reaffirming the Sala Stipulation and stating that the

stipulation would not be set aside absent "the most extraordinary

extenuating and grievous circumstances."

At a June 1997 pre-trial conference, Defendants asserted

for the first time that the Sala Stipulation was based on a

computational mistake. The district court once again upheld the

stipulation, ruling that the Secretary could rely on the

stipulation to meet its burden to prove FLSA coverage, but that

Defendants would be allowed to adduce evidence at trial to prove

that Oasis's ADV was less than $500,000 for the relevant periods.

A bench trial began on June 23, 1997. After five

successive days, the trial was continued for over two years,

3
Defendants' reasoning is gleaned from a May 15, 2002 order in
which the district court indicated that prior to June 1997,
Defendants had relied solely on Sala's lack of authorization as
grounds for setting aside the stipulation.

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resuming on February 7, 2000. On July 13, 1998, more than a year

after the trial commenced, Defendants submitted a motion for

summary judgment, which included expert affidavits concluding that

Oasis did not meet the ADV threshold. The district court refused

to entertain the motion for summary judgment because it was

submitted well after the trial began. In addition, the court

precluded Defendants from introducing the accompanying expert

testimony at trial because "[n]either the expert nor the report

[was] identified and disclosed to Plaintiff before the trial

commenced."

At trial in February 2000, Defendants attempted to

introduce Rule 1006 summaries,4 which purported to show that

Oasis's ADV was less than $500,000 for some of the periods covered

by the Sala Stipulation. The Secretary's counsel objected on

several grounds over the course of the trial, including that the

summaries were inadmissible because they were based on hearsay, and

that he had not been provided the summaries before trial and

therefore could not concede their numerical accuracy. For these

reasons, the district court refused to admit the summaries at that

point. Instead, after testimony was concluded on all subjects

4
Federal Rule of Evidence 1006 provides in full: "The contents
of voluminous writings, recordings, or photographs which cannot
conveniently be examined in court may be presented in the form of
a chart, summary, or calculation. The originals, or duplicates,
shall be made available for examination or copying, or both, by
other parties at reasonable time and place. The court may order
that they be produced in court."

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other than the ADV, the court adjourned the trial, giving

Defendants thirty days to comply with Rule 1006 and the Secretary

another sixty days to review the data and develop her position.

The trial was continued several times thereafter. On

October 19, 2000, the Secretary filed a memorandum in support of

her motion to preclude Defendants from presenting evidence contrary

to the Sala Stipulation. Defendants never formally opposed the

motion, and on May 15, 2002, the district court granted the motion.

The court explained that it had given Defendants "an opportunity to

demonstrate that the Sala Stipulation was wrong," but that "the

record is bereft of any solid argument developed by Oasis which may

point to 'extraordinary extenuating or grievous circumstance[s]'

which might justify setting the Sala Stipulation aside." With no

evidence of "a clear manifest injustice," the court held Defendants

to the stipulation based on the long-standing principle that a

party is bound by its attorney's actions.

On June 28, 2002, having reaffirmed the Sala Stipulation,

the district court nevertheless offered Defendants an alternative

way to submit the Rule 1006 summaries in lieu of an evidentiary

hearing: "[the parties] shall file a joint proffer of evidence or

offer of proof, to preclude the necessity of the hearing; it shall

be akin to a book of evidence that is offered, albeit not

admitted." Although the court's May 15, 2002 order holding

Defendants to the Sala Stipulation was final, the court felt that

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the proffered evidence would give the Court of Appeals a complete

record on which to decide the ADV issue on the merits.

A year later, on June 20, 2003, the district court

entered an order granting the Secretary's unopposed motion for

partial summary judgment on the issue of Lugo's personal liability

as an employer under the FLSA.5 In addition, the order again

addressed the Sala Stipulation and the Rule 1006 summaries.

Although neither party had complied with the court's alternative

method of submitting the Rule 1006 evidence, the court granted them

another twenty days to file their offers of proof on the ADV issue.

The court also reminded Defendants that "[t]he Sala Stipulation was

bilateral and had a 'quid pro quo' for the employer, because the

Department of Labor, as part of the announced stipulation, agreed

that Defendants had been in compliance since October[] 1995."

Defendants finally submitted the Rule 1006 summaries on July 17,

2003, and various memoranda and supplemental filings by both

parties followed.

After further hearings, the district court entered

judgment in favor of the Secretary on October 31, 2003. The

5
The motion had been granted during a pre-trial conference on
June 11, 1997, after hearing the parties' positions on the issue.
The parties were aware of the court's decision but the order had
not been entered into the docket. The issue of Lugo's liability
was rehashed on several occasions throughout the course of
litigation, as noted in the court's November 11, 2005 Amended
Opinion and Order, denying Defendants' final motion for
reconsideration.

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accompanying Opinion & Order denied a number of "Rule 50 Motions"

filed by Defendants over the course of the proceedings, the most

relevant to this appeal being a motion not normally thought of as

within the compass of Rule 50 -- a motion to reconsider the court's

denial of Defendants' July 13, 1998 motion for summary judgment on

the ADV issue. The opinion also once again explained the history

of both the Sala Stipulation and the issue of Lugo's personal

liability as an employer. The court noted that its grant of

partial summary judgment on Lugo's status was further supported by

Defendants' admissions at trial that "Lugo had ultimate control

over [Oasis]'s operations, and over employment practices."

On June 21, 2005, the court amended the judgment,

ordering Oasis to pay $141,270.64 in back wages and an equal amount

in liquidated damages to 282 current and former employees. Oasis

filed one last motion for reconsideration on July 1, 2005, asking

the court to reconsider its decisions on liquidated damages and

Lugo's personal liability as an employer. The district court

issued an amended opinion and order on November 1, 2005, denying

the motion for reconsideration on the ground that Defendants were

merely rehashing old arguments. Defendants appeal from the final

judgment and from the court's denial of their last motion for

reconsideration.

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 II. Discussion

Defendants raise three issues on appeal. First, they

claim that the district court should have set aside the Sala

Stipulation and allowed them to prove the ADV defense at trial.

Second, they challenge the district court's finding that Lugo is

personally liable as an employer under the FLSA. Third, they argue

that the district court erred in awarding liquidated damages based

on willfulness. We address each issue in turn.

A. Sala Stipulation

The district court refused to set aside the Sala

Stipulation based on the general principle that "stipulations of

attorneys made during a trial may not be disregarded or set aside

at will." T I Fed. Credit Union v. DelBonis, 72 F.3d 921, 928 (1st

Cir. 1995) (quoting Marshall v. Emersons Ltd., 593 F.2d 565, 569

(4th Cir. 1979)); see also Rosario-Díaz v. González, 140 F.3d 312,

315 (1st Cir. 1998) ("Attorneys represent clients, and as a general

rule an attorney's blunder binds her client."). As the district

court correctly noted, stipulations are highly favored in our

judicial system as a means of "expedit[ing] a trial and

eliminat[ing] the necessity of much tedious proof." T I Fed.

Credit Union, 72 F.3d at 928 (quoting Burstein v. United States,

232 F.2d 19, 23 (8th Cir. 1956)). Once entered, parties are "not

generally free to extricate themselves . . . [unless] 'it becomes

apparent that it may inflict a manifest injustice upon one of the

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contracting parties.'" Id. (quoting Marshall, 593 F.2d at 568).

Accordingly, "a party may be relieved of a stipulation for good

cause -- which means, in a nutshell, that good reason must exist

and that relief must not unfairly prejudice the opposing party or

the interests of justice." Am. Honda Motor Co. v. Richard

Lundgren, Inc., 314 F.3d 17, 21 (1st Cir. 2002). One "good reason"

for setting aside a stipulation is "where it becomes evident that

'the agreement was made under a clear mistake.'" T I Fed. Credit

Union, 72 F.3d at 928 (quoting Brast v. Winding Gulf Colliery Co.,

94 F.2d 179, 181 (4th Cir. 1938) (setting aside a stipulation as to

tax liability where the calculation had been based on a

misunderstanding of law)).

Here, the district court gave Defendants an opportunity

to prove that the stipulation was based on a mistake, but

Defendants failed to make the required showing.6 Defendants do not

challenge the district court's rulings with respect to the

6
Defendants argued that the district court misplaced the burden
of proof on the ADV issue, by requiring Defendants to prove a lack
of coverage. Defendants, however, stipulated that Oasis's ADV met
the statutory threshold, and the district court affirmed the
stipulation, which relieved the Secretary of her burden to prove
FLSA coverage. See, e.g., Eng'g Contractors Ass'n of S. Fla., Inc.
v. Metro. Dade County, 122 F.3d 895, 905 (11th Cir. 1997) (citing
Fed. R. Civ. P. 16(c)(3)). The burden was then properly on
Defendants to show good cause for setting aside the stipulation.
See Cabán Hernández v. Philip Morris USA, Inc., -- F.3d --, No. 06-
1968, 2007 WL 1248414, at *3 (1st Cir. 2007) ("The appellants have
shown nothing that would constitute good cause or otherwise justify
relief from the stipulation.").

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inadmissibility of the Rule 1006 summaries7 or the expert evidence

presented with their ill-timed summary judgment motion. We have

scoured the record, and, like the district court, we find no

indication of any properly supported arguments that Oasis did not

meet the ADV threshold.

Alternatively, Defendants argue that the Sala Stipulation

is procedurally invalid because it was not in writing or signed by

the parties. They assert that stipulations between attorneys are

not binding unless the represented parties assent to the

stipulation, and that stipulations usually must be in writing

unless made in open court. Defendants also posit that stipulations

must be signed by all parties when required by local rules, citing

Cavallini v. State Farm Mutual Auto Insurance Co., 44 F.3d 256, 266

(5th Cir. 1995) (applying Tex. R. Civ. P. 11). The District Court

for the District of Puerto Rico, however, has no specific rule

requiring all agreements between parties to be in writing.8

7
Defendants complain that they did not get a hearing on the Rule
1006 evidence, as promised by the court. Defendants did not,
however, oppose the Secretary's motion to preclude them from
offering any evidence contrary to the stipulation, which rendered
the Rule 1006 evidence unnecessary. Moreover, Defendants then
agreed to file a joint proffer of evidence in lieu of a hearing.
8
Note, however, that Local Rule 16(j)(2) does specifically
require stipulations extending discovery deadlines to be in
writing. The closest rule otherwise on point is Local Rule 11,
which requires that all documents submitted to the court be signed
by an attorney or pro se litigant.

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 In any event, the district court memorialized the Sala

Stipulation -- entered into by the attorneys at a pre-trial status

conference before the district court judge -- in a September 16,

1996 order. Defendants did not object to the order, move to strike

the reference to the stipulation, or request reconsideration. The

order then became the law of the case, and any formalities

suggested by Defendants with respect to the stipulation were

rendered moot. See Fed. R. Civ. P. 16(e) ("After any conference

held pursuant to this rule, an order shall be entered reciting the

action taken. This order shall control the subsequent course of

the action unless modified by a subsequent order.").

Finally, Defendants attack the subject matter

jurisdiction of the court, arguing that the parties cannot

stipulate to ADV coverage because it is a jurisdictional

requirement of the FLSA. See Aponte v. Tabares, 114 F.3d 1169,

1997 WL 235473, at *1 (1st Cir. 1997) (unpublished opinion)

("Limits on subject matter jurisdiction are not waivable and,

therefore, may be raised at any time."). This argument fails,

however, because ADV coverage is not jurisdictional. As the

Supreme Court recently noted, "Subject matter jurisdiction in

federal-question cases is sometimes erroneously conflated with a

plaintiff's need and ability to prove the defendant bound by the

federal law asserted as the predicate for relief -- a merits-

related determination." Arbaugh v. Y & H Corp., 546 U.S. 500, 511

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(2006) (quoting 2 James Wm. Moore et al., Moore's Federal Practice

§ 12.30[1] (3d ed. 2005)). To mitigate this confusion, the Court

provided clear guidance for distinguishing between the two

concepts: "[W]hen Congress does not rank a statutory limitation on

coverage as jurisdictional, courts should treat the restriction as

nonjurisdictional in character." Id. at 515. The FLSA places the

ADV limitation in the definitions section of the Act, and does not

suggest that the ADV limitation is jurisdictional. See 29 U.S.C.

§§ 203(s)(1)(a), 216. We therefore treat it as an element of the

claim. Cf. Fernández v. Centerplate/NBSE, 441 F.3d 1006, 1009

(D.C. Cir. 2006) ("While the merits of Fernandez's FLSA claim turn

on whether she was paid for hours worked in excess of forty per

week, nothing in the FLSA suggests that a failure to prove this

particular element of her cause of action requires a dismissal for

lack of jurisdiction."); Minard v. ITC Deltacom Commc'ns, Inc., 447

F.3d 352, 356 (5th Cir. 2006) ("In light of the Supreme Court's

decision in Arbaugh, we conclude that the definition section of the

[Family Medical Leave Act] . . . is a substantive ingredient of a

plaintiff's claim for relief, not a jurisdictional limitation.").

As Defendants have not established good cause for setting

aside the Sala Stipulation, we find no abuse of discretion in the

district court's decision to hold Defendants to their agreement.

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B. Employer Liability

Defendants next challenge the district court's grant of

partial summary judgment on the issue of Lugo's personal liability

as an employer, arguing that the FLSA does not contemplate holding

corporate officers individually liable for the corporation's

statutory violations. We review a district court's grant of

summary judgment de novo, viewing the summary judgment record in

the light most favorable to the non-moving party. Vasapolli v.

Rostoff, 39 F.3d 27, 32 (1st Cir. 1994).

Under the FLSA, an "employer" is "any person acting

directly or indirectly in the interest of an employer in relation

to an employee." 29 U.S.C. § 203(d). The First Circuit has

followed the Supreme Court's lead in interpreting this definition

pursuant to an "economic reality" analysis. Donovan v. Agnew, 712

F.2d 1509, 1510 (1st Cir. 1983) (citing Goldberg v. Whitaker, 366

U.S. 28, 33 (1961)). Accordingly, there may be multiple

"employers" who are simultaneously liable for compliance with the

FLSA. Id.; Baystate Alternative Staffing, Inc. v. Herman, 163 F.3d

668, 675 (1st Cir. 1998).

In Donovan v. Agnew, we acknowledged that "[t]he

overwhelming weight of authority is that a corporate officer with

operational control of a corporation's covered enterprise is an

employer along with the corporation, jointly and severally liable

under the FLSA for unpaid wages." 712 F.2d at 1511 (collecting

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cases). Although we found it "difficult to accept . . . that

Congress intended that any corporate officer or other employee with

ultimate operational control over payroll matters be personally

liable," id. at 1513 (emphasis added), we narrowly determined that

the FLSA did not preclude personal liability for "corporate

officers with a significant ownership interest who had operational

control of significant aspects of the corporation's day to day

functions, including compensation of employees, and who personally

made decisions to continue operations despite financial adversity

during the period of nonpayment," id. at 1514.

We next visited the issue of an individual's personal

liability under the FLSA for corporate employment practices in

Baystate Alternative Staffing, 163 F.3d 668. There, the Department

of Labor's Administrative Review Board had held two corporate

officers and managers personally liable for FLSA violations because

"they had the authority to manage certain aspects of the business's

operations on a day-to-day basis." Id. at 678. Noting our concern

in Agnew that not every corporate employee who exercised

supervisory control should be held personally liable, we identified

several factors that were important to the personal liability

analysis, including the individual's ownership interest, degree of

control over the corporation's financial affairs and compensation

practices, and role in "caus[ing] the corporation to compensate (or

not to compensate) employees in accordance with the FLSA." Id. We

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remanded the personal liability issue in that case based on the

Board's failure to address "the [individuals'] personal

responsibility for making decisions about the conduct of the

business that contributed to the violations of the Act." Id.

Based on the above considerations, we affirm the district

court's judgment holding Lugo personally liable for Oasis's

compensation decisions. Lugo was not just any employee with some

supervisory control over other employees. He was the president of

the corporation, and he had ultimate control over the business's

day-to-day operations. In particular, it is undisputed that Lugo

was the corporate officer principally in charge of directing

employment practices, such as hiring and firing employees,

requiring employees to attend meetings unpaid, and setting

employees' wages and schedules. He was thus instrumental in

"causing" the corporation to violate the FLSA. See id.; see also

Donovan v. Sabine Irrigation Co., 695 F.2d 190, 194-95 (5th Cir.

1983) (holding corporate president who dominated employment

practices liable under FLSA). The FLSA contemplates, at least in

certain circumstances, holding officers with such personal

responsibility for statutory compliance jointly and severally

liable along with the corporation.9 See Agnew, 712 F.2d at 1510.

9
Neither party discusses Lugo's ownership interest in Oasis. In
this case, however, Lugo's personal responsibility outweighs any
ownership considerations. See Agnew, 712 F.2d at 1511 (citing
Sabine Irrigation Co., 695 F.2d at 194-95, for the proposition that
a corporate officer may be held liable even if he has no ownership

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C. Liquidated Damages

Finally, Defendants argue that the district court erred

in awarding liquidated damages based on a finding of willfulness.

The FLSA authorizes the Secretary of Labor to recover on behalf of

employees unpaid wages and overtime compensation plus an equal

amount in liquidated damages. 29 U.S.C. § 216(b), (c). The only

way an employer can escape liquidated damages is to "show[] to the

satisfaction of the court" that it acted in good faith and had

reasonable grounds for believing that its acts did not violate the

FLSA. Id. § 260. Because the FLSA leaves the decision to depart

from the norm of awarding double damages to the district court,

see, e.g., Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 142 (2d

Cir. 1999), we review only for abuse of discretion, McLaughlin v.

Hogar San José, Inc., 865 F.2d 12, 14 (1st Cir. 1989). The

employer's burden on appeal is especially difficult because we

review the district court's factual findings related to good faith

and reasonableness for clear error. See id. ("The district court's

findings of good faith and reasonable grounds are mixed questions

of law and fact, which are subject to the strict standard of review

of Rule 52(a).").

Here, the district court found that Defendants failed to

show good faith or objective reasonableness, referring back to its

findings on willfulness with respect to the applicable statute of

interest).

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limitations. See Reich v. Newspapers of New Eng., Inc., 44 F.3d

1060, 1079 (1st Cir. 1995) ("The FLSA imposes a two-year statute of

limitations unless the violations are shown to be willful, in which

case a three-year period applies." (citing 29 U.S.C. § 255(a))).

For statute of limitation purposes, the court found, inter alia,

that Defendants "intentionally and consistently failed to keep

accurate records of the time worked by its employees[,] . . .

disguised minimum wage, as well as overtime pay violations, . . .

did not record the amounts of cash tips[,] . . . [and] most salient

. . . [to] a finding of willfulness, . . . [paid] employee 'off the

books.'"

The district court's willfulness findings are not clearly

erroneous, and they adequately support the court's decision to

award liquidated damages. Oasis's failure to keep adequate payroll

records and its intentional manipulation of the records it did keep

are sufficient grounds for concluding that Oasis did not act in

good faith or with a reasonable belief that it was in compliance

with the FLSA. Cf. Elwell v. Univ. Hosps. Home Care Servs., 276

F.3d 832, 844 (6th Cir. 2002) ("[T]he fact that an employer

knowingly under-reported its employee's work hours could suggest to

a [fact finder] that the employer was attempting to conceal its

failure to pay overtime from regulators, or was acting to eliminate

evidence that might later be used against it in a suit by one of

its employees."). Moreover, a finding of willfulness means that

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"the employer either knew or showed reckless disregard for the

matter of whether its conduct was prohibited by the statute."

McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988).

Defendants' primary argument on appeal is that the court

had indicated at trial that the willfulness issue was "close" and

that the Secretary had offered no evidence that Oasis acted in

reckless disregard of its statutory obligations. Cf. López v.

Corporación Azucarera de P.R., 938 F.2d 1510, 1515 (1st Cir. 1991)

("Plaintiffs herein have proffered no evidence indicating that [the

employer] acted with knowledge or reckless disregard with respect

to its obligations under FLSA. . . . Therefore, in the first

instance, the court holds that the two-year limitation term is

applicable to this case."). These arguments are unpersuasive.

First, the district court noted its "initial inclination against a

determination of willfulness," but explained that it ultimately

relied on the employees' testimony and Defendants' own documentary

evidence to reach its conclusion regarding willfulness. We have

already determined that the willfulness finding is not clearly

erroneous.10 Furthermore, it is the employer's burden to show good

faith and objective reasonableness, see 29 U.S.C. § 260, and

therefore the Secretary's alleged failure to offer evidence of

10
Some circuits have held that a finding of willfulness precludes
a district court's decision not to award liquidated damages, see,
e.g., Brinkman v. Dep't of Corr., 21 F.3d 370, 372-73 (10th Cir.
1994), but we need not go so far, see Jarrett v. ERC Props., Inc.,
211 F.3d 1078, 1084 (8th Cir. 2000).

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willfulness is not an impediment to the court's decision to refrain

from awarding liquidated damages. The district court found that

Defendants failed to meet their burden, and, again, that finding is

not clearly erroneous. We therefore find no abuse of discretion in

the district court's award of liquidated damages.

III. Conclusion

For the foregoing reasons, we affirm the judgment against

Defendants.

Affirmed.

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