United States District Court, D. Maine
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, LOCAL LODGE NO. 1821, et al., Plaintiffs,
VERSO CORP., et al., Defendants
[Copyrighted Material Omitted]
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS
AFL-CIO LOCAL LODGE NO 1821, RICHARD GILLEY, Individually and
as IAMAW District 4 Business Representative for Local Lodge
1821, COREY DARVEAU, Individually and as President of Local
Lodge 1821, BRIAN SIMPSON, Individually and as Vice President
of Local Lodge 1821, BRIAN ABBOTT, Individually and as
Recording Secretary of Local Lodge 1821, HAROLD PORTER,
Individually and as Financial Secretary for Local Lodge 1821,
FIFTY-THREE LOCAL NO 1821 MEMBERS, Individually and for all
other similary situated salaried and hourly wage employees,
Plaintiffs: ISHAI MOOREVILLE, LEAD ATTORNEY, DONALD I. BAKER,
PRO HAC VICE, BAKER & MILLER PLLC, WASHINGTON, DC; JESSE
MARKHAM, LEAD ATTORNEY, PRO HAC VICE, BAKER & MILLER LLP, ONE
EMBARCADERO CENTER, SAN FRANCISCO, CA; KIMBERLY J. ERVIN
TUCKER, LEAD ATTORNEY, LAW OFFICE OF KIMBERLY J. ERVIN
TUCKER, LINCOLNVILLE, ME; DANA F. STROUT, LAW OFFICE OF DANA
STROUT, ROCKPORT, ME.
VERSO PAPER CORP, VERSO PAPER LLC, Defendants: GRETA LOUISE
BURKHOLDER, SCOTT ALAN STEMPELSCOTT ALAN STEMPEL, LEAD
ATTORNEYS, PRO HAC VICE, MORGAN, LEWIS & BOCKIUS LLP,
WASHINGTON, DC; DAVID E. BARRY, NOLAN LADISLAV REICHL, PIERCE
ATWOOD LLP, MERRILL'S WHARF, PORTLAND, ME; DAVID A.
STROCK, FISHER & PHILLIPS, LLP, PORTLAND, ME.
DEVELOPMENT USA LLC, Defendant: CLIFFORD RUPRECHT, LEAD
ATTORNEY, ROACH HEWITT RUPRECHT SANCHEZ & BISCHOFF, P.C.,
UNITED STEELWORKERS OF AMERICA AND ITS LOCALS 1188 AND 261,
Interested Party: JONATHAN S. R. BEAL, LEAD ATTORNEY, LAW
OFFICE OF JONATHAN S.R. BEAL, BELFAST, ME.
DENYING PLAINTIFFS' MOTION FOR RECONSIDERATION AND
REQUEST FOR CERTIFICATION
WOODCOCK, JR., UNITED STATES DISTRICT JUDGE.
case arose from an agreement between Verso Paper Corp. and
Verso Paper LLC (Verso) and AIM Development USA, LLC (AIM) in
which Verso agreed to sell and AIM to purchase Verso's
Bucksport, Maine Paper Mill. While the sale was pending,
Verso ceased paper mill operations in Bucksport, and former
Verso employees of the Bucksport Paper Mill and their union
sought a declaratory judgment and injunctive relief against
Verso concerning their right to timely payment of severance
pay and final wages, including accrued 2015 vacation pay, in
accordance with time frames they said, and continue to say,
are established under state law. The Court dismissed
Plaintiffs' claims for severance pay because it concluded
that Maine law precluded them from proceeding once the state
of Maine Director of Bureau of Labor Standards (Director)
brought suit in state court against the Defendants, and the
Court dismissed their claims for vacation pay because it
concluded that state rather than federal court,
was a better venue for adjudicating tat claim. Plaintiffs
now ask the Court to reconsider that Order relating only to
their claims for timely severance pay, or in the alternative,
to certify the case for review by the Maine Law Court or the
First Circuit Court of Appeals. The Court denies
January 6, 2015, the Court dismissed a motion for declaratory
judgment and injunctive relief and a motion for attachment
and trustee process brought by the International Association
of Machinists and Aerospace Workers, AFL-CIO, Local Lodge No.
1821 (IAM or IAMAW), and 58 Local No. 1821 Members
(Plaintiffs). Order Dismissing Pls.' Mot. for
Declaratory and Injunctive Relief; and Dismissing Pls.'
Mot. for Attach. and Trustee Process at 85 (ECF No. 73)
( Severance Order ). On January 20, 2015, Plaintiffs
filed a motion for reconsideration and request for
certification. Pls.' Mot. for Recons., Certification
to the Maine Supreme Judicial Ct., or Certification of Appeal
for Interlocutory Review of the Severance Pay Claims in Count
9 (ECF No. 97) ( Pls.' Mot. ). Verso filed
its response in opposition on February 10, 2015. Defs.
Verso Paper Corp. and Verso Paper LLC's Opp'n to
Pls.' Mot. for Recons., Certification to the Maine
Supreme Judicial Ct., or Certification of Appeal for
Interlocutory Review of the Severance Pay Claims in Count
9 (ECF No. 100) ( Defs.' Opp'n ).
Plaintiffs replied on February 27, 2015. Pls.' Reply
to the Verso Defs.' Opp'n to Their Mot. for Recons.,
Certification to the Maine Supreme Judicial Ct., or
Certification of Appeal for Interlocutory Review of the
Severance Pay Claims in Count 9 (ECF No. 111) (
Pls.' Reply ). On March 5, 2015, Verso filed a
surreply. Defs. Verso Paper Corp. and Verso Paper
LLC's Surreply in Further Opp'n to Mot. for Recons.,
Certification to the Maine Supreme Judicial Ct., or
Certification of Appeal for Interlocutory Review of the
Severance Pay Claims in Count 9 (ECF No. 119) (
Defs.' Surreply ).
The Severance Order
IAMAW and the five named individual Plaintiffs filed this
action on December 15, 2014. Compl. for Declaratory and
Injunctive Relief (ECF No. 1) ( Compl. ). On
December 22, 2014, Plaintiffs filed an amended complaint,
which added 53 Local No. 1821 Members as plaintiffs and
included additional allegations. First Am. Compl. for
Declaratory and Injunctive Relief (ECF No. 29) (
First Am. Compl. ). In their First Amended
Complaint, Plaintiffs alleged that Verso refused
" to comply with the laws of the State of Maine
governing the timely payment of severance pay and final
wages, including accrued 2015 vacation time," in
violation of 26 M.R.S. § § 625-B and 626."
Id. ¶ 6. On December 23, 2014, the state of
Maine and the Director filed a complaint against Verso in
Kennebec County Superior Court, and a proposed
consent order; Superior Court Justice Robert Mullen signed
and dated the Consent Order the day it was filed. Def.
Verso Paper Corp. and Verso Paper LLC's Supplemental Mem.
of Law in Opp'n to Pls.' Mot. for Expedited
Declaratory J. and Req. for Prelim. and Permanent
Inj. Attach. 2 Compl. (ECF No. 40) (
Director Compl. ); id. Attach. 3
Court was tasked with ruling on several issues. First, it
held that " it ha[d] diversity jurisdiction over all
claims" brought by Plaintiffs. Severance Order
and most relevant to this Order, the Court addressed whether
Plaintiffs' pending prior-filed suit for timely severance
pay had to be dismissed in light of the subsequent complaint
filed by the state of Maine and the Director in Kennebec
County Superior Court, in accordance with 26 M.R.S. §
625-B(5). Id. at 57-81. In concluding that
Plaintiffs' suit for timely severance pay had to be
dismissed under Maine law, the Court first considered the
organization of the statute in general and section 625-B in
particular. Id. at 59-61. Next, the Court considered
comparative federal laws, Supreme Court caselaw interpreting
those federal laws, Maine and United States Supreme Court
caselaw interpreting section 625-B, the plain language of
section 625-B, and the legislative history of section 625-B
presented by the parties to determine what is meant by the
" right to maintain an action" in relation to 26
M.R.S. § 625-B(4) and 26 M.R.S. §
625-B(5). Id. at 61-70. The Court
discussed nine different policy reasons in support of its
conclusion that Plaintiffs' suit for timely severance pay
had to be dismissed. Id. at 70-80. In addition, the
Court considered abstaining from ruling on Plaintiffs'
severance claims; however, it explained that "
Plaintiffs properly made the point that they would be filing
their state lawsuit after the Director had filed her lawsuit
and under their own interpretation of subsection 5, they
would have been precluded from filing suit."
Id. at 85 n.22. The Court agreed with their
analysis, and out of " fairness to Plaintiffs,"
issued a ruling on the merits rather than abstaining on this
part of their claim. Id.
the Court abstained from ruling on the vacation pay issue,
reasoning that the Consent Order filed in Kennebec County
Superior Court addressed the timing of vacation pay, and
" there are matters of state law more properly resolved
in state [rather] than federal court." Id. at
Events Following the Court's Severance Order
the Court issued the Severance Order on January 6, 2015,
several events took place. First, the Consent Order required
severance payments to be made in two installments, the first
due on January 8, 2015. Consent Order ¶ 10.
Verso made these payments in accordance with the Consent
Order. Defs.' Opp'n Attach. 1 Decl. of
Charles Welch in Support of the
Verso Defs.' Opp'n to Pls.' Mot. for
Recons., Certification to the Maine Supreme Judicial Ct., or
Certification of Appeal for Interlocutory Review of the
Severance Pay Claims in Count 9 ¶ 4 ( Welch
Decl. ). Second, the Court denied Plaintiffs' motion
for a temporary restraining order and preliminary injunction
as to the antitrust portion of the suit on January 20, 2015.
Order Denying Pls.' Mot. for a TRO and Prelim. Inj.
and Addendum (ECF No. 96). Third, Verso completed its
sale of the Bucksport Mill to AIM on January 29, 2015.
Welch Decl. ¶ 6. Fourth, the Consent Order
required the second installment of severance payments to be
made by the earlier of the fifth business day after
Verso's sale of the Bucksport Mill, or by March 19, 2015.
Consent Order ¶ 11. The final severance
payments were due by February 5, 2015, and Verso says it made
these payments in accordance with the Consent Order.
Welch Decl. ¶ 7. In Verso's view, all
severance payments have now been made to every eligible
individual Plaintiff. Id. ¶ ¶ 8-9.
February 19, 2015, in accordance with paragraph 14 of the
Consent Order, Plaintiffs filed " a formal challenge
regarding the accuracy and adequacy of the payments to . . .
53 individuals . . . with the Director of the Bureau of Labor
Standards." Gilley Decl. ¶ 35. The same
was also filed in Kennebec County Superior Court on February
22, 2015. Id. According to Plaintiffs, they are
collectively owed an additional $357,158.53. Pls.'
Reply Attach. 4 RE: Bucksport Mill Verso's
Failure to Fully Pay Severance Payments to Members of IAMAW
Local Lodge # 1821 at 1. In addition, the Attorney
General filed a motion to dismiss the State's claim
against Verso with prejudice in Kennebec County Superior
Court, and in response, Plaintiffs filed an objection,
seeking dismissal without prejudice, pursuant to 26 M.R.S.
§ 625-B(5), on February 22, 2015. Id. Attach. 3
Objection of Interested Parties (IAMAW Local Lodge No.
1821 On Behalf of Its Members Who are the Beneficiaries) to
Dismissal with Prejudice and Mot. for Dismissal Without
Prejudice at 1.
explain in their briefing that Justice Mullen held a
telephonic hearing with the parties on February 23, 2015,
whereby he " urged Verso to provide all employees with
the data needed to determine the accuracy of the severance
and vacation time pay that Verso has made to date."
Pls.' Reply at 6. The following day, Justice
Mullen entered an order, ruling that no action will be taken
by the superior court regarding the pending motions to
dismiss or the objection until after a telephone conference
scheduled for April 8, 2015. Defs.'
Surreply Attach. 2 Order of Ct. at 1.
THE PARTIES' POSITIONS
request the Court to reconsider its Severance
Order. Pls.' Mot. at 2. They ask
it to " reconsider its decision not to certify the State
law questions relating to the proper interpretation" of
section 625-B, which they claim was made " on primarily
'public policy' grounds." Id.
Alternatively, Plaintiffs seek certification for
interlocutory appeal to the First Circuit under 28 U.S.C.
§ 1292(b) or to the Maine Law Court. Id.
Plaintiffs request that, rather than this Court attempting to
interpret these provisions of Maine law, and attempt to
determine the intent of the Maine Legislature, based on an
incomplete submission of the legislative history of
amendments to 26 M.R.S.A. § 625-B (as it has evolved
since 1971), this Court should reconsider its [Severance
Order] . . . or vacate that order and certify all questions .
. . to the Maine Supreme Judicial Court . . . [or grant
certification for an interlocutory appeal].
on to argue that because there was no " definitive
precedent from the" Law Court on the proper
interpretation of section 625-B, certification is proper to
answer five questions:
(1) Whether the filing of a Director's action pursuant to
26 M.R.S.A. § 625-B, sub-§ 5, terminates a pending
prior-filed action maintained by a labor organization on
behalf of its members or by employees on behalf of
themselves, or all other similarly situated employees,
pursuant to subsection 4;
(2) Whether the Maine Legislature intended the right to bring
and maintain actions provided in 26 M.R.S.A. § 625-B,
sub-§ § 4 and 5 to be interpreted consistently with
virtually identical provisions in the federal Fair Labor
Standards Act (FLSA) and Age Discrimination in Employment Act
(3) Whether the Maine Legislature intend[ed] the mitigation
of liability described in 26 M.R.S.A § 625-B, sub-§
3(B) to require actual payment of severance " under the
terms of" an express agreement, in an amount equal to or
greater than the amount mandated in subsection 2, within one
regular pay period after the employees' last full day of
work or sooner; and
(4) Whether the " last full day of work" is the
last day physically worked or whether an employee can defer
the triggering of the time for payment of severance by paying
gratuitous remuneration to employees after they no longer
have the ability or right to work at the facility.
(5) Whether the Maine Legislature has determined that payment
of attorneys' fees and costs mandated in 26 M.R.S.A.
§ 625-B, sub-§ 4, is contrary to public policy if
paid to litigants in a prior-filed subsection 4 case, after a
Director's action has been filed or such fees are
consistent with encouraging private enforcement of the MSPA.
Id. at 3-4.
to Plaintiffs, in reaching its ruling, the Court only had
legislative history from the 1975 and 2003 amendments to
section 625-B and they criticize the Court's public
policy discussion for not citing
" public policy statements from members of the Maine
Legislature in floor debates," and instead, "
express[ing] its own view of the relative merit of
various public policy choices." Id. at 4-5
(citing Severance Order at 80) (emphasis in Plaintiffs'
original). Citing Shapiro Brothers Shoe Co., Inc. v.
Lewiston-Auburn Shoeworkers Protective Ass'n, 320
A.2d 247, 257 (Me. 1974), Plaintiffs suggest that the Court
improperly opined on the " efficacy or wisdom" of
section 625-B. Pls.' Mot. at 5. They also
believe that if the Court certified their proposed questions
to the Law Court, it would " conclude the FLSA does
apply and under the FLSA (which would not terminate a pending
action), intervention in an action filed by the Secretary is
not permitted -- a line of cases Verso will no doubt raise to
oppose intervention by Plaintiffs in the Verso-State action
now." Id. at 5-6. Moreover, Plaintiffs say
" the Court has left the Plaintiffs with no ability to
enforce their right to timely payment of severance in State
or federal court now," nor are they able " to
challenge the amount of payments that Verso has made to date,
or will make in the future, in the Director's
action." Id. at 6-7 (citing Dinan v. Alpha
Networks Inc., 857 F.Supp.2d 162, 163 (D. Me. 2012)).
Plaintiffs " submit that the complete legislative
history of the Maine Severance Pay Statute" (they
attached in part as an exhibit to their motion) proves "
an unequivocal legislative intent to expand the rights
provided to employees under this statute." Id.
at 7. Viewed in its entirety, Plaintiffs argue that "
[n]othing in the complete legislative history of the MSPA
supports the Court's" public policy analysis.
Id. at 7-8. In addition, Plaintiffs state that
" the legislative history of the MSPA evidences an
express legislative intent to prohibit negotiations by
employers to pay any amount that is either less than or in a
time frame later than the express requirements in the
[A]ct." Id. at 8. This means, Plaintiffs say,
the Director's purported authority to negotiate a
different severance payment scheme than the time limit
mandated by [subsection 2] -- that the court in its
[Severance] Order is so keen to protect, preserve and defend
-- is simply not within the authority conferred on the
Director (or Attorney General) in the MSPA.
Id. In fact, Plaintiffs contend that the legislative
history from 1999 " suggests that the Director exceeded
her authority under the MSPA in fashioning the Consent Decree
entered on December 23, 2014." Id. at 9.
Plaintiffs then provide a summary of the evolution of the
MSPA and its corresponding legislative history, including
that the Legislature expanded the right under subsection 4 to
include unions on behalf of their members. Id. at
9-18. Notably, while the Court considered as part of its
public policy discussion the likely difference in the amount
of money collected under the FLSA compared to the MSPA as a
distinguishing factor, Plaintiffs assert that " not in
1999 and not in any other year, has the Maine Legislature
indicated any intent to adopt an interpretation of this law
different from the FLSA, just because the sums to be
collected are large . . . thus, employing the FLSA and ADEA
is completely consistent with this law." Id. at
15. In addition, Plaintiffs criticize the Court's
reasoning regarding the right to attorney's fees to
" litigants who file a subsection 4 private action prior
to a Director's action [as being] contrary to public
policy and will encourage or reward
'litigiousness'" on the basis that it " is
utterly without support in the history of this statute over
the past forty years of its evolution since the 1975 post-
Shapiro Shoe amendments." Id. at 18.
They say " the fee award has been mandatory not
nsince 1975," and the Director's action does not
change this requirement. Id.
closing, Plaintiffs ask the Court for three alternatives: (1)
reconsider and reverse its prior Severance Order " based
on an incomplete legislative record" ; (2) certify the
case to the Law Court pursuant to 4 M.R.S. § 57; or (3)
certify the case to the First Circuit for interlocutory
counters that the Court should not reconsider and vacate its
Severance Order because Plaintiffs have not identified "
how the Court misapprehended the arguments previously
presented by the parties." Defs.' Opp'n
at 2. Instead, Verso says, Plaintiffs' presentation of
additional legislative history not brought before the Court
prior to its Severance Order represents " new legal
arguments that [they] could have presented the first time
around," and are attempting " a second bite at the
apple." Id. at 2-7 (citing Cochran v. Quest
Software, Inc., 328 F.3d 1, 11 (1st Cir. 2003) and
additional caselaw). According to Verso, Plaintiffs do not
attempt to explain how they meet the legal standard for
reconsideration. Id. at 5 (citing United States
v. Poulin, No. 1:08-cr-00050-JAW, 2014 WL 1642269, at *2
(D. Me. Apr. 24, 2014)). It also contends that
Plaintiffs' " request for declaratory judgment is
now moot because each of the Plaintiffs eligible for
severance has received that severance." Id. at
3. Verso cites the Declaration of Verso Human Resources
Manager Charles Welch (attached to Verso's opposition) as
proof that it has complied with the terms of the Consent
Order filed by the state of Maine and the Director in
Kennebec County Superior Court, including that it has made
full payment of severance to all eligible employees (except
for one disputed employee, Mr. Lowell). Id. at 9 &
n.5. Thus, according to Verso, an order from the Court based
on new analysis or allowing certification that would lead to
a new order from this Court " would be a pure advisory
opinion, disconnected from any live case or
controversy." Id. at 3.
Plaintiffs' request for certification to the Law Court,
Verso asserts that " their request is procedurally
improper, unfair and proposes to tax the judicial resources
of now a second court system, simply because Plaintiffs,
having pushed aggressively to have this legal issue addressed
by this Court, do not like the ruling they received."
Id. In response to Plaintiffs' submission of
additional legislative history to support their position for
certification, Verso counters that their contention
does not change the two key conclusions underpinning the
Court's determination: (1) that the specific legislative
history of the [section] 625-B(5) termination provision
strongly supports the determination that the Director's
lawsuit displaces existing actions; and (2) that policy
considerations, and the structure of the statute, cut in
favor of an interpretation of [section] 625-B that privileges
the Director, acting in the public interest, over private
litigants who got to the courthouse first.
Id. at 11. Verso says that Plaintiffs' "
new argument does not cast any different light on the Maine
Legislature's express intent" regarding the
Director's ability to displace suits of individual
employees and, citing footnote 18 from the Court's
Severance Order, " there is no relationship between this
change to the statute [in 1975 where the Legislature altered
the MSPA to permit unions to bring actions on behalf of their
members] and the change that permits suits by the Director to
terminate previously-filed private actions."
Id. Regarding Plaintiffs' emphasis on the 1999
amendments, Verso argues that they " do
not explain how this amendment is inconsistent with the
Court's correct conclusion that the statute prioritizes
suits brought by the Director over suits brought by private
parties." Id. at 12. Verso contends that "
none of the changes relied on by Plaintiffs is inconsistent
with the Court's determination that the Maine Legislature
considers the Director better positioned to enforce the
statutory scheme than private litigants." Id.
Verso also points out that it was Plaintiffs who insisted
that the Court " issue a ruling on their severance pay
claim within four weeks of the filing of their lawsuit,"
and they " at no time requested certification to the Law
Court or even suggested that certification might be
appropriate." Id. at 13. Furthermore, Verso
views Plaintiffs' request for certification as "
seek[ing] a heads-we-win-tails-you-lose process, whereby the
standard for Law Court certification would be little more
than the receipt of an unwelcome ruling." Id.
at 14. In essence, Verso argues that Plaintiffs may not
request an expedited ruling, lose on the merits, and now
claim it should have been certified to the Law Court all
along. Id. at 14-15.
as regards Plaintiffs' request for certification for an
interlocutory appeal, Verso says that their request was
waived because their pending motion " provides no legal
basis for the relief requested, and contains literally no
argument explaining why certification is appropriate
here." Id. at 4, 15 (citing Joyce v.
Postmaster Gen., 846 F.Supp.2d 268, 289 n.25 (D. Me.
2012)). In the alternative, it argues that the request should
be denied on the merits. Id. at 4. Specifically,
Verso argues that their request " falls short of the
exacting standard that governs requests for certification
under § 1292(b)." Id. at 15-16 (citing an
array of caselaw from this district and the First Circuit).
Verso points out that " Plaintiffs did not seek any
§ 1292(b) certification prior to the Court's
issuance of the Order and so the Order does not include the
certification Plaintiffs now seek, as is required by the
statute." Id. at 16 n.10 (citing 28 U.S.C.
§ 1292(b); Widi v. United States Dep't of
Justice, No. 1:11-cv-00113-JAW, 2011 WL 5877543, at *4
(D. Me. Nov. 23, 2011)).
their reply, Plaintiffs claim that " the amount of
severance paid is now of relevance to the pending motion for
Reconsideration." Pls.' Reply at 2. They
Plaintiffs assert that, in addition to omitting Mr. Lowell,
this action is not moot because Verso has still failed to pay
all sums due to Plaintiffs and the State Court action failed
to address the timing of such payments -- indeed, under the
terms of the state settlement, no Bucksport employees
received all severance due them within the time prescribed by
State law. Verso failed to ever provide the IAM with the
weekly payment records of its members needed to determine the
number of weeks within which each member worked during the
12-month period prior to each individual's last full day
Id. (citing Gilley Decl. ¶ 31). They
also assert that several errors have been made in calculating
their severance payments. Id. at 3-4 (citing
Gilley Decl. ¶ ¶ 32-33). In addition,
Plaintiffs claim that for those IAMAW members that have
received their severance payments, " the amount paid
differs from the amount that Verso indicated would be paid on
Exhibit A of the Consent Order." Id. at 4.
on their position that this case has not been mooted by
Verso's severance payments to former employees,
Plaintiffs argue that the Consent Order never attempted to
resolve when full payment was due (which Plaintiffs believe
should have been December 24, 2014 or January 8, 2015), and
" even under the terms of the State Consent Order,
each and every Bucksport employee was still denied timely
payment of all severance due them by Verso under Maine law --
at least half of all severance owed to every employee was
untimely paid after January 8, 2015." Id.
at 7-8 (emphasis in original).
if the Court were to find the case moot, Plaintiffs assert
that the Severance Order should be vacated pursuant to
United States v. Munsingwear, Inc., 340 U.S. 36, 71
S.Ct. 104, 95 L.Ed. 36 (1950) ( Munsingwear
Doctrine). Pls.' Reply at 8. Plaintiffs say this
doctrine stands for the proposition that
a party who seeks review of the merits of an adverse ruling,
but is frustrated by the vagaries of circumstance, ought not
in fairness be forced to acquiesce in the judgment. . . .
[C]ourts have almost uniformly held that the same is true
when mootness results from the unilateral action(s) of the
party who prevailed below.
Id. at 8-9. As an example, Plaintiffs cite a 2013
Law Court case, Thanks But No Tank v. Department of
Environmental Protection, 2013 ME 114, ¶ 12, 86
A.3d 1, which considered and rejected a request to vacate a
superior court ruling rendered moot. Pls.' Reply
at 11-12. Plaintiffs argue that, unlike that case, where the
Law Court reasoned that vacatur was inappropriate because the
plaintiff had not demonstrated it would be unable to litigate
similar issues or that public policy would be harmed, they
will be unable to litigate similar issues if the
Director's suit is dismissed from Kennebec County
Superior Court with prejudice, and public policy will be
harmed because it would go against the legislative history to
section 625-B. Id. at 12.
contrary to Verso's argument, Plaintiffs say that their
motion is not based on a new argument they could have made
previously. Id. at 15. They claim that initially,
" up to and including the oral argument of the Severance
Claims, the history and public policy underlying the
enactment, and all amendments to, the MSPA was not at
issue." Id. They go on:
The only provisions and amendments that were placed at issue
by either party were the 2003 amendments to 26 M.R.S.A.
§ 625-B, sub-§ 3(B) and the 1975 amendments to 26
M.R.S.A. § 625-B, subsections 4 and 5. It was the Court
which placed the public policy underlying the [A]ct as it has
evolved since 1971 at issue, when the Court entered the
January 6 Order dismissing the Severance Pay claims based on
the Court's interpretation of public policy implications
of imposing a State mandated amount of severance (which the
court appeared to indicate it found " ill-advised"
). Further, the Court (not Verso) suggested that the FLSA
case law did not apply because the amounts in controversy in
FLSA cases were small and in MSPA actions were in the
millions of dollars -- this distinction raised by the Court
was the first time the Legislature's knowledge about the
amount of potential recoveries under the MSPA and its impact
on the right to maintain an action was placed at issue to
require an examination of the legislative history. An
examination of the legislative record revealed that the Maine
Legislature has long been on notice about the aggregated size
of MSPA recoveries -- although, like FLSA recoveries, the
amounts to be recovered by individual employees is still in
the thousands[,] not in the millions.
Id. (emphasis in original).
certification to the Law Court, Plaintiffs believe that
" an expeditious
resolution of the time-for-payment question raised by this
case, was the sole basis that this Court gave for its
decision not to certify the relevant State law
interpretations to the Law Court." Id. at 16.
Nevertheless, Plaintiffs also say that because they "
have received some (but not all) severance due them through
the State-Verso settlement, the time pressure that formed the