author: FUENTES, Circuit Judge.

text:
    UNITED STATES of America v. Michael FREE, Appellant
    No. 15-2939
    United States Court of Appeals, Third Circuit.
    Argued July 12, 2016
    (Opinion Filed: October 6, 2016)

      Martin A. Dietz, Esq. [ARGUED], The Mitchell Building, 304 Ross Street, Suite 505, Pittsburgh, PA 15219, Attorney for Appellant.
    Rebecca R. Haywood, Esq., Laura S. Irwin, Esq. [ARGUED], Office of the United States Attorney, 700 Grant Street, Suite 4000, Pittsburgh, PA 15219, Attorneys for Appellee.
    Before: FUENTES, SHWARTZ, and RESTREPO, Circuit Judges

       The Honorable Julio M. Fuentes assumed Senior Status on July 18, 2016.

   OPINION OF THE COURT

FUENTES, Circuit Judge.

This case raises the question of how to calculate '“loss” under the ' Sentencing Guidelines when a defendant commits bankruptcy fraud but ah of his creditors receive payment in full.

The defendant, Michael Free, made the bizarre decision to file for bankruptcy even though he had more than sufficient assets to pay his debts. He then, having filed for bankruptcy unnecessarily, hid assets worth hundreds of thousands of dollars from the Bankruptcy Court. Free’s actions eventually led to criminal charges and convictions for multiple counts of bankruptcy fraud. The oddity of this entire situation is best summarized by the fact that, despite ah of Free’s prevarications, his creditors received 100 cents on the dollar from Free’s bankruptcy estate.

The Sentencing Guidelines increase a fraudster’s recommended sentence based on the amount of loss he causes, or intends to cause, to his victims. The District Court therefore had to decide whether Free caused or intended to cause any loss at all. Recognizing the novelty of the situation, the District Court chose to treat the estimated value of the assets that Free concealed from the Bankruptcy Court and the amount of debt sought to be discharged as the relevant “loss” under the Guidelines. In doing so, the District Court did not clearly find whether Free intended to dé prive his creditors of this, or of any, amount. While we appreciate the District Court’s reasoning, we ultimately conclude that treating the value of Free’s concealed assets as “loss,” at least on the rationale articulated by the District Court, is out-of-step with the structure of the Guidelines and inconsistent with our own precedent. Instead, the District Court must determine whether Free intended to cause a loss to his creditors or what he sought to gain from committing the crime, per United States v. Feldman, 338 F.3d 212, 221-23 (3d Cir. 2003). A loss amount triggering enhancements under the Sentencing Guidelines on resentencing must reflect a loss amount incurred or which Free intended to be incurred. However, even if the District Court finds no such intended loss, this is not to say that Free would necessarily' receive a lower sentence on remand. Free’s repeated lying to the Bankruptcy Court and his manifest disrespect for the judicial system may well merit an upward departure or variance from the Guidelines. The District Court may consider whether such an upward departure is appropriate.

For the reasons that follow, we will vacate the judgment of the District Court and remand this ease for resentencing.

I. Background

A. Free’s Bankruptcy Proceedings

Free filed a voluntary bankruptcy petition in July of 2010 in his capacity as the sole proprietor of Electra Lighting & Electric Company, one of the businesses he owns. He also owns Freedom Firearms, a company that specializes in the sale of rare WWII-era guns. After Free fell behind on payments on two business-related properties, the lender purchased them in foreclosure, and Free purportedly filed for bankruptcy in an effort to “stay” the sale and “possibly to work out an agreement with” the lender.

Filing a bankruptcy petition requires a debtor to complete several forms. These include “Schedule A,” which requires an accounting of the debtor’s real estate assets, and “Schedule B,” which requires an accounting of the debtor’s personal property. A debtor certifies that both documents are correct under penalty of perjury. On Free’s Schedule A, he disclosed over $1.3 million in real estate assets. On Free’s Schedule B, he listed $368,990 worth of personal property, including 27 firearms collectively valued at $250,000. The District Court later concluded that, at the time he filed for bankruptcy, Free had liabilities of approximately $671,166, meaning that his disclosed assets exceeded his debts by several hundred thousand dollars.

Free initially filed for bankruptcy under Chapter 13 of the Bankruptcy Code, which permits a debtor to reorganize his or her debts. The Bankruptcy Court later eon-verted Free’s proceeding into a Chapter 7 action, meaning that the focus shifted from “confirmation and completion of a reorganization plan” to “liquidation of assets and distribution to creditors.” In a Chapter 7 case, “the United States Trustee appoints an impartial case trustee to administer the case and liquidate the debt- or’s nonexempt assets.” The trustee in this case was James Walsh, an attorney-based in Johnstown, Pennsylvania.

One of the events that occurs early in a Chapter 7 proceeding is a creditors’ meeting. During Free’s creditors’ meeting, which took place in March of 2011, Free indicated that he was “trying to” sell weapons he owned by “put[ting] them on the internet.” Walsh immediately told Free to stop:

Trustee Walsh: You can’t sell them, they’re now the bankruptcy estate’s and only I can sell them with the court approval. So do not, under any circumstances, sell any of these weapons. Don’t sell any of the real estate, don’t sell any of the inventory. It’s all within the control of the court at this point in time. Michael J. Free: Ok, at least at this point, from my understanding though, is
[sic] a moot point because none of the firearms have been sold as of yet. Trustee Walsh: Yeah, but I’m just ... Michael J. Free: I understand!.]
Trustee Walsh: So there’s no misunderstanding of “I didn’t know”, nothing can be sold or transferred without court approval brought on a motion by myself. Ok?
Michael J. Free: Alright[.]

Over the course of the ensuing months, Free became increasingly uncooperative with Walsh and progressively more disrespectful towards the Bankruptcy Court. Less than a month after the creditors’ meeting, Walsh asked the Bankruptcy Court to compel Free to turn over certain assets and to cease operation of his businesses, both of which Free had refused to do. On another occasion, Free raised suspicions by purchasing several of his own assets during a court-supervised auction, falsely claiming that he had the money to do so through the generosity of friends and relatives. In fact, Free actually made such purchases with the proceeds of his surreptitious sales of weapons, after he had specifically been told he could not sell his weapons. Free also refused to cooperate with Walsh’s efforts to obtain paperwork that was necessary to sell the firearms that Free had disclosed in Schedule B of his bankruptcy petition.

Convinced that Free had concealed assets and violated court orders, Walsh filed a motion for sanctions in October of 2011. The Bankruptcy Court granted Walsh’s motion in February of 2012, ordering Free to provide a full accounting of his assets or face monetary penalties. The Bankruptcy Court also threatened to incarcerate Free if he failed to comply. In doing so, it expressed its profound frustration with Free’s conduct:

[Free] has acted willfully, vexatiously, wantonly, and in bad faith. His inappropriate conduct has negatively impacted the entire bankruptcy case.... [He] has persisted in his willful misconduct despite the attempts of three bankruptcy judges to dissuade him from future misconduct. The failure to cooperate and comply while [Free] is facing sanctions for civil contempt is shocking to the Court.

Events finally came to a head a few weeks later when Walsh filed an emergency motion for civil contempt. Walsh claimed that Free had, in various ways, failed to comply with the Bankruptcy Court’s February 2012 orders. In particular, Walsh said that he had recently been contacted by a man who had tried to purchase a WWII-era firearm from Free for a price of $13,500. The man told Walsh that Free had sold other firearms since entering Chapter 7 proceedings. Walsh responded by asking the Bankruptcy Court to enter an order directing a third-party auction company “to take physical possession of [Free’s guns] as soon as possible.”

The Bankruptcy Court convened a hearing on the matter, after which it entered an order directing the local sheriff “to take possession of all of [Free’s] firearms.” A few days later, on March 26, 2012, Free filed a declaration with the Bankruptcy Court in which he claimed, again under penalty of perjury, that he had not “sold or transferred” any estate assets—including firearms—since his bankruptcy case was converted into a Chapter 7 proceeding. By the time Free filed his declaration, the government claims that he had sold at least 20 firearms worth more than $400,000.

Local sheriffs deputies, acting on the Bankruptcy Court’s order, searched Free’s house on March 27, 2012—the day after Free filed his declaration with the Bankruptcy Court. They found 49 guns in various locations throughout the home. When they questioned Free, he said he had no additional firearms in his possession. Later that afternoon, Free filed a revised declaration with the Bankruptcy Court that included a handwritten list of dozens of firearms, along with a copy of the Schedule B from his original bankruptcy petition. Because Free did not list any serial numbers in these two documents, Walsh was unable to determine the degree of overlap between the two lists,

The depth of Free’s fraud on the Bankruptcy Court became increasingly apparent in the ensuing months. In April of 2012, Walsh filed a status report in which he informed the Bankruptcy Court that Free “ha[d] received at least $90,000.00 in funds from third parties whom he offered to sell firearms which constitute property of the estate during the pendency of this Chapter 7 proceeding.” The day after Walsh filed his status report, the Bankruptcy Court ordered the United States Marshal to take Free into custody until such time as he paid over $26,000 in fines and rent then owing to the Bankruptcy Court and to the estate.

It was around this time that the FBI became involved. Having reviewed certain firearms registration records, FBI agents came to believe that Free was continuing to conceal firearms from the Bankruptcy Court. The FBI obtained a warrant to search Free’s residence a second time. During that search, which took place in March of 2013, federal agents discovered an additional 55 firearms.

B. Free’s Criminal Prosecution

Federal prosecutors eventually initiated a criminal case against Free for committing bankruptcy fraud. The grand jury returned an indictment in January of .2014 that charged Free with six counts relating to (i) false statements in Free’s Schedule A relating to real property; (ii) false statements in Free’s Schedule B relating to his ownership of firearms; (iii) false statements in Free’s declaration of March 26, 2012; (iv) false statements in Free’s supplemental declaration of March 27, 2012; (v) concealment of additional assets from the Bankruptcy Court, including real property, motor vehicles, farm implements, and cash; and (vi) false statements that Free made under oath at the March 2011 creditors’ meeting.

Counts I through IV arose under 18 U.S.C. § 157, which outlaws various forms of bankruptcy fraud. Counts V and VI arose under 18 U.S.C. § 152, which makes it a crime to conceal assets or to commit perjury in the context of a bankruptcy proceeding. Both statutes set a maximum term of imprisonment of five years for each violation.

After a five-day trial, a jury convicted Free on all counts.

C. Free’s Sentencing Hearing

Under the Sentencing Guidelines, a bankruptcy fraudster’s recommended term of imprisonment depends on a number of factors. “Section 2B1.1 of the Guidelines governs the calculation of the offense level for crimes involving, among other things, fraud and deceit.” Subsection (a) of that provision “provides the base offense level, which is either seven, if the offense has a maximum term of imprisonment of twenty years or more, or six.” Subsection (b) “provides an extensive list of adjustments for offense-specific characteristics,” including “the adjustment for the amount of loss.” As the loss amount increases, so too does the defendant’s offense level.

At Free’s sentencing hearing, the District Court therefore needed to make a determination as to the amount of loss caused by Free’s crimes. The issue here is that, by the time of Free’s sentencing, it had become clear that Free had (and perhaps always had) sufficient assets to payoff his creditors in full. Given this odd factual posture, the parties disputed the correct loss amount under the Guidelines.

The. government argued that the District Court should take at least three numbers into account to calculate loss, all relating to the value of Free’s concealed guns. First, it identified fifteen firearms, valued at $357,460, that Free unlawfully sold during the pendency of his bankruptcy proceedings. Second, it pointed to the fact that, at an auction supervised by the Bankruptcy Court, ten additional guns concealed by Free were sold for $640,000 (although, by the date of the sentencing hearing, that sale had not yet been finalized). Third, it asked the District Court to consider an additional cache of guns that had not yet been sold at auction and remained in the FBI’s possession. Based on an appraisal from the same buyer who purchased the second lot of guns, the government estimated the value of the unsold lot at $833,000. Altogether, these figures indicated that Free concealed firearms worth approximately $1.83 million from the Bankruptcy Court.

Free’s counsel objected to the $833,000 figure on the ground that the government produced its appraisal estimate at the last minute and he had not yet had a chance to investigate the appraiser’s credentials. The District Court sustained the objection and discounted the $833,000 figure in its calculations.

Even so, the government argued that Free should have 16 levels added to his offense level. It derived this figure from the Sentencing Guidelines’ stepwise scheme for calculating loss. If a fraudster’s conduct causes over $400,000 but less than $1 million in loss, the Guidelines add 14 levels to his offense level. If the fraudster’s conduct causes over $1 million but less than $2.5 million in loss, the Guidelines add 16 levels to his offense level. Thus, even if the District Court were disinclined to credit the $833,000 figure as the correct valuation for Free’s as-of-yet-unsold guns, the value of the first two groups of guns was $997,640. The government asserted that, whatever its value, the third lot of guns was worth enough to push Free’s loss figure past the $1 million threshold necessary to trigger a 16-level increase in his offense level.

Free’s position, by contrast, was that he “should only be held accountable for a loss amount that’s consistent with what he could have deprived creditors of receiving back during the bankruptcy.” Since all of Free’s creditors were paid back in full, Free asserted that the loss amount in his case was, in fact, $0.

In a colloquy with Free’s counsel, the District Court challenged Free’s arguments in favor of a $0 loss calculation. It pointed out that courts rely on honesty from litigants:

But then, as I thought about it, read Feldman, one of the things that we rely on people doing is, when they come to Court, whether it’s this Court or the Bankruptcy, particularly, the Bankruptcy Court, they have to deal the cards faced up, because we don’t have a cavalry of investigators to go out snooping around everyone that runs through the tens of thousands of bankruptcy eases just filed here in Pittsburgh, let alone around the country. We absolutely rely on people telling the truth because we can’t ferret it out any other way.

In addition, the District Cdurt expressed the view that, under the Guidelines, there is a difference between a debtor who conceals $100 in assets and a debtor who conceals $1 million in assets. According to the District Court, the Guidelines reflect a policy judgment that the second debtor should receive a harsher sentence than the first. Free’s counsel disagreed. He argued that the Guidelines are concerned primarily with the amount of harm inflicted or intended to be inflicted on victims of crime. And here, the only conceivable victims were Free’s creditors—who, it turned out, sustained no loss at all.

Walsh, the bankruptcy trustee, also testified at Free’s sentencing hearing. He said that Free’s dishonesty was the worst he had ever seen in his more than 37 years of practice in the bankruptcy courts. In his view, “at virtually every single step of the way ... Free has been an obstructionist.” But Walsh also testified that, once Free’s bankruptcy proceedings had concluded, there would likely be more than enough assets to satisfy all creditors’ claims.

Free also spoke on his own behalf. He claimed that he filed for bankruptcy in order to “stay [a] sheriff sale” on one of his properties, not to discharge any debts. He also said that his bankruptcy attorney told him that it would be acceptable not to disclose all of his firearms on his bankruptcy schedules.

The District Court made two key statements regarding its loss calculation. First, it concluded that “it was certainly Mr. Free’s intention to conceal from the United States Bankruptcy Court and to cause a loss, to the extent that it was needed, materially in excess of a million dollars.” The District Cdurt did not, however, explicitly state that Free intended to cause pecuniary harm to his creditors. Nor did the District Court clarify its understanding of Free’s intent at the time he filed for bankruptcy; Instead, the District Court made the following statement:

The Court draws the inference that Mr. Free had his reasons for both' filing and persisting in the bankruptcy proceeding, [and] that Mr. Free had his reasons that were of value to him in not causing any of his lawyers to attempt to resolve the matter earlier.... But all of the testimony at the trial ,.. demonstrates that Mr. Free knew and wanted to be in the bankruptcy proceeding, that he, he viewed assets that he needed to protect from the bankruptcy proceeding, and combined with those that he did disclose in the bankruptcy proceeding were well north of a million dollars.

In explaining its loss calculation, the District Court stated that it “found ... none of- [Free’s testimony] to be credible at all,” and said that Free’s answers were “evasive” and “non-sensible.” The District Court underscored its view that the Guidelines reflect the commonsense proposition “that there would be a higher loss calculation when there is a significantly higher amount of assets that are concealed from the Bankruptcy Court, even if on reflection it could have been completely unnecessary from a logical and a common sense standpoint to conceal [them].” The District Court also characterized the victim of Free’s fraud as “the judicial system of the United States,” not his creditors.

Somewhat curiously, even though the District Court concluded that the loss amount in Free’s case was more than $1 million, it only added 14 levels to Free’s base offense level of 6. That 14-level enhancement is consistent with a loss amount of between of between $400,000 and $1 million, whereas a loss amount greater than $1 million normally triggers a 16-level enhancement. The discrepancy appears to have arisen because the Presen-tence Investigation Report only recommended a 14-level enhancement, and the District Court tentatively adopted that recommendation before Free’s sentencing hearing and then adhered to its prior decision at the hearing itself.

.In addition to the 14-level enhancement resulting from the District Court’s loss calculation, the Guidelines state- that “[i]f the offense involved ... a misrepresentation or other fraudulent action during the course of a bankruptcy proceeding,” or “a violation of any prior, specific judicial or administrative order,” the district court should “increase, [the offense level] by 2 levels.” The District Court applied this 2-level enhancement as well.

Combining Free’s base offense level of 6, his loss causation enhancement of 14, and his 2-level enhancement for bankruptcy fraud, Free’s total offense level was 22. This resulted in a Guidelines Range of 41-51 months’ imprisonment on each count. The District Court then varied downward, concluding that an offense level of 16 was “more appropriate” given the facts of Free’s case. This led to a Guidelines range of 21-27 -months’ imprisonment. The’ District Court ultimately sentenced Free to 24 months’ incarceration on each count, to run concurrently, and tó a term of supervised release' of three years.

D. Free’s Motion for Bail Pending Appeal

About a month after his sentencing, Free filed a motion for bail pending appeal. Free argued that bail was appropriate because our Court might ultimately agree with his view of how to calculate loss under the Guidelines. The District Court granted the motion three months later, concluding that Free had raised a “significant” question of law.

The District Court reiterated that, “[b]ased on the record developed at trial and at sentencing, it does not appear that any creditor will suffer any financial loss at all, and all administrative expenses of the bankruptcy will be paid, with some assets left over.” The District Court also adhered to the view, previously articulated at Free’s sentencing hearing, that “the Sentencing Guidelines reflect! ] a policy position that the sentence should be greater when one attempts to conceal greater assets in a bankruptcy proceeding—even when the actual pecuniary harm to the creditors, viewed in hindsight, was less than the amount concealed.” Thus, while “Free’s deceit plainly harmed the integrity of the judicial process—and this Court articulated that as the 'principal basis for the sentence imposed—it did not, however, appear to actually cause pecuniary harm [to] his creditors or anyone other than, perhaps, him.”

Importantly, the District Court concluded that the loss calculation issue could alter Free’s sentence. It noted that, without the 14-level increase in Free’s offense triggered by its prior loss calculation, Free’s offense level would have been 10, “leading] to an advisory Guideline range of 6-12 months.” Even though this Guidelines range would not be binding, the District Court stated that it was entitled to “due and serious consideration.” And, while the District Court was “hesitant to engage in any concrete forecast of what would actually happen at a resentenc-ing,” it also stated that it was “ ‘likely5 ... that a new sentence [would] be shorter than 11-13 months if Mr. Free’s ‘zero’ loss theory [were to] carr[y] the day.”

Accordingly, Free has been out on bail pending resolution of this appeal.

II. Jurisdiction and Standards of Review

This is a direct appeal from a criminal conviction and sentence. Free timely filed a notice of appeal, and we have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

Free brings both a challenge to the sufficiency of the evidence and a challenge to his sentence. “In reviewing a jury verdict for sufficiency of the evidence, we ‘must consider the evidence in the light most favorable to the government and affirm the judgment if there is substantial evidence from which any rational trier of fact could find guilt beyond a reasonable doubt.’ ”

In a fraud case, the government bears the burden of establishing the amount of loss for purposes of sentencing by a preponderance of the evidence. When calculating the loss amount, a district court “need only make a reasonable estimate of the loss” incurred. We review a district court’s factual findings at sentencing for clear error, including factual findings supporting “the loss calculations ... under Guidelines § 2B1.1.” Alternatively, “[w]hen the calculation of the correct Guidelines range turns on an interpretation of ‘what constitutes loss’, under the Guidelines, we exercise plenary review.”

III. Discussion

Free challenges both the sufficiency of the evidence and the District Court’s subsequent sentence. We will consider each issue in turn.

A. Sufficiency of the Evidence

With respect to the sufficiency of the evidence, Free’s primary contention is that, since his creditors received full payment as a result of his bankruptcy proceedings, he cannot properly be said to have devised or participated in any fraudulent scheme. While Free admits that his dishonesty may have been “potentially contemptible conduct in the bankruptcy matter,” he insists that his repeated'lying does not necessarily “establish [the] requisite mens rea [to show] that he devised a scheme to defraud or intended to defraud anyone.” This argument is too clever by half.

Free was convicted of four counts under 18 U.S.C. § 157. “One commits bankruptcy fraud under § 157 by (1) devising a scheme to defraud, and (2) filing a document in a bankruptcy proceeding or making [a] false or fraudulent statement in relation to the bankruptcy proceeding for the purpose of executing or concealing the fraudulent scheme.” There is ample evidence from which a reasonable jury could have concluded that Free did precisely that. What’s more, no fraudulent losses need to occur for a debtor to violate § 157; “[f]iling itself is the forbidden act.” Whatever else Free did, the evidence that he filed fraudulent documents with the Bankruptcy Court is overwhelming.

Likewise, counts V and VI involve violations of 18 U.S.C. §§ 152(1) and 152(2). We have said that a debtor violates § 152(1) by failing to “reveal the existence of his assets to . the United States Trustee.” And, by its plain terms, § 152(2) outlaws “knowingly and fraudulently mak[ing] a false oath” in relation to a bankruptcy case. Here again, the evidence of Free’s guilt is indisputable.

More generally, Free’s argument depends on the proposition that debtors have blanket immunity to lie to the Bankruptcy Court so long as there are no creditors who suffer any out-of-pocket losses. Free points us to no authority for such a remarkable proposition, and we are confident in rejecting it.

B. The Proper Loss Calculation in the Present Case

We turn next to Free’s challenge to his sentence, and in particular to his contention that the District Court erred in its calculation of “loss” under the Sentencing Guidelines.

There ai’e essentially two ways to think about loss in this case. Under one view, the goal of the Sentencing Guidelines is to calibrate a fraudster’s punishment so that it reflects the extent of the economic harm inflicted or intended to be inflicted on the fraudster’s victims. This is Free’s position. Free argues that there were no victims here because Free’s creditors received 100 cents on the dollar in Free’s bankruptcy proceeding.

Under the alternative view proffered by the government, the Guidelines provide district courts with broad discretion to conceptualize the harm caused by a defendant based on the facts of any particular case. In the context of bankruptcy fraud, then, it is appropriate to think about harm in terns of the value of any assets that a debtor conceals from the bankruptcy court—not only because concealing assets can harm creditors, but also because it harms the integrity of the judicial system itself. The District Court ultimately embraced this view.

We begin with the Sentencing Guidelines themselves, which we think favor Free’s argument. The application notes define the following key terms:

• Actual loss: “Actual loss” means the reasonably foreseeable pecuniary harm that resulted from the offense.
• Intended Loss: “Intended loss” (I) means the pecuniary harm that was intended to result from the offense; and (II) includes intended pecuniary harm that would have been impossible or unlikely to occur (e.g., as in a government sting operation, or an insurance fraud in which the claim exceeded the insured value).
• Pecuniary harm: “Pecuniary harm” means harm that is monetary or that otherwise is readily measurable in money. Accordingly, pecuniary harm does not include emotional distress, harm to reputation," or other non-economic harm.

In our view, the application notes to § 2B1.1, which discuss these definitions in further detail, suggest that the District Court’s rationale for Free’s.sentence was inconsistent with the structure of the Guidelines. The notes focus extensively on pecuniary harm, explicitly stating that the proper way to punish a defendant who causes non-pecuniary but otherwise serious. harm is to impose an upward departure. This guidance implies that the gravamen of any loss calculation is concrete, monetary harm to a real-world .victim. In other words, while it may indeed be appropriate to punish a, bankruptcy fraudster more severely when that person conceals assets of greater value, the Guidelines seem to indicate that, in the absence of any pecuniary harm to a victim, the mechanism for realizing that goal is an upward departure rather than a more severe loss calculation in the first instance.

Our Court’s leading case regarding loss calculation and bankruptcy fraud is United States v. Feldman. The defendant there, like Free, committed fraud on the bankruptcy court by concealing large quantities of assets. His main argument on appeal, like Free’s, focused on the lack of any concrete harm or intended pecuniary harm to his creditors. Feldman claimed that because most of his concealed assets consisted of property he owned jointly with his wife that, by operation of law, was not subject to execution by his creditors,, his decision to hide those properties from the bankruptcy court inflicted little or no actual loss within the meaning of the Guidelines.

The Feldman Court began its analysis by observing that loss calculations under the Guidelines can turn on either actual loss or intended loss. Thus, “even if Feld-man could not have caused any loss by concealing exempt assets, he could still be subject to a sentencing enhancement if he thought he would cause a loss by concealing the assets.” The government, by contrast, urged the Feldman Court to go even further by adopting “a bright line rule that ‘[i]ntended loss includes the value of assets concealed from creditors and the bankruptcy court.’” We declined to do so, stating that the key question in these cases is not the value of the assets concealed, but rather “what [a defendant] sought to gain from committing the crime.”

The Feldman Court recognized that a reasonable sentencing court could credit Feldman’s argument that he “did not intend any monetary loss to his creditors.” But Feldman also stated that it would be “appropriate for the District Court to consider the reason why most people would conceal assets and determine that it is simply unbelievable that Feldman would hide over a million dollars in assets only [as he argued on appeal] to achieve a faster discharge.” Whereas Feldman had argued that the government needed to affirmatively rebut his contention that he concealed assets only “to ‘speed along* the [bankruptcy] process,” we “conclude[d] that intent [to short-change creditors] can be inferred from the fact that Feldman concealed a large amount of property.”

Importantly, however, we did not say in Feldman that the concealment of large quantities of assets always proves a fraudster’s intent to short-change his creditors. Instead, we emphasized that there were other facts tending to show that Feldman in particular intended to inflict such a loss. We emphasized that, in addition to the real estate he owned with his wife, Feldman concealed two Jaguar vehicles “that were not even arguably exempt from bankruptcy.” In our view, this conduct supported the conclusion “that Feldman intended to inflict a loss in the amount of the entire debt from which he sought to be discharged.”

The parties disagree over how Feldman applies to the facts at hand. Free contends that Feldman supports him because it focuses on a debtor’s intended pecuniary harm to creditors. The government, by contrast, says that Feldman supports its view that district courts have wide discretion to consider “the many permutations of facts that arise when loss is at issue” and to assess “what the defendant ‘sought to gain from committing the crime.’ ” The government argues that, “[h]ad Free truly not intended a loss to any creditor, he had many opportunities to come forward, admit to his fraud and deceit, and set the record straight.” The government therefore urges us to interpret Free’s continued dishonesty as evidence that, as a matter of law, supports the conclusion that Free intended loss equal to the amount of debt that he sought to conceal.

The District Court, however, seemed to select a different approach and thus did not make a factual finding regarding the government’s view. The government, both in its briefing and at oral argument, argues that the District Court drew the explicit inference that Free intended to cause pecuniary harm to his creditors, among other victims. Reviewing the record on appeal, we simply disagree. The District Court relied primarily on the notion that Free harmed the judicial system by concealing assets. We believe that rationale is inconsistent with the Guidelines and incompatible with Feldman. Thus, we disagree with the District Court’s view that the concept of “loss” under the Guidelines is broad enough to cover injuries like abstract harm to the judiciary. In our view, “loss” has a narrower meaning—i.e., pecuniary harm suffered by or intended to be suffered by victims.

The government’s citations to cases from other circuits on this point are not persuasive. While courts have occasionally treated the value of concealed assets as the amount of loss in bankruptcy fraud cases, they have done so in circumstances where it was clear that the debtor would be unable to pay all of his creditors in full. These cases might support the government’s view if, at the time Free filed for bankruptcy, it was clear that Free’s liabilities exceeded his assets, or if Free had ■ concealed so many assets that the creditors were at risk of not being paid. But the District Court did not make such a finding.

Instead, we draw guidance from our colleagues in the Seventh Circuit. That court recently recognized that “the guidelines do not require a loss calculation greater than zero.” Rather, “[t]he loss determination is a special offense characteristic that increases the guidelines offense level” through “bonus punishment points, which express a reasonable estimation of the victim’s financial loss.” We agree with the proposition that the government is not entitled to a punitive loss calculation, even in cases involving fraud, absent evidence of actual or intended pecuniary loss.

It is true that the District Court stated at Free’s sentencing hearing “that it was certainly Mr. Free’s intention to conceal from the United States Bankruptcy Court and to cause a loss, to the extent that it was needed, materially in excess of a million dollars.” However, the District Court also stated, somewhat cryptically, that “Free had his reasons for both filing and persisting in the bankruptcy proceeding, [and] that Mr. Free had his reasons that were of value to him in not causing any of his lawyers to attempt to resolve the matter earlier.”

In our view, this is something short of an explicit factual finding that Free intended to harm his creditors by concealing assets. It is, at most, a finding that Free wanted to protect certain assets— especially his firearms—from the bankruptcy process. In any event, we do not think that the District Court actually made an explicit factual finding as to whom Free intended to harm or the gain he intended to secure by committing the offense. Any ambiguity on this point is clarified by the District Court’s opinion regarding Free’s motion for bail pending appeal. The District Court there said that “the principal basis for- the sentence [it] imposed” was “harm[] [to] the integrity of the judicial process”—not pecuniary harm, actual or intended, to Free’s creditors, or what he sought to gain from committing the crime. Feldman requires such a factual finding, and we thus remand to allow the District Court to determine what, if any, loss to creditors Free intended, or the gain he sought by committing the crime.

We of course appreciate the concerns expressed by both the government and the District Court regarding the integrity of the judicial system. U.S.S.G. § 2Bl.l(b)(9)(B) reflects, in part, this concern. We also agree with the District Court that it is sensible to punish fraudsters who conceal assets of greater value more harshly than defendants who conceal assets of lesser value. In the vast majority of cases, the loss calculation will have precisely this effect because, generally speaking, the reason defendants conceal assets in bankruptcy is to benefit themselves at the expense of their creditors. But here, the District Court has not made a finding as to whether Free had such an intent, and the parties disagree on this point. While we are sympathetic with the District Court’s desire to punish Free in a manner commensurate with his disrespect for the judiciary, we nonetheless conclude that inflating Free’s loss figure based on a theory of abstract harm to the judiciary is not an appropriate way to calibrate his sentence under the Guidelines.

This is not to say that Free will necessarily receive a lower sentence on remand. It is true that the District Court has already calculated that, if it were to apply a zero-dollar loss figure, the Guidelines range on remand would be 6-12 months on each count. But as we have already noted, the Guidelines embrace the view that an upward departure or variance may be appropriate when a defendant’s conduct results in extensive, albeit non-pecuniary, harm. We appreciate that the notes speak of non-pecuniary harm in terms of injury to actual victims, such as “physical harm, psychological harm, or severe emotional trauma.” Free’s flouting of the bankruptcy system, his blatant disrespect for judicial authority, and his repeated dissembling while under oath are not analogous to these kinds of injuries. But even at the most general level, the statutory sentencing factors require district courts to consider, among other things, “the need for the sentence imposed ... to reflect the seriousness of the offense, to promote respect for the law, and to provide just pun-ishraent for the offense.” Moreover, -the District Court may find it appropriate to depart on the basis that Free’s “conduct resulted in a.significant disruption of a governmental function” to reflect Free’s flagrant disregard for the Trustee’s .instructions, the Bankruptcy Court’s orders, and interference with the bankruptcy process. Free’s conduct may therefore be considered in favor of a sentence harsher than the one that would be suggested by the actual loss calculation.

We leave it to the District Court to consider these issues on remand and to determine an appropriate sentence consistent with the statutory sentencing factors and the applicable Sentencing Guidelines.

IV. Conclusion

For the foregoing reasons, we- will vacate the judgment of the , District Court and remand this case for resentencing.

      . App. VoL Vat 1123.

      . Feldman, 338 F.3d at 215 ("The determination of actual loss is relevant to the sentencing enhancement, since loss under the Sentencing Guidelines is the greater óf the actual loss caused by the defendant’s illegal actions or the amount of loss the defendant intended to cause.”). Thus, the Guidelines’ enhancements treat actual and intended loss on par.

      .App. Vol. V at 1107, 1160; Free Br. at 4 ("S&T Bank began foreclosure proceedings against two business properties owned by Appellant, Michael Free.... Because he feared that he would lose his business due to the foreclosure actions and the subsequent sheriff's sales, Mr. Free, through counsel, filed a Chapter 13 bankruptcy petition....”). However, the District Court did not make a factual finding accepting Free’s and his counsel's assertion that he filed bankruptcy for this reason. See App. Vol. V at 1123 ("The Court draws the inference that Mr. Free had his reasons for both filing and persisting in the bankruptcy proceeding, [and] that Mr. Free had his reasons that were of value to him in not causing any of his lawyers to attempt to resolve the matter earlier_”). The District Court in fact fpund Free's testimony wanting. See App. Vol. V at 1125 ("The Court had the opportunity to observe Mr. Free’s testimony in Court today, at the time of sentencing, and the Court found, essentially, none of it to be credible at all.”).

      . App. Vol. IV at 904. Free listed a secured claim against one of those assets in the amount of $303,251. Id.

        . Id. at 905-910.

      . The District Court did not make a factual finding as to Free’s actual net worth at the time he filed for bankruptcy, which remains somewhat mysterious given the extent of Free’s fraud on the Bankruptcy Court. Given that Free and the government plainly disagree about the relevant calculations, we decline to venture our own estimate here.

      . See, e.g., In re Schaitz, 913 F.2d 452, 453 (7th Cir. 1990) ("Chapter 13 provides, for individuals, a counterpart to Chapter 11 of the Bankruptcy Code, which authorizes the reorganization of bankrupt enterprises in lieu of their liquidation. Instead of the trustee’s seizing and selling the bankrupt’s nonexempt assets, as in a Chapter 7 proceeding, under Chapter 13 (as under Chapter 11) the bankrupt proposes a plan for the repayment of his debts out of future income.”).

      . Order, In re Michael J. Free d/b/a Electra Lighting & Elec. Co., No. 2-10-bk-25460 (CMB), ECF No. 71 (Bankr. W.D. Pa. Jan. 31, 2011) (hereinafter "Free Bankruptcy," with ECF filing dates in parentheses). The Court converted the proceeding after Free failed to file a payment plan. Id.; Proceeding Memorandum, Free Bankruptcy, ECF No. 70 (Jan. 31,2011).

      . In re Michael, 699 F.3d 305, 306 n.1 (3d Cir. 2012).

      . Id. at 306.

      . In re Messina, 687 F.3d 74, 79 (3d Cir. 2012); see also 2 Bankruptcy Law Manual § 10:9 (5th ed. updated through 2016) (explaining that, in a Chapter 7 case “where there are assets for distribution to creditors ... the trustee serves as the representative of the estate aggressively looking for ways to maximize assets that can be distributed to unsecured creditors”).

      . Notice of Appointment of Interim Trustee and Determination of Trustee Bond, Free Bankruptcy, ECF No. 75 (Feb. 2, 2011).

      . App. Vol. V at 977 (Tr. of Mar. 2, 2011 creditors’ meeting).

      . Id.

      . Trustee’s Compl. to Compel Turnover of Property of the Bankruptcy Estate, Free Bankruptcy, ECF No. 98 (Mar. 30, 2011).

      . App. Vol. II at 239-40 (discussing Free having purchased his own properties at auction); App. Vol. Ill at 447-48 ("I [Walsh] said:

        Where’s this money coming from? And [Free’s] response was in open court on the record that it was coming from his family and friends.”). See also Order Confirming Sales of Personal Property Free and Divested of Liens, Free Bankruptcy, ECF No. 134 (July 20, 2011) (indicating that Free purchased over $30,000 worth of inventory, including $8,500 worth of gun parts and ammunition).

      . In re Free, 466 B.R. 48, 55 (Bankr. W.D. Pa. 2012).

      . Mot. for Finding of Civil Contempt, Imposition of Sanctions, for Authority to "Junk” Assets, and Request for Expedited Hearing, Free Bankruptcy, ECF No. 180 (Oct. 17, 2011).

      . In re Free, 466 B.R. at 61.

      . Id. at 62 ("If the Court is convinced that compliance can be obtained only by incarceration, we will not hesitate to order the Debtor to be taken into custody.”),

      . Id. at 56.

      . Emergency Mot. for Finding of Civil Contempt, Imposition of Sanctions, for Authority for Liquidator to Take Possession of Weapons, Status Report, and Request for Expedited Hearing, Free Bankruptcy, ECF No. 291 (Mar. 19, 2032),

      . Id. at 4-5.

      . Id. at 6.

      . Order at 2, Free Bankruptcy, ECF No, 303 (Mar. 23, 2012).

      . Decl. of Michael J. Free, Free Bankruptcy, ECF No. 314 (Mar. 26, 2012).

      . App. Vol. II at 180 (in which Walsh testified that Free ‘‘had purported to sell guns to third parties and had collected substantial sums of money from those third parties for the guns”); App. Vol. V at 958-65 (summarizing evidence of Free’s gun sales between February 2011 and March 2012).

      . App. Vol. Ill at 518; see also App. Vol. V at 1166-69 (Westmoreland County Sheriffs Office Confiscation Forms from Mar. 27, 2012 search of Free’s home).

      . App. Vol. Ill at 486 (testimony of Deputy Sheriff Alex Turcheck).

      . Submission Pursuant to Orders of the Court Dated Feb. 27, 2012 & Mar. 23, 2012, Free Bankruptcy, ECF No. 315 (Mar. 27, 2012); see also App. Vol. V at 943-49 (same).

      . App. Vol. II at 184-89.

      . Status Report of Chapter 7 Trustee Dated Apr, 2, 2012 at 6, Free Bankruptcy, ECF No. 330 (Apr. 2, 2012),

      . Order at 2, Free Bankruptcy, ECF No. 337 (Apr, 3, 2012).

      . App. Vol. III at 518-19.

      . Id. at 532-35, 539.

      . App. Vol. II at 1-8.

      . 18 U.S.C. § 157 states that "[a] person who, having devised or intending to devise a scheme or artifice to defraud and for the purpose of executing or concealing such a scheme or artifice or attempting to do so—
      (1) files a petition under title 11, including a fraudulent involuntary petition under section 303 of such title;
      (2) files a document in a proceeding under title 11; or
      (3) malees a false or fraudulent representation, claim, or promise concerning or in relation to a proceeding under title 11, at any time before or after the filing of the petition, or in relation to a proceeding falsely asserted to be pending under such title,
      shall be fined under this title, imprisoned not more than 5 years, or both.”

      . 18 U.S.C. § 152 has nine subsections. Count V, which related to the concealment of assets, charged Free with violating subsections (1) and (2). Subsection (1) malees it unlawful to "knowingly and fraudulently conceal[] from a custodian, trustee, marshal, or other officer of the court charged with the control or custody of properly, or, in connection with a case under title 11, from creditors or the United States Trustee, any property belonging to the estate of a debtor.” Subsection (2) makes it unlawful to "knowingly and fraudulently make[ ] a false oath or account in or in relation to any case under title 11.” Count VI, which related to false statements made at the March 2011 creditors’ meeting, was brought under subsection (2) alone.

      . The District Court relied on the 2014 edition of the Sentencing Guidelines, as do we. See Gov’t Br. at 19 n.2.

      . United States v. Nagle, 803 F.3d 167, 179 (3d Cir. 2015), cert. denied, — U.S. -, 136 S.Ct. 1238, 194 L.Ed.2d 186 (2016). The current § 2B1.1 of the Guidelines incorporatés provisions previously located at § 2F1.1, That section "was deleted and consolidated with § 2B1.1 in 2001.” United States v. Dullum, 560 F.3d 133, 138 (3d Cir. 2009).

      . Nagle, 803 F.3d at 179,

      . Id.

      . App. Vol. V at 1048. The District Court pointed out that Free presumably used the proceeds from these sales to buy his own assets back during certain court-supervised auctions. See id. at 1053-54.

      . U.S.S.G. § 2B1.1(b)(1)(H).

      . Id. § 2B1.1(b)(1)®.

      . App. Vol. V at 1064 (“That’s the only argument I’m making, Judge. That to the extent the Court considers dollar value of relevance, we are way past the million dollar threshold for whatever consideration the Court wants to give to that fact.”).

      . Id. at 1070.

      . id.

      . Id. at 1082 ("[Ajren't the Sentencing Guidelines permitted and for the reasons making [sic] distinctions between people that hide a lot and people that don’t hide very much?”).

      . Id. at 1072.

      . Id. at 1092.

      . Id. at 1091.

        .Id. at 1096.

      . Id. at 1107, 1109 (in which Free stated that he told his lawyer that he “wanted everybody paid, right from the beginning,” and “did not want any kind of a write-off or anything”).. ,

      . Id. at 1108-09.

      . Id. at 1122.

      . Id. at 1123.

      . Id. at 1125.

      . Id. at 1126.

      . Id. at 1140,

      . U.S.S.G. § 2B1.1(b)(1)(H).

      . Id. § 2B1.1(b)(1)(I).

      . App. Vol. V at 984.-

      . Id. at 1045 ("The Court will adopt its tentative findings as they have been corrected on the record today....”).

      . U.S.S.G. § 2B 1.1 (b)(9)(B), (C). Under this provision, the defendant’s offense level increases to 10 if it is not that high already. In this case, Free’s offense level was already 20, leading only to the 2-level enhancement.

      . App. Vol. Vat 1127-28.

      . Id. at 1128.

      . Id. at 1143.

      . Id.

      . Id. at 1145.

      . United States v. Free, No. 2:14-CR-0019 (MRH), 2015 WL 8784738, at *2 (W.D. Pa. Dec. 15, 2015) (quoting United States v. Miller, 753 F.2d 19, 23 (3d Cir. 1985)).

      . Id.

      . Id. at *3.

      . Id. at *2 (emphasis added).

      . Id. at *5; see also supra note 65 (explaining that U.S.S.G. § 2B1.1(b)(9) increases a bankruptcy fraudster’s minimum offense level to 10).

      . Free, 2015 WL 8784738, at *5 (citing United States v. Langford, 516 F.3d 205, 211-15 (3d Cir. 2008)).

      . Id. at *6n. 11.

      . Id. at *6.

      . United States v. Brown, 3 F.3d 673, 680 (3d Cir. 1993) (quoting United States v. Frorup, 963 F.2d 41, 42 (3d Cir. 1992)).

      . United States v. Fumo, 655 F.3d 288, 310 (3d Cir. 2011), as amended (Sept. 15, 2011) (citing United States v. Jimenez, 513 F.3d 62, 86 (3d Cir. 2008)).

      . United States v. Ali, 508 F.3d 136, 145 (3d Cir. 2007) (quoting U.S.S.G. § 2B1.1, app. n. 3(C)).

      . Dullum, 560 F.3d at 137.

      . Nagle, 803 F.3d at 179 (quoting Fumo, 655 F.3d at 309).

      . Free Br. at 27.

      . United States v. Knight, 800 F.3d 491, 505 (8th Cir. 2015).

      . United States v. DeSantis, 237 F.3d 607, 613 (6th Cir. 2001).

      . United States v. Brennan, 326 F.3d 176, 199 (3d Cir. 2003).

      .18 U.S.C. §. 152(2).

      . The District Court wrote that "[w]hile Free's deceit plainly harmed the integrity of the judicial process—and this Court articulated that as the principal basis for the sentence imposed—it did not, however, appear to actually cause pecuniary harm [to] his creditors or anyone other than, perhaps, him.” Free, 2015 WL 8784738, at *2 (second alteration added).

      . U.S.S.G. § 2B1.1, app. n. 3(A)(i), (ii), (iii) (punctuation modified). The current sentencing guidelines, as revised in 2015, narrows "intended loss” to "pecuniary harm that the defendant purposely sought to inflict,” while still including intended pecuniary harm that would have been impossible or unlikely to occur.

      .We have said that "the Sentencing Guidelines commentary ‘is akin to an agency's in- ■ terpretation of its own legislative rules[,]’ [and] we will give the application notes 'controlling weight' unless the commentary ‘vió-lateos] the Constitution or a federal statute[ ]' or ‘is plainly erroneous or inconsistent with the regulation,’ ” United States v. Lianidis, 599 F.3d 273, 278 (3d Cir. 2010) (all alterations in original except second) (quoting Stin-

        son v. United States, 508 U.S. 36, 45, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993)).

      . U.S.S.G. § 2B1.1, app. n. 20(A) (“There may be cases in which the offense level determined under this guideline substantially understates the seriousness of the offense. In such cases, an upward departure may be warranted.”). One of the proffered examples where an upward departure might be merited is a case where “[t]he offense caused or risked substantial non-monetary harm.” Id. app. n. 20(A)(ii).

      . 338 F.3d 212 (3d Cir. 2003).

      . Id. at 214 (“Feldman filed a bankruptcy petition in which he vastly understated the amount of property he owned.”).

      . Id. at 215. The district court in Feldman declined to decide if the real estate that the defendant owned with his wife was actually exempt from bankruptcy, "reasoning instead that Feldman lost the right to claim the exemption when he failed to disclose the property.” Id.

      . Id. at 221 (emphasis in original).

      . Id. at 221-22 (alteration in original).

      . Id. at 223,

      . Id.

      . Id.

      . Id. at 222.

      . Id. at 216.

      . Id. at 223-24.

      . Id. at 223.

      . Gov't Br. at 55 (quoting Feldman, 338 F.3d at 223).

      . Id. at 56 (internal quotation marks omitted).

      . For example, the section heading for Part III.C.2 of the government’s brief states: “The District Court Correctly Ruled, As A Matter Of Law, That Free Intended A Loss.” Gov’t Br. at 55. It is worth noting that no citations to the record or to the District Court’s statements at Free's sentencing hearing appear in that section of the brief.
      Likewise, counsel for the government began her oral argument by stating: "The question before the Court today is whether the District Court correctly found Michael Free intended and thought that his conduct would cause an injury—cause a financial injury—to his creditors. The District Court said 'yes,’ and that decision was correct.” Oral Arg. Recording at 13:29, available at http://www2,ca3.uscourts. gov/oralargument/audio/15-2939USAvFree. mp3. Having carefully scrutinized the District Court’s statements at sentencing, and its opinion regarding Free’s motion for bail pending appeal, we are not so certain that the District Court made such a finding.

      . See, e.g., United States v. Walker, 29 F.3d 908, 913 n.4 (4th Cir. 1994) (noting that "the claims of Walker’s creditors totalled [sic] $3,444,191 while only $17,111 ultimately was distributed to two creditors after liquidation”).

      . See, e.g,, United States v. Hughes, 401 F.3d 540, 557 (4th Cir. 2005) ("The district court observed that at the time of the concealment it was far from clear that there would be sufficient assets to pay the creditors in full.... On that basis, the district court calculated thé amount of intended loss as the value of the assets concealed by Hughes.... ”).

      . United States v. Yihao Pu, 814 F.3d 818, 828 (7th Cir. 2016).

      . Id. at 828-29 (citation and internal quotation marks omitted).

      . App. Vol. Vat 1122.

      . Id. at 1123.

      . At times, the government seems to suggest that we should review the entire record in order to conduct our own fact-finding about whether Free intended to cause pecuni-aty harm. See, e.g., Gov’t Br. at 43 ("The full record, rather than Free’s preferred reliance on only parts of the record, establishes that the District Court had before it more than ample evidence to rule, as a matter of fact, that Free intended a loss.”). We decline the government’s invitation. It is true that we will generally not vacate a sentence "if the district court’s findings are 'plausible in light of the record viewed in its entirety.’ " United States v. Barrie, 267 F.3d 220, 223 (3d Cir. 2001) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)). But here, because we do not think that the District Court actually made an explicit factual finding as to whom Free intended to harm or the gain he sought to secure through the crime, there are no factual findings for us to review under the clear-error standard at all.

      . Free, 2015 WL 8784738, at *2 (emphasis added).

      . See Feldman, 338 F.3d at 221-23.

      . Free, 2015 WL 8784738, at *5.

      . See supra note 92 and accompanying text.

      . U.S.S.G. § 2B1.1, app. n. 20(A)(ii).

      . 18 U.S.C. § 3553(a)(2)(A).

      . U.S.S.G. § 5K2.7 (“If the defendant's conduct resulted in a significant disruption of a governmental function, the court may increase the sentence above the authorized guideline range to reflect the nature and extent of the disruption and the importance of the governmental function affected.”). See also United States v. Thayer, 201 F.3d 214, 228 n.15 (3d Cir. 1999) (“[W]e do not foreclose the district courts' option to depart upward under U.S.S.G. § 5K2.0 in appropriate cases of bankruptcy fraud_”).

      . Cf. United States v. Lipscomb, 284 Fed.Appx. 924, 928 (3d Cir. 2008) (affirming an above-Guidelines-range sentence for a bankruptcy fraudster whom the district court characterized as a "serial abuser of the judicial system” and in which the District Court noted that "I’m going to sentence you to a term of imprisonment above the sentencing guideline range because I believe you are outside the ordinary case here.”). In addition, the government appeared confident at oral argument that it could show that Free actually did intend to cause pecuniary harm to hjs creditors. See, e.g., Oral Arg. Recording, supra note 107, at 14:01 ("As a matter of fact ... the only reason the creditors were paid 100% on the dollar is because the fraud was discovered and concealed assets were liquidated to pay off those creditors.”). Moreover, tangible harm may include administrative expenses that the estate incurred as a result of Free’s actions. See United States v. Edgar, 971 F.2d 89, 95 (8th Cir. 1992) (deeming it appropriate to consider in the calculation of intended loss “the foreseeable costs of administering the estate”).


source: Caselaw Access Project

author: RENDELL, Circuit Judge.

license: Public Domain

text:
    Bobbi-Jo SMILEY; Amber Blow; Kelsey Turner, Appellants v. E.I. DUPONT DE NEMOURS AND COMPANY; Adecco USA, Inc.
    No. 14-4583
    United States Court of Appeals, Third Circuit.
    Argued July 14, 2016
    (Opinion Filed: October 7, 2016)

      (District Court No.: 3-12-cv-02380)
    District Judge: Honorable James M. Munley
    Thomas M. Marrone, Esq. [ARGUED], MoreMarrone, 1601 Market Street, #2600, Philadelphia, PA 19103, Patricia V. Pierce, Esq., Greenblatt Pierce Engle Funt & Flores, 123 South Broad Street, Suite 2500, Philadelphia, PA 19109, Counsel for Appellants, Bobbi-Jo Smiley, Amber Blow, and Kelsey Turner
    David S. Fryman [ARGUED], Ballard Spahr, 1735 Market Street, 51st Floor, Philadelphia, PA 19103, Amy L. Bashore, Ballard Spahr, 210 Lake Drive East, Suite 200, Cherry Hill, NJ 08002, Counsel for Appellee, E. I. du Pont de Nemours and Company
    A. Patricia Diulus-Myers, Jackson Lewis, 1001 Liberty Avenue, Suite 1000, Pittsburgh, PA 15222, Eric R. Magnus, Jackson Lewis, 115 Peachtree Street, N.E., Suite 1000, Atlanta, GA 30309, Counsel for Ap-pellee, Adecco USA, Inc.
    Rachel Goldberg, Esq. [ARGUED], United States Department of Labor, Division of Fair Labor Standards, Room N2716, 200 Constitution Avenue, N.W., Washington, DC 20210, Counsel for Ami-cus Curiae, Secretary, United States Department of Labor
    Before: VANASKIE, KRAUSE, and RENDELL, Circuit Judges
   OPINION

RENDELL, Circuit Judge.

Plaintiffs Bobbi-Jo Smiley, Amber Blow, and Kelsey Turner appeal the District Court’s grant of summary judgment in favor of Appellees E.I. DuPont De Nem-ours & Company and Adecco USA, Inc. (collectively, “DuPont”) on their claims under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq. and Pennsylvania’s Wage Payment and Collection Law (“WPCL”), 43 P.S. § 260.1, et seq. Plaintiffs filed a putative collective action and class action against DuPont, seeking overtime compensation for time they spent donning and doffing their uniforms and protective gear and performing “shift relief” before and after their regularly-scheduled shifts. DuPont contended that it could offset compensation it gave Plaintiffs for meal breaks during their shift—for which DuPont was not required to provide compensation under the FLSA—against such required overtime.

The District Court agreed with DuPont. We conclude that the FLSA and applicable regulations, as well as our precedent in Wheeler v. Hampton Twp., 399 F.3d 238 (3d Cir. 2005), compel the opposite result and will therefore reverse the District Court’s grant of summary judgment and remand for further proceedings.

I.

Appellants worked twelve-hour shifts at DuPont’s manufacturing plant in Towanda, Pennsylvania. In addition to working their twelve-hour shifts, Plaintiffs had to be on-site before and after their shifts to “don and doff’ uniforms and protective gear. DuPont also required them to participate in “shift relief,” which involved employees from the outgoing shift sharing information about the status of work with incoming shift employees. The time spent donning, doffing, and providing shift relief varied, but ranged from approximately thirty to sixty minutes a day.

DuPont chose to compensate Plaintiffs for meal breaks—despite no FLSA requirement to do so—during their twelve-hour shifts. The employee handbook set forth DuPont’s company policy for compensating meal breaks, stating that “Employees working in areas requiring 24 hour per day staffing and [who] are required to make shift relief will be paid for their lunch time as part of their scheduled work shift.” Employees who worked twelve-hour, four-shift schedules, as did Plaintiffs in this case, were entitled to one thirty minute paid lunch break per shift, in addition to two non-consecutive thirty minute breaks. The paid break time always exceeded the amount of time Plaintiffs spent donning and doffing and providing shift relief.

DuPont treated the compensation, for meal breaks similarly to other types of compensation given to employees. It included the compensation given for paid meal breaks when it calculated employees’ regular rate of pay, and meal break time was included in employees’ paystubs as part of their total- hours worked each week.

Plaintiffs brought this putative collective action and class action against DuPont, claiming that DuPont violatéd the FLSA and WPCL by requiring Plaintiffs to work before and after their twelve-hour shifts without paying them overtime, i.e,, time and one-half, compensation. Plaintiffs sought to recover overtime compensation for time spent donning and doffing their uniforms and protective gear and performing shift relief. DuPont argued that their claims fail because it could offset the paid breaks DuPont voluntarily provided Plaintiffs against the unpaid donning and doffing and shift-relief time. Plaintiffs filed a motion to conditionally certify a FLSA collective action, which the District Court granted. Plaintiffs’ counsel sent a notice of the FLSA class to the prospective class members, and more than 160 workers opted in. Following the close of discovery, DuPont filed its motion for summary judgment.

The District Court granted DuPont’s motion for summary judgment, holding that the FLSA allowed DuPont to use paid non-work time to offset the required overtime and dismissing the lawsuit entirely. The District Court held that Plaintiffs were not owed any additional compensation because the amount of paid non-work time exceeded unpaid work time. Although it recognized that “[t]he FLSA does not expressly grant employers permission to use paid non-work time to offset unpaid work time,” App. 12, the District Court nonetheless concluded offset was not specifically prohibited and therefore granted summary judgment in favor of DuPont.

Prior to oral argument, we invited the Department of Labor (“DOL”) to file an amicus brief to assist us in understanding the intricacies of the important FLSA issue presented by this case. At our request, the DOL and DuPont each filed letter briefs further addressing how we should analyze the issue of offsetting paid non-work time against unpaid time worked under the FLSA. We are to give deference to the DOL’s position and guidelines under Skidmore v. Swift, 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944). See Madison v. Res. for Human Dev., Inc., 233 F.3d 175, 186 (3d Cir. 2000) (“[Ijnformal agency interpretations in ‘opinion letters and similar documents’ are .... ‘entitled to respect’ under Skidmore v. Swift ... but only to the extent they have the ‘power to persuade.’”) (internal footnote omitted). Under Skidmore, “[t]he weight of [an agency’s] judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Skidmore, 323 U.S. at 140, 65 S.Ct. 161.

II.

The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367(a). We have jurisdiction under 28 U.S.C. § 1291.’ We exercise plenary review over the District Court’s interpretation of the FLSA and its grant of summary judgment. Rosano v. Twp. of Teaneck, 754 F.3d 177, 184 (3d Cir. 2014). Additionally, we note that “the FLSA must be construed liberally in favor of employees” and “exemptions should be construed narrowly, that is, against the employer.” Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d Cir. 2008).

III.

To provide context for the ultimate issue before us, we begin by reviewing the contours of the FLSA and the circumstances in which an employer may offset compensation already given to an employee against required overtime.

A. Overtime and Calculating Regular Rate Under the FLSA

We have noted that the FLSA has a “broad remedial purpose.” De Asencio v. Tyson Foods, Inc., 500 F.3d 361, 373 (3d Cir. 2007), “The central aim of the Act was to achieve ... certain minimum labor standards.” Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 292, 80 S.Ct. 332, 4 L.Ed.2d 323 (1960). The Act established baseline standards through “federal minimum-wage, maximum-hour, and overtime guarantees that cannot be modified by contract.” Genesis Healthcare Corp. v. Symczyk, — U.S. -, 138 S.Ct. 1523, 1527, 185 L.Ed.2d 636 (2013).

Among the bedrock principles of the FLSA is the requirement that employers pay employees for all hours worked. 29 C.F.R. § 778.223 (“Under the Act an employee must be compensated for all hours worked.”); see also Ballaris v. Wacker Siltronic Corp., 370 F.3d 901, 913 (9th Cir. 2004) (“One of the principal purposes of the FLSA is to ensure that employees are provided appropriate compensation for all hours worked.”) (emphasis in original). Pursuant to the FLSA, employers cannot employ any employee “for a workweek longer than forty hours unless such employee receives compensation for his employment ... at a rate not less than one and one-half times the regular rate at which he is employed.” 29 U.S.C. § 207(a)(1). In other words, employers are required to compensate employees for time in excess of forty hours with overtime compensation, which is paid at a rate of one and one-half times the employee’s regular rate of pay.

The regular rate at which an employee is paid for “straight time”—or the first forty hours of work in a week—is integral to the issue of overtime payment under the FLSA. The regular rate is determined by way of a calculation. It is a “rate per hour” that “is determined by dividing [the] total remuneration for employment (except statutory exclusions) in any workweek by the total number of hours actually worked by him in that workweek for which such compensation was paid.” 29 C.F.R. § 778.109. Thus, the regular rate is a readily definable mathematical calculation that is explicitly controlled by the FLSA. Walling v. Youngerman-Reynolds Hardwood Co., 325 U.S. 419, 424-25, 65 S.Ct. 1242, 89 L.Ed. 1705 (1945) (“Once the parties have decided upon the amount of wages and the mode of payment the determination of the regular rate becomes a matter of mathematical computation, the result of which is unaffected by any designation of a contrary ‘regular rate’ in the wage contracts.”). As the Supreme Court has explained, the regular rate “is not an arbitrary label chosen by the parties; it is an actual fact,” that “by its very nature must reflect all payments which the parties have agreed shall be received regularly during the workweek, exclusive of overtime payments.” Id. at 424, 65 S.Ct. 1242; 29 C.F.R. § 778.108 (citing Bay Ridge Operating Co. v. Aaron, 334 U.S. 446, 68 S.Ct. 1186, 92 L.Ed. 1502 (1948), and Walling, 325 U.S. at 419, 65 S.Ct. 1242). There are two components to the calculation: (1) the dividend, which includes total remuneration minus statutory exclusions; and (2) the divisor, which includes all hours worked. See 29 C.F.R. § 778.109.

The FLSA characterizes the compensation that must be included in the dividend of the regular rate calculation broadly. It “include[s] all remuneration for employment paid to, or on behalf of, the employee” except the exclusions that are listed in section 207(e)(1)-(8). 29 U.S.C. § 207(e) (emphasis added). Further, “[o]nly the statutory exclusions are authorized— [A]ll remuneration for employment paid which does not fall within one of these seven exclusionary clauses must be added into the total compensation received by the employee before his regular hourly rate of pay is [to be] determined.” 29 C.F.R. § 778.200(c) (emphasis added). We have recognized that “there are several exceptions to the otherwise all-inclusive rule set forth in section 207(e),” but the statutory exclusions “are narrowly construed, and the employer bears the burden of establishing [that] an exemption [applies].” Minizza v. Stone Container Corp. Corrugated Container Div. E. Plant, 842 F.2d 1456, 1459 (3d Cir. 1988) (internal citations omitted). Thus, although a handful of types of compensation are statutorily excluded from the definition of “all remuneration,” all other compensation is included in the regular rate.

The divisor in the regular rate calculation is comprised of all “hours worked.” 29 C.F.R. § 778.223. “Hours worked” includes all hours worked “under [an employee’s] contract (express or implied) or under any applicable statute.” 29 C.F.R. § 778.315. In general, “hours worked” includes time when an employee is required to be on duty, but it is not limited to “active productive labor” and may include circumstances that are not productive work time. See 29 C.F.R. § 778.223. Employers have a measure of flexibility in determining whether otherwise non-productive work time will be considered “hours worked” under the FLSA. For instance, meal periods—while not necessarily productive work time—may nevertheless be considered “hours worked” under the Act. Id. (“Some of the hours spent by employees ... in meal periods ... are regarded as working time and some are not. ... To the extent that those hours are regarded as working time, payment made as compensation for these hours obviously cannot be characterized as ‘payments not for hours worked.’ ”). The decision to treat otherwise non-productive work time as “hours worked” is fact dependent. Relevant here, the regulations provide that “[p]reliminary and postliminary activities and time spent in eating meals between working hours fall into this category [of work that an employer may compensate his employees for even though he is not obligated to do so under the FLSA.] The agreement of the parties to provide compensation for such hours may or may not convert them into hours worked, depending on whether or not it appears from all the pertinent facts that the parties have agreed to treat such time as hours worked.” 29 C.F.R. § 778.320.

Thus, if the time at issue is considered hours worked under the Act, the corresponding compensation is included in the regular rate of pay. 29 C.F.R. § 778.223. Whether or not the time is considered hours worked under the Act, however, if the time is regarded by the parties as working time, “the payment is nevertheless included in the regular rate of pay unless it qualifies for exclusion from the regular rate as one of a type of ‘payments made for occasional periods when no work is performed due to failure of the employer to provide sufficient work, or other similar cause’ as discussed in § 778.218 or is ex-cludable on some other basis under section 7(e)(2).” Id.

B. Permissible Offsetting Under the FLSA

The FLSA explicitly states when an employer may use certain compensation already given to an employee as a credit against its overtime liability owed to that employee under the Act. Offsetting with already-disbursed compensation against incurred overtime is discussed in section 207(h), which states:

(1) Except as provided in paragraph (2), sums excluded from the regular rate pursuant to subsection (e) shall not be creditable toward wages required under section 6 or overtime compensation required under this section.
(2) Extra compensation paid as described in paragraphs (5), (6), and (7) of subsection (e) of this section shall be creditable toward overtime compensation payable pursuant to this section.

29 U.S.C. § 207(h)(l)~(2) (emphasis added). As noted above, subsection (e) sets forth the exclusions from the regular rate. Thus, the FLSA explicitly permits offsetting against overtime only with certain compensation that is statutorily excluded from the regular rate, that is, only three categories of compensation, which are “extra compensation provided by a premium rate.” Id. § 207(e)(5)-(7). Unlike the compensation addressed by the other exclusions, the three categories of excludable compensation that qualify for the offsetting provision at section 207(h)(2) are paid at a premium rate. Accordingly, we have previously characterized these three categories listed in section 207(e)(5)—(7) as “dollar-for-dollar credit[s] for premium pay” and limited permissible employer offsets to only those premium payments. See Wheeler v. Hampton Twp., 399 F.3d 238, 245 (3d Cir. 2005). The regulations also support limiting employers’ ability to offset overtime liability. Only extra compensation that falls within sections 207(e)(5), (6), and (7) may be creditable—“[n]o other types of remuneration for employment may be so credited.” See 29 C.F.R. § 778.201(c).

IV.

Nothing in the FLSA authorizes the type of offsetting DuPont advances here, where an employer seeks to credit compensation that it included in calculating an employee’s regular rate of pay against its overtime liability. Rather, the statute only provides for an offset of an employer’s overtime liability using other compensation excluded from the regular rate pursuant to sections 207(e)(6)—(7) and paid to an employee at a premium rate.

In Wheeler, as here, the employer, Hampton Township, had voluntarily included non-work pay—which did not need to be included in the regular rate under the Act—in the regular rate calculation. It sought to offset compensation it was required to include in the regular rate, but did not, with compensation it voluntarily chose to include in the regular rate. Wheeler, 399 F.3d at 243. We held that this was not permitted. We could not find any “textual reason to ‘credit’ the Township for ineluding such pay in its regular rate.” Id. at 244. We explained that “while § 207(e) protects the Township from having to include non-work pay in the regular rate, it does not authorize the Township now to require such augments to be stripped out, or to take a credit for including such augments.” Id. In essence, at the point at which compensation is included in the regular rate (regardless of whether the Act required it be included), an employer may not use that compensation to offset other compensation owed under the Act. We determined that “[w]here a credit is allowed, the statute says so.” Id. at 245. The Township was not entitled to a credit under the explicit offset contemplated by section 207(h), so we concluded that the FLSA did not permit the offset. Id. (“The Township seeks a credit for allegedly including non-work pay—presumably at a non-premium rate—in the CBA’s basic annual salary. The FLSA does not provide for such an offset”).

We based our conclusion that offsetting was limited to the type addressed by section 207(h) on our recognition that Section 207(h) offsetting pertained only to “extra compensation,” which is distinct from regular straight time pay. Wheeler, 399 F.3d at 245. Indeed, “such ‘extra compensation’ is a kind of overtime compensation, and thus need not be added to the regular rate. Likewise, such compensation may be credited against the Act’s required overtime pay.” Id. Courts have widely recognized that an employer may offset its overtime liability with accumulated premium pay given to employees under sections 207(e)(5)-(7). See, e.g., Singer v. City of Waco, 324 F.3d 813, 828 (5th Cir. 2003); Kohlheim v. Glynn Cty, 915 F.2d 1473, 1481 (11th Cir. 1990). The offset created by section 207(h) is logical because it authorizes employers to apply one type of premium pay to offset another, both of which are excluded from the regular rate. See 29 U.S.C. § 207(e). It is undisputed that the compensation paid for meal breaks was included in plaintiffs’ regular r^te of pay, and thus could not qualify as “extra compensation.” Accordingly, DuPont may not avail itself of the offset provisions explicitly allowed by § 207(h)(2).

DuPont argues that the FLSA’s failure to expressly prohibit offsetting where the compensation used to offset is included in the regular ráte indicates that offsetting is allowed. We disagree with DuPont’s notion that the FLSA’s silence indicates permission. While it is true that the statute does not explicitly set forth this prohibition, the policy rationales underlying the FLSA do not permit crediting compensation used in calculating an employee’s regular rate of pay because it would allow employers to double-count the compensation. The DOL convincingly urges this viewpoint. It observes that “[t]here is no authority for the proposition that compensation already paid for hours of work can be used as an offset and thereby be counted a second time as statutorily required compensation for other hours of work.” DOL Letter Br. 6. Further, “there is no reason to distinguish between compensation for productive work time and compensation for bona fide meal breaks.” Id. Compensation included in, and used in calculating, the regular rate of pay is reflective of the first forty hours worked. We agree with the reasoning of the DOL that allowing employers to then credit that compensation against overtime would necessarily shortchange employees.

The statutory scheme that limits crediting to the three types of “extra compensation” excluded from the regular rate against overtime obligations makes sense. “To permit overtime premium to enter into the computation of the regular rate would be to allow overtime premium on overtime premium—a pyramiding that Congress could not have intended.” Bay Ridge Operating Co. v. Aaron, 334 U.S. 446, 464, 68 S.Ct. 1186, 92 L.Ed. 1502 (1948). Excluda-ble premium compensation may offset other excludable premium compensation. To allow compensation included in the regular rate to offset premium-rate pay, however, would facilitate a “pyramiding” in the opposite direction by allowing employers to pay straight time and overtime together. This approach fundamentally conflicts with the FLSA’s concern that employees be compensated for all hours worked. As the Ninth Circuit observed in Ballaris, “it would undermine the purpose of the FLSA if an employer could use agreed-upon compensation for non-work time (or work time) as a credit so as to avoid paying compensation required by the FLSA.” Ballaris, 370 F.3d at 914.

While Ballaris is distinguishable because the employer in that case excluded meal break compensation when calculating the employee’s regular rate and the parties agreed that the meal break period was excluded from each employee’s hours worked, its reasoning nonetheless applies here. The Ninth Circuit concluded that “[c]rediting money already due an employee for some other reason against the wage he is owed is not paying that employee the compensation to which he is entitled by statute. It is, instead, false and deceptive ‘creative’ bookkeeping that, if tolerated, would frustrate the goals and purposes of the FLSA.” 370 F.3d at 914 (internal footnote omitted). Here, permitting DuPont to use pay given for straight time—and included in the regular rate of pay—as an offset against overtime pay is precisely the type of “creative bookkeeping” that the Ninth Circuit cautioned against and the FLSA sought to eradicate.

While the District Court cited Wheeler in passing, it did not apply our holding but, instead, looked at the two circumstances that the statute expressly states preclude offsetting by an employer:

First, employers cannot use paid non-work time to offset unpaid work time when the paid non-work time is excluded from the regular rate of pay. Second, if the parties agree to treat paid non-work time as “hours worked,” and this time is included in the regular rate of pay, the employer cannot offset.

App. 12. The District Court concluded that because neither of these circumstances was present in this case, the FLSA does not expressly prohibit an offset. It recited the prohibition set forth in 29 U.S.C. § 207(h)(1), which generally bars employers from offsetting incurred overtime liability with sums excluded from the regular rate of pay. The District Court observed that “defendants cannot offset if the FLSA expressly excludes plaintiffs meal periods—non-work time—from plaintiffs’ regular rate of pay.” App. 12-13. After reviewing section 207(e)’s list of mandatory exclusions from the regular rate of pay, it concluded that the one category of exclusions that was arguably implicated by the facts, 29 U.S.C. § 207(e)(2), was not applicable because the meal periods were not the type of absences covered by the exclusion. “Accordingly, section 207(e)(2) does not prohibit defendants from including plaintiffs’ meal period time in their regular rate of pay, rendering section 207(h)’s prohibition against an offset inapplicable.” App. 14. Thus, like DuPont, the District Court focused on the lack of express prohibition. In light of our holding in Wheeler that offsetting is limited to circumstances where an employer is paying “extra compensation” at a premium rate, we reject the District Court’s reasoning that the absence of a direct prohibition controls the analysis of the offset issue.

Moreover, we do not accept the significance that the District Court and DuPont place on two lingering issues: first, whether the parties had an agreement to treat the breaks in question as hours worked, and second, whether the FLSA required DuPont to compensate the employees for the breaks in question. With respect to the former, both the Ninth Circuit in Ballaris and the FLSA’s implementing regulations advance the notion that employers may not offset if there is an agreement to treat otherwise uncompensable time as “hours worked,” and the compensation at issue is included in the regular rate. But inclusion in the regular rate is sufficient for our purposes, as noted above, so the existence of an agreement is beside the point. As to the latter, 29 C.F.R § 785.19 simply states that employers are not required by the FLSA to treat meal breaks as hours worked, but it does not prohibit them from doing so. Indeed, section 778.320 expressly contemplates that an employer may agree to treat non-work time, including meal breaks, as compensable hours worked.

The District Court relied on the Seventh Circuit’s opinion in Barefield v. Village of Winnetka, 81 F.3d 704 (7th Cir. 1996), and the Eleventh Circuit’s opinion in Avery v. City of Talladega, 24 F.3d 1337 (11th Cir. 1994), in concluding that DuPont could offset using meal break compensation. The two opinions did not analyze the offset issue in detail, but instead focused on com-pensability. The courts in both Barefield and Avery presumed an offset was permissible and focused on the fact that the FLSA did not require employers to compensate employees for the bona fide meal break periods at issue. Notably, neither opinion addresses the most relevant provision in the FLSA on the issue of offsetting—29 U.S.C. 207(h). Given our holding in Wheeler, limiting offsetting to “extra compensation” not included in the regular rate, it' is irrelevant whether the breaks were compensable.

Y.

For the reasons discussed above, we will reverse the District Court’s decision of November 5, 2014, and remand for further proceedings consistent with this opinion.

      . DuPont directly employed Bobbi-Jo Smiley . and Amber Blow. Adecco employed hourly contract employees at the Towanda plant, including Kelsey Turner.

      , The parties agree that Plaintiffs' meal breaks were bona fide breaks.

      .The District Court assumed, without deciding, that Plaintiffs' pre- and post-shift work was compensable under the FLSA.

      . Plaintiffs' amended complaint also alleges claims under the WPCL. The District Court below did not evaluate the WPCL claim, and the parties have not significantly briefed the WPCL claim on appeal. We have recognized that “[t]he FLSA and WPCL are parallel federal and state laws." De Asencio v. Tyson Foods, Inc., 342 F.3d 301, 308 (3d Cir. 2003). However, their parallel nature does not mean that they are identical, and material differences between the two claims could.exist. See, e.g., id, at 309-10 ("Even then, whether an implied contract may give rise to a claim under the WPCL has never been addressed by the Pennsylvania state courts and will require additional testimony and proof to substantiate beyond that required for the FLSA action.”); id. at 309 n.13 ("There are some differences in the comprehensiveness of the federal and state remedies as well since the FLSA remedy is only for overtime pay and the WPCL remedy is broader,”). As the FLSA claim was the thrust of both the District Court opinion and briefing before this Court, we express no view on the merits of the WPCL claim.

      . The regulations appear somewhat inconsistent as to whether payments made for meal breaks may be excluded from the regular rate pursuant to the exception listed at section 207(e)(2). One part of the regulations states that the exclusion described in section 207(e)(2) “deals with the type of absences which are infrequent or sporadic or unpredictable. It has no relation to regular ‘absences’ such as lunch periods.” 29 C.F.R. § 778.218. Another section, 29 C.F.R. § 778.320(b), makes clear that when there is an agreement to treat compensation given for meal breaks not as "hours worked,” the compensation is excluded from the regular rate under section 207(e)(2). Whether compensation for meal breaks is excludable from the regular rate pursuant to section 207(e)(2) is ultimately irrelevant in situations such as this one, where the employer has included it in the regular rate.

      . The three portions of subsection (e) relevant to offsetting are:
      (5) extra compensation provided by a premium rate paid for certain hours worked by the employee in any day or workweek because such hours are hours worked in excess of eight in a day or in excess of the maximum workweek applicable to such employee under subsection (a) or in excess of the employee’s normal working hours or regular working hours, as the case may be;
      (6) extra compensation provided by a premium rate paid for work by the employee on Saturdays, Sundays, holidays, or regular days of rest, or on the sixth or seventh day of the workweek, where such premium rate is not less than one and one-half times the rate established in good faith for like work performed in nonovertime hours on other days;
      (7)extra compensation provided by a premium rate paid to the employee, in pursuance of an applicable employment contract or collective-bargaining agreement, for work outside of the hours established in good faith by the contract or agreement as the basic, normal, or regular workday (not exceeding eight hours) or workweek (not exceeding the maximum workweek applicable to such employee under subsection (a) of this section, where such premium rate is not less than one and one-half times the rate established in good faith by the contract or agreement for like work performed during such workday or workweek; ....
      29 U.S.C. § 207(e)(5)-(7).

      . The "premium” nature of compensation referenced in § 207(h)(2) is important. Indeed, at least one court has not allowed offsetting unless the premium payment made was one and one-half times the regular rate of pay, or equivalent to the overtime rate. See O’Brien v. Town of Agawam, 508 F.Supp.2d 142, 146 (D. Mass. 2007) ("Because the payments at issue are less than one-and-one-half times'Plaintiffs’ regular rate of pay, they cannot be used to offset the Town’s overall liability, regardless of when or how these payments were made.”).

      . Ultimately, the District Court rejected Plaintiffs' argument that there was an agreement to treat the meal periods as hours worked, stating that DuPont’s decision to compensate for meal breaks did not convert them into hours worked, the policy did not create a contract deeming the time hours worked, and the meal periods were bona fide. “Ergo, the FLSA does not expressly preclude defendants from offsetting plaintiffs[’] unpaid donning and doffing and shift relief time with the paid meal period time.” App. 25.