United States District Court, D. Colorado
DESIRE HODGE, individually, and on behalf of all others similarly situated, Plaintiff,
SIGNIA MARKETING, LTD, and JEFFREY FELL, Defendants.
Kathleen M. Tafoya, Magistrate Judge.
matter is before the court for final approval of a settlement
following the fairness hearing on November 27, 2017.
Fair Labor Standards Act (“FLSA”) provides that
an employee or multiple employees may bring an action
“[on] behalf of himself or themselves and other
employees similarly situated.” 29 U.S.C. § 216(b).
The Second Amended Complaint [Doc. No. 26] was filed on March
17, 2016. On June 13, 2016, this court conditionally
certified the collective as, “all former and current
hourly workers of Defendants from December 31, 2012 to the
present who were paid at a straight time rate for
overtime.” [Doc. No. 32.]
October 24, 2017, this court granted the parties'
“Joint Motion for Preliminary Approval of Settlement
Agreement and Final Fairness Hearing” and the
“Plaintiff's Unopposed Motion for Attorney's
Fees and Costs.” (“October 24 Order” [Doc.
No. 68].) In the eighteen-page Order approving the settlement
of the FLSA claims, the court made findings of fact and
conclusions of law regarding the existence of a bona fide
dispute and a finding that the settlement proposed is fair
and reasonable and also found the attorney fees and costs to
be reasonable after analysis under the lodestar methodology.
The court therefore adopts in full the October 24 Order and
reaffirms the findings and conclusions therein as part of
this final approval of settlement.
final approval of a settlement, the court must address the
issue of final certification of the class or collective.
See Thiessen v. General Electric Capital Corp., 267
F.3d 1095, 1102-03 (10th Cir. 2001). In particular the court
must determine whether class members are similarly situated.
Brown v. Money Tree Mortgage, Inc., 222 F.R.D. 676,
679 (D. Kan. 2004). In deciding whether to grant final
certification to a collective action, courts consider several
factors, including: (1) the disparate factual and employment
settings of individual plaintiffs; (2) various defenses
available to defendant which appear to be individual to each
plaintiff; and (3) fairness and procedural considerations.
See Thiessen, 267 F.3d at 1103; Gassel v. Am.
Pizza Partners, L.P., No. 14-CV-00291-PAB-NYW, 2015 WL
5244917, at *2 (D. Colo. Sept. 8, 2015).
Amended Complaint (“Am. Compl.”), Plaintiff
alleges that “Plaintiff and all other similarly
situated employees were forced by Defendants and regularly
worked overtime without proper pay.” [Doc. No. 26,
¶ 38.] Plaintiff states, “Throughout
Plaintiff's employment with Defendants, Plaintiff was
paid at straight time rate for overtime hours recorded during
many workweeks” (id., ¶ 42), and
“[t]he other Supervisors and Customer Service
Representatives were paid in a similar manner”
(id., ¶ 43). In her Declaration attached to the
Reply Plaintiff states she was “employed by Defendants
as an hourly paid employee from approximately April 2014 to
December 2014 and from July 2015 to December 2015.”
[Doc. No. 30-2, ¶ 2.] Further, she states,
“[t]hrough my employment time period with the
Defendants, I worked in three (3) different positions -
Customer Service Representative (“CSR”), Floor
Lead and Floor Supervisor.” [Id., ¶ 3.]
Plaintiff states that she supervised up to 35 CSRs and 2
Floor leads during her tenure of employment. [Id.,
¶¶ 16-17.] Plaintiff states that regardless of
which job she was performing, “Defendants paid me at
straight time rate for hours recorded over forty (40) in a
workweek, without a premium.” [Id., ¶
20.] Further, Plaintiff alleges, “Defendants'
policy and practice of straight time rate for overtime pay
was applicable the other CSRs, Floor Leads and Floor
Supervisors” (id., ¶ 21) and that
“[t]he payroll records will show on their face exactly
what I'm complaining about on behalf of myself and all
the others who were shorted pay” (id., ¶
22). Plaintiff alleges that “[t]here are hundreds of
hourly employees, such as CSRs, Floor Leads and Floor
Supervisors, who were/are subjected to Defendants' wage
policy and practice described above.” [Id.,
¶ 24.] In her Amended Complaint, the Plaintiff concludes
that “[a]t all relevant times, Plaintiff and all other
similarly situated employees worked in the manner described
above and Defendants encouraged, instructed, and required
them to work in such manner.” [Am. Compl., ¶ 54.]
Further, Plaintiff alleges that Defendants automatically
deducted lunch breaks from Supervisors' pay even though
they worked through many of those unpaid lunch breaks and
that Defendants failed to compensate Plaintiff and all other
Supervisors wages for working off the clock and overtime
compensation at time and a half (1.5) their regular rate of
pay. [Id., ¶¶ 87-88.]
full opportunity to examine the opt-in Plaintiffs, the
Defendant has not filed a decertification motion and
therefore has conceded that the Plaintiff opt-ins are
similarly situated. Therefore, it is ordered that the
collective described as “all former and current hourly
workers of Defendants from December 31, 2012 to the present
who were paid at a straight time rate for overtime” is
settlement of a class action may be approved where the court
finds that the settlement is fair, reasonable, and adequate.
Rutter & Wilbanks Corp. v. Shell Oil, 314 F.3d
1180, 1186 (10th Cir. 2002). The court reviews a proposed
class action settlement by considering four factors: (1)
whether the proposed settlement was fairly and honestly
negotiated; (2) whether serious questions of law and fact
exist, placing the ultimate outcome of the litigation in
doubt; (3) whether the value of an immediate recovery
outweighs the mere possibility of future relief after
protracted and expensive litigation; and (4) the judgment of
the parties that the settlement is fair and reasonable.
Gottlieb v. Wiles, 11 F.3d 1004, 1014 (10th Cir.
1993) abrogated on other grounds by Devlin v.
Scardelletti, 536 U.S. 1, 6 (2002). Each of these
factors was thoroughly addressed by this court in the October
24 Order discussed supra.
§ 216(b) may not require that a court hold a fairness
hearing before approving a collective action settlement,
courts generally require, at minimum, that opt-in plaintiffs
be given notice of any settlement and an opportunity to
object. Tommey v. Computer Sciences Corp., Case No.
11-cv-2214-EFM, 2015 WL 1623025 at *1(D. Kan. April 13,
2015); see also Goldsby v. Renosol Seating, LLC, No.
2:08-0148-KD-N, 2013 WL 6535253, at *10 (S.D. Ala. Dec. 13,
2013)(“[T]he majority of the courts approve [an FLSA
collective action] settlement only after notice has been
provided to the opt-in plaintiffs and a fairness hearing
conducted, or at the least, what is required is a statement
to the Court that the opt-in plaintiffs have had notice of
the settlement and an opportunity to object.”);
Gassel, 2015 WL 5244917, at *3.
fairness hearing held November 27, 2017, both counsel
represented that notice of the settlement had been sent to
242 opt-in plaintiffs and the named plaintiff. In that group,
24 notices were returned undeliverable with no forwarding
address. Counsel represented that they were cooperatively
working to ensure that concerted effort would be maintained
to provide notice to the 24 opt-ins whose notice was returned
to the Defendants.
parties represented that no objections were filed by any
collective members either with the court or with counsel for
either side. See In re Dun & Bradstreet Credit Servs.
Customer Litig., 130 F.R.D. 366, 372 (S.D. Ohio 1990)
(“No timely objection was raised by any Class Member to
the proposed settlement.) The court is allowed to, and
therefore does, give the lack of objections substantial
weight in approving the proposed settlement. See Tuten v.
United Airlines, Inc., 41 F.Supp.3d 1003, 1008 (D. Colo.
fairness hearing, both parties continued to represent that in
their opinions the Settlement is fair and reasonable and that
no facts have come to light since the court preliminary order
which would change or influence the decision in a different
direction. In light of the extensive examination of the
fairness and reasonableness of the settlement set forth in
the court's October 24 Order, the court will not set
forth the same findings again here.
court finds that the value of the Settlement greatly
outweighs the possibility of recovery after protracted
litigation. On this point, courts have held that the
presumption in favor of voluntary settlement agreements is
especially strong in class actions and other complex cases
where substantial judicial resources can be conserved by
avoiding formal litigation. The strong judicial policy in
favor of class action settlement contemplates a circumscribed
role for the district courts in settlement review and
approval proceedings. This policy also ties into the strong
policy favoring the finality of judgments and the termination
of litigation. Settlement agreements are to be encouraged
because they promote the amicable resolution of disputes and
lighten the increasing load of litigation faced by the
federal courts. In addition to the conservation of judicial
resources, the parties may also gain significantly from
avoiding the costs and risks of a lengthy and complex trial.
Ehrheart v. Verizon Wireless, 609 F.3d 590, 594 (3d
Cir. 2010); Tuten, 41 F.Supp.3d at 1007-08. Given
this significant financial benefit to the Class, the court
has little difficulty concluding that the presumption in
favor of voluntary settlements has been satisfied here.
on these findings, and in accordance with the analysis set