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Ostrander v. Customer Engineering Services, LLC

United States District Court, D. Colorado

March 5, 2018

ROBERT OSTRANDER, individually, and on behalf of all others similarly situated, Plaintiff,



         This matter is before the Court on Parties' Joint Motion and Memorandum in Support of Approval of Settlement [Docket No. 96]. The Court has jurisdiction pursuant to 28 U.S.C. § 1331.

         I. BACKGROUND

         On July 13, 2015, plaintiff Robert Ostrander filed this action individually and on behalf of all others similarly situated, alleging that defendants Customer Engineering Services, LLC, James Fox, and Mary Fox violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. Docket No. 1. Plaintiff worked for defendants as a technical service representative (“TSR”) from November 2011 to September 2014. Id. at 2, ¶ 5. Plaintiff alleges that defendants classified him as a non-exempt employee under the FLSA and paid him an hourly rate. Id. at 3, ¶ 14. He further asserts that defendants failed to compensate him and members of the putative class for all overtime hours worked by encouraging plaintiff and class members to work before and after their scheduled shifts, and by automatically deducting a half-hour of pay for meal breaks each day, regardless of whether breaks were actually taken. Id. at 3-4, ¶¶ 16, 19-20.

         On January 19, 2016, plaintiff moved to conditionally certify the action as a collective action under the FLSA. Docket No. 26. The Court granted the motion on September 14, 2016, conditionally certifying a class of

[a]ll individuals who were employed, or are currently employed, by the defendants, including subsidiaries or affiliated companies, as technical service representatives, tech support representatives, TSRs or any other similarly titled position at any time from three (3) years prior to July 13, 2015 to the entry of judgment in this action who give their consent, in writing, to become party plaintiffs.

Docket No. 48 at 16, ¶ 1. The Court further approved plaintiff's proposed Notice of Collective Action. Id., ¶ 2.

         Following receipt of the court-authorized notice, 68 individuals joined the collective action as opt-in plaintiffs. Docket No. 96 at 2. Of those 68 individuals, 47 had claims arising within the statutory period. Id. The parties began settlement negotiations on April 11, 2017 before Magistrate Judge Michael E. Hegarty. See Docket No. 89. On April 19, 2017, the parties reached a settlement on all claims. Id.

         The parties jointly filed the instant motion on June 5, 2017, seeking a court order approving the settlement agreement and dismissing the action without prejudice, pending defendants' remittance of the settlement funds. Docket No. 96 at 1.

         II. ANALYSIS

         In a lawsuit brought by employees against their employer to recover back wages under the FLSA, any proposed settlement between the parties must be presented to the court for a determination of whether the settlement is fair and reasonable. Lynn's Food Stores, Inc. v. United States, 679 F.2d 1350, 1353 (11th Cir. 1982). This requirement effectuates the “prime purpose” of the FLSA, which is to “aid the unprotected, unorganized and lowest paid of the nation's working population . . . who lacked sufficient bargaining power to secure for themselves a minimum subsistence wage.” Brooklyn Sav. Bank v. O'Neil, 324 U.S. 697, 707 n.18 (1945).

         A. Final Class Certification

         The FLSA permits an employee or employees to bring an action “[on] behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. § 216(b). Courts apply a two-stage approach to determining whether plaintiffs are “similarly situated” for purposes of FLSA collective action certification. Thiessen v. GE Capital Corp., 267 F.3d 1095, 1105 (10th Cir. 2001). First, a court makes an initial determination as to whether plaintiffs are similarly situated for purposes of sending notice to putative class members. Id. at 1102. At the “notice” stage, a court applies a fairly lenient standard, requiring only “substantial allegations that the putative class members were together the victims of a single decision, policy, or plan.” Id. at 1102 (quoting Vaszlavik v. Storage Tech. Corp., 175 F.R.D. 672, 678 (D. Colo. 1997)). After discovery, a court makes a second determination about whether putative class members are similarly situated. See Id. at 1102-03. In deciding whether to certify a collective action at this stage, courts apply a stricter standard and consider several factors, including: “(1) [the] disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to [the] defendant which appear to be individual to each plaintiff; [and] (3) fairness and procedural considerations.” Id. at 1103 (quoting Vaszlavik, 175 F.R.D. at 678). Final class certification is generally required before a court may approve a collective action settlement. See Whittington v. Taco Bell of Am., Inc., No. 10-cv-01884-KMT-MEH, 2013 WL 6022972, at *2 (D. Colo. Nov. 13, 2013) (quoting Peterson v. Mortg. Sources, Corp., 2011 WL 3793963, at *4 (D. Kan. Aug. 25, 2011)).

         The parties now move for court approval of the proposed settlement; however, their joint motion does not request final collective action certification or otherwise address any of the factors the Court must ...

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