United States District Court, D. Colorado
ROBERT OSTRANDER, individually, and on behalf of all others similarly situated, Plaintiff,
CUSTOMER ENGINEERING SERVICES, LLC, JAMES N. FOX, and MARY FOX, Defendants.
A. BRIMMER UNITED STATES DISTRICT JUDGE
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. §
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,
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.
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.
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.
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).
Final Class Certification
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)).
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 ...