United States District Court, D. Colorado
JANET SHAULIS, and JEWEL ARLENE KEY, individually and on behalf of all other similarly situated individuals Plaintiffs,
FALCON SUBSIDIARY LLC, a Delaware limited liability company, d/b/a Axispoint Health, Defendant.
ORDER GRANTING JOINT MOTION FOR PRELIMINARY APPROVAL
OF COLLECTIVE AND CLASS ACTIONS SETTLEMENT AND CERTIFYING THE
CLASS FOR PURPOSE OF SETTLEMENT
CHRISTINE M. ARGUELLO, United States District Judge
matter is before the Court on the Parties' Joint Motion
for Preliminary Approval of Collective/Class Action
Settlement, Certifying Class for Purpose of Settlement,
Directing Notice to the Class, and Scheduling Final Approval
Hearing (the “Joint Motion”). (Doc. # 26.)
reasons set forth in the Joint Motion, this Court grants
preliminary approval of the Settlement Agreement, filed with
the Court as Exhibit 1 to the Joint Motion (Doc. # 26-1).
Given the procedural posture of this case, the Settlement
Agreement is preliminary approved as fair, reasonable, and
adequate. See In re Integra Realty Resources, Inc.,
354 F.3d 1246, 1266 (10th Cir. 2004); Rutter &
Wilbanks Corp. v. Shell Oil Co., 314 F.3d 1180, 1188
(10th Cir. 2002). Accordingly, it is hereby ORDERED as
Joint Motion (Doc. # 26) is GRANTED.
Solely for the purposes of the Settlement, the Court finds
that the requirements of the Federal Rule of Civil Procedure
23, the Constitution of the United States, the requirements
of 29 U.S.C. § 216(b), the Rules of this Court and any
other applicable law have been met as to the Settlement Class
defined below, in that:
a. The Court preliminarily finds, for purposes of settlement
only, that the settlement reflects a fair and reasonable
resolution of a bona fide dispute with respect to the claims
asserted by the Settlement Class.
b. The Court preliminarily finds, for purposes of settlement
only, that each of the Plaintiffs has standing to represent
the Settlement Class because they have potentially suffered
damages and are members of the Settlement Class.
c. The Court preliminarily finds, for purposes of settlement
only, that, as required by Fed.R.Civ.P. 23, the Settlement
Class is ascertainable from records kept by Defendant with
respect to their employees and from other objective criteria,
and that the members of the Settlement Class are so numerous
that their joinder before the Court would be impracticable.
d. The Court preliminarily finds, for purposes of settlement
only, that, as required by Rule 23, there are one or more
questions of fact and/or law common to the Settlement Class.
e. The Court preliminarily finds, for purposes of settlement
only, that, as required by Rule 23, the claims of the
Plaintiffs are typical of the claims of the Settlement Class;
f. The Court preliminarily finds, for purposes of settlement
only, that, as required by Rule 23, the Plaintiffs will
fairly and adequately protect the interests of the Settlement
Class in that: (i) the interests of the Plaintiffs and the
nature of their alleged claims are consistent with those of
the members of the Settlement Class, (ii) there appear to be
no conflicts between or among the Plaintiffs and the
Settlement Class, and (iii) the Plaintiffs and the members of
the Settlement Class are represented by qualified, reputable
counsel who are experienced in preparing and prosecuting
large, complex consumer class actions.
g. The Court preliminarily finds, for purposes of settlement
only, that, as required by Rule 23 and upon consideration of
the factors enumerated in Rule 23, maintaining the
Plaintiffs' claims as a class action is superior to other
available means of adjudication in promoting the convenient
administration of justice.
Class Certification and Appointment of Class
Court, in conducting the settlement approval process required
by Rule 23, certifies, for purposes of settlement only, the
following Settlement Class:
All current and former hourly Telehealth Nurses
(“THNs”) (a home-based nurse who field patient
calls) who work or have worked for F a lc on Subsidiary LLC
d /b /a AxisPoint Health at any tim e f rom February
6, 2015 (for all THNs employed in states other than
California) and from February 6, 2014 (for all THNs employed
in California), through the date on which the Court grants
preliminary approval of the Settlement (the “Class
the Court appoints the named Plaintiffs as representatives
for the Settlement Class and appoints Sommers Schwartz, P.C.
as Class Counsel for the Plaintiffs and the Settlement Class.
This certification of a preliminary Settlement Class pursuant
to the terms of the Settlement Agreement shall not constitute
and does not constitute, and shall not be construed or used
as an admission, concession, or declaration by or against the
Defendant, that (except for the purposes of the Settlement)
this Action or any other action is appropriate for class
treatment under Rule 23.
Preliminary Findings Regarding Proposed
Court preliminarily finds that: (i) the proposed Settlement
resulted from extensive arm's-length negotiations; (ii)
the Settlement Agreement was executed only after Class
Counsel had conducted appropriate investigation and
fact-finding regarding the strengths and weaknesses of the
Plaintiffs' claims; (iii) Class Counsel, having
substantial experience in FLSA collective actions and wage
and hour class action cases, concluded that the proposed
Settlement is fair, reasonable and adequate; and (iv) the
proposed Settlement is sufficiently fair, reasonable and
adequate to warrant sending notice of the proposed Settlement
to the Settlement Class. Having considered the essential
terms of the Settlement Agreement under the recommended
standards for preliminary approval of settlements as set
forth in relevant jurisprudence, the Court finds that ...