United States District Court, D. Colorado
VICTOR DIAZ, on his own behalf and on behalf of all others similarly situated, Plaintiff,
LOST DOG PIZZA, LLC, DANIEL WARREN LYNCH, and JEFF SMOKEVITCH, Defendant.
ORDER GRANTING JOINT MOTION FOR FINAL APPROVAL OF
SETTLEMENT AND PLAINTIFF'S MOTION FOR ATTORNEYS'
WILLIAM J. MARTÍNEZ, JUDGE
the Court is the parties' Joint Motion for Final Approval
of Class and Collective Action Settlement (“Joint
Motion”) and Plaintiff's Motion for Attorney Fee
(“Fee Motion”). (ECF No. 43 & 44.) The Court
held a settlement fairness hearing (“Settlement
Hearing”) on May 15, 2019. Considering the arguments
raised at the Settlement Hearing and in the Joint Motion and
Fee Motion, and for the reasons set forth below, the Court
grants the Joint Motion and Fee Motion, and approves the
Settlement Agreement (ECF No. 43-1), including an incentive
payment for Plaintiff Victor Diaz and reasonable
attorneys' fees and costs.
September 14, 2017, Plaintiff Victor Diaz filed this lawsuit
as a putative collective and class action against Defendant
Lost Dog Pizza, LLC (d/b/a Brown Dog Pizza), and its owners
and managers, Daniel Warren Lynch and Jeff Smokevitch
(collectively, “Defendants”). (ECF No. 1.)
Plaintiff, on behalf of himself and others (“pizza
workers”)-all hourly employees at Defendants'
pizzeria from 2014 onward-alleges that Defendants failed to
properly compensate pizza workers for overtime hours under
the Fair Labor Standards Act (“FLSA”), 29 U.S.C.
§§ 201 et seq., and the Colorado Minimum
Wage Act (“CMWA”), Colo. Rev. Stat. §§
8-6-101 et seq. For example, Plaintiff alleges that
he worked 107.67 hours from July 16-31, 2015, and 99.61 hours
from September 5-18, 2016, and that Defendants failed to pay
him overtime as required during those periods. (ECF No. 1
¶ 17.) He also alleges that Defendants subjected all
pizza workers to a “common policy of refusing to pay
overtime wages for hours worked beyond forty each workweek
and beyond twelve each workday.” (Id.
¶¶ 18, 29.)
19, 2018, the Court certified a Rule 23 class for the CMWA
claims, and conditionally certified a collective action under
the FLSA. (ECF No. 30.) The difference between the class
definition and the collective action definition is simply the
respective timeframe. The Rule 23 class includes employees from
September 14, 2015, onward, whereas the FLSA action covers
pizza workers as of September 14, 2014. (Id. at 12.)
At that time, the Court approved a revised version of the
proposed FLSA Notice and Consent to Join and directed notice
to potential collective action members. (Id. at
10-11.) However, the Court denied, without prejudice to
refiling, the parties' proposal to notify class members
of a settlement because the full details of the proposed
settlement were not before the Court. (Id. at 11.)
filed a Notice of Completion of Mailing of the FLSA opt-in
notices on July 2, 2018. (ECF No. 33.) According to the
parties, three potential FLSA plaintiffs returned consent to
join forms. (ECF No. 43 at 2.)
the opt-in period closed in August 2018, the parties
concluded settlement negotiations and moved for preliminary
approval of a class and collective action settlement. (ECF
No. 37.) This time, the Court granted preliminary approval,
ordered notice to class members, set deadlines for opt-out
forms and objections, and scheduled the Settlement Hearing
for May 15, 2019. (ECF No. 40.) On January 2, 2019,
Defendants filed a Notice of Completion of Mailing of the
class settlement notice. (ECF No. 42.)
April 10, 2019, the parties filed the Joint Motion and
Plaintiff filed the Fee Motion. (ECF No. 43 & 44.) The
Court held the Settlement Hearing on May 15, 2019. (ECF No.
SETTLEMENT AGREEMENT ANALYSIS
deciding whether to approve a settlement in class action, a
court must determine whether the settlement is “fair,
reasonable, and adequate.” Fed.R.Civ.P. 23(e)(2).
Courts consider four factors in evaluating the settlement:
(1) whether the proposed settlement was fairly and honestly
(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
Gottlieb v. Wiles, 11 F.3d 1004, 1014 (10th Cir.
1993), abrogated on other grounds by Devlin v.
Scardelletti, 536 U.S. 1 (2002). The Court may also
consider the fact that no objections were filed by any class
members. 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, and less than 5% of all Class
Members have chosen to opt out. One untimely objection,
improper in other regards, was filed and subsequently
withdrawn prior to the fairness hearing. No. objection was
raised at the fairness hearing. The Court gives these factors
substantial weight in approving the proposed
thoroughly reviewed the Joint Motion and the Settlement
Agreement, the Court finds that the settlement negotiated by
counsel is fair, reasonable, and adequate. With regard to the
four factors, the parties have demonstrated that the
Settlement Agreement was negotiated at arms' length by
counsel experienced in these types of cases. The parties
engaged in informal discovery, undertook a detailed review of
Defendants' billing records, and negotiated settlements
amounts for each class or collective action member as well as
a cy pres award for unclaimed funds.
parties have also shown that serious questions of fact and
law exist, particularly with regard to the accuracy of the
billing records and entitlement to certain overtime wages, as
well as the appropriateness of any liquidated damages under
the FLSA . These factual and legal issues weigh in favor of
approving the Settlement Agreement.
the Court finds that the value of the Settlement Agreement
outweighs the possibility of recovery after protracted
litigation. Courts have held that the ...