United States District Court, D. Colorado
LAURAL O'DOWD, for herself and all others similarly situated, Plaintiff,
ANTHEM, INC., and ROCKY MOUNTAIN HOSPITAL AND MEDICAL SERVICE, INC., doing business as Anthem Blue Cross and Blue Shield, Defendants.
FINAL ORDER AND JUDGMENT
Kristen L. Mix, United States Magistrate Judge.
matter is before the Court on Plaintiff's
Unopposed Motion for Attorneys' Fees and Expenses
and Incentive Award for Named Plaintiff
[#128] (the “Motion for Attorneys'
Fees”) and Unopposed Motion for Final Approval
of Class Action Settlement and Related Relief [#131]
(the “Motion for Final Approval”) (collectively,
the “Motions”). Plaintiff requests, and
Defendants do not oppose, that the Court approve the
Settlement Agreement [#121-1], which resolves all of
Plaintiff's and class members' claims in this
litigation. A fairness hearing pursuant to Fed.R.Civ.P.
23(e)(2) was held on May 24, 2019, at 9:30 a.m. in the Alfred
A. Arraj United States Courthouse, 90119th Street, Denver,
Colorado. For the reasons stated below, the Motions [#128,
#131] are GRANTED.
case concerns the reimbursement methodology Defendant Rocky
Mountain Hospital and Medical Service, Inc. (“Anthem
Colorado”) used for Out-of-Network Behavioral Health
Services. As Plaintiff explains in the Motion for
Final Approval [#131], “Anthem Colorado historically
determined the allowed reimbursement amount (the
‘Allowed Amount') for out-of-network behavioral
health professional providers using a fee schedule (the
‘ZBHA Fee Schedule') that differed from the
reimbursement methodology that Anthem Colorado most often
used to calculate the Allowed Amounts for out-of-network
medical and surgical services (the ‘RBRVS Reimbursement
Methodology') [which] was based on Medicare payment
rates.” [#131] at 7 (citing Second Am. Compl.
[#53] (the “SAC”) ¶¶ 26-27, 39-40).
O'Dowd purchased a Preferred Provider Organization
(“PPO”) health insurance policy from Anthem
Colorado in 2008 and has been under the care of a
psychiatrist since January of 2008. Id. (citing
SAC [#53] ¶¶ 19, 22). Plaintiff's
“psychiatrist is an Out-of-Network Provider under the
Anthem Colorado PPO plan, which means that the provider does
not participate in Anthem Colorado's PPO network and has
not agreed to accept Anthem Colorado's reimbursement as
payment in full for services provided to Plaintiff.”
Id. Applying the ZBHA Fee Schedule, “Anthem
Colorado imposed a cap on the Allowed Amount for
Plaintiff's psychiatrist [and, ] [b]ased on the terms of
her contract with her provider, Plaintiff was financially
responsible for the difference between her psychiatrist's
charges and the Maximum Allowable Amount paid by
Anthem.” Id. at 7-8 (citing SAC [#53]
alleges that Anthem Colorado's application of the ZBHA
Fee Schedule for Out-of-Network Behavioral Health Services
resulted in lower reimbursement rates than the RBRVS
Reimbursement Methodology, thereby increasing the
out-of-pocket responsibility borne by her and other putative
class members for such services.” Id. at 8
(citing SAC [#53] ¶ 27). Plaintiff further
alleges that, by using this different methodology for
Out-of-Network Behavioral Health Services, Anthem Colorado
violated ERISA and Colorado state law, and
“deprived Plaintiff and other persons in health plans
insured or administered by Anthem Colorado of benefits that
were owed under the respective Plans.” Id.
(citing SAC [#53] at 22-26).
initiated this lawsuit in Boulder County District Court on
behalf of herself and others similarly situated on July 18,
2014. See Compl. [#4]. On October 10, 2014, Anthem
Colorado removed the action to this Court pursuant to 28
U.S.C. § 1441(a) and (c). Notice of Removal
filed an Amended Complaint on January 21, 2015, which
asserted four claims against Defendants. See Am.
Compl. [#27] ¶¶ 41-68. Defendant Anthem
Colorado then filed a Motion to Dismiss Amended Complaint in
Part (the “First Motion to Dismiss”) [#29]. On
September 30, 2016, the Court granted in part and denied in
part the First Motion to Dismiss. See Order [#36].
Specifically, the Court denied Defendant's First Motion
to Dismiss with respect to the first, second, and third
claims, and granted Defendant's First Motion to Dismiss
with respect to the fourth claim. Id. However, the
Court dismissed the fourth claim without prejudice.
Id. at 15.
Plaintiff moved to file a Second Amended Complaint.
See [#51]. This motion was unopposed. Id.
The Court granted the motion, and Plaintiff filed her Second
Amended Complaint on December 1, 2015. See SAC
[#53]. Plaintiff's Second Amended Complaint, which is the
operative pleading in this case, did not add any new claims,
but instead added further specificity with respect to her
existing claims. Thus, Plaintiff's current claims are as
follows: (1) a claim seeking a declaratory judgment that
Defendants violated Colo. Rev. Stat. §§
10-16-104(7) and 10-16-107.7; (2) a claim seeking injunctive
relief under ERISA, specifically 29 U.S.C. § 1132(a)(3);
(3) a claim for payment of benefits and associated interest
under ERISA, specifically 29 U.S.C. § 1132(a)(1)(B); and
(4) a breach of fiduciary duty claim under ERISA,
specifically 29 U.S.C. §§ 1132(a)(1)(B) and
1132(a)(3). See Id. ¶¶ 57-87.
the filing of Plaintiff's Second Amended Complaint,
Defendants filed a Partial Motion to Dismiss Plaintiff's
Second Amended Complaint [#66] (the “Second Motion to
Dismiss”) which sought to dismiss all claims against
Defendant Anthem and claims one, two, and four against
Defendant Anthem Colorado. The Court denied Defendants'
Second Motion to Dismiss on September 23, 2016.
the Court's September 23, 2016 Order [#91], the parties
engaged in prolonged settlement negotiations which culminated
in the parties executing a proposed Settlement Agreement,
dated March 7, 2018. On October 22, 2018, the Court entered
its Order [#125] (the “Preliminary Approval
Order”) granting Plaintiff's Unopposed Motion for
Preliminary Approval of Class Action Settlement and Related
Relief [#121]. Pursuant to the Preliminary Approval Order
[#125], the Court: (1) conditionally certified the class for
settlement purposes; (2) preliminarily appointed Plaintiff as
a representative of the Settlement Class and D. Brian
Hufford, Jason S. Cowart, and Andrew N. Goldfarb of Zuckerman
Spaeder LLP (“Zuckerman”), and Gregory A. Gold
and Sommer D. Luther of The Gold Law Firm (“The Gold
Firm”) as counsel for the Settlement Class
(collectively, “Class Counsel”); (3)
preliminarily approved the parties' Settlement Agreement;
(4) appointed Dahl Administration, LLC (“Dahl”)
as the Settlement Administrator; (5) approved of and ordered
the Settlement Administrator to provide the Mailed Notice,
Long Form Notice, and CAFA Notice to Settlement Class
Members; and (6) provided opportunities for absent Settlement
Class Members to be heard.
appears that the parties have complied with all requirements
of the Court's Preliminary Approval Order [#125],
including sending Notice to the Settlement Class Members.
Ness Decl. [#131-2] ¶ 4. In the present Motions
[#128, #131], Plaintiff seeks, and Defendants do not oppose,
an order from the Court: (1) granting final certification of
the Settlement Class to implement the Settlement, (2)
granting final approval of the Settlement Agreement pursuant
to Fed.R.Civ.P. 23(e), including the Plan of Allocation, and
(3) approving Plaintiff's attorneys' fees, costs, and
incentive award. Motion for Final Approval [#131] at
Overview of the Settlement Agreement
Plaintiff summarizes, the proposed Settlement Agreement has
three primary components: (1) a change to Anthem
Colorado's business practices requiring it to use its
RBRVS Reimbursement Methodology for covered Out-of-Network
Behavioral Health Services for a period of three years; (2)
payment by Defendants of a Settlement Amount of $380, 000
that will be allocated among members of the proposed
Settlement Class according to the proposed Plan of
Allocation, subject to a De Minimis Threshold of $2.00; and
(3) a release of claims against Defendants and Related
Entities. Motion [#131] at 11; see Settlement
Agreement [#121-1] §§ 8, 9, 13. The proposed
Settlement Agreement defines the Settlement Class as:
[A]ll Plan Members who received Out-of-Network Behavioral
Health Services with dates of service during the Settlement
Class Period that were allowed at or below the provider's
Settlement Agreement [#121-1] § 1.58. The
Settlement Class Period ran from June 1, 2008, to October 22,
2018, the date of the Court's Preliminary Approval Order
[#125]. Id. § 1.60. Excluded from the
Settlement Class are:
(a) Defendants and any current and former Subsidiaries,
divisions, Affiliates, predecessors, insurers, assignees, and
successors-in-interest; (b) any judge who presides or has
presided over the Litigation, together with his/her immediate
family members and any other individual residing in the
judge's household; and (c) individuals who validly and
timely request to Opt Out of this Agreement pursuant to
Section 5.1 of the Settlement Agreement.
Id. § 1.58.
respect to the first component, the Settlement Agreement
provides, for three years, the injunctive relief Plaintiff
seeks in this litigation. Motion for Final Approval
[#131] at 18; see Settlement Agreement [#121-1]
§ 8. Specifically, Anthem Colorado agrees to implement
for three years a reimbursement methodology for determining
Allowed Amounts for Out-of-Network Behavior Health Services
delivered in Colorado that aligns with the methodology Anthem
Colorado most often uses to calculate Allowed Amounts for
out-of-network medical and surgical health care services.
Id. According to Plaintiff, “[t]his will
address what [she] alleged to be improper disparities in
reimbursement for Out-of-Network Behavioral Health Services
[because, ] [u]nder the Settlement, for a given
Out-of-Network Behavioral Health Service, the Allowed Amount
will be determined using the same RBRVS Reimbursement
Methodology regardless of whether the service is performed by
a behavioral health professional or a medical care
the second component, the monetary relief provided by the
Settlement Agreement seeks to “reimburse Settlement
Class Members for a portion of the difference, if any,
between the actual Allowed Amount for the Out-of-Network
Behavioral Health Services compared to what it would have
been had Anthem Colorado used its RBRVS Reimbursement
Methodology.” Id. at 18. To accomplish this,
the distribution of funds to Settlement Class Members are
subject to determination by the Settlement Administrator
pursuant to the process set forth in the Plan of Allocation
[#121-8] which “provides for a pro rata distribution to
eligible Settlement Class Members based on the ratio of each
Settlement Class Member's Total Alleged Underpayment to
the Total Alleged Underpayment of all Settlement Class
Members collectively.” Motion for Final
Approval [#131] at 21; see Settlement Agreement
[#121-1] § 9.1; Plan of Allocation [#121-8]. In
order to “preserve the Settlement Fund, if the pro rata
payment calculated for a particular Settlement Class Member
does not exceed Two Dollars ($2.00), that Settlement Class
Member will not receive a payment. Id. This is
because the administrative costs of processing and sending
such check to the Settlement Class Member would have exceeded
the value of the check itself.” Id. at 21.
as to the third component, the Settlement Agreement contains
a release of claims related to the lawsuit from Plaintiff and
from all Settlement Class Members. Id. § 13.
Specifically, on final approval of the Settlement Agreement,
Plaintiff and the Settlement Class Members shall be deemed to
have released the Released Claims. [#121-1] § 1.51.
Released Claims are defined as:
any and all manner of claims, counterclaims, actions, causes
of action, arbitrations, damages, debts, demands, duties,
judgments, liabilities, losses, obligations, penalties,
liquidated damages, proceedings, agreements, promises,
controversies, costs, expenses, attorneys' fees, and
suits of every nature and description whatsoever, whether
based on federal, state, provincial, local, foreign,
statutory, or common law or any other law, rule, or
regulation, in the United States, whether fixed or
contingent, accrued or unaccrued, liquidated or unliquidated,
at law or in equity, matured or unmatured, known or unknown,
foreseen or unforeseen, whether class or individual in
nature, arising on or before the Sunset Date, that the
Releasing Parties, or any of them, ever had, now have, can
have, shall or may hereafter have, or that have been or could
have been asserted against any of the Released Parties by the
Releasing Parties, directly or derivatively, in the
Litigation, or any other forum based on, by reason of,
arising from, in connection with, or in any way relating to
the conduct, events, facts, transactions, occurrences, acts,
representations, omissions, or other matters set forth,
alleged, embraced, or otherwise referred to or alleged in the
Complaint. This includes, without limitation and as to the
Released Parties only, any claims arising from, in connection
with or in any way relating to the adequacy or lawfulness of
Anthem Colorado's reimbursement rates, policies, or
methodologies, including but not limited to the ZBHA Fee
Schedule or RBRVS Reimbursement Methodology, used by Anthem
Colorado to determine reimbursement for Out-of-Network
Behavioral Health Services, and Anthem Colorado's
determination, computation, payment, nonpayment, adjustment,
or limitation of reimbursement for Out-of-Network Behavioral
Health Services based on the ZBHA Fee Schedule or the RBRVS
Reimbursement Methodology. Notwithstanding the foregoing,
Released Claims do not include claims against the Released
Parties by Persons covered by self-funded plans that have
elected to use reimbursement methodologies or rates other
than the RBRVS Reimbursement Methodology, arising on or after
the Preliminary Approval Date. For avoidance of doubt,
Released Claims do not include claims against the Released
Parties relating to medical necessity or coverage
the Settlement Agreement states that “Defendants
specifically deny any wrongdoing or liability, and this
Settlement Agreement is entered to resolve all claims
amicably and does not imply or suggest in any way fault or
wrongdoing.” Id. § 16.3.
Notice to and Response from Settlement Class Members
to the Preliminary Approval Order [#125], the Court appointed
Dahl as the Settlement Administrator to give notice to the
Settlement Class Members and to carry out other
responsibilities as provided for in the Settlement Agreement.
[#125] ¶ 23. Additionally, the Court approved the
parties' proposal to be jointly responsible for
identifying names and addresses of potential Settlement Class
Members and for Defendants to provide the Settlement
Administrator with information from which a list of potential
Settlement Class Members could be identified for the Mailed
Notice. Id. ¶ 10.
March 16, 2018, prior to the Court's Preliminary Approval
Order [#125], Dahl mailed notice to the appropriate state
insurance regulators in all fifty states, as well as to the
Attorney General of the United States, pursuant to the
requirements of the Class Action Fairness Act
(“CAFA”), 28 U.S.C. § 1715(b). Ness
Decl. [#131-2] ¶ 6. No. objection was raised by any
recipient of the CAFA notice. Motion for Final
Approval [#131] at 11.
February 7, 2019, Dahl received data from Defendant's
counsel containing records for 19, 750 Settlement Class
Members. Ness Decl. [#131-2] ¶ 7. On February
19, 2019, the court-approved Mailed Notice was mailed by Dahl
to the 19, 750 Settlement Class Members. Id.
Settlement Class Members were identified as individuals who
received Out-of-Network Behavioral Health Services from
Anthem Colorado with dates of service between June 1, 2008
and October 22, 2018. [#121-5]. The Mailed Notice advised the
Settlement Class Members of the Settlement Agreement,
including a description of the injunctive and monetary relief
obtained, instruction on how to op-out or object to the
Settlement Agreement, information on how Class Counsel would
be paid, information about the Settlement Hearing, and the
binding effect of a class judgment. Id. The Mailed
Notice also informed the Settlement Class Members of the
automated toll-free phone number and settlement website
established by Dahl for persons seeking information about the
settlement. Id. ¶ 8.
automated toll-free phone number is a helpline to assist
potential Settlement Class Members and any other persons
seeking information about the Settlement. Id. ¶
8. The phone number is fully automated and operates 24 hours
per day, seven days per week, and is still operating.
Id. The toll-free phone number includes a voice
response system that allows callers to listen to general
information about the settlement and responses to frequently
asked questions (“FAQs”). Id. ¶ 9.
According to the Ness Declaration, “Dahl worked with
counsel for the Parties to prepare responses to the FAQs to
provide accurate answers to anticipated questions about the
settlement, and Counsel approved the full helpline script
prior to implementation.” Id.
settlement website was activated on February 19, 2019, and is
still operating. Id. ¶ 9. According to the Ness
Declaration, the website displays “general settlement
information; a list of important dates and deadlines; a list
of [FAQs] and Responses; reviewable and downloadable versions
of important documents, including the Complaint, the
Settlement Agreement, the Long Form Notice, and the motion
for attorneys' fees and expenses; and information on how
to contact the Settlement Administrator via email, U.S. Mail,
or phone.” Id. ¶ 12.
the 19, 750 Mailed Notices initially sent, 3, 183 were
returned with no forwarding address. Id. Dahl sent
2, 992 of the returned Mailed Notices for tracing, and was
able to obtain updated information and re-mail the Mailed
Notice to 2, 222 Settlement Class Members. Id. Of
those 2, 222 Mailed Notices, 205 were returned without a
forwarding address and 41 were returned with a forwarding
address. Id. Dahl re-mailed the Mailed Notice to all
41 Settlement Class Members with forwarding addresses and, in
total, re-mailed 2, 263 Mailed Notices. Id.
Ultimately, Dahl was unable to locate addresses for only 5.9%
of the total population of Settlement Class Members.
Id. Kimberly K. Ness, a principal of Dahl, states
that, in her experience, this is a highly successful mailing
rate for a Settlement Class of this size. Id.
April 22, 2019, Dahl has received, and responded to when
appropriate, 26 live phone calls, 8 email messages, and 1
piece of written correspondence related to this settlement.
Id. ¶ 14. Also as of April 22, 2019, the
automated helpline has received 118 telephone calls and the
settlement website has received 212 unique visits.
Id. ¶¶ 10, 12. Pursuant to the Preliminary
Approval Order, the deadline for potential class members to
opt-out of or object to the Settlement was April 5, 2019.
[#125] at 15. By that deadline, of the 19, 750 Settlement
Class Members: (i) eight individuals opted out of the
Settlement, (ii) one family of Settlement Class Members
objected to the Settlement, and (iii) no Settlement Class
Members provided notices of intent to appear at the May 24,
2019 Settlement Hearing. Motion for Final Approval
[#131] at 10; Ness Decl. [#131-2] ¶ 15. A list
of those persons who have requested to opt-out of the
settlement agreement has been filed on the docket under Level
1 Restriction. [#133].
no Settlement Class Members appeared at the May 24, 2019
Settlement Hearing to object to the Settlement.
Final Certification of the Settlement Class
certified for settlement purposes only must nevertheless
satisfy the requirements of Rule 23. See Amchem Prods.,
Inc. v. Windsor, 521 U.S. 591, 620- 622 (1997).
“Settlement, though a relevant factor, does not
inevitably signal that class-action certification should be
granted more readily than it would be were the case to be
litigated.” Id. at 620 n.16. Indeed,
“proposed settlement classes sometimes warrant more,
not less, caution on the question of certification.”
Id. “On the other hand, a district court that
is asked to certify a class for settlement purposes need not
inquire whether the case would, if tried, present
‘intractable management problems,' as settlement
necessarily means the parties are not proceeding to
trial.” In re Thornburg Mortg., Inc. Sec.
Litig., 912 F.Supp.2d 1178, 1227 (D.N.M. 2012) (quoting
Amchem Prods., 521 U.S. at 620 n.16).
seeking to certify a class bears the “strict”
burden of proving that the requirements of Rule 23 have been
met. Reed v. Bowen, 849 F.2d 1307, 1309 (10th Cir.
1988); see also Cook v. Rockwell Int'l Corp.,
151 F.R.D. 378, 381 (D. Colo. 1993). Specifically, Plaintiff
must establish each of the four requirements set forth in
Rule 23(a): “(1) the class is so numerous that joinder
of all members is impracticable; (2) there are questions of
law or fact common to the class; (3) the claims or defenses
of the representative parties are typical of the claims or
defenses of the class; and (4) the representative parties
will fairly and adequately protect the interests of the
class.” Cook, 151 F.R.D. at 381.
addition, a party seeking class certification must establish
that the case falls within one of the subcategories provided
in Rule 23(b). Id. These subcategories are: (1) that
separate actions would create a risk of inconsistent
adjudications resulting in conflicting consequences for
Defendants or other putative class members; (2) that
Defendants have acted on grounds that generally apply to the
class; and (3) that common questions of law or fact
predominate over individualized questions. DG ex rel.
Stricklen v. Deveughn, 594 F.3d 1188, 1194 (10th Cir.
do not oppose the Motion for Final Approval [#131] and,
pursuant to the Settlement Agreement, have agreed to the
certification of a Rule 23 class for settlement purposes.
See [#131] at 6; [#121-1] at 24. Plaintiff asserts
that because the Court provisionally certified the Class for
settlement purposes in the Preliminary Approval Order [#125]
and because “nothing about the Class or the bases
supporting class certification has changed since then,
” the Court should grant final certification of the
Class to implement the Settlement. Motion for Final
Approval [#131] at 12. The Court agrees.
respect to the numerosity element of Rule 23(a)(1),
“[t]he burden is upon plaintiffs seeking to represent a
class to establish that the class is so numerous as to make
joinder impracticable.” Folks v. State Farm Mut.
Auto. Ins. Co., 281 F.R.D. 608, 616 (D. Colo. 2012)
(quoting Peterson v. Okla. City Hous. Auth., 545
F.2d 1270, 1273 (10th Cir. 1976)). Determining whether
Plaintiff has met this element is not subject to a “set
formula”; it is a “fact-specific inquiry.”
Folks, 281 F.R.D. at 616 (quoting Trevizo v.
Adams, 455 F.3d 1155, 1162 (10th Cir. 2006)).
Defendants do not oppose the certification of a Rule 23 class
and thus, do not dispute that Plaintiff meets the numerosity
element of Rule 23(a). The Settlement Class includes 19, 742
putative class members, Motion for Final Approval
[#131] at 12, which the Court finds to satisfy the numerosity
factor of Rule 23(a). See, e.g., Mullen v. Treasure Chest
Casino, LLC, 186 F.3d 620, 624 (5th Cir. 1999) (finding
that proposed Class consisting of “100 to 150
members-is within the range that generally satisfies the
numerosity requirement”); Bittinger v. Tecumseh
Prod. Co., 123 F.3d 877, 884 n.1 (6th Cir. 1997)
(rejecting as “frivolous” the “content[ion]
that Plaintiffs failed to address the issue of whether
joinder of all [1, 100] members of the class [wa]s
impracticable”); Robidoux v. Celani, 987 F.2d
931, 936 (2d Cir. 1993) (“[T]he difficulty in joining
as few as 40 class members should raise a presumption that
joinder is impracticable.”); Clay v. Pelle,
No. 10-cv-01840-WYD-BNB, 2011 WL 843920, at *2-3 (finding
that a class of 400 prisoners, all subject to the challenged
prison policy, satisfied the numerosity element).
Common Question of Law or Fact
Court next turns to the common-question requirement of Rule
23(a)(2). For class members to share a least one common
question of law or fact, they must “possess the same
interest and suffer the same injury.” Trevizo,
455 F.3d at 1163 (citing Gen. Tel. Co. of the Sw. v.
Falcon, 457 U.S. 147, 156 (1982)). Class members do not
need to share both common questions of law and
common questions of fact. J.B. ex rel Hart v.
Valdez, 186 F.3d 1280, 1288 (10th Cir. 1999).
Determining the existence of common questions turns on
whether “a classwide proceeding will be efficacious in
generating common answers apt to drive the resolution of
litigation.” Martinez v. Nash Finch Co., No.
11-cv-02092-MSK-KLM, 2013 WL 1313921, at *5 (D. Colo. Jan.
30, 2013). Further, the common question must be able to be
resolved classwide, meaning that the “determination of
its truth or falsity will resolve an issue that is central to
the validity of each one of the claims in one stroke.”
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350
Defendants have stipulated to the certification of a Rule 23
class and thus, do not dispute that Plaintiff meets the
commonality requirement of Rule 23(a). Plaintiff states that
“the claims of every putative member of the Settlement
Class, including [her], turn on the same common questions
that have common answers, including whether Anthem Colorado
was acting as an ERISA fiduciary when it created and applied
its ZBHA Fee Schedule to Out-of-Network Behavioral Health
Services, whether it breached its fiduciary duties by so
doing, and whether Anthem Colorado's use of the ZBHA Fee
Schedule for Out-of-Network Behavioral Health Services
violated Colorado's mental health parity laws.”
Motion for Final Approval [#131] at 13. The Court
agrees that “[t]he answer to each of these questions
would be the same for every Settlement Class member and would
rest on common proof that does not depend upon the individual
circumstances of any Settlement Class member, including
Plaintiff.” Id.; see Pliego v. Los Arcos
Mexican Rests., Inc., 313 F.R.D. 117, 126 (D. Colo.
2016) (“Commonality still exists if class members
differ factually but challenge the application of a
commonly-applied policy.”). The impact of
Defendants' alleged conduct was consistent among
potential class members and thus, the resolution of
Plaintiff's common questions would result in common
answers classwide. See ...