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Valverde v. Xclusive Staffing, Inc.

United States District Court, D. Colorado

November 18, 2019

ISABEL VALVERDE; MARIA SONIA MICOL SIMON; and those similarly situated, Plaintiffs,
v.
XCLUSIVE STAFFING, INC., et al., Defendants.

          ORDER

          RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the “Memorandum and Status Report in Further Support of Motion for Preliminary Approval of Proposed Class and Collective Action Settlement Agreement (ECF Doc. 296)” (the “Renewed Motion”) (ECF No. 303) filed by all Plaintiffs (“Movants”) except Plaintiff Simon and “Defendants' Response to Memorandum and Status Report in Further Support of Motion for Preliminary Approval of Proposed Class and Collective Action Settlement Agreement [ECF Doc. 303]” (ECF No. 304) which states Defendants agree the Court should preliminary approve the Parties'[1] proposed settlement on a class and collective action basis (the “Renewed Motion”). The Renewed Motion was filed after the Order of July 15, 2019 (“Order I”) (ECF No. 302) denied without prejudice Movants'[2] Motion for Preliminary Approval of Proposed Class and Collective Action Settlement Agreement (the “Motion”) (ECF No. 296). In Order I, the Court raised some concerns about the Parties' proposed settlement and directed that such concerns be addressed in any renewed motion. Plaintiff Simon has filed no response to the Renewed Motion and the time to do so has passed. Based on the Court's review of the Renewed Motion, the court record, and applicable law, and being otherwise fully advised, the Court finds and orders as follows.

         I. BACKGROUND

         The parties are well versed with the background which precedes this Order, so it will not be repeated here. Essentially, in Order I the Court found most of the requirements for preliminary approval were shown, with a few issues that needed to be addressed further or required modification. The Court examines these issues in turn below.

         II. ANALYSIS

         A. Class Counsel and Class Administrator

         The parties have now adequately shown that attorneys Alexander Hood and David Seligman of Towards Justice should be appointed class counsel. Thus, pursuant to Fed.R.Civ.P. 23(g)(1), the Court appoints them as class counsel.

         The Court did not previously address who should be appointed the class administrator. Upon review of the record, the Court appoints Optime Administration, LLC as the Class Administrator.

         B. Whether the Proposed Settlement is “Likely to be Approved” under Rule 23

         Movants did not explicitly address each remaining factor under Fed.R.Civ.P. 23(e)(1)(B), but their advisement concerning how the funds are to be divided, the allocation of any unclaimed funds, and the proposed modifications to the notices and consent forms shows that the Court will likely be able to approve the Parties' proposal. Accordingly, the Court finds the proposed settlement may be preliminarily approved.

         C. Conditional FLSA Collective Action Certification

         The Court previously conditionally certified an opt-in collective action on a nationwide basis as to the $3.00 deduction policy and on a Colorado class basis for the $30-minute meal deduction policy. (ECF No. 248 (the “FLSA Order”).) In light of Renewed Motion and the parties' proposed Colorado settlement, the FLSA Order is hereby STAYED until further of the Court. In addition, for the reasons stated in Order I and the FLSA Order, the Court finds Movants have shown that conditional certification of the following opt-in collective action for purposes of the Colorado settlement is warranted:

ALL CURRENT AND FORMER HOURLY EMPLOYEES OF XCLUSIVE STAFFING, INC., XCLUSIVE STAFFING OF COLORADO, LLC, OR ANY OF THEIR AFFILIATES, WHO WORKED AT ONE OF THEIR CLIENTS' COLORADO LOCATIONS (EXCEPT SKY RIDGE MEDICAL CENTER HCA-HEALTHONE LLC) AND WERE EMPLOYED ON OR AFTER MARCH 22, 2013 AND UP TO AND INCLUDING FEBRUARY 3, 2019.

         Thus, these collective action members shall be given notice and an opportunity to opt-in.

         D. FLSA and the Proposed Settlement

         The Court raised concerns about the proposed settlement under the FLSA because if a member does nothing (i.e., fails to opt-in), he gets nothing but waives everything. The revised proposed notices and consent forms address this issue, ...


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