United States District Court, D. Colorado
ISABEL VALVERDE; MARIA SONIA MICOL SIMON; and those similarly situated, Plaintiffs,
XCLUSIVE STAFFING, INC., et al., Defendants.
RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE.
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' 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' 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.
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.
Class Counsel and Class Administrator
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.
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
Whether the Proposed Settlement is “Likely to be
Approved” under Rule 23
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.
Conditional FLSA Collective Action Certification
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.
these collective action members shall be given notice and an
opportunity to opt-in.
FLSA and the Proposed Settlement
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,