Opinion
Civil Action 19-cv-01199-CMA-STV
07-12-2021
AMANDA KENNEDY, on behalf of herself and those similarly situated, Plaintiff, v. MOUNTAINSIDE PIZZA, INC., and BRENT HAMILL, Defendants.
ORDER GRANTING PLAINTIFF'S UNOPPOSED MOTION FOR PRELIMINARY SETTLEMENT APPROVAL
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE.
This matter is before the Court on Plaintiff's Unopposed Motion for Preliminary Settlement Approval (“Motion”) (Doc. # 171), wherein Plaintiff moves the Court to, inter alia, preliminarily approve the parties' proposed Settlement Agreement (Doc. # 171-1) and proposed Notice of Settlement of Class Action (“Settlement Notice”) (Doc. # 171-2). Defendants do not oppose the Motion and consent to certification of the class and FLSA collective action for settlement purposes only.
For the reasons set forth in Plaintiff's Memorandum in Support of the Motion (Doc. # 171 at 3-22), this Court grants preliminary approval of the Settlement Agreement (Doc. # 171-1). The Court finds that the proposed Settlement Agreement was achieved in an adversarial context, reflects a reasonable compromise over issues that are actually in dispute, is fair, and that Plaintiff was represented by attorneys who can protect her rights. Pliego v. Los Arcos Mexican Restaurants, Inc., 313 F.R.D. 117, 127-28 (D. Colo. 2016) (listing four factors a district court should consider in evaluating a FLSA settlement agreement) (citing Lynn's Food Stores v. United States, 679 F.2d 1350, 1353-55 (11th Cir. 1982)). Given the procedural posture of this case, and upon consideration of the Rutter & Wilbanks Corp. v. Shell Oil Co., 314 F.3d 1180, 1188 (10th Cir. 2002), factors, the Settlement Agreement is preliminarily approved as fair, reasonable, and adequate. See In re Integra Realty Resources, Inc., 354 F.3d 1246, 1266 (10th Cir. 2004).
Accordingly, it is hereby ORDERED as follows:
1. Plaintiff's Unopposed Motion for Preliminary Settlement Approval (Doc. # 171) is GRANTED;
2. Provisional Certification of the Settlement Class: Solely for purposes of the Settlement, the Court conditionally certifies the following hybrid collective/class pursuant to Federal Rules of Civil Procedure 23(a) and (b)(3) ("Settlement Class"):
All current and former Delivery Drivers employed by Mountainside Pizza, Inc. from April 1, 2016 through May 5, 2021, who do not exclude themselves.
3. Subject to final approval of the Settlement, and for the reasons set forth in Plaintiff's Memorandum (Doc. # 171), the Court finds and concludes, for settlement purposes only, that the prerequisites of a class action, set forth in Rules 23(a) and (b), are satisfied in that:
(a) the Settlement Class is so numerous that joinder of all members is impracticable;
(b) there are questions of law or fact common to the Settlement Class;
(c) Plaintiff and Class Counsel fairly and adequately represent the Settlement Class;
(d) Plaintiff's claims are typical of those of the Settlement Class Members;
(e) common issues predominate over any individual issues affecting the members of the Settlement Class;
(f) Plaintiff fairly and adequately protects and represents the interests of all members of the Settlement Class, and Plaintiff's interests are aligned with the interests of all other members of the Settlement Class; and
(g) settlement of the instant case on a class action basis is superior to other means of resolving this matter.
4. Provisional Approval of Attorneys' Fee Award and Service Awards: the Court provisionally approves the stipulated attorneys' fee award for Class Counsel of 33.33% of the common fund, as well as service awards of $10,000 for Plaintiff Amanda Kennedy and $2,000 for Ginger Dally, subject to any objections from Settlement Class Members prior to final approval.
5. Approval of Settlement Notice: Plaintiff has presented to the Court a proposed Settlement Notice (Doc. # 171-2). The Court finds that the dissemination of the Settlement Notice substantially in the manner and form set forth in the Settlement Agreement (Doc. # 171-1 at 12) complies fully with the requirements of Rule 23(c)(2)(B) and due process of law; is the best notice practicable under the circumstances; and is reasonably calculated to apprise Settlement Class Members of the pendency of the action; the terms of the proposed Settlement, including that only those employees who file a claim form will participate in the Settlement; and their rights under the proposed Settlement, including but not limited to their rights to object to the proposed Settlement and to enter an appearance through counsel. When completed, the Settlement Notice shall constitute due and sufficient notice of the proposed Settlement Agreement and the Final Approval Hearing to all persons affected by and/or entitled to participate in the Settlement Agreement. Non-material modifications to the Settlement Notice may be made without further order of the Court.
6. Approval of Timeline: The Court approves Plaintiff's proposed timeline for notice and claims administration:
Time
Event
Within 14 days of preliminary approval
Defendants provide Class Counsel and the Administrator with the final list of class members, their contact information, and relevant wage and reimbursement data.
Within 14 days of receiving the class list
The Administrator will send the Settlement Notice.
Within 60 days of mailing notices
Class Members must opt-out or object, if they desire to.
Within 30 days of the notice period deadline
Plaintiff will draft and file a motion for final approval.
Within 40 days of the Court's final approval Order
The Claims Administrator will distribute payments to Class Members and Class Counsel
7. Final Fairness Hearing: A half-day Final Fairness Hearing is hereby set for December 2, 2021, at 2:00 p.m., before the Honorable Christine M. Arguello in Courtroom A602 of the Alfred A. Arraj Courthouse in Denver, Colorado, to determine, inter alia: (i) the fairness, reasonableness, and adequacy of the proposed Settlement; (ii) whether the Settlement should be granted final approval by the Court; and (iii) dismissal with prejudice of this action. Class Counsel's application for an award of attorneys' fees and costs and request for the Court to award service awards to Amanda Kennedy and Ginger Dally shall also be heard at the time of the hearing.