Rogers et al v. City and County of Denver

Filing 217

ORDER APPROVING SETTLEMENT, (see order for details), by Judge Richard P. Matsch on 1/31/2012. (rpmcd )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior District Judge Richard P. Matsch
Civil Action No. 07-cv-00541-RPM
NICK ROGERS,
AL ARCHULETA,
WILFRED BELIVEAU,
HARRY BLOODWORTH,
TIMOTHY DELSORDO,
CORY DUNAHUE,
RUSSELL DYMOND, JR.,
ROBERT FREUND,
MICHAEL GABRIELE,
PAUL GOFF,
ALEXANDER M. GOLSTON,
JEFFREY MARTINEZ,
MICHAEL MOSCO,
PHILLIP NEWTON, and
ANDREW RAMIREZ, et. al.,
Plaintiffs,
v.
CITY AND COUNTY OF DENVER, a Colorado Municipal Corporation,
Defendant.
ORDER APPROVING SETTLEMENT
Upon Motion by Plaintiffs, and this Court being duly advised on the matter, this Court
makes the following findings:
1.

Nothing in the text of the Fair Labor Standards Act or the regulations

promulgated by the Department of Labor pursuant to the FLSA specifies the process by which
proposed settlements of FLSA collective actions should be considered. In lieu of clear guidance
under the FLSA, a general consideration of the traditional factors used to evaluate settlement of
Rule 23 class actions is appropriate to assist the Court in finding that the instant settlement is a
“fair and reasonable” resolution of a bona fide dispute over the FLSA overtime provisions.
Those factors include the following:

(1) Whether the proposed settlement was fairly and honestly negotiated;
(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) Whether the parties agree that the settlement is fair and reasonable. Rutter &
Wilbanks Corp. v. Shell Oil Co., 314 F.3d 1180, 1187–1188 (10th Cir. 2002).
2.

This Court finds that the settlement proposed in this matter was fairly and honestly

negotiated. The parties were adequately represented during the settlement process by
experienced counsel, and the settlement discussions occurred after the completion of discovery
and a lengthy, dispositive motions process.
3.

This Court finds that serious questions of law and fact exist, placing the ultimate

outcome of the litigation in doubt. Questions exist as to whether the uncompensated time
claimed by Plaintiffs is non-compensable under the de minimis rule. Furthermore, there is no
Tenth Circuit precedent on several of Plaintiffs’ claims.
4.

This Court finds that the value of an immediate recovery outweighs the mere

possibility of future relief after protracted and expensive litigation. This Court anticipates that
the conclusion of the trial and damages process in this case would be lengthy, and might result in
appeals by either or both of Plaintiffs and Defendant. Without a settlement, it could be many
years before this matter is finally resolved.
5.

This Court finds that the judgment of the parties is that the settlement is fair and

reasonable. More than 98% of the 852 Plaintiffs have approved of the settlement through the
execution of releases. The Denver City Council has informally approved of the settlement
2

agreement, and the Mayor of the City of Denver has supported the settlement agreement. In
addition, Plaintiffs’ four attorneys and Defendant’s three attorneys also support the settlement
agreement.
For these reasons, it is hereby ORDERED as follows:
1.

The settlement agreement reached by the parties is hereby approved.

2.

The settlement agreement calls for additional Plaintiffs to be allowed to join the

lawsuit. Eligible additional Plaintiffs will have an opportunity to join this lawsuit during the 60day period commencing with the date of this Order.
3.

Should any current Plaintiff not agree with the settlement within 60 days after the

date of this Order, Plaintiffs’ counsel shall provide notice to such Plaintiffs that they must either
accept the settlement or pursue their individual claims within the following 45 days. Any claim
held by a non-settling current Plaintiff which is not brought before this Court within 105 days
from the date of this Order, will be deemed waived and barred.
4.

Counsel shall electronically file all releases signed by the original Plaintiffs. Within

one week of the conclusion of the 60-day period in which new Plaintiffs may join the suit,
counsel must electronically file all consent forms and releases signed by the new Plaintiffs.
5. Except to the extent that non-settling Plaintiffs have given proper notice that they
intend to pursue their claims, this case, and the claims of all settling and additional Plaintiffs,
shall be dismissed 105 days from the date of this Order.
IT IS SO ORDERED.

DATED: January 31, 2012
BY THE COURT:
s/Richard P. Matsch
RICHARD P. MATSCH, Senior District Judge
3

APPROVED BY:

/s/ Robert Wolf
Robert Wolf, Denver City Attorney

/s/ David L. Worstell
David L. Worstell, Attorney for Plaintiffs

4