Lozoya et al v. AllPhase Landscape Construction, Inc., et al.,

Filing 135

ORDER Approving Settlement, Certifying Settlement Class, Appointing Settlement Class Counsel, Directing Notice and Staying Proceedings Against Defendants. Signed by Judge John L. Kane on 02/17/16. (jhawk, )

Exhibit A
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-01048-JLK-KLM
JOSÉ LOZOYA,
ANTONIO MALDONADO, and
MARIO PEÑA
Plaintiffs,
v.
ALL PHASE LANDSCAPE CONSTRUCTION, INC., a Colorado corporation,
DONALD TROY TINBERG, and
MARK FISHER,
Defendants.

ORDER APPROVING SETTLEMENT, CERTIFYING SETTLEMENT CLASS,
APPOINTING SETTLEMENT CLASS COUNSEL, DIRECTING NOTICE AND
STAYING PROCEEDINGS AGAINST DEFENDANTS
_____________
Plaintiffs, José Lozoya, Antonio Maldonado, and Mario Peña (“Lead Plaintiffs”), on
behalf of themselves and on behalf of the Plaintiffs’ Class (collectively “Plaintiffs”), and All
Phase Landscape Construction , Inc. (“All Phase”), Donald Troy Tinberg, and Mark Fisher
(collectively “Defendants”), by counsel, have submitted Class Action Settlement Agreement and
have applied, pursuant to Fed. R. Civ. P. 23 for an order: (1) Approving the Terms and
Conditions set forth in the Settlement Agreement as fair, reasonable and adequate; (2) approving
forms, content and a program for Notice to the Settlement Class; and (3) scheduling a Final
Fairness Hearing to consider final approval of the Settlement.
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The Court has given due consideration to the terms of the Settlement, the Exhibits to the
Settlement, the submissions of the Parties in support of preliminary approval of the Settlement,
and the record of proceedings herein, and now approves the proposed Settlement for purposes of
notifying the Settlement Class of the opt-out and objection deadlines and the date of the Final
Fairness Hearing.
ACCORDINGLY, IT IS HEREBY ORDERED:
1.

This Court has jurisdiction of the subject matter of this litigation and jurisdiction

over Plaintiffs and Defendants in the above-captioned case (the “Parties”).
2.

The Parties have maintained and may maintain this litigation as a class action

under The Fair Labor Standards Act (“FSLA”) and Fed. R. Civ. P. 23 for settlement purposes on
behalf of the following class (the “Settlement Collectives”):
a.

FLSA Collective: All Lead Plaintiffs, Opt-in Plaintiffs and Class

Members who have been employed by Defendant in an hourly capacity, who
performed maintenance, enhancements, irrigation installation, repair, service or
maintenance, and/or snow removal on behalf of Defendants within the State of
Colorado, who have worked more than 40 hours in at least one week during the
Class Period, and whose claims are not time-barred.
b.

State Law Collective: All Lead Plaintiffs, opt-out Plaintiffs, and Class

Members who have been employed by Defendants as hourly employees who
performed maintenance, enhancements, irrigation installation, repair, service or
maintenance, and/or snow removal on behalf of Defendants within the State of
Colorado, who have worked more than 40 hours in at least one week during the
Class Period, and whose claims are not time-barred.

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3.

Pursuant to the Court’s Order dated January 21, 2014, the FLSA collective is

certified as a class.
4.

Pursuant to the Court’s Order dated March 31, 2015, the State Law Collective is

certified as a class under Fed. R. Civ. P. 23.
5.

Pursuant to this Court’s within Order David H. Miller and Rachel Graves of the

firm Sawaya & Miller are appointed Class Counsel.
6.

The terms of the parties’ Settlement Agreement are sufficiently fair, reasonable,

and adequate to allow dissemination of the notice of the proposed Settlement Agreement to the
Class members. This determination permitting notice to the Class is not a final finding that the
Settlement Agreement is fair, reasonable, and adequate, but simply a determination that there is
probable cause to submit the proposed Settlement to the Class.
7.

In the event that the Settlement does not become Final in complete accordance

with the terms of the Settlement Agreement, then this Order shall be rendered null and void and
be vacated and the Settlement Agreement shall be rendered null and void.
8.

The Court grants approval of the Settlement Agreement as falling within the range

of possible approval and meriting submission to the Class for its consideration, pursuant to the
FLSA and Fed. R. Civ. P. 23. Within 10 days preceding the Final Fairness Hearing, Plaintiffs
shall file their Motion for Attorneys’ Fees and Costs.
9.

Pursuant to the FLSA and Fed. R. Civ. P. 23, a Final Fairness Hearing shall be

held before this Court at 10:00 a.m. on June 27, 2016, at the United States District Court, District
of Colorado. At the Final Fairness Hearing, the Court will consider: (a) whether the Settlement
Agreement should be finally approved as fair, reasonable, and adequate; (b) whether a final
judgment should be entered thereon; (c) whether Settlement Class Counsel fairly and adequately

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protected the interests of the Class; and (d) whether Settlement Class Counsel’s application for
attorneys’ fees, costs, expenses should be approved by the Court.
10.

CPT Group is hereby approved as the Claims Administrator.

11.

CPT Group is hereby approved as the Escrow Agent for the Settlement.

12.

The Court approves, as to form and content, the Notice Plan set forth in the

Settlement Agreement and finds that such notice is the best practicable under the circumstances,
in conformity with Fed. R. Civ. P. 23(c)(2)(B).
13.

All Phase, through the Claims Administrator, is hereby directed to cause to be

sent the notices in the forms of Exhibits B and C to the Settlement Agreement, in accordance
with the Settlement Agreement, on or before March 11, 2016 and to send notice in the form of
Exhibit B to anyone who requests it.
14.

The Court finds that, under the circumstances, the Notices described in the

Settlement Agreement constitute the best notice that is practicable of the Final Fairness Hearing,
the Proposed Settlement, Settlement Class Counsel’s application for fees and expenses, and other
matters set forth in the Notices, and that such distribution of Notices constitutes valid, due, and
sufficient notice to all members of the Class, and comply fully with the requirements of FLSA,
Fed. R. Civ. P. 23, the Constitution of the United States, the constitutions and laws of Colorado,
the Class members’ rights of due process, and all other applicable law.
15.

Pursuant to 28 U.S.C. § 1715(d), Defendants’ Counsel shall notify the Court upon

expiration of 90 days after the appropriate federal and state officials are served with the notice
required under 28 U.S.C.§ 1715(b).
16.

All Phase shall pay all costs and expenses of the Claims Administrator in

distributing the notices and in publishing the Publication Notice.

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17.

Any person falling within the definition of the Class may, upon the person’s

request, be excluded from the settlement. Any such person must submit a request for exclusion,
postmarked on or before May 10, 2016, to:
David H. Miller, Esq.
Sawaya & Miller
1600 Ogden Street
Denver, CO 80218
The person making the request for exclusion must sign the request personally or by legal
counsel. A request for exclusion must include the (a) full name, (b) current address and (c)
address when the person was an employee of All Phase. The request for exclusion must also
state specifically that the person requests exclusion from the Class in In Re: José Lozoya,
Antonio Maldonado, & Mario Peña v. All Phase Landscape Construction, Inc., Donald Troy
Tinberg, & Mark Fisher, Civil Action No. 12-cv-01048-JLK-KLM. All persons who submit
valid and timely requests for exclusion in the manner set forth in this paragraph shall have no
rights under the Settlement Agreement and shall not be bound by the Settlement Agreement or
the final judgment herein. All persons falling within the definition of the Class who do not
request exclusion in the manner set forth in this paragraph shall be Class members and may be
bound by the Settlement Agreement and the final judgment.
18.

Any person falling within the definition of the Class who does not request

exclusion in the matter set forth in Paragraph 17 above can still object to the proposed Settlement
by filing and serving a written objection. The person making the objection (“objector”) must sign
the objection personally or by legal counsel. An objection must: (1) state the (a) full name, (b)
current address, and (c) address when the objector was an employee of All Phase; and (2) state
why the objector objects to the proposed Settlement and any reasons supporting such position.
Any party wishing to object must provide copies of any documents the objector intends to rely
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upon, the names and addresses of any witnesses who will appear at the Final Fairness Hearing,
and the name of any counsel representing the objector. Depositions of those posing objections
may be taken so long as they are limited to topics relating to the objection.
19.

If an objector intends to appear personally at the Final Fairness Hearing, the

objector must include with the objection a notice of the objector’s intention to appear at the Final
Fairness Hearing. Objections, along with any Notices of Intent to Appear, must be postmarked
on or before May 10, 2016, and should be mailed to Settlement Class Counsel and counsel for
Defendants at the addresses listed in the various notices and website. Class Counsel shall file
objections and notices of intent to appear with the Court prior to the Final Fairness Hearing.
Only persons in the Class who have filed and served valid and timely notices of objection, in
accordance with paragraph 18 above, shall be entitled to be heard at the Final Fairness Hearing.
20.

Any Settlement Class member who does not file and serve an objection in writing

to the Settlement Agreement, to the entry of final judgment, or to the Class Counsel’s application
for fees, costs, expenses and Class Representative compensation, in accordance with the
procedure set forth in the Notices and as mandated in this Order, shall be deemed to have waived
any such objection by appeal, collateral attack, or otherwise.
21.

The Court may, for good cause, extend any of the deadlines set forth in this Order

or adjourn or continue the Final Fairness Hearing without further notice to the Class.
22.

Pending final determination of whether the Settlement embodied in the Settlement

Agreement is to be approved, no member of the Class, either directly, representatively,
derivatively, or in any other capacity, shall commence or prosecute any action or proceeding in
any court or tribunal asserting any of the claims arising before July 12, 2013, as described in the
Settlement Agreement against Defendants.

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23.

The Parties shall otherwise perform their specified duties consistent with the

terms of the Settlement Agreement
SO ORDERED:
DATED: February 17, 2016,

______________________________
Honorable John L. Kane
United States District Judge

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