Belote v. Rivet Software, Inc

Filing 28

ORDER granting 26 Motion to Certify Class and Related Relief by Judge Wiley Y. Daniel on 05/28/13.(jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 12-cv-02792-WYD-MJW
FREDDIE BELOTE, on behalf of himself and all others similarly situated,
Plaintiff,
v.
RIVET SOFTWARE, INC.,
Defendant.

ORDER

THIS MATTER is before the Court on Plaintiff’s Motion for Class Certification and
Related Relief filed on March 1, 2013. The motion seeks (a) certification of a class
pursuant to Fed. R. Civ. P. 23 comprised of Plaintiff and the other persons similarly
situated who were allegedly terminated without cause in connection with the mass layoff
and/or plant closing on or about June 1, 2012 at Defendant’s facility, (b) the
appointment of Outten & Golden LLP as Class Counsel, (c) the appointment of Plaintiff
as the Class Representative, (d) approval of the form and manner of Notice of Class
Action, and (e) such other relief as this Court may deem proper. The motion is
supported by the attached declarations of Plaintiff Freddie Belote (“Plaintiff’s
Declaration”) and René S. Roupinian, a partner of Outten & Golden LLP (“Roupinian
Declaration”).
By way of background, the motion asserts that immediately prior to June 1, 2012,
Plaintiff and approximately 125 other similarly situated persons who were employees of

Defendant were terminated as part of, or as a result of the mass layoff and/or shutdown,
as defined by the Worker Adjustment and Retraining Notification Act, 29 U.S.C.
§2101(a)(2) (the “WARN Act”) at Defendant’s facility located at 4340 South Monaco
Street, Suite 100, Denver, Colorado (the “Denver Facility”). Plaintiff asserts that the
layoff and/or shutdown was carried out without giving advance notice to the employees
as required by the WARN Act, and that neither Plaintiff nor any of the other former
employees who worked at the Denver Facility (the “Class”) received 60
days’ pay and benefits in lieu of notice. The Complaint alleges a Rule 23(b)(3) class
claim arising from Defendant’s violation of the WARN Act.
As to the merits of the motion, I note that Defendant filed a response on March
20, 2013, wherein it does not oppose the motion. Nevertheless, I must satisfy myself
that Plaintiff has shown that each of the four prerequisites for class certification set forth
in Rule 23 are satisfied. See Trevizo v. Adams, 455 F.3d 1155, 1161-62 (10th Cir.
2006) (“A party seeking class certification must show ‘under a strict burden of proof’ that
all four requirements are clearly met”) (quotation omitted). Rule 23(a) requires a
showing of “(1) Numerosity: ‘the class is so numerous that joinder of all members is
impracticable’; (2) Commonality: ‘there are questions of law or fact that are common to
the class’; (3) Typicality: ‘the claims or defenses of the representative parties are typical
of the claims or defenses of the class’; and (4) Adequacy of representation: ‘the
representative parties will fairly and adequately represent the interests of the class.’” Id.
(quoting Fed. R. Civ. P. 23(a)).

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I find that Plaintiff has shown in the motion that the prerequisites for class
certification are present in this action. I first note that violations of the WARN Act have
given rise to numerous class action cases for which class certification has been
granted. See, e.g., Pearson v. Component Tech. Corp., 247 F.3d 471 (3rd Cir. 2001);
Jurcev v. Cent. Cmty. Hosp., 7 F.3d 618 (7th Cir. 1993); In re Taylor Bean & Whitaker
Mortg. Corp., No. 3:09-bk-07047-JAF, 2010 WL 4025873 (Bankr. M.D. Fla. Sept. 27,
2010); Kettle v. Bill Heard Enterprises, Inc., 400 B.R. 795 (Bankr. N.D.Ala. 2009).
As to the requirements for certification, Plaintiff asserts as to numerosity that
there are approximately 125 class members. The Tenth Circuit has not adopted a “‘set
formula’” to determine whether the numerosity requirement is met; instead, it is a factspecific inquiry best left to the discretion of the district court’s discretion.” Lowery v. City
of Albuquerque, 273 F.R.D. 668, 678 (D.N.M. 2011) (quoting Rex v. Owens, 585 F.2d
432, 436 (10th Cir. 1978)). Here, Plaintiff’s motion and Declaration point out that the
cost of litigation of WARN claims is high compared to recovery which is low. I agree,
finding that the putative class members’ claims are too small to be prosecuted
individually as such solo actions are not economical or feasible. See Maez v. Springs
Auto. Grp., LLC, 268 F.R.D. 391, 395 (D. Colo. 2010) (numerosity satisfied where the
individual claims are relatively small in relation to the cost of litigation). Courts have
held that similar class sizes in WARN cases meet the numerosity requirement.
Cashman v. Dolce Int’l/Hartford, Inc., 225 F.R.D. 73, 91 (D. Conn. 2004) (proposed
class of 117 former employees of the defendant was large enough to satisfy the
numerosity requirement); Finnan v. L.F. Rothschild & Co., Inc., 726 F. Supp. 460, 465
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(S.D.N.Y. 1989) (class of approximately 127 former employees of the defendant
satisfied the requirements of Rule 23(a)).1 Thus, I find that Plaintiff has satisfied the
numerosity requirement of Fed. R. Civ. P. 23(a)(1).
Commonality is also satisfied. Here, Plaintiff claims that he and the other Class
Members were terminated as part of a common plan stemming from Defendant’s
decision to terminate employees at the Denver Facility. Additionally, the factual and
legal questions stem from a common core of factual allegations regarding Defendant’s
actions and a common core of legal issues regarding every Class Member’s rights, as
follows: (a) Defendant employed more than 100 employees; (b) all the Class Members
are protected by the WARN Act; (c) the Class Members were employees of Defendant;
(d) Defendant discharged the Class Members on or within 30 days of June 1, 2012, and
thereafter in connection with a mass layoff or plant closing; (e) the Class Members were
“affected employees”, as they lost their employment as a result of the mass layoff or
plant closing; (f) Defendant terminated the employment of the Class Members without
cause; (g) Defendant terminated the employment of the Class Members without giving
them at least 60 days’ prior written notice as required by the WARN Act; and (h)
Defendant failed to pay the Class Members 60 days’ wages and benefits. The only
differences are minor, namely, the rate of pay and the date of termination.
As to typicality, the Class Representative (Plaintiff) suffered the same type of
injury as the rest of the class and the motion and supporting material represents that

1

As the motion also points out, WARN Act classes have been certified with even smaller groups
of claimants.

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there are no conflicts of interest between the Class Representative and the other Class
Members. Defendant’s alleged failure to comply with the requirements of the WARN
Act represents a single course of conduct resulting in injury to all Class Members,
including Plaintiff. Plaintiff alleges that neither he nor other Class Members received 60
days’ notice or 60 days’ wages and benefits, pursuant to the requirements of the WARN
Act. Thus, I find that the factual situation of the Class Representative and the legal
theories upon which the action is grounded are typical of the entire Class.
Finally, I must address the adequacy of representation–whether Plaintiff will fairly
and adequately protect the interests of the class. The adequacy inquiry in the Tenth
Circuit focuses on two questions: “(i) whether the named plaintiffs and their counsel
have any conflicts with other class members; and (ii) will the named plaintiffs and their
counsel vigorously prosecute the action on behalf of the class.” Lowery, 273 F.R.D. at
680 (D.N.M. 2011) (citing Rutter & Wilbanks Corp. v. Shell Oil Co., 314 F.3d 1180,
1187-88 (10th Cir. 2002)). Here, I find that the first element of Rule 23(a)(4) is met in
this case because, as set forth above, no divergence exists between the interests of the
proposed Class Representative and the interests of the Class as a whole. The second
element of Rule 23(a)(4) is met because Plaintiff’s counsel appear from the Roupinian
Declaration to be “qualified, experienced and generally able to conduct the proposed
litigation.” Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562 (2d Cir. 1968). Additionally,
it appears from the Roupinian Declaration that proposed class counsel is qualified to
represent the putative class in this WARN Action and has diligently prosecuted Plaintiff’s
claims.
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Based on the foregoing, the four prerequisites of Rule 23(a) for Class certification
are met. However, in addition to meeting the prerequisites for class certification under
Rule 23(a), a class must also meet one of the three alternative requirements for
treatment as a class action under Fed. R. Civ. P. 23(b). Here, Plaintiff seeks class
certification under Fed. R. Civ. P. 23(b)(3).
Class certification is proper under Rule 23(b)(3) where “the questions of law or
fact common to the members of the class predominate over any questions affecting only
individual members, and … a class action is superior to other available methods for the
fair and efficient adjudication of the controversy.” Maez, 268 F.R.D. at 397; Lowery, 273
F.R.D. at 687. In determining whether predominance is satisfied under Rule 23(b)(3),
the Court “must determine whether the members of the class seek a remedy to a
common legal grievance and whether the common questions of law and fact central to
the litigation are common to all class members.” United Food and Commercial Workers
Union v. Chesapeake Energy Corp., 281 F.R.D. 641, 655 (W.D. Okla. 2012). “‘Class
wide issues predominate if resolution of some of the legal or factual questions that
qualify each class member’s case as a genuine controversy can be achieved through
generalized proof, and if these particular issues are more substantial than the issues
subject to only individualized proof.’” Id. (quotation omitted).
I find that a class action is the superior method of resolving this dispute because
many of the claims are quite small, making individual lawsuits impracticable. See
Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 809 (1985); Eisen, 391 F.2d at 566-567;
United Food and Commercial Workers Union, 281 F.R.D. at 657. As shown above,
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common questions of fact and law overwhelmingly predominate over the minor
questions affecting individual claims.
Additionally, Fed. R. Civ. P. 23(b)(3) requires that the Plaintiff demonstrate that
“a class action is superior to other available methods for the fair and efficient
adjudication of the controversy.” Four factors are set forth in Rule 23(b)(3) to guide the
court’s determination as to whether a class action is superior and whether issues of fact
and law common to class members predominate over individual matters:
(A) the interest of members of the class in individually controlling the
prosecution or defense of separate actions; (B) the extent and nature of any
litigation concerning the controversy already commenced by or against
members of the class; (C) the desirability or undesirability of concentrating
the litigation of the claims in the particular forum; (D) the difficulties likely to
be encountered in the management of a class action.
Id.
Here, I find that neither Plaintiff nor any of the other Class Members have an
interest in individually controlling the prosecution of separate actions. (See Pl.’s Decl.,
Ex. A to Mot.) Concentrating the WARN litigation in a class action will avoid duplicate
efforts of multiple suits. Finally, the difficulties in managing this litigation as a class
action are few: the Class Members can be easily identified; the potential liability of
Defendant can be readily calculated; and there is but one combined course of
conduct—that of Defendant—to examine and adjudicate. (Id.) Accordingly, I find that a
class action is superior to other available methods for the fair and efficient adjudication
of the controversy. See Seijas v. Republic of Argentina, 606 F.3d 53, 58 (2d Cir.2010)

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(class action device is frequently superior where proceeding individually would be
difficult for class members with small claims).
I now turn to the portion of Plaintiff’s motion that seeks to appoint Outten &
Golden LLP as Class Counsel and to appoint Plaintiff as the Class Representative. I
find that these requests should be granted. As to Class Counsel, the Roupinian
Declaration shows that Plaintiff’s counsel is qualified and has been actively and
diligently prosecuting this action, expending considerable attorney and paralegal time in
furtherance of the litigation. Moreover, Plaintiff is being represented by attorneys who
are highly experienced in class action litigation and experienced in prosecuting claims
under the WARN Act, having been appointed Class Counsel in some 75 WARN class
actions. (See Roupinian Decl., Ex. B to Mot.) Similarly, as to the appointment of Class
Representative, I find that Plaintiff has been diligent in pursuing the class claim and has
worked with counsel in initiating and prosecuting the action; he has no conflict of
interest with other Class Members, and he has and will fairly and adequately represent
the interests of the Class. (See Pl.’s Decl., Ex. A.) Finally, I find that the form and
manner of service of the notice attached to the motion is appropriate.
Based on the foregoing, it is
ORDERED that Plaintiff’s Motion for Class Certification and Related Relief (ECF
No. 26) is GRANTED. In accordance therewith, it is
ORDERED that a class is certified comprised of Plaintiff and the other former
employees of Defendants (i) who worked at or reported to Defendant’s Denver Facility
and were terminated on or about June 1, 2012, within 30 days of June 1, 2012, or in
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anticipation of or as the foreseeable consequence of the mass layoff or plant closing
ordered by Defendant on or about June 1 2012, and who are affected employees within
the meaning of 29 U.S.C. § 2101(a)(5), and (ii) who have not filed a timely request to
opt-out of the class. It is
FURTHER ORDERED that the class as certified meets the requirements of Fed.
R. Civ. P. 23(b)(3). It is
FURTHER ORDERED that Outten & Golden LLP is appointed Class Counsel. It
is
FURTHER ORDERED that Plaintiff Freddie Belote is appointed the Class
Representative. It is
FURTHER ORDERED that the proposed form of Notice to the Class, attached to
the motion as Exhibit C, is approved. That form of notice is found to be the best notice
practicable under the circumstances and constitutes due and sufficient notice to all
class members in full compliance with the notice requirements of Fed. R. Civ. P. 23.

It

is
FURTHER ORDERED that within ten (10) days after the entry of this Order, or by
Friday, June 7, 2013, Defendant shall provide Class Counsel with the names and
addresses of the class members as noted in Defendant’s records. It is
FURTHER ORDERED that on or before ten (10) days after receipt from
Defendant of the names and addresses of the Class members, Class Counsel shall
provide notice of the pendency of the class action lawsuit by mailing the Notice, First

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Class postage prepaid, to each employee of Defendant who falls within the definition of
the class, to their last known address as noted in the records of the Defendant. It is
FURTHER ORDERED that within ten (10) days after such mailing, Class
Counsel shall serve and file a sworn statement affirming compliance with this Order
concerning the mailing of the Notice. It is
FURTHER ORDERED that the deadline for any Class Member to opt-out of the
Class shall be 30 days from the date of mailing of the Notice. Finally, it is
ORDERED that Class Counsel shall serve and file a sworn statement listing the
names of any persons who have opted out of the Class.
Dated: May 28, 2013
BY THE COURT:
s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge

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