Eddins et al v. Time Warner NY Cable, LLC

Filing 223

ORDER denying as moot 196 , 203 , and 218 Motions. 219 Report and Recommendation is ACCEPTED. 214 Report and Recommendation is REJECTED AS MOOT. 222 Motion is GRANTED as outlined in the attached ORDER. The case is DISMISSED WITH PREJUDICE. By Judge Raymond P. Moore on 07/24/2015. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 13BcvB02521BRMBMJW
DENA M CANNON,
JULIANA VAN TUIL, and
SUZANNE BOLDEN, on behalf of themselves and others similarly situated,
Plaintiffs,
v.
TIME WARNER NY CABLE LLC,
Defendant.
______________________________________________________________________________
ORDER
APPROVING THE PARTIES’ SETTLEMENT AGREEMENT
AND DISMISSING THE CASE WITH PREJUDICE
_____________________________________________________________________________
THIS MATTER is before the Court on the parties’ Renewed Joint Motion for Approval of
Settlement Agreement and Award of Attorneys’ Fees (“Renewed Joint Motion”) (ECF No. 222).
The parties request the Court to approve their settlement agreement which resolves all of
Plaintiffs’ claims. Upon consideration of all relevant matters, for the reasons stated below, the
Court approves the parties’ settlement agreement and, pursuant to Rule 41(a)(2) of the Federal
Rules of Civil Procedure, dismisses the case with prejudice.
I.

FACTS AND PROCEDURAL HISTORY
Plaintiffs are current and former customer service representatives working, or who worked,

at Defendant’s call center in Colorado Springs, Colorado. The Named Plaintiffs1 brought this
action under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq., and Colorado law
to recover unpaid overtime compensation allegedly owed. (ECF No. 1.) On October 6, 2014,
the Court conditionally certified this case as a collective action under the FLSA. (ECF No. 106.)
After conducting substantial discovery, as detailed in the Renewed Joint Motion, the parties,
represented by their respective counsel, engaged in arms-length settlement negotiations, reached a
compromise on the claims, and resolved all their differences. Plaintiffs, with counsel’s advice,
have fully consented to resolving all of their claims in accordance with the Settlement Agreement
and Release between Plaintiffs and Defendant executed by Plaintiffs’ counsel and Defendant.
(ECF No. 222–1.)
Initially, after reaching a settlement, the parties presented their “Joint Motion for Approval
of Settlement Agreement and Award of Attorneys’ Fees” (“Joint Motion”) (ECF No. 218) to the
Court for approval. Upon review of the Joint Motion, the Court held a hearing on June 17, 2015,
regarding the terms and conditions of the proposed settlement and ordered the parties to provide a
status report or amended settlement papers. (ECF No. 221.) Thereafter, the parties submitted
the Renewed Joint Motion which is now before the Court for approval.
II.

LEGAL STANDARD
Stipulated settlements in FLSA cases brought by employees (or former employees) against

their employer require court approval. Baker v. Vail Resorts Mgmt. Co., Case No. 13–CV–

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Originally, there were ten named plaintiffs. (ECF No. 1.) Only three of the originally named plaintiffs (Dena M.
Cannon, Juliana Van Tuil, and Suzanne Bolden) remain as such. As used herein, the Named Plaintiffs refer to these
three plaintiffs. (ECF No. 222.)

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01649-PAB-CBS, 2014 WL 700096, at *1 (D. Colo. Feb. 24, 2014); see Lynn’s Food Stores, Inc.
v. United States, 679 F.2d 1350, 1353 (11th Cir. 1982). Approval should be granted when: (1) the
FLSA settlement is reached as a result of bona fide dispute; (2) the proposed settlement is fair and
equitable to all parties concerned; and (3) the proposed settlement contains a reasonable award of
attorneys’ fees. Baker, 2014 WL 700096, at *1; see Lynn’s Food Stores, 679 F.2d at 1354.
III.

ANALYSIS
A. Bona Fide Dispute
Parties who request approval of an FLSA settlement “must provide the Court with

sufficient information to determine whether a bona fide dispute exists.” Baker, 2014 WL 700096,
at *1; Dees v. Hydradry, Inc., 706 F. Supp. 2d 1227, 1241–42 (M.D. Fla. 2010). “To meet this
obligation, the parties must present: (1) a description of the nature of the dispute; (2) a description
of the employer’s business and the type of work performed by the employees; (3) the employer’s
reasons for disputing the employee’s right to a minimum wage or overtime; (4) the employees’
justification for the disputed wages; and (5) if the parties dispute the computation of wages owed,
each party’s estimate of the number of hours worked and the applicable wage.” Baker, 2014 WL
700096, at *1 (citing Collins v. Sanderson Farms, Inc., 568 F. Supp. 2d 714, 719–20 (E.D. La.
2008)).
In this case, the Court finds that a bona fide dispute exists. Here, Plaintiffs claim that
Defendant failed to pay them overtime wages while they worked as a customer service
representative at Defendant’s Colorado Springs, Colorado call center. (ECF No. 1 at, e.g., ¶¶ 1-4,
19-22.) Plaintiffs allege they are owed overtime wages for work performed preparing
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(“booting-up”) their computers prior to the beginning of their shift (ECF No. 1 at ¶¶ 23-31); for
work performed during their unpaid breaks during their shifts (ECF No. 1 at ¶¶ 32-39); and for
work performed after the end of their shifts (ECF No. 1 at ¶¶ 40-45). Plaintiffs claim that they
worked 40 hours or more per week, but were paid 40 hours per week regardless of how many hours
they actually worked, and are entitled to overtime for all uncompensated time. (ECF No. 1 at
¶¶ 21, 60, 68.) Among other things, Defendant denies that it failed to pay Plaintiffs any overtime
wages due; asserts its policies prohibit any hourly employee from performing work during times
for which he or she is not being compensated; contends that if Plaintiffs performed any
off-the-clock work, Defendant was unaware of it; and argues that the time periods for which
Plaintiffs allegedly were not paid are de minimis and, therefore, are not compensable as a matter of
law. (ECF No. 22, passim; No. 222, page 4.) As such, the record shows that a bona fide dispute
exists.
B. Fair and Reasonable Settlement
“To be fair and reasonable, an FLSA settlement must provide adequate compensation to
the employee[ ] and must not frustrate the FLSA policy rationales.” Baker, 2014 WL 700096, at
*2. The Court considers several factors when evaluating the fairness of a settlement: “(1) whether
the parties fairly and honestly negotiated the settlement; (2) whether serious questions of law and
fact exist which place 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 litigation; and
(4) the judgment of the parties that the settlement is fair and reasonable.” Baker, 2014 WL
700096, at *2 (citing Rutter & Wilbanks Corp. v. Shell Oil Co., 314 F.3d 1180, 1188 (10th Cir.
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2002)) (relying on factors considered in approving class action settlements under Fed. R. Civ. P.
23(e)).
1. Whether the parties fairly and honestly negotiated the settlement
This litigation has been pending for almost two years and, although the record shows there
have been difficulties with discovery, the parties represented they were able to nonetheless
conduct significant discovery prior to engaging in settlement discussions. The parties also
advised that eight attorneys were involved with the settlement process, and the settlement was the
product of their arms-length negotiations. Accordingly, the Court finds this first factor is
satisfied.
2. Whether serious questions of law and fact exist which place the ultimate outcome of
the litigation in doubt, and whether the value of an immediate recovery outweighs
the mere possibility of future relief after protracted litigation
The Court finds serious questions of law and fact exist which place the ultimate outcome of
the litigation in doubt, and the value of an immediate recovery outweighs the mere possibility of
future relief after protracted litigation. Here, the parties dispute the merits of Plaintiffs’ claims,
the viability of Defendant’s defenses, the proper calculation of damages (assuming there are any),
and whether this case is appropriate for collective treatment. There is also a dispute over whether
the dismissal of certain Plaintiffs is warranted in light of alleged discovery violations.2 The record
shows the case is hotly contested, and there has already been protracted litigation. Plaintiffs
acknowledge the risk of continuing this litigation, and agree that the value of an immediate
recovery is preferable than continuing to litigate for a lengthy period of time with only a possibility
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In fact, there is a pending recommendation that three Plaintiffs be dismissed with prejudice for discovery violations.
(ECF No. 214.)

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of recovery at the conclusion of the lawsuit. In light of these facts and circumstances, the Court
finds the second and third factors are met.
3. The judgment of the parties that the settlement is fair and reasonable
The parties agree that the terms of the Settlement Agreement are fair and reasonable.
Under the Settlement Agreement’s terms, Defendant agrees to pay up to a maximum settlement
amount of $49,550.00, which consists of payment to members of the settlement group amounts
ranging from $100.00 to $900.00, payment to class counsel for fees and costs of $20,000.00, and
payment of settlement administration fees of $8,000.00. (ECF No. 222-1 at 3-5.) According to
the parties, the individualized amounts paid to each member of the settlement group are for their
minimal, disputed claims. Further, the parties represent that for those members of the settlement
group who did not comply with discovery obligations and whose claims could be subject to
dismissal, the settlement amounts exceed what he or she would recover under the FLSA if their
claims were to be dismissed. (ECF No. 222 at 7.) For all members of the settlement group, the
parties advise that these settlement amounts represent a compromise between the parties for the
potential value of their highly-disputed claims and constitute amounts that may exceed what he or
she could possibly recover under the FLSA for any alleged unpaid overtime were this litigation to
proceed further. (ECF No. 222 at 7-8.) Based on the foregoing, the Court finds that the record
shows the parties fairly and honestly negotiated the settlement.
4. The settlement must not frustrate the FLSA policy rationales
“To determine whether a settlement agreement complies with the FLSA, courts look at the
following factors: (1) presence of other similarly situated employees; (2) a likelihood that
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plaintiffs’ circumstances will recur; and (3) whether defendants had a history of noncompliance
with the FLSA.” Baker, 2014 WL 70096, at * 2 (citing Dees, 706 F. Supp. 2d at 1244). The
Court finds that the settlement agreement does not undermine the FLSA’s purposes. First, the
parties represent that Court-authorized Notice was mailed to more than 1,400 current and former
customer service representatives of Defendant, and that no individuals who have indicated an
interest in joining the action have been excluded from this settlement. Thus, no similarly-situated
employees who have sought to join this action are being excluded from this settlement and the
rights of absent “class” members are not affected. Second, Plaintiffs’ circumstances are not likely
to recur because the parties also represent that the majority of the members of the settlement group
are no longer employed by Defendant. For those few members who are still employed, the parties
advise the Defendant’s policies prohibit the conduct alleged, and these circumstances are unlikely
to recur. Third, according to the parties, Defendant does not have a history of non-compliance
with the FLSA. Finally, while the Settlement Agreement contains certain restrictions on media
contact, the agreement is a public document and thus its terms are public. Therefore, future
plaintiffs would have notice of prior allegations of Defendant’s improper conduct.
In summary, the Court finds the above factors and considerations show the Settlement
Agreement is fair and reasonable.
C. Attorneys’ Fees
The Court must consider whether the employees’ FLSA claim “has or will be
compromised by the deduction of attorney’s fees, costs or expenses pursuant to a contract between
the plaintiff and his or her counsel, or otherwise.” Dorismond v. Wyndham Vacation Ownership,
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Inc., Case No. 14–CV–63, 2014 WL 2861483, at *2 (M.D. Fla. June 24, 2014) (citation omitted).
The parties represent that the class counsel fees and costs payment was negotiated separately and
without regard to the amount paid to the members of the settlement group. Defendant does not
oppose the requested payment. The parties further represent and agree that the time and expenses
class counsel incurred in this litigation significantly exceed the payment amount based on a
lodestar calculation. The Court’s review of the record supports such representation. Upon
consideration of these facts and circumstances, the Court is satisfied that the $20,000.00 payment
is reasonable and does not compromise Plaintiffs’ FLSA claims. Therefore, the Court will
approve the parties’ Settlement Agreement.
IV.

CONCLUSION
Based on the foregoing, the Court ORDERS that
(1) The Renewed Joint Motion for Approval of Settlement Agreement and Award of
Attorneys’ Fees (ECF No. 222) is GRANTED;
(2) The Parties’ Settlement Agreement and Release of Claims Between Plaintiffs and
Defendant (ECF No. 222-1) is APPROVED;
(3) The “Report & Recommendation on Defendant’s Motion to Dismiss Opt-In Plaintiff
Terri Nelson and for Attorneys’ Fees (Docket No. 203)” (ECF No. 219) is ACCEPTED
and Defendant’s Motion to Dismiss Opt-In Plaintiff Terri Nelson and for Attorneys’
Fees (ECF No. 203) is DENIED AS MOOT;

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(4) The “Report and Recommendation on Defendant’s Motion to Decertify for Failure to
Provide Court-Ordered Discovery, to Dismiss Certain Opt-In Plaintiffs, and for
Sanctions (Docket No. 196)” (ECF No. 214) is REJECTED AS MOOT;
(5) The following motions are DENIED AS MOOT:
(i)

Defendant’s Motion to Decertify for Failure to Provide Court Ordered
Discovery, to Dismiss Certain Opt-In Plaintiffs, and for Sanctions (ECF No.
196); and

(ii)

Joint Motion for Approval of Settlement Agreement and Award of Attorneys’
Fees (ECF No. 218);

(6) The case is DISMISSED WITH PREJUDICE; and
(7) The Clerk of the Court is directed to CLOSE this case.
DATED this 24th day of July, 2015.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

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