Torres-Vallejo v. CreativExteriors, Inc. et al

Filing 84

ORDER Preliminarily Approving Settlement, by Judge William J. Martinez on 4/12/2018. (angar, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 15-cv-2832-WJM-CBS
VENANCIO TORRES VALLEJO, individually
and on behalf of all persons similarly situated,
Plaintiff,
v.
CREATIVEXTERIORS, INC., and
JEFFREY MILLER,
Defendants.

ORDER PRELIMINARILY APPROVING SETTLEMENT
In this action arising under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§
201 et seq., and the Colorado Minimum Wage Act, Colorado Revised Statutes §§
8-6-101 et seq., and also raising related contract claims, the Court entered an Order on
November 23, 2016 certifying both a collective action under FLSA and a Rule 23 class
for claims brought by lead Plaintiff, Venancio Torres Vallejo, on behalf of a class of
similarly-situated landscape laborers who are Mexican nationals and who worked
seasonally for Defendants under terms of the H-2B visa program between 2010 and
2015. (ECF No. 51.) Now before the Court is the Parties’ Joint Motion for Preliminary
Approval of Proposed Class Action Settlement Agreement and Notice to Class
Members (ECF No. 82 (the “Motion”)), which reflects that the Parties negotiated a
settlement agreement on or around November 17, 2017, which they have since
memorialized (id. at 4–5).

The Court, having carefully reviewed the Motion and related filings by the
Parties, and being fulled advised, hereby ORDERS as follows:
1.

Final certification of the respective FLSA and Rule 23 classes preliminarily

certified in this Court’s November 23, 2016 Order (ECF No. 51) is hereby GRANTED.
2.

The Settlement Agreement is PRELIMINARILY APPROVED as fair and

reasonable.
3.

The form, contents and method of notice to be given to the Class as set

forth in the Settlement Agreement and accompanying exhibits are APPROVED, subject
to the modification that Paragraph III of the proposed Notice (ECF No. 82-1) shall be
modified to add the following underlined and partially bolded language: “If you sign and
return the form . . . . you will receive at least $[individual total amount from Attachment
C] in gross payments from this settlement, if the Court ultimately approves the
settlement.”
4.

The Administrator shall complete distribution of the notice and claim forms

attached to the Settlement Agreement (ECF No. 82-1) as Attachments A and B, in the
English and Spanish languages, to all class members within ten days after entry of this
Order, as set forth in paragraph 11 of the Parties’ Settlement Agreement (ECF # 82-1).
5.

As set forth in the Settlement Agreement, the mailing of the Class Notice

and claim forms will commence a 100-day notice period and any objections to the
Settlement Agreement or claims on the Settlement Fund must be post-marked or
received by the Settlement Administrator no later than 100 days after the Class Notice
is mailed.

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6.

Class Members who wish to be excluded must provide written notice of

their desire to be excluded to the Administrator within 100 days after the class notice is
mailed. Fed. R. Civ. P. 23(e)(4).
7.

Any Settlement Class Member wishing to object to the Court’s approval of

the Settlement Agreement shall file their objection in writing with the Administrator
within 100 days after the Class Notice is mailed. The Administrator shall promptly
submit such objections to counsel and counsel for the parties shall promptly file any
such objection the Administrator receives with the Court. Counsel for the Parties may
file a response to any objections filed as part of or contemporaneous with the Parties’
application for final settlement approval. Plaintiffs’ counsel may communicate with
Settlement Class Members regarding their objections and may advise the Court of any
Settlement Class Members who have communicated that they wish to withdraw their
objections. Objections may be withdrawn only with the Court’s approval. Fed. R. Civ.
P. 23(e)(5).
8.

Class counsel need not submit a separate motion for approval of

attorneys’ fees under Fed. R. Civ. P. 54(d)(2), but shall include such a request with their
motion for final settlement approval. The Court finds that the approved Class Notice
submitted as Attachment A to the Settlement Agreement (ECF # 82-1 pg. 12) provides
adequate notice and service of Class Counsel’s motion and fee request. Fed. R. Civ.
P. 23(h)(1). Any class member or party may object to that request through the
objections process set forth in paragraph 7 above. Fed. R. Civ. P. 23(h)(2).
8.

A fairness hearing is scheduled for Wednesday, September 5, 2018 at

9:30 a.m., at the United States District Court for the District of Colorado, located at 901
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19th St., Denver, CO 80294, in Courtroom A801, on the 8th floor, to determine whether
the Court will give final approval to the Settlement Agreement. The Parties’ motion
seeking final approval of the settlement, including counsel’s final request for attorneys’
fees and costs, and any incorporated responses to objections received, shall by filed with
the Court and served on any timely objectors no later than August 15, 2018. Any written
responses to this motion shall be filed with the Court no later than August, 29, 2018.
These deadlines for Court filings do not alter the obligation to comply with the 100-day
period for submitting any written objections, as set out in paragraphs 5–7 above.
9.

Any class member may appear at the fairness hearing and be heard as to

why the Settlement Agreement should not be approved as fair, reasonable, and
adequate, why a judgment should not be entered upon the settlem ent, and/or why
attorneys’ fees and expenses should not be awarded to class counsel. However, no
class member shall be heard or entitled to contest the approval of the terms and
conditions of the Settlement Agreement unless that person has submitted an objection
in writing within the 100-day period set out by Paragraphs 5–7 above. Any class
member who fails to object or otherwise request to be heard will be deemed to have
waived the right to object to the settlement
Dated this 12th day of April, 2018.
BY THE COURT:

William J. Martínez
United States District Judge
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