Shaulis et al v. Falcon Subsidiary LLC
Filing
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ORDER Granting 26 Joint Motion for Preliminarily Approval of Collective and Class Actions Settlement and Certifying the Class for Purpose of Settlement as indicated in the attached Order. Final Approval Hearing set for 9/25/2018 at 02:00 PM in Courtroom A 602 before Judge Christine M. Arguello. By Judge Christine M. Arguello on 06/19/2018. (athom, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 18-cv-00293-CMA-NYW
JANET SHAULIS, and
JEWEL ARLENE KEY, individually and on behalf of all other similarly situated
individuals
Plaintiffs,
v.
FALCON SUBSIDIARY LLC, a Delaware limited liability company, d/b/a Axispoint
Health,
Defendant.
ORDER GRANTING JOINT MOTION FOR PRELIMINARY APPROVAL OF
COLLECTIVE AND CLASS ACTIONS SETTLEMENT AND CERTIFYING THE CLASS
FOR PURPOSE OF SETTLEMENT
______________________________________________________________________
This matter is before the Court on the Parties’ Joint Motion for Preliminary
Approval of Collective/Class Action Settlement, Certifying Class for Purpose of
Settlement, Directing Notice to the Class, and Scheduling Final Approval Hearing (the
“Joint Motion”). (Doc. # 26.)
For the reasons set forth in the Joint Motion, this Court grants preliminary
approval of the Settlement Agreement, filed with the Court as Exhibit 1 to the Joint
Motion (Doc. # 26-1). Given the procedural posture of this case, the Settlement
Agreement is preliminary approved as fair, reasonable, and adequate. See In re Integra
Realty Resources, Inc., 354 F.3d 1246, 1266 (10th Cir. 2004); Rutter & Wilbanks Corp.
v. Shell Oil Co., 314 F.3d 1180, 1188 (10th Cir. 2002). Accordingly, it is hereby
ORDERED as follows:
1. The Joint Motion (Doc. # 26) is GRANTED.
2. Class Findings: Solely for the purposes of the Settlement, the Court finds that
the requirements of the Federal Rule of Civil Procedure 23, the Constitution of
the United States, the requirements of 29 U.S.C. § 216(b), the Rules of this Court
and any other applicable law have been met as to the Settlement Class defined
below, in that:
a. The Court preliminarily finds, for purposes of settlement only, that the
settlement reflects a fair and reasonable resolution of a bona fide dispute
with respect to the claims asserted by the Settlement Class.
b. The Court preliminarily finds, for purposes of settlement only, that each of
the Plaintiffs has standing to represent the Settlement Class because they
have potentially suffered damages and are members of the Settlement
Class.
c. The Court preliminarily finds, for purposes of settlement only, that, as
required by Fed. R. Civ. P. 23, the Settlement Class is ascertainable from
records kept by Defendant with respect to their employees and from other
objective criteria, and that the members of the Settlement Class are so
numerous that their joinder before the Court would be impracticable.
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d. The Court preliminarily finds, for purposes of settlement only, that, as
required by Rule 23, there are one or more questions of fact and/or law
common to the Settlement Class.
e. The Court preliminarily finds, for purposes of settlement only, that, as
required by Rule 23, the claims of the Plaintiffs are typical of the claims of
the Settlement Class;
f. The Court preliminarily finds, for purposes of settlement only, that, as
required by Rule 23, the Plaintiffs will fairly and adequately protect the
interests of the Settlement Class in that: (i) the interests of the Plaintiffs
and the nature of their alleged claims are consistent with those of the
members of the Settlement Class, (ii) there appear to be no conflicts
between or among the Plaintiffs and the Settlement Class, and (iii) the
Plaintiffs and the members of the Settlement Class are represented by
qualified, reputable counsel who are experienced in preparing and
prosecuting large, complex consumer class actions.
g. The Court preliminarily finds, for purposes of settlement only, that, as
required by Rule 23 and upon consideration of the factors enumerated in
Rule 23, maintaining the Plaintiffs’ claims as a class action is superior to
other available means of adjudication in promoting the convenient
administration of justice.
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3. Class Certification and Appointment of Class Counsel: The Court, in
conducting the settlement approval process required by Rule 23, certifies, for
purposes of settlement only, the following Settlement Class:
All current and former hourly Telehealth Nurses (“THNs”) (a homebased nurse who field patient calls) who work or have worked for
Falcon Subsidiary LLC d/b/a AxisPoint Health at any time from
February 6, 2015 (for all THNs employed in states other than
California) and from February 6, 2014 (for all THNs employed in
California), through the date on which the Court grants preliminary
approval of the Settlement (the “Class Period”).
Further, the Court appoints the named Plaintiffs as representatives for the
Settlement Class and appoints Sommers Schwartz, P.C. as Class Counsel for
the Plaintiffs and the Settlement Class. This certification of a preliminary
Settlement Class pursuant to the terms of the Settlement Agreement shall not
constitute and does not constitute, and shall not be construed or used as an
admission, concession, or declaration by or against the Defendant, that (except
for the purposes of the Settlement) this Action or any other action is appropriate
for class treatment under Rule 23.
4. Preliminary Findings Regarding Proposed Settlement: The Court
preliminarily finds that: (i) the proposed Settlement resulted from extensive arm'slength negotiations; (ii) the Settlement Agreement was executed only after Class
Counsel had conducted appropriate investigation and fact-finding regarding the
strengths and weaknesses of the Plaintiffs’ claims; (iii) Class Counsel, having
substantial experience in FLSA collective actions and wage and hour class action
cases, concluded that the proposed Settlement is fair, reasonable and adequate;
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and (iv) the proposed Settlement is sufficiently fair, reasonable and adequate to
warrant sending notice of the proposed Settlement to the Settlement Class.
Having considered the essential terms of the Settlement Agreement under the
recommended standards for preliminary approval of settlements as set forth in
relevant jurisprudence, the Court finds that those whose claims would be settled,
compromised, dismissed and/or released pursuant to the Settlement must be
given notice and an opportunity to be heard regarding final approval of the
Settlement and other relevant matters.
5. Class Notice: The Plaintiffs and Class Counsel have presented to the Court a
proposed Class Notice, attached as Exhibit A to the Settlement Agreement (Doc.
# 26-1 at 27–34). The Court finds that such forms satisfy the requirements of
Rule 23 as it fairly and adequately: (a) describes the terms and effect of the
Settlement Agreement, the Settlement and the Plan of Allocation; (b) notifies the
Settlement Class: that the California Claims Payments (totaling $12,000) will be
paid out of the Total Settlement Amount; that Class Counsel will seek attorneys’
fees from the Global Settlement Fund up to one-third of the $595,000 Total
Settlement Amount; that reimbursement of litigation expenses from the Total
Settlement Amount will be sought up to $15,000; that payment of Settlement
Administration expenses from the Total Settlement Amount in an amount not to
exceed $23,000; and that Named Plaintiff incentive awards will be sought from
the Total Settlement Amount in an amount not to exceed a cumulative amount of
$15,000 for the Named Plaintiffs for their service in such capacities; (c) gives
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notice to the Settlement Class of the time and place of the Fairness Hearing; and
(d) describes how the recipients of the Class Notice may object to any of the
relief requested or request to exclude themselves from the settlement. The
Plaintiffs and Class Counsel have proposed first class mail to communicate the
notice to members of the Settlement Class, and the Court finds that such
proposed manner is the best notice practicable under the circumstances, which
is summarized as follows:
(a) By no later than the date set forth in the schedule above the
Settlement Administrator shall cause the proposed Class Notice,
attached as Exhibit “`1-A” to the parties Motion for Preliminary
Approval, with such non-substantive modifications thereto as may
be agreed upon by the Parties, to be sent by United States mail
and electronic mail to the last known e-mail address of each
member of the Settlement Class for whom the Settlement
Administrator has a valid e-mail address.
6. Attorneys’ Fees and Costs and Named Plaintiff Incentive Awards: The
Court has reviewed Class Counsel’s Joint Motion (Doc. # 26) and supporting
affidavit (Doc. # 26-3) and preliminarily approves their request for an award of
fees in the amount of $198,333.33, litigation expenses in an amount not to
exceed $15,000, and settlement administration expenses not to exceed $23,000,
as fair and reasonable. Further, upon consideration of the relevant authorities,
the Court preliminarily approves the proposed Named Plaintiff incentive awards
in an aggregate amount of $15,000 as fair and reasonable. Both of these
preliminary rulings are subject to final review and approval upon the Court’s
review of Class Counsel’s Motion for Final Approval and Motion for Attorneys’
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Fees and consideration of any timely objection from a member of the Settlement
Class.
7. Objections to Settlement: Any member of the Settlement Class who wishes to
object to the fairness, reasonableness or adequacy of the Settlement, or to any
term of the Settlement Agreement may file an objection. An objector must file
with the Court Clerk a statement of his, her, or its objection(s), specifying the
reason(s), if any, for each such objection, including any legal support and/or
evidence that such objector wishes to bring to the attention of the Court or
introduce in support of such objection, as well as information sufficient to show
that the objector is a member of the Settlement Class. The objector must also
mail copies of the objection and all supporting law and/or evidence to Class
Counsel and to counsel for the Defendants. The addresses for filing objections
with the Court and service on counsel are as follows:
Upon Class Counsel at:
SOMMERS SCHWARTZ, P.C.
Kevin J. Stoops
One Towne Square, Suite 1700 Southfield, MI 48076 Telephone:
(248)355-0300
kstoops@sommerspc.com
Upon Defense Counsel at:
MCDERMOTT WILL & EMERY LLP
Chris C. Scheithauer
4 Park Plaza, Suite 1700
Irvine, California 92614
(949) 757-7163
cscheithaeur@mwe.com
Upon Settlement Administrator at:
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SIMPLURIS INC.
P.O. Box 26170
Santa Ana, California 92799
Fax: (714) 223-5067
Any objector or his, her, or its counsel (if any) must effect service of copies of the
objection on counsel listed above and file it with the Court by no later than the
date set forth in the schedule above. If an objector hires an attorney to represent
him, her, or it for the purposes of making such objection pursuant to this
paragraph, the attorney must both effect service of a notice of appearance on
counsel listed above and file it with the Court by no later than the date set forth in
the schedule above. Any member of the Settlement Class or other person who
does not timely file and serve a written objection complying with the terms of this
paragraph shall be deemed to have waived, and shall be foreclosed from raising,
any objection to the Settlement (in this proceeding, on any appeal or in any other
proceedings), and any untimely objection shall be barred absent an Order from
the Court.
8. Final Approval Brief and Fee Petition: Counsel shall file their Motion for Final
Approval and Attorneys’ Fees no later than the date set forth in the schedule
below.
9. Fairness Hearing: A hearing, is scheduled for the date set forth in the schedule
below at the United States District Court for the District of Colorado, Courtroom
A602, 901 19th Street, Denver, Colorado 80294 (the “Fairness Hearing”) to
determine, among other things:
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a. Whether the Settlement merits final approval as fair, reasonable and
adequate;
b. Whether the Action should be dismissed with prejudice pursuant to the
terms of the Settlement;
c. Whether the notice method provided by the Parties: includes: (1) a
description of the settlement class; (2) a description of the proposed
settlement; (3) the names of counsel for the class; (4) a fairness hearing
date; (5) a statement of the deadlines for filing objections to the
settlement, and for filing requests of exclusion; (6) the consequences of
such exclusion; (7) the consequences of remaining in the settlement class;
(8) a statement of the attorneys’ fees, litigations expenses, incentive
awards, and estimated settlement administration expenses; and (9)
information on how to obtain further information;
d. Whether Class Counsel adequately represented the Settlement Class for
purposes of entering into the Settlement;
e. Whether the proposed Plan of Allocation should receive final approval
pursuant to Rule 23;
f. Whether the Court's preliminary finding that a Class Counsels’ one-third
fee award and litigation expense reimbursement award, and settlement
administration expenses reimbursement, is reasonable in this case should
receive final approval; and
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g. Whether the Court's preliminary finding that the proposed Named Plaintiff
incentive awards are reasonable should receive final approval.
10. Appearance at Fairness Hearing: If any objector files and serves a timely and
valid written objection in accordance with the requirements above and the Court
sets a hearing, they may appear at the Fairness Hearing either in person or
through qualified counsel retained at their own expense. Objectors or their
attorneys intending to appear at the Fairness Hearing must effect service of a
notice of intention to appear setting forth, among other things, the name,
address, and telephone number of the objector (and, if applicable, the name,
address, and telephone number of the objector's attorney), and information
sufficient to show that the objector is a member of the Settlement Class, on Class
Counsel and Defendant’s counsel (at the addresses set out above) and file it with
the Court Clerk by no later than the date set forth in the schedule above. Any
objector who does not timely file and serve a notice of intention to appear in
accordance with this paragraph shall not be permitted to appear at the Fairness
Hearing, except by Order of the Court.
11. Service of Papers: Defendant’s counsel and Class Counsel shall promptly
furnish each other with copies of any and all objections that come into their
possession, and shall make sure the same are electronically filed with the Court.
12. Termination of Settlement: This Order shall become null and void, ab initio,
and shall be without prejudice to the rights of the Parties, all of whom shall be
restored to their respective positions prior to the Settlement, if the Settlement is
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terminated in accordance with the terms of the Settlement Agreement or
otherwise fails to become final and binding on the Parties, inclusive of any
appeal.
13. Use of Order: This Order is not admissible as evidence for any purpose against
the Defendant or any current or former affiliate, officer, director or agent of
Defendant, in any pending or future litigation involving any of the Parties or
otherwise. This Order shall not be construed or used as an admission,
concession, or declaration by or against the Defendant or any current or former
affiliate, officer, employee or agent of Defendant of any fault, wrongdoing,
breach, or liability and the Defendant specifically denies any such fault, breach,
liability or wrongdoing. This Order shall not be construed or used as an
admission, concession, or declaration by or against the Plaintiffs or the
Settlement Class that their claims lack merit or that the relief requested in the
Action is inappropriate, improper or unavailable. This Order shall not be
construed or used as an admission, concession, declaration or waiver by any
party of any arguments, defenses, or claims he, she, or it may have, including,
but not limited to, any objections by Defendant to class certification, in the event
that the Settlement Agreement is terminated. Moreover, the Settlement
Agreement and any proceedings taken pursuant to the Settlement Agreement
are for settlement purposes only. Neither the fact of, nor any provision contained
in the Settlement Agreement or its exhibits, nor any actions taken there under
shall be construed as, offered into evidence as, received in evidence as, and/or
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deemed to be evidence of a presumption, concession, or admission of any kind
as to the truth of any fact alleged or validity of any defense that has been, could
have been, or in the future might be asserted.
14. Jurisdiction: Pursuant to the Settlement Agreement entered into by the parties,
the Court hereby retains jurisdiction for purposes of implementing the Settlement,
and reserves the power to enter additional orders to effectuate the fair and
orderly administration and consummation of the Settlement as may from time to
time be appropriate, and to resolve any and all disputes arising there under.
15. Bar Order: Pending final determination of whether the Settlement should be
approved, the Plaintiffs, the Defendant and all members of the Settlement Class
are each hereby barred and enjoined from instigating, instituting, commencing,
maintaining or prosecuting any action in any court or tribunal that asserts any
Released Claim against any Released Party, as those terms are defined in the
Settlement Agreement.
16. Continuance of Hearing: The Court reserves the right to continue the Fairness
Hearing without further written notice.
17. This Order does not resolve the last pending claim or close the case.
18. Schedule: The Court establishes the following deadlines:
Event
Entry of Preliminary Approval Order
Defendant to provide the Settlement Administrator with
Class Member addresses and Class Member data for Class
Notice to be mailed
Deadline for the Settlement Administrator to mail Class
Notice Packet (Mailing Date)
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Date
June 19, 2018
July 6, 2018
July 20, 2018
Event
Deadline for Class Members to mail Elections Not to
Participate in Settlement and Objections
Deadline for filing Final Approval Motion and Motion for
Fees and Costs
Deadline for Settlement Administrator to provide Parties
with report identifying all Participating Class Members
Deadline for Class Member Objections to Attorneys’ Fee
Motion
Deadline for Parties to file response to objections.
Final Approval Hearing
Date
September 3, 2018
September 14, 2018
September 17, 2018
September 21, 2018
September 24, 2018
September 25, 2018 at
2:00 PM
Deadline for Settlement Funding
Within 14 days of entry
of Final Approval Order
Deadline for Settlement Administrator to Issue payments to Within 7 days of
Participating Class Members, Named Plaintiff Incentive receiving
Settlement
Awards, and Class Counsel’s Fees and Litigation Expenses Funding
DATED: June 19, 2018
BY THE COURT:
_______________________________
CHRISTINE M. ARGUELLO
United States District Judge
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