Judd v. Keypoint Government Solutions Incorporated

Filing 231

ORDER That the Renewed Joint Motion for Approval of FLSA Collective Action Settlement (ECF No. 227 ) is DENIED WITHOUT PREJUDICE; and That Defendant's Motion to Compel Arbitration (ECF No. 182 ) is DENIED WITHOUT PREJUDICE with leave to refile should the settlement not be approved, by Judge Raymond P. Moore on 3/23/2021.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 18-cv-00327-RM-STV
ORSON JUDD,
individually and on behalf of all others similarly situated,
Plaintiffs,
v.
KEYPOINT GOVERNMENT SOLUTIONS, INC.,
a Delaware corporation,
Defendant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter is before the Court on the parties’ Renewed Joint Motion for Approval of
FLSA Collective Action Settlement (the “Renewed Motion”) (ECF No. 227). After considering
the Renewed Motion, and being otherwise fully advised, and for the reasons stated herein, the
Renewed Motion is denied without prejudice.
I.

BACKGROUND.
The parties are well-versed with the background which precedes this Order, so it will not

be repeated here. Instead, the Court focuses on the Renewed Motion. This is the parties’ second
request for Court approval of their proposed settlement of this FSLA action. The Court also
denied their first motion without prejudice, raising some issues of concern. (ECF No. 226.)
While the Renewed Motion appropriately addresses those concerns, the parties’ revisions or
amendments raise other mainly procedural questions. The Court addresses them below.

II.

DISCUSSION
The Release Language – Exhibit A. Exhibit A is the “Release Form” which will appear

on the back of the settlement payment check. The parties proposed the following to be inserted:
I previously consented to having my wage claims prosecuted in this litigation and
I now understand that by signing, dating, and endorsing this check, I am bound by
bound by the Release contained in Paragraph 70-71 of the Settlement Agreement
and Release of Claims.
(ECF No. 227-2, p. 21 (red added).) The highlighted language should be corrected.
The Revised Notice – Exhibit B. The parties’ revised Notice addresses the concerns the
Court raised in its earlier order. The Notice advises Plaintiffs of the Court’s preliminary
approval, their right to object, and of a “fairness” hearing before final approval. However, the
Court notes two minor issues: (1) the reference to Section IX in Section III – there is no Section
IX in the Notice – should be to Section VIII; and (2) the reference in Section VIII that the parties
may examine the record in this case at the Arraj Courthouse. As to the latter, due to the COVID19 pandemic, Plaintiffs (and the public in general) currently may not examine documents at the
Courthouse. Thus, this should be revised so that Plaintiffs are to contact Plaintiffs’ counsel if
they want any further information or documentation.
The Settlement Agreement and Release of Claims.1 The Court understands the proposed
Agreement to provide the following. Generally, after the Court holds a fairness hearing and
enters any final approval, and all appeals resolved or appeal rights have expired, the “Final
Effective Date” 2 is reached. The following then occurs:

1

The Court notes that are other minor issues with the Agreement. For example, paragraph 80 refers to paragraph 85
when it appears it should refer to paragraph 81, and there are no paragraphs numbered 92-97 or 99. Those issues are
not material obstacles to the preliminary approval of the proposed Agreement.
2
As defined in the Agreement.

2

Date

Event

Source/Reference

Five calendar days after Final
Effective Date

Defendant will pay $1.5
Million to the Third-Party
Administrator (“TPA”) for
distribution.

Agreement, ¶ 37.

TPA will pay the counsel fees
and costs which the Court has
approved.

Agreement, ¶ 56.

TPA will pay the service
payments approved by the
Court.

Agreement, ¶ 67.

Ten calendar days after Final
Effective Date

TPA will mail and email the
Notice to Plaintiffs.

Agreement, ¶ 42.

30 days after initial mailing of
Notice

TPA to mail settlement
payment (presumably only to
those with proper W-9s).

Agreement, ¶ 50.

180 days after date payments
mailed are postmarked

Deadline for Plaintiffs to
negotiate checks.
Failure to do so results in
unclaimed funds being
distributed cy pres.

Agreement, ¶ 51.

Five calendar days + 12
months3

TPA to maintain sufficient
funds to satisfy all claims.
If any Plaintiff fails to return a
properly executed W-9 within
that time period, he/she will
have no right to payment.

Agreement, ¶ 47.

Thus, under the Agreement, the proposed Notice will be sent after the Final Effective
Date even though that Notice advises of the preliminary approval and the right to object. It
appears, however, that the Notice should be sent prior to the hearing and that a separate “notice”
may be sent after the hearing and any final approval, perhaps with the settlement checks. The
3

The Agreement does not specifically provide when the 12 months start to run but it follows it can only begin to run
after the TPA receives the settlement funds from Defendant.

3

Court leaves these logistical issues for the parties to work out. At bottom, the Notice cannot be
sent after the Final Effective Date – it must be sent after preliminary approval and before any
final approval.
III.

CONCLUSION
As stated, the parties have addressed the Court’s prior concerns. Further, on an initial

review of the Renewed Motion, the Court anticipates it may preliminarily approve the parties’
proposed settlement should a request for approval be renewed. Any renewal, however, should
address the mainly procedural matters raised above.
Based on the foregoing, the Court ORDERS as follows:
(1) That the Renewed Joint Motion for Approval of FLSA Collective Action Settlement
(ECF No. 227) is DENIED WITHOUT PREJUDICE; and
(2) That Defendant’s Motion to Compel Arbitration (ECF No. 182) is DENIED
WITHOUT PREJUDICE with leave to refile should the settlement not be approved.
DATED this 23rd day of March, 2021.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

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