Judd v. Keypoint Government Solutions Incorporated

Filing 234

ORDER Granting 233 Renewed Joint Request for Approval of FLSA Collective Action Settlement. A fairness hearing shall be held on Monday, August 16, 2021, at 9:00 a.m. at the Alfred A. Arraj Courthouse, 901 19th Street, Courtroom A601, Sixth Floor, Denver, Colorado 80294; and, on or before August 2, 2021, the parties shall file a status report notifying the Court of the name and number of any objectors to the proposed settlement. By Judge Raymond P. Moore on April 27, 2021. (Attachments: # 1 CMA Instructions)(rvill, )

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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 Request for Approval of
FLSA Collective Action Settlement (the “Renewed Request”) (ECF No. 233). This is the parties’
third motion seeking preliminary approval of their proposed settlement of this action. The
parties’ two prior motions (ECF Nos. 222 & 227) were denied without prejudice by the Court.
(ECF Nos. 226, 231.) After consideration of the Renewed Request, the prior motions, the prior
orders, and being otherwise fully advised, the Court finds and orders as follows.
I.

THE RENEWED MOTION

The Court previously set forth the nature of this action and the standards for preliminary
approval, which it incorporates by reference, so they will not be fully repeated here. (See ECF
No. 226.) In summary, the parties have now addressed the Court’s concerns raised in its previous
orders. Among other things, the parties have submitted a proposed revised settlement, by
amending the original Settlement Agreement and Release of Claims found at ECF No. 227-2 and

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revising the contents and timing of their proposed Notice to be given (revised agreement,
hereafter, “Settlement Agreement”). And, after consideration of the documents, the Court finds
preliminary approval may be given.
A. Final Certification
After considering the “(1) disparate factual and employment settings of the individual
plaintiffs; (2) the various defenses available to defendant which appear to be individual to each
plaintiff; [and] (3) fairness and procedural considerations,” Thiessen v. Gen. Electric Capital
Corp., 267 F.3d 1095, 1103 (10th Cir. 2001) (quotation marks and citation omitted), the Court
finds final certification is appropriate. Here, the Court finds no disparate factual or employment
settings of Opt-in Plaintiffs which would preclude final certification. In addition, Defendant’s
defenses to the Opt-in Plaintiffs’ claims for independent contractor misclassification and unpaid
overtime are unified. And, finally, fairness and procedural considerations warrant phase 2
certification of the settlement collective members (the “Collective Members”).
B. Bona Fide Dispute, Fair and Equitable, and Reasonable Attorney’s Fees
The parties litigated this case for more than three years before reaching the proposed
collective action settlement currently before the Court. During the litigation, the Court became
familiar with the claims, defenses, competing facts and legal theories presented by the parties, as
well as the work of counsel in presenting them. The history of this case shows that the parties
conducted significant discovery, motion practice, and investigation to support and vet their
positions. And, after mediation and continued negotiations, the parties reached the proposed
settlement.
Under the terms of the Settlement Agreement, Defendant will pay a non-reversionary
settlement amount of $900,000 to the Collective Members, plus an additional $600,000 for

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attorneys’ fees and costs, subject to the Court’s approval. (Settlement Agreement at ¶ 19.)
Additionally, Defendant will separately pay the costs of settlement administration. (Id.) The
motions for preliminary approval, in combination, weigh many factors including the benefits of
settlement; the strength of the case; the risk, expense, complexity, and likely duration of further
litigation; the risks presented by trial, appeals, and maintaining collective action status; and the
extent of discovery completed. As stated, the subsequent motions for preliminary approval
respond to the concerns raised by the Court regarding certain modifications and clarifications
needed before approval may be granted. After consideration of all relevant factors, the Court
concludes that the settlement is a fair and reasonable resolution of a bona fide dispute over FLSA
provisions, contains a reasonable award of attorneys’ fees ($508,398.84 in fees plus $91,601.16
in costs), and supports the purposes of the FLSA. See Cooper v. OFS 2 Deal 2, LLC, No. 15-cv01291-RM-NYW, 2016 WL 1071002, at *2 (D. Colo. Mar. 17, 2016); Lynn’s Food Stores, Inc.
v. United States, 679 F.2d 1350, 1354 (11th Cir. 1982); Baker v. Vail Resorts Mgmt. Co., No.
13–CV–01649, 2014 WL 700096, at *1 (D. Colo. Feb. 24, 2014).
In addition, the Court finds a service award of $7,500 each for Orson Judd and Kristin
Hettler is reasonable in light of their substantial assistance in this case which benefited the
Collective Members. Shahlai v. Comcast Cable Commc’ns Mgmt., LLC, No. 16-CV-2556-WJMNRN, 2020 WL 3577395, at *3 (D. Colo. July 1, 2020) (factors for consideration in incentive
award include “(1) the actions the class representative took to protect the interests of the class;
(2) the degree to which the class has benefitted from those actions; and (3) the amount of time
and effort the class representative expended in pursuing the litigation.”).

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C. Appointment of Settlement Administrator
The Court finds JND Legal Administration may be appointed as Settlement
Administrator. As stated, Defendant shall separately pay the costs of settlement administration.
D. Notice and Opportunity to Object
The Court finds that the proposed plan of providing notice to the Collective Members is
reasonable and appropriate. Collective Members will receive a notice that informs them of the
nature of the action; the essential terms of the Settlement Agreement; the service awards that
would be taken out of the settlement amount before distribution to the Collective Members; the
amount each Plaintiff will receive under the Settlement Agreement and the allocation formula;
how to obtain additional information regarding the case and settlement; and the amount of
attorneys’ fees and costs preliminarily approved, which are being separately paid by Defendant.
The Notice will be sent by U.S. Mail and email to the extent email addresses are available. In
addition, the Notice invites Collective Members to update their home addresses in advance of the
mailing of the settlement payments and submit an updated W-9 form if needed. Additionally,
pursuant to this Court’s January 8, 2021 Order (ECF No. 226), the Notice includes a provision
that the Opt-in Plaintiffs will have an opportunity to object to the settlement as part of the notice
process before a final decision is made on final settlement approval. Furthermore, prior to
mailing the notices, the Settlement Administrator will perform additional address searches to
confirm the accuracy of the addresses of Plaintiffs through the United States Post Office’s
National Change of Address database. The Court finds that the proposed notice is the best means
of providing notice to the Collective Members under the circumstances.

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E. Fairness Hearing
The Court will hold a fairness hearing to determine whether to grant final approval of the
settlement. The hearing is set for Monday, August 16, 2021, at 9:00 a.m. Due to the COVID-19
pandemic, the Court has set forth below how the parties, Collective Members, and the public
may attend the hearing.
At the hearing, the Court will determine whether to dismiss with prejudice all claims
encompassed by the Settlement Agreement, in accordance with the release of claims provided
under the Settlement Agreement, and retain jurisdiction with respect to all matters arising from
or related to the implementation of the Settlement Agreement or this Order, including the
interpretation and enforcement of the terms of the settlement, settlement administration matters,
and such post-judgment matters as may be appropriate under applicable rules or as set forth in
the Settlement Agreement. If and when there is final approval, the Court will separately enter a
Judgment and Dismissal of this Action, subject to the Court’s continuing jurisdiction and
consistent with the terms of this Order.
II.

CONCLUSION

Based on the foregoing, it is ORDERED
(1) That the Renewed Joint Request for Approval of FLSA Collective Action Settlement
(ECF No. 233) is GRANTED;
(2) That the Settlement Agreement and Release of Claims, as modified, is preliminarily
approved;
(3) That the parties shall comply with and implement the Settlement Agreement in
accordance with its terms;

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(4) That a fairness hearing shall be held on Monday, August 16, 2021, at 9:00 a.m. at
the Alfred A. Arraj Courthouse, 901 19th Street, Courtroom A601, Sixth Floor,
Denver, Colorado 80294;
(5) That counsel shall appear in-person at the hearing;
(6) That any Collective Member objecting to the proposed settlement shall appear inperson1 at the hearing;
(7) That all other Collective Members and the public may listen to the hearing by calling
Toll Free: 888-636-3807, with Access Code: 4296144#;
(8) That Mr. Judd and Ms. Hettler may, if they wish, attend in-person, by video
teleconference (“VTC”)2, or by calling the public line; and
(9) That, on or before August 2, 2021, the parties shall file a status report notifying the
Court of the name and number of any objectors to the proposed settlement.
DATED this 27th day of April, 2021.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

1
The parties are advised that, depending on the number of objectors and the status of the COVID-19 pandemic, the
Court may require objectors to appear via video conference rather than in-person for the hearing. The Court will
provide notice of any change as soon as practicable.
2
Instructions for VTC attached. Any person who is authorized to appear by VTC, and wishes to do so, is strongly
encouraged to contact the Court’s courtroom deputy, Cathy Pearson ([e-mail]), to test the
VTC system prior to the date of the hearing.

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