Miles v. BKP Inc. et al

Filing 163

ORDER by Chief Judge Philip A. Brimmer on 09/15/2022, re: 133 Plaintiff's Motion for Class Certification Under Rule 23(b)(3) and Appointment of Class Counsel Under Rule 23(g) is GRANTED. ORDERED that the classes as certifie d meet the requirements of Fed. R. Civ. P. 23(b)(3). Towards Justice and Killmer, Lane & Newman LLP are appointed class counsel. Plaintiffs Lisa Miles a/k/a Elisa Marie Miles is appointed class representative. ORDERED that within 21 days o f the entry of this order, the parties shall confer and submit to the Court a notice to be served upon class members pursuant to Fed. R. Civ. P. 23(c)(2)(B). If the parties are unable to agree on the text of this notice, they shall submit plaintiff's proposed text along with a detailed list of defendants' objections.(sapod, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 18-cv-01212-PAB-MEH
LISA MILES a/k/a Elisa Marie Miles, and those similarly situated,
Plaintiff/Counter Defendant,
v.
BKP INC.,
ELLA BLISS BEAUTY BAR LLC,
ELLA BLISS BEAUTY BAR – 2, LLC,
ELLA BLISS BEAUTY BAR – 3, LLC,
BROOKE VANHAVERMAAT,
KELLY HUELSING, and
PETER KOCLANES,
Defendants/Counter Claimants.
ORDER
This matter is before the Court on plaintiff’s Motion for Class Certification Under
Rule 23(b)(3) and Appointment of Class Counsel Under Rule 23(g) [Docket No. 133].
Defendants responded to the motion, Docket No. 139, and plaintiff replied. Docket No.
146.
I. BACKGROUND
The Court assumes familiarity with the background facts and procedural history
of this dispute, which are set forth in previous orders and recommendations, see, e.g.,
Docket Nos. 103, 110, 113, and will not be repeated here except as necessary to
resolve plaintiff’s motion.
Between March 2016 and September 2017, plaintiff worked as a “service

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technician” and “lead service technician” at defendants’ salons, which provide
manicures, pedicures, massages, blowouts, facials, waxing, lashes, and makeup.
Docket No. 133 at 2 (citing Docket No. 133-2 at 9–10). All service technicians were
subject to the same general pay policies. Id. (citing Docket No. 133-2 at 13). Plaintiff
brings nine claims for relief: (1) unpaid overtime under the Fair Labor Standards Act
(“FLSA”); (2) unpaid overtime under Colorado law; (3) unpaid straight time 1 under
Colorado law; (4) unpaid commissions under the Colorado law; (5) civil theft for
withholding tips to compel labor under Colorado law; (6) FLSA retaliation; (7) Colorado
Wage Claim Act retaliation; (8) negligence per se; (9) abuse of process. Docket No.
114 at 27–40, ¶¶ 153–234.
Plaintiff claims that defendants’ employees were underpaid because of
defendants’ policies, which include requiring employees to perform cleaning and other
chores for less than minimum wage or no pay, withholding tips until the cleaning and
other chores were completed, and promising to pay employees 5% commissions on the
value of services, but instead paying only an additional 5% of the employee’s hourly
wage. Docket No. 133 at 1. Plaintiff seeks class certification for three of her claims: (1)
the unpaid straight time/downtime claim; (2) the unpaid commission claim; and (3) the
civil theft claim for withholding tips. See generally id. As discussed below, for her first
claim, plaintiff seeks to certify two classes, one under the Colorado Minimum Wage Act
for service technicians who worked at any of defendants’ locations for six years before
The parties use the terms “straight time” and “downtime” synonymously. See,
e.g., Docket No. 133 at 10 (referring to plaintiff’s “unpaid straight time claims”); id. at 11
(arguing plaintiff was subject to “allegedly illegal downtime”); Docket No. 139 at 5
(referring to plaintiff’s “unpaid straight time (downtime) claim”); Docket No. 146 at 4–5
(separating “Unpaid Straight Time Class” into “Minimum Wage Act Downtime Class”
and “Wage Claim Act Downtime Class”).
1

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plaintiff filed this lawsuit until the present, and one under the Colorado Wage Claim Act
for service technicians who worked at any of defendants’ locations for three years
before the filing of this lawsuit until the present. Docket No. 146 at 4–5. For her second
and third claims, plaintiff seeks to certify one class of all current and former service
technicians who worked at defendants’ locations from three years before filing of this
lawsuit until the Court enters final judgment. Docket No. 133 at 9. Finally, plaintiff asks
the Court to appoint her class representative and her counsel, Towards Justice and
Kilmer, Lane & Newman, as class counsel. Id. at 14–15.
II. LEGAL STANDARD
A district court may certify a class action if the proposed class satisfies the
prerequisites of Federal Rule of Civil Procedure 23(a) as well as the requirements of
one of the three types of classes in Rule 23(b). “The party seeking class certification
bears the burden of proving Rule 23’s requirements are satisfied.” DG ex rel. Stricklin v.
Devaughn, 594 F.3d 1188, 1194 (10th Cir. 2010) (citing Shook v. El Paso Cnty., 386
F.3d 963, 968 (10th Cir. 2004)). In deciding whether the proposed class meets these
requirements, the district court “must accept the substantive allegations of the complaint
as true,” but it “need not blindly rely on conclusory allegations of the complaint which
parrot Rule 23 and may consider the legal and factual issues presented by plaintiff's
complaints.” Id. (quotations omitted). “[S]ometimes it may be necessary for the court to
probe behind the pleadings before coming to rest on the certification question” because
the “class determination generally involves considerations that are enmeshed in the
factual and legal issues comprising the plaintiff's cause of action.” Wal-Mart Stores, Inc.
v. Dukes, 564 U.S. 338, 350–51 (2011) (quotations omitted).

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III. ANALYSIS
A. Ascertainability
The Court will first consider whether plaintiff has proposed an ascertainable
class. “Although not specifically mentioned in the rule, an essential prerequisite to an
action under Rule 23 is that there must be a class.” Edwards v. Zenimax Media Inc.,
No. 12-cv-00411-WYD-KLM, 2012 WL 4378219, at *4 (D. Colo. Sept. 25, 2012)
(quotations omitted); see also Carrera v. Bayer Corp., 727 F.3d 300, 306 (3d Cir. 2013)
(noting that “[c]lass ascertainability is an essential prerequisite of a class action, at least
with respect to actions under Rule 23(b)(3)” (quotations omitted)). “An identifiable class
exists if its members can be ascertained by reference to objective criteria.” Donaca v.
Dish Network, LLC, 303 F.R.D. 390, 397 (D. Colo. 2014).
In her motion, plaintiff proposes the following two classes:
1.

THE UNPAID STRAIGHT TIME CLASS: All current and former
service technicians who worked for the entity defendants (BKP Inc.,
Ella Bliss Beauty Bar LLC, Ella Bliss Beauty Bar – 2, LLC, and Ella
Bliss Beauty Bar – 3, LLC) at any of Ella Bliss Beauty Bar’s three
locations from six years prior to the filing of this case through final
judgment.

2.

THE COMMISSION AND TIP THEFT CLASS: All current and
former service technicians who worked for the entity defendants
(BKP Inc., Ella Bliss Beauty Bar LLC, Ella Bliss Beauty Bar – 2,
LLC, and Ella Bliss Beauty Bar – 3, LLC) at any of Ella Bliss Beauty
Bar’s three locations from three years prior to the filing of this case
through final judgment.

Docket No. 133 at 9. Plaintiff asserts that there is no difference between the two
classes other than the time period covered because the statute of limitations for
plaintiff’s downtime claim is six years, while the statute of limitations for the commission
and tip theft claims is two years or, if the conduct is willful, three years. Id. at n.4.

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1. Downtime Class
Defendants argue that the proposed downtime class “must be limited . . . to the
potential recovery of minimum wage under the Colorado Minimum Wage Act,” even
though plaintiff has pled her downtime claim under both the Colorado Wage Claim Act
(“WCA”) and the Colorado Minimum Wage Act (“MWA”). 2 Docket No. 139 at 6.
Defendants insist that “a single class cannot be certified as to a claim arising under two
different statutes with different statutes of limitations and different remedies.” Id. at 7.
Defendants characterize plaintiff as trying to “use the statute of limitations applicable to
one statute to expand the group of service technicians who could recover different
remedies under a different statute” and, therefore, defendants insist, if this class is
certified, it may only be under the MWA limitations period. Id. Defendants do not
further explain why plaintiff must be restricted to the shorter limitations period, given that
plaintiff pled her downtime claim under both the MWA and the WCA. Nor do defendants
raise any ascertainability arguments.
Plaintiff insists that a single class can be certified for downtime claims under both
the WCA and the MWA for unpaid minimum wage, even though the two statutes have
different limitations periods, because unpaid minimum wage can be recovered under
both the WCA and the MWA and because liability will be determined based on the same
issue of law. Docket No. 146 at 2–3. In her reply, plaintiff proposes separating the
downtime class into two separate classes as follows:
1.

THE MINIMUM WAGE ACT DOWNTIME CLASS: All current and
former service technicians who worked for the entity defendants
(BKP Inc., Ella Bliss Beauty Bar LLC, Ella Bliss Beauty Bar – 2,

The MWA is implemented in the Colorado Minimum Wage Order, 7 Colo. Code
Regs. §§ 1103-1:1, et seq.
2

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LLC, and Ella Bliss Beauty Bar – 3, LLC) at any of Ella Bliss Beauty
Bar’s three locations from six years prior to the filing of this case
until the present.
2.

THE WAGE CLAIM ACT DOWNTIME CLASS: All current and
former service technicians who worked for the entity defendants
(BKP Inc., Ella Bliss Beauty Bar LLC, Ella Bliss Beauty Bar – 2,
LLC, and Ella Bliss Beauty Bar – 3, LLC) at any of Ella Bliss Beauty
Bar’s three locations from three years prior to the filing of this case
until the present.

Id. at 4–5. The Court finds that these proposed classes are sufficiently defined since it
is “administratively feasible for the court to determine whether a particular individual is a
member.” See Wornicki v. Brokerpriceopinion.com, Inc., No. 13-cv-03258-PAB-KMT,
2016 WL 11697044, at *7 (D. Colo. Sept. 20, 2016) (quoting Davoll v. Webb, 160 F.R.D.
142, 144 (D. Colo. 1995)). The two classes are ascertained by reference to objective
criteria, namely, a date and employment at an Ella Bliss location as a service
technician. Neither of these metrics is subjective, and the Court can “determine who is
in the putative class.” See Lary v. Biodesix, Inc., No. 19-cv-03006-PAB-NRN, 2020 WL
5513408, at *2 (D. Colo. Sept. 14, 2020). To the extent there is overlap between
members of the classes and their damages claims, plaintiff is correct that individualized
or different damages calculations do not defeat certification. See Wallace B. Roderick
Revocable Living Tr. v. XTO Energy, Inc., 725 F.3d 1213, 1220 (10th Cir. 2013) (“[T]he
fact that damages may have to be ascertained on an individual basis is not, standing
alone, sufficient to defeat class certification.”)); see also Naylor Farms, Inc. v. Chaparral
Energy, LLC, 923 F.3d 779, 798 (10th Cir. 2019) (“[M]aterial differences in damages
determinations will only destroy predominance if those ‘individualized issues will
overwhelm . . . questions common to the class.” (internal quotation omitted)).

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2. Commission and Tip Theft Class
The commission and tip theft class is also ascertainable. As with the downtime
class, it is “administratively feasible for the court to determine whether a particular
individual is a member” of the class. See Wornicki, 2016 WL 11697044, at *7 (quoting
Davoll, 160 F.R.D. at 144). The commission and tip theft class is ascertained by
reference to objective criteria, namely, a date and employment at an Ella Bliss location
as a service technician. Neither of these metrics is subjective, and the Court can
“determine who is in the putative class.” See Lary, 2020 WL 5513408, at *2.
B. Rule 23(a) Requirements
A plaintiff must demonstrate that: (1) the class is so numerous that joinder of all
members is impracticable; (2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or
defenses of the class; and (4) the representative parties will fairly and adequately
protect the interests of the class. Fed. R. Civ. P. 23(a); In re Literary Works in Elec.
Databases Copyright Litig., 654 F.3d 242, 249 (2d Cir. 2011); Wornicki, 2016 WL
11697044, at *3.
1. Downtime Classes
Defendants do not challenge numerosity, commonality, typicality, or adequacy
under Rule 23(a). Docket No. 139 at 7 (“If properly tailored . . . , [d]efendants do not
challenge numerosity, commonality, typicality or [p]laintiff’s adequacy under Rule 23(a)
. . . as to the legal question related to downtime.”). The Court agrees that plaintiff has
adequately shown the Rule 23(a) requirements for the downtime classes.

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2. Commission and Tip Theft Class
For the commission claim, defendants’ main concern is with commonality. For
the tip theft claim, defendants argue that certification is inappropriate because plaintiff
has presented no evidence that tips were actually withheld. The Court first considers
defendants’ arguments regarding the commission claim and then the arguments
regarding the tip theft claim.
Defendants argue that individual issues and questions prevent certification of a
class regarding the commission claim. Docket No. 139 at 8–11. More specifically,
defendants contend that “[p]laintiff failed to identify a legal or factual question applicable
to the proposed commission class and thus certification of the class is improper.” Id. at
11. This is an argument about “commonality” under Rule 23(a)(2). Rule 23(a)(2)
requires “only a single question of law or fact common to the entire class”; however,
“[m]ere allegations of systemic violations of the law . . . will not automatically satisfy
Rule 23(a)’s commonality requirement; a discrete legal or factual question common to
the class must exist.” Devaughn, 594 F.3d at 1195 (citing J.B. ex rel. Hart v. Valdez,
186 F.3d 1280, 1288 (10th Cir. 1999)).
Plaintiff argues that there are common issues of fact and law for both the
commission and the tip theft claims. Docket No. 133 at 6–9. As to the underpaid
commission claim, plaintiff alleges that defendants have a policy of promising
technicians 5% commissions on services, id. at 6, which plaintiff argues means 5% on
the service price for each service that the technician performed. Docket No. 114 at 12,
¶ 43. However, plaintiff alleges that, in practice, defendants increase technicians’
hourly pay amount by 5% for the time that the technician spends performing a service,

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or 105% of the technician’s hourly wage for that time, which results in less pay. Id. at 6
(citing Docket No. 114 at 11–12, ¶¶ 72–77).
Plaintiff acknowledges that defendants used standard form contracts with
technicians and that the 5% commission language somewhat differs in each form. Id.
There were four variations: 256 technicians signed contracts that promised “5%
commission on service hours, plus tips”; 49 technicians’ contracts promised “5%
commission on services, plus tips”; 70 technicians’ contracts promised “5% commission,
plus tips”; and 3 technicians’ contracts promised “5% commission on the service rate,
plus tips.” Id. Regardless of these variations, plaintiff contends, “the plain meaning of
contracts including a 5% commission entitles service technicians to 5% of revenue
generated from services, regardless of the exact language used in the provision.” Id.
Defendants concede that “[a]ll service technicians in the proposed class,
including [p]laintiff, were paid 5 percent commissions calculated on their hourly service
rates.” Docket No. 139 at 8. However, defendants insist that individualized issues
prevent certification because the proposed class members’ contracts contain different
commission language. Id. Defendants also argue that the contracts are ambiguous
and that, because the meaning of an ambiguous contract provision is determined
through extrinsic evidence of the intent of the parties, which will vary by technician, the
ambiguity prevents a finding of commonality. Id. at 9–11.
Defendants’ commonality argument is unpersuasive. Defendants concede that,
regardless of the precise language in each technicians’ contract, “commissions were
always paid to service technicians as 5 percent on their respective service rates, and all
of the offer letters ultimately reflect this intent as to calculation: 5% commission paid on

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service rate.” Id. at 8–9. Given that all technicians ultimately faced the same practice,
the fact that their contracts may have had slightly different wording does not prevent a
finding of commonality. As a result of this uniform practice, notwithstanding defendants’
use of slightly different contracts, there is at least one common question of law for the
unpaid commission claim – namely, whether paying service technicians 105% of their
hourly service rate, rather than 5% of the amount that a customer paid for the service,
violates the Colorado Wage Claim Act. See Docket No. 133 at 7 (quoting Docket No.
133-13).
The Court has previously found commonality where a case involved a breach of
a standard contract or “virtually identical” contract. See Wornicki, 2016 WL 11697044,
at * 5 (“Multiple courts have found commonality satisfied where a case involves breach
of a standard contract.” (citing Demitropoulos v. Bank One Milwaukee, Nat’l Assoc., 915
F. Supp. 1399, 1417 n.19 (N.D. Ill. 1996) (“The fact that this case involves a standard
form lease also leads this Court to conclude that Rule 23(a)(2)’s commonality
requirement is met”); In re Chase Bank USA, Nat’l Assoc. Check Loan Contract Litig.,
274 F.R.D. 286, 291 (N.D. Cal. 2011) (finding commonality satisfied where, although
class members received “various form letters” by which the relevant offers were made,
“each offer sets forth the same basic terms”); Steinberg v. Nationwide Mut. Ins. Co., 224
F.R.D. 67, 74 (E.D.N.Y. 2004) (commonality satisfied where “all putative class members
have signed substantively identical or similar form agreements with [defendant]”)).
Defendants’ argument that the commission language is ambiguous is also not
persuasive because there is no dispute that all service technicians were treated the
same, regardless of which variation of the form contract they signed. Thus, the Court

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considers a potential class of all service technicians within the relevant time period, not
a separate subclass of the three technicians whose contracts promised “5%
commission on the service rate, plus tips.” Docket No. 133 at 6. This is either 294
people, see id. at 10 (noting that defendants confirmed in discovery that they employed
294 service technicians between May 2015 and April 2021), or 378 people. See id. at 6
(noting that 378 service technicians signed contracts with some variation of the
commission language). Either is sufficient. See Wornicki, 2016 WL 11697044, at *4
(citing Belote v. Rivet Software, Inc., No. 12-cv-02792-WYD-MJW, 2013 WL 2317243 at
*2 (D. Colo. May 28, 2013) (numerosity met where “there are approximately 125 class
members” and “the cost of litigation ... is high compared to recovery”).
Defendants argue that certification of a tip class is improper because there is no
evidence that the challenged tip policy existed, Docket No. 139 at 11–13, and that
plaintiff “failed to present evidence that any service technician was ever actually denied
his or her tips for any reason.” Id. This argument is raised as a commonality concern.
Id. at 11 (“Plaintiff failed to establish commonality for the proposed tip theft class
because she offered no evidence that the challenged tip policy even existed.”); see also
Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 626 n.20 (1997) (noting that the
“adequacy-of-representation requirement tends to merge with the commonality and
typicality criteria of Rule 23(a), which serve as guideposts for determining whether
maintenance of a class action is economical and whether the named plaintiff’s claim
and the class claims are so interrelated that the interests of the class members will be
fairly protected in their absence”).
Plaintiff argues that defendants mischaracterize plaintiff’s claim, which is that

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defendants committed civil theft through the practice of retaining customers’ tips in a
lockbox, which only a manager had a key to, until after the service technicians
completed their end-of-shift “downtime” cleaning services, after which managers would
“release” tips. Docket No. 133 at 8. Plaintiff contends that defendants’ retention of tips
until the end of a shift – and the end of cleaning services – constitutes civil theft even
though defendants did not permanently withhold tips. See Docket No. 114 at 32,
¶¶ 188–89 (“By withholding tips until and unless [p]laintiff and those similarly situated
performed uncompensated labor, [d]efendants knowingly retained and/or exercised
control over a thing of value without authorization and/or by threat. . . . Defendants
demanded that [p]laintiff and those similarly situated perform uncompensated labor, to
which [d]efendants were not legally entitled, as a condition of restoring their tips to
[p]laintiff and those similarly situated.”).
Defendants are correct that “Rule 23 is more than a pleading standard,” XTO
Energy, 725 F.3d at 1217–18, because “actual, not presumed, conformance with Rule
23(a) remains . . . indispensable,” id. (quoting Gen. Tel. Co. of the Sw. v. Falcon, 457
U.S. 147, 160 (1982)); however, a court’s “primary function is to ensure that the
requirements of Rule 23 are satisfied, not to make a determination on the merits of the
putative class’s claims” and not to “pass[] judgment on whether plaintiffs will prevail on
the merits.” Lindsay v. Cutters Wireline Serv., Inc., No. 17-cv-01445-PAB-SKC, 2021
WL 1172650, at *1 (D. Colo. Mar. 29, 2021) (quoting CGC Holding Co., LLC v. Broad &
Cassel, 773 F.3d 1076, 1087–88 (10th Cir. 2014)).
Defendants first argue that plaintiff has provided no evidence that the challenged
tip policy existed. Defendants point to defendant Brooke Vanhavermaat’s testimony

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that she was unaware of any manager refusing to give a cash tip to a technician.
Docket No. 139 at 12 (citing Docket No. 133-2 at 31–32). Vanhavermaat also testified
that tips are usually released at the end of a shift after the technician “checks out,”
which involves a manager signing off on the completion of “team duties,” but she stated
that a technician could get his or her tips early, for instance, if the technician had to
leave the salon early. Docket No. 133-2 at 31–32.
Vanhavermaat’s statement that a technician could get his or her tips early
appears to describe an exception to defendants’ policy that defendants retained
technicians’ cash tips until the end of the technician’s shift. Two employees provide
declarations that technicians were not allowed to get their tips unless a manager verified
that the technician completed the closing duties. See Docket No. 133-8 at 1, ¶ 4; 133-9
at 3, ¶ 9. Defendant Peter Koclanes testified that, when a customer gives a tip to a
“concierge” or manager at the register, as opposed to directly to the technician, Ella
Bliss’s policy is that the tip is “immediately put in a sealed envelope with the service
technician’s name on it and put into a locked box.” Docket No. 133-1 at 21. Koclanes
testified that the policy is that the manager has the key to the locked box. Id. at 22.
Koclanes also stated, “[a]t the end of the technician’s shift, when they [sic] check out
with the manager on the floor, they [sic] ask for their [sic] cash tips.” Id. The “checkout” process includes a “10-minute cleanup time.” Id. at 23. Koclanes explained that
the cleanup time is “universal.” Id. When asked if a technician could check out before
finishing the cleanup chores, for instance, because the technician does not like doing
chores, Koclanes testified, “[i]f you’re still working, you’re on the clock.” Id. When
asked again whether it is “Ella Bliss’s policy that a service technician may check out

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without performing his or her chores,” Koclanes responded “[n]o.” Id. Thus, the Court
does not find persuasive defendants’ argument that plaintiff has “offered no evidence
that the challenged tip policy even existed.” See Docket No. 139 at 11.
The Tenth Circuit has explained that the “party seeking class certification must
affirmatively demonstrate his compliance with the Rule – that is, he must be prepared to
prove that there are in fact sufficiently numerous parties, common questions of law or
fact, etc.” XTO Energy, 725 F.3d at 1217. Plaintiff has met this burden with the
evidence that she has provided and her identification of a “discrete legal or factual
question common to the class,” see Devaughn, 594 F.3d at 1195 (citing Valdez, 186
F.3d at 1288), namely, whether defendants’ practice of holding tips in a locked safe until
the end of a shift – and until after technicians performed downtime cleaning services at
the end of their shifts – amounted to civil theft of the tips under Colo. Rev. Stat. §§ 8-4103(6), 18-4-401.
Finally, defendants argue that plaintiff cannot adequately represent the class
because “she herself never had her tips withheld.” Docket No. 139 at 12–13. The
Tenth Circuit has identified two questions relevant to the adequacy of representation
inquiry: “(1) do the named plaintiffs . . . have any conflicts of interest with other class
members and (2) will the named plaintiffs . . . prosecute the action vigorously on behalf
of the class?” Rutter & Wilbanks Corp. v. Shell Oil Co., 314 F.3d 1180, 1187–88 (10th
Cir. 2002) (citation omitted). Adequate representation depends on, among other
factors, an absence of antagonism between the representatives and absentees, and a
sharing of interest between representatives and absentees. Ellis v. Costco Wholesale
Corp., 657 F.3d 970, 985 (9th Cir. 2011). Defendants have addressed none of these

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issues regarding plaintiff’s adequacy to represent the tip theft class. To the extent
defendants argue that plaintiff was never affected by the alleged policy, plaintiff’s
testimony indicates otherwise. Plaintiff testified that, if a technician did not complete his
or her chores, the technician would not receive his or her tips. Docket No. 133-17 at 46.
Plaintiff also testified that she had to prove to managers that she had done her chores
before she could get her tips. Id. More specifically, plaintiff explained that, at the end of
a technician’s shift, the technician would take a checklist to the manager showing that
the technician performed the chores. Id. at 25. The manager would confirm the work
was completed and would then release the technician’s tips. Id. That is largely
consistent with Koclanes’s testimony as well. Although plaintiff testified that a manager
never withheld her tips at the end of a shift, plaintiff did not testify that she was able to
get her tips without completing the check-out procedures. When asked whether she
took “the actual lists to the managers every time [she] checked out from a shift at Ella
Bliss,” plaintiff responded, “[y]es, you had to take the list to them, yeah.” Id. She also
testified that the managers “would then initial [the checklists] and then they would
release your tips and you were allowed to go home for the day.” Id.
The adequacy-of-representation inquiry “serves to uncover conflicts of interest
between named parties and the class they seek to represent.” Amchem Prods., 521
U.S. at 625. To be an adequate class representative, the “representative must be part
of the class and possess the same interest and suffer the same injury as the class
members.” Id. at 625–26. The Court finds that plaintiff has sufficiently shown, at this
stage of the litigation, that she was affected by defendants’ tip policies, is a member of
the class that she seeks to represent, and has the same interests an injuries as other

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potential class members. Defendants raise no other numerosity, typicality, or adequacy
arguments under Rule 23(a). See generally Docket No. 139. The Court agrees that
plaintiff has adequately shown the Rule 23(a) requirements.
B. Rule 23(b)(3) Requirements
After meeting Rule 23(a)’s requirements, the plaintiff must demonstrate that the
proposed class action fits within one of the categories described in Rule 23(b). Here,
plaintiff asks the Court to certify a class under Rule 23(b)(3). Docket No. 133 at 12.
Under that provision, plaintiff must show that “questions of law or fact common to class
members predominate over any questions affecting only individual members” and that a
class action “is superior to other available methods for fairly and efficiently adjudicating
the controversy.” Fed. R. Civ. P. 23(b)(3); Amchem Prods., 521 U.S. at 615 (To qualify
for certification under Rule 23(b)(3), class questions must “predominate over any
questions affecting only individual members,” and class resolution must be “superior to
other available methods for the fair and efficient adjudication of the controversy.”). In
determining predominance and superiority, the Court considers the following factors: (A)
the class members’ interests in individually controlling the prosecution or defense of
separate actions; (B) the extent and nature of any litigation concerning the controversy
already begun by or against class members; (C) the desirability or undesirability of
concentrating the litigation of the claims in the particular forum; and (D) the likely
difficulties in managing a class action. Fed. R. Civ. P. 23(b)(3)(A)–(D).
Parallel with Rule 23(a)(2)’s commonality element, Rule 23(b)(3)’s predominance
requirement imposes an obligation upon district courts to ensure that issues common to
the class predominate over those affecting only individual class members. Sullivan v.

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DB Investments, Inc., 667 F.3d 273, 297 (3d Cir. 2011). However, the predominance
criterion is “far more demanding” than Rule 23(a)(2)’s commonality requirement.
Amchem Prods., 521 U.S. at 624. Rule 23(b)(3)’s purpose is to “ensure[] that the class
will be certified only when it would achieve economies of time, effort, and expense, and
promote . . . uniformity of decision as to persons similarly situated, without sacrificing
procedural fairness or bringing about other undesirable results.” Cordes & Co. Fin.
Servs., Inc. v. A.G. Edwards & Sons, Inc., 502 F.3d 91, 104 (2d Cir. 2007). To
demonstrate predominance, plaintiff must demonstrate that its claims are “capable of
proof at trial through evidence that is common to the class rather than individual to its
members.” In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 311–12 (3d Cir.
2008). A question is individual when “the members of a proposed class will need to
present evidence that varies from member to member.” Blades v. Monsanto Co., 400
F.3d 562, 566 (8th Cir. 2005). Predominance, on the other hand, requires the Court to
consider “(1) which . . . elements [of plaintiffs’ claims] are susceptible to generalized
proof, and (2) whether those that are so susceptible predominate over those that are
not.” CGC Holding, 773 F.3d at 1087–88.
1. Downtime Classes
Defendants do not explicitly challenge predominance or superiority under Rule
23(b)(3) for the downtime classes. See Docket No. 139 at 7 (“If properly tailored . . . ,
[d]efendants do not challenge . . . predominance or superiority under Rule 23(b)(3) as to
the legal question related to downtime.”). The Court finds the facts and issues in
plaintiff’s unpaid downtime claim are more susceptible to generalized proof than
individualized proof. See CGC Holding, 773 F.3d at 1087–88.

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As discussed previously, the main issue in this claim is whether defendants have
complied with Colorado minimum wage law in their payment of technicians for
downtime. Plaintiff argues that defendants were required to pay at least minimum wage
for each hour of downtime technicians worked, while defendants maintain that they only
had to ensure that a technician’s total weekly pay divided by total weekly hours
exceeded Colorado minimum wage. Given that all technicians were paid pursuant to
the same policy and that the parties have the same arguments with respect to all
technicians, the Court finds that the downtime claim is “capable of proof at trial through
evidence that is common to the class rather than individual to its members,” see
Hydrogen Peroxide, 552 F.3d at 311–12, because a legal determination about whether
defendants’ downtime pay policy complied with Colorado minimum wage law will
resolve the claim. The Court also notes that there is no indication that any potential
members of the classes have an interest in individually controlling the prosecution or
defense of separate actions; litigation is already advanced against defendants in this
four-year-old case; there is a desirability and efficiency in concentrating the claims by
plaintiff against defendants in this Court; and management of a class action is not likely
to be difficult. See Fed. R. Civ. P. 23(b)(3)(A)–(D).
2. Commission and Tip Theft Class
As to the commission and tip theft class, defendants do not raise a Rule 23(b)(3)
predominance argument separately from their Rule 23(a) commonality argument.
Docket No. 139 at 7–13.
The Court finds the facts and issues in plaintiff’s unpaid commission and tip theft
claims are more susceptible to generalized proof than individualized proof. See CGC

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Holding, 773 F.3d at 1087–88. As with the downtime claim, the Court’s determination of
whether defendants’ practice of paying commissions by adding 5% to technicians’
service rates complied with the contracts and Colorado law will resolve the commission
claim without reference to individualized proof. Similarly, the legal determination of
whether defendants’ practice of withholding tips until the end of a technicians’ shift
constituted civil theft will also resolve the tip theft claim without the need for
individualized proof. As plaintiff notes, the fact that technicians may have different
levels of damages does not defeat certification. XTO Energy, 725 F.3d at 1220 (“[T]he
fact that damages may have to be ascertained on an individual basis is not, standing
alone, sufficient to defeat class certification.”)).
The Court makes additional findings in support of predominance. First,
defendants have identified no evidence that any potential members of the class have an
interest in individually controlling the prosecution or defense of separate actions.
Second, litigation is already advanced against defendants, which supports class
resolution in this action, rather than new, individual lawsuits. Third, there is a
desirability and efficiency in concentrating the claims by plaintiff against defendants in
this Court. Fourth, defendants have not shown that management of a class action is
likely to be difficult. See Fed. R. Civ. P. 23(b)(3)(A)–(D). The Court finds that plaintiff
has established predominance as to the unpaid commission and civil theft claims as
well.
C. Adequacy of Plaintiff’s Proposed Class Counsel
Defendants challenge the adequacy of plaintiff’s proposed class counsel under
Rule 23(g). See Docket No. 139 at 13–16. This requirement protects the due process

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interests of unnamed class members who are bound by any judgment unless they opt
out. See Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367, 379 n.5 (1996). The
Court’s inquiry is similar to determine the adequacy of plaintiff’s counsel. The Tenth
Circuit directs the Court to ask two questions in determining adequacy of
representation: (1) Does the proposed class counsel have any conflicts of interest with
other class members? (2) Will the proposed class counsel prosecute the action
vigorously on behalf of the class? See Rutter & Wilbanks, 314 F.3d at 1187–88.
Defendants argue that, because plaintiff’s counsel are defendants in state-court
litigation brought by defendants’ counsel, plaintiff’s counsel cannot adequately represent
the proposed class. 3 Docket No. 139 at 13–15. In response to the state-court lawsuit,
as well as counterclaims that defendants have filed in this case, plaintiff added claims
for retaliation and abuse of process. Defendants assert that plaintiff’s counsel are
unable to serve as class counsel because of plaintiff’s counsel’s “obvious financial
interest in being appointed class counsel” and their “repeated representations to this
Court that the state court litigation has had and will have, for as long as it is active,
significant impact on this federal case,” in part because the Court’s resolution of the
non-class claims of abuse of process and retaliation will delay resolution of the class
claims. See id. Although the relation between plaintiff’s counsel and defendants’ may
be more antagonistic than in other cases, the Court does not find plaintiff’s counsel to
be inadequate. First, without passing judgment on the merits of either party’s post-filing
Defendants sued plaintiff’s counsel in state court for defamation and intentional
interference with contractual relations based on statements that plaintiff’s counsel made
at a press conference in front of one of defendants’ locations on the day plaintiff filed
this lawsuit. This case is pending before the Colorado Supreme Court on a petition for
a writ of certiorari. See Killmer, Lane & Newman, LLP v. BKP, Inc., 2021SC930 (Colo.
Sup. Ct.).
3

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conduct, the Court is not persuaded that defendants may disqualify plaintiff’s counsel for
responding to defendants’ state-court lawsuit and counterclaims. Defendants should
not be able to use the state-court proceeding as both a sword to address alleged
defamation and a shield to prevent plaintiff’s counsel from service in this case as class
counsel. Second, defendants’ financial interest argument is unpersuasive because any
proposed class counsel would have a financial interest in such an appointment. That
alone cannot disqualify counsel. Third, defendants have not shown why plaintiff’s nonclass claims would delay resolution of the class claims any more than the defendants’
state-court lawsuit would. As defendants note, plaintiff does not seek class certification
of the non-class claims. This dispute is more than four years old, and both parties have
expended significant resources, which weighs in favor of plaintiff’s counsel serving as
class counsel. Fourth, the Court perceives no conflict of interest between plaintiff’s
proposed class counsel and other members of the class. Defendants imply that
plaintiff’s counsel may attempt to facilitate a global settlement of both this action and the
state-court action. So long as the proposed settlement is fair and equitable to class
members and defendants, the Court does not see why the potential for such a fair and
equitable resolution is a conflict between plaintiff’s counsel and proposed class
members. Fifth, there is no dispute that plaintiff’s counsel is able to vigorously
prosecute the action on behalf of the class. See Rutter & Wilbanks, 314 F.3d at 1187–
88.
Rule 23(g) also requires the Court, in appointing class counsel, to consider: “(i)
the work counsel has done in identifying or investigating potential claims in the action;
(ii) counsel’s experience in handling class actions, other complex litigation, and the

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types of claims asserted in the action; (iii) counsel’s knowledge of the applicable law;
and (iv) the resources that counsel will commit to representing the class.” Towards
Justice and Killmer, Lane & Newman (“KLN”) have been involved in this case from the
beginning. See Docket Nos. 1–3. Towards Justice has substantial experience in
litigating wage and hour class actions, and KLN has substantial experience in trial work
and litigating multi-plaintiff actions. Both have knowledge of the facts in this case and
the relevant law. Finally, defendants identify no resource shortage that would
compromise plaintiff’s proposed class counsel’s vigorous advocacy. See Rutter &
Wilbanks, 314 F.3d at 1187–88. The Court therefore finds that plaintiff has satisfied
Rule 23(g)’s requirements and that Towards Justice and Killmer, Lane & Newman LLP
shall be appointed class counsel.
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED that plaintiff’s Motion for Class Certification Under Rule 23(b)(3) and
Appointment of Class Counsel Under Rule 23(g) [Docket No. 133] is GRANTED. It is
further
ORDERED that the following classes are certified
1.

THE MINIMUM WAGE ACT DOWNTIME CLASS: All current and
former service technicians who worked for the entity defendants
(BKP Inc., Ella Bliss Beauty Bar LLC, Ella Bliss Beauty Bar – 2,
LLC, and Ella Bliss Beauty Bar – 3, LLC) at any of Ella Bliss Beauty
Bar’s three locations from six years prior to the filing of this case
until the present.

2.

THE WAGE CLAIM ACT DOWNTIME CLASS: All current and
former service technicians who worked for the entity defendants
(BKP Inc., Ella Bliss Beauty Bar LLC, Ella Bliss Beauty Bar – 2,
LLC, and Ella Bliss Beauty Bar – 3, LLC) at any of Ella Bliss Beauty
Bar’s three locations from three years prior to the filing of this case
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until the present.
3.

THE COMMISSION AND TIP THEFT CLASS: All current and
former service technicians who worked for the entity defendants
(BKP Inc., Ella Bliss Beauty Bar LLC, Ella Bliss Beauty Bar – 2,
LLC, and Ella Bliss Beauty Bar – 3, LLC) at any of Ella Bliss Beauty
Bar’s three locations from three years prior to the filing of this case
until the present. 4

It is further
ORDERED that the classes as certified meet the requirements of Fed. R. Civ. P.
23(b)(3). It is further
ORDERED that Towards Justice and Killmer, Lane & Newman LLP are
appointed class counsel. It is further
ORDERED that plaintiffs Lisa Miles a/k/a Elisa Marie Miles is appointed class
representative. It is further
ORDERED that, within 21 days of the entry of this order, the parties shall confer
and submit to the Court a notice to be served upon class members pursuant to Fed. R.
Civ. P. 23(c)(2)(B). If the parties are unable to agree on the text of this notice, they shall
submit plaintiff’s proposed text along with a detailed list of defendants’ objections.
DATED September 15, 2022.

BY THE COURT:
___________________________
PHILIP A. BRIMMER
Chief United States District Judge

As noted previously, plaintiff’s motion defines this class as those service
technicians who worked defendants “through final judgment.” See Docket No. 133 at 9.
Plaintiff’s modified Minimum Wage Act and Wage Claim Act classes use the phrase
“until the present” rather than “through final judgment.” See Docket No. 146 at 4–6.
The Court will certify the three classes with the “until the present” language for the three
classes.
4

23