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Lopez v. EL Mirador, Inc.

United States District Court, D. New Mexico

April 2, 2018

MARGARET J. LOPEZ, individually and on behalf of all others similarly situated, Plaintiff,
v.
EL MIRADOR, INCORPORATED, and LOUIS PEREA, Defendants.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. BRACK UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the parties' second motion for approval of their proposed settlement. Satisfied that potential class members are similarly situated and that the settlement is fair, the Court approves final collective action certification and the proposed settlement.

         FACTS

         The facts applicable to this case are detailed in the Court's previous Memorandum Opinion and Order denying the first proposed settlement. (Doc. 51 at 1-4.) In short, the Department of Labor promulgated a regulation, 29 C.F.R. § 552.109(a), which required employers to pay Fair Labor Standards Act (FLSA) overtime wages to certain companionship and live-in employees in the home health industry. (See Id. at 2.) Citing § 552.109(a), plaintiff Margaret Lopez brought this action on behalf of herself and others similarly situated to recover unpaid overtime wages that defendants (collectively, “El Mirador”) allegedly failed to pay. (Id.)

         Plaintiff's action covered the time period from January 1, 2015, through April 5, 2017. (See Id. at 3.) Within that period, El Mirador disputes that it owes overtime wages from January 1, 2015, through October 12, 2015, contending that § 552.109(a) did not become effective until October 13, 2015. (See id.) The parties refer to the period of time over which they dispute the applicability of § 552.109(a) (January 1, 2015, through October 12, 2015) as the “disputed period.” (Id.) They refer to the remaining time covered by the lawsuit (October 13, 2015, through April 1, 2017) as the “undisputed period.” (See id.)

         The parties came to a settlement agreement, but the Court rejected that agreement because the class members were not sufficiently similarly situated given the parties' agreement, and because the proposal was not fair. (See Id. at 9, 17.) The parties have amended their proposed settlement in light of the Court's rejection and again ask the Court to certify the collective action and approve the new proposed settlement. (See Doc. 52 at 2.)

         DISCUSSION

         In considering the parties' request, the Court examines whether final certification is appropriate and whether the proposed settlement is fair.

         I. Final Certification

         When considering final collective action certification, the Court examines how similarly situated putative class members are by looking to factors such as the disparate factual and employment settings of individual plaintiffs, the defendant's unique defenses against individual plaintiffs, and fairness and procedural considerations. See Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1103 (10th Cir. 2001) (laying out “similarly situated” factors for final collective action certification); see also Koehler v. Freightquote.com, Inc., No. 12-2505-DDC-GLR, 2016 WL 1403730, at *4 (D. Kan. Apr. 11, 2016) (requiring a court to make final certification determination prior to approving any FLSA collective action settlement).

         All potential plaintiffs shared the “same primary job duty” of “providing care, companionship, and support services to El Mirador's clients, ” and none of them were paid overtime wages. (Doc. 51 at 7.) Although potential plaintiffs worked for El Mirador during different time periods, (id.), that difference is muffled by the parties' inclusion of liquidated damages for time worked during the undisputed period, (see Doc. 52 at 2). Under the terms of the new proposed settlement, the disparate factual and employment settings of individual plaintiffs are similar, and this factor leans towards certification.

         As for unique defenses particular to individual plaintiffs, El Mirador can challenge any recovery for time worked during the disputed period by arguing that § 552.109(a) only became effective during the undisputed period. This is only a viable defense against claims for wages from the disputed period, so El Mirador has a defense that is unique to certain plaintiffs. This factor leans against certification.

         Lastly, the policy of allowing plaintiffs to pool their resources for litigation and the policy encouraging settlement of litigation weigh in favor of certifying the action.

         After balancing the considerations above, the Court concludes that the potential plaintiffs are sufficiently similarly situated to warrant final collective action certification.

         II. Fairness ...


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