United States District Court, D. New Mexico
MARGARET J. LOPEZ, individually and on behalf of all others similarly situated, Plaintiff,
EL MIRADOR, INCORPORATED, and LOUIS PEREA, Defendants.
MEMORANDUM OPINION AND ORDER
C. BRACK UNITED STATES DISTRICT JUDGE.
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 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.)
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.)
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.)
considering the parties' request, the Court examines
whether final certification is appropriate and whether the
proposed settlement is fair.
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).
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
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.
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.
balancing the considerations above, the Court concludes that
the potential plaintiffs are sufficiently similarly situated
to warrant final collective action certification.