MELISSA GAMBOA, on her own behalf and on behalf of all others similarly situated v. KISS NUTRACEUTICALS, KISS INDUSTRIES, LLC, COLE EVANS, and GRANT DEAN
Case No. 1:22-cv-01141-WJM-TPO
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
filed 04/02/25
Document 143; pg 1 of 39; USDC
ORDER GRANTING RENEWED MOTION FOR CLASS CERTIFICATION
Before the Court is Plaintiff Melissa Gamboa‘s (“Plaintiff“) Renewed Motion for Class Certification (ECF No. 116) (“Motion“), on her own behalf and on behalf of all others similarly situated. Defendants KISS Nutraceuticals (“KISS“), KISS Industries, LLC, Cole Evans, and Grant Dean (collectively, “Defendants“) filed a response (ECF No. 118),1 to which Plaintiff filed a reply (ECF No. 124). For the following reasons, the Motion is granted.
I. BACKGROUND2
Plaintiff brings this wage action on behalf of herself and others similarly situated
KISS manufactures “vitamin supplements and [cannabidiol] [‘CBD‘] gummies at its facility in Denver, Colorado,”3 where Plaintiff worked between February 2020 and April 2022. (ECF No. 118 at 2–3.) Plaintiff alleges that she and the putative class members were “low-wage assembly line workers employed in Defendants’ cannabidiol (‘CBD‘) gummy manufacturing operation” in Denver. (ECF No. 116 at 1.) As described by Plaintiff, KISS‘s workforce was “unskilled, largely immigrant and female . . . .” (Id. at 2.) They “performed rote, manual, . . . labor” (id. at 6), including “basic [] tasks” like “arranging gummy bears on trays, placing drops of CBD oil on the gummy bears, and packing them for shipment” (id. at 2). In exchange for this work, Plaintiff and the putative class members were paid hourly wages at rates set by Defendants. (Id. at 2, 8.) It appears undisputed that Defendants classified all of their hourly workers as independent contractors and that none were paid overtime wages. (Id. at 1–2; ECF No. 118-1 (Evans Decl.) at ¶ 5.) Defendants assert they “generally engage[] independent contractors on a per order basis to provide services related to KISS‘s inventory, administration, and production for the limited purpose of filling a particular order.” (ECF No. 118 at 2–3.)
In August 2023, the Court certified an FLSA collective action consisting of “[a]ll hourly employees who worked on or after May 9, 2019 who were not paid overtime wages for overtime hours worked.” (ECF No. 52.) Defendants state that no one opted in to the FLSA collective action during the subsequent notice period, which concluded in November 2023, although four individuals joined the litigation prior to the collective action‘s conditional certification (“Opt-In Plaintiffs“). (ECF No. 118 at 3.)
Plaintiff now seeks to certify a Rule 23 class as to her wage claims arising under state and local law with the following definition: “All production, inventory and shipping workers who worked overtime hours and who were not paid overtime wages between May 9, 2019 and the present.” (ECF No. 116 at 10.)
II. LEGAL STANDARD
Federal Rule of Civil Procedure 23 sets forth the requirements for maintaining a class action. “The party seeking certification must demonstrate the proposed class satisfies all the requirements of Rule 23(a) and one of the three alternatives provided by Rule 23(b).” Black v. Occidental Petroleum Corp., 69 F.4th 1161, 1173 (10th Cir. 2023) (citing
”
III. ANALYSIS
A. Rule 23(a) Numerosity & Ascertainability
Even assuming the class is sufficiently numerous, however, Defendants maintain that it is not ascertainable. (ECF No. 118 at 9.) The Tenth Circuit “treat[s] ascertainability as a sub-requirement of numerosity” because, “[t]o show numerosity, ‘there must be presented some evidence of established, ascertainable numbers constituting the class in order to satisfy even the most liberal interpretation of the numerosity requirement.‘” Evans v. Brigham Young Univ., 2023 WL 3262012, at *5 (10th Cir. May 5, 2023) (quoting Rex v. Owens ex rel. Oklahoma, 585 F.2d 432, 436 (10th Cir. 1978)) (emphasis added in original); see also Harrison v. Envision Mgmt. Holding, Inc. v. Bd. of Directors, 2025 WL 295009, at *4–5 (D. Colo. Jan. 24, 2025) (analyzing ascertainability as a sub-requirement of numerosity).
The Tenth Circuit has not adopted a standard for ascertainability, but it “allow[s] district courts to consider [out-of-circuit standards] as part of their
Here, Defendants argue the proposed class is not ascertainable because (1) the payroll records on which Plaintiff relies to identify the putative class members likely contain inaccurate information, leaving no “administratively feasible mechanism” to identify the class (ECF No. 118 at 13); and (2) as defined, the proposed class is an “impermissible fail-safe” (id. at 4).4 The Court ultimately finds neither issue renders the class unascertainable.
1. Inaccurate Payroll Records
Plaintiff asserts “[t]he putative class is easily ascertainable” and “manageable on a class basis in the practical sense” because “[t]he parties have access to complete records of all hours worked and all overtime wages unpaid for each member of the putative class.” (ECF No. 116 at 5.) Thus, she explains, identifying the class members is a “simple function of math“: since it is undisputed that Defendants (1) classified all of their workers as independent contractors (ECF No. 116-5 (KISS Rule 30(b)(6) Dep.) at 82:18-83:10), and (2) did not pay overtime premiums to any worker (id. at 64:1–17), all that is needed is to review Defendants’ weekly payroll records from the relevant time period to determine which workers have more than 40 hours in any given workweek. (ECF No. 116 at 5; ECF No. 124 at 3–4.)
Defendants assert, however, that Plaintiff‘s method “presumes that the identifying information these individuals provided to KISS was true and accurate.” (ECF No. 118 at 13.) They express doubt as to whether that is the case based on Gamboa‘s deposition testimony that she provided a false name to KISS upon hiring, which is also the name that appears on her new-hire paperwork and, presumably also, KISS‘s payroll records. (ECF No. 118-2 (Gamboa Dep.) at 9:12–15.) Defendants thus argue “[i]t is reasonable to infer that other contractors may have also supplied false names and identifying information.” (ECF No. 118 at 13.) Indeed, “beyond a lack of interest,” Defendants surmise that is “the only logical explanation for the lack of opt-ins,” given “the same wage and hour records” were used to distribute the collective action notices. (Id.)
The Court is unpersuaded. As a threshold matter, ascertainability does not require “the identity of individual class members . . . be ascertained before class certification.” MANUAL FOR COMPLEX LITIGATION § 21.222 (4th ed. 2004). Rather, “[a]
A single, known instance of the use a false name does not show that reliance on KISS‘s payroll records to identify the putative class will require “individualized fact-finding or mini-trials.” Carrera, 727 F.3d at 307.5 And Defendants’ suggestion that the use of false names among their workers was widespread otherwise appears to be unsubstantiated. Notably, the Court previously reopened Phase I discovery at Defendants’ behest so they could propound further document requests to Plaintiff on, among other topics, “the ascertainability of potential class members.” (ECF No. 115.) Defendants asserted then that the additional discovery was necessary because they had “recently discover[ed] that many KISS workers provided false names, making their identities and current locations unknowable.” (ECF No. 114 at 5.) Yet, apart from Gamboa, Defendants are apparently still unable to point to any other instance of a worker having used an alias or false identity.
On the other hand, Plaintiff points out that the same KISS records elicited a roughly one-third participation rate for an in-person event in January 2024 (the “January 2024 Event“), which suggests that, at a minimum, accurate contact information for the putative class members is substantially available. See also Mullins, 795 F.3d at 665 (noting
In sum, the Court is satisfied that, here, identification of the putative class members can be straightforwardly accomplished by reference to KISS‘s payroll records. At this stage, Defendants’ arguments to the contrary are merely speculative and, at worst, remediable through efforts which the Court has no reason to believe will be so onerous as to render identification of the class administratively infeasible.
2. Fail-Safe Class Definition
As noted, Plaintiff proposes the following class definition: “All production, inventory and shipping workers who worked overtime hours and who were not paid overtime wages between May 9, 2019 and the present.” (ECF No. 116 at 10.) Defendants argue this definition creates an impermissible “fail-safe class.” (ECF No. 118 at 4.) The Court, again, disagrees.
“A class definition creates a fail-safe class when the class definition bases membership in the class on the validity of the plaintiff‘s claims.” Simmons v. Isle of Capri Black Hawk LLC, 2021 WL 5513744, at *6 n.3 (D. Colo. Feb. 23, 2021) (quoting Erin L. Geller, The Fail-Safe Class as an Independent Bar to Class Certification, 81 FORDHAM L. REV. 2769, 2782 (2013)); see also Stallbaumer v. NextEra Energy Resources, LLC, 2023 WL 3496245, at *10 (D. Kan. May 17, 2023) (“A fail-safe class is one in which determining membership turns on the merits of the individual class members’ claims.“) (internal citations omitted). Fail safe classes are potentially problematic for two reasons. “First, if the only members of fail-safe classes are those who have viable claims on the merits, then class members either win or, by virtue of losing, are defined out of the class, escaping the bars of res judicata and collateral estoppel.” Stallbaumer, 2023 WL 3496245, at *10 (quoting In re White, 64 F.4th 302, 313 (D.C. Cir. 2023)). Second, a fail-safe class definition makes it “difficult—if not impossible—to determine class membership early on in the case” because the court must “conduct an individual inquiry regarding the merits of each proposed plaintiff‘s claim . . . .” Stallbaumer, 2023 WL 3496245, at *10 (quoting Mike v. Safeco Ins. Co. of Am., 223 F.R.D. 50, 53 (D. Conn. 2004)). “Not only does this complicate identifying and certifying a class, but it creates significant issues in even managing the case as a class action.” Stallbaumer, 2023 WL 3496245, at *10; see also Orduno v. Pietrzak, 932 F.3d 710, 716–17 (8th Cir. 2019) (“A fail-safe class is also unmanageable . . . because the court cannot know to whom notice should be sent.“).
Defendants argue Plaintiff‘s proposed class definition is an impermissible fail-safe because, insofar as membership “depends on whether individuals ‘worked overtime hours and . . . were not paid overtime wages,‘” it assumes those individuals “were entitled to overtime wages as non-exempt employees.” (ECF No. 118 at 5.) Put differently, given that “the crux of this litigation” is Defendants’ contention that the potential class members were “allegedly not paid overtime [] because they were classified as independent contractors, not employees,” Defendants assert the definition “presupposes Defendants’ liability for misclassification.” (Id. at 5–6.)
The Court sees it differently. Irrespective of whether Plaintiff and the proposed class members were independent contractors or employees—that is, irrespective of whether Defendants are liable for misclassifying
Other federal courts have concluded similarly. For example, in Perry v. Krieger Beard Services, LLC, the Southern District of Ohio considered whether an FLSA collective action defined to include “all technicians who worked for [defendant] and were not paid one-and-a-half times their regular rate of pay for all hours worked in excess of 40 per workweek and/or the minimum wage for each hour worked” created an impermissible fail-safe class. 2018 WL 3218413, at *3 (S.D. Ohio July 2, 2018). The court concluded the proposed collective was not a fail-safe because “[t]he facts that define an individual as a class member are knowable without any determination of liability.” Id. That is, “[a] technician who worked over 40 hours in a week and was not paid overtime or the equivalent of minimum wage is in the class regardless of whether or not the technician qualifies as an employee or is entitled to such compensation under the FLSA.” Id. That is precisely the case here. See also Cummins v. Ascellon Corp., 2020 WL 6544822, at *8 (D. Md. Nov. 6, 2020) (in case where surveyors’ entitlement to overtime wages was contested, FLSA collective action defined to include surveyors who “were not paid overtime compensation for hours over forty in one or more workweeks” was not an impermissible fail-safe).6
The Court thus finds the class is appropriately defined and does not create an impermissible fail-safe.7
For all these reasons, the Court finds Plaintiff has satisfied Rule 23‘s numerosity and ascertainability requisites to class certification.
Next, a plaintiff must show “there are questions of law or fact common to the class.”
Here, Plaintiff challenges Defendants’ “class-wide classification of its workers as independent contractors.” (ECF No. 116 at 11.) “Misclassification cases involving a policy categorically applied to the entire class typically present a common question because the central question of whether employees were wrongfully classified as exempt from overtime pay requirements unites them.” Golden v. Quality Life Servs., LLC 2023 WL 3182645, at *6 (D.N.M. Apr. 30, 2023). Plaintiff has shown—and Defendants do not dispute—that KISS classified all of the putative class members as independent contractors. (E.g., ECF No. 124-1 (KISS Rule 30(b)(6) Dep.) at 115:5–12.) Whether Defendants did so lawfully is thus a question common to the class. See McAlister v. LGI Homes Corp., LLC, 2024 WL 5431464, at *6 (D. Colo. Dec. 6, 2024) (commonality satisfied where “overtime claim appears to turn entirely on whether [defendant] properly exempted its sales representatives as exempt from overtime pay under Colorado law“); Pruess, 745 F. Supp. 3d at 1236 (commonality met “because they have shown that [Care Coordinators] were subject to the same classification policy that resulted in their alleged” nonpayment for overtime wages, and collecting additional cases); Huddleston v. John Christner Trucking, LLC, 2020 WL 489181, at *8 (N.D. Okla. Jan. 30, 2020) (“Here, whether or not [defendant] misclassified the California Work Class as independent contractors is a common question.“).
Nonetheless, Defendants argue “a blanket exemption policy ‘does not eliminate the need to make a factual determination as to whether class members are actually performing similar duties.‘” Levine v. Vitamin Cottage Nat. Foods Markets, Inc., 2023 WL 3648684, at *14 (D. Colo. May. 25, 2023) (quoting Marlo v. United Parcel Serv., Inc., 639 F.3d 942, 948 (9th Cir. 2011) (citation omitted)). And, here, the proposed class definition appears to identify three different categories of KISS workers—that is, “production, inventory, and shipping workers.” (ECF No. 116 at 10.) Despite their separate identification in
Still, the Court gathers from Defendants’ briefing and the parties’ supporting documentation that “production, inventory, and shipping” refer to departments within KISS‘s Denver plant. (See, e.g., ECF No. 118 at 8 (referring to “inventory and production departments“).) Evans states in his declaration that KISS “does not generally assign independent contractors to specific departments or assign independent contractors specific responsibilities.” (ECF No. 118-1 (Evans Decl.) at ¶ 16.) Thus, on this record it appears to the Court that “production, inventory, and shipping” refer not to the putative class members’ job titles, but to potentially fluid assignments along KISS‘s assembly line. (See also ECF No. 116 at 8 (asserting “Defendants directed their employees as to where along the assembly line they were to work” and “placed each worker in a position on the line according to which job Defendants wanted the worker to do each day“).)
This is consistent with Plaintiff‘s theory that all of the putative class members were non-managerial, hourly plant workers whose job duties directly related to the manufacture of Defendants’ CBD gummy bear products. (ECF No. 116-5 (KISS Rule 30(b)(6) Dep.) at 111:22–112:1 (“Q: . . . The work that the hourly employees perform is really the essence of your business. And what I mean is they are creating the products that you sell, correct? / A: That would be correct, yes.“).) Collectively, they “performed rote, manual, assembly line labor” for KISS, including “basic assembly line tasks,” like “arranging gummy bears on trays, placing drops of CBD oil on the gummy bears, and packing them for shipment.” (ECF No. 116 at 1–2, 6–7; see also ECF No. 116-1 (Soto Dep.) at 33:8-13 (testifying that she “arranged the gummies on trays and count[ed] the gummies” at times, “dropped some CBD oil on the gummies” at times, and “pack[ed] the gummies into bottles” at still other times); ECF No. 116-3 (Gamboa Dep.) at 22:10-17 (testifying that, upon hiring, supervisor told her she would be “fixing the gummies,” “packing them,” “weighing them,” “cleaning them,” etc.).)
The evidence also supports Plaintiff‘s theory that none of the work performed by the putative class members required specialized skills, training, or education. (ECF No. 116-5 (KISS Rule 30(b)(6) Dep.) at 111:3–21 (testifying the hourly workers are not required to have any certifications, specialized skills, or prior experience); ECF No. 116-1 (Soto Dep.) at 12:16–23 (testifying she has a high school diploma but no certifications); ECF No. 116-2 (Lara Dep.) at 10:20–11:5 (testifying she never graduated from high school); id. at 356:20–22 (testifying she had never done assembly-line work prior to working at KISS).) Plaintiff asserts that all of KISS‘s hourly workers received the same basic training, which appears to have been more concerned with personal hygiene practices than job-specific tasks. (See generally ECF No. 116-11). To the extent the putative class members received any additional on-the-job training, their testimony supports the notion that it was both informal and minimal. (ECF No. 116-2 (Lara Dep.) 22:23–23 (learned how to do assembly line work by watching other workers arrange gummies); ECF No. 116-1 (Soto Dep.) at 35:17–36:15 (testifying job training could last only a few minutes).)
While Defendants generally argue their “classification policy may have accurately classified some independent contractors and misclassified others,” they do not even attempt to describe any difference—let alone any material difference—in the
Should later evidence reveal meaningful distinctions between “inventory, production, and shipping workers” that defeat commonality, Defendants are free to seek leave to file an appropriate motion addressing that issue. See
C. Rule 23(a) Typicality
Plaintiff asserts that her claims are typical of the class because she “seek[s] to represent a class of workers who were misclassified as independent contractors, just as she was, and who were not paid overtime wages, just as she was.” (ECF No. 116 at 11.) The Court agrees. See Gomez v. Epic Landscape Prods., L.C., 2024 WL 4605146, at *13 (D. Kan. Oct. 29, 2024) (finding typicality satisfied where “all members of each class share the same legal theory—they were not paid overtime wages despite Defendants’ obligation to pay those wages“); Golden, 2023 WL 8112714, at *5 (finding typicality satisfied “by demonstrating the putative class worked over 40 hours a week and was denied overtime pay like the named Plaintiffs“); Rodriguez, 2020 WL 3000415, at *8 (typicality requirement met where “[t]he claim of all the class members, including [the class representative] share[d]
Defendants’ only opposition to typicality is that Plaintiff has not shown that “shipping workers” claims are typical of her own, on similar grounds to those already addressed by the Court above with respect to commonality. (ECF No. 118 at 9.) The Court will not address those points for a second time here.
The Court thus finds
D. Rule 23(a) Adequacy
The final prong of
The Court will reserve its discussion as to the adequacy of proposed class counsel for that portion of its Order addressing the appointment of counsel pursuant to
1. Credibility
Defendants first assert that Gamboa “lacks credibility” based on three admissions she purportedly made at her deposition. (Id.)
Before turning to the cited testimony, the Court observes that “[w]hether a proposed class representative is honest and credible may have some bearing on the representative‘s ability to adequately represent absent class members.” Chester v. Tancorde Finance, Inc., 2015 WL 5090323, at *5 (D.N.M. Jan. 12, 2015). Still, courts rarely permit challenges based on “the contention that a proposed representative is inadequate because of prior unrelated unsavory, unethical, or even illegal conduct.” 1 Newberg and Rubenstein on Class Actions § 3:68 (6th ed. 2022) (“Newberg and Rubenstein“). Rather, the personal characteristics must generally bear some relevance to the litigation, such as when “the proposed representative ha[s] given inconsistent testimony on material issues in the litigation in a way that might jeopardize his credibility with the fact finder at trial.” Id. As Judge Nottingham of this District once put it in an oft-cited case,
assault on the class representative‘s credibility to succeed, the party mounting the assault must demonstrate that there exists admissible evidence so severely undermining plaintiff‘s credibility that a fact finder might reasonably focus on plaintiff‘s credibility, to the detriment of the absent class members’ claims. It is not necessary that [the court] resolve issues of credibility against the class representative. Decertification is appropriate if unique and substantial issues of credibility cling to the class representative, thereby creating a potential adverse impact on the class.few plaintiffs come to court with halos above their heads; fewer still escape with those halos untarnished. For an
Dubin v. Miller, 132 F.R.D. 269, 272 (D. Colo. 1990).
Turning to the challenged testimony here, Defendants argue Gamboa‘s credibility
Defendants’ characterization of the first “admission” plainly appears to be an overstatement. At the cited portion of her deposition, Gamboa responded affirmatively when asked if she had “ever report[ed] more hours worked on [her] time sheet than [she] actually worked.” (ECF No. 118-2 (Gamboa Dep.) at 77:3-5.) However, she elaborated that her supervisors8 “would tell us to add some extra hours when we have to wait for a truck . . . [b]ecause sometimes they arrive 3:00, 4:00, in the morning, and I have to go to receive the truck.” (Id. at 77:6-12.) On such occasions, Gamboa would “go back home” before returning to work again “at 6:00 in the morning,” so a supervisor “would tell [her], You can add an hour . . . .” (Id. at 77:12-17.) Defendants’ suggestion that it was dishonest of Gamboa to add an hour to her timecard in these circumstances borders on the absurd and warrants no further discussion.
As to the second and third admissions, Gamboa readily testified at deposition that (1) she provided KISS with an alias when she began her working relationship with the company (id. at 9:12-15), and (2) when KISS withheld two of her paychecks after her resignation from the company, she restricted her supervisors’ access to a spreadsheet she created and maintained relating to certain company inventory in an effort to leverage payment (id. at 84:3-85:20). As a general matter, these issues appear to have little, if any, relevance to “material issues in the litigation.” Newberg and Rubenstein § 3.68. Moreover, Gamboa testified candidly about each at deposition, such that the Court has little concern she will provide “inconsistent testimony” at trial. Id.
Further, as a pertinent policy consideration, it cannot be ignored that Gamboa‘s immigration status at the commencement of her working relationship with KISS was unclear—a factor surely motivating her decision to use an alias. Similar to the FLSA, the Court discerns no language in Colorado‘s wage laws conditioning relief on immigration status. Given this, “lack of legal immigration status cannot be a bar to recovery, or indeed named plaintiff status, as several courts have held.” Montoya v. S.C.C.P. Painting Contractors, Inc., 530 F. Supp. 2d 746, 751 (D. Md. 2008) (casting doubt on relevance of use of false name on the adequacy of class representative).
Relatedly, to the extent Gamboa‘s withholding of an inventory spreadsheet following her resignation from KISS bears on her credibility, it is mitigated by two factors. First, as Defendants recognize, she did so in response to KISS‘s own alleged inequitable conduct in withholding her final wages. Second, the spreadsheet to which she restricted her supervisors’ access was housed within her “personal email” that she “create[d] to facilitate [her] own work” and would “share with [her supervisors],” seemingly on her own initiative. (ECF No. 118-2 (Gamboa Dep.) at
In sum, the Court finds that Gamboa‘s testimony on these topics does not undermine, let alone severely undermine, her credibility so as to adversely impact the absent class members in a manner addressed by
- Knowledge of “Shipping Workers”
Defendants argue Gamboa is an inadequate class representative because she “purports to represent ‘shipping workers’ in the proposed class but, by her own admission, is not even aware of a ‘shipping department’ within KISS, does not know anything about these purported individuals, and failed to identify them at all in her Motion.” (ECF No. 118 at 14.)
Even assuming Defendants’ characterization of Gamboa‘s deposition testimony is accurate, ”
Defendants cite the Court to no case law, and the Court does not interpret relevant authority to require Plaintiff to have knowledge of the particular factual circumstances of the absent class members’ claims. Defendants have otherwise given the Court little reason to believe Gamboa is not generally aware of the nature of the class claims in this case, nor have they pointed to any evidence refuting Plaintiff‘s assertion that she has diligently assisted counsel by sitting for her deposition and complying with written discovery requests. (ECF No. 116 at 12.)
The Court finds she has demonstrated a sufficient understanding of the class claims to serve as representative.
- Conflict of Interest
In January 2024, Gamboa filed an Amended Complaint asserting four retaliation claims against Evans, brought on her own behalf and on behalf of Opt-In Plaintiff Maria Hernandez. (See ECF No. 88.) Defendants argue these “four [] individual retaliation claims may outweigh the value of her individual wage claim,” which would “create a conflict of interest” because “she may focus more on her individual claims which would negatively affect her decisions regarding the class to its members’ detriment.” (ECF No. 118 at 14.) The Court is unpersuaded.
“[T]he fact that a named class representative elects to pursue additional claims in an individual capacity does not automatically give rise to a conflict.” Saucedo v. NW Mgmt. & Realty Servs., Inc., 290 F.R.D. 671, 683 (E.D. Wa. 2013). Thus, “[u]nless the named representative‘s interest in pursuing individual claims undermines his or her incentive to vigorously prosecute the class-wide claims, no conflict arises.” Id. At this point, Defendants’ assertion that Gamboa may be incentivized to prioritize her non-class claims to the detriment of the class members is purely speculative. There is, for instance, no indication of “a ‘limited settlement pie’ which would result in both the class and non-class claims competing for a larger share.” In re Turquoise Hill Resources Ltd. Securities Litig., 2022 WL 17884165 (S.D.N.Y. Dec. 23, 2022) (citations omitted).
The Court finds the Northern District of Ohio authority relied upon by Defendants distinguishable for similar reasons. See Kurczi v. Eli Lilly & Co., 160 F.R.D. 667 (N.D. Ohio 1995). There, “a significant percentage, if not all, of the named plaintiffs in th[e] action [were] also bringing an identical, individual cause of action in state court.” Id. at 678. The district court was thus concerned of “a significant risk that these plaintiffs will not adequately represent those absent class members who have not individually joined the parallel state court action” with respect, for example, to “settlement and dismissal decisions.” Id. As far as the Court is aware, however, there is no parallel action in which Gamboa is involved that would present similar concerns here. See also Krzesniak v. Cendant Corp., 2007 WL 1795703, at *10 (N.D. Cal. June 20, 2007) (distinguishing Kurczi on the same grounds).
Discerning no evidence that Gamboa‘s individual retaliation claims will impede her ability to fairly represent the class as to their common wage claims, the Court sees little reason her individual claims should preclude her from serving as class representative at this time. Benedict v. Hewlett-Packard Co., 314 F.R.D. 457, 473 (N.D. Cal. 2016) (“[A] named representative is able to represent a class while additionally bringing individual claims where there is no evidence that the individual claims will impair his ability to represent the class.“)
The Court is otherwise persuaded that Gamboa and her counsel at Milstein Turner, PLLC will vigorously prosecute the action on behalf of the class. The Court will reserve its discussion of class counsel below. It thus concludes they are adequate to represent the class for purposes of
E. Rule 23(b)(3) Predominance
Turning next to
Nevertheless, “[i]t is not necessary for a plaintiff to show that all of the elements of the claim entail questions of fact and law that are common to the class or that the answers to the common questions are dispositive.” Brayman, 83 F.4th at 838 (internal quotation marks omitted). “[S]o long as at least one common issue predominates, a plaintiff can satisfy
“To determine which issues in the case are common and which are individual, the court must first ‘consider the class‘s underlying cause[s] of action and determine which elements are amenable to common proof.‘” Sherman, 84 F.4th at 1194-95 (quoting Menocal, 882 F.3d at 915); see also Black, 69 F.4th at 1175 (“Sensibly, the predominance inquiry begins with the elements of the underlying cause of action.” (internal quotation marks omitted)). The Court must “characterize the issues in the case as common or not, and then weigh which issues predominate.” CGC Holding Co., LLC v. Broad & Cassel, 773 F.3d 1076, 1087 (10th Cir. 2014).
To recover under the CWCA, Plaintiff must establish that (1) “Plaintiff was an employee of defendant“; (2) “Defendant was an employer“; and (3) “Defendant failed to pay plaintiff the proper wages for all hours plaintiff worked.” Echon v. Sackett, 2019 WL 8275344, at *5 (D. Colo. Feb. 12, 2019). The CMWA requires that “[n]on-exempt employees must be paid time and one-half their regular rate of pay for all hours worked in excess of 40 hours per week or 12 per day.” Allsopp v. Akiyama, Inc., 2010 WL 1258006, at *2 (D. Colo. Mar. 26, 2010). Thus, Plaintiff must also show that she worked in excess of 40 hours per week and was not compensated time and one-half of her regular rate of pay.
Whether Plaintiff and the putative class members were employees or independent contractors is a common question which will turn primarily on evidence of “the degree of control” Defendants exercised over them.
To the extent the fact finder determines the putative class members are employees, the question of whether they were unlawfully denied overtime pay will similarly be subject to common proof. Again, there is no dispute that Defendants did not pay overtime wages to any workers classified as independent contractors. (ECF No. 116-5 (KISS Rule 30(b)(6) Dep.) at 64:1-17.) Moreover, all were paid hourly at rates set by Defendants, as reflected in KISS‘s payroll records. (E.g., ECF No. 116-6; see also ECF No. 116-5 (KISS Rule 30(b)(6) Dep.) at 105:14-106:2.) Whether the putative class members were unlawfully denied overtime pay can thus be largely—if not entirely—resolved by reference to KISS‘s payroll records, should Defendants be found liable for misclassifying their employees. While the number of hours worked by the putative class members will necessarily vary week-to-week, courts have routinely held that “[t]he issue
Still, Defendants argue that “a class premised on hours worked is subject to individual, daily inquiries” because the determination of which employees actually worked overtime will be obfuscated by (1) asserted instances of timesheet fraud and (2) the fact that “timekeeping methods . . . were conflicting, different, or changed over time.” (ECF No. 118 at 6-8.) The Court is unpersuaded that either of these considerations injects individualized questions into the litigation that will predominate over questions common to the class.
The first issue relates in part to Gamboa‘s purported admission that “she herself reported more hours on her timesheet than she had actually worked,” which the Court has already addressed and will not revisit. (Id. at 7.) However, Gamboa also testified at deposition “that a supervisor at KISS would inflate hours for potential class members in the supervisor‘s ‘inner circle, even if they didn‘t work.‘” (Id. (quoting ECF No. 118-2 (Gamboa Dep.) at 77:22-79:18, 140:5-142:21).) As a result, Defendants contend individualized inquiries will be required to determine “whether hours were reported properly.” (ECF No. 118 at 7-8.)
The scope of this alleged artificial inflation of hours, however, appears limited. The record supports that a mere five individuals were involved in this alleged incident of timesheet inflation, the identities of whom Defendants appear to be well-aware. Indeed, Defendant Evans has pressed criminal charges against each of them for wage theft. (See ECF No. 124-1 (KISS Rule 30(b)(6) Dep.) at 59:3-60: (“Q: How many people who worked for you do you intend to press criminal charges against? / A: I believe it‘s five. . . .Q: When do you intend to contact law enforcement on these charges? / A: We‘ve already commenced that. . . . Q: What did you tell the police? / A: People are having wage theft from my business.“).) Thus, to the extent particularized inquiries into the accuracy of any timesheets is necessary, it will be limited to those five individuals’ timesheets.
Defendants next argue that the inquiry into whether the class members worked “overtime hours” will necessarily be individualized based on the putative class members’ testimony that “timekeeping methods within the inventory and production departments were conflicting, different, or changed over time.” (ECF No. 118 at 8.) But, based on the Court‘s review of the cited testimony, all of the proposed class members testified that either a supervisor recorded their entry and exit times, or they self-recorded their entry and exit times. (See, e.g., ECF No. 118-2 (Gamboa Dep.) at 35:3-6 (testifying that “in production, the supervisor was writing the entry hour and the exit hour of each worker” and in “inventory, . . . each of us recorded entry and exit time“); ECF No. 118-3 (Hernandez Dep.) at 77:2-7 (testifying “Mr. Antonio would write down the time that [she] came in and the time that [she] left“).) The Court fails to see why this means “each time record would need to be litigated to verify whether individuals or their supervisors accurately reported hours or inflated them.” (ECF No. 118 at 8.) Defendants effectively ask the Court not to “hold [KISS] to its own records,” which would “amount to excusing it from its record-keeping duty” under Colorado
The Court thus finds that the questions of law or fact common to class members predominate over any questions affecting only individual members.
F. Rule 23(b)(3) Superiority
Finally, the Court must determine whether “a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.”
Plaintiff submits that, given “[her] claims and those of the class arise from the same legal grievances” and the common question of “whether Defendants’ misclassifications of its workers violated the law will be litigated repetitively if the[ir] claims are not aggregated” (ECF No. 116 at 13), a class action is the superior method for adjudicating the state and local overtime claims “[i]n terms of efficiency for the parties and for the court,” Bass v. PJCOMN Acquisition Corp., 2011 WL 2149602, at *3-4 (D. Colo. June 1, 2011). She also contends that “concentration of claims here is desirable as all Defendants reside in and all claims arose in this judicial district.” (ECF No. 116 at 13.) Moreover, Plaintiff points out that courts in this District have found a class action to be a superior method “where the small claims of parties with limited resources are otherwise unlikely to be pursued,” as is the case here. (Id. at 13-14); see Stanley v. Orthopedics & Spine Center, P.C., 2024 WL 1743497, at *6 (D. Colo. Apr. 23, 2024) (“the court deems a class action a superior method for adjudicating the relatively small claims of low-wage workers“); Hunter v. CC Gaming, LLC, 2020 WL 13444205, at *4 (D. Colo. May 12, 2020) (“courts in this District have repeatedly recognized . . . a class action is superior where the small claims of parties with limited resources are otherwise unlikely to be pursued“). Particularly in view of its findings as to ascertainability, commonality, and predominance herein, the Court agrees that these considerations weigh in favor of finding a class action is the superior method for adjudicating Plaintiff and the proposed class members’ state and local wage claims.
Plaintiff also asserts a class action is superior because “the absent class members have shown no interest in controlling the litigation of separate actions.” (ECF No. 116 at 13.) However, Defendants argue the inverse is also true. (ECF No. 118 at 9-12). That is, the lack of participation in the FLSA collective action demonstrates “a total disinterest among putative class members to pursue these state law claims on a classwide basis,” which weighs against certifying a class action. (Id. at 10.)
However, as Plaintiff aptly points out in reply, the Garcia court noted “the absence of allegations or evidence of improper behavior towards the class members.” 274 F.R.D. at 517. Defendants respond that “[t]here is no allegation of improper behavior toward class members.” (ECF No. 118 at 11.) But the record before the Court indicates otherwise.
For instance:
- Gamboa alleges that: “On May 13, 2022, three days after being served with the original Complaint, [] Evans instructed one of his employees to contact [] Gamboa and to tell her that he knew where she lived, he knew who her new employer was, he knew what kind of car she drove, that he could have [] Gamboa jailed and deported, and that she should drop her lawsuit against him.” (ECF No. 88 at ¶ 30.)
- As discussed, Evans testified at deposition in February 2023—before conditional certification of the FLSA collective action—that KISS had pressed criminal charges against five workers for alleged wage theft “[t]hree, four weeks ago.” (ECF No. 124-1 (KISS Rule 30(b)(6) Dep.) at 59:3-60:15.0.)
- In October 2023—during the FLSA collective action opt-in period—Denver Labor opened an “investigation to determine whether KISS, Mr. Evans, and an unknown number of John/Jane Does had engaged in unlawful retaliatory behavior” against KISS workers. (ECF No. 124-6 at 3.)
- Although the January 2024 Event discussed at length in a prior Order (ECF No. 115) occurred after the FLSA collective action opt-in period had already closed, KISS workers conveyed to a volunteer attorney present that “they were not surprised Mr. Cole had shown up because that is the way he is, and the way they were used to being treated by him.” (ECF No. 99-5 (Jenks Decl.) at ¶ 16.)
In marshaling these examples, the Court expresses no opinion on the merits of Gamboa and Opt-In Plaintiff Hernandez‘s individual retaliation claims, which Evans will have an opportunity to refute through the course of this litigation. However, for the purposes of class certification, they are more than sufficient to persuade the Court
The Court thus finds a class action is the superior method for resolving Plaintiff and the putative class members’ wage claims arising under state and local law. And, having now found all requisites of
G. Appointment of Counsel
Under
- the work counsel has done in identifying or investigating potential claims in the action;
- counsel‘s experience in handling class actions, other complex litigation, and the types of claims asserted in the action;
- counsel‘s knowledge of the applicable law; and
- the resources that counsel will commit to representing the class.
Plaintiff‘s counsel Andrew H. Turner and Brandt Milstein of Milstein Turner, PLLC seek appointment as class counsel. (ECF No. 116 at 12.) They state that, together, they “have worked more than 419 hours on the instant class action” and “will continue to dedicate all necessary resources to bring this case to its conclusion.” (Id.; see also ECF No. 116-8 (Milstein Decl.) at ¶ 11; ECF No. 116-13 (Turner Decl.) at ¶ 11.) They submit they “are very experienced in complex class wage litigation and have consistently been appointed Class Counsel in class actions in this District and elsewhere.” (ECF No. 116 at 12; see also ECF No. 116-8 (Milstein Decl.) at ¶ 10 (citing six cases in which he has been appointed class counsel); ECF No. 116-13 (Turner Decl.) at ¶¶ 6-9 (describing experience litigating labor standards cases since prior to January 2005 and citing fifteen cases in which he has been appointed class counsel).) Based on the foregoing, the Court readily finds that Mr. Turner and Mr. Milstein satisfy
Nevertheless, the Court also “may consider any other matter pertinent to counsel‘s ability to fairly and adequately represent the interests of the class.”
A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:
(1) The testimony relates to an uncontested issue;
(2) The testimony relates to the nature and value of legal services rendered in the case; or
(3) Disqualification of the lawyer would work substantial hardship on the client.
The Court is unconvinced. Even to the extent that proposed class counsel has personal knowledge of the events partially forming the basis for Gamboa and Opt-In Plaintiff Hernandez‘s retaliation claims, Defendants do not argue that Milstein and Turner are necessary witnesses. For the purposes of
In previously denying Defendants’ efforts to depose Plaintiff‘s counsel about the January 2024 Event, the Court explained that it was “wholly unpersuaded” Defendants possessed no other means to obtain the information sought. (ECF No. 115 at 12.) Defendants have still made no effort to explain why such alternative sources of information about the January 2024 Event are unavailable or else insufficient. From this the Court concludes that Plaintiff‘s counsel‘s testimony is not necessary within the meaning of
Accordingly, the Court finds that Plaintiff‘s counsel at Milstein Turner, PLLC will “fairly and adequately represent the interests of the class” and their request to be appointed class counsel is granted.
H. Proposed Class Notice
Finally, Plaintiff asks the Court to approve the proposed notice to the class substantially in the form attached as Exhibit 15 to the Motion. (ECF No. 116-14). Plaintiff states that, once approved, she will “secure a certified translation of this notice in Spanish,” which will then “be distributed . . . by first-class mail and via text message to all identified class members.” (ECF No. 116 at 14.)
Plaintiff‘s plan of distribution facially complies with
Accordingly, the Court reserves ruling on Plaintiff‘s proposed plan for the distribution of the class notice pending Plaintiff‘s filing of a supplemental motion in which she provides additional information on her proposed plan of distribution, as
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
- The Renewed Motion for Class Certification (ECF No. 116) is GRANTED;
- The Court CERTIFIES a
Rule 23 class as to Plaintiff‘s wage claims arising under state and local law defined as: “All production, inventory and shipping workers who worked overtime hours and who were not paid overtime wages between May 9, 2019 and the present.“; - Pursuant to
Rule 23(g) , the Court APPOINTS Plaintiff‘s counsel at Milstein Turner, PLLC as class counsel; and - Plaintiff is DIRECTED to file a supplemental motion setting forth in greater detail her proposed plan for distribution of the class notice by no later than April 14, 2025.
Dated this 2nd day of April, 2025.
BY THE COURT:
William J. Martínez
Senior United States District Judge