Judge hears harsh criticisms of Vail Resorts labor lawsuit settlement, continues approval hearing to Aug. 19
John LaConte/Vail Daily
A fair calculation of wages owed to Vail Resorts workers would be easily found by viewing company records of employees’ scheduled hours, and then subtracting the hours for which those employees were actually paid.
That and numerous other objections were made at a Friday court hearing in South Lake Tahoe regarding the preliminary settlement of a fair labor standards case against Vail Resorts.
The case, Hamilton v. Heavenly Valley, involves more than 100,000 workers across 16 states. The deal offers $8.24 million to a class of about 100,000 Vail Resorts employees while granting $4.36 million to attorneys for administrative costs and legal fees. Workers say the company is responsible for the failure to provide proper meal and/or rest periods; failure to provide accurate employment records upon request; not counting things like the necessary gondola or shuttle rides as time punched on the timecard, and numerous other violations.
Ski instructor Bryan Griffith, who works at a Vail Resorts property in Ohio, said during Friday’s hearing that while being present at the resort for four to seven hours, sometimes he would only be paid for one hour, “the one single hour that I was in a lesson … we were asked to be present, and then not compensated for the time.”
Griffith said his settlement offer was $7.46 — less than the $9 in fees he paid to the court in filing his objection. Griffith said the number was 0.25% of his likely damages and urged Judge Michael McLaughlin to reject the settlement.
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McLaughlin said he had postponed the final settlement hearing to Aug. 19 in order to hear objections like Griffith’s. The judge thanked Griffith and others for their well-thought-out and well-stated presentations.
“Sometimes when you have issues that are very important to folks like this, especially when you have folks coming on to object, it can get a little heated,” McLaughlin said.
Other objections included those of Vail Resorts employees represented by attorney Ed Dietrich, who is also representing clients in a separate case, Quint v. Vail Resorts, in Colorado.
Dietrich said the settlement in the Hamilton case should be rejected due to the fact that the settlement notice sent out to workers didn’t inform them of the option they had to join the Quint case.
Had those workers known that by opting out of Hamilton, they might have a chance at a higher payout in Quint, more people would have opted out, Dietrich said.
Dietrich also pointed out that opting into the case by clicking a button on a website was much easier than opting out, which required filling out forms.
Nevertheless, the more than 1,500 people who did take the time to get the form, fill it out, and mail it to the claims administrator are significant when compared to cases of similar size, Dietrich said.
One of the 1,517 people who opted out, Heavenly ski instructor Thomas “Tad” Dodson, was allowed to appear before the court on Friday not to object, but to offer information about a deadline extension requested by the attorneys representing the class. On May 6, the deadline to opt in or opt out of the case was extended to May 20.
Dodson said that plaintiffs’ attorney Jen Liu, in her motion to seek the deadline extension, claimed to be made aware of two issues regarding the settlement notice on or about April 25, necessitating the extension.
But Dodson said Liu acknowledged one of the issues to him in an email on April 4.
Dietrich also brought up the deadline extension, saying while it created a longer window to opt in or out, it attempted to create a shorter window to object, as the original settlement notice did not reference a May 20 objection deadline, but the May 6 deadline extension did.
“According to the notice, there was no deadline to file or submit an objection until the hearing today,” Dietrich said. “So in my opinion the order that said we’re extending the deadline from May 6 to May 20, actually it extended the exclusion or the opt-in deadline, but it shortened the objection deadline because in the notice the objection deadline was June 17.”
Dodson also said Liu and the plaintiffs’ attorneys are suggesting they’ve put more time into reaching this settlement than the case file reveals.
“I’ve read the motion for final approval, and what struck me is the number of times Ms. Liu mentioned the three years of intensive investigation that went into putting this together — it’s mentioned at least five times on the part of plaintiffs’ council,” Dodson said.
Dodson said he reviewed the motion for plaintiffs’ attorneys’ fees and added up the declared hours for every attorney, paralegal and other person involved in the case, and the sum of hours equals about one year of work for one person.
“It just seems odd to me that these years of intensive investigation could have been conducted with less than a man-year of attorney and paralegal and clerk and expert time,” Dodson said.
Griffith also objected to the plaintiffs’ attorneys’ fees in the settlement, pointing out that Liu is billing at $900 per hour when the average civil litigation rate in California is $333 per hour.
“They probably don’t even have $1 million of actual work in this case, but they’re going to walk away with more than $4 million in attorneys fees,” Griffith said.
Dodson said he agreed with Griffith regarding the instructor experience at Vail Resorts, despite the fact that the two employees come from different geographic regions, with Dodson in California and Griffith working at Mad River Mountain in Ohio. Dodson said Vail Resorts relies on the lifestyle attributes of skiing and snowboarding to maintain its workforce on minimal pay and said the fact that some of the issues raised were resolved in the 2021-22 season represents a tacit admission that the Hamilton complaint has merit.
Attorney Evan R. Moses, representing Vail Resorts, said the experiences of Griffith and Dodson shouldn’t be extrapolated to represent the whole class, calling their examples dramatic outliers.
In a brief submitted June 14, Dietrich offered data from other cases, suggesting that class-action settlements of this size very rarely see people taking any initiative at all to object, opt in, or opt out. While his brief was rejected on June 16, Dietrich was still able to make his point in court on Friday.
“Given the discrepancy of how easy they made it to opt in — just click a button — versus you having to fill out and send in a form, the 1,500-plus people that took the time to do that is very, very significant,” Dietrich told the judge. “And the brief we submitted that you struck goes through the data from law review articles and other cases and asks you to compare the 1,500 to benchmarks of other cases.”
Moses also offered some anecdotal testimony as to the “substantial work being done” by Liu and her team, as he was on the receiving end of it.
Liu said while she appreciates the effort put in by the objectors, they have a difference of opinion regarding the risk in the case.
“Settlements represent not a full accounting for what people’s maximum damages are, what their actual damages are, but a settlement, that reflects the risks involved in the case,” she said. “In this case, there were significant risks.”
McLaughlin said the court will consider all the objections and continued the motion for final approval of the class settlement to Aug. 19 at 1:30 p.m.
