Judge grants preliminary approval of $13M deal to settle Vail Resorts class-action lawsuits | SummitDaily.com

Judge grants preliminary approval of $13M deal to settle Vail Resorts class-action lawsuits

Attorneys in similar proposed class-action lawsuit filed in Colorado continue efforts to block settlement deal

Kelli Duncan
Vail Daily
Keystone Resort employees greet a skier as she walks to the River Run Gondola on the resort's opening day Oct. 22.
The resort’s owner, Vail Resorts, is named in multiple class-action lawsuits.

A judge has granted preliminary approval of a $13.1 million deal offered by Vail Resorts to settle five wage and labor lawsuits in California, likely quashing a similar class-action lawsuit filed in Colorado.

The settlement deal, which was unveiled in court filings at the start of January, was granted preliminary approval by a judge in California state court Feb. 1, according to court documents obtained by the Vail Daily. The settlement does not just apply to the plaintiffs of the five California cases directly involved in the deal; it would settle any and all allegations that the company failed to reimburse employees for equipment or pay employees for all hours worked over the past three to four years.

The deal offers $13.1 million spread over about 100,000 Vail Resorts employees nationwide. However, this amount quickly dwindles to $8.24 million after the deduction of administrative costs and $4.36 million in legal fees — a number that the California plaintiffs’ attorneys say is “appropriate” and “in line with market rates.”

If the remaining $8.24 million were to be distributed evenly across the 100,000 class members, it would shake out to about $82 per person. The settlement funds would not be doled out evenly across class members, though, and instead would use an “allocation formula” to determine how much each employee should receive based on how long they have worked for Vail Resorts, when and where they worked, and the position or positions they worked in, giving twice as many points in the formula to people who work or worked in “snow positions.”

Any employee who cashes the settlement check they receive in the mail gives up their right to bring similar legal action against Vail Resorts for the specified time period of three to four years depending on the state they work in.

“We dispute the accuracy of the claims raised by the plaintiffs, however, to avoid the time-consuming and costly nature of further litigation, the parties involved have negotiated a tentative settlement and will seek court approval to finalize and ensure the outcome is a fair resolution to all,” Jamie Alvarez, director of corporate communications for Vail Resorts, said in a written statement provided to the Vail Daily in early October.

Vail Resorts and its attorneys have not responded to requests for comment on the ongoing lawsuits since Oct. 5.

The fate of the Colorado case

Two attorneys who represent employees at the heart of a similar proposed class-action lawsuit filed in Colorado have continued efforts to block the settlement deal, saying they would have pushed for a higher settlement amount and for changes to Vail Resorts’ compensation policies.

The fate of the case filed in Colorado hangs upon whether the $13.1 million deal is granted final approval by the California state judge, a decision that will be made in the coming weeks.

The attorneys for the plaintiffs in the Colorado case have argued that the complaints brought forward in their case are broader and more comprehensive than those brought forward in any of the five California cases.

The attorneys, Edward Dietrich and Benjamin Galdston, have declined to comment on the progression of the lawsuits.

Their case is similar to the California cases, which were combined under one case for the purposes of negotiating a settlement, as both allege that Vail Resorts violated the federal Fair Labor Standards Act as well as state labor laws in a number of states across the country.

Both complaints allege that the company failed to pay employees for all hours worked as well as for overtime hours, meals, rest periods and training. They also allege the company does not properly reimburse employees for the equipment needed to perform the basic functions of their jobs, such as skiing/snowboarding gear and cellphone costs.

Pushing back

With their case effectively stuck, the two Colorado-based attorneys filed a motion to intervene in the California case in December with the explicit intent to try to block the settlement proceedings.

In the motion, the attorneys argued that the settlement deal cannot truly “resolve all claims” against Vail Resorts if the claims of their plaintiffs are sidelined and left out of the proceedings. They claimed that Vail Resorts did not give them enough notice that similar proposed class action lawsuits had been filed in California as is required by law.

Vail Resorts did not file a notice alerting Dietrich and Galdston about the California cases until Aug. 12, according to court documents filed in the Colorado case. By this point, the company had already extended an initial settlement offer and the notice was filed alongside the motion to stay the Colorado case.

“… Vail deliberately avoided disclosing even the existence of the later-filed (California lawsuits), let alone its secret settlement negotiations, in order to secure a sweetheart deal with compliant plaintiffs in the California actions,” Dietrich wrote in a legal brief supporting their motion to intervene.

Dietrich and Galdston also highlighted Vail Resorts’ decision to pull the settlement proceedings out of federal court and into state court in the “eleventh hour” of the proceedings when the California cases were originally being litigated in the Eastern District of California, calling this “highly suspicious.” For these reasons, “mandatory intervention” in the California case “is warranted,” they argued in the brief.

Their motion to intervene in the case was denied by the California state judge, Michael J. McLaughlin, but they filed a motion to appeal that decision March 7. The two attorneys also filed an objection to the preliminary approval of the settlement Jan. 18.

Two days later, McLaughlin granted a request from Vail Resorts to have the objection “stricken” or removed from the court’s official record of the case.

McLaughlin granted preliminary approval of the settlement deal less than two weeks later.

What comes next

Matt Elston, a part-time ski instructor for Vail Resorts who is also an inactive member of the California bar association, said he does not plan to cash his settlement check if and when the time comes that he receives it in the mail.

“Obviously it’s low, I mean, from my perspective,” said Elston. “It really depends on how they view some of this stuff going forward. Are they going to be paying for what they really should be paying for going forward?”

Vail Resorts employees across the country will soon find themselves in this position of deciding whether to rip up their settlement checks or cash them and give up their legal rights to bring claims against Vail Resorts for past mistreatment regarding wage and labor laws.

Some class-action settlements require class members to “opt in” to receive settlements, but this one requires that class members “opt out” by filling out a form or by choosing not to deposit the check they receive. This method of opting into a settlement is known as a “back-of-check release.”

“This approach will provide greater total compensation to the class because participation rates are typically much higher with back-of-check releases,” Jennifer Liu, lead attorney for the California plaintiffs, said in the request for preliminary approval of the settlement filed in January.

Liu and Rebecca Peterson-Fisher, the attorneys who filed the preliminary approval papers on behalf of the California plaintiffs, also did not respond to a request for comment.

The settlement deal is currently being litigated in a California state court in El Dorado County, home to a Vail Resorts subsidiary called Heavenly Mountain Resort. The two parties are now working through a third-party “settlement administrator” to coordinate the logistical details of the settlement as they prepare to ask the court for final approval of the deal.

The settlement administrator has already begun the work of sending out “notice packets” with information about the deal to Vail Resorts employees. The final date for employees to “opt out of or object to the settlement” is set for May 21.

Both parties will then take a few weeks to “review the substance of any objections that are received” and to give responses to said objections ahead of the hearing for final approval of the settlement deal, which is set to be held on either June 17 or June 24.

Meanwhile, the extended stay on the Colorado case will expire Friday, but it is still unclear what, if anything, will come of that lawsuit.

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