Case 1:14-cv-02887 Document 1 Filed 10/22/14 USDC Colorado Page 1 of 21
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No.:
ALEJANDRO MENOCAL, MARCOS BRAMBILA, GRISEL XAHUENTITLA, HUGO HERNANDEZ, LOURDES ARGUETA, JESUS GAYTAN, OLGA ALEXAKLINA, DAGOBERTO VIZGUERRA and DEMETRIO VALERGA on their own behalf and on behalf of all others similarly situated,
Plaintiffs,
v.
THE GEO GROUP, INC.,
Defendant.
CLASS ACTION COMPLAINT FOR UNPAID WAGES AND FORCED LABOR ______________________________________________________________________
The Plaintiffs in this case are current and former civil immigration detainees who
were incarcerated and employed by the GEO Group, Inc. (GEO), a for-profit,
multinational corporation engaged in the business of incarceration. GEO owns and
operates the Aurora Detention Facility, a 1,500 bed detention center located in Aurora,
CO. When it built and expanded the Aurora Detention Facility, GEO promised to create
of hundreds of quality jobs in Aurora. However, GEO unlawfully uses detainees to
clean, maintain, and operate the facility. GEO pays detainees $1 per day, or no wages at all, for their labor. In 2013, The GEO Group, Inc. reported $1.52 billion in
total revenues.

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GEO violated Colorado’s Minimum Wage Order when it paid its detained employees one dollar ($1) per day for their labor. Plaintiffs seek to recover, on their own behalf and on behalf of all others similarly situated, the difference between the wages they earned and the $1 per day they were paid.
In addition, GEO violated federal law prohibiting forced labor when it forced Plaintiffs and others to work, for no pay whatsoever, cleaning the “pods” where they were housed. GEO coerced detainees to clean pods by threatening to put those who refused to work (for no pay) in “the hole,” or solitary confinement. In 2011, The United Nations Special Rapporteur on Torture called for the end of solitary confinement, citing the severe mental pain and suffering it causes.1
GEO’s pay policies violate principles of justice, equity, and good conscience. GEO was unjustly enriched when it paid its employees $1 per day, or nothing at all, for their labor.
STATEMENT OF THE CASE 1. In the course of their employment by GEO, Plaintiffs and others scrubbed bathrooms, showers, toilets, and windows throughout GEO’s Aurora facility. They cleaned and maintained GEO’s on-site medical facility, cleaned the medical facility’s toilets, floors and windows, cleaned patient rooms and medical staff offices, swept, mopped, stripped, and waxed the floors of the medical facility, did medical facility laundry, swept, mopped, stripped, and waxed floors throughout the facility, did detainee laundry, prepared and served detainee meals, assisted in preparing catered meals for law enforcement events sponsored by GEO, performed clerical work for GEO, prepared clothing for newly arriving detainees, provided barber services to detainees, ran the 1 See also, Rick Raemisch, My Night in Solitary, N.Y. Times, Feb. 20, 2014.
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facility’s law library, cleaned the facility’s intake area and solitary confinement unit, deep cleaned and prepared vacant portions of the facility for newly arriving detainees, cleaned the facility’s warehouse, and maintained the exterior and landscaping of the GEO building, inter alia.
2. Defendant paid Plaintiffs and all its other detainee-employees one dollar ($1) per day for their above-listed labor.
3. Defendant thus violated Colorado’s Minimum Wage Order (“MWO”) because that Order requires employers like GEO to pay their employees at least the statutory minimum wage for each hour worked. 7 CCR 1103-1.
4. As a result of Defendant’s violation of the MWO, Plaintiffs seek actual damages, on their own behalf and on behalf of all Defendant’s other similarly-situated employees, as well as costs of suit.
5. GEO or its agents also randomly selected six detainees per pod each day and forced them to clean the pods. In the handbook that GEO distributed to the detainees, GEO announced a “Housing Unit Sanitation” policy informing the people held at the facility that “[e]ach and every detainee must participate in the facility’s sanitation program.”
6. GEO or its agents forced Plaintiffs and other civil immigration detainees to clean the facility’s pods for no pay and under threat of solitary confinement as punishment for any refusal to work.
7. Defendant thus violated federal law prohibiting forced labor. 18 U.S.C. § 1589.
8. As a result of Defendant’s violation of the federal forced labor statute,
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Plaintiffs seek actual damages, punitive damages, and mandatory restitution, on their own behalf and on behalf of all Defendant’s other similarly-situated detainees, as well as attorneys fees and costs, pursuant to 18 U.S.C. §§ 1593 and 1595.
9. Finally, GEO was unjustly enriched when it paid its employees $1 per day for their labor. GEO’s pay policies violate principles of justice, equity, and good conscience.
PARTIES, JURISDICTION, AND VENUE 10. Plaintiff Alejandro Menocal worked at Defendant’s facility from approximately June, 2014 through September, 2014. 11. Plaintiff Marcos Brambila worked at Defendant’s facility from approximately December, 2013 through October, 2014. 12. Plaintiff Grisel Xahuentitla worked at Defendant’s facility from approximately May, 2014 through September, 2014. 13. Plaintiff Hugo Hernandez has been working at Defendant’s facility since approximately December, 2013 through the present. 14. Plaintiff Lourdes Argueta has been working at Defendant’s facility since approximately May, 2014 through the present. 15. Plaintiff Jesus Gaytan has been working at Defendant’s facility since approximately April, 2014 through the present. 16. Plaintiff Olga Alexaklina worked at Defendant’s facility from approximately January, 2013 through October, 2014. 17. Plaintiff Dagoberto Vizguerra has been working at Defendant’s facility since approximately April, 2014 through the present. 18. Plaintiff Demetrio Valerga worked at Defendant’s facility from approximately
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September, 2013 through July, 2014. 19. Defendant The GEO Group, Inc. is a registered Florida corporation with a
principal office street address of 624 NW 53rd Street, Suite 700, Boca Raton, FL 33487. 20. Jurisdiction is conferred upon this Court by 28 U.S.C. § 1331, this case
arising under 18 U.S.C. § 1595. 21. Jurisdiction is conferred upon this Court by 28 U.S.C. § 1332(d), as the
putative members of the alleged classes seek damages in excess of $5,000,000.00. 22. Plaintiffs request that this Court exercise supplemental jurisdiction over their
state law claims arising under the Colorado Minimum Wage Order and the Colorado common law. 28 U.S.C. § 1367.
23. Venue is proper pursuant to 28 U.S.C. § 1391(b)(2) because the events or omissions giving rise to the claims occurred in the District of Colorado.
RULE 23 CLASS ALLEGATIONS AS TO THE “MINIMUM WAGE CLASS” 24. Plaintiffs bring their Count I MWO claim, below, as a Fed. R. Civ. P. 23 class action, on their own behalf and on behalf of a class for which Plaintiffs seek certification. 25. Plaintiffs’ Count I MWO claim concerns Defendant’s employment of the Plaintiffs and others similarly situated in GEO’s “Detainee Voluntary Work Program”. Plaintiffs’ Count I MWO claim does not concern the mandatory, uncompensated work Plaintiffs and others similarly situated performed under Defendant’s Housing Unit Sanitation Policy. 26. Pending any modifications necessitated by discovery, Plaintiffs preliminarily define this Minimum Wage Class as follows:
All civil immigration detainees who performed work for GEO at the Aurora Detention Facility in the “Detainee Voluntary Work Program” between
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October 22, 2012 and the present. 27. This action is properly brought as a class action for the following reasons: 28. All of Defendant’s employees in the “Detainee Voluntary Work Program” were uniformly paid $1/day of work and were thereby denied required minimum wages for all hours worked. 29. The class is so numerous that joinder of all the potential class members is impracticable. Plaintiffs do not know the exact size of the class since that information is within the control of Defendant. However, upon information and belief, Plaintiffs allege that the number of class members exceeds 300. Membership in the class is readily ascertainable from Defendant’s detention and employment records. 30. The operative questions of law and fact regarding the liability of Defendant are common to the class and predominate over any individual issues which may exist. Common questions of law and of fact include: whether Plaintiffs and the class members were entitled to the protections of the MWO, whether Plaintiffs and the class members performed compensable work, and whether Plaintiffs and the class members were paid $1 per day for their labor. The claims asserted by Plaintiffs are typical of the claims of all class members. This is an uncomplicated case of unpaid minimum wages. The claim at issue arises from a policy applicable to all members of the class. Each member of the class suffered the same violations that give rise to Plaintiffs’ claims. A class action is superior to other available methods for the fair and efficient adjudication of this controversy because numerous identical lawsuits alleging identical causes of action would not serve the interests of judicial economy. 31. The representative Plaintiffs will fairly and adequately protect the interests of
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the members of the class. Because all class members were subject to the same violations of law perpetrated by Defendant, the interests of absent class members are coincident with, and not antagonistic to, those of Plaintiffs. The representative Plaintiffs will litigate the claims fully.
32. The representative Plaintiffs are represented by counsel experienced in wage and hour class action litigation.
33. The prosecution of separate actions by individual class members would create a risk of inconsistent or varying adjudications with respect to individual class members and would establish incompatible standards of conduct for Defendant. If Defendant’s $1 per day policy was unlawful as applied to the representative Plaintiffs, it was unlawful as applied to the absent members of the putative class.
34. Those class members who worked for Defendant for short periods of time have small claims which they are unlikely to bring individually. All members of the class have claims which are factually very similar and legally identical to Plaintiffs’. Thus, the interest of members of the class in individually controlling the prosecution or defense of separate actions is slight, while the broad remedial purpose of the MWO counsels toward vindicating the rights of those employees with small claims as part of the larger class.
35. Plaintiffs are unaware of any members of the putative class who are interested in presenting their claims in a separate action.
36. Plaintiffs are unaware of any pending litigation commenced by members of the class concerning the instant controversy.
37. It is desirable to concentrate this litigation in this forum because all claims
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arose in this Judicial District. 38. This class action will not be difficult to manage due to the uniformity of claims
among the class members and the susceptibility of wage and hour cases to both class litigation and the use of representative testimony and representative documentary evidence.
39. The contours of the class will be easily defined by reference to the detention and payroll documents Defendant created and maintained.
COUNT I Colorado Minimum Wages of Workers Act, § 8-6-101, et seq. as implemented by the Colorado Minimum Wage Order, 7 CCR 1103-1 40. Plaintiffs repeat and reallege each of the allegations contained in paragraphs 1-23 above as if fully set forth herein. 41. As set forth in paragraphs 24-39, supra, Plaintiffs allege this claim on their own behalf and on behalf of all others similarly situated pursuant to Fed. R. Civ. P. 23. 42. This Count concerns Defendant’s employment of the Plaintiffs and others similarly situated in GEO’s “Detainee Voluntary Work Program”. This Count does not concern the mandatory, uncompensated work Plaintiffs and others similarly situated performed under Defendant’s Housing Unit Sanitation policy. 43. Defendant The GEO Group, Inc. was Plaintiffs’ and others’ “employer” as that term is defined by the MWO because it employed Plaintiffs and others in Colorado. 7 CCR 1103-1(2). 44. The GEO Group operates a Retail and Service business or enterprise covered by the Wage Order. 7 CCR 1103-1(1)(A). GEO sells the service of incarcerating people. According to GEO, it “is the world’s leading provider in the delivery
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of diversified correctional, detention, and residential treatment services to government agencies around the globe.” GEO generates 50% or more of its annual dollar volume of business from the sale of such services.
45. The GEO Group operates a Health and Medical business or enterprise covered by the Wage Order. 7 CCR 1103-1(1)(D). GEO provides health services to the detainee population at the Aurora Detention Facility.
46. The GEO Group operates a Food and Beverage business or enterprise covered by the Wage Order. 7 CCR 1103-1(1)(C). GEO prepares and offers for sale food for consumption both on and off the premises of its Aurora facility. GEO produces food at the Aurora Detention Facility for consumption by outside entities, that conduct training exercises at the Aurora Detention Facility. GEO also prepares and offers for sale food and beverages at its on-site commissary.
47. Plaintiffs were engaged in the performance of work connected with or incidental to GEO’s covered business or enterprise.
48. Plaintiffs and others were GEO’s “employees” as that term is defined by the MWO because they performed labor for the benefit of GEO in which GEO commanded when, where, and how much labor they would perform. 7 CCR 1103-1(2).
49. GEO violated the MWO when it refused to pay Plaintiffs and others minimum wages for all hours worked. 7 CCR 1103-1(4).
50. Plaintiffs performed numerous hours of work for GEO in GEO’s “Detainee Voluntary Work Program”. GEO did not compensate Plaintiffs’ work at the required Colorado State Minimum Wage rates specified in the applicable, annual Wage Orders. GEO compensated Plaintiffs’ work in the “Detainee Voluntary Work Program” at the rate
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of $1/day. 51. Plaintiffs and others have suffered lost wages and lost use of those wages in
an amount to be determined at trial. 52. Plaintiffs and others are entitled to recover unpaid minimum wages and costs
of the suit. C.R.S. § 8-6-118; 7 CCR 1103-1(18). RULE 23 CLASS ALLEGATIONS AS TO THE “FORCED LABOR CLASS”
53. Plaintiffs bring their Count II Forced Labor claim, below, as a Fed. R. Civ. P. 23 class action, on their own behalf and on behalf of a class for which Plaintiffs seek certification.
54. Plaintiffs’ Count II Forced Labor claim concerns the mandatory, uncompensated work Plaintiffs and others similarly situated performed under Defendant’s Housing Unit Sanitation policy. Plaintiffs’ Count II Forced Labor claim does not concern the work the Plaintiffs and others performed within GEO’s “Voluntary Detainee Work Program”.
55. Pending any modifications necessitated by discovery, Plaintiffs preliminarily define this Forced Labor Class as follows:
All detainees who were forced to perform uncompensated work for GEO at the Aurora Detention Facility under Defendant’s Housing Unit Sanitation policy between October 22, 2004 and the present. 56. This action is properly brought as a class action for the following reasons: 57. All of the members of the Forced Labor Class were forced to work for GEO for no pay during their detention. 58. The class is so numerous that joinder of all the potential class members is impracticable. Plaintiffs do not know the exact size of the class since that information is
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within the control of Defendant. However, upon information and belief, Plaintiffs allege that the number of class members exceeds 1000. Membership in the class is readily ascertainable from Defendant’s detention records.
59. The operative questions of law and fact regarding the liability of Defendant are common to the Class and predominate over any individual issues which may exist. Common questions of law and of fact include: whether Defendant’s policy of requiring Plaintiffs and the class members to clean the cells on their pods under threat of solitary confinement violated 18 U.S.C. § 1589 and whether Plaintiffs and the class members were not paid for their work cleaning cells. The claims asserted by Plaintiffs are typical of the claims of all of the Class Members. The claim at issue arises from a policy applicable to all members of the class. Each member of the class suffered the same violations that give rise to Plaintiffs’ claims. A class action is superior to other available methods for the fair and efficient adjudication of this controversy because numerous identical lawsuits alleging identical causes of action would not serve the interests of judicial economy.
60. The representative Plaintiffs will fairly and adequately protect the interests of the members of the class. Because all class members were subject to the same violations of law perpetrated by Defendant, the interests of absent class members are coincident with, and not antagonistic to, those of Plaintiffs. The representative Plaintiffs will litigate the claims fully.
61. The representative Plaintiffs are represented by counsel experienced in class action and labor litigation.
62. The prosecution of separate actions by individual class members would
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create a risk of inconsistent or varying adjudications with respect to individual class members which would establish incompatible standards of conduct for Defendant. If Defendant’s forced labor policy was unlawful as applied to the representative Plaintiffs, it was unlawful as applied to the absent members of the putative class.
63. Those class members who worked for Defendant for short periods of time have small claims which they are unlikely to bring individually. All members of the class have claims which are factually very similar and legally identical to Plaintiffs’. Thus, the interest of members of the class in individually controlling the prosecution or defense of separate actions is slight, while the remedial purpose of the Forced Labor Statute counsels toward vindicating the rights of those employees with small claims as part of the larger class.
64. Plaintiffs are unaware of any members of the putative class who are interested in presenting their claims in a separate action.
65. Plaintiffs are unaware of any pending litigation commenced by members of the class concerning the instant controversy.
66. It is desirable to concentrate this litigation in this forum because all claims arose in this Judicial District.
67. This class action will not be difficult to manage due to the uniformity of claims among the class members and the susceptibility of this case to both class litigation and the use of representative testimony and representative documentary evidence.
68. The contours of the class will be easily defined by reference to the detention records Defendant created and maintained.
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COUNT II Forced Labor 18 U.S.C. § 1589 69. Plaintiffs repeat and reallege each of the allegations contained in paragraphs1-23 above. 70. As set forth in paragraphs 53-68, supra, Plaintiffs allege this claim on their own behalf and on behalf of all others similarly situated pursuant to Fed. R. Civ. P. 23. 71. This Count concerns the mandatory, uncompensated work Plaintiffs and others similarly situated performed under Defendant’s Housing Unit Sanitation policy. This Count does not concern the work the Plaintiffs and others performed within Defendant’s “Voluntary Detainee Work Program”. 72. Defendant violated the federal Forced Labor statute when it coerced Plaintiffs and others to work cleaning pods for no pay. 73. Defendant coerced this labor through threats that those who refused to perform such uncompensated work would be subjected to discipline, up to and including solitary confinement. 74. Defendant coerced this labor through a uniform policy subjecting detainees who refused to perform such uncompensated work to discipline, up to and including solitary confinement. 75. Defendant saved costs associated with paying for custodial work by using the uncompensated and coerced labor of Plaintiffs and others to clean cells and living areas.
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76. Defendant provided or obtained the labor or services of Plaintiffs and others by means of physical restraint or threats of physical restraint to Plaintiffs and others. 18 U.S.C. § 1589(a)(1).
77. Defendant provided or obtained the labor or services of Plaintiffs and others by means of serious harm or threats of serious harm to Plaintiffs and others. 18 U.S.C.§ 1589(a)(2).
78. Defendant provided or obtained the labor or services of Plaintiffs and others by means of a scheme, plan, or pattern intended to cause the Plaintiffs and others to believe that, if they did not perform such labor or services, they would suffer serious harm or physical restraint, including solitary confinement. 18 U.S.C. § 1589 (a)(4).
79. Plaintiffs and others similarly situated were victims of forced labor as defined by 18 U.S.C. § 1589.
80. Defendant perpetrated the offense of forced labor against the Plaintiffs and others. 18 U.S.C. § 1595(a).
81. Defendant knowingly benefitted financially from participation in a venture Defendant knew or should have known engaged in unlawful coercion of labor in violation of 18 U.S.C. § 1589.
82. Plaintiffs and others have suffered damages in an amount to be determined at trial.
83. Plaintiffs and others are entitled to recover compensatory and punitive damages. 18 U.S.C. § 1595(a).
84. Plaintiffs and others are entitled to recover mandatory restitution in the full amount of their losses. 18 U.S.C. § 1593.
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85. Plaintiffs and others are entitled to recover their reasonable attorneys fees. 18 U.S.C. § 1595(a).
RULE 23 CLASS ALLEGATIONS AS TO THE “UNJUST ENRICHMENT CLASS” 86. Plaintiffs bring their Count III Unjust Enrichment claim, below, as a Fed. R. Civ. P. 23 class action, on their own behalf and on behalf of a class for which Plaintiffs seek certification. 87. Pending any modifications necessitated by discovery, Plaintiffs preliminarily define this Unjust Enrichment Class as follows:
All civil immigration detainees who performed work for GEO at the Aurora Detention Facility in the “Detainee Voluntary Work Program” between October 22, 2012 and the present. 88. This action is properly brought as a class action for the following reasons: 89. All of Defendant’s employees in the “Detainee Voluntary Work Program” were uniformly paid $1/day of work and Defendant was thereby unjustly enriched. 90. The class is so numerous that joinder of all the potential class members is impracticable. Plaintiffs do not know the exact size of the class since that information is within the control of Defendant. However, upon information and belief, Plaintiffs allege that the number of class members exceeds 300. Membership in the class is readily ascertainable from Defendant’s detention and employment records. 91. The operative questions of law and fact regarding the liability of Defendant are common to the class and predominate over any individual issues which may exist. Common questions of law and of fact include: whether Defendants’ retention of any benefit collected directly and indirectly from Plaintiffs’ and others’ labor violated principles of justice, equity, and good conscience, and whether Plaintiffs and the class
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members were paid $1 per day for their labor. The claims asserted by Plaintiffs are typical of the claims of all class members. This is an uncomplicated case of Defendant procuring very nearly free labor from a detained workforce. The claim at issue arises from a policy applicable to all members of the class. Each member of the class suffered the same violations that give rise to Plaintiffs’ claims. A class action is superior to other available methods for the fair and efficient adjudication of this controversy because numerous identical lawsuits alleging identical causes of action would not serve the interests of judicial economy.
92. The representative Plaintiffs will fairly and adequately protect the interests of the members of the class. Because all class members were subject to the same violations of law perpetrated by Defendant, the interests of absent class members are coincident with, and not antagonistic to, those of Plaintiffs. The representative Plaintiffs will litigate the claims fully.
93. The representative Plaintiffs are represented by counsel experienced in labor class action litigation.
94. The prosecution of separate actions by individual class members would create a risk of inconsistent or varying adjudications with respect to individual class members and would establish incompatible standards of conduct for Defendant. If Defendant’s $1 per day policy was unlawful as applied to the representative Plaintiffs, it was unlawful as applied to the absent members of the putative class.
95. Those class members who worked for Defendant for short periods of time have small claims which they are unlikely to bring individually. All members of the class have claims which are factually very similar and legally identical to Plaintiffs’. Thus, the
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interest of members of the class in individually controlling the prosecution or defense of separate actions is slight.
96. Plaintiffs are unaware of any members of the putative class who are interested in presenting their claims in a separate action.
97. Plaintiffs are unaware of any pending litigation commenced by members of the class concerning the instant controversy.
98. It is desirable to concentrate this litigation in this forum because all claims arose in this Judicial District.
99. This class action will not be difficult to manage due to the uniformity of claims among the class members and the susceptibility of labor cases to both class litigation and the use of representative testimony and representative documentary evidence.
100. The contours of the class will be easily defined by reference to the detention and payroll documents Defendant created and maintained.
COUNT III Unjust Enrichment Colorado Common Law 101. Plaintiffs repeat and reallege each of the allegations contained in paragraphs1-23 above. 102. As set forth in paragraphs 87-101, supra, Plaintiffs allege this claim on their own behalf and on behalf of all others similarly situated pursuant to Fed. R. Civ. P. 23. 103. This Count concerns Defendant’s employment of the Plaintiffs and others similarly situated in GEO’s “Detainee Voluntary Work Program”. This Count does not concern the mandatory, uncompensated work Plaintiffs and others similarly situated performed under Defendant’s Housing Unit Sanitation policy.
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104. By paying Plaintiffs and others $1 per day for all hours worked, Defendant was unjustly enriched at the expense of and to the detriment of Plaintiffs and others.
105. Defendant’s retention of any benefit collected directly and indirectly from Plaintiffs’ and others’ labor violated principles of justice, equity, and good conscience. As a result, Defendant has been unjustly enriched.
106. Plaintiffs and others are entitled to recover from Defendant all amounts that Defendant has wrongfully and improperly obtained, and Defendant should be required to disgorge to Plaintiffs and others the benefits it has unjustly obtained.
107. Plaintiffs and others are entitled to recover exemplary damages. C.R.S. § 1321-102.
WHEREFORE, Plaintiffs pray that: As to their Count I Claim brought under the Colorado Minimum Wages of
Workers Act, as implemented by the Colorado Minimum Wage Order and described in paragraphs 40-52 above, Plaintiffs respectfully request an Order from the Court that:
a. This Count be certified as a class action pursuant to Fed. R. Civ.P. 23; b. Plaintiffs be certified as class representatives of the Minimum Wage Class
as defined in ¶ 26 supra; c. Undersigned counsel be appointed Rule 23 class counsel; d. Prompt notice of this litigation be sent to all potential Minimum Wage
Class members; e. Plaintiffs and the Minimum Wage Class be awarded the unpaid balance of
the full amount of wages due, together with the costs of this suit. C.R.S. § 8-6-118; 7 CCR 1103-1(18).
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f. Plaintiffs and the Minimum Wage Class be awarded such other and further relief as may be necessary and appropriate.
As to their Count II Claim brought pursuant to the Forced Labor Statute 18 U.S.C. § 1589, and described in paragraphs 69-85 above, Plaintiffs respectfully request an Order from the Court that:
a. This Count be certified as a class action pursuant to Fed. R. Civ.P. 23; b. Plaintiffs be certified as class representatives of the Forced Labor Class
as defined in ¶ 56 supra; c. Undersigned counsel be appointed Rule 23 class counsel; d. Prompt notice of this litigation be sent to all potential Forced Labor Class
members; e. Plaintiffs and the Forced Labor Class be awarded compensatory and
punitive damages; 18 U.S.C. § 1595. f. Plaintiffs and the Forced Labor Class be awarded mandatory restitution;
18 U.S.C. § 1593. g. Plaintiffs and the Forced Labor Class be awarded their reasonable
attorneys fees; 18 U.S.C. § 1595. h. Plaintiffs and the Forced Labor Class be awarded such other and further
relief as may be necessary and appropriate.
As to their Count III Claim brought pursuant Colorado common law, and described in paragraphs 102-107 above, Plaintiffs respectfully request an Order from the Court that:
a. This Count be certified as a class action pursuant to Fed. R. Civ.P. 23; b. Plaintiffs be certified as class representatives of the Unjust Enrichment
Class as defined in ¶ 88 supra; c. Undersigned counsel be appointed Rule 23 class counsel;
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d. Prompt notice of this litigation be sent to all potential Unjust Enrichment Class members;
e. Plaintiffs and the Unjust Enrichment Class be awarded compensatory and exemplary damages.
f. Plaintiffs and the Class be awarded such other and further relief as may be necessary and appropriate.
Respectfully submitted,
S/ Brandt Milstein MILSTEIN LAW OFFICE 595 Canyon Boulevard Boulder, CO 80302 303.440.8780 brandt@milsteinlawoffice.com
S/ Andrew Turner BUESCHER, KELMAN & PERERA, P.C. 600 Grant St., Suite 450 Denver, CO 80203 303.333.7751 aturner@laborlawdenver.com
S/ Alexander Hood TOWARDS JUSTICE 601 16th St. Suite C #207 Golden, CO 80401 720.239.2606 alex@towardsjustice.org
S/ Hans Meyer Meyer Law Office, P.C. P.O. Box 40394 Denver, CO 80204 303.831.0817 hans@themeyerlawoffice.com
S/ R. Andrew Free* Of Counsel LAW OFFICE OF R. ANDREW FREE Bank of America Plaza
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Case 1:14-cv-02887 Document 1 Filed 10/22/14 USDC Colorado Page 21 of 21 414 Union St., Suite 900 Nashville, TN 37219 615.244.2202 Andrew@ImmigrantCivilRights.com Attorneys for Plaintiffs
*Motion for pro hac vice admittance forthcoming.
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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge John L. Kane
Civil Action No. 14-cv-02887-JLK
ALEJANDRO MENOCAL, MARCOS BRAMBILA, GRISEL XAHUENTITLA, HUGO HERNANDEZ, LOURDES ARGUETA, JESUS GAYTAN, OLGA ALEXAKLINA, DAGOBERTO VIZGUERRA, and DEMETRIO VALEGRA, on their own behalf and on behalf of all others similarly situated,
Plaintiffs,
v.
THE GEO GROUP, INC.,
Defendant.
MEMORANDUM OPINION AND ORDER
Kane, J.
This matter comes before the Court on Defendant’s Motion to Dismiss (Doc. 11). For the
reasons that follow, the motion is GRANTED in part and DENIED in part.
Background
Plaintiffs are current and former detainees at the Aurora Facility, a private, for-profit
immigration detention facility owned and operated by defendant GEO Group in Aurora, Colorado
under contract with the Federal government. Doc. 1 at p.1. Plaintiffs allege that detainees
participate in a “Voluntary Work Program” at the facility where they perform tasks such as
maintaining the on-site medical facility, doing laundry, preparing meals, and cleaning various
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parts of the facility for compensation of $1 per day. Doc. 1 ¶¶ 1, 28. Plaintiffs also allege that each day, six randomly selected detainees (whether they participate in the Voluntary Work Program or not) are required to clean the facility’s “pods” without compensation under threat of solitary confinement. Doc. 1 ¶¶ 5-6. Plaintiffs bring three claims. First, Plaintiffs allege that the Voluntary Work Program violates the Colorado Minimum Wage Order (“CMWO”) because Plaintiffs are paid $1/day instead of the Colorado minimum wage. Doc. 1 at ¶¶ 40-52. Second, Plaintiffs allege that forcing detainees to clean their living areas under threat of solitary confinement violates the Trafficking Victims Protection Act’s (“TVPA”) prohibition on forced labor. Doc. 1 at ¶¶ 69-85. Third, Plaintiffs allege that the Defendant was unjustly enriched through the operation of the Voluntary Work Program. Doc. 1 at ¶¶ 101-107.
Defendant has moved to dismiss all three of Plaintiffs’ claims. First, Defendant argues that it is not an “employer,” and that the detainees are not “employees,” within the meaning of the CMWO. Doc. 11 at 5-11. Second, Defendant argues that the TVPA does not apply to immigration detainees. Id. at 11-15. Finally, Defendant argues that Plaintiffs’ unjust enrichment claim should be dismissed as duplicative of their claim for violation of the CMWO. Id. at 15. In its reply brief, Defendant also asserts that Plaintiffs’ claims are barred by the government contractor defense and are preempted by the McNamara-O’Hara Service Contract Act (“SCA”). Doc. 18 at 5-8. Plaintiffs sought and were granted leave to file a sur-reply responding to these additional arguments. See Doc. 21.
Analysis I. Whether the Parties Are Subject to the Colorado Minimum Wage Order
a. Whether Plaintiffs are Employees Under the CMWO
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The CMWO defines “employee” as “any person performing labor or services for the benefit of an employer in which the employer may command when, where, and how much labor or services shall be performed.” 7 Colo. Code Regs. 1103-1:2. Defendant argues that prisoners are not “employees” under the Fair Labor Standards Act (“FLSA”), and that similarly the CMWO was not intended to be extended to those working in government custody. Doc 11 at 7-11; see Alvarado Guevara v. I.N.S., 902 F.2d 394, 396 (5th Cir. 1990) (finding that immigration detainees did not qualify for protection under the FLSA because they were not “employees”). Defendants also cite a March 31, 2012 Advisory Bulletin from the Colorado Department of Labor (“CDOL”), which finds that inmates and prisoners are exempt from the CMWO and “are not employees according to Colorado law.” See Doc. 11 Ex. D. Plaintiffs respond that the Advisory Bulletin does not apply because plaintiffs are civil immigration detainees in a private detention facility, and not prisoners in government custody. Doc. 15 at 19-22. Defendant argues that the reasoning applied in Alvarado to conclude that prisoners are not employees under the FLSA applies here because immigration detainees are housed by the government and do not require the minimum wage to bring up their standard of living. Doc. 18 at 19-22.
I find the Plaintiffs are not “employees” under the CMWO. Although immigration detainees appear to fall under the broad definition of “employee,” so do prisoners, and the CDOL has found that the CMWO’s definition of “employee” should not apply to prisoners. In addition, because immigration detainees, like prisoners, do not use their wages to provide for themselves, the purposes of the CMWO are not served by including them in the definition of employee. See C.R.S. § 8-6-104 (purpose of the minimum wage is to “supply the necessary cost of living and to maintain the health of the workers”). Finally, the Fifth Circuit has held that immigration detainees are not employees under the FLSA’s similarly broad definition (“any individual
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employed by an employer”) because the congressional motive for enacting the FLSA, like the CMWO, was to protect the “standard of living” and “general well-being” of the worker in American industry. Alvarado, 902 F.2d at 396.
b. Whether Defendant is an “employer” under the CMWO The CMWO applies to employers and employees in four industries: (1) Retail and Service; (2) Commercial Support Service; (3) Food and Beverage; and (4) Health and Medical. 7 Colo. Code Regs. 1103-1:1. Plaintiffs allege that Defendant is a “Health and Medical” employer, a “Food and Beverage” employer, and a “Retail and Service” employer. Doc. 15 at 7-19. Although it is not necessary to reach the question of whether the Defendant is an “employer” under the CMWO because I have concluded that the Plaintiffs are not employees, each of these definitions is analyzed below in order to have a complete record in the event of an appeal.
i. Health and Medical The CMWO defines “Health and Medical” employers as: [A]ny business or enterprise engaged in providing medical, dental, surgical or other health services including but not limited to medical and dental offices, hospitals, home health care, hospice care, nursing homes, and mental health centers, and includes any employee who is engaged in the performance of work connected with or incidental to such business or enterprise, including office personnel. 7 Colo. Code Regs. 1103-1:2(D). Plaintiffs allege that because of Defendant’s “on-site medical facility,” which provides health services to the detainees and which is partly maintained and operated by detainees, see Doc. 1 ¶¶ 1, 45, Defendant meets the definition of a “Health and Medical” employer. Defendant responds that this definition should be read to reach only those businesses that provide health or medical services to the general public. Doc. 11 at 7; see Salazar v. Butterball, LLC, 644 F.3d 1130, 1144 (10th Cir. 2011) (interpreting the food and beverage section of the CMWO to require that the food or beverage be sold “to the ultimate consumer”).
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Plaintiffs respond that the drafters knew how to include a requirement that the services be
provided to the “public,” as they did in the “Retail and Service” section of the same regulations,
and that private, for-profit hospitals not necessarily accessible to the general public are expressly
included in an opinion of the CDOL interpreting the “Health and Medical” provision. Doc. 15 at
11-13. Defendants reply that Plaintiff’s interpretation means that any business with any on-site
medical component would qualify under the CMWO, which is an absurd result, and that the
Tenth Circuit has read a requirement that “Food and Beverage” sales be to the “general public,”
even though that language does not appear in the section of the regulations defining “Food and
Beverage” employers. Doc. 18 at 15-19; Salazar, 644 F.3d at 1144.
I find that Defendant is not a “Health and Medical” employer under the CMWO. I agree
with Defendant that this section of the CMWO requires that the business at issue offer services in
some capacity to the general public. See Salazar, 644 F.3d at 1144. Defendant does not provide
any health or medical services to the general public, and the CDOL Advisory Bulletin 24(I) takes
the position that “state and government-operated hospitals are not covered by Colorado wage law
and the Wage Order.” See Doc. 15 at 12 n.10. I find that the medical facility at the Aurora
facility is more akin to a government operated hospital than a private business that provides health
care to the general public.
ii. Retail and Service
The CMWO also applies to Retail and Service industry employers, defined as:
Retail and Service: any business or enterprise that sells or offers for sale, any service, commodity, article, good, real estate, wares, or merchandise to the consuming public, and that generates 50% or more of its annual dollar volume of business from such sales. The retail and service industry offers goods or services that will not be made available for resale. It also includes amusement and recreation, public accommodations, banks, credit unions, savings and loans, and includes any employee who is engaged in the
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performance of work connected with or incidental to such business or enterprise, including office personnel. 7 Colo. Code Regs. 1103-1:2(A). Defendant argues that it does not provide any services to the “consuming public,” and that it is not like the other examples of retail and service industry employers given, which do offer services to the public. Doc. 11 at 5-6. Plaintiffs respond that Defendant “sells incarceration services to governmental customers.” Doc. 15 at 14. The Plaintiffs also argue that the Retail and Service definition has been applied to businesses making sales to other businesses, despite the language requiring sales “to the consuming public,” and that the government is a “public consumer.” See Bowe v. SMC Elec. Products, Inc., 935 F.Supp. 1126, 1134 (D. Colo. 1996) (Kane, J.) (finding that business selling mining equipment to other companies covered by previous version of CMWO language governing sales “to the consumer”). Defendants respond that the ordinary definitions of “consumer” and “retail” do not include their business and that Bowe involved a different version of the CMWO which used the language “to the consumer,” as opposed to the current version which uses the language “to the consuming public.” Doc. 18 at 11-13. I find that Defendant is not a “Retail and Service” employer under the CMWO. “Incarceration services” are completely unlike the other services given by example in the CMWO, and I find that the meaning of “consuming public” does not include the federal government. See, e.g., Doc. 18 at 12 n. 9 (citing various examples of statutory definitions of “consumer” as a natural person).
iii. Food and Beverage The Wage Order also applies to the Food and Beverage industry, defined as: Food and Beverage: any business or enterprise that prepares and offers for sale, food or beverages for consumption either on or off the premises. Such
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business or enterprise includes but is not limited to: restaurants, snack bars, drinking establishments, catering services, fast-food businesses, country clubs and any other business or establishment required to have a food or liquor license or permit, and includes any employee who is engaged in the performance of work connected with or incidental to such business or enterprise, including office personnel. 7 Colo. Code Regs. 1103-1:2(C). Plaintiffs allege that detainees “prepared and served detainee meals [and] assisted in preparing catered meals for law enforcement events sponsored by [Defendant].” Doc 1 at p.2. Defendant argues that it is not a “Food and Beverage” employer because under Salazar the examples should be read to narrow the definition to those businesses that sell food directly to the consuming public. Doc. 11 at 6-7. Plaintiffs respond that Defendant prepares and offers food for sale because the food prepared is purchased by the government and served to detainees, and because food and beverages prepared on site are offered for sale at the commissary and to entities conducting training at the facility. Doc. 15 at 16-19. In addition, Plaintiffs argue that because Defendant’s contract with ICE requires an inspection by an external inspector, Defendant is required to have a “food license or permit” as defined in the Wage order. Id. at 17. Plaintiff also says Salazar turns on the distinction between direct sales and resale, and not any requirement that food be sold to the “consuming public.” Id. at 18 n.14. Defendants reply that Plaintiff’s interpretation would mean that any business with an on-site cafeteria would be part of the food and beverage industry, an absurd result. Doc. 18 at 13-15. I find that Defendant is not a “Food and Beverage” employer under the CMWO. Defendant does not sell food to the consuming public and is unlike all the other examples given in the CMWO. See Salazar, 644 F.3d at 1144.
2. Whether the TVPA applies to Plaintiffs
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Plaintiffs allege that by requiring detainees to clean their “pods” under threat of solitary confinement, Defendant has violated the Trafficking Victims Protection Act (“TVPA”), which provides a civil remedy against anyone who “knowingly provides or obtains the labor or services of a person by . . . means of force, threats of force, physical restraint, or threats of physical restraint.” 18 U.S.C. § 1589(a); see id. § 1595 (providing civil remedy). Defendants argue that the TVPA is inapplicable because its purpose was to prevent human trafficking, and cases exclusively apply the TVPA to trafficking persons for labor and/or sex. Doc. 11 at 12-13.
Defendants also argue that 18 U.S.C. § 1584, which appears in the same Title as § 1589 and prohibits “knowingly and willfully hold[ing any person] to involuntary servitude,” requires that Plaintiffs’ TVPA claims be dismissed. In U.S. v. Kozminski, 487 U.S. 931 (1988), the Supreme Court held that § 1584 reaches only compulsion of services by use of physical or legal, as opposed to psychological, coercion. Id. at 948. In Channer v. Hall, 112 F.3d 214 (5th Cir. 1997), the Fifth Circuit held that an immigration detainee forced to work in the kitchen under threat of solitary confinement was not subjected to involuntary servitude in violation of the Thirteenth Amendment. See id. at 219 (“We hold that the federal government is entitled to require a communal contribution by an INS detainee in the form of housekeeping tasks, and that Channer's kitchen service, for which he was paid, did not violate the Thirteenth Amendment's prohibition of involuntary servitude.”). Defendants argue that § 1589 should be interpreted similarly to include a “civic duty” exception, because § 1589 appears in the same chapter as § 1584 and because both sections are meant to protect persons from trafficking. Doc. 18 at 25.
Plaintiffs respond that the plain text of the TVPA reaches any type of forced labor, citing Nunag-Tanedo v. East Baton Rouge Parish School Bd., 790 F.Supp.2d 1134 (C.D. Cal. 2011), which held that teaching high school math and science could qualify as forced labor under §
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1589(a). See id. at 1144-46; U.S. v. Kaufman, 546 F.3d 1242, 1263 (10th Cir. 2008) (finding that the “involuntary servitude and forced labor statutes apply to coerced acts other than ‘work in an economic sense’”). Plaintiffs also argue that § 1589 should not be interpreted similarly to § 1584 because Congress enacted § 1589 in order to broaden the narrow definition of coercion adopted by the Supreme Court in Kozminski. See Kaufman, 546 F.3d at 1261 (“The legislative history reveals that, in enacting § 1589, Congress sought to expand Kozminski's limited definition of coercion under § 1584, stating that ‘[s]ection 1589 will provide federal prosecutors with the tools to combat severe forms of worker exploitation that do not rise to the level of involuntary servitude as defined in Kozminski.’”).1 Finally, Plaintiffs argue that the civic duty exception to the Thirteenth Amendment discussed in Channer should not apply to private for-profit corporations such as Defendant, although neither Plaintiffs nor Defendants have cited any authority discussing whether the exception applies to private enterprises under contract with the government.
I deny Defendant’s motion to dismiss with respect to Plaintiffs’ TVPA claim. Both Kozminski and Channer interpreted the term “involuntary servitude” (in § 1584 and in the Thirteenth Amendment, respectively), whereas § 1589 reaches “whoever . . . obtains the labor or services of a person by . . . threats of physical restraint.” The language at issue here is thus broader than the language at issue in Kozminski and Channer, and intentionally so. See Kaufman, 546 F.3d at 1261. In addition, Defendants have cited no authority for reading a civic duty exception into § 1589, or for applying such an exception to a private, for-profit corporation under
1 Plaintiffs also argue that the duties Plaintiffs were required to perform fall outside of the scope of personal housekeeping obligation set forth in ICE’s own standards. See Doc. 15 at 30-31. Defendants respond that the scope of the duties set out in ICE’s standards is simply irrelevant. Doc. 18 at 26-27.
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contract with the government. Thus, for purposes of surviving a motion to dismiss, Plaintiffs’ TVPA claim will be allowed to go forward.
3. Whether Plaintiffs’ Unjust Enrichment Claim is Duplicative Defendant argues that Plaintiffs’ unjust enrichment claim should be dismissed because Plaintiffs have an adequate remedy at law, and because it is duplicative of their claims under the CMWO. Doc. 11 at 15. Plaintiffs argue that because the measure of damages for unjust enrichment is the difference between the value of Plaintiffs’ services and the amount paid, their unjust enrichment claim is not duplicative. Doc. 15 at 34-35. I will not dismiss Plaintiffs’ unjust enrichment claim. Although the claim appears to be largely based on Plaintiffs’ CMWO claim and therefore Plaintiffs would have an adequate remedy at law, the CMWO claim is dismissed and not available. In any event, Plaintiffs are permitted to plead in the alternative. See Bolsa Resources, Inc. v. AGC Resource, Inc., No. 11–cv–01293, 2011 WL 6370409, *4 n.5 (D.Colo. Dec. 20, 2011) (allowing unjust enrichment claim to go forward in the alternative on motion to dismiss). Under their CMWO claim, Plaintiffs seek the minimum wage, whereas under their unjust enrichment claim, Plaintiffs seek the fair value of their services. See Doc. 1 at ¶ 106 (asking that defendant “disgorge . . . the benefits it has unjustly obtained”); id. at p. 20 (seeking “compensatory and exemplary damages”); id. at ¶ 52 (seeking “unpaid minimum wages”); id. at p. 18 (seeking “unpaid balance of the full amount of wages due”). To the extent Plaintiffs allege that the fair market value of their services exceeds the minimum wage, the remedies sought by the CMWO claim and the unjust enrichment claim are different, and the unjust enrichment claim is not duplicative. See Bock v. American Growth Fund Sponsors, Inc., 904 P.2d 1381, 1387 (Colo.App. 1995) (proper measure of unjust enrichment is difference between consideration paid
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and fair market value of employee’s services); Edwards v. ZeniMax Media Inc., No. 12–cv– 00411, 2013 WL 5420933, *10 (D. Colo. Sep. 27, 2013) (denying motion to dismiss unjust enrichment claim as duplicative where remedies sought were different).
4. Whether Plaintiffs’ Claims Are Preempted by the Service Contract Act In its reply brief, Defendant argues that the McNamara-O’Hara Service Contract Act (“SCA”), 41 U.S.C. § 6702 et seq., preempts the application of the Colorado Minimum Wage Order. Doc. 18 at 7-8. The SCA applies to contracts to provide services to the United States that exceed $2,500, and requires the payment of a minimum wage and fringe benefits to government contractors. See 41 U.S.C. §§ 6702-6707. Defendant attaches its contract with the government and the Department of Labor wage determination under the SCA, which determines the minimum wage for all employees at Defendant’s Aurora facility. See Doc. 18 Exs. E,F. However, there is no minimum wage for detainees as they are excluded from employment under the contract because they are not U.S. citizens. See Doc. 18 at 7 n.6. Defendant argues that the SCA completely occupies the field and leaves no room for application of Colorado’s minimum wage law. Doc. 18 at 7-8. Plaintiffs argue that the SCA does not expressly preempt state minimum wage laws, and in fact quite the opposite. Specifically, the SCA requires service contracts to which it applies to include a provision for fringe benefits “not otherwise required by Federal, State, or local law to be provided by the contractor or subcontractor.” 41 U.S.C. § 6703(2); see also American Waste Removal Co. v. Donovan, 748 F.2d 1406, 1410 (10th Cir. 1984) (“The [Service Contract] Act is also intended to protect service contract competitors from unfair competition by employers paying subminimum wages.”). This language “manifestly assumes the application of [state and] local laws benefitting workers, and adds other provisions to insure that benefits and protections
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for contract employees reach a certain minimum.” Lebron Diaz v. General Sec. Services Corp., 93 F.Supp.2d 129, 135-36 (D.Puerto Rico 2000). In addition, the Plaintiffs cite numerous cases rejecting the argument that the SCA preempts state and local labor laws. See, e.g., Inkrote v. Protection Strategies Inc., No. 3:09-CV-51, 2009 WL 3295042, *7 (N.D.W.Va. Oct. 13, 2009) (rejecting argument that SCA completely preempts state law); Lebron Diaz, 93 F.Supp.2d at 13536 (similar); Naranjo v. Spectrum Sec. Services, Inc., 172 Cal.App.4th 654, 663-668 (Cal.App. 2009) (finding that SCA did not preempt claims for additional wages under the California Labor Code); Doc. 21 at 9. Because enforcing Colorado’s minimum wage laws is consistent with the purpose and the text of the SCA, I find that the SCA does not preempt Plaintiff’s claim under the Colorado Minimum Wage Order.
4. Whether Plaintiffs’ Claims Are Barred by the Government Contractor Defense The Defendant argues that Plaintiffs’ claims are barred by the government contractor defense, because the government has directed Defendant to take the actions that form the basis of the claim, i.e., establish a volunteer detainee work program and pay detainees $1/day. See Doc. 18 at 5-6. Under Boyle v. United Technologies Corp., 487 U.S. 500 (1988), the government contractor defense precludes liability for state law tort claims regarding design defects where “(1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States.” Id. at 512. Defendants also cite language in Correctional Services Corp. v. Malesko, 534 U.S. 61, 74 (2001) suggesting that the logic of Boyle means that state law claims are barred where “the government has directed [the defendant] to do the very thing that is the subject of the claim.” Id. at 74 n.6.
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The government contractor defense requires a “significant conflict” between an identifiable “federal policy or interest and the [operation] of state law.” Boyle, 487 U.S. at 507.
The parties dispute whether this conflict requirement is satisfied, i.e., whether Defendant’s contract with DHS/ICE prohibits Defendant from paying detainees more than $1/day. The contract submitted by the Defendant provides a line item for “Stipend for Detainee Work Program” and indicates that “Reimbursement for this line item will be at an actual cost of $1.00 per day per detainee. The contractor shall not exceed the quantity shown without prior approval by the Contracting Officer.” Doc. 11-2 at p.21. The “quantity” amount has been redacted from the version of the contract submitted by the Defendant. Id. The standards for the “Detainee Voluntary Work Program” provide that “[d]etainees shall receive monetary compensation . . . in accordance with the facility’s standard policy” and that “[t]he compensation is at least $1.00 (USD) per day.” Doc. 11-1 at p.5 (emphasis added). I find that Plaintiffs are correct that the contract only defines how Defendant will be reimbursed for the Detainee Work Program and does not prohibit Defendant from paying detainees in excess of $1/day in order to comply with Colorado labor laws. In fact, the contract specifically contemplates that the Defendant will perform under the contract in accordance with “[a]pplicable federal, state and local labor laws and codes” Doc. 11-2 at p.43; and the contract is subject to the SCA, which assumes that wages and benefits will be paid as “in accordance with prevailing rates in the locality” and as “required by Federal, State, or local law,” see 41 U.S.C. § 6703(1) & (2). Therefore, I find that there is no “significant conflict” between a federal interest and state law as required for the assertion of the government contactor defense.
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Conclusion For the reasons given above, Plaintiffs’ CMWO claims are dismissed, and Defendant’s motion is denied with respect to Plaintiffs’ TVPA and unjust enrichment claims.

Dated: July 6, 2015

s/ John L. Kane Senior U.S. District Judge

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 Case 1:14-cv-02887-JLK Document 57 Filed 02/27/17 USDC Colorado Page 1 of 21
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02887-JLK ALEJANDRO MENOCAL, MARCOS BRAMBILA, GRISEL XAHUENTITLA, HUGO HERNANDEZ, LOURDES ARGUETA, JESUS GAYTAN, OLGA ALEXAKLINA, DAGOBERTO VIZGUERRA, and DEMETRIO VALEGRA, on their own behalf and on behalf of all others similarly situated,
Plaintiffs, v. THE GEO GROUP, INC.,
Defendant.
ORDER GRANTING MOTION FOR CLASS CERTIFICATION UNDER RULE 23(b)(3) AND APPOINTMENT OF CLASS COUNSEL UNDER RULE 23(g) (ECF NO. 49)
Kane, J. Plaintiffs Alejandro Menocal, Marcos Brambila, Grisel Xahuentitla, Hugo Hernandez,
Lourdes Argueta, Jesus Gaytan, Olga Alexaklina, Dagoberto Vizguerra, and Demetrio Valerga (Representatives) are current and former detainees of the Aurora Detention Facility (Facility), a private immigration detention center in Aurora, Colorado, owned and operated by Defendant The GEO Group, Inc. (GEO). Representatives originally brought three claims against GEO for: (1) noncompliance with the Colorado Minimum Wages of Workers Act, Colo. Rev. Stat. § 8-6-101, et seq.; (2) violations of the forced labor provision of the Trafficking Victims Protection Act (TVPA), 18 U.S.C. §§ 1589, 1595; and (3) unjust enrichment. Representatives brought the
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claims on their own behalf and on behalf of proposed classes of similarly-situated current and former detainees of the Facility. GEO moved to dismiss the claims, and I granted its motion as to only the Colorado minimum wage claim. Representatives now seek certification of the proposed classes for their remaining TVPA and unjust enrichment claims.
Although Representatives and putative class members have diverse backgrounds, their circumstances are uniquely suited for a class action. All share the experience of having been detained in the Facility and subjected to uniform policies that purposefully eliminate nonconformity. The questions posed in this case are complex and novel, but the answers to those questions can be provided on a classwide basis. Appreciating that the class action is ―a valuable tool to circumvent the barriers to the pursuit of justice,‖ Alba Conte & Herbert Newberg, Newberg on Class Actions § 25:24 (4th ed.), I GRANT the Motion for Class Certification Under Rule 23(b)(3) and Appointment of Class Counsel under Rule 23(g) (ECF No. 49).
I. Background Representatives take issue with two aspects of GEO‘s operation of the Aurora Detention Facility. First, they allege that, in carrying out its Housing Unit Sanitation Policy, GEO violated the Trafficking Victims Protection Act by requiring detainees to clean the private and common areas of the Facility without any compensation and under the threat of solitary confinement and other punishments. Second, they claim that GEO was unjustly enriched by paying detainees who participated in its Voluntary Work Program (VWP) only $1 per day. GEO, a for-profit, multinational corporation, operates the Facility pursuant to a contract with U.S. Immigration and Customs Enforcement (ICE). ICE‘s Performance Based National Detention Standards mandate that all detainees perform personal housekeeping. Specifically, [d]etainees are required to maintain their immediate living areas in a neat and orderly manner by: 1. making their bunk beds daily; 2. stacking loose papers; 3.
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keeping the floor free of debris and dividers free of clutter; and 4. refraining from hanging/draping clothing, pictures, keepsakes, or other objects from beds, overhead lighting fixtures or other furniture. Def.‘s Opp. Class Certification Ex. 2 at 15-16, ECF No. 51-2. GEO combined these responsibilities with portions of the American Correctional Association standards and its own corporate policy to develop the Facility‘s Housing Unit Sanitation Policy, which has been in effect since 1995. Mot. Class Certification Ex. 1 at 15:23-25, 27:9-14, 86:22-87:3, ECF No. 501. Representatives claim that the detainees‘ compulsory duties under the Sanitation Policy, such as sweeping and mopping floors and cleaning toilets and showers, fall outside the scope of ICE‘s personal housekeeping requirement. The GEO Detainee Handbook Local Supplement, with which all detainees at the Facility are provided, states that failure to perform one‘s duties under the Sanitation Policy is a ―high-moderate‖ offense for which detainees can be punished by the initiation of criminal proceedings, termination from their jobs, and up to 72 hours in disciplinary segregation, among other sanctions. Mot. Class Certification Ex. 1 at 29:13-30:2, 79:13-25; Ex. 4 at 18, 26, ECF No. 50-3. Representatives and other detainees were aware of the Sanitation Policy during their detention and claim that they performed the required duties to avoid solitary confinement. See Mot. Class Certification Ex. 5 ¶ 3, ECF No. 49-2; Ex. 6 ¶ 3, ECF No. 49-3; Ex. 7 ¶ 3, ECF No. 49-4; Ex. 8 ¶ 3, ECF No. 49-5; Ex. 9 ¶ 3, ECF No. 49-6; Ex. 10 ¶ 3, ECF No. 497; Ex. 11 ¶ 3, ECF No. 49-8; Ex. 12 ¶ 3, ECF No. 49-9. Based on these allegations, Representatives assert that the labor performed by detainees at the Facility pursuant to the Sanitation Policy is forced labor in violation of the TVPA. They request that I certify a TVPA class of ―[a]ll persons detained in Defendant‘s Aurora Detention Facility in the ten years prior to the filing of this action.‖ Mot. Class Certification at 10, ECF No. 49.
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Separately, GEO offers a Voluntary Work Program that allows detainees to work in various positions around the Facility and earn $1 per day. As part of the program, detainees perform tasks such as maintaining the on-site medical facility, doing laundry, preparing meals, and cleaning the Facility. ICE‘s Performance Based National Detention Standards require that detainees be compensated ―at least $1.00 (USD) per day‖ for work completed under the facility‘s VWP. Mot. Dismiss, Ex. 1 at 5, ECF No. 11-1. Representatives allege that GEO misled VWP participants to believe it could pay them no more than $1 per day under the ICE standards. Representatives also stress that GEO employs only a single outside custodian and that detainees are unable to seek other employment in a competitive market. Mot. Class Certification at 9. As a result, they claim that GEO derives significant economic benefit from its VWP and has been unjustly enriched because of it. Representatives propose certification of an unjust enrichment class comprised of ―[a]ll people who performed work [at] Defendant‘s Aurora Detention Facility under Defendant‘s [Voluntary Work Program] Policy in the three years prior to the filing of this action.‖
II. Legal Standard ―The class action is ‗an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.‘‖ Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348 (2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 700-701 (1979)). The exception is appropriate when the party seeking certification can establish the four threshold requirements set forth in Federal Rule of Civil Procedure 23(a) and fulfillment of at least one of the provisions in Rule 23(b). ―When addressing class certification, the district court must undertake a ‗rigorous analysis‘ to satisfy itself that the prerequisites of Rule 23 . . . are met.‖ CGC Holding Co., LLC v. Broad and Cassel, 773 F.3d 1076, 1086 (10th Cir. 2014). Under Rule 23(a), the party requesting
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certification must first show that: ―(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.‖ If successful, the party must then demonstrate, pursuant to Rule 23(b), one of the following: (1) individual adjudication would create a risk of incompatible standards of conduct for the party opposing the class or would impair other members‘ ability to protect their interests; (2) injunctive or declaratory relief is appropriate for the class as a whole due to the action or inaction of the party opposing the class; or (3) common questions of law or fact predominate over any individual questions and a class action is the superior method for ―fairly and efficiently adjudicating the controversy.‖
Here, Representatives rely on Rule 23(b)(3), which requires predominance of questions of law or fact common to the class and superiority of the class action method. The conditions of predominance and superiority were added ―to cover cases ‗in which a class action would achieve economies of time, effort, and expense, and promote . . . uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results.‘‖ Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 615 (1997) (quoting Fed. R. Civ. P. 23 advisory committee‘s note). In determining if these requirements are met, I must consider, among other factors: ―(A) the class members‘ interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action.‖ Fed. R. Civ. P. 23(b)(3).
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III. Discussion
GEO challenges Representatives‘ satisfaction of almost all of the Rule 23 considerations.
Preliminarily, I find that Representatives have demonstrated that the proposed classes satisfy the
numerosity1 and adequacy requirements. As to the remaining factors—commonality and
typicality under Rule 23(a) and predominance and superiority under Rule 23(b)(3), GEO‘s most
compelling, but ultimately unconvincing, argument is that elements of both claims necessitate
inquiries specific to each class member.
A. Trafficking Victims Protection Act Claim
The forced labor provision of the TVPA makes it unlawful for anyone to:
knowingly provide[] or obtain[] the labor or services of a person. . . (1) by means of force, threats of force, physical restraint, or threats of physical restraint to that person or another person; (2) by means of serious harm or threats of serious harm to that person or another person; (3) by means of the abuse or threatened abuse of law or legal process; or (4) by means of any scheme, plan, or pattern intended to cause the person to believe that, if that person did not perform such labor or services, that person or another person would suffer serious harm or physical restraint.
18 U.S.C. § 1589 (emphasis added). The element that the labor be obtained ―by means of‖ the
defendant‘s improper coercion is central to the parties‘ dispute. GEO claims that evaluating
whether this element is fulfilled requires an individualized assessment of what caused each
1Representatives have carried their burden by offering ―‗some evidence of established, ascertainable numbers constituting the class.‘‖ Colo. Cross-Disability Coal. v. Abercrombie & Fitch Co., 765 F.3d 1205, 1214-15 (10th Cir. 2014) (citing Rex v. Owens ex rel. Okla., 585 F.2d 432, 436 (10th Cir. 1978)). With respect to the TVPA class, GEO‘s Assistant Warden of Operations estimated that, in the past ten years, 50,000 to 60,000 individuals have been detained at the Facility and subject to the Sanitation Policy. Mot. Class Certification Ex. 1 at 49:24-50:2. As for the unjust enrichment class, GEO‘s records show that 787 detainees participated in the Voluntary Work Program in November 2012 alone. Mot. Class Certification Ex. 15 at 7, ECF No. 50-6. Representatives approximate that there will be 2,000 total members of the class. GEO argues that Representatives cannot simply rely on the presumption that classes with greater than 40 putative members satisfy the numerosity requirement. Representatives do not just depend on that presumption, however; they have also shown that joinder would be impracticable due to the unique characteristics of the class members, namely that many are spread around the world and are not fluent in English or the U.S. legal system.
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putative class member to perform labor under the Sanitation Policy. Consequently, GEO asserts that the commonality, typicality, predominance, and superiority requirements are not met for the TVPA class. Federal Rule of Civil Procedure 23(a): Commonality & Typicality
To fulfill the commonality requirement, Representatives must demonstrate that ―there are questions of law or fact common to the class.‖ Fed. R. Civ. P. 23(a)(1). A qualifying question must be ―of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.‖ Wal-Mart Stores, Inc., 564 U.S. at 350. The analysis must not focus on the mere existence of common questions but on ―‗the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.‘‖ Id. at 350 (quoting Richard Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132 (2009)). Nevertheless, ―[i]t is not necessary that all of the elements of the claim entail questions of fact and law that are common to the class, nor that the answers to those common questions be dispositive.‖ CGC Holding Co., LLC, 773 F.3d at 1087 (citing Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133 S. Ct. 1184, 1196 (2013)).
Representatives submit that the common questions putative class members share are: ―(1) whether GEO obtains the labor of class members; (2) whether GEO threatens class members with physical restraint, serious harm, or abuse of the legal process; and (3) whether GEO ‗knowingly‘ obtains class members‘ labor ‗by . . . means of‘ these threats.‖ Mot. Class Certification at 11. GEO argues that these questions fail to demonstrate, as required by Wal-Mart Stores, Inc. v. Dukes, that an issue central to the validity of Representatives‘ claim is susceptible to classwide resolution.
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In Wal-Mart, the Supreme Court found that a proposed class of female employees alleging discrimination under Title VII lacked even a single question common to the class and thus did not satisfy the commonality requirement. 564 U.S. at 342, 359. Relying on the fact that the defendant had no specific discriminatory employment policy or biased evaluation method, the Court found that the central question of why each class member was disfavored could not produce a common answer. Id. at 352-55, 59. The defendant‘s local supervisors were given discretion over employment decisions such that it was unlikely that each manager exercised their discretion in a common discriminatory manner. Id. at 355-56. The Court stated that ―[w]ithout some glue holding the alleged reasons for all those decisions together, it [would] be impossible to say that examination of all the class members‘ claims for relief [would] produce a common answer . . . .‖ Id. at 352.
Unlike in Wal-Mart, GEO has a specific, uniformly applicable Sanitation Policy that is the subject of Representatives‘ TVPA claim. This Policy is the glue that holds the allegations of the Representatives and putative class members together,2 creating a number of crucial questions with common answers. For example: Does GEO employ a Sanitation Policy that constitutes improper means of coercion under the forced labor statute? Does GEO knowingly obtain detainees‘ labor using that Policy? Is there a civic duty exception to the forced labor statute that makes the Policy acceptable? Representatives have demonstrated the existence of common questions that can resolve issues ―central to the validity‖ of its TVPA claim ―in one stroke.‖ WalMart Stores, Inc, 564 U.S. at 350.
2GEO argues that each class member could have labored due to different parts of the Policy so the Policy as a whole cannot be the glue. The text of the statute contradicts that assertion. The statue provides that ―a scheme, plan, or pattern‖ can constitute improper means without requiring determination of which specific part of the scheme, plan, or pattern motivated the laborer. 18 U.S.C. § 1589. Thus, a uniform policy can be the glue that holds the allegations of a class together.
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―The commonality and typicality requirements of Rule 23(a) do not require that every member of the class share a fact situation identical to that of the named plaintiff.‖ Colo. CrossDisability Coal. v. Abercrombie & Fitch Co., 765 F.3d 1205, 1216 (10th Cir. 2014) (citation omitted). Furthermore, ―differing fact situations of class members do not defeat typicality under Rule 23(a)(3) so long as the claims of the class representative and class members are based on the same legal or remedial theory.‖ Adamson v. Bowen, 855 F.2d 668, 676 (10th Cir. 1988).
GEO contends that Representatives‘ experiences could not be typical, because perception of a threat is subjective and because none of Representatives were actually placed in segregation for refusing to clean. GEO also points out that Representatives detention at the Facility only spans back to May 2011, while the proposed class goes back ten years. The nature of detention is unique in that it allows the detainer to almost fully control the experience of the detainee. In this case, Representatives and the putative class members were all subject to and impacted by the Sanitation Policy, and the duties they performed under the Policy were at the direction of GEO‘s staff.3 Mot. Class Certification Ex. 2 at 1-3, ECF No. 50-2. I find it irrelevant that no Representative was actually disciplined with segregation for violating the Policy, since the forced labor statute includes threats, schemes, plans, and patterns as improper means of coercion. As for the time period covered by the class, GEO‘s Assistant Warden of Operations testified that its Sanitation Policy had been in effect since 1995, when she began working for the company. Mot. Class Certification Ex. 1 12:23-13:1, 23:8-16, 86:22-87:3. Representatives and the proposed class of individuals detained during the ten years prior to the filing of the Complaint
3One way in which GEO implements the Policy is by posting a list of detainees who are required to perform additional cleanup of the common areas each day. Mot. Class Certification Ex. 4 at 19. GEO does not allege and there is nothing in the record to show that detainees who are not on the daily list still choose to perform the additional duties or that detainees work autonomously.
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could, therefore, bring claims based on the same legal or remedial theory. Representatives have shown that the typicality requirement is met for their Proposed TVPA class. Federal Rule of Civil Procedure 23(b)(3): Predominance and Superiority
While the class undoubtedly satisfies the Rule 23(a) factors, the Rule 23(b)(3) ―predominance criterion is far more demanding.‖ Amchem Prods., Inc., 521 U.S. at 623–24. Its ―inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.‖ Id. at 623. In considering whether questions of law or fact common to class members predominate, I look to the specific elements of the underlying claim. See Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 804, 809 (2011).
GEO contends that, to satisfy the ―by means of‖ element of the forced labor statute, each class member would need to show what specifically compelled him or her to perform the sanitation duties at the Facility. It suggests that some detainees labored just because they desired to stay occupied. And, with respect to those hypothetical detainees, GEO claims it could not have violated the TVPA because it did not obtain their labor ―by means of‖ improper coercion. Representatives refute this argument, stating that, instead of individually inquiring as to why each detainee labored, a reasonable person standard should be used. According to Representatives, ―the language and structure of the forced labor statute . . . call for an objective inquiry that turns on whether a reasonable person would provide labor to[] GEO if placed in the position of the person providing such labor.‖ Mot. Class Certification at 15.
Representatives cite Nuñag-Tanedo v. East Baton Rouge Parish School Board, No. LA CV 10-01172 JAK (MLGx), 2011 WL 7095434 (C.D. Cal. Dec. 12, 2011), as support for their assertion that a reasonable person standard should be used. Nuñag-Tanedo involved a class of Filipino nationals who were recruited to work as teachers in Louisiana public schools and felt
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compelled to teach in order to repay the exorbitant debts they incurred as part of the recruitment process. Id. at *1. Construing the forced labor statute, the court in Nuñag-Tanedo found that the putative class members shared the same background and circumstances such that a reasonable person standard could be used to determine whether it was the defendants‘ scheme that ultimately compelled the plaintiffs to work. Id. at *1.
In turn, GEO relies on Panwar v. Access Therapies, Inc., No. 1:12-cv-00619, 2015 WL 329013 (S.D. Ind. Jan. 22, 2015), and David v. Signal International, LLC, No. 08-1220, 2012 WL 10759668, at *15 (E.D. La. Jan. 4, 2012), to challenge the use of a reasonable person standard. The proposed classes in Panwar and David, as in Nuñag-Tanedo, were comprised of foreign citizens who were recruited to work in the United States and then were allegedly coerced by improper means to continue laboring. Unlike in Nuñag-Tanedo, however, the courts in both Panwar and David determined that the use of a classwide reasonable person standard was not appropriate. Panwar, 2015 WL 329013, at *1; David, 2012 WL 10759668, at *1-2.
In Panwar, the court found that the backgrounds and circumstances of the plaintiffs and class members varied too greatly to apply a uniform reasonable person standard. 2015 WL 329013, at *6. The class members had different contracts, worked in different states, and faced different working conditions. Id. The court reasoned that it was likely that ―a significant number‖ of putative class members did not labor due to improper coercion as they never sought to terminate their contracts, were not threatened by deportation, or would not be seriously harmed by having to pay damages for breach of their employment contracts. Id. The facts in this case are distinct from those in Panwar given that Representatives and the putative class members here were all subject to a universal policy under uniform conditions.
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The second case GEO cites, David v. Signal International, LLC, goes beyond looking at the similarities and differences of class members‘ circumstances and meticulously analyzes the ―by means of‖ element of the forced labor statute. The plaintiffs in David asserted, as Representatives do here, that the statute concerns only the defendant‘s conduct and whether a reasonable person in the plaintiffs‘ shoes would have been compelled to provide labor against his or her will. 2012 WL 10759668, at *17. For guidance on the proper query under the statute, the court looked to United States v. Kozminski, 487 U.S. 931 (1988). Id. at *17-19. The Supreme Court held in Kozminski that, for the purposes of criminal prosecution, involuntary servitude under 18 U.S.C. § 1584 is limited to the ―compulsion of services by the use or threatened use of physical or legal coercion.‖ 487 U.S. at 952-53. The forced labor statute was enacted in response to that holding in order to combat the exploitation of workers via means other than physical or legal coercion, including through threats of and actual non-physical ―serious harm.‖ H.R. Conf. Rep. 106-939, 3-5. In Kozminski, the Supreme Court alluded to causation, stating: ―[T]he vulnerabilities of the victim are relevant in determining whether the physical or legal coercion or threats thereof could plausibly have compelled the victim to serve.‖ 487 U.S. at 952. The court in David consequently determined that ―the forced labor analysis cannot be confined solely to the defendant‘s conduct but necessarily must take into account the particular victim‘s vulnerabilities.‖ David, 2012 WL 10759668, at *19. It additionally concluded that whether the defendants‘ coercive conduct caused the plaintiffs to labor could not ―be answered via generalized class-wide proof but rather must be answered individually based upon individualized proof.‖ Id. at *21.
I find the analysis in David to be persuasive in that the forced labor statute does contain both an objective and a subjective component. The subjective component is whether the victims
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actually labored because of the perpetrator‘s conduct, while the objective component is whether a reasonable person would respond in a similar way as the victims. See id. at *20. Representatives‘ proposal that the subjective component be eliminated by using only a reasonable person standard does not coincide with the statute.4
Nevertheless, the holding in David does not foreclose certification of the proposed class in this case. Representatives argue, as an alternative to eliminating the subjective component of the statue, that the ―by means of‖ element can be satisfied by inferring from classwide proof that the putative class members labored because of GEO‘s improper means of coercion. Representatives are correct that there is nothing preventing such an inference. I have not found and GEO has not provided any authority requiring that, for TVPA claims, causation must be proven by direct and not circumstantial evidence. Were a jury deciding the individual merits of Representatives claims, it surely would be permitted to make such an inference. Thus, it should be allowed on a classwide basis as well. See CGC Holding Co., LLC, 773 F.3d at 1092.
Representatives and the putative class members in this case were directed by GEO‘s staff when, where, and how to perform their sanitation duties. Given the climate in which they were detained, it is possible that an inference of causation would be appropriate even despite some class members‘ purported willingness to work for reasons other than GEO‘s improper means of coercion. See David, 2012 WL 10759668, at *21 (―[B]ased on the type of coercion used, there may be cases where consent becomes irrelevant.‖). For class certification purposes, though, I
4Representatives highlight that individuals can also be convicted of or held civilly liable for attempting to violate the forced labor statute under 18 U.S.C. § 1594. They claim that, even if some putative class members labored for reasons other than GEO‘s improper means of coercion, GEO still attempted to obtain their labor via those means. As a result, Representatives argue that such class members would be entitled to the same civil remedy, making an individual inquiry regarding causation unnecessary. Their Complaint, however, does not assert a claim for attempt under 18 U.S.C. § 1594.
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need only conclude that the ―by means of‖ element could be established by classwide circumstantial evidence.
Representatives reference CGC Holding Co., LLC v. Broad and Cassel as an example of when circumstantial evidence can be used to show causation on a classwide basis. In CGC Holding, the Tenth Circuit held that certification of a class of real estate borrowers bringing claims under the Racketeer Influenced and Corrupt Organizations (RICO) Act was appropriate even though actual and proximate causation were elements of the claim. 773 F.3d at 1080-81. The court found that, under certain circumstances, ―it is beneficial to permit a commonsense inference . . . applicable to the entire class to answer a predominating question as required by Rule 23.‖ Id. at 1089. The circumstances here—namely the class members‘ detainment, the imposition of a uniform policy, and the numerous other questions common to the class— certainly make it beneficial to permit such an inference.5
In a final effort to show that individual questions predominate as to the TVPA claim, GEO asserts that any damages inquiry would have to be specific to each class member. But, considering the numerous questions common to the class, I find that the possible need for specific damages determinations does not predominate. In re Urethane Antitrust Litig., 768 F.3d 1245, 1255 (10th Cir. 2014); see also Fed. R. Civ. P. 23 advisory committee‘s note (―[A] fraud perpetrated on numerous persons by the use of similar misrepresentations may be an appealing situation for a class action, and it may remain so despite the need, if liability is found, for separate determination of the damages suffered by individuals within the class.‖). Since causation under the forced labor statute ―can be found through generalized, classwide proof,‖ common questions predominate in this case and ―class treatment is valuable in order to take 5GEO argues that the rationale applied in the RICO context in CGC Holding cannot be extended to TVPA claims. I disagree. The analysis in CGC Holding may not dictate the outcome in this matter, but it is instructive.
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advantage of the efficiencies essential to class actions.‖ CGC Holding Co., LLC, 773 F.3d at 1089 (citations omitted).
―[C]lass status is appropriate as long as plaintiffs can establish an aggregation of legal and factual issues, the uniform treatment of which is superior to ordinary one-on-one litigation.‖ Id. at 1087. In including Rule 23(b)(3), ―the Advisory Committee had dominantly in mind vindication of ‗the rights of groups of people who individually would be without effective strength to bring their opponents into court at all.‘‖ Amchem Prods., Inc., 521 U.S. at 617 (quoting Kaplan, A Prefatory Note, 10 B.C. Ind. & Com. L. Rev. 497, 497 (1969)). In this case, the putative class members reside in countries around the world, lack English proficiency, and have little knowledge of the legal system in the United States. It is unlikely that they would individually bring these innovative claims against GEO. Further, if they were to do so, each detainee would have to litigate the same exact issues regarding GEO‘s Sanitation Policy. The class action is the superior method for adjudicating the TVPA claim. Representatives have thus demonstrated that their proposed TVPA class fulfills the requirements of Rule 23(a) & (b)(3) such that certification is appropriate. B. Unjust Enrichment Claim
Turning to Representatives unjust enrichment claim, GEO‘s arguments against certification similarly involve whether an element of the claim compels individualized inquiries. To succeed on a claim of unjust enrichment, a plaintiff must prove ―(1) the defendant received a benefit (2) at the plaintiff‘s expense (3) under circumstances that would make it unjust for the defendant to retain the benefit without commensurate compensation.‖ Lewis v. Lewis, 189 P.3d 1134, 1141 (Colo. 2008) (citing Salzman v. Bachrach, 996 P.2d 1263, 1266-67 (Colo. 2000)). Determining whether retention of the benefit is unjust involves ―careful consideration of
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particular circumstances,‖ Lewis, 189 P.3d at 1140 (citation omitted), and ―a fact-intensive inquiry in which courts look to, among other things, the intentions, expectations, and behavior of the parties,‖ Melat, Pressman & Higbie, L.L.P. v. Hannon Law Firm, L.L.C., 287 P.3d 842, 847 (Colo. 2012) (citing Lewis, 189 P.3d at 1140, 1143). The analysis ―often will turn on whether a party engaged in some type of wrongdoing.‖ Dudding v. Norton Frickey & Assocs., 11 P.3d 441, 445 (Colo. 2000).
GEO argues that the ―unjust‖ element, dependent on the intentions, expectations, and behavior of the parties, requires an inquiry specific to each putative class member and cannot be demonstrated on a classwide basis. As with the TVPA claim, GEO contends that the necessity of an individualized inquiry for one of the elements of the claim prevents the commonality, typicality, predominance, and superiority requirements from being met. Federal Rule of Civil Procedure 23(a): Commonality and Typicality
Again, I start the certification analysis with the Rule 23(a) commonality requirement that there be at least one question common to the class that will resolve an issue central to the validity of the claim ―in one stroke.‖ Wal-Mart Stores, Inc., 564 U.S. at 350, 359. Representatives assert that the questions common to the proposed class are: ―(1) whether the class provided GEO with a benefit in the form of substantially discounted labor, and (2) whether, under the circumstances of this case, it would be unjust for GEO to retain that benefit.‖ Consistent with its overarching argument, GEO states that the second question regarding the ―unjust‖ element is not a question common to the class as it requires an individualized inquiry.6 I address this argument further
6GEO‘s other arguments purportedly addressing commonality for the unjust enrichment class relate more to the merits of the claim than the existence of common questions. Citing Alvarado Guevara v. Immigration and Naturalization Service, 902 F.2d 394, 396-96 (5th Cir. 1990), GEO asserts that detainees are not participants in the same market as other persons who could become employed by ICE since they are removed from the American industry. According to GEO, detainees could not reasonably expect that they would be paid more than $1.00 per day. It is
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below in discussing the predominance factor. For the purposes of the commonality requirement, though, I find that Representatives have demonstrated the existence of at least a single common question—whether GEO received a benefit from VWP participants‘ labor—the determination of which will resolve an issue central to the validity of the unjust enrichment claim in one stroke.
GEO also claims that Representatives‘ experiences are not typical of the class because its representation that ICE dictates the $1.00 per day pay rate was only made to specific individuals and not on a classwide basis. According to GEO, Representatives and putative class members would not be challenging the same conduct under the same legal theories as required for typicality. Representatives respond by stating that their unjust enrichment claim does not turn on class members‘ individualized reliance on GEO‘s explanation of the pay rate, but instead, that the misrepresentation contributes to the context of GEO‘s enrichment. As noted throughout this order, detainment presents distinctive conditions. Representatives, like the putative class members, worked under the Voluntary Work Program in an environment GEO controlled. GEO dictated the jobs they performed, the rate they were paid, and the alleged savings it experienced. Representatives‘ unjust enrichment claim challenges the same conduct under the same legal theories as any unjust enrichment claim putative class members would bring. Thus, with respect to that claim, Representatives have demonstrated the proposed class fulfills the Rule 23(a) prerequisites. Federal Rule of Civil Procedure 23(b)(3): Predominance and Superiority
The more stringent predominance factor demands that I look to the elements of the claim and fully consider GEO‘s argument regarding the necessity of individualized inquiries in determining whether its enrichment is unjust. The ―unjust‖ element of the claim calls for an unclear how this line of reasoning relates to the commonality analysis. If anything, the question of whether detainees should be paid in line with the market seems to support the existence of questions that can be answered on a classwide basis.
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analysis of ―the intentions, expectations, and behavior of the parties‖ to determine when retention of the benefit becomes unjust. Melat, Pressman & Higbie, 287 P.3d at 847 (citing Lewis, 189 P.3d at 1140, 1143). GEO insists that such expectations and intentions are highly individualized and could not be consistent classwide. I am not persuaded. It is not necessary to analyze the intentions, expectations, and behavior of each individual class member; it is enough to consider the overall context based on classwide proof. GEO ―has failed to explain why it would be equitable for it to retain [the benefit conferred by] some of the putative class members, but inequitable to retain [the benefit] from others.‖ James D. Hinson Elec. Contr. Co. v. BellSouth Telecomms., Inc., 275 F.R.D. 638, 647 (M.D. Fla. 2011). GEO‘s treatment of participants in the VWP was based on uniform policies and, therefore, it is likely that, if its retention of a benefit was unjust with respect to one class member, it was unjust with respect to all class members.
GEO quotes Friedman v. Dollar Thrifty Automotive Group, Inc., 304 F.R.D. 601 (D. Colo. 2015), twice to support the proposition that class certification is inappropriate for unjust enrichment claims, because ―common questions will rarely, if ever, predominate.‖ Def.‘s Opp. Class Certification at 40, 42 (quoting Friedman, 304 F.R.D. at 611). In Friedman, however, the court determined that whether the defendant‘s enrichment from its sales were unjust turned on the circumstances of the sales, ―implicat[ing] 2.58 million face-to-face individualized transactions in which customers with varying circumstances, preferences, and levels of knowledge . . . engaged with thousands of [the defendant‘s] agents . . . .‖ Friedman, 304 F.R.D. at 609, 611. Those interactions were unscripted and each could differ based on what was told to or understood by the consumer about purchasing the defendant‘s products. Id. at 609-10. Under those circumstances, it is logical that the answers to the common questions could not be
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established by common evidence and would not predominate, but those are not the facts of this case. Here, there is a consistent policy under which detained individuals worked and were paid the same amount. Perhaps the extent to which GEO was unjustly enriched would require individualized inquiries, but whether it was unjust at all could be determined on a classwide basis.
Observing that the extent inquiry would likely be particular to each class member, GEO argues that individualized damages questions predominate over any common questions. Since VWP participants worked varying hours and did not all perform the same type of work,7 any award to them would need to account for those individual factors. Representatives assert that damages could be determined by a formula and statistical sampling taking into account the number of hours worked, type of work performed, and fair market value of such work. However, they have not provided a detailed model or expert opinion on calculating damages, which GEO claims is necessary for them to sufficiently carry their burden. I agree with Representatives that there is no requirement that they produce expert testimony at this stage on the precise formula to be used for the calculation of damages. See Alba Conte & Herbert Newberg, Newberg on Class Actions § 12:4 (5th ed.) (explaining that, in many class actions such as wage and hour cases, individual damages are easily calculable, while other more complex cases require the proponents of class certification to provide a classwide method for calculating individual damages). I find that Representatives have demonstrated that individual damages in this case should be easily calculable using a simple formula. If this proves untrue, decertification or amendment of the class for damages determinations may be appropriate at a later juncture.
7GEO also contends that, for the damages analysis, participants would need individualized proof of whether it made misrepresentations to them specifically. Def.‘s Opp. Class Certification at 4243. Any misrepresentations, however, should not be relevant in determining the extent to which a particular participant enriched GEO.
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Additionally, the class action is the superior method for adjudicating Representatives‘ unjust enrichment claim. I am not aware of any other suit asserting the claims brought in this case and no other class member has demonstrated an interest in controlling the litigation. As stated above, many of the putative class members are immigrant detainees who lack English proficiency. They have limited financial resources and reside in countries around the world. It is very likely that these claims would not be brought by individual detainees, especially considering the case‘s innovative nature.
Representatives have demonstrated that the Rule 23(a) and (b)(3) requirements are satisfied with respect to their TVPA and unjust enrichment claims despite GEO‘s arguments that elements of each claim require individualized inquiries that preclude certification. In light of the pervasive character of the common issues and the de minimis nature of any individualized issues, I conclude that this case is an exception to the rule and class certification for both claims is appropriate. See In re Nassau County Strip Search Cases, 461 F.3d 219, 230 (2d Cir. 2006). C. Appointment of Representatives‘ Counsel as Class Counsel
Upon certifying a class, class counsel must also be appointed. Fed. R. Civ. P. 23(g)(1). In doing so, I ―must consider: (i) the work counsel has done in identifying or investigating potential claims in the action; (ii) counsel‘s experience in handing class actions, other complex litigation, and the types of claims asserted in the action; (iii) counsel‘s knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the class . . . .‖ Id. Representatives‘ counsel have invested significant time, energy, and resources into this case. They have uniquely relevant experience with the client base and with bringing complex claims against detention facilities. Many of the attorneys and their staff are also Spanish speakers,
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making it easier for them to communicate with some members of the classes. I find that Representatives‘ counsel are well-suited to represent the classes and appoint them to do so.
IV. Conclusion For the foregoing reasons, I GRANT the Motion for Class Certification Under Rule 23(b)(3) and Appointment of Class Counsel Under Rule 23(g) (ECF No. 49). The classes as proposed in the Motion are certified for Representatives‘ TVPA and unjust enrichment claims. Alejandro Menocal, Marcos Brambila, Grisel Xahuentitla, Hugo Hernandez, Lourdes Argueta, Jesus Gaytan, Olga Alexaklina, Dagoberto Vizguerra, and Demetrio Valerga are named as representatives of the classes. Attorneys Brandt Milstein, Andrew Turner, Andrew Free, Alexander Hood, David Seligman, Andrew Schmidt, and Hans Meyer are appointed as counsel for the classes. To proceed with this case, the parties shall file a revised Proposed Stipulated Scheduling and Discovery Order by March 27, 2017. DATED this 27th day of February, 2017.
____________________________ JOHN L. KANE SENIOR U.S. DISTRICT JUDGE
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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge John L. Kane
Civil Action No. 14-cv-02887-JLK
ALEJANDRO MENOCAL, MARCOS BRAMBILA, GRISEL XAHUENTITLA, HUGO HERNANDEZ, LOURDES ARGUETA, JESUS GAYTAN, OLGA ALEXAKLINA, DAGOBERTO VIZGUERRA, and DEMETRIO VALEGRA, on their own behalf and on behalf of all others similarly situated,
Plaintiffs,
v.
THE GEO GROUP, INC.,
Defendant.
ORDER ON MOTION FOR INTERLOCUTORY APPEAL
Kane, J.
Defendant has moved for an order certifying an interlocutory appeal under 28 U.S.C. §
1292(b) from my denial in part of its motion to dismiss. Doc. 38; see Doc. 23. In particular,
Defendant seeks appellate review of: (1) my finding that Plaintiffs have stated a claim under the
Trafficking Victims Protection Act (TVPA), Doc. 23 at 7-10; (2) my denial of Defendant’s motion
to dismiss Plaintiffs’ unjust enrichment claim, id. at 10-11; and (3) my rejection of the government
contractor defense as applied to the Plaintiffs’ claims, id. at 12-13. See Doc. 38 at 3. Defendant
also seeks a stay of this litigation pending the resolution of the requested interlocutory appeal. Id.
at 17-24.
1

Under 28 U.S.C. § 1292(b), the Court is authorized to certify an order in a civil action for interlocutory appeal if the order (1) “involves a controlling question of law,” (2) “as to which there is substantial ground for difference of opinion,” and (3) “an immediate appeal from the order may materially advance the ultimate termination of the litigation.” See 28 U.S.C. § 1292(b).
Because a complete reversal of my decision on Defendant’s motion to dismiss would eliminate Plaintiffs’ remaining claims and end this litigation, I assume that the requested interlocutory appeal “involves a controlling question of law” and would “materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b); see In re Grand Jury Proceedings June 1991, 767 F.Supp. 222, 225 (D .Colo. 1991); Kerr v. Hickenlooper, No. 11-cv-01350, 2012 WL 4359076, at *2-3 (D. Colo. Sept. 21, 2012). I therefore turn to whether there is a “substantial ground for difference of opinion” about the questions on which Defendant seeks appellate review.
Defendant argues that there is a “substantial ground for difference of opinion” as to whether Plaintiffs have stated a TVPA claim because the issue is “novel,” a “matter of first impression,” and one on which there is “no precedent.” Doc. 38 at 7, 10. However, “[t]he mere presence of a disputed issue that is a question of first impression, standing alone, is insufficient to demonstrate a substantial ground for difference of opinion.” Am. Fid. Assur. Co. v. Bank of New York Mellon, No. CIV-11-1284-D, 2014 WL 8187951, at *4 (W.D. Okla. Dec. 12, 2014); 19 James Wm. Moore et al. Moore Federal Practice § 203.31[4] (2015). Defendant has not identified any split in authority regarding the application of the TVPA in these circumstances, or any cases conflicting with my application of that statute. See Couch v. Telescope Inc., 611 F.3d 629, 633-34 (9th Cir. 2010). Accordingly, Defendant’s motion for an interlocutory appeal with respect to Plaintiffs’ TVPA claim is denied.
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Defendant next seeks an interlocutory appeal of the Court’s denial of Defendant’s motion to dismiss Plaintiff’s unjust enrichment claim on the grounds that Plaintiffs had no “reasonable expectation” of compensation as required to state an unjust enrichment claim. Doc. 38 at 11-13. Defendant did not raise this issue in its original motion to dismiss, but instead raised it for the first time in its motion for reconsideration. Doc. 38 at 11 n.1.
I am at a loss to understand Defendant’s suggestion that they did not raise their argument regarding reasonable expectations until after the Court had ruled on Defendant’s motion to dismiss because “Plaintiffs did not plead the ‘fair market value’ theory addressed in the Court’s order.” Doc. 38 at n.1. My comments regarding “fair market value” were made in the context of addressing whether Plaintiffs’ CMWO and unjust enrichment claims sought the same remedy and were therefore duplicative, and did not purport to address the elements of unjust enrichment. Put simply, if Defendant believes that Plaintiffs have failed to plead all of the elements of unjust enrichment because they have not alleged that Plaintiffs had any reasonable expectation of compensation for their services, Defendant should have raised that argument in its motion to dismiss. As Defendant acknowledges, Doc. 38 at 11 n.1, it remains free to properly raise this issue through an appropriate motion in the future, but unless and until it does so there are certainly no grounds for reconsideration or for an interlocutory appeal.
Finally, Defendant seeks to appeal the Court’s rejection of Defendant’s government contractor defense. Doc. 38 at 14-16. Defendant does not identify any grounds for a “substantial difference of opinion,” other than their disagreement with the Court’s ruling and a rehashing of their now twice rejected arguments regarding the operative contract. Id.; see Couch, 611 F.3d at 633 (“[A] party's strong disagreement with the Court's ruling is not sufficient for there to be a ‘substantial ground for difference.’”). Accordingly, Defendant is not entitled to an interlocutory
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appeal with respect to its assertion of the government contractor defense. In conclusion, Defendant’s Motion for an Interlocutory Appeal (Doc. 38) is DENIED and Defendant’s request for a stay pending appeal is DENIED AS MOOT.

Dated: March 17, 2016

s/ John L. Kane Senior U.S. District Judge

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 Case 1:14-cv-02887-JLK-MEH Document 114 Filed 02/09/18 USDC Colorado Page 1 of 37

Appellate Case: 17-1125

Document: 01019942810
PUBLISH

Date Filed: 02/09/2018 Page: 1
FILED United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS February 9, 2018

FOR THE TENTH CIRCUIT _________________________________

Elisabeth A. Shumaker Clerk of Court

ALEJANDRO MENOCAL, MARCOS BRAMBILA, GRISEL XAHUENTITLA, HUGO HERNANDEZ, LOURDES ARGUETA, JESUS GAYTAN, OLGA ALEXAKLINA, DAGOBERTO VIZGUERRA, and DEMETRIO VALEGRA, on their own behalf and on behalf of all others similarly situated,

Plaintiffs - Appellees,

v.

No. 17-1125

THE GEO GROUP, INC.,

Defendant - Appellant,

and

NATIONAL ADVOCACY CENTER OF THE SISTERS OF THE GOOD SHEPHERD; NATIONAL EMPLOYMENT LAW PROJECT; NATIONAL GUESTWORKER ALLIANCE; NATIONAL IMMIGRANT JUSTICE CENTER; NATIONAL IMMIGRATION LAW CENTER; PANGEA LEGAL SERVICES; PUBLIC CITIZEN; SANCTUARY FOR FAMILIES; SOUTHERN POVERTY LAW CENTER; AMERICAN IMMIGRANTS FOR JUSTICE; ASIAN AMERICANS ADVANCING JUSTICE; DETENTION WATCH NETWORK; HUMAN RIGHTS DEFENSE CENTER; ILLINOIS COALITION FOR

Case 1:14-cv-02887-JLK-MEH Document 114 Filed 02/09/18 USDC Colorado Page 2 of 37
Appellate Case: 17-1125 Document: 01019942810 Date Filed: 02/09/2018 Page: 2
IMMIGRANT AND REFUGEE RIGHTS; JUSTICE STRATEGIES; LEGAL AID AT WORK; HUMAN TRAFFICKING PRO BONO LEGAL CENTER; TAHIRIH JUSTICE CENTER; ASISTA IMMIGRATION ASSISTANCE; FREEDOM NETWORK USA,
Amici Curiae.
_________________________________
Appeal from the United States District Court for the District of Colorado
(D.C. No. 1:14-CV-02887-JLK) _________________________________
Mark Emery, Norton Rose Fulbright US LLP, Washington, D.C. (Charles A. Deacon Norton Rose Fulbright US LLP, San Antonio, Texas; and Dana Eismeier, Burns, Figa & Will, Greenwood Village, Colorado, with him on the brief), for Defendant-Appellant.
David Lopez, Outten & Golden LLP, Washington, D.C. (Juno Turner and Elizabeth V. Stork, Outten & Golden LLP, New York, New York; R. Andrew Free, Law Office of R. Andrew Free, Nashville, Tennessee; Alexander Hood, David Seligman, and Andrew Schmidt, Towards Justice, Denver, Colorado; Brandt Milstein, Milstein Law Office, Boulder, Colorado; Andrew H. Turner, The Kelman Beuscher Firm, Denver, Colorado; and Hans Meyer, Meyer Law Office, P.C., Denver, Colorado, with him on the brief), for Plaintiffs-Appellees.
Scott D. McCoy and Shalini Agarwal, Southern Poverty Law Center, Tallahassee, Florida, Alia Al-Khatib, Southern Poverty Law Center, Miami, Florida, and Lisa Graybill, Southern Poverty Law Center, New Orleans, Louisiana, filed a brief for the Southern Poverty Law Center as Amicus Curiae, in support of Appellees.
Adina H. Rosenbaum and Scott L. Nelson, Public Citizen Litigation Group, Washington, D.C., filed a brief for Public Citizen, Inc., and The National Employment Law Project, as Amici Curiae, in support of Appellees.
Katherine E. Melloy Goettel, Mark Fleming, Claudia Valenzuela, and Keren Zwick, National Immigration Justice Center, Chicago, Illinois, filed a brief for National Immigrant Justice Center, et al., as Amici Curiae, in support of Appellees.
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Andrew C. Lillie, Nathaniel H. Nesbitt, and Ann C. Stanton, Hogan Lovells US LLP, Denver, Colorado, filed a brief for Human Trafficking Pro Bono Legal Center, Tahirih Justice Center, Asista Immigration Assistance, Freedom Network USA, and Sancuary for Families, as Amici Curiae, in support of Appellees.
_________________________________ Before MATHESON, BACHARACH, and McHUGH, Circuit Judges.
_________________________________ MATHESON, Circuit Judge.
_________________________________ This appeal addresses whether immigration detainees housed in a private contract detention facility in Aurora, Colorado (the “Aurora Facility”) may bring claims as a class under (1) 18 U.S.C. § 1589, a provision of the Trafficking Victims Protection Act (the “TVPA”) that prohibits forced labor; and (2) Colorado unjust enrichment law. The GEO Group, Inc. (“GEO”) owns and operates the Aurora Facility under government contract. While there, the plaintiff detainees (the “Appellees”) rendered mandatory and voluntary services to GEO. Under GEO’s mandatory policies, they cleaned their housing units’ common areas. They also performed various jobs through a voluntary work program, which paid them $1 a day. The district court certified two separate classes: (1) all detainees housed at the Aurora Facility in the past ten years (the “TVPA class”), and (2) all detainees who participated in the Aurora Facility’s voluntary work program in the past three years (the “unjust enrichment class”). On interlocutory appeal, GEO argues that the district court abused its discretion in certifying each class under Rule 23(b)(3) of the Federal Rules of Civil Procedure. It primarily contends that the Appellees’ TVPA and Colorado unjust enrichment claims
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both require predominantly individualized determinations, making class treatment inappropriate. Exercising jurisdiction under 28 U.S.C. § 1292, we affirm.
I. BACKGROUND A. Factual History At all times relevant to this appeal, GEO owned and operated the Aurora Facility under contract with the U.S. Immigration and Customs Enforcement (“ICE”). In operating this facility, GEO implemented two programs that form the basis for this case: (1) the Housing Unit Sanitation Policy, which required all detainees to clean their common living areas; and (2) the Voluntary Work Program, which compensated detainees $1 a day for performing various jobs. 1. Housing Unit Sanitation Policy (“Sanitation Policy”) The Aurora Facility’s Sanitation Policy had two components: (1) a mandatory housing unit sanitation program, and (2) a general disciplinary system for detainees who engaged in “prohibited acts,” including refusal to participate in the housing unit sanitation program. Under the mandatory housing unit sanitation program, GEO staff generated daily lists of detainees from each housing unit who were assigned to clean common areas after meal service. Upon arriving at the Aurora Facility, every detainee received a handbook (the “Aurora Facility Supplement”) notifying them of their obligation to participate in this program. Dawn Ceja, the Aurora Facility’s Assistant Warden for Operations, confirmed at her deposition that “all of the detainees will have a turn on [the common area cleaning assignments].” App., Vol. II at 483.
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Under the disciplinary system, detainees who refused to perform their cleaning assignments faced a range of possible sanctions, including: (1) the initiation of criminal proceedings, (2) disciplinary segregation—or solitary confinement—up to 72 hours, (3) loss of commissary, (4) loss of job, (5) restriction to housing unit, (6) reprimand, or (7) warning. The Aurora Facility Supplement included an explanation of the disciplinary system and the possible sanctions for refusing to clean.
The Appellees alleged that the TVPA class members were all “forced . . . to clean the [housing units] for no pay and under threat of solitary confinement as punishment for any refusal to work.” App., Vol. I at 19. Five of the nine named plaintiffs and three other detainees filed declarations further explaining that they had fulfilled their cleaning assignments because of the Sanitation Policy’s threat of solitary confinement. 2. Voluntary Work Program (“VWP”)
Under the Aurora Facility’s VWP, participating detainees received $1 a day in compensation for voluntarily performing jobs such as painting, food services, laundry services, barbershop, and sanitation. Detainees who wished to participate in the VWP had to sign the “Detainee Voluntary Work Program Agreement,” which specified that “[c]ompensation shall be $1.00 per day.” App., Vol. V at 779. The Aurora Facility Supplement also specified that detainees would “be paid $1.00 per day worked (not per work assignment)” under the VWP. App., Vol. V at 761. Detainees had the additional option of working without pay if no paid positions were available.
The complaint alleged that the VWP class members were all “paid . . . one dollar ($1) per day for their [VWP] labor.” App., Vol. I at 19. Five of the nine named plaintiffs
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and three other detainees who had participated in the VWP filed declarations further describing their work. Their jobs had included serving food, cleaning the facilities, doing laundry, and stripping and waxing floors. Their hours had ranged from two to eight hours a day, and they had all received $1 a day in compensation.
B. Procedural History The Appellees filed a class action complaint against GEO in the U.S. District Court for the District of Colorado on behalf of current and former ICE detainees housed at the Aurora Facility. The complaint alleged: (1) a TVPA forced labor claim based on the Sanitation Policy, and (2) an unjust enrichment claim under Colorado law based on the VWP.1 1. GEO’s Motion to Dismiss GEO moved to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim. Regarding the TVPA claim, GEO argued that the Thirteenth Amendment’s civic duty exception to the prohibition on involuntary servitude should also apply to the TVPA’s ban on forced labor.2 It further contended that such an exception would extend to government contractors in addition to the federal government. Regarding the unjust enrichment claim, GEO asserted sovereign immunity
1 The complaint brought a third claim under the Colorado Minimum Wages of Workers Act, but the district court dismissed this claim, and it is not at issue here.
2 GEO cited the Fifth Circuit’s decision in Channer v. Hall, 112 F.3d 214 (5th Cir. 1997), which relied in part on the “judicially-created exception[]” to the Thirteenth Amendment to hold that “the federal government is entitled to require a communal contribution by an [immigration] detainee in the form of housekeeping tasks.” Id. at 21819.
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as a government contractor because ICE “specifically directed [it] to . . . establish a
voluntary detainee work program, and pay the detainees who volunteer for that program
$1.00 per day.” App., Vol. I at 198-99.
The district court rejected these arguments and denied GEO’s motion to dismiss
the TVPA and unjust enrichment claims. See Menocal v. GEO Grp., Inc., 113 F. Supp.
3d 1125 (D. Colo. 2015). GEO moved for reconsideration of the court’s rulings. The
court denied the motion, finding that GEO “d[id] not identify any intervening change in
controlling law or new evidence previously unavailable” to warrant reconsideration.
Menocal v. GEO Grp., Inc., No. 14-cv-02887-JLK, 2015 WL 13614120, at *1 (D. Colo.
Aug. 26, 2015).
GEO then moved for an order certifying an interlocutory appeal from the orders
denying its motion to dismiss and its motion for reconsideration. It requested that the
district court certify the following questions for interlocutory appeal:
(1) Whether civil detainees lawfully held in the custody of a private detention facility under the authority of the United States can state a claim for “forced labor” under the TVPA, 18 U.S.C. § 1589, for allegedly being required to perform housekeeping duties.
(2) Whether, under Colorado law, civil detainees may state a claim for unjust enrichment based on work performed pursuant to the Voluntary Work Program, absent any alleged reasonable expectation of being paid more than $1 per day.
(3) Whether a state law claim for unjust enrichment brought by civil detainees against a federal contractor is barred by the “government contractor” defense, where such claims would require that detainees receive additional compensation even though the contract expressly requires that compensation of more than $1 per day be approved by the government’s contracting officer.
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App., Vol. II at 346. The district court denied GEO’s motion to certify an interlocutory appeal on all three of these questions. Accordingly, the district court’s rulings on these questions are not properly before us in this appeal. See 28 U.S.C. § 1292(b) (providing that a court of appeals may only permit an interlocutory appeal to be taken from most non-final decisions if the district judge first certifies the interlocutory appeal). 2. The Appellees’ Motion for Class Certification
After they prevailed on the motion to dismiss, the Appellees moved for certification of a separate class for each claim under Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure. For the TVPA claim, the Appellees proposed a class of “all persons detained in [GEO’s] Aurora Detention Facility in the ten years prior to the filing of this action” (the “TVPA class”). App., Vol. II at 409. For the unjust enrichment claim, they proposed a class of “all people who performed work [for the] Aurora Detention Facility under [GEO’s] VWP Policy in the three years prior to the filing of this action” (the “unjust enrichment class”). Id. at 418.
GEO opposed the certification of both proposed classes. It argued that neither class adequately satisfied the Rule 23 requirements. The district court rejected GEO’s arguments and certified both classes as proposed by the Appellees. See Menocal v. GEO Grp., Inc., 320 F.R.D. 258 (D. Colo. 2017). It also approved the nine named plaintiffs as the representatives of both classes. Id. at 271.
GEO petitioned this court for interlocutory review of the class certifications. We granted GEO’s petition for permission to appeal under Rule 23(f). See Fed. R. Civ. Pro. 23(f) (“A court of appeals may permit an appeal from an order granting or denying class-
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action certification . . . .”); 28 U.S.C § 1292(e) (authorizing the Supreme Court to “prescribe rules . . . provid[ing] for an appeal of an interlocutory decision to the courts of appeals that is not otherwise provided for” by statute). Accordingly, only the district court’s order granting class certification—and not its rulings on whether the complaint stated TVPA and unjust enrichment claims—is before us.
II. DISCUSSION We begin with our standard of review. We then provide an overview of the Rule 23 class certification requirements relevant to this appeal, and additional background on the TVPA and Colorado unjust enrichment law as needed. We consider the TVPA and the unjust enrichment classes in turn, and conclude that the district court did not abuse its discretion in certifying each class under Rule 23.
A. Standard of Review “We review the district court’s decision to certify [a] class for an abuse of discretion. The district court abuses its discretion when it misapplies the Rule 23 factors—either through a clearly erroneous finding of fact or an erroneous conclusion of law—in deciding whether class certification is appropriate. Our review is only de novo to the extent we must determine whether the district court applied the correct standard. In the end, as long as the district court applies the proper Rule 23 standard, we will defer to its class certification ruling provided that decision falls within the bounds of rationally available choices given the facts and law involved in the matter at hand.” Soseeah v. Sentry Ins., 808 F.3d 800, 808 (10th Cir. 2015) (citations and quotations omitted).
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B. Class Certification Requirements Rule 23 of the Federal Rules of Civil Procedure provides the class certification requirements. Wal–Mart Stores, Inc. v. Dukes, 564 U.S. 338, 345 (2011). Plaintiffs seeking class certification must show that the underlying case (1) satisfies each of Rule 23(a)’s prerequisites, and (2) falls under at least one of Rule 23(b)’s categories of class actions. See Soseeah, 808 F.3d at 808. The district court must undertake a “rigorous analysis” to satisfy itself that a putative class meets the applicable Rule 23 requirements. CGC Holding Co. v. Broad & Cassel, 773 F.3d 1076, 1086 (10th Cir. 2014) (quotations omitted). Rule 23(a) sets forth four threshold requirements: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the
claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests
of the class. Fed. R. Civ. P. 23(a). Only requirements (2) (the “commonality” requirement) and (3) (the “typicality” requirement) are contested in this appeal.
Of the class action categories set forth in Rule 23(b), only the Rule 23(b)(3) class action is at issue here. A Rule 23(b)(3) class action must satisfy two additional requirements: (1) the “questions of law or fact common to class members [must] predominate over any questions affecting only individual members” (the “predominance” requirement), and (2) a class action must be “superior to other available methods for
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fairly and efficiently adjudicating the controversy” (the “superiority” requirement). Fed. R. Civ. P. 23(b)(3).
We provide additional background on each of the Rule 23 requirements contested in this appeal: commonality, typicality, predominance, and superiority. 1. Rule 23(a)’s Threshold Requirements: Commonality and Typicality
a. Commonality To satisfy the commonality requirement, a party seeking class certification must demonstrate “there are questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). In other words, the class members’ claims must “depend upon a common contention . . . of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart, 564 U.S. at 350. In the context of class-wide proof by statistical evidence, the Supreme Court has instructed that a question is common if there is “some glue holding the [class members’ allegations] together.” Id. at 352. “A finding of commonality requires only a single question of law or fact common to the entire class.” DG ex rel. Stricklin v. Devaughn, 594 F.3d 1188, 1195 (10th Cir. 2010); see also Wal-Mart, 564 U.S. at 359 (“We quite agree that for purposes for Rule 23(a)(2) even a single common question will do.” (brackets and quotations omitted)). b. Typicality To satisfy the typicality requirement, a party seeking class certification must demonstrate that “the claims or defenses of the representative parties are typical of the
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claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). “[D]iffering fact situations of class members do not defeat typicality . . . so long as the claims of the class representative and class members are based on the same legal or remedial theory.” Colo. Cross-Disability Coal. v. Abercrombie & Fitch Co., 765 F.3d 1205, 1216 (10th Cir. 2014) (quotations omitted). 2. Rule 23(b)(3)’s Additional Requirements: Predominance and Superiority
a. Predominance “The Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997). “It is not necessary that all of the elements of the claim entail questions of fact and law that are common to the class, nor that the answers to those common questions be dispositive.” CGC Holding, 773 F.3d at 1087. “Put differently, the predominance prong asks whether the common, aggregation-enabling, issues in the case are more prevalent or important than the non-common, aggregationdefeating, individual issues.” Id. (quotations omitted). In reviewing the district court’s predominance determination, we must “characterize the issues in the case as common or not, and then weigh which issues predominate.” Id. We do so by “consider[ing] . . . how the class intends to answer factual and legal questions to prove its claim—and the extent to which the evidence needed to do so is common or individual.” Id. And because we must thus consider the class’s underlying cause of action and determine which elements are amenable to common proof, “it is impractical to construct an impermeable wall that will prevent the
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merits from bleeding into the class certification decision to some degree.” Id. (quotations omitted). But “[f]or the purposes of class certification, our primary function is to ensure that the requirements of Rule 23 are satisfied, not to make a determination on the merits of the putative class’s claims.” Id.
b. Superiority A putative class proceeding under Rule 23(b)(3) must show that a class action would be “superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). Rule 23(b)(3) includes a non-exhaustive list of factors pertinent to the superiority analysis: (A) the class members’ interests in individually controlling the prosecution
or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy
already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the
claims in the particular forum; and (D) the likely difficulties in managing a class action. Fed. R. Civ. P. 23(b)(3); Fed. R. Civ. P. 23(b) advisory committee’s note to the 1966 amendment.3 Courts and commentators have observed that the Rule 23(b)(3) class action is superior when it allows for the “vindication of the rights of groups of people who
3 Although Rule 23(b)(3) states that these factors are pertinent to both superiority and predominance, “most courts analyze [these factors] solely in determining whether a class suit will be a superior method of litigation.” 2 William B. Rubenstein, Newberg on Class Actions § 4:64 (5th ed., Dec. 2017 update).
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individually would be without effective strength to bring their opponents into court at all.” See Amchem, 521 U.S. at 617 (quotations omitted); see also Just Film, Inc. v. Buono, 847 F.3d 1108, 1123 (9th Cir. 2017) (crediting unlikelihood that class members would individually pursue their claims due to risks, small recovery, and costs of litigation as the consideration “at the heart” of the superiority analysis). For this reason, “the class action device is especially pertinent to vulnerable populations.” 2 William B. Rubenstein, Newberg on Class Actions § 4:65 (5th ed., Dec. 2017 update) (Newberg). Considerations such as class members’ limited understanding of the law, limited English skills, or geographic dispersal therefore weigh in favor of class certification. See id.4
C. The TVPA Class We affirm the district court’s certification of the TVPA class. We first provide background on the TVPA. We then analyze whether the district court abused its discretion in applying the Rule 23 requirements to certify the TVPA class. In reviewing the class certification decision, “our primary function is to ensure that the requirements of Rule 23 are satisfied, not to make a determination on the merits of the putative class’s claims.” CGC Holding, 773 F.3d at 1087.
4 See, e.g., Silva-Arriaga v. Texas Express, Inc., 222 F.R.D. 684, 691 (M.D. Fla. 2004) (citing class members’ “limited English skills and . . . understanding of the legal system” in support of superiority finding); In re Monster Worldwide, Inc. Securities Litig., 251 F.R.D. 132, 139 (S.D.N.Y. 2008) (finding superiority based in part on class members’ geographic dispersal).
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1. TVPA’s Forced Labor Provision—18 U.S.C. § 1589 The TVPA establishes a civil cause of action for victims of prohibited trafficking
activity. 18 U.S.C. § 1595. As relevant to this appeal, the TVPA’s forced labor provision prohibits persons from:
knowingly provid[ing] or obtain[ing] the labor or services of a person by any one of, or by any combination of, the following means—
(1) by means of force, threats of force, physical restraint, or threats of physical restraint to that person or another person;
(2) by means of serious harm or threats of serious harm to that person or another person;
(3) by means of the abuse or threatened abuse of law or legal process; or (4) by means of any scheme, plan, or pattern intended to cause the
person to believe that, if that person did not perform such labor or services, that person or another person would suffer serious harm or physical restraint[.] Id. § 1589(a) (emphases added). The term “serious harm” denotes “any harm, whether physical or nonphysical, including psychological, financial, or reputational harm, that is sufficiently serious, under all the surrounding circumstances, to compel a reasonable person of the same background and in the same circumstances to [render labor] . . . to avoid incurring that harm.” Id. § 1589(c)(2). 2. Application of Rule 23 Requirements GEO contends that the district court abused its discretion in determining that the TVPA class satisfies commonality, typicality, predominance, and superiority. The parties’ arguments—both in their briefs and at oral argument—focus primarily on predominance, the closest issue. We address predominance last, after commonality,
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typicality, and superiority. The court did not abuse its discretion as to any of these requirements in certifying the TVPA class.
a. Commonality The TVPA class meets Rule 23(a)’s commonality requirement. The district court identified “a number of crucial questions with common answers.” Menocal, 320 F.R.D. at 264. These questions include: (1) whether the Sanitation Policy “constitutes improper means of coercion” under § 1589, (2) whether GEO “knowingly obtain[s] detainees’ labor using [the Sanitation Policy]”, and (3) whether a civic duty exception exempts the Sanitation Policy from § 1589. Id. at 264-65. Because all members of the TVPA class base their claims on the Sanitation Policy, we agree with the district court that the answers to these questions would “resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart, 564 U.S. at 350. Indeed, any one of these questions alone would satisfy the commonality requirement for the TVPA class. See id. at 359; Stricklin, 594 F.3d at 1195. The district court therefore did not abuse its discretion in applying the Rule 23(a) commonality requirement to the TVPA class. b. Typicality The TVPA class satisfies Rule 23(a)’s typicality requirement. Typicality requires only that “the claims of the class representative and class members are based on the same legal or remedial theory.” Colo. Cross-Disability, 765 F.3d at 1216 (quotations omitted). Here, the claims of all the class members—including the representatives—share the same theory: that GEO knowingly obtained class members’ labor by means of the Sanitation Policy, which threatened—or was intended to cause them to believe they would suffer—
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serious harm or physical restraint if they did not fulfill their cleaning assignments. The class representatives allege that they—just like all other Aurora Facility detainees in the relevant period—performed “mandatory, uncompensated work . . . under [GEO’s] Housing Unit Sanitation policy.” App., Vol. I at 26; see App., Vol. II at 483 (Assistant Warden Ceja confirming that “all of the detainees . . . have a turn on [the cleaning assignments]”). And the class representatives’ declarations present no circumstances that would give rise to a different theory of liability.5 The district court therefore did not abuse its discretion in applying the Rule 23(a) typicality requirement to the TVPA class.
c. Superiority The TVPA class meets the Rule 23(b)(3) superiority requirement. The TVPA class members would have to overcome significant hurdles to adjudicate their individual claims and thus have little “interest[] in individually controlling the prosecution or defense of separate actions.” See Fed. R. Civ. P. 23(b)(3). As the district court noted— and GEO does not dispute—“the putative class members reside in countries around the world, lack English proficiency, and have little knowledge of the legal system in the United States.” Menocal, 320 F.R.D. at 268. Based on these considerations, the court
5 The only factual differences among the class representatives’ experiences pertain to their specific interactions with Aurora Facility guards and whether they witnessed firsthand other individual detainees being sanctioned or threatened with solitary confinement for refusal to clean. But these factual differences do not defeat typicality because the class members’ legal theory—that GEO knowingly obtained their labor through the uniform Sanitation Policy—does not change based on their personal interactions with GEO staff or their knowledge of specific instances in which GEO threatened or carried out the threat of solitary confinement. See Colo. Cross-Disability, 765 F.3d at 1216.
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did not abuse its discretion in applying Rule 23(b)(3)’s superiority requirement to the TVPA class. See Newberg § 4:65 (identifying these considerations as factors in favor of class certification); see also Amchem, 521 U.S. at 617 (explaining that Rule 23(b)(3) classes seek to “vindicat[e] . . . the rights of groups of people who individually would be without effective strength to bring their opponents into court at all” (quotations omitted)).6
d. Predominance Although Rule 23(b)(3)’s predominance requirement “regularly presents the greatest obstacle to class certification,” CGC Holding, 773 F.3d at 1087, it does not defeat the TVPA class in this case. To determine whether the district court abused its discretion in applying the predominance requirement, we first “characterize the issues in the case as common or not, and then weigh which issues predominate.” See id. GEO contends that two of the TVPA class’s issues are not susceptible to generalized proof: (i) the causation element, and (ii) damages. But as the following analysis shows, (i) the causation element is susceptible to generalized proof and thus cannot defeat class certification, and (ii) individual damages assessments would not predominate over the class’s common issues.
6 GEO also suggests that the class should instead seek to have the ICE standards relating to the Sanitation Policy “changed by the agency, declared invalid, or enjoined,” Aplt. Br. at 45. But such actions, even if feasible, would not provide damages relief and thus are not “superior . . . available methods for fairly and efficiently adjudicating the controversy,” especially for former detainees in the TVPA class. See Fed. R. Civ. P. 23(b)(3).
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i. The causation element The causation element is susceptible to generalized proof and thus cannot defeat class certification under Rule 23(b)(3)’s predominance requirement. As discussed above, the TVPA’s forced labor provision prohibits the knowing procurement of labor “by means of” the use or threat of—or a scheme intended to threaten—serious harm or physical restraint. See 18 U.S.C. § 1589(a)(1)-(4). Although the statute does not use the word “cause,” to show a § 1589 violation, plaintiffs must prove that an unlawful means of coercion caused them to render labor. See United States v. Kalu, 791 F.3d 1194, 121112 (10th Cir. 2015) (affirming a jury instruction on § 1589 that advised the jury to consider whether “as a result of [the defendant’s] use of . . . unlawful means, the [victim rendered labor] where, if [the defendant] had not resorted to those unlawful means, the [victim] would have declined to” (quotations omitted)). The parties dispute whether a plaintiff may use a reasonable person standard to make this causation showing. The TVPA class contends that a plaintiff need only show that the unlawful means—here, the Sanitation Policy—would have caused a reasonable person to render the labor.7 In contrast, GEO argues that a plaintiff must show that the unlawful means in fact caused the labor. But we need not decide which of these standards applies to § 1589’s causation requirement in resolving the class certification
7 For purposes of deciding the class certification question, we do not address the merits of whether the Sanitation Policy qualifies as an unlawful means of coercion under § 1589. GEO does not dispute—and neither do we—the district court’s determination that this question can be answered on a class-wide basis. See Menocal, 320 F.R.D. at 264 & n.2.
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question. Even assuming GEO’s proposed standard applies, the causation element is susceptible to class-wide proof and thus does not preclude the TVPA class from satisfying the predominance requirement.
This analysis proceeds in three parts. First, in CGC Holding, this court held—at least in the fraud context—that plaintiffs may prove causation by class-wide inference. Second, CGC Holding applies to the circumstances of this case. Third, the mere speculative possibility that a class-wide inference would not apply to some TVPA class members does not make causation insusceptible to class-wide proof.
1) CGC Holding: Class-wide proof of causation from common circumstantial evidence
In CGC Holding, this court recognized that plaintiffs may prove class-wide causation based on inference from common circumstantial evidence. 773 F.3d at 109293. In that case, a putative class of borrowers brought a civil RICO claim8 against the defendants, a group of lenders. Id. at 1080. The plaintiffs alleged that the defendants had fraudulently induced them to pay upfront fees for loans that the defendants never actually had the intent or ability to fund. Id. The putative class consisted of “at least 100 borrowers . . . who paid advance fees to defendants.” Id. at 1084. We determined that
8 The Racketeer Influenced and Corrupt Organizations Act (“RICO”) prohibits various activities performed in connection with an ongoing criminal organization. See 18 U.S.C. §§ 1961-68. In addition to enacting criminal penalties for racketeering activities, RICO also created a private cause of action for “[a]ny person injured in his business or property by reason of” the defendant’s RICO violations. Id. § 1964(c) (emphasis added). A plaintiff bringing a civil RICO claim must show causation. CGC Holding, 773 F.3d at 1088. In civil RICO claims arising from fraud, reliance “frequently serves as a proxy for both legal and factual causation.” Id.
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“the fact that a class member paid the nonrefundable up-front fee in exchange for the loan commitment constitutes circumstantial proof of reliance on the misrepresentations and omissions regarding . . . the defendant entities’ ability or intent to actually fund the promised loan.” Id. at 1091-92 (emphasis added).
Because we would allow an individual plaintiff to establish an inference of reliance from this type of circumstantial proof, we saw “no reason why a putative class containing plaintiffs, who all paid substantial up-front fees in return for financial promises, should not be entitled to posit the same inference to a factfinder on a classwide basis.” Id. at 1092. By allowing such an inference, the issue of reliance “becomes solvable with a uniform piece of circumstantial evidence [i.e., the payment of the up-front fee].” Id. We therefore held that “the putative class is not stymied, for purposes of class certification, under Rule 23(b)’s predominance element.” Id.
2) Application of CGC Holding’s class-wide circumstantial evidence analysis to this case
CGC Holding said that, when a class member could individually establish causation based on circumstantial evidence, a court may likewise allow a class to rely on circumstantial evidence that the class shares to establish causation on a class-wide basis. CGC Holding’s reasoning applies with equal force to the facts of this case because (1) a court could permit an individual TVPA class member to establish causation through circumstantial evidence, and (2) the TVPA class members share the relevant evidence in common because their claims are based on allegations of a single, common scheme.
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First, a TVPA class member could individually establish causation based on circumstantial evidence.9 In CGC Holding, we said a jury could infer that a given class member relied on the defendants’ misrepresentations. Id. at 1091-92. The circumstantial evidence in CGC Holding included: (1) the plaintiff received a loan commitment agreement promising funds and requiring payment of an upfront fee in exchange for financing, and (2) the plaintiff in fact paid the fee. Id. at 1082, 1091-92. Here, a class member detainee could present the following circumstantial evidence to support an analogous inference that the Sanitation Policy caused the detainee to work: (1) the detainee received notice of the Sanitation Policy’s terms, including the possible sanctions for refusing to clean; and (2) the detainee performed housing unit cleaning work for GEO when assigned to do so.
Second, because the TVPA class allegations are based on a single, common scheme, class members share the relevant circumstantial evidence in common, thus making class-wide proof possible. In CGC Holding, the lender defendants allegedly “engaged in a common scheme to defraud” the borrower plaintiffs. Id. at 1082. Under this “cookie-cutter scheme,” potential borrowers received formulaic loan commitment agreements that required payment of non-refundable upfront fees before receiving the falsely promised financing. Id. Likewise, the TVPA class members allege that GEO “coerced [their] labor through a uniform policy subjecting detainees who refused to
9 Plaintiffs are generally free to introduce any relevant admissible evidence to prove their claims, with no distinction between direct and circumstantial evidence. See Fed. R. Evid. 401; see also 1A Fed. Jury Prac. & Instr. § 12:04 (6th ed., Aug. 2017 update).
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perform such uncompensated work to discipline, up to and including solitary
confinement.” App., Vol. I at 29 (emphasis added).
GEO acknowledges that each class member received notice of the Sanitation
Policy’s terms upon admission to the Aurora Facility. See App., Vol. II at 480 (Assistant
Warden Ceja testifying that upon admission to the Aurora Facility, each detainee “signs
[a document] memorializing that he or she received this policy”). Under these
circumstances, the Sanitation Policy provides the “glue” that holds together the class
members’ reasons for performing housing unit cleaning duties assigned by GEO. Wal-
Mart, 564 U.S. at 352.10 As in CGC Holding, we “see no reason why a putative class
10 In Wal-Mart, the Supreme Court held that anecdotal and statistical evidence “are insufficient to establish that [the plaintiffs’ gender discrimination] theory can be proved on a classwide basis.” 564 U.S. at 356. The Wal-Mart plaintiffs had “held a multitude of different jobs, at different levels of Wal–Mart’s hierarchy, for variable lengths of time, in 3,400 stores, sprinkled across 50 states, with a kaleidoscope of supervisors (male and female), subject to a variety of regional policies that all differed.” Wal-Mart, 564 U.S. at 359-60 (quotations omitted). The Wal-Mart plaintiffs therefore lacked “some glue holding the alleged reasons for [their adverse employment decisions] together.” Id. at 352.
As the Court later explained in Tyson Foods, Inc. v. Bouaphakeo, the Wal-Mart plaintiffs could not have relied on statistical evidence even in individual suits—much less a class action—because they “were not similarly situated.” 136 S. Ct. 1036, 1048 (2016). In contrast, the employees in Tyson Foods, who “worked in the same facility, did similar work, and w[ere] paid under the same policy,” could have introduced statistical evidence in a series of individual suits. Id.
Here, the TVPA class members—unlike the Wal-Mart and Tyson Foods plaintiffs—do not rely on statistical evidence. A TVPA class member bringing an individual suit against GEO therefore would not need to make a “similarly situated” showing to rely on the circumstantial evidence discussed above. And, as CGC Holding instructs, because an individual TVPA class member could rely on this evidence and because the same evidence applies to all class members, class-wide proof is possible in this case. But even assuming that Wal-Mart and Tyson Food’s “similarly situated” analysis applies where—as here—the plaintiffs do not rely on statistical evidence, the TVPA class members are more like the Tyson Foods plaintiffs: they were detained in the
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containing plaintiffs, who all [performed housing unit cleaning work under the uniform Sanitation Policy], should not be entitled to posit the same inference to a factfinder on a classwide basis.” See CGC Holding, 773 F.3d at 1092.
3) Hypothetical possibilities do not defeat the class-wide inference Based on the foregoing, the Appellees have met their burden to show that the causation element would not cause individual questions to predominate. See id. at 1087 (“The real question is whether plaintiffs have sufficiently met their burden under Rule 23(b) . . . [to] show that common questions subject to generalized, classwide proof predominate over individual questions.”). Specifically, the Appellees have shown that the TVPA class could establish causation on a class-wide basis from the available circumstantial evidence. In contrast, as the district court noted, “GEO does not allege and there is nothing in the record to show that detainees who are not on the daily list still choose to perform the additional duties or that detainees work autonomously.” Menocal, 320 F.R.D. at 265 n.3. GEO offers in rebuttal only speculative assertions regarding the class members’ subjective motivations for performing their cleaning duties.11 GEO’s hypothetical alternative explanations for the class members’ labor do not defeat the Appellees’ showing that the causation element is susceptible to class-wide
same facility, did the same work, and faced the same potential sanctions for refusing to work under the same Sanitation Policy.
11 GEO posits possible alternative reasons class members may have worked: “They may like to have a sanitary environment. They may like to be social while working, or participate because of peer pressure. They may willingly obey the facility’s policy out of respect for it. Or they may simply wish to stay busy.” Aplt. Br. at 37.
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proof. The permissibility of a class-wide inference depends on whether the class
members’ claims are “solvable with a uniform piece of circumstantial evidence” or
instead “involve significant individualized or idiosyncratic elements.” CGC Holding,
773 F.3d at 1092. Here, as we explained above, a factfinder could reasonably draw a
class-wide inference of causation from common evidence pertaining to the uniform
Sanitation Policy.
Had GEO “presented evidence that could rebut the Plaintiffs’ common inference
of [causation] on an individualized basis, we and the district court might have concluded
that individual issues . . . would predominate at trial.” See Torres v. S.G.E. Mgmt.,
L.L.C., 838 F.3d 629, 644 (5th Cir. 2016) (en banc), cert. denied, 138 S. Ct. 76 (mem.)
(2017). But even after three months of discovery regarding class certification issues,
GEO did not present any individualized rebuttal evidence to the district court that would cause individual causation questions to predominate at trial.12 In any event, “the district
court may revisit its decision and choose to decertify the class should [GEO] eventually
produce individualized rebuttal evidence.” See Torres, 838 F.3d at 645.
12 At oral argument, GEO’s counsel pointed to two pieces of rebuttal evidence. Oral Argument at 9:42-10:59. First, counsel cited Assistant Warden Ceja’s deposition testimony stating that detainees may “help out” with housing unit cleaning because “[s]ometimes people just like to keep busy” and “[i]t makes the time go by faster.” App., Vol. II at 483. Apart from its conjectural nature, this testimony does not raise concerns about individual issues predominating because GEO could introduce this same testimony against all class members at trial. Second, counsel suggested that the detainee declarations filed in this suit rebut causation as to the declarants: “Does that make sense—that the same detainees would be volunteering to step up and work a variety of jobs in food service and laundry for a dollar a day but yet at the same time say that they only performed occasional housekeeping chores as a result [of the Sanitation Policy.]” Oral Argument at 10:42-10:59. We see no inconsistency in the declarants’ statements.
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In CGC Holding, we stated that “causation can be established through an inference
of reliance where the behavior of plaintiffs and the members of the class cannot be
explained in any way other than reliance upon the defendant’s conduct.” 773 F.3d at
1089-90 (emphasis added) (quotations omitted). GEO interprets this language to mean
that conjectural possibilities alone may preclude an otherwise permissible class-wide
inference. We disagree. Even on CGC Holding’s facts, it is at least conceivable that a
class member may have paid advance loan fees even though he or she did not actually
rely on the defendant’s misrepresentations. For example, a hypothetical class member
may instead have paid the fees solely because he or she trusted the judgment of a third
party, who, for whatever reason, maliciously recommended entering into a loan
agreement with the defendants. We nevertheless allowed a class-wide inference in CGC
Holding because “the same considerations could lead a reasonable factfinder to conclude
beyond a preponderance of the evidence that each individual plaintiff relied on the
defendants’ representations.” See id. at 1090 (quoting Klay v. Humana, Inc., 382 F.3d 1241, 1259 (11th Cir. 2004)).13 And here, for the reasons already stated above, the same
13 In CGC Holding, we also “note[d] that the inference of reliance here is limited to transactional situations—almost always financial transactions—where it is sensible to assume that rational economic actors would not make a payment unless they assumed that they were receiving some form of the promised benefit in return.” 773 F.3d at 1091 n.9 (emphases added). But we nowhere announced a brightline rule limiting class-wide inferences to cases involving an economic transaction amenable to rational choice theory. See Torres, 838 F.3d at 642 (emphases added) (explaining that our opinion in CGC Holding “says only that the absence of another rational explanation for the plaintiffs’ behavior is sufficient to infer reliance—it does not say it is a necessary condition”). Our case—which involves alleged group coercion rather than individual arm’s length transacting—not only allows for a class-wide inference of causation for the reasons stated above but arguably supports an even stronger inference.
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considerations could lead a reasonable factfinder to conclude by a preponderance of the evidence that each TVPA class member would not have performed his or her assigned cleaning duties without being subject to the Sanitation Policy.
* * * * In assessing the causation element’s susceptibility to class-wide proof, we take no position on whether the class would ultimately succeed on such proof at trial. See id. at 1087 (“For the purposes of class certification, our primary function is . . . not to make a determination on the merits of the putative class’s claims.”). Rather, we must affirm the district court’s class certification determination if it “falls within the bounds of rationally available choices given the facts and law involved in the matter at hand.” See Soseeah, 808 F.3d at 808 (quotations omitted). Under the circumstances here, the district court concluded that a factfinder could—but need not—accept a class-wide inference of causation. Menocal, 320 F.R.D. at 267. For the foregoing reasons, we are satisfied that the district court did not abuse its discretion.
ii. Damages The presence of individualized damages issues does not defeat the predominance of questions common to the TVPA class. “[T]he fact that damages may have to be ascertained on an individual basis is not, standing alone, sufficient to defeat class certification.” Wallace B. Roderick Revocable Living Tr. v. XTO Energy, Inc., 725 F.3d 1213, 1220 (10th Cir. 2013) (quoting McLaughlin v. Am. Tobacco Co., 522 F.3d 215, 231 (2d Cir. 2008)); see also Newberg § 4:54 & n.2 (stating that “courts in every circuit have
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uniformly held that the 23(b)(3) predominance requirement is satisfied despite the need to make individualized damage determinations” and listing cases).
Here, the district court reasonably determined that, “considering the numerous questions common to the class, . . . the possible need for specific damages determinations does not predominate.” Menocal, 320 F.R.D. at 267. The TVPA class’s common questions include: (1) whether the Sanitation Policy qualifies as an unlawful means under § 1589, (2) scienter, (3) causation, (4) whether a civic duty exception exempts the Sanitation Policy from § 1589, and (5) if so, whether it extends to government contractors like GEO. As we said in another case, “[t]he district court reasonably concluded that these questions drove the litigation and generated common answers that determined liability in a single stroke.” In re Urethane Antitrust Litig., 768 F.3d 1245, 1256 (10th Cir. 2014) (quotations omitted). Moreover, the district court could “preserve the class action model in the face of individualized damages,” XTO Energy, 725 F.3d at 1220, such as by limiting the class action to liability issues. The court therefore did not abuse its discretion in determining that individual damages would not predominate.
* * * * The district court did not abuse its discretion in certifying the TVPA class based on its “rigorous analysis” of the Rule 23 requirements contested here. See CGC Holding, 773 F.3d at 1086. The court reasonably determined that the class members could show causation through class-wide inference and that individual damage assessments would not predominate over the class’s common issues. Its findings on commonality, typicality, and superiority were likewise reasonable and fell within its discretion.
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D. The Unjust Enrichment Class We affirm the district court’s certification of the unjust enrichment class. We first provide background on unjust enrichment under Colorado law. We then analyze whether the district court abused its discretion in applying the Rule 23 requirements to certify the unjust enrichment class. As with the TVPA class, “our primary function is to ensure that the requirements of Rule 23 are satisfied, not to make a determination on the merits of the putative class’s claims.” Id. at 1087. 1. Unjust Enrichment under Colorado Law Unjust enrichment “is an equitable theory of recovery that exists independent of any contract.” Melat, Pressman & Higbie, L.L.P. v. Hannon Law Firm, 287 P.3d 842, 847, 849 (Colo. 2012). Under Colorado common law, “a party claiming unjust enrichment must prove that (1) the defendant received a benefit (2) at the plaintiff’s expense (3) under circumstances that would make it unjust for the defendant to retain the benefit without commensurate compensation.” Lewis v. Lewis, 189 P.3d 1134, 1141 (Colo. 2008). The third element—whether the defendant’s retention of the benefit would be unjust—calls for “a fact-intensive inquiry in which courts look to, among other things, the intentions, expectations, and behavior of the parties.” Melat, 287 P.3d at 847 (emphasis added). Whether a plaintiff had a reasonable expectation of payment—while potentially relevant to the unjustness inquiry—is not itself an element of unjust enrichment under Colorado law. See Ninth Dist. Prod. Credit Ass’n v. Ed Duggan, Inc., 821 P.2d 788, 799-800 & n.19 (Colo. 1991). In Ed Duggan, the Colorado Supreme Court
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explained that the plaintiff’s reasonable expectation of payment is an element of impliedin-fact contract claims but not unjust enrichment (or implied-in-law contract) claims. Id.14 2. Application of Rule 23 Requirements
GEO argues the district court abused its discretion in determining that the unjust enrichment class satisfies commonality, typicality, predominance, and superiority. We address predominance, the closest issue, last. We conclude that the court did not abuse its discretion as to any of these requirements in certifying the unjust enrichment class.
a. Commonality The unjust enrichment class meets Rule 23(a)’s commonality requirement. The district court found “the existence of at least a single common question—whether GEO received a benefit from VWP participants’ labor.” Menocal, 320 F.R.D. at 269. GEO does not dispute—and neither do we—that answering this question would “resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart, 564 U.S. at 350. And this question alone suffices to establish the commonality requirement for the unjust enrichment class. See id. at 359; Stricklin, 594 F.3d at 1195.
14 The trial court in Ed Duggan had given an “erroneous[]” unjust enrichment instruction by conflating two distinct legal claims: (1) implied-in-fact contract, and (2) unjust enrichment (or implied-in-law contract). Ed Duggan, 821 P.2d at 800. A contract implied in fact “arises from the parties’ conduct,” which “must evidence a mutual intention by the parties to contract with each other.” DCB Constr. Co. v. Cent. City Dev. Co., 940 P.2d 958, 961 (Colo. App. 1996), as modified on denial of reh’g (Aug. 29, 1996), aff’d, 965 P.2d 115 (Colo. 1998). In contrast, a contract implied in law—or unjust enrichment—arises “not from consent of the parties, . . . but from the law of natural immutable justice and equity.” Id. at 962 (quotations omitted).
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The district court therefore did not abuse its discretion in applying the Rule 23(a) commonality requirement to the unjust enrichment class.
b. Typicality The unjust enrichment class satisfies Rule 23(a)’s typicality requirement. Typicality requires only that “the claims of the class representative and class members are based on the same legal or remedial theory.” Colo.Cross-Disability, 765 F.3d at 1216 (quotations omitted). Here, the claims of all the class members—including the representatives—share the same theory: that GEO unjustly retained a benefit from class members’ labor under the VWP. The class representatives allege that they—just like all detainees participating in the Aurora Facility’s VWP in the relevant period—“were uniformly paid $1 [per] day of work” and that GEO “was thereby unjustly enriched” by their work. App., Vol. I at 31. And the class representatives’ declarations present no circumstances that would give rise to a different theory of liability.15 The district court therefore did not abuse its discretion in applying the Rule 23(a) typicality requirement to the unjust enrichment class. c. Superiority The unjust enrichment class, a subset of the TVPA class, meets Rule 23(b)(3)’s superiority requirement for the same reasons the TVPA class does. The district court
15 The only factual differences among the class representatives’ experiences pertain to the nature of their jobs and the hours they worked. But these factual differences do not defeat typicality because the class members’ legal theory—that GEO unjustly retained a benefit from their labor under the VWP—does not change based on the nature of their jobs or their hours worked. See Colo. Cross-Disability, 765 F.3d at 1216.
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noted that “[a]s stated above, many of the putative class members are immigrant detainees who lack English proficiency[,] . . . have limited financial resources and reside in countries around the world.” Menocal, 320 F.R.D. at 270. It also was “not aware of any other suit asserting the claims brought in this case and no other class member has demonstrated an interest in controlling the litigation.” Id. Based on these considerations, the court did not abuse its discretion in applying the Rule 23(b)(3) superiority requirement to the unjust enrichment class. See Newberg § 4:65; see also Amchem, 521 U.S. at 617.16
d. Predominance Although Rule 23(b)(3)’s predominance requirement “regularly presents the greatest obstacle to class certification,” CGC Holding, 773 F.3d at 1087, it does not defeat the unjust enrichment class. GEO contends that two of the unjust enrichment class’s issues are not susceptible to generalized proof: (i) the unjustness element, and (ii) damages. But as we show below, (i) the unjustness element is susceptible to generalized proof, and (ii) individual damages assessments would not predominate over the class’s common issues.
16 GEO’s suggestion that class members should “challenge ICE’s underlying policy authorizing the $1 per day practice as violating some federal law or constitutional right,” Aplt. Br. at 54, again ignores the nature of the controversy at hand. Notwithstanding GEO’s attempts to divine “the Plaintiffs’ real complaint,” id., the alternatives proposed by GEO would not address the class members’ claims for monetary relief and thus are not “superior . . . available methods for fairly and efficiently adjudicating the controversy.” See Fed. R. Civ. P. 23(b)(3).
32

Case 1:14-cv-02887-JLK-MEH Document 114 Filed 02/09/18 USDC Colorado Page 33 of 37 Appellate Case: 17-1125 Document: 01019942810 Date Filed: 02/09/2018 Page: 33
i. The unjustness element The unjustness element is susceptible to generalized proof and thus cannot defeat class certification under Rule 23(b)(3)’s predominance requirement. This analysis proceeds in two parts. First, unjustness presents a common question here because the class members seek to establish this element through shared circumstances susceptible to class-wide proof. See CGC Holding, 773 F.3d at 1087 (explaining that we consider “how the class intends to answer factual and legal questions to prove its claim—and the extent to which the evidence needed to do so is common or individual”). Second, GEO’s sole argument to the contrary—that the common evidence cannot establish a reasonable expectation of payment on the part of the class members—fails because Colorado law does not require such a showing as an element of unjust enrichment.
1) The class members’ unjustness showings rely on common circumstances
Although the unjustness element requires “a fact-intensive inquiry,” Melat, 287 P.3d at 847, the unjust enrichment class members intend to rely on facts that are shared amongst the class and thus are susceptible to class-wide proof. The class members “claim that GEO’s retention of the benefit is unjust because GEO utilized a policy [of] paying extremely low wages to workers who were all detained, uniquely vulnerable as immigrants, and subject to GEO’s physical control.” Aplee. Br. at 48. They seek to establish the unjust nature of GEO’s benefit based on “evidence of a common course of conduct by GEO—the uniform VWP and the uniform payments.” Id. at 51. Because the class members’ theory of unjustness depends on shared rather than individualized
33

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circumstances, the unjustness question is common to the class and does not defeat predominance. See Tyson Foods, 136 S. Ct. at 1045 (“[A] common question is one where the same evidence will suffice for each member to make a prima facie showing or the issue is susceptible to generalized, class-wide proof.” (brackets and quotations omitted)).
2) The class members need not show a reasonable expectation of payment under Colorado law
GEO’s only argument as to why class members would need to rely on individualized circumstances to show unjustness is that Colorado law requires plaintiffs to show a reasonable expectation of payment beyond $1 per day, which the common evidence here does not support. This argument fails because, as discussed above, the Colorado Supreme Court has made clear that a reasonable expectation of payment is not a required element of unjust enrichment under Colorado law. See Ed Duggan, 821 P.2d at 799-800 & n.19.17
In light of Ed Duggan, GEO’s citation to an earlier, contrary decision by the Colorado Court of Appeals, Aplt. Br. at 46, 51, is not persuasive. See Britvar v.
17 We address GEO’s “reasonable expectation” argument—even though it overlaps with the merits of the underlying unjust enrichment claims— “only to the extent . . . [it is] relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.” Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 466 (2013). As we noted above, Rule 23(b)(3) predominance depends on “how the class intends to answer factual and legal questions to prove its claim—and the extent to which the evidence needed to do so is common or individual.” CGC Holding, 773 F.3d at 1087. Answering the predominance question thus requires an understanding of the elements of the class’s underlying claim (in this case, whether unjust enrichment has a “reasonable expectation” element under Colorado law). See id. at 1088.
34

Case 1:14-cv-02887-JLK-MEH Document 114 Filed 02/09/18 USDC Colorado Page 35 of 37 Appellate Case: 17-1125 Document: 01019942810 Date Filed: 02/09/2018 Page: 35
Schainuck, 791 P.2d 1183, 1184 (Colo. App. 1989) (“A plaintiff cannot recover for unjust enrichment . . . for services rendered absent proof of circumstances indicating that compensation is reasonably expected.”). Moreover, post-Ed Duggan Colorado Supreme Court cases involving unjust enrichment claims have not required plaintiffs to show a reasonable expectation of payment by the defendant. See, e.g., City of Arvada ex rel. Arvada Police Dep’t v. Denver Health & Hosp. Auth., 403 P.3d 609, 616-17 (Colo. 2017) (concluding that a public hospital could seek recovery against a municipality under unjust enrichment theory where it, “by virtue of its statutory obligation, performed a service [providing medical treatment to a municipal arrestee] normally covered under contract,” even though the municipality “never promised to pay for that service, and has in fact refused to pay, but . . . may have received a benefit”).
* * * * In deciding the narrow question of whether the unjustness element is susceptible to class-wide proof, we take no position on whether the class would ultimately succeed on such proof at trial. See CGC Holding, 773 F.3d at 1087 (“For the purposes of class certification, our primary function is . . . not to make a determination on the merits of the putative class’s claims.”). Rather, we must affirm the district court’s determination if it “falls within the bounds of rationally available choices given the facts and law involved in the matter at hand.” See Soseeah, 808 F.3d at 808 (quotations omitted). Under the circumstances here, the district court determined that the class members could establish the unjustness of GEO’s benefit based not on individualized transactions but on the “overall context” and “uniform policies” shared by all class members. Menocal, 320
35

Case 1:14-cv-02887-JLK-MEH Document 114 Filed 02/09/18 USDC Colorado Page 36 of 37 Appellate Case: 17-1125 Document: 01019942810 Date Filed: 02/09/2018 Page: 36
F.R.D. at 269. For the foregoing reasons, we are satisfied that the district court did not abuse its discretion.
ii. Damages As with the TVPA class, the presence of individualized damages issues does not defeat the predominance of questions common to the unjust enrichment class. “[T]he fact that damages may have to be ascertained on an individual basis is not, standing alone, sufficient to defeat class certification.” XTO Energy, 725 F.3d at 1220 (quoting McLaughlin, 522 F.3d at 231); see also Newberg § 4:54 & n.2 (stating that “courts in every circuit have uniformly held that the 23(b)(3) predominance requirement is satisfied despite the need to make individualized damage determinations” and listing cases). Here, the district court reasonably found that “individual damages in this case should be easily calculable using a simple formula” based on number of hours worked, type of work performed, and fair market value of such work. Menocal, 320 F.R.D. at 270. It further stated that if damages proved to be less straightforward, “decertification or amendment of the class for damages determinations may be appropriate at a later juncture.” Id. The court therefore did not abuse its discretion in determining that individual damages would not predominate over the liability issues common to the class—including (1) whether GEO received a benefit from the class members’ VWP labor, and (2) whether it retained such a benefit unjustly. See XTO Energy, 725 F.3d at 1220 (“[T]he district court is in the best position to evaluate the practical difficulties which inhere in the class action format, and is especially suited to tailor the proceedings accordingly.”).
36

Case 1:14-cv-02887-JLK-MEH Document 114 Filed 02/09/18 USDC Colorado Page 37 of 37 Appellate Case: 17-1125 Document: 01019942810 Date Filed: 02/09/2018 Page: 37
* * * * The district court did not abuse its discretion in certifying the unjust enrichment class based on its “rigorous analysis” of the Rule 23 requirements contested here. See CGC Holding, 773 F.3d at 1086. The court reasonably determined that the class members shared the circumstances relevant to the unjustness question and that individual damage assessments would not predominate over the class’s common issues. Its findings on commonality, typicality, and superiority were likewise reasonable and fell within its discretion.
III. CONCLUSION We affirm the district court’s certification of both classes. We grant the outstanding motions for leave to file amicus briefs.
37

 
 Case: 1:14-cv-2887 As of: 04/11/2018 07:35 PM MDT 1 of 21
MJ CIV PP,STAYDI
U.S. District Court − District of Colorado District of Colorado (Denver)
CIVIL DOCKET FOR CASE #: 1:14−cv−02887−JLK−MEH

Menocal et al v. The GEO Group, Inc. Assigned to: Judge John L. Kane Referred to: Magistrate Judge Michael E. Hegarty Case in other court: USCA, 17−01125
USCA, 17−00701 Cause: 05:704 Labor Litigation
Plaintiff

Date Filed: 10/22/2014 Jury Demand: Defendant Nature of Suit: 790 Other Labor Litigation Jurisdiction: Federal Question

Alejandro Menocal

represented by Alexander Neville Hood Towards Justice−Denver 1410 High Street Suite 300 Denver, CO 80218 720−239−2606 Fax: 303−957−2289 Email: alex@towardsjustice.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew Hess Turner Kelman Buescher Firm 600 Grant Street Suite 450 Denver, CO 80203 303−333−7751 Fax: 303−333−7758 Email: aturner@laborlawdenver.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hans Christopher Meyer Meyer Law Office, P.C. P.O. Box 40394 1029 Santa Fe Drive Denver, CO 80204 303−831−0817 Fax: 720−210−9858 Email: hans@themeyerlawoffice.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

P. David Lopez Outten & Golden, LLP−DC 601 Massachusetts Avenue NW 2nd Floor West Suite Washington, DC 20001 202−847−4400 Fax: 202−847−4410 Email: pdl@outtengolden.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ashley Kathryn Boothby Kelman Buescher Firm 600 Grant Street Suite 450 Denver, CO 80203 303−333−7751

Case: 1:14-cv-2887 As of: 04/11/2018 07:35 PM MDT 2 of 21
Fax: 303−333−7758 Email: aboothby@laborlawdenver.com ATTORNEY TO BE NOTICED
David Hollis Seligman Towards Justice−Denver 1410 High Street Suite 300 Denver, CO 80218 (720) 248−8426 Fax: (303) 957−2289 Email: david@towardsjustice.org ATTORNEY TO BE NOTICED
Elizabeth V. Stork Outten & Golden, LLP−New York 685 Third Avenue 25th Floor New York, NY 10017 212−245−1000 Fax: 646−509−2060 Email: estork@outtengolden.com TERMINATED: 02/16/2018
Juno E. Turner Outten & Golden, LLP−New York 685 Third Avenue 25th Floor New York, NY 10017 212−245−1000 Fax: 646−509−2060 Email: jturner@outtengolden.com ATTORNEY TO BE NOTICED
Ossai Miazad Outten & Golden, LLP−New York 685 Third Avenue 25th Floor New York, NY 10017 212−245−1000 Fax: 646−509−2060 Email: om@outtengolden.com ATTORNEY TO BE NOTICED
Rachel Williams Dempsey Outten & Golden, LLP−San Francisco One Embarcadero Center 38th Floor San Francisco, CA 94111 415−638−8800 Fax: 415−638−8810 Email: rdempsey@outtengolden.com ATTORNEY TO BE NOTICED
Robert Andrew Free R. Andrew Free Law Office 414 Union Street Suite 900 Nashville, TN 37209 615−244−2202 Fax: 615−244−4345 Email: Andrew@ImmigrantCivilRights.com ATTORNEY TO BE NOTICED
Brandt Powers Milstein

Case: 1:14-cv-2887 As of: 04/11/2018 07:35 PM MDT 3 of 21

Milstein Law Office 1123 Spruce Street Boulder, CO 80302 303−440−8780 Fax: 303−957−5754 Email: brandt@milsteinlawoffice.com ATTORNEY TO BE NOTICED

Plaintiff Marcos Brambila

represented by Alexander Neville Hood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew Hess Turner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hans Christopher Meyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

P. David Lopez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ashley Kathryn Boothby (See above for address) ATTORNEY TO BE NOTICED

David Hollis Seligman (See above for address) ATTORNEY TO BE NOTICED

Elizabeth V. Stork (See above for address) TERMINATED: 02/16/2018

Juno E. Turner (See above for address) ATTORNEY TO BE NOTICED

Ossai Miazad (See above for address) ATTORNEY TO BE NOTICED

Rachel Williams Dempsey (See above for address) ATTORNEY TO BE NOTICED

Robert Andrew Free (See above for address) ATTORNEY TO BE NOTICED

Brandt Powers Milstein (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Grisel Xahuentitla

represented by Alexander Neville Hood (See above for address)

Case: 1:14-cv-2887 As of: 04/11/2018 07:35 PM MDT 4 of 21

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew Hess Turner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hans Christopher Meyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

P. David Lopez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ashley Kathryn Boothby (See above for address) ATTORNEY TO BE NOTICED

David Hollis Seligman (See above for address) ATTORNEY TO BE NOTICED

Elizabeth V. Stork (See above for address) TERMINATED: 02/16/2018

Juno E. Turner (See above for address) ATTORNEY TO BE NOTICED

Ossai Miazad (See above for address) ATTORNEY TO BE NOTICED

Rachel Williams Dempsey (See above for address) ATTORNEY TO BE NOTICED

Robert Andrew Free (See above for address) ATTORNEY TO BE NOTICED

Brandt Powers Milstein (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Hugo Hernandez

represented by Alexander Neville Hood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew Hess Turner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hans Christopher Meyer (See above for address) LEAD ATTORNEY

Case: 1:14-cv-2887 As of: 04/11/2018 07:35 PM MDT 5 of 21

ATTORNEY TO BE NOTICED

P. David Lopez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ashley Kathryn Boothby (See above for address) ATTORNEY TO BE NOTICED

David Hollis Seligman (See above for address) ATTORNEY TO BE NOTICED

Elizabeth V. Stork (See above for address) TERMINATED: 02/16/2018

Juno E. Turner (See above for address) ATTORNEY TO BE NOTICED

Ossai Miazad (See above for address) ATTORNEY TO BE NOTICED

Rachel Williams Dempsey (See above for address) ATTORNEY TO BE NOTICED

Robert Andrew Free (See above for address) ATTORNEY TO BE NOTICED

Brandt Powers Milstein (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Lourdes Argueta

represented by Alexander Neville Hood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew Hess Turner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hans Christopher Meyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

P. David Lopez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ashley Kathryn Boothby (See above for address) ATTORNEY TO BE NOTICED

Case: 1:14-cv-2887 As of: 04/11/2018 07:35 PM MDT 6 of 21

David Hollis Seligman (See above for address) ATTORNEY TO BE NOTICED

Elizabeth V. Stork (See above for address) TERMINATED: 02/16/2018

Juno E. Turner (See above for address) ATTORNEY TO BE NOTICED

Ossai Miazad (See above for address) ATTORNEY TO BE NOTICED

Rachel Williams Dempsey (See above for address) ATTORNEY TO BE NOTICED

Robert Andrew Free (See above for address) ATTORNEY TO BE NOTICED

Brandt Powers Milstein (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jesus Gaytan

represented by Alexander Neville Hood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew Hess Turner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hans Christopher Meyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

P. David Lopez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ashley Kathryn Boothby (See above for address) ATTORNEY TO BE NOTICED

David Hollis Seligman (See above for address) ATTORNEY TO BE NOTICED

Elizabeth V. Stork (See above for address) TERMINATED: 02/16/2018

Juno E. Turner (See above for address) ATTORNEY TO BE NOTICED

Case: 1:14-cv-2887 As of: 04/11/2018 07:35 PM MDT 7 of 21

Plaintiff Olga Alexaklina

Ossai Miazad (See above for address) ATTORNEY TO BE NOTICED
Rachel Williams Dempsey (See above for address) ATTORNEY TO BE NOTICED
Robert Andrew Free (See above for address) ATTORNEY TO BE NOTICED
Brandt Powers Milstein (See above for address) ATTORNEY TO BE NOTICED
represented by Alexander Neville Hood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Hess Turner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Hans Christopher Meyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
P. David Lopez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ashley Kathryn Boothby (See above for address) ATTORNEY TO BE NOTICED
David Hollis Seligman (See above for address) ATTORNEY TO BE NOTICED
Elizabeth V. Stork (See above for address) TERMINATED: 02/16/2018
Juno E. Turner (See above for address) ATTORNEY TO BE NOTICED
Ossai Miazad (See above for address) ATTORNEY TO BE NOTICED
Rachel Williams Dempsey (See above for address) ATTORNEY TO BE NOTICED
Robert Andrew Free (See above for address)

Case: 1:14-cv-2887 As of: 04/11/2018 07:35 PM MDT 8 of 21

ATTORNEY TO BE NOTICED

Brandt Powers Milstein (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Dagoberto Vizguerra

represented by Alexander Neville Hood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew Hess Turner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hans Christopher Meyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

P. David Lopez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ashley Kathryn Boothby (See above for address) ATTORNEY TO BE NOTICED

David Hollis Seligman (See above for address) ATTORNEY TO BE NOTICED

Elizabeth V. Stork (See above for address) TERMINATED: 02/16/2018

Juno E. Turner (See above for address) ATTORNEY TO BE NOTICED

Ossai Miazad (See above for address) ATTORNEY TO BE NOTICED

Rachel Williams Dempsey (See above for address) ATTORNEY TO BE NOTICED

Robert Andrew Free (See above for address) ATTORNEY TO BE NOTICED

Brandt Powers Milstein (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Demetrio Valerga on their own behalf and on behalf of all others similarly situated

represented by Alexander Neville Hood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:14-cv-2887 As of: 04/11/2018 07:35 PM MDT 9 of 21

Andrew Hess Turner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Hans Christopher Meyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
P. David Lopez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ashley Kathryn Boothby (See above for address) ATTORNEY TO BE NOTICED
David Hollis Seligman (See above for address) ATTORNEY TO BE NOTICED
Elizabeth V. Stork (See above for address) TERMINATED: 02/16/2018
Juno E. Turner (See above for address) ATTORNEY TO BE NOTICED
Ossai Miazad (See above for address) ATTORNEY TO BE NOTICED
Rachel Williams Dempsey (See above for address) ATTORNEY TO BE NOTICED
Robert Andrew Free (See above for address) ATTORNEY TO BE NOTICED
Brandt Powers Milstein (See above for address) ATTORNEY TO BE NOTICED

V. Defendant GEO Group, Inc., The

represented by Erik Karl Schuessler Burns Figa & Will, P.C. 6400 South Fiddlers Green Circle Plaza Tower One Suite 1000 Greenwood Village, CO 80111 303−796−2626 Fax: 303−796−2777 Email: eschuessler@bfwlaw.com TERMINATED: 06/06/2017 LEAD ATTORNEY
Charles A. Deacon

Case: 1:14-cv-2887 As of: 04/11/2018 07:35 PM MDT 10 of 21
Norton Rose Fulbright US LLP−San Antonio 300 Convent Street Suite 2200 San Antonio, TX 78205 210−270−7133 Fax: 210−270−7205 Email: charlie.deacon@nortonrosefulbright.com ATTORNEY TO BE NOTICED
Dana L. Eismeier Burns Figa & Will, P.C. 6400 South Fiddlers Green Circle Plaza Tower One Suite 1000 Greenwood Village, CO 80111 303−796−2626 Fax: 303−796−2777 Email: deismeier@bfwlaw.com ATTORNEY TO BE NOTICED
David R. DeMuro Vaughan & DeMuro−Denver 720 South Colorado Boulevard North Tower, Penthouse Denver, CO 80246 303−837−9200 Email: ddemuro@vaughandemuro.com TERMINATED: 10/26/2016
Mark Thomas Emery Norton Rose Fulbright US LLP−DC 799 9th Street Suite 1000 Washington, DC 20001−4501 202−662−0210 Fax: 202−662−4643 Email: mark.emery@nortonrosefulbright.com ATTORNEY TO BE NOTICED
Michael York Ley Burns Figa & Will, P.C. 6400 South Fiddlers Green Circle Plaza Tower One Suite 1000 Greenwood Village, CO 80111 303−796−2626 Email: mley@bfwlaw.com ATTORNEY TO BE NOTICED
Shelby Anne Felton Denver City Attorney's Office−West Colfax Avenue 201 West Colfax Avenue Denver, CO 80202−5332 720−913−3117 Email: shelby.felton@denvergov.org TERMINATED: 10/26/2016

Date Filed 10/22/2014

# Docket Text
1 COMPLAINT CLASS ACTION COMPLAINT FOR UNPAID WAGES AND FORCED LABOR against The GEO Group, Inc. (Filing fee $ 400,Receipt Number 1082−4105561)Attorney Brandt Powers Milstein added to party Olga

Case: 1:14-cv-2887 As of: 04/11/2018 07:35 PM MDT 11 of 21

10/23/2014 10/23/2014 10/23/2014
10/28/2014 10/31/2014 10/31/2014
10/31/2014 11/14/2014 11/14/2014 11/14/2014 11/17/2014

Alexaklina(pty:pla), Attorney Brandt Powers Milstein added to party Lourdes Argueta(pty:pla), Attorney Brandt Powers Milstein added to party Marcos Brambila(pty:pla), Attorney Brandt Powers Milstein added to party Jesus Gaytan(pty:pla), Attorney Brandt Powers Milstein added to party Hugo Hernandez(pty:pla), Attorney Brandt Powers Milstein added to party Alejandro Menocal(pty:pla), Attorney Brandt Powers Milstein added to party Demetrio Valerga(pty:pla), Attorney Brandt Powers Milstein added to party Dagoberto Vizguerra(pty:pla), Attorney Brandt Powers Milstein added to party Grisel Xahuentitla(pty:pla), filed by Jesus Gaytan, Grisel Xahuentitla, Olga Alexaklina, Demetrio Valerga, Marcos Brambila, Dagoberto Vizguerra, Hugo Hernandez, Alejandro Menocal, Lourdes Argueta. (Attachments: # 1 Civil Cover Sheet, # 2 Summons)(Milstein, Brandt) (Entered: 10/22/2014)
2 Case assigned to Magistrate Judge Craig B. Shaffer. Text Only Entry. (jofox ) (Entered: 10/23/2014)
3 SUMMONS issued by Clerk. Magistrate Judge Consent Form issued pursuant to Magistrate Judge Pilot Project to Assign Civil Cases to Full Time Magistrate Judges. (Attachments: # 1 Magistrate Judge Consent Form) (jofox ) (Entered: 10/23/2014)
4 NOTICE of Entry of Appearance as Counsel for Plaintiffs by Robert Andrew Free on behalf of All Plaintiffs Attorney Robert Andrew Free added to party Olga Alexaklina(pty:pla), Attorney Robert Andrew Free added to party Lourdes Argueta(pty:pla), Attorney Robert Andrew Free added to party Marcos Brambila(pty:pla), Attorney Robert Andrew Free added to party Jesus Gaytan(pty:pla), Attorney Robert Andrew Free added to party Hugo Hernandez(pty:pla), Attorney Robert Andrew Free added to party Alejandro Menocal(pty:pla), Attorney Robert Andrew Free added to party Demetrio Valerga(pty:pla), Attorney Robert Andrew Free added to party Dagoberto Vizguerra(pty:pla), Attorney Robert Andrew Free added to party Grisel Xahuentitla(pty:pla) (Free, Robert) (Entered: 10/23/2014)
5 SUMMONS Returned Executed by All Plaintiffs. GEO Group, Inc., The served on 10/24/2014, answer due 11/14/2014. (Milstein, Brandt) (Entered: 10/28/2014)
6 NOTICE of Entry of Appearance by David R. DeMuro on behalf of GEO Group, Inc., TheAttorney David R. DeMuro added to party GEO Group, Inc., The(pty:dft) (DeMuro, David) (Entered: 10/31/2014)
7 MINUTE ORDER setting a Scheduling Conference on 12/19/2014 at 11:00 AM in Courtroom A 402 before Magistrate Judge Craig B. Shaffer. ORDERED that parties shall adhere to the deadlines and instructions as set forth in Preparation for Rule 16(b) Scheduling Conference, located on the court's website under "Judicial Officers." Text Only Entry by Magistrate Judge Craig B. Shaffer on 10/31/14. (cbssec) (Entered: 10/31/2014)
8 NOTICE of Entry of Appearance by Shelby Anne Felton on behalf of GEO Group, Inc., TheAttorney Shelby Anne Felton added to party GEO Group, Inc., The(pty:dft) (Felton, Shelby) (Entered: 10/31/2014)
9 CONSENT to Jurisdiction of Magistrate Judge by Plaintiffs Olga Alexaklina, Lourdes Argueta, Marcos Brambila, Jesus Gaytan, Hugo Hernandez, Alejandro Menocal, Demetrio Valerga, Dagoberto Vizguerra, Grisel Xahuentitla. (Milstein, Brandt) (Entered: 11/14/2014)
10 CASE REASSIGNED pursuant to 9 Consent to Jurisdiction of Magistrate Judge. Consent not achieved. This case is reassigned to Judge John L. Kane. All future pleadings should be designated as 14−cv−02887−JLK−CBS. (Text Only Entry) (nmarb, ) (Entered: 11/14/2014)
11 MOTION to Dismiss by Defendant GEO Group, Inc., The. (Attachments: # 1 Exhibit A and B, # 2 Exhibit C and D)(Felton, Shelby) (Entered: 11/14/2014)
12 Unopposed MOTION for Extension of Time to File Response/Reply as to 11 MOTION to Dismiss by Plaintiffs Olga Alexaklina, Lourdes Argueta, Marcos Brambila, Jesus Gaytan, Hugo Hernandez, Alejandro Menocal, Demetrio Valerga, Dagoberto Vizguerra, Grisel Xahuentitla. (Milstein, Brandt) (Entered: 11/17/2014)

Case: 1:14-cv-2887 As of: 04/11/2018 07:35 PM MDT 12 of 21

11/17/2014 11/21/2014 12/19/2014 12/22/2014 12/23/2014 01/16/2015 01/23/2015 01/27/2015 02/17/2015 03/20/2015 07/06/2015 07/10/2015
07/15/2015

13 MINUTE ORDER GRANTING Plaintiffs' Motion to Extend Deadline to Respond to Motion to Dismiss (Doc. 12), which is unopposed. ORDERED that the due date for Plaintiffs' response is extended fourteen days to and including December 19, 2014 by Judge John L. Kane on 11/17/14. Text Only Entry(jhawk, ) (Entered: 11/17/2014)
14 MINUTE ORDER vacating the 12/19/14 Scheduling Conference in light of this case being reassigned per doc. # 10 . Text Only Entry by Magistrate Judge Craig B. Shaffer on 11/21/14. (cbssec) (Entered: 11/21/2014)
15 RESPONSE to 11 MOTION to Dismiss filed by Plaintiffs Olga Alexaklina, Lourdes Argueta, Marcos Brambila, Jesus Gaytan, Hugo Hernandez, Alejandro Menocal, Demetrio Valerga, Dagoberto Vizguerra, Grisel Xahuentitla. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Milstein, Brandt) (Entered: 12/19/2014)
16 Unopposed MOTION for Extension of Time to File Response/Reply as to 11 MOTION to Dismiss by Defendant GEO Group, Inc., The. (Felton, Shelby) (Entered: 12/22/2014)
17 ORDER granting 16 Motion for Extension of Time to File Reply. Defendant has up to and including January 16, 2015, to file its reply in support of the Motion to Dismiss, by Judge John L. Kane on 12/23/14. Text Only Entry(jlksec) (Entered: 12/23/2014)
18 REPLY to Response to 11 MOTION to Dismiss filed by Defendant GEO Group, Inc., The. (Attachments: # 1 Exhibit E, # 2 Exhibit F)(Felton, Shelby) (Entered: 01/16/2015)
19 Unopposed MOTION for Leave to File Sur−reply to 18 Reply to Response to Motion by Plaintiffs Olga Alexaklina, Lourdes Argueta, Marcos Brambila, Jesus Gaytan, Hugo Hernandez, Alejandro Menocal, Demetrio Valerga, Dagoberto Vizguerra, Grisel Xahuentitla. (Milstein, Brandt) (Entered: 01/23/2015)
20 ORDER granting 19 Motion for Leave. Plaintiffs shall file a sur−reply regarding Defendant's McNamara−O'Hara Service Contract Act and Government Contractor defense arguments no later than February 17, 2015, by Judge John L. Kane on 01/27/2015. (athom, ) (Entered: 01/27/2015)
21 SURREPLY re 11 MOTION to Dismiss filed by Plaintiffs Olga Alexaklina, Lourdes Argueta, Marcos Brambila, Jesus Gaytan, Hugo Hernandez, Alejandro Menocal, Demetrio Valerga, Dagoberto Vizguerra, Grisel Xahuentitla. (Attachments: # 1 Exhibit)(Milstein, Brandt) (Entered: 02/17/2015)
22 NOTICE of Change of Address/Contact Information by Alexander Neville Hood (Hood, Alexander) (Entered: 03/20/2015)
23 Memorandum Opinion and ORDER. Plaintiffs' CMWO claims are dismissed, and Defendant's motion is denied with respect to Plaintiffs' TVPA and unjust enrichment claims. Entered by Judge John L. Kane on 07/06/15.(jhawk, ) (Entered: 07/07/2015)
24 MINUTE ORDER SETTING SCHEDULING CONFERENCE. This case is set for a Scheduling Conference at 11:00 a.m. on Tuesday, August 11, 2015, in Courtroom A802 on the 8th floor of the Alfred A. Arraj U.S. Courthouse, 901 19th Street, Denver. The parties shall prepare and file a Stipulated Scheduling and Discovery Order on or before Tuesday, August 4, 2015. See instructions for proper formatting of this order in Judge Kane's Pretrial and Trial Procedures Memorandum, available on the court's website at http://www.cod.uscourts.gov/Home.aspx (Select Judge Kane under "Judicial Officers," "Senior Article III Judges"). A form of order is also available on the website, and the parties' proposed Scheduling Order should follow the example provided, which is different from those used by magistrate and other judges of this court. Judge Kane requests that an editable version of the Stipulated Scheduling Order be emailed to chambers as well, at Kane_Chambers@cod.uscourts.gov.Counsel and pro se litigants shall read and strictly adhere to all instructions in the Judges Pretrial and Trial Procedures Memorandum. Particular attention is called to Part III, regarding motions for summary judgment. Entered by Judge John L. Kane on 07/10/15. Text Only Entry (jhawk, ) (Entered: 07/10/2015)
25 NOTICE of Entry of Appearance by Charles A. Deacon on behalf of GEO Group, Inc., TheAttorney Charles A. Deacon added to party GEO Group, Inc., The(pty:dft) (Deacon, Charles) (Entered: 07/15/2015)

Case: 1:14-cv-2887 As of: 04/11/2018 07:35 PM MDT 13 of 21

07/20/2015 07/24/2015 08/04/2015 08/04/2015 08/11/2015 08/24/2015 08/24/2015
08/26/2015 08/31/2015 09/03/2015
09/10/2015 09/11/2015
09/22/2015 10/13/2015

26 ANSWER to 1 Complaint,,,, by GEO Group, Inc., The.(Felton, Shelby) (Entered: 07/20/2015)
27 NOTICE of Entry of Appearance by Mark Thomas Emery on behalf of GEO Group, Inc., TheAttorney Mark Thomas Emery added to party GEO Group, Inc., The(pty:dft) (Emery, Mark) (Entered: 07/24/2015)
28 Proposed Scheduling Order by Plaintiffs Olga Alexaklina, Lourdes Argueta, Marcos Brambila, Jesus Gaytan, Hugo Hernandez, Alejandro Menocal, Demetrio Valerga, Dagoberto Vizguerra, Grisel Xahuentitla. (Milstein, Brandt) (Entered: 08/04/2015)
29 MOTION for Reconsideration re 23 Order on Motion to Dismiss by Defendant GEO Group, Inc., The. (Deacon, Charles) (Entered: 08/04/2015)
30 MINUTE ENTRY for Scheduling Conference proceedings held before Judge John L. Kane on 8/11/2015. Scheduling Order NOT approved and signed. Court Reporter: Kara Spitler. (babia) (Entered: 08/11/2015)
31 MOTION to Strike 29 MOTION for Reconsideration re 23 Order on Motion to Dismiss by Plaintiffs Olga Alexaklina, Lourdes Argueta, Marcos Brambila, Jesus Gaytan, Hugo Hernandez, Alejandro Menocal, Demetrio Valerga, Dagoberto Vizguerra, Grisel Xahuentitla. (Hood, Alexander) (Entered: 08/24/2015)
32 MOTION to Stay PLAINTIFFS' RESPONSE DEADLINE TO DEFENDANT'S MOTION FOR RECONSIDERATION [DOC. 29] PENDING A DECISION ON PLAINTIFFS' MOTION TO STRIKE [DOC. 31] by Plaintiffs Olga Alexaklina, Lourdes Argueta, Marcos Brambila, Jesus Gaytan, Hugo Hernandez, Alejandro Menocal, Demetrio Valerga. (Hood, Alexander) (Entered: 08/24/2015)
33 ORDER on Motion for Reconsideration. Defendant's Motion for Reconsideration 29 is DENIED, and Plaintiffs' Motion to Strike the Motion for Reconsideration 31 and Motion to Stay Plaintiffs' Response Deadline 32 are DENIED AS MOOT. Entered by Judge John L. Kane on 08/26/15.(jhawk, ) (Entered: 08/26/2015)
34 STIPULATION for Extension of Time for Discovery Responses by Defendant GEO Group, Inc., The. (Felton, Shelby) (Entered: 08/31/2015)
35 MINUTE ORDER. The parties are ORDERED to confer and jointly submit a proposed briefing schedule for the Plaintiffs' motion for class certification, as well as a proposed schedule for any discovery on class certification issues to be conducted in connection with that motion, on or before September 11, 2015. The Court will address the balance of the schedule in this case after resolution of Plaintiffs' class certification motion. Entered by Judge John L. Kane on 09/03/15. Text Only Entry (jhawk, ) (Entered: 09/04/2015)
36 Joint STATUS REPORT by Plaintiffs Olga Alexaklina, Lourdes Argueta, Marcos Brambila, Jesus Gaytan, Hugo Hernandez, Alejandro Menocal, Demetrio Valerga, Dagoberto Vizguerra, Grisel Xahuentitla. (Turner, Andrew) (Entered: 09/10/2015)
37 MINUTE ORDER. Pursuant to the parties' Joint Status Report 36 , it is ORDERED that the parties shall have up to and including December 15, 2015 to complete discovery regarding class certification issues. It is further ORDERED that Plaintiffs' Motion for Class Certification will be filed on or before January 11, 2016, Defendant's response will be filed on or before February 11, 2016, and Plaintiffs' reply will be filed on or before February 25, 2016. Entered by Judge John L. Kane on 09/11/15. Text Only Entry (jhawk, ) (Entered: 09/11/2015)
38 MOTION for Order to Certifying an Interlocutory Appeal and, MOTION to Stay Litigation Pending Appeal by Defendant GEO Group, Inc., The. (Deacon, Charles) (Entered: 09/22/2015)
39 RESPONSE to 38 MOTION for Order to Certifying an Interlocutory Appeal and MOTION to Stay Litigation Pending Appeal filed by Plaintiffs Olga Alexaklina, Lourdes Argueta, Marcos Brambila, Jesus Gaytan, Hugo Hernandez, Alejandro Menocal, Demetrio Valerga, Dagoberto Vizguerra, Grisel Xahuentitla. (Free, Robert) (Entered: 10/13/2015)

Case: 1:14-cv-2887 As of: 04/11/2018 07:35 PM MDT 14 of 21

10/21/2015 11/13/2015 11/16/2015
02/01/2016 02/05/2016 02/08/2016 02/10/2016 02/11/2016
03/17/2016 05/06/2016
05/06/2016
06/01/2016

40 BRIEF in Support of 38 MOTION for Order to Certifying an Interlocutory Appeal and MOTION to Stay Litigation Pending Appeal filed by Defendant GEO Group, Inc., The. (Deacon, Charles) (Entered: 10/21/2015)
41 Unopposed MOTION for Extension of Time to Complete Class Discovery and Class Certification Briefing by Plaintiffs Olga Alexaklina, Lourdes Argueta, Marcos Brambila, Jesus Gaytan, Hugo Hernandez, Alejandro Menocal, Demetrio Valerga, Dagoberto Vizguerra, Grisel Xahuentitla. (Milstein, Brandt) (Entered: 11/13/2015)
42 MINUTE ORDER. Plaintiffs' Unopposed Motion for Extension of Time 41 is GRANTED. It is ORDERED that the parties shall have up to and including January 26, 2016, to complete discovery regarding class certification issues. It is further ORDERED that Plaintiffs' Motion for Class Certification will be filed on or before February 26, 2016; Defendant's response will be filed on or before March 21, 2016; and Plaintiffs' reply will be filed on or before April 7, 2016. Entered by Judge John L. Kane on 11/16/15. Text Only Entry(jhawk, ) (Entered: 11/16/2015)
43 NOTICE of Change of Address/Contact Information by Shelby Anne Felton (Felton, Shelby) (Entered: 02/01/2016)
44 Stipulated MOTION for Protective Order by Defendant GEO Group, Inc., The. (Attachments: # 1 Proposed Order (PDF Only))(Felton, Shelby) (Entered: 02/05/2016)
45 Stipulated Protective Order Concerning Confidential Information re: 44 . Signed by Judge John L. Kane on 02/28/16.(jhawk, ) (Entered: 02/08/2016)
46 Unopposed MOTION for Extension of Time to COMPLETE CLASS DISCOVERY AND TO FILE A CLASS CERTIFICATION MOTION by Plaintiffs Olga Alexaklina, Lourdes Argueta, Marcos Brambila, Jesus Gaytan, Hugo Hernandez, Alejandro Menocal, Demetrio Valerga, Dagoberto Vizguerra, Grisel Xahuentitla. (Hood, Alexander) (Entered: 02/10/2016)
47 MINUTE ORDER. Plaintiffs' Unopposed Motion to Extend Class Discovery and Class Certification Motion Deadline 46 is GRANTED. It is ORDERED that the parties shall have up to and including March 31, 2016, for the taking of a 30 (b)(6) deposition of the defendant. It is further ORDERED that Plaintiffs' Motion for Class Certification will be filed on or before May 6, 2016; Defendant's response will be filed on or before June 1, 2016; and Plaintiffs' reply will be filed on or before June 15, 2016. Entered by Judge John L. Kane on 02/11/16. Text Only Entry(jhawk, ) (Entered: 02/11/2016)
48 ORDER on Motion for Interlocutory Appeal. Defendant's Motion for an Interlocutory Appeal (Doc. 38 ) is DENIED and Defendant's request for a stay pending appeal is DENIED AS MOOT. By Judge John L. Kane on 03/17/2016. (athom, ) (Entered: 03/18/2016)
49 MOTION to Certify Class UNDER RULE 23(b)(3) AND TO APPOINT CLASS COUNSEL UNDER RULE 23(g) by Plaintiffs Olga Alexaklina, Lourdes Argueta, Marcos Brambila, Jesus Gaytan, Hugo Hernandez, Alejandro Menocal, Demetrio Valerga, Dagoberto Vizguerra, Grisel Xahuentitla. (Attachments: # 1 Ex. 3 − US DOL Wage Determination, # 2 Ex. 5 − Menocal Dec., # 3 Ex. 6 − Xahuentitla Dec., # 4 Ex. 7 − Argueta Dec., # 5 Ex. 8 − Gaytan Dec., # 6 Ex. 9 − Valerga Dec., # 7 Ex. 10 − Ortiz Dec., # 8 Ex. 11 − Hernandez Dec, # 9 Ex. 12 − Mendoza Dec, # 10 Ex. 17 − Plaintiffs' Counsel Decs.)(Hood, Alexander) (Entered: 05/06/2016)
50 UNRESTRICTED DOCUMENT − Level 1−Exhibits to Motion to Certify 49 by Plaintiffs Olga Alexaklina, Lourdes Argueta, Marcos Brambila, Jesus Gaytan, Hugo Hernandez, Alejandro Menocal, Demetrio Valerga, Dagoberto Vizguerra, Grisel Xahuentitla.. (Attachments: # 1 Ex. 1 − FRCP 30(b)(6) Dep. of Defendant (Dawn Ceja), # 2 Ex. 2 − Policy and Procedure Manual (#1), # 3 Ex. 4 − Detainee Handbook Local Supp., # 4 Ex. 13 − Policy & Procedure Manual (#2), # 5 Ex. 14 − FRCP 30(b)(6) Dep. of Defendant (Melody Jean Furst), # 6 Ex. 15 − Man Days Billing Report Nov. 2012, # 7 Ex. 16 − Detainee Grievances)(Hood, Alexander) Modified on 5/9/2016 to add text (jhawk, ). Modified on 5/23/2016 unrestricted as no motion to restrict was filed (jhawk, ). (Entered: 05/06/2016)
51 RESPONSE to 49 MOTION to Certify Class UNDER RULE 23(b)(3) AND TO APPOINT CLASS COUNSEL UNDER RULE 23(g) filed by Defendant GEO Group, Inc., The. (Attachments: # 1 Exhibit ICE Aurora Detainee Handbook, # 2 Exhibit

Case: 1:14-cv-2887 As of: 04/11/2018 07:35 PM MDT 15 of 21

06/15/2016 10/26/2016 10/26/2016
10/26/2016 02/13/2017 02/27/2017
03/14/2017 03/27/2017 03/28/2017 03/31/2017 04/05/2017 04/11/2017

PBNDS, # 3 Exhibit ICE National Detainee Handbook, # 4 Exhibit Ceja Declaration, # 5 Exhibit Whyte Decision, # 6 Exhibit VWP Application)(Emery, Mark) (Entered: 06/01/2016)
52 REPLY to Response to 49 MOTION to Certify Class UNDER RULE 23(b)(3) AND TO APPOINT CLASS COUNSEL UNDER RULE 23(g) filed by Plaintiffs Olga Alexaklina, Lourdes Argueta, Marcos Brambila, Jesus Gaytan, Hugo Hernandez, Alejandro Menocal, Demetrio Valerga, Dagoberto Vizguerra, Grisel Xahuentitla. (Hood, Alexander) (Entered: 06/15/2016)
53 Unopposed MOTION to Withdraw as Attorney by Defendant GEO Group, Inc., The. (DeMuro, David) (Entered: 10/26/2016)
54 ORDER granting 53 Motion to Withdraw as Attorney. ORDERED that Attorneys Shelby A. Felton and David R. DeMuro, co−counsel of record for the defendant The Geo Group, Inc., are hereby withdrawn as counsel of record for The Geo Group, Inc. ORDERED that the electronic mail notifications to Shelby A. Felton and David R. DeMuro are terminated in this case. Signed by Judge John L. Kane on 10/26/16.(jhawk, ) (Entered: 10/26/2016)
55 NOTICE of Entry of Appearance by Dana L. Eismeier on behalf of GEO Group, Inc., TheAttorney Dana L. Eismeier added to party GEO Group, Inc., The(pty:dft) (Eismeier, Dana) (Entered: 10/26/2016)
56 NOTICE of Firm Name Change by Plaintiffs Olga Alexaklina, Lourdes Argueta, Marcos Brambila, Jesus Gaytan, Hugo Hernandez, Alejandro Menocal, Demetrio Valerga, Dagoberto Vizguerra, Grisel Xahuentitla (Turner, Andrew) (Entered: 02/13/2017)
57 ORDER granting 49 Motion to Certify Class and Appointment of Class Counsel. The classes as proposed in the Motion are certified for Representatives' TVPA and unjust enrichment claims. Alejandro Menocal, Marcos Brambila, Grisel Xahuentitla, Hugo Hernandez, Lourdes Argueta, Jesus Gaytan, Olga Alexaklina, Dagoberto Vizguerra, and Demetrio Valerga are named as representatives of the classes. Attorneys Brandt Milstein, Andrew Turner, Andrew Free, Alexander Hood, David Seligman, Andrew Schmidt, and Hans Meyer are appointed as counsel for the classes. To proceed with this case, the parties shall file a revised Proposed Stipulated Scheduling and Discovery Order by March 27, 2017. Signed by Judge John L. Kane on 02/27/17. (jhawk, ) (Entered: 02/27/2017)
58 USCA Letter Advising they have docketed permission to appeal pursuant to 28 U.S.C.1292(b) and Fed. R. App. P. 5. USCA Case No 17−701. (Attachments: # 1 Petition for Permission to Appeal Class Certification, # 2 A, # 3 B) (jhawk, ) (Entered: 03/15/2017)
59 Joint MOTION for Extension of Time to File Proposed Stipulated Scheduling and Discovery Order by Plaintiffs Olga Alexaklina, Lourdes Argueta, Marcos Brambila, Jesus Gaytan, Hugo Hernandez, Alejandro Menocal, Demetrio Valerga, Dagoberto Vizguerra, Grisel Xahuentitla. (Hood, Alexander) (Entered: 03/27/2017)
60 ORDER granting 59 Joint Motion for Extension of Time. The parties shall file a revised Proposed Stipulated Scheduling and Discovery Order by March 31, 2017. Ordered by Judge John L. Kane on 3/28/2017. Text Only Entry (jlksec) (Entered: 03/28/2017)
61 Proposed Scheduling Order (Joint, Stipulated) by Plaintiffs Olga Alexaklina, Lourdes Argueta, Marcos Brambila, Jesus Gaytan, Hugo Hernandez, Alejandro Menocal, Demetrio Valerga, Dagoberto Vizguerra, Grisel Xahuentitla. (Free, Robert) (Entered: 03/31/2017)
62 ORDER on Proposed Scheduling and Discovery Order 61 . The parties are directed to call in jointly at (303) 844−6118 on or before April 13, 2017, to set a date and time for the conference. The Proposed Order indicates that the parties' dispute the effect of the relevant Touhy regulations, 6 C.F.R. 5.41, et seq., on discovery proceedings in this case. Signed by Judge John L. Kane on 04/05/17. (jhawk, ) (Entered: 04/05/2017)
63 USCA Order. The clerk of this court is directed to open the new appeal once the clerk of the district court notifies this court that the filing fee has been paid. Id. at 5(d)(3).

Case: 1:14-cv-2887 As of: 04/11/2018 07:35 PM MDT 16 of 21

04/12/2017
04/14/2017 04/14/2017 04/14/2017 04/14/2017 04/25/2017 04/26/2017 04/26/2017 04/26/2017 04/26/2017
05/10/2017 05/11/2017 05/12/2017
05/12/2017 05/16/2017

(USCA Case Number 17−701) (jhawk, ) (Entered: 04/12/2017)
64 MINUTE ORDER SETTING SCHEDULING CONFERENCE. This case is set for an IN PERSON Scheduling Conference before Judge Kane at 11:00 a.m. on Wednesday, June 7, 2017, in Courtroom A802 on the 8th floor of the Alfred A. Arraj U.S. Courthouse, 901 19th Street, Denver. The court will discuss the Proposed Scheduling and Discovery Order (ECF No. 61) at the hearing. Ordered by Judge John L. Kane on 4/12/2017. Text Only Entry (jlksec) (Entered: 04/12/2017)
65 NOTICE OF APPEAL as to 57 Order on Motion to Certify Class, by Defendant GEO Group, Inc., The. (jhawk, ) (Entered: 04/14/2017)
66 USCA Appeal Fees received $ 505, receipt number 79387; Full Payment re 65 Notice of Appeal filed by GEO Group, Inc., The. (jhawk, ) (Entered: 04/14/2017)
67 LETTER Transmitting Notice of Appeal to all counsel advising of the transmittal of the 65 Notice of Appeal filed by GEO Group, Inc., The to the U.S. Court of Appeals. ( Retained Counsel, Fee paid,) (Attachments: # 1 Docket Sheet, # 2 Preliminary Record)(jhawk, ) (Entered: 04/14/2017)
68 USCA Case Number 17−1125 for 65 Notice of Appeal filed by GEO Group, Inc., The. (jhawk, ) (Entered: 04/14/2017)
69 MOTION to Stay Proceedings Pending Rule 23(f) Review by Defendant GEO Group, Inc., The. (Emery, Mark) (Entered: 04/25/2017)
70 TRANSCRIPT ORDER FORM re 65 Notice of Appeal by Defendant GEO Group, Inc., The (Emery, Mark) (Entered: 04/26/2017)
71 LETTER TO USCA and all counsel certifying the record is complete as to 65 Notice of Appeal filed by GEO Group, Inc., The. A transcript order form was filed stating that a transcript is not necessary. ( Appeal No. 17−01125) Text Only Entry (jhawk, ) (Entered: 04/26/2017)
72 MOTION for Protective Order by Defendant GEO Group, Inc., The. (Attachments: # 1 Exhibit A −− DOJ Letter, # 2 Exhibit B −− DOJ Letter, # 3 Exhibit C −− ICE Letter, # 4 Exhibit D −− ICE Letter)(Eismeier, Dana) (Entered: 04/26/2017)
73 MOTION to Compel by Plaintiffs Olga Alexaklina, Lourdes Argueta, Marcos Brambila, Jesus Gaytan, Hugo Hernandez, Alejandro Menocal, Demetrio Valerga, Dagoberto Vizguerra, Grisel Xahuentitla. (Attachments: # 1 Ex. A − Defendant's Disclosures, # 2 Ex. B − Disclosed Documents, # 3 Ex. C − Email from Opposing Counsel, # 4 Ex. D − Defendant's Touhy Correspondence, # 5 Ex. E − Defendant's Discovery Response, # 6 Ex. F − Supplemental Discovery Response)(Hood, Alexander) (Entered: 04/26/2017)
74 RESPONSE to 72 MOTION for Protective Order filed by Plaintiffs Olga Alexaklina, Lourdes Argueta, Marcos Brambila, Jesus Gaytan, Hugo Hernandez, Alejandro Menocal, Demetrio Valerga, Dagoberto Vizguerra, Grisel Xahuentitla. (Attachments: # 1 Exhibit)(Milstein, Brandt) (Entered: 05/10/2017)
75 Unopposed MOTION for Extension of Time to File Response/Reply as to 73 MOTION to Compel by Defendant GEO Group, Inc., The. (Attachments: # 1 Exhibit A −− Response to Motion to Compel, # 2 Exhibit A to Response to Motion to Compel −− Spreadsheet from AUSA)(Eismeier, Dana) (Entered: 05/11/2017)
76 MINUTE ORDER GRANTING Doc. 75 , Defendant's Unopposed Motion for Permission to File Response out of Time. Doc. [75−1] is accepted as the Response to the Motion to Compel (Doc. 73 ) and Doc. [75−2] is accepted as Exhibit A to the Response to the Motion to Compel. Entered by Judge John L. Kane on 05/12/17. Text Only Entry (jhawk, ) (Entered: 05/12/2017)
77 RESPONSE to 73 MOTION to Compel filed by Defendant GEO Group, Inc., The. (Attachments: # 1 Exhibit A)(jhawk, ) (Entered: 05/12/2017)
78 BRIEF in Opposition to 69 MOTION to Stay Proceedings Pending Rule 23(f) Review filed by Plaintiffs Olga Alexaklina, Lourdes Argueta, Marcos Brambila, Jesus Gaytan, Hugo Hernandez, Alejandro Menocal, Demetrio Valerga, Dagoberto Vizguerra, Grisel Xahuentitla. (Seligman, David) (Entered: 05/16/2017)

Case: 1:14-cv-2887 As of: 04/11/2018 07:35 PM MDT 17 of 21

05/17/2017 05/17/2017 05/22/2017 05/30/2017 06/06/2017 06/06/2017 06/06/2017
06/06/2017
06/07/2017
06/07/2017 06/07/2017 06/08/2017 06/14/2017

79 REPLY to Response to 72 MOTION for Protective Order filed by Defendant GEO Group, Inc., The. (Eismeier, Dana) (Entered: 05/17/2017)
80 REPLY to Response to 73 MOTION to Compel filed by Plaintiffs Olga Alexaklina, Lourdes Argueta, Marcos Brambila, Jesus Gaytan, Hugo Hernandez, Alejandro Menocal, Demetrio Valerga, Dagoberto Vizguerra, Grisel Xahuentitla. (Milstein, Brandt) (Entered: 05/17/2017)
81 Amicus Curiae Brief filed by Shane Cain (jhawk, ) (Entered: 05/22/2017)
82 REPLY to Response to 69 MOTION to Stay Proceedings Pending Rule 23(f) Review filed by Defendant GEO Group, Inc., The. (Emery, Mark) (Entered: 05/30/2017)
83 MOTION to Withdraw as Attorney Substitute Counsel by Defendant GEO Group, Inc., The. (Ley, Michael) (Entered: 06/06/2017)
84 ORDER Granting Plaintiffs' Motion to Compel 73 and Denying Defendant's Motion for Protective Order 72 . Signed by Judge John L. Kane on 06/06/17. (jhawk, ) (Entered: 06/06/2017)
85 ORDER Granting in Part and Denying in Part the GEO Group, Inc's Motion to Stay Proceedings Pending Rule 239F0 Review 69 . Specifically, discovery on the class action issues is STAYED, but discovery on the above enumerated issues relating to liability and merits issues shall proceed in accordance with Federal Rule of Civil Procedure 26. Noting GEOs objection to not having been consulted regarding Plaintiffs discovery proposal, the exact number of depositions, requests for production, and interrogatories to be permitted will be addressed at the upcoming scheduling conference on June 7, 2016, at 11 a.m. Signed by Judge John L. Kane on 06/06/17. (jhawk, ) (Entered: 06/06/2017)
86 MINUTE ORDER GRANTING Motion to Withdraw as Counsel (Doc. 83 ). Given that representation of Defendant will continue through Michael Y. Ley and Dana L. Eismeier of the same law firm, and Charles A. Deacon and Mark Emery of Norton Rose Fulbright US LLP, Attorney Erik Karl Schuessler is authorized to WITHDRAW as counsel. Mr. Schuessler SHALL be REMOVED from future electronic notifications in this case. Entered by Judge John L. Kane on 06/06/17. Text Only Entry (jhawk, ) (Entered: 06/06/2017)
87 NOTICE of Entry of Appearance by Juno E. Turner on behalf of All Plaintiffs Attorney Juno E. Turner added to party Olga Alexaklina(pty:pla), Attorney Juno E. Turner added to party Lourdes Argueta(pty:pla), Attorney Juno E. Turner added to party Marcos Brambila(pty:pla), Attorney Juno E. Turner added to party Jesus Gaytan(pty:pla), Attorney Juno E. Turner added to party Hugo Hernandez(pty:pla), Attorney Juno E. Turner added to party Alejandro Menocal(pty:pla), Attorney Juno E. Turner added to party Demetrio Valerga(pty:pla), Attorney Juno E. Turner added to party Dagoberto Vizguerra(pty:pla), Attorney Juno E. Turner added to party Grisel Xahuentitla(pty:pla) (Turner, Juno) (Entered: 06/07/2017)
88 MINUTE ORDER. Directing the parties to submit a revised Proposed Stipulated Scheduling Order on or before June 30, 2017. Entered by Judge John L. Kane on 06/07/17. (jhawk, ) (Entered: 06/07/2017)
89 MINUTE ENTRY for Scheduling Conference proceedings held before Judge John L. Kane on 6/7/2017. Scheduling Order NOT approved. Court Reporter: Julie Thomas. (babia) (Entered: 06/07/2017)
90 NOTICE of Entry of Appearance by P. David Lopez on behalf of All Plaintiffs (Lopez, P.) (Entered: 06/08/2017)
91 NOTICE of Entry of Appearance by Ashley Kathryn Boothby on behalf of Olga Alexaklina, Lourdes Argueta, Marcos Brambila, Jesus Gaytan, Hugo Hernandez, Alejandro Menocal, Demetrio Valerga, Dagoberto Vizguerra, Grisel XahuentitlaAttorney Ashley Kathryn Boothby added to party Olga Alexaklina(pty:pla), Attorney Ashley Kathryn Boothby added to party Lourdes Argueta(pty:pla), Attorney Ashley Kathryn Boothby added to party Marcos Brambila(pty:pla), Attorney Ashley Kathryn Boothby added to party Jesus Gaytan(pty:pla), Attorney Ashley Kathryn Boothby added to party Hugo Hernandez(pty:pla), Attorney Ashley Kathryn Boothby added to party Alejandro

Case: 1:14-cv-2887 As of: 04/11/2018 07:35 PM MDT 18 of 21

06/14/2017 06/16/2017
06/16/2017
06/20/2017
06/27/2017 06/27/2017 06/30/2017 07/11/2017 07/13/2017

Menocal(pty:pla), Attorney Ashley Kathryn Boothby added to party Demetrio Valerga(pty:pla), Attorney Ashley Kathryn Boothby added to party Dagoberto Vizguerra(pty:pla), Attorney Ashley Kathryn Boothby added to party Grisel Xahuentitla(pty:pla) (Boothby, Ashley) (Entered: 06/14/2017)
92 ADVISORY NOTICE OF NONCOMPLIANCE WITH COURT RULES/PROCEDURES:re: 91 Notice of Entry of Appearance, filed by attorneyAshleyK. Boothby. DO NOT REFILE THE DOCUMENT. Action to take − counsel must submit a change of contact request through the Attorney Services Portal Account pursuant to D.C.COLO.LAttyR 5(c) and 3.5 of the Electronic Case Filing Procedures (Civil cases).(Text Only Entry) (jhawk, ) (Entered: 06/15/2017)
93 NOTICE of Entry of Appearance by Elizabeth V. Stork on behalf of All Plaintiffs Attorney Elizabeth V. Stork added to party Olga Alexaklina(pty:pla), Attorney Elizabeth V. Stork added to party Lourdes Argueta(pty:pla), Attorney Elizabeth V. Stork added to party Marcos Brambila(pty:pla), Attorney Elizabeth V. Stork added to party Jesus Gaytan(pty:pla), Attorney Elizabeth V. Stork added to party Hugo Hernandez(pty:pla), Attorney Elizabeth V. Stork added to party Alejandro Menocal(pty:pla), Attorney Elizabeth V. Stork added to party Demetrio Valerga(pty:pla), Attorney Elizabeth V. Stork added to party Dagoberto Vizguerra(pty:pla), Attorney Elizabeth V. Stork added to party Grisel Xahuentitla(pty:pla) (Stork, Elizabeth) (Entered: 06/16/2017)
94 NOTICE of Entry of Appearance by Ossai Miazad on behalf of All Plaintiffs Attorney Ossai Miazad added to party Olga Alexaklina(pty:pla), Attorney Ossai Miazad added to party Lourdes Argueta(pty:pla), Attorney Ossai Miazad added to party Marcos Brambila(pty:pla), Attorney Ossai Miazad added to party Jesus Gaytan(pty:pla), Attorney Ossai Miazad added to party Hugo Hernandez(pty:pla), Attorney Ossai Miazad added to party Alejandro Menocal(pty:pla), Attorney Ossai Miazad added to party Demetrio Valerga(pty:pla), Attorney Ossai Miazad added to party Dagoberto Vizguerra(pty:pla), Attorney Ossai Miazad added to party Grisel Xahuentitla(pty:pla) (Miazad, Ossai) (Entered: 06/16/2017)
95 TRANSCRIPT of SCHEDULING CONFERENCE held on 6/7/17 before Judge Kane. Pages: 1−8. <br> NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (Thomas, Julie) (Entered: 06/20/2017)
96 WITHDRAWN NOTICE of Intent to Request Redaction by Michael York Ley re 95 Transcript,,, (Ley, Michael) Modified to show WITHDRAWN pursuant to ecf 102 on 7/13/2017 (cthom, ). (Entered: 06/27/2017)
97 ADVISORY NOTICE OF NONCOMPLIANCE WITH COURT RULES/PROCEDURES:re: 96 Notice of Intent to Request Redaction filed by attorney Dana L. Eismeier. The s/signature did not match the filers name on the account for which the login and password are registered. DO NOT REFILE THE DOCUMENT. Action to take − future documents must be filed pursuant to D.C.COLO.LCivR 5.1(a) and 4.3(c) of the Electronic Case Filing Procedures (Civil cases).(Text Only Entry) (cthom, ) (Entered: 06/28/2017)
98 Proposed Scheduling Order by Plaintiffs Olga Alexaklina, Lourdes Argueta, Marcos Brambila, Jesus Gaytan, Hugo Hernandez, Alejandro Menocal, Demetrio Valerga, Dagoberto Vizguerra, Grisel Xahuentitla. (Hood, Alexander) (Entered: 06/30/2017)
99 MOTION to Withdraw Notice of Intent to Request Redaction by Defendant GEO Group, Inc., The. (Eismeier, Dana) (Entered: 07/11/2017)
100 Joint MOTION for Extension of Time to submit Stipulated and Proposed Order Concerning Production of Electronically Stored Information by Plaintiffs Olga Alexaklina, Lourdes Argueta, Marcos Brambila, Jesus Gaytan, Hugo Hernandez, Alejandro Menocal, Demetrio Valerga, Dagoberto Vizguerra, Grisel Xahuentitla.

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07/13/2017 07/13/2017 07/14/2017 07/28/2017 07/28/2017 08/04/2017
08/04/2017 08/16/2017 08/22/2017 09/21/2017 09/21/2017
12/18/2017 12/18/2017
02/09/2018

(Turner, Juno) (Entered: 07/13/2017)
101 ORDER granting 100 Joint Motion for Extension of Time. The parties will submit to the Court a stipulated ESI Protocol on or before July 28, 2017. Ordered by Judge John L. Kane on 7/13/2017. Text Only Entry (jlksec) (Entered: 07/13/2017)
102 ORDER granting 99 Motion to Withdraw Notice of Intent to Request Redaction. The Notice of Intent to Request Redaction 96 is withdrawn. Ordered by Judge John L. Kane on 7/13/2017. Text Only Entry (jlksec) (Entered: 07/13/2017)
103 SCHEDULING AND DISCOVERY ORDER by Judge John L. Kane on 7/14/2017. (cthom, ) (Entered: 07/14/2017)
104 Second MOTION for Extension of Time to File Proposed Stipulated Scheduling and Discovery Order by Plaintiffs Olga Alexaklina, Lourdes Argueta, Marcos Brambila, Jesus Gaytan, Hugo Hernandez, Alejandro Menocal, Demetrio Valerga, Dagoberto Vizguerra, Grisel Xahuentitla. (Turner, Juno) (Entered: 07/28/2017)
105 ORDER granting 104 Second Joint Motion for Extension of Time. The parties will submit to the Court a stipulated ESI Protocol on or before August 4, 2017. Ordered by Judge John L. Kane on 7/28/2017. Text Only Entry (jlksec) (Entered: 07/28/2017)
106 Third MOTION for Extension of Time to submit Stipulated and Proposed Order Concerning Production of Electronically Stored Information by Plaintiffs Olga Alexaklina, Lourdes Argueta, Marcos Brambila, Jesus Gaytan, Hugo Hernandez, Alejandro Menocal, Demetrio Valerga, Dagoberto Vizguerra, Grisel Xahuentitla. (Turner, Juno) (Entered: 08/04/2017)
107 ORDER granting 106 Third Joint Motion for Extension of Time. The parties will submit to the Court a stipulated ESI Protocol on or before August 18, 2017. Ordered by Judge John L. Kane on 8/4/2017. Text Only Entry (jlksec) (Entered: 08/04/2017)
108 STIPULATION and Proposed Order Concerning Production of Electronically Stored Information by Plaintiffs Olga Alexaklina, Lourdes Argueta, Marcos Brambila, Jesus Gaytan, Hugo Hernandez, Alejandro Menocal, Demetrio Valerga, Dagoberto Vizguerra, Grisel Xahuentitla. (Turner, Juno) (Entered: 08/16/2017)
109 STIPULATION AND ORDER Concerning Production of Electronically Stored Information. ORDERED by Judge John L. Kane on 8/22/2017. (cthom, ) (Entered: 08/22/2017)
110 Joint MOTION for Order to Entry of Stipulated Order regarding the Disclosure of Privileged Information by Defendant GEO Group, Inc., The. (Attachments: # 1 Proposed Order (PDF Only) [Proposed] Stipulated Order regarding the Disclosure of Privileged Information)(Eismeier, Dana) (Entered: 09/21/2017)
111 ORDER denying 110 Motion for Order. The parties Joint Motion for Entry of Stipulated Order Regarding the Disclosure of Privileged Information (ECF No. 110) is DENIED. A judicial act requires some basis, even under Federal Rule of Evidence 502(d). Here, the parties offer none. The motion may be re−filed with some justification for issuance of the order. Ordered by Judge John L. Kane on 9/21/2017. Text Only Entry (jlksec) (Entered: 09/21/2017)
112 Stipulated MOTION for Extension of Time to Extend Discovery Cut−Off by Plaintiffs Olga Alexaklina, Lourdes Argueta, Marcos Brambila, Jesus Gaytan, Hugo Hernandez, Alejandro Menocal, Demetrio Valerga, Dagoberto Vizguerra, Grisel Xahuentitla. (Stork, Elizabeth) (Entered: 12/18/2017)
113 ORDER Amending Scheduling and Discovery Order. IT IS HEREBY ORDERED the 112 Stipulated Motion and Proposed Order to Extend Discovery Cut−off is GRANTED and Plaintiffs shall respond to GEOs Second Set of Written Discovery on or before January 19, 2018. The discovery cut−off is extended to May 4, 2018. ORDERED by Judge John L. Kane on 12/18/2017. (cthom, ) (Entered: 12/19/2017)
114 USCA Opinion as to 65 Notice of Appeal filed by GEO Group, Inc., The : (USCA Case No. 17−1125) (This document is not the Mandate) (cthom, ) (Entered: 02/12/2018)

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02/09/2018 02/12/2018 02/13/2018 02/14/2018
02/16/2018 02/16/2018 02/20/2018 03/05/2018 03/09/2018 03/09/2018 03/13/2018 03/14/2018

115 USCA Judgment as to 65 Notice of Appeal filed by GEO Group, Inc., The : (USCA Case No. 17−1125) (This document is not the Mandate) "We affirm the district court's certification of both classes. We grant theoutstanding motions for leave to file amicus briefs." (cthom, ) (Entered: 02/12/2018)
116 MINUTE ORDER In light of the opinion of the Tenth Circuit Court of Appeals, this case is referred to Magistrate Judge Hegarty for him to conduct such conferences and proceedings as he deems appropriate for purposes of settlement. The parties amended Proposed Stipulated Scheduling Order shall be filed on or before March 12, 2018. ORDERED by Judge John L. Kane on 2/12/2018. (cthom, ) (Entered: 02/13/2018)
117 MINUTE ORDER by Magistrate Judge Michael E. Hegarty on 02/13/2018. Pursuant to the Order of Reference issued by the Honorable John L. Kane, ECF No. 116, on or before 2/16/2018, counsel for the parties shall first teleconference together, then call my chambers at (303) 844−4507 to schedule a Settlement Conference in this case. (mdave, ) (Entered: 02/13/2018)
118 NOTICE of Entry of Appearance by Rachel Williams Dempsey on behalf of All Plaintiffs Attorney Rachel Williams Dempsey added to party Olga Alexaklina(pty:pla), Attorney Rachel Williams Dempsey added to party Lourdes Argueta(pty:pla), Attorney Rachel Williams Dempsey added to party Marcos Brambila(pty:pla), Attorney Rachel Williams Dempsey added to party Jesus Gaytan(pty:pla), Attorney Rachel Williams Dempsey added to party Hugo Hernandez(pty:pla), Attorney Rachel Williams Dempsey added to party Alejandro Menocal(pty:pla), Attorney Rachel Williams Dempsey added to party Demetrio Valerga(pty:pla), Attorney Rachel Williams Dempsey added to party Dagoberto Vizguerra(pty:pla), Attorney Rachel Williams Dempsey added to party Grisel Xahuentitla(pty:pla) (Dempsey, Rachel) (Entered: 02/14/2018)
119 Unopposed MOTION to Withdraw as Attorney of Record by Plaintiffs Olga Alexaklina, Lourdes Argueta, Marcos Brambila, Jesus Gaytan, Hugo Hernandez, Alejandro Menocal, Demetrio Valerga, Dagoberto Vizguerra, Grisel Xahuentitla. (Attachments: # 1 Proposed Order (PDF Only))(Stork, Elizabeth) (Entered: 02/16/2018)
120 ORDER granting 119 Unopposed Motion for Withdrawal of Appearance. Elizabeth V. Stork is withdrawn as counsel of record for the Plaintiffs in the above−captioned matter. The clerk is directed to remove Elizabeth V. Stork from the CM/ECF notification system in connection with this case. ORDERED by Judge John L. Kane on 2/16/2018. (cthom, ) (Entered: 02/16/2018)
121 MINUTE ORDER by Magistrate Judge Michael E. Hegarty on 02/20/2018. Settlement Conference set for 5/2/2018 10:00 AM in Courtroom A 501 before Magistrate Judge Michael E. Hegarty. (mdave, ) (Entered: 02/20/2018)
122 ORDER of USCA as to 65 Notice of Appeal filed by GEO Group, Inc., The. (USCA Case No. 17−1125) (cthom, ) (Entered: 03/06/2018)
123 Stipulated MOTION for Extension of Time to File Amended Proposed Stipulated Scheduling Order by Plaintiffs Olga Alexaklina, Lourdes Argueta, Marcos Brambila, Jesus Gaytan, Hugo Hernandez, Alejandro Menocal, Demetrio Valerga, Dagoberto Vizguerra, Grisel Xahuentitla. (Turner, Juno) (Entered: 03/09/2018)
124 ORDER granting 123 Motion for Extension of Time to File Amended Proposed Stipulated Scheduling Order. The deadline to file an Amended Proposed Stipulated Scheduling Order is extended to June 1, 2018. Ordered by Judge John L. Kane on 3/9/2018. Text Only Entry (jlksec) (Entered: 03/09/2018)
125 MANDATE of USCA as to 115 USCA Order/Opinion/Judgment, 114 USCA Order/Opinion/Judgment, 65 Notice of Appeal filed by GEO Group, Inc., The : (USCA Case No. 17−1125) (cthom, ) (Entered: 03/13/2018)
126 Unopposed MOTION for Leave to Excuse In−Person Attendance at the Settlement Conference 121 Minute Order by Plaintiffs Olga Alexaklina, Lourdes Argueta, Marcos Brambila, Jesus Gaytan, Hugo Hernandez, Alejandro Menocal, Demetrio Valerga, Dagoberto Vizguerra, Grisel Xahuentitla. (Milstein, Brandt) (Entered: 03/14/2018)

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03/16/2018 127 MINUTE ORDER granting 126 Plaintiffs Unopposed Motion to Excuse In−person Attendance at the Settlement Conference by Magistrate Judge Michael E. Hegarty on 03/16/2018. (mdave, ) (Entered: 03/16/2018)