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Dukes v. Air Canada

United States District Court, M.D. Florida, Tampa Division

September 6, 2019

MARY DUKES, Plaintiff,
v.
AIR CANADA, Defendant.

          REPORT AND RECOMMENDATION

          JULIE S. SNEED UNTIED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on the Joint Motion for Preliminary Approval of Class Action Settlement (“Motion”). (Dkt. 36.) For the reasons that follow, the Court recommends that the Motion be granted.

         BACKGROUND

         Plaintiff, on behalf of herself and others similarly situated, brings this class action against Defendant for violations under the disclosure, authorization, and adverse action provisions of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §§ 1681b(b)(2)(A)(i), 1681b(b)(2)(A)(ii), 1681b(b)(3)(A). (Dkt. 17.) Plaintiff alleges that Defendant obtained consumer and background reports on Plaintiff, Defendant's employees, and prospective employees, and took adverse action against employees, without making the statutorily required disclosures. (Dkt. 17.)

         In the Motion and for the purpose of settlement, the parties agree to two settlement classes. First, the parties agree to the following class (the “Disclosure and Authorization Class”):

All Air Canada employees and job applicants who applied for or worked in a position at Air Canada in the United States and who were the subject of a consumer report that was procured by Air Canada within five years of the filing of this complaint [July 30, 2018] through September 6, 2018 and as to whom Air Canada used a noncompliant FCRA disclosure.

(Dkt. 36 at 4.) Additionally, the parties agree to the following subclass (the “Pre-Adverse Action Subclass”):

All Air Canada employees and job applicants in the United States against whom an adverse employment action was taken based, in whole or in part, on information contained in a consumer report within five years of the filing of this complaint [July 30, 2018] through September 6, 2018 who were not provided a pre-adverse notice as required by 15 U.S.C. § 1681b(b)(3)(A).

         (Dkt. 36 at 4.) On March 7, 2019, the parties filed a notice of settlement of Plaintiff's claims. (Dkt. 27.) In light of the settlement, the parties filed the Motion, seeking the Court's preliminary approval of the parties' class-wide settlement agreement (“Settlement Agreement”). (Dkt. 36-1.) Specifically, the parties request an order: (1) preliminarily approving the Settlement Agreement; (2) preliminarily certifying the class for settlement purposes only; (3) approving the form and manner of notice to the class; and (4) scheduling a fairness hearing for final approval of the Settlement Agreement. (Dkt. 27.)

         ANALYSIS

         Pursuant to Rule 23(e), “[t]he claims, issues, or defenses of a certified class may be settled, voluntarily dismissed, or compromised only with the court's approval.” Fed.R.Civ.P. 23(e). “A class may be certified ‘solely for purposes of settlement [if] a settlement is reached before a litigated determination of the class certification issue.'” Borcea v. Carnival Corp., 238 F.R.D. 664, 671 (S.D. Fla. 2006) (quoting Woodward v. NOR-AM Chem. Co., CIV. 94-0780-CB-C, 1996 WL 1063670, *14 (S.D. Ala. 1996)). District courts are given discretion to certify a class under Rule 23. Cooper v. S. Co., 390 F.3d 695, 711 (11th Cir. 2004). “In exercising this discretion, courts should give weight to the parties' consensual decision to settle class action cases, because they and their counsel are in unique positions to assess the potential risks.” Pierre-Val v. Buccaneers Ltd. P'ship, 8:14-CV-01182-CEH, 2015 WL 3776918, at *1 (M.D. Fla. June 17, 2015). Further, a proposed class action settlement may be approved if it is “fair, adequate and reasonable and is not the product of collusion between the parties.” Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir. 1984).

         I. The Settlement Agreement

         The parties contend that the Settlement Agreement “is fair, reasonable, and adequate.” (Dkt. 36 at 21.) In evaluating whether a settlement is fair, reasonable, and adequate, a court considers: “(1) the likelihood of success at trial; (2) the range of possible recovery; (3) the point on or below the range of possible recovery at which a settlement is fair, adequate and reasonable; (4) the complexity, expense and duration of litigation; (5) the substance and amount of opposition to the settlement; and (6) the stage of proceedings at which the settlement was achieved.” Bennett, 737 F.2d at 986.

         Here, the Settlement Agreement is not the product of fraud or collusion but instead is the product of the parties' arm's-length negotiations aided by experienced counsel. (Dkt. 36 at 21.) Further, evaluating the likelihood of success at trial supports approval of the Settlement Agreement because Defendant asserts numerous defenses to Plaintiff's claims and denies liability for any willful violations of the FCRA. (Dkt. 36 at 4.) Therefore, “because success at trial is not certain for Plaintiff, this factor weighs in ...


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