United States District Court, M.D. Florida, Tampa Division
REPORT AND RECOMMENDATION
S. SNEED UNTIED STATES MAGISTRATE JUDGE
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.
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.)
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
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
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.
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.)
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).
The Settlement Agreement
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.
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 ...