MARK A. JOHNSON, et al., Plaintiffs,
MIDWEST LOGISTICS SYSTEMS, LTD. Defendant.
FINAL ORDER & JUDGMENT
ALGENON L. MARBLEY, District Judge.
This matter is before the Court on Plaintiff's Unopposed Motion for Attorney Fees, Reimbursement of Expenses and Incentive Award to the Named Plaintiff, (Doc. 29), and the parties' Joint Motion for Final Approval of the Class Action Settlement and Certification of the Class for Settlement Purposes, (Doc. 31). Pursuant to Fed.R.Civ.P. 23(e), the Court finds that the settlement of this action, as embodied in the terms of the Amended Stipulation, (Doc. 26), is fair, reasonable and adequate in light of the factual, legal, practical and procedural considerations raised by this suit. The Court hereby GRANTS the parties' request for final approval of this settlement and class certification for settlement purposes. The Court further GRANTS Plaintiff's motion for attorney fees and expenses in the amount of 33% of the Settlement Fund or $149, 285.40, as well as the requested incentive award for the named plaintiff in the amount of $12, 500. This action is hereby DISMISSED.
On November 28, 2011, Plaintiff Mark Johnson ("Johnson" or "Class Representative"), filed this class action lawsuit (the "Lawsuit") against Defendant Midwest Logistics Systems, Ltd. ("Midwest"). Johnson asserted class claims against Midwest under the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681, et seq. Midwest denied any and all liability alleged in the Lawsuit.
After extensive arms-length negotiations, Johnson and Midwest (jointly, the "Parties") entered into a Stipulation of Settlement which was later amended on March 11, 2013, (Doc. 26), (the "Amended Stipulation"), which is subject to review under Fed.R.Civ.P. 23. The salient terms of the Amended Stipulation are as follows:
Midwest agrees to pay a total sum of Four Hundred Fifty-Two Thousand Three Hundred Eighty Dollars and no cents ($452, 380.00) (the "Settlement Funds"), from which Class Members shall be paid as follows:
º Preliminary Settlement Class - Each member of the Preliminary Settlement Class who is not a member of the Pre-Adverse Action Class shall receive a gross sum of $260.00, from which Class Counsel's attorneys' fees and costs and an Incentive Award shall be deducted.
º Pre-Adverse Action Class - Class Members in the Pre-Adverse Action Class shall receive a gross sum of $1, 000.00, from which Class Counsel's attorneys' fees and costs and an Incentive Award shall be deducted.
The Settlement Funds will settle all FCRA claims set forth by the Settlement Classes, except for potential claims under 15 U.S.C. § 1681s-2(b), and include attorney fees and costs not to exceed 33% of the Settlement Funds and an Incentive Award to named plaintiff Mark Johnson in the amount of $12, 500.
In the event that settlement checks are returned as undeliverable, are not cashed within ninety (90) days, or in the event that the Settlement Funds are not completely distributed for any reason, any remaining funds shall be distributed to Midwest as reimbursement for the costs of notice and administration and a cy pres fund selected by Class Counsel subject to the Court's approval.
Midwest shall not be responsible for paying any sum of money exceeding the amount described as the Settlement Funds. Midwest shall be responsible for the cost of notice and administration.
Upon final approval of the settlement at the Final Fairness Hearing, each Class Member who has not opted out of the proposed settlement shall be deemed to have, and by operation of the Judgment shall have, fully, finally, and forever released, relinquished and discharged all claims and causes of action against Midwest relating to or arising out of the facts of this suit.
On March 11, 2013, upon consideration of the Amended Stipulation and the record, this Court entered an order preliminarily approving the Amended Stipulation (the "Preliminary Approval Order"), (Doc. 27). Pursuant to the Preliminary Approval Order, this Court, among other things, (i) preliminarily certified (for settlement purposes only) a class of plaintiffs (the "Class Members") with respect to the claims asserted in the Lawsuit; (ii) preliminarily approved the proposed settlement; (iii) appointed Johnson as the Class Representative; (iv) appointed Mr. Dennis M. O'Toole, Mr. Matthew A. Dooley and Mr. Anthony R. Pecora as Class Counsel; and, (v) set the date and time of the Fairness Hearing.
On May 13, 2013, Plaintiff filed his unopposed Motion for an Award of Attorney Fees, Reimbursement of Expenses and Incentive Award to the Named Plaintiff. On May 20, 2013, the Parties filed their Motion for Final Approval of Class Action Settlement and Certification of the Class for Settlement Purposes (the "Final Approval Motion"). On May 23, 2013, this Court held a Fairness Hearing pursuant to Fed.R.Civ.P. 23 to determine whether the Lawsuit satisfies the applicable prerequisites for class action treatment and whether the proposed settlement is fundamentally fair, reasonable, adequate, and in the best interest of the Class Members and should therefore be approved by the Court.
II. LAW AND ANALYSIS
A. Class Certification for the Purposes of Settlement
Pursuant to Rule 23(b)(3), the Parties request that the Lawsuit be certified as a class action on behalf of the following classes of plaintiffs:
Preliminary Settlement Class - Settlement Class Members about whom Midwest procured a consumer report in connection with the Class Members' application for employment or employment with Midwest between November 28, 2006 and November 28, 2011.
Pre-Adverse Action Class - a subclass of the Preliminary Settlement Class, which includes Settlement Class Members about whom Midwest procured a Consumer Report and who had their application for employment denied by Midwest based on information contained in their Consumer Report between November 28, 2006 and November 28, 2011.
There are approximately 1, 610 Class Members. Of these, 46 are in the Pre-Adverse Action Class and 1, 564 are in the ...