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Noye v. Yale Associates, Inc.

United States District Court, M.D. Pennsylvania

August 15, 2019

T JASON NOYE, individually and on behalf of all others similarly situated, Plaintiffs


          Judge Kane.

         Before the Court is Plaintiff's unopposed motion for preliminary approval of class action settlement and notice to the class. (Doc. No. 89.) For the reasons that follow, the Court will grant the motion and order that a fairness hearing be scheduled.

         I. BACKGROUND

         On November 24, 2015, Plaintiff T Jason Noye (“Plaintiff”) filed a putative class action complaint, on behalf of himself and all others similarly situated, [1] in this Court against Defendant Yale Associates, Inc. (“Defendant”), alleging that Defendant violated the Fair Credit Reporting Act (“FCRA”), codified at 15 U.S.C. §§ 1681a-1681x, in connection with its “national database of public records and related employment histories as a nationwide consumer reporting agency (‘CRA'), ” which it maintains “to prepare and furnish consumer reports for employment and other purposes.” (Id. ¶¶ 1-2.) More specifically, Plaintiff has alleged that Defendant failed “to provide required FCRA notices to Plaintiff in violation of [the FCRA], and for maintaining a policy and practice of inaccurately reporting Pennsylvania summary offenses, a separate and less serious category of criminal offense, as misdemeanors.” (Id. ¶ 3.) In Count I, Plaintiff alleges a violation of 15 U.S.C. § 1681k(a) as a result of Defendant's failure “to notify consumers contemporaneously of the fact that adverse public and criminal record information is being provided to employers or prospective employers” and “to maintain strict procedures to insure that the public record information it sells to employers is complete and up to date.” (Id. at 11-12.) Through Count II, Plaintiff alleges a violation of 15 U.S.C. §1681e(b) on the grounds that Defendant “misreport[ed] Pennsylvania summary offenses in Pennsylvania as misdemeanors or more serious offenses, thereby failing to following reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom a consumer report relates, in violation of [FCRA].” (Id. at 12-13.)

         On March 17, 2016, Defendant moved to strike the class allegations in the complaint under Federal Rule of Civil Procedure 23 and for dismissal of Count I of the complaint for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. No. 24.) The Court denied Defendant's motion in a Memorandum and Order dated October 27, 2016. (Doc. Nos. 45, 46.) Following the disposition of Defendant's motion to dismiss, Defendant filed an answer to the complaint on April 19, 2017. (Doc. No. 59.) On September 12, 2017, upon consideration of the parities' joint motion to stay all case management deadlines while the parties conducted mediation (Doc. No. 70), the Court granted the parties' request and ordered that all applicable deadlines be stayed on September 12, 2017 (Doc. No. 71). This stay was extended for additional periods multiple times upon the parties' request. (Doc. Nos. 73, 76, 78, 81, 83.) On November 21, 2018, Plaintiff filed an unopposed motion for preliminary approval of class action settlement and notice to the class (Doc. No. 84), along with a brief in support thereof (Doc. No. 85). Counsel subsequently notified the Court on March 15, 2019 that the parties agreed to certain revisions in the proposed settlement and notice (Doc. No. 87), and based on this representation, the Court issued an order on March 19, 2019 that deemed the motion moot and directed Plaintiff to file a renewed motion and supporting documents that incorporate the parties' revisions (Doc. No. 88). On April 2, 2019, in response to said Order, Plaintiff filed the instant unopposed motion for preliminary approval of class action settlement and notice to the class (Doc. No. 89), accompanied by a brief in support thereof (Doc. No. 90).

         In the instant motion, Plaintiff requests an Order that: (1) preliminarily approves the parties' Revised Settlement Agreement and Release (“Agreement”) (Doc. No. 89-2) for purposes of allowing dissemination of notice of the settlement to the proposed Settlement Class and pending a final approval hearing; (2) establishes a date for a final approval hearing as to the proposed settlement; (3) approves the form of class notice (“Notice” or “CAFA Notice”); (4) approves the notice plan and directing that notice be made available and published; (5) establishes a deadline for the submission of papers in support of final approval of the proposed Agreement and objections by members of the Settlement Class; (6) sets forth a deadline by which Class Members may opt out of the class; (7) appoints Plaintiff, TJ Noye, as the Class Representative;[2] and (8) appoints James A. Francis, Esq. and David A. Searles, Esq., of the law of firm of Francis & Mailman, P.C., and Marielle Macher, Esq. of the Community Justice Project as counsel for the class. (Doc. No. 89-3.)

         In connection with his uncontested motion (Doc. No. 89), Plaintiff submitted the following documents: a supporting brief (Doc. No. 90), which incorporates Plaintiff's brief submitted in connection with the earlier motion for preliminary approval that was deemed moot (Doc. No. 85); the affidavit of Joseph A. Taylor, Vice President and founding member of Defendant, explaining the basis for the number of potential Class Members calculated by the parties (Doc. No. 89-1); the parties' proposed Agreement (Doc. No. 89-2); a proposed Final Approval Order (Doc. No. 89-3); a proposed Preliminary Approval Order (Doc. No. 89-4);[3] and a proposed form of Notice to the Class (Doc. No. 89-5).[4]


         A. Class Action Settlement

         Federal Rule of Civil Procedure 23(e) governs the settlement of class actions and the procedures that apply for review of a class action settlement. See Fed.R.Civ.P. 23(e) (setting forth the “procedures [that] apply to a proposed settlement, voluntary dismissal, or compromise”); see also In re Nat'l Football League Players Concussion Litig., 775 F.3d 570, 580-81 (3d Cir. 2014) (explaining that Rule 23(e) “provides the procedures applicable to settlements, voluntary dismissals, or compromises” in the context of class actions (citing Fed.R.Civ.P. 23(e))). Rule 23(e) imposes the following requirements as to the procedure applicable to a proposed settlement: (1) that the Court “direct notice in a reasonable manner to all class members who would be bound by the proposal”; (2) that, “[i]f the proposal would bind class members, the [C]ourt [] approve it only after a hearing and only on finding that it is fair, reasonable, and adequate”; (3) that “[t]he parties seeking approval [] file a statement identifying any agreement made in connection with the proposal”; (4) that “[i]f the class action was previously certified under Rule 23(b)(3), the [C]ourt may refuse to approve a settlement unless it affords a new opportunity to request exclusion to individual class members who had an earlier opportunity to request exclusion but did not do so”; and (5) that “[a]ny class member may object to the proposal if it requires court approval under this subdivision[, ]” and that “[t]he objection must state whether it applies only to the objector, to a specific subset of the class, or to the entire class, and also state with specific the grounds for the objection.” See Fed.R.Civ.P. 23(e).

         A court's decision to preliminarily approve a proposed class action settlement “is not a commitment [to] approve the final settlement; rather, it is a determination that ‘there are no obvious deficiencies and the settlement falls within the range of reason.'” See Gates v. Rohm & Haas Co., 248 F.R.D. 434, 438 (E.D. Pa. 2008) (quoting Smith v. Prof. Billing & Mgmt. Servs., Inc., No. 06-cv-4453, 2007 WL 4191749, at *1 (D.N.J. Nov. 21, 2017)). A preliminary approval determination “establishes an initial presumption of fairness.” See In re Gen. Motors Corp. PickUp Truck Fuel Tank Prods. Liability Litig., 55 F.3d 768, 785 (3d Cir. 1995) (citing Herbert B. Newberg & Alba Conte, Newberg on Class Actions § 11.41 (3d ed. 1992)). Further, the preliminary approval process entails a determination of “whether notice to the [c]lass and the terms and conditions of the settlement, and the scheduling of a formal fairness hearing, are worthwhile.” See William Rubenstein, et al., Newberg on Class Actions § 13:13 n.9 (5th ed. 2011) (citing Klug v. Watts Regulator Co., Nos. 8:15-cv-61, 8:16-cv-200, 2016 WL 7156478, at *6 (D. Neb. Dec. 7, 2016)). “Where the proposed settlement appears to be the product of serious, informed, non-collusive negotiations, has no obvious deficiencies, does not improperly grant preferential treatment to class representatives or segments of the class and falls within the range of possible approval, preliminary approval is granted.” In re Nasdaq Market-Makers Antitrust Litig., 176 F.R.D. 99, 102 (S.D.N.Y. 1997) (citing Manual for Complex Litigation (Third) § 30.41 (1995)); see also Gen. Motors Corp., 55 F.3d at 785 (identifying perquisites for preliminary approval of class action settlement).

         B. Conditional Certification of the Settlement Class

         Additionally, if “the Court has not already certified a class, the Court must also determine whether the proposed settlement class satisfies the requirements of Rule 23.” See Gates, 248 F.R.D. at 439 (citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997)). In this context, the Court “should make a preliminary determination that the proposed class satisfies the criteria set out in Rule 23(a) and at least one of the subsections of Rule 23(b).” See Manual for Complex Litigation (Fourth) § 21.632 (2004) (citing id. § 21.22). The Court may conditionally certify a class for settlement purposes, “leaving the final certification decision for the fairness hearing.” See Gates, 248 F.R.D. at 439.

         Rule 23(a) provides that “[o]ne or more members of a class may sue or be sued as representative parties on behalf of all members only if” the following requirements are met:

(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). As noted supra, the Court must also determine that the action satisfies at least one subsection of Rule 23(b). See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 345 (2011). In the case at bar, Plaintiff relies on Rule 23(b)(3), which is applicable when “the [C]ourt finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” See Fed.R.Civ.P. 23(b)(3).


         A. Preliminary Certification of Class Action

         1.Proposed ...

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