Motion for Final Approval (Crosby) FINAL DRAFT...On September 25, 2015, after reviewing the background report from IOD, Defendant denied Ms. Crosby the position of employment, based

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

SHARON CROSBY, on behalf of ) herself and all others similarly situated, ) ) Civ. No. 1:15-cv-04198-SCJ-JFK

Plaintiffs, ) v. ) )

CORE-MARK DISTRIBUTORS, INC., ) Defendant. ) ____________________________________)

PLAINTIFF’S UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

James A. Francis

FRANCIS & MAILMAN, P.C. 100 South Broad Street, Suite 1902

Philadelphia, PA 19110 Telephone: (215) 735-8600 Facsimile: (215) 940-8000

E-Mail: [email protected] Admitted Pro Hac Vice

David M. Marco IL Bar No. 6273315/FL Bar No. 125266

SMITHMARCO, P.C. 55 W. Monroe Street, Suite 1200

Chicago, IL 60603 Telephone: (312) 546-6539 Facsimile: (888) 418-1277

E-Mail: [email protected] Admitted Pro Hac Vice

Case 1:15-cv-04198-SCJ Document 43 Filed 04/06/18 Page 1 of 31

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................................................................... iii

I. INTRODUCTION AND PROCEDURAL HISTORY ................................... 1

A. Background ............................................................................................. 1

B. Motion Practice ....................................................................................... 3

C. Discovery Proceedings ........................................................................... 3

D. Mediation and Documentation of Settlement ......................................... 5

II. THE TERMS OF THE SETTLEMENT ......................................................... 6

A. Class Certification .................................................................................. 6

B. Class Representation. .............................................................................. 7

C. Relief to the Settlement Class ................................................................. 8

1. Injunctive Relief .......................................................................... 8

2. Monetary Relief .......................................................................... 9

D. The Settlement is Fair, Reasonable, and Adequate ................................ 9

E. The Settlement Administrator .............................................................. 10

F. Class Members Response to the Proposed Settlement ......................... 10

G. Release .................................................................................................. 10

III. THE COURT-APPROVED NOTICE PROGRAM ...................................... 11

IV. THIS COURT SHOULD APPROVE CLASS COUNSEL’S REQUEST FOR A SERVICE AWARD TO MS. CROSBY ....................... 12


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V. THE COURT SHOULD GRANT FINAL APPROVAL OF THE SETTLEMENT ........................................................ 15

A. The Settlement is Fair, Adequate, and Reasonable .............................. 15

1. The Bennett Factors Weigh in Favor of the Settlement ............ 16

a. Bennett Factor One: Likelihood of Success at Trial ....... 16

b. Bennett Factors Two and Three: Range of Recovery and the Point at Which Settlement is Fair ...... 18

c. Bennett Factor Four: Complexity, Expense, and Duration of the Litigation ............................................... 19

d. Bennett Factor Five: Substance and Amount of Opposition to the Settlement .......................................... 20

e. Bennett Factor Six: The Stage of the Proceedings ......... 21

2. The Judgment of Experienced Counsel and the Absence of Collusion Further Support the Settlement ............................ 22

VI. CONCLUSION .............................................................................................. 23


iii

TABLE OF AUTHORITIES Page(s)

CASES

Ass’n for Disabled Ams., Inc. v. Amoco Oil Co., 211 F.R.D. 457 (S.D. Fla. 2002).................................................................... 22

Barel v. Bank of America, 255 F.R.D. 393 (E.D. Pa. 2009) .................................................................... 14

Behrens v. Wometco Enterprises, Inc., 118 F.R.D. 534 (S.D. Fla. 1988)........................................................ 17-18, 21

Bennett v. Behring Corp., 737 F.2d 982 (11th Cir. 1984) ........................................ 15, 16, 17, 19, 20, 22

Berry v. LexisNexis Risk & Info. Analytics Grp., Inc., 2014 WL 4403524 (E.D. Va. Sept. 5, 2014) ................................................. 14

Camp v. City of Pelham, 2014 WL 1764919 (N.D. Ala. 2014) ............................................................. 20

Cook v. Niedert, 142 F.3d 1004 (7th Cir. 1998) ....................................................................... 13

Cotton v. Hinton, 559 F.2d 1326 (5th Cir. 1977) .......................................................... 15, 16, 19

Diaz v. Hillsborough County Hosp. Auth., 2000 WL 1682918 (M.D. Fla. 2000) ............................................................. 15

Flores v. Express Services, Inc., 2017 WL 1177098 (E.D. Pa. March 29, 2017) ............................................. 14

Giddiens v. LexisNexis Risk Solutions, Inc., C.A. No. 12-2624, ECF 55 (E.D. Pa. Jan. 20, 2015) ..................................... 14


iv

Greco v. Ginn Dev. Co., LLC, --- F. App’x ---, 2015 WL 7755673 (11th Cir. Dec. 2, 2015) ................ 22, 23

Jones v. Halstead Mgmt. Co., LLC, No. 14-3125, ECF 155 (S.D.N.Y. May 5, 2016) ..................................... 14, 18

Knight v. Alabama, 469 F. Supp. 2d 1016 (N.D. Ala. 2006) ................................................. 16, 17

Lengel v. HomeAdvisor, Inc., 2017 WL 364582 (D. Kan. 2017) .................................................................. 18

Leveroso v. SouthTrust Bank of AL., N.A., 18 F.3d 1527 (11th Cir. 1994) ....................................................................... 15

Patel v. Trans Union, LLC, 2018 WL 1258194 (N.D. Cal. March 11, 2018) ........................................... 14

Reardon v. ClosetMaid Corporation, C.A. No. 08-cv-01730, Doc. Nos. 200-1, 220 (W.D. Pa. 2014) ............. 18-19

Robins v. Spokeo, Inc., 742 F.3d 409 (9th Cir. 2014) ........................................................................... 3

Robinson v. General Info. Servs., Inc., No. 2:11-cv-07782-PBT, ECF 55 (E.D. Pa. Nov. 4, 2014) ........................... 14

Rodriguez v. Calvin Klein Inc, et. al, No. 1:15-cv-2590-JSR, ECF 33 (S.D.N.Y. Mar. 21, 2016) .......................... 14

Rodriguez v. W. Publ’g Corp., 563 F.3d 948 (9th Cir. 2009) ......................................................................... 13

Saccoccio v. JP Morgan Chase Bank, N.A., 297 F.R.D. 683 (S.D. Fla. 2014).............................................................. 21-22


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Sapp v. Experian Info. Solutions, 2013 WL 2130956 (E.D. Pa. May 15, 2013)................................................. 14

Stokes v. RealPage, Inc., C.A. No. 15-1520, ECF 63 (E.D. Pa. Feb. 6, 2018) ...................................... 14

Strube v. American Equity Investment Life Ins. Co., 158 Fed. Appx. 198 (11th Cir. 2005) ............................................................ 15

In re Sunbeam Sec. Litig., 176 F. Supp. 2d 1323 (S.D. Fla. 2001) .......................................................... 21

Syed v. M-I, LLC, 853 F.3d 492, 499 (9th Cir. 2017) ................................................................... 5

Waters v. Cook's Pest Control, Inc., 2012 WL 2923542 (N.D. Ala. 2012) ............................................................. 17

STATUTES

Fair Credit Reporting Act, 15 U.S.C. §§ 1681-1681x, et seq. ......................... passim

15 U.S.C. § 1681b(b)(2) ..............................................................................5, 8

15 U.S.C. § 1681b(b)(3) .............................................................................. 2, 8

15 U.S.C. § 1681b(b)(3)(A)(i) & (ii) ........................................................... 2, 5

15 U.S.C. § 1692k(a)(3) ................................................................................ 19

28 U.S.C. § 1715(b) ............................................................................................ 9, 11


Plaintiff Sharon Crosby (“Plaintiff”), on behalf of herself and a class of

similarly-situated persons, respectfully requests that this Court enter an order

granting final approval of the proposed class-wide Settlement Agreement filed on

August 31, 2017 (ECF 40-1) (the “Agreement”), and preliminarily approved by the

Court by Order entered January 5, 2018 (ECF 41), which noted that the Agreement

appeared to be fair, reasonable and adequate to the Settlement Class. Id., ¶ 2. A

proposed Final Judgment and Order accompanies this Unopposed Motion.

I. INTRODUCTION AND PROCEDURAL HISTORY

A. Background

In September 2015, Ms. Crosby applied to Core-Mark for employment; on

September 23, 2015, Core-Mark contacted Plaintiff and informed her that it intended

on offering her employment subject to her passing a background check. Ms. Crosby

returned to Core-Mark on September 24, 2015, at which time Ms. Crosby was

required by Defendant to sign a Consent and Authorization form, which not only

authorized Core-Mark to obtain a background report; it also sought to have Plaintiff

release from liability Core-Mark’s background check company, Information On

Demand (“IOD”).

On September 24, 2015, Defendant obtained the criminal background report,

which revealed numerous criminal convictions, including a felony conviction for


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receiving stolen goods and other offenses pertaining to violation of probation. None

of the criminal records belonged to Ms. Crosby, however, who in fact had a clean

criminal background and has never been arrested, charged or convicted of any

crimes; rather, IOD had misreported the criminal history of another individual to

Core-Mark.

On September 25, 2015, after reviewing the background report from IOD,

Defendant denied Ms. Crosby the position of employment, based upon the criminal

records it had reviewed in the IOD report. Defendant did not, however, provide Ms.

Crosby with a copy of the background report or a statement of her rights as required

by § 1681b(b)(3) of the FCRA; as a result, Core-Mark denied Ms. Crosby the job

without providing her the tools (i.e., the report), the knowledge (i.e., notice of her

rights under the FCRA) or a sufficient period of time, to dispute to IOD the

inaccurate information it had erroneously reported to Core-Mark.

Plaintiff filed her Class Action Complaint on December 2, 2015, alleging that

Defendant violated the federal Fair Credit Reporting Act (“FCRA”), 15 U.S.C.

§§ 1681-1681x, et seq., by failing to provide employment applicants with copies of

consumer reports procured for employment purposes, including a description of

consumers’ FCRA rights, prior to taking adverse action against the applicants. See

15 U.S.C. § 1681b(b)(3)(A)(i), (ii).


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B. Motion Practice

On January 19, 2016, in response to Plaintiff’s Complaint, Defendant filed a

Motion to Stay, pending a decision by the Supreme Court in Robins v. Spokeo, Inc.,

742 F.3d 409 (9th Cir. 2014), cert. granted, 135 S. Ct. 1892 (2014). Defendant’s

motion was the focus of the early stages of the litigation of this case, with lengthy

briefs offered to the Court in support of, and in opposition to, Defendant’s attempts

to stay the litigation.

Defendant’s motion to stay was filed January 19, 2016 and was denied by the

Court as moot, on May 17, 2016. (ECF 18). Defendant filed its answer to the Class

Complaint on June 7, 2016, after which time the parties engaged in extensive written

discovery.

C. Discovery Proceedings

Discovery in this matter was both comprehensive and extremely time-

consuming, and was complicated by Core-Mark’s corporate structure.

Core-Mark is one of the largest distributors and marketers of consumer goods

in North America, offering a full range of products, marketing programs, and

technology solutions to the convenience retail industry, grocers, and other specialty

stores that carry convenience products. From December 2013 to the present, Core-

Mark has operated 27 distribution centers in the United States. Core-Mark’s


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company culture is historically highly decentralized and its corporate headquarters

in San Francisco is leanly staffed and largely provides recommendations, advice and

logistical support for the operation of various Divisions. Each Division has separate

leadership, headed by a Division President. The HR Manager in each division

reports to the Division President, and each Division historically made individualized

decisions concerning, inter alia, background reports, hiring criteria, which consumer

reporting agency to use, and how to comply with the requirements of the Fair Credit

Reporting Act as it pertains to a potential employer obtaining and using background

reports in its hiring decision making process.

As a result of the decentralized nature of Core-Mark’s operation, completing

written discovery was an arduous and time-consuming process. It soon became

apparent, as discovery developed, that Core-Mark had used a number of different

consumer reporting agencies and had utilized diverse methods for pre-adverse action

and adverse action notification, which was largely dependent on the particular

Division at issue, the HR Manager in place at the time, and myriad other factors,

often unique to each Division. Although written discovery was initially propounded

on July 3, 2016, Plaintiff did not receive initial responses to her written discovery

requests until November 18, 2016. Core-Mark’s document production, comprising

approximately 2,400 pages of documents, was produced in mid-January 2017.


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From reviewing Core-Mark’s discovery responses it became apparent that the

class size was at most 864, which represented the number of consumer job applicants

for whom Core-Mark obtained a consumer report that contained criminal record

information. Given the class size and the potential for resolving the Class Action by

mediation, the parties engaged in discussion regarding the potential for such a

resolution.

D. Mediation and Documentation of Settlement

From reviewing additional documents produced in discovery, it became clear

that, in addition to claims under §§ 1681b(b)(3)(A)(i) and (ii), Ms. Crosby and the

Class also had a potential claim against Core-Mark for a violation of § 1681b(b)(2)

of the FCRA for using non-compliant consent and disclosure forms, some of which,

inter alia, included a release and waiver of liability.1 Plaintiff’s counsel apprised

Core-Mark and the mediator that it was their intention to move to amend the

complaint to include this additional claim. Although Plaintiff had not yet proceeded

to amend her Class Complaint, she nevertheless proceeded with this additional claim

at the mediation and it ultimately became a fundamental part of the settlement

1 See Syed v. M-I, LLC, 853 F.3d 492, 499 (9th Cir. 2017) (Article III standing established when a job applicant was deprived of the ability to meaningfully authorize a background check under the FCRA).


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negotiations between the parties.

In advance of the mediation, the parties engaged in multiple pre-mediation

conference calls, submitted comprehensive pre-mediation briefs, and on April 4,

2017, the parties attended a full day of mediation with a private mediator, Carole

Katz, Esq., in Pittsburgh, Pennsylvania. Although the mediation brought the parties

close to a resolution, they remained at an impasse over several issues, including the

ultimate amount to be paid to the settlement class. With the continued assistance of

the mediator, the parties continued to negotiate over a series of days following the

mediation and a settlement was reached on April 10, 2017.

After reviewing and analyzing the legal and factual issues presented in this

action, the risks and expenses involved in pursuing the litigation to conclusion, the

likelihood of a damage award in excess of that negotiated in the settlement, the

protracted nature of the litigation, and the likelihood, costs, and possible outcomes

of one or more procedural and substantive appeals, the parties reached a class-wide

settlement, and negotiated the Agreement in good faith and at arm’s-length.

II. THE TERMS OF THE SETTLEMENT

A. Class Certification

The parties stipulated to, and the Court has preliminarily approved, the

certification of a Settlement Class consisting of: “All applicants for employment with


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and employees of Core-Mark for whom Core-Mark procured or caused to be

procured a consumer report, as defined by the FCRA, between December 1, 2013

and the date the Final Judgment and Order approving this Settlement Agreement is

entered by the Court, and for whom Core-Mark used adverse information contained

in such consumer report to disqualify such individuals from employment with Core-

Mark.” Settlement Agreement, ¶ III.C.

B. Class Representation.

Plaintiff’s counsel, James Francis, of Francis & Mailman, P.C., and David

Marco, of SmithMarco, P.C., have been approved as Class Counsel and have

extensive experience litigating complex cases, particularly cases brought pursuant

to the Fair Credit Reporting Act. (See Declarations filed by Class Counsel in support

of Plaintiff’s Unopposed Motion for Attorneys’ Fees and Reimbursement of

Expenses).

Plaintiff’s attorneys’ fees and expenses have been separately negotiated as

part of the Class Settlement and do not reduce the funds negotiated for payment to

the Class Members, either as percentage of the fund or as a reduced amount available

to the Class. Rather, Plaintiff’s attorneys’ fees and expenses were negotiated

separately from the parties’ resolution regarding the funds available to pay the Class.


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C. Relief to the Settlement Class

1. Injunctive Relief

In and of itself, the injunctive relief negotiated as part of the Settlement has

resulted in a great resolution for future candidates for employment at Core-Mark as

it resolves two fundamental issues that resulted from Core-Mark’s historically

decentralized structure and its inconsistent policies and procedures for FCRA

compliance.

First, the Settlement provides that Defendant will: (i) provide standalone

Consent and Disclosure forms that provide clear notice to job applicants that they

are providing authorization for Core-Mark to obtain a consumer background report

and remove any putative release and waiver that was previously extended to the

consumer reporting agency furnishing the report; and, (ii) institute uniform,

company-wide, policies and procedures to ensure compliance with the disclosure,

authorization, and notice practices relating to obtaining consumer background

reports and the provision to job applicants of the consumer report and summary of

rights as referenced in §§ 1681b(b)(2) and 1681b(b)(3) of the FCRA, including

utilizing the disclosure and authorization form attached to the Agreement as Exhibit

B when appropriate and providing consumer reports and summaries of rights

through the USA-Fact “Gold Service” or by some substantially similar process. Id.,


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¶ IV.H.

2. Monetary Relief

In addition to the injunctive relief provided by the Settlement, Defendant has

agreed to pay up to $494,200.00 (the “Settlement Payment”), which will result in a

payment of $300.00 to each Class Member. Defendant has also agreed to pay a

service award of $10,000.00 to the Class Representative, and has agreed that Class

Counsel may apply for an award of up to $225,000 in attorneys’ fees, litigation costs

and expenses without objection by Defendant. Id., ¶¶ IV.B.2, 3, F; VIII.

Furthermore, and separate and distinct from the Settlement Payment

delineated above, Defendant has agreed to pay the costs of notice and settlement

administration and the costs associated with complying with the Class Action

Fairness Act (“CAFA”), including the items required by 28 U.S.C. § 1715(b) to be

sent to the appropriate officials, as required by the CAFA. Id., ¶ IV.E, G.

D. The Settlement is Fair, Reasonable, and Adequate

Given the inherent risks associated with a trial, and the recovery for the Class

Members, Class Counsel determined that the settlement is fair, reasonable, and

adequate for the Class because, in addition to the monetary relief for Class Members,

the injunctive relief will benefit not only the Class but will also serve to benefit

future employment applicants, not only in the manner with which they provide


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authorization to Core-Mark for it to obtain a copy of their consumer background

report, but also the manner with which they are apprised of any potentially inaccurate

information appearing on that report and apprised of their rights under the FCRA to

dispute that information. Moreover, with no Class Members having opted out of the

settlement, each Class Member will automatically receive a substantial statutory

damage amount without the need to submit a claim.

E. The Settlement Administrator

The parties retained the services of Kurtzman Carson Consultants, LLC

(“KCC”), a professional third-party class action settlement administrator. Id., ¶ 3.B.

Details of the administration of class notice are delineated, infra.

F. Class Members Response to the Proposed Settlement

The response to the Class Settlement negotiated by the parties, and

preliminarily approved by the Court, has been entirely positive. As of the date of

the filing of the present motion, KCC has received no objections to the Settlement

and has received no requests for opting out of the Settlement.

G. Release

In consideration of the relief provided by the Settlement, as detailed in the

Agreement, the Class will release all claims that arise out of or relate to the facts

alleged or which could have been alleged or asserted in the action under the FCRA.


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The release does not apply to non-FCRA related claims. Id., ¶ XII.

III. THE COURT-APPROVED NOTICE PROGRAM

Pursuant to the Settlement Agreement and the Court’s Order of Preliminary

Approval, the parties retained an independent, third-party class action administrator,

KCC, to handle notice and settlement administration in this case. See Declaration

of Alex Thomas on Behalf of Settlement Administrator Regarding Notice (“Thomas

Dec.”), filed herewith. In addition to its other duties, KCC complied with the Class

Action Fairness Act of 2005 by timely serving upon the Attorney General of the

United States and the Attorneys General for all fifty (50) states and eight (8) U.S.

territories, notice of the proposed settlement in accordance with 28 U.S.C. § 1715(b).

Thomas Dec., ¶¶ 2-3.

On January 12, 2018, Core-Mark provided KCC with the identification of the

864 Class Members. KCC reviewed the information it received through the United

States Postal Service’s National Change of Address database and it identified and

removed 45 records with no valid physical address. KCC identified 11 records that

had 2 addresses resulting in 829 records with a postal address to which notice could

be sent. Id., ¶ 5.

In addition, KCC established a toll-free telephone at which Class Members

could speak with a representative to obtain answers to any questions regarding the


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Settlement and the case. Further, on February 2, 2018, KCC caused a press release

to be issued, which provided information about the Settlement. Id., ¶¶ 6, 8.

Of the 829 notices mailed, 171 were initially returned as undeliverable by the

Post Office. KCC searched for updated mailing addresses and found revised

addresses for 119 Class Members and re-issued notice to those 119 Class Members

at the revised address, of which 64 of were returned as undeliverable. Id., ¶ 9.

At the conclusion of the notice period, 713 notices were shown to be delivered

to Class Members, resulting in an 86% “reach rate” to the Class. Id. As noted above,

KCC received no objections and no opt outs.2

IV. THIS COURT SHOULD APPROVE CLASS COUNSEL’S REQUEST FOR A SERVICE AWARD TO MS. CROSBY

Service (or “incentive”) awards to class representatives are typical in class

action cases. Ingram v. The Coca-Cola Co., 200 F.R.D. 685, 694 (N.D. Ga. 2001)

(“[Courts] routinely approve incentive awards to compensate named plaintiffs for

the services they provided and the risks they incurred during the course of the class

action litigation.”); Allapattah Servs., Inc. v. Exxon Corp., 454 F. Supp. 2d 1185,

1218 (S.D. Fla. 2006) (“Incentive awards are not uncommon in class litigation

2 The Thomas Dec. was signed on March 30, 2018. On April 5, 2018, Class Counsel contacted KCC to verify that as of the date of filing of the present motion, no timely objections or opt outs had been received in response to the Class Notice.


13

where, as here, a common fund has been created for the benefit of the class.”). These

awards “serve an important function in promoting class action settlements.”

Sheppard v. Cons. Edison Co. of N.Y., Inc., No. 94-CV-0403(JG), 2002 U.S. Dist.

LEXIS 16314, at *16 (E.D.N.Y. Aug. 1, 2002).

“In deciding whether such an award is warranted, relevant factors include the

actions the plaintiff has taken to protect the interests of the class, the degree to which

the class has benefitted from those actions, and the amount of time and effort the

plaintiff expended in pursuing the litigation.” Cook v. Niedert, 142 F.3d 1004, 1016

(7th Cir. 1998); accord UFCW Local 880—Retail Food Emp’rs Joint Pension Fund

v. Newmont Mining Corp., 352 F. App’x 232 (10th Cir. 2009) (“a class

representative may be entitled to an award for personal risk incurred or additional

effort and expertise provided for the benefit of the class”); Rodriguez v. W. Publ’g

Corp., 563 F.3d 948, 958 (9th Cir. 2009) (noting that incentive awards are “intended

to compensate class representatives for work done on behalf of the class, to make up

for financial or reputational risk undertaken in bringing the action, and, sometimes,

to recognize their willingness to act as a private attorney general”).

Here, Ms. Crosby took exceptional steps to protect the interests of the Class,

and spent a considerable amount of time pursuing the claims underlying this matter.

She was instrumental in the development of the facts of her case and providing


14

insight into the operations of Core-Mark. She regularly contacted Plaintiff’s counsel

to discern the status of her claim and the claim for the Class. Moreover, she always

ensured that she was available to Class Counsel, to assist with the collection and

production of documentation, to answer any questions, and to respond to

Defendant’s written discovery requests.

Class Counsel’s request for an award to Ms. Crosby in the amount of $10,000

is in line with awards that courts have approved in comparable FCRA class cases.3

This Court, therefore, should approve Class Counsel’s request for an incentive award

3 See Patel v. Trans Union, LLC, 2018 WL 1258194, *7-8 (N.D. Cal. March 11, 2018) (approving service award of $10,000); Stokes v. RealPage, Inc., C.A. No. 15-1520 (E.D. Pa. Feb. 6, 2018) (ECF 63) (awarding $10,000 to each of two FCRA class representatives); Flores v. Express Services, Inc., 2017 WL 1177098 (E.D. Pa. March 29, 2017) (approving $10,000 award to FCRA class representative); Jones v. Halstead Mgt. Co., No. 14-3125 (S.D.N.Y. May 5, 2016) (ECF 155) (approving $10,000 to FCRA class representative); Rodriguez v. Calvin Klein Inc, et. al, No. 1:15-cv-2590-JSR (S.D.N.Y. Mar. 21, 2016) (ECF 33) (final approval order awarding $15,000 to class representative in recognition of service in FCRA case); Berry v. LexisNexis Risk & Info. Analytics Grp., Inc., No. 3:11-CV-754, 2014 WL 4403524, *4 (E.D. Va. Sept. 5, 2014), aff'd sub nom. Berry v. Schulman, 807 F.3d 600 (4th Cir. 2015) (awarding $5,000 to each of several class representatives); Giddiens v. LexisNexis Risk Solutions, Inc., C.A. No. 12-2624 (ECF 55, at ¶ I) (E.D. Pa. Jan. 20, 2015) (awarding class representative $10,000); Robinson v. General Info. Servs., Inc., No. 2:11-cv-07782-PBT (E.D. Pa. Nov. 4, 2014) (ECF 55) (final approval order awarding $10,000 to class representative); Sapp v. Experian Info. Solutions, 2013 WL 2130956, *3 (E.D. Pa. May 15, 2013) (awarding $15,000 to class representative in FCRA settlement); Barel v. Bank of America, 255 F.R.D. 393, 402-403 (E.D. Pa. 2009) ($10,000).


15

to Ms. Crosby in the amount of $10,000.

V. THE COURT SHOULD GRANT FINAL APPROVAL OF THE SETTLEMENT

The Court should grant final approval of the Class Settlement because it

provided Class Members with the best practicable notice and satisfies the Eleventh

Circuit’s standard of being “fair, reasonable and adequate” and not the product of

collusion between the parties. See Strube v. American Equity Investment Life Ins.

Co., 158 Fed. Appx. 198 (11th Cir. 2005) (citing Piambino v. Bailey, 757 F.2d 1112

(11th Cir. 1985)); Diaz v. Hillsborough County Hosp. Auth., 2000 WL 1682918

(M.D. Fla. Aug. 7, 2000).

A. The Settlement is Fair, Adequate, and Reasonable

The law has long been settled in the Eleventh Circuit: “In determining whether

to approve a proposed [class action] settlement, the cardinal rule is that the district

court must find that the settlement is fair, adequate and reasonable and is not the

product of collusion between the parties.” Cotton v. Hinton, 559 F.2d 1326, 1330

(5th Cir. 1977); Leveroso v. SouthTrust Bank of AL., N.A., 18 F.3d 1527, 1530 (11th

Cir. 1994). “Determining the fairness of the settlement is left to the sound discretion

of the trial court.” Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir. 1984).

The Court’s exercise of discretion should be “informed by the strong judicial policy


16

favoring settlement as well as by the realization that compromise is the essence of

settlement.” Id. To aid in this determination, the Eleventh Circuit has identified six

factors that a district court should examine when assessing whether a proposed

settlement is fair, adequate and reasonable:

(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. In evaluating these considerations, “the Court should not

reach any ultimate conclusions with respect to issues of fact or law involved in the

case.” Knight v. Alabama, 469 F. Supp. 2d 1016, 1033 (N.D. Ala. 2006). Rather, the

court “must rely upon the judgment of experienced counsel and, absent fraud,

‘should be hesitant to substitute its own judgment for that of counsel.’” Cotton, 559

F.2d at 1330.

1. The Bennett Factors Weigh in Favor of the Settlement

As applied to this case, the factors outlined in Bennett support a finding that

the Settlement is fair, adequate, reasonable, and worthy of final approval.

a. Bennett Factor One: Likelihood of Success at Trial

Where a substantial question exists regarding the likelihood of success at trial,


17

this factor weighs in favor of approving a proposed class action settlement. Knight,

469 F. Supp. 2d at 1033. It is virtually impossible to predict a likely result at trial.

Waters v. Cook's Pest Control, Inc., 2012 WL 2923542, at *13 (N.D. Ala. 2012).

There would be substantial risk and uncertainty for all parties if this case was

to proceed to trial. In its response to Plaintiff’s Complaint, Defendant challenged

the legal sufficiency of each of Plaintiff’s claims and raised fifteen (15) separate

affirmative defenses, including that Plaintiff’s claims were barred because its actions

were not willful, which would serve to defeat Plaintiff’s claim for statutory damages.

Moreover, Defendant continued to assert that Plaintiff lacked constitutional

standing to pursue her claim and there was always the risk that Defendant could file

a motion to dismiss on these grounds. Further, Defendant stated its intention to

object to any amendment to the Complaint, which if sustained would have impeded

Plaintiff’s ability to proceed to trial on the non-compliant C&D authorization form.

By contrast, because of the Settlement, not only do Class Members receive

immediate compensation without even having to file a claim, future job applicants

to Core-Mark are now being protected because of the injunctive relief provided for

by the Settlement.


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b. Bennett Factors Two and Three: Range of Recovery and the Point at Which Settlement is Fair

“The second and third considerations of the Bennett test are easily combined.”

Behrens v. Wometco Enterprises, Inc., 118 F.R.D. 534, 541 (S.D. Fla. 1988). A

district court must first determine the appropriate standard of damages (in order to

calculate the range of recovery), and then determine where in this range of recovery

a fair, adequate and reasonable settlement amount lies. Id. The existence of strong

defenses to the claims presented makes the possibility of a low recovery quite

reasonable. See id. at 542 (explaining that “a settlement can be satisfying even if it

amounts to a hundredth or even a thousandth of a single percent of the potential

recovery”).

In the present case, a finding that Core-Mark willfully violated the FCRA

could result in statutory damages in the range of $100 to $1,000 per Class Member.

The negotiated settlement provides for a per Class Member settlement of $300,

which is within the range of other similar class action settlements. See, e.g., Lengel

v. HomeAdvisor, Inc., Case No. 15-2198-KHV, 2017 WL 364582 (D. Kan. Jan. 25,

2017) (approving settlement of $115.15 per class member for section 1681b(b)(2)

claim); Jones v. Halstead, No. 1:14-cv-03125-VEC, Doc. No. 155 ($325 for claims

under section 1681b(b)(2)); Reardon v. ClosetMaid Corporation, C.A. No. 08-cv-


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01730, Doc. No. 200-1, approved Doc. No. 220 (W.D. Pa. June 13, 2014) ($400 for

section 1681b(b)(3) claims).

Thus, given the capped range of recovery on a class basis, coupled with the

added value of the injunctive relief negotiated as part of the Settlement Agreement,

the parties’ settlement is both fair and adequate to compensate the Class Members.

c. Bennett Factor Four: Complexity, Expense, and Duration of the Litigation

As the Eleventh Circuit has noted: “In these days of increasing congestion

within the Federal court system, settlements contribute greatly to the efficient

utilization of our scarce judicial resources.” Cotton, 559 F.2d at 1331.

The issues in this case, both technical and legal, are highly complex. Were

this case to proceed to trial (or even appeal), the costs would increase dramatically

for all Parties. The FCRA includes a fee shifting provision, which includes

reasonable attorneys’ fees and costs for a successful action. See 15 U.S.C.

§ 1692k(a)(3). The intrinsic value of the net settlement payment to Settlement Class

members is readily apparent when one considers the risks inherent in continued and

protracted litigation, including that the Court could have denied Plaintiff’s motion

for class certification, or granted Defendant’s motion to dismiss on constitutional


20

standing grounds. The costs and uncertainty of litigation, and the expense and delay

that accompany the appeal process, support approval.

While the parties could have litigated the case to judgment and taxed the

resources of the litigants and the Court, they instead elected to rationally and

reasonably forgo the expense and uncertainty of continued litigation and focus their

efforts and resources on achieving a fair and adequate settlement that accounted for

the risks of further litigation.

d. Bennett Factor Five: Substance and Amount of Opposition to the Settlement

The Settlement should be approved because, without exception, the

Settlement Class members have accepted it.

“In determining whether a proposed settlement is fair, reasonable, and

adequate, the reaction of the class is an important factor.” Camp v. City of Pelham,

2014 WL 1764919, at *4 (N.D. Ala. 2014) (quoting Lipuma v. Am. Express Co., 406

F. Supp. 2d 1298, 1324 (S.D. Fla. 2005) (internal citation omitted)). Further, the lack

of objections “points to the reasonableness of [the] proposed settlement and supports

its approval.” Id.

In the present case, no Settlement Class member filed an objection or opted

out of the Settlement.


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e. Bennett Factor Six: The Stage of the Proceedings

A court evaluates the stage of the proceedings at the time of settlement to

ensure that the plaintiffs have access to sufficient information to adequately evaluate

the merits of the case and weigh the benefits of the settlement against further

litigation. See Behrens, 118 F.R.D. at 544.

The initial complaint was filed on December 2, 2015; Defendant’s motion to

stay was denied as moot and Defendant filed its answer to the complaint on June 7,

2016. Thereafter, the parties engaged in comprehensive written discovery that

ultimately resulted in the production of in excess of 2,400 pages of documents.

Using the information obtained in discovery, the parties agreed to proceed to

mediation “well aware of the other side’s position and the merits thereof” when

settlement negotiations commenced. See In re Sunbeam Sec. Litig., 176 F. Supp. 2d

1323, 1332 (S.D. Fla. 2001). On April 4, 2017, the parties participated in the

mediation, which ended after a full day’s session without a resolution. Thereafter,

the parties continued with their good faith efforts to bring this matter to an amicable

conclusion, resulting in the Settlement that is now before the Court for final

approval.

“[V]ast formal discovery need not be taken” for counsel to adequately


22

evaluate the merits of the case and weigh the benefits of settlement against further

litigation, and, indeed, “early settlements are favored.” Saccoccio v. JP Morgan

Chase Bank, N.A., 297 F.R.D. 683, 694 (S.D. Fla. 2014). In the present case, Class

Counsel had access to sufficient information to adequately evaluate the merits of the

case at the conclusion of written discovery. Moreover, the parties recognized the

value of proceeding with mediation before incurring the additional time and expense

of oral discovery and those resources were ultimately utilized to bring about the

current Settlement.

The proceedings to date evince a sufficient basis for an informed settlement

as this case was actively litigated for almost a year and a half before the parties

reached their resolution.

2. The Judgment of Experienced Counsel and the Absence of Collusion Further Support the Settlement

In addition to the Bennett factors, a district court may also rely upon the

judgment of experienced counsel for the parties. See Greco v. Ginn Dev. Co., LLC,

No. 14-11443, --- F. App’x ---, 2015 WL 7755673, at *3 (11th Cir. Dec. 2, 2015)

(citing Cotton, 559 F.2d at 1330). Absent evidence of fraud or collusion, a court

should “be hesitant to substitute its own judgment for that of counsel.” Greco, 2015

WL 7755673 at *3. Where the parties have negotiated at arms-length, the Court


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should find that the settlement is not the product of collusion. See, e.g., Ass’n for

Disabled Ams., Inc. v. Amoco Oil Co., 211 F.R.D. 457, 470 (S.D. Fla. 2002).

This Settlement was reached with the assistance of an extremely qualified

mediator and resulted from lengthy, hard fought, arms-length negotiations, and

which continued beyond the day of mediation and only resulted in a settlement after

sustained discussion to bring this matter to an amicable conclusion.

The Court has already concluded that Class Counsel has the experience to

adequately represent the Settlement Class members in this action (Doc. # 41). Here,

based on its experience, it is Class Counsel’s informed position that the Settlement

is fair, reasonable, and adequate.

VI. CONCLUSION

This Settlement represents an excellent result for the Settlement Class

Members, which is more than fair, adequate and reasonable; Defendant Core-Mark

Distributors, Inc., agrees to the relief requested herein.

Accordingly, Plaintiff’s Motion for Final Approval should be granted and the

Court should enter the proposed Final Approval Order attached hereto.


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Dated: April 6, 2018 Respectfully submitted, SHARON CROSBY

By: s/ James A. Francis

Attorney for Plaintiff and Class

James A. Francis FRANCIS & MAILMAN, P.C. 100 South Broad Street, Suite 1902 Philadelphia, PA 19110 Telephone: (215) 735-8600 Facsimile: (215) 940-8000 E-Mail: [email protected] Admitted Pro Hac Vice

By: s/ David M. Marco Attorney for Plaintiff and Class

David M. Marco SMITHMARCO, P.C. 55 W. Monroe Street, Suite 1200 Chicago, IL 60603 Telephone: (312) 546-6539 Facsimile: (888) 418-1277 E-Mail: [email protected] Admitted Pro Hac Vice


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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

SHARON CROSBY, on behalf of ) herself and all others similarly situated, ) ) Civ. No. 1:15-cv-04198-SCJ-JFK

Plaintiffs, ) v. ) )

CORE-MARK DISTRIBUTORS, INC., ) Defendant. ) ____________________________________)

CERTIFICATE OF SERVICE

To: J. Randall Coffey Matthew R. Simpson

Fisher & Phillips LLP Fisher & Phillips LLP 4900 Main Street, Suite 650 1075 Peachtree Street NE, Suite 3500 Kansas City, MO 64112 Atlanta, GA 30309 Tel: (816) 842-8770 Tel: (404) 231-1400 Fax: (816) 842-8767 Fax: (404)240-4249

I, David Marco, an attorney, certify that on April 6, 2018, I shall cause to be

served a copy of Plaintiff’s Unopposed Motion for Final Approval of Class Action Settlement, upon the above-named individual(s) electronically via the Case Management/Electronic Case Filing system (“ECF”).

By: s/ David M. Marco Attorney for Plaintiff and Class


Documents

Motion for Final Approval (Crosby) FINAL DRAFT...On September 25, 2015, after reviewing the background report from IOD, Defendant denied Ms. Crosby the position of employment, based