Adams et al v. Sentinel Offender Services, LLC et al
Filing
26
OPINION AND ORDER denying as moot the parties' Joint Motion for Conditional Certification of Settlement Class 21 and granting the parties' First Amended Joint Motion for Conditional Certification of Settlement Class 25 . Plaintiffs Stace y Adams and Jerry Saint Vil are appointed Representatives for the Class. attorneys Sarah Geraghty and Akiva Freidlin of the Southern Center for Human Rights and Michael Caplan and Julia Stone of Caplan Cobb LLP are appointed as Class Counsel. The proposed Settlement Agreement is preliminarily approved. See Order for specifics on how the Notice shall be provided, how the settlement shall be administered and certain deadlines. Signed by Judge William S. Duffey, Jr. on 5/10/18. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
STACEY ADAMS and JERRY
SAINT VIL, on behalf of themselves
and others similarly situated,
Plaintiffs,
v.
1:17-cv-2813-WSD
SENTINEL OFFENDER
SERVICES, LLC; MARK
CONTESTABILE, Chief Business
Development Officer, Sentinel
Offender Services, LLC; TIM
LEWIS, Vice President of Georgia
Services, Sentinel Offender Services,
LLC; and STEVE QUEEN, Director
of Services, Sentinel Offender
Services, LLC;
Defendants.
OPINION AND ORDER
This matter is before the Court on the parties’ Joint Motion for Conditional
Certification of Settlement Class [21] (“Original Joint Motion”) and the parties’
First Amended Joint Motion for Conditional Certification of Settlement Class [25]
(“Amended Joint Motion”).
1
I.
BACKGROUND
A.
Nature of the Action1
This is a class action brought by two named representatives, Stacey Adams
and Jerry Saint Vil (the “Plaintiffs”) on their behalf and on behalf of a class of
similarly situated people, against Defendant Sentinel Offender Services, LLC
(“Sentinel”), and individuals employed by Sentinel. Sentinel provides probation
supervision services in non-felony probation cases for courts throughout the State
of Georgia. From 2006 to 2017, Sentinel had a contract with the City of Atlanta,
Georgia, to provide probation services for probationers sentenced by the Municipal
Court of Atlanta, including general probation supervision, fine collection services,
counseling, and other probation services. Defendants Mark Contestabile, Tim
Lewis and Steve Queen were at various relevant times employed by Sentinel with
managerial responsibilities related to the administration of the probation services
provided by Sentinel to the Municipal Court of Atlanta.
The Amended Complaint [5] alleges that Defendants illegally collected
excessive or unauthorized fees that were not ordered by any court, permitted by
statute, or authorized by Sentinel’s contract with the Municipal Court of Atlanta.
Plaintiffs specifically allege that fees collected by Defendants in certain instances
violated O.C.G.A. § 42-8-103(b). As of July 1, 2015, that statute provided:
1
The Court takes these facts from the parties’ Amended Joint Motion [25]
and the First Amended Complaint [5].
2
“When pay-only probation is imposed, the probation supervision fees
shall be capped so as not to exceed three months of ordinary probation
supervision fees notwithstanding the number of cases for which a fine
and statutory surcharge were imposed or that the defendant was
sentenced to serve consecutive sentences . . . .”
O.C.G.A. § 42-8-103(b).
Pay-only probationers sentenced in the Municipal Court of Atlanta were
generally required to pay Sentinel a fee of $20 during the first month of Sentinel’s
services. In the event a pay-only probationer paid off their fines within the first 30
days of probation, Sentinel would not charge additional fees for services. In the
event a pay-only probationer did not pay off fines within the first 30 days of
probation, Sentinel would charge the probationer $27 for supervision fees up to an
additional three (3) times.
Plaintiff Stacey Adams was sentenced by the Municipal Court of Atlanta in
July 2015 to pay a fine and fees totaling $215.25. Plaintiff Adams did not pay her
fine and fees at the time of her sentencing and was sentenced to pay-only
probation. Plaintiff Adams was charged by Sentinel a $20 “enrollment” fee in the
first month of her probation and three (3) supervision fees each in the amount
of $27.
Plaintiff Jerry Saint Vil was sentenced for traffic violations by the Municipal
Court of Atlanta on three (3) occasions. On each occasion, Plaintiff Saint Vil did
not pay his fines and fees at the time of his sentencing and was sentenced to pay3
only probation. For the first sentence, Plaintiff Saint Vil was charged a $20
enrollment fee. For the second sentence, Plaintiff Saint Vil was charged three (3)
supervision fees of $27 each. For the third sentence, Plaintiff Saint Vil was
charged a $20 enrollment fee in the first month of his probation and two (2)
supervision fees of $27 in each of the following months.
Plaintiffs filed suit against Defendants on July 31, 2017. In their amended
complaint, Plaintiffs assert claims under the United States Constitution and the
laws of the State of Georgia. Plaintiffs seek equitable relief, compensatory and
punitive damages, and attorney’s fees. Plaintiffs also seek to certify a class
consisting of “all persons who (1) were sentenced by the Atlanta Municipal Court
to pay-only probation under the supervision of Sentinel Offender Services after
July 25, 2013; (2) were unable to pay off their court-ordered fines within 30 days
of having been sentenced; and (3) were nevertheless required to pay a $20
‘enrollment fee.’” ([25.1] at 5).
Defendants contend that all fees charged were authorized by Sentinel’s
contract with the City of Atlanta, were not in excess of any statutorily imposed
restrictions and were specifically authorized by the orders sentencing pay-only
probationers. Defendants further contend that the relevant portion of the statute at
issue, O.C.G.A. § 42-8-103(b), became effective on July 1, 2015, and that claims
4
for alleged unauthorized fees charged for sentences before July 15, 2015, should be
excluded from this action.
B.
The Proposed Settlement
On November 30, 2017, the parties attended a mediation session. During the
mediation, the parties agreed to a framework by which the claims asserted in this
case could be resolved. The parties used this framework to structure a settlement
agreement attached to the Original Joint Motion as Exhibit A. ([21.1] at 33-61).
The Court reviewed the proposed settlement agreement and scheduled a
teleconference with the parties to discuss its terms. During the teleconference, the
Court expressed concerns regarding the creation and funding of the settlement fund
and the stipulation of attorney’s fees as provided in the settlement agreement.
([24]).
In response, the parties filed an Amended Joint Motion [25] and attached a
revised settlement agreement as Exhibit A (“the Settlement Agreement”). ([25.1]
at 33-63). The Settlement Agreement requires the parties to move the Court to
certify a class of persons (“the Class”) consisting of each individual who meets the
following requirements: (1) the person was sentenced to “pay only” probation as
defined by O.C.G.A. § 42-8-103 by the Municipal Court of Atlanta, Georgia on or
after July 1, 2015; and (2) the person was subsequently charged and paid to
Defendant Sentinel Offender Services, LLC at least one enrollment or
5
administrative fee of $20 and supervision fees of at least $81 for a single
sentencing event (defined as a single sentencing order whether said order
references multiple cases or imposes consecutive sentences). ([25.1] at 34 ¶ 2).
The parties believe, based on a review of documents and files by Plaintiffs,
Defendants, and their attorneys, that the Class will consist of no more than 2352
potential members. The Settlement Agreement provides that each member of the
Class will be notified of the terms of the Settlement Agreement and his or her right
to opt out of the Class. ([25.1 at 46-59 (“Notice of Class Action, Proposed
Settlement and Final Approval/Fairness Hearing”); [25.1] at 60-63 (“Response
Form”)).
The Settlement Agreement further provides that Defendants will make
available a “Class Fund” to reimburse and compensate all Class Members who
timely submit claim forms. Each member of the Class who completes and submits
a claim form within the designated time period is presumptively entitled to receive:
(1) a refund of $23 for fees previously paid by the Class Member to Defendant
Sentinel (“the Restitution Amount”); and (2) additional damages of $30 per Class
Member (“the Damages Amount”). The Settlement Agreement states that
Defendants shall pay 50% of the potential Total Damages Amount plus the
anticipated compensation/settlement amounts of $5,000.00 to each of the
representative Plaintiffs ($53.00 x 2352 potential Class Members = $124,656.00 x
6
50% = $62,328.00 + $10,000.00 = $72,328.00) to attorneys for the Class within 23
days of the Court’s preliminary approval of the settlement to be deposited in a trust
account pending final approval and distribution. ([25.1] at 39-40). This amount
will be treated as a deposit or credit towards the Total Damages Amount and
anticipated settlements with the representative plaintiffs, but will not increase or
decrease the final calculation of the Total Damages Amount to be calculated as set
forth above. To address a concern raised by the Court regarding Defendants’
ability to fund 100% of the potential Total Damages Amount, the Settlement
Agreement states Defendants have provided Plaintiffs evidence of Defendant
Sentinel Offender Services, LLC’s creditworthiness and represent to the Court that
said Defendant is financially capable of funding up to the potential Total Damages
Amount. (Id.)
The Settlement Agreement also states that:
Defendants will pay Plaintiffs’ counsel’s attorney fees and costs in the
amount of $30,000, subject to approval by the Court;
Plaintiffs’ counsel will be responsible for the administration of the
settlement with respect to mutually agreeable notification to the
potential class members and distribution of settlement checks to
properly responding Class Members;
Defendant Sentinel will reimburse Plaintiffs’ counsel for up to $8,000
of the actual expenses (publication, postage and copying) of the
administration of the settlement within 30 days of receipt of
documentation of the expenses incurred; and
7
The individual claims of Plaintiffs Adams and Saint Vil will be
resolved by each receiving $5,000 as payment for their services as
class representatives and for the resolution all claims asserted or
which could be asserted in this lawsuit.
As required by Local Rule 23.1(C)(2), the parties have conferred and agree
that Plaintiffs’ attorneys may contact class members as set forth in the Settlement
Agreement.
II.
DISCUSSION
The Amended Joint Motion requests the Court to certify a class for
settlement purposes, appoint class counsel, preliminarily approve the proposed
Settlement Agreement, direct that notice shall be issued to the class, and schedule a
final fairness hearing.
A.
Conditional Certification of Settlement Class
The parties move for certification of the following class for the purposes of
settling this action:
Individuals who meet the following criteria: (1) the person was
sentenced to “pay only” probation as defined by O.C.G.A. § 42-8-103
by the Municipal Court of Atlanta, Georgia on or after July 1, 2015;
and (2) the person was subsequently charged and paid to Defendant
Sentinel Offender Services, LLC at least one enrollment fee of $20
and subsequent supervision fees of at least $81 for a single sentencing
event (defined as a single sentencing order whether said order
references multiple cases or imposes consecutive sentences).
([25.1] at 5-6). A plaintiff seeking to certify a settlement class must first satisfy the
requirements of Federal Rule of Civil Procedure 23(a), and at least one of the
8
requirements of Rule 23(b). See Fed. R. Civ. P. 23(a)-(b); Amchem Prods.,
Inc. v. Windsor, 521 U.S. 591, 621 (1997) (Rule 23(e), which provides for
settlement of a class action, “was designed to function as an additional
requirement, not a superseding direction, for the ‘class action’ to which Rule 23(e)
refers is one qualified for certification under Rule 23(a) and (b).”).
1.
Rule 23(a)
Rule 23(a) provides:
(a) Prerequisites. One or more members of a class may sue or be sued as
representative parties on behalf of all members only if:
(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). In determining whether certification of a class for purposes
of settlement is appropriate, the Court must evaluate whether a plaintiff can
establish the requisite elements of Rule 23(a): numerosity, commonality, typicality
and adequacy of representation. Amchem, 521 U.S. at 613.
To satisfy the numerosity requirement, Plaintiffs must establish that the
members of the proposed class are “so numerous that joinder of all members is
impracticable.” Fed. R. Civ. P. 23(a)(1). Here, the Settlement Class consists of
9
2,352 individuals ([25.1] at 9), and the Court finds that the numerosity requirement
is satisfied. See Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir.
1986) (noting classes of more than forty members typically satisfy the numerosity
requirement). “[T]he proposed class is ‘adequately defined and clearly
ascertainable.’” Carriuolo v. General Motors Co., 823 F.3d 977, 984 (11th Cir.
2016) (quoting Little v. T-Mobile USA, Inc., 691 F.3d 1302, 1304 (11th Cir.
2012)). Each member of the Class has been determined by examining records in
Defendants’ possession identifying whether a particular probationer was charged
and paid the disputed fees during the period in question.
To satisfy the commonality requirement, Plaintiffs must show that questions
of law or fact are common to the entire class. Fed. R. Civ. P. 23(a)(2). “[F]or
purposes of Rule 23(a)(2) even a single common question will do.” Carriuolo v.
Gen. Motors Co., 823 F.3d 977, 984 (11th Cir. 2016), citing Wal–Mart Stores, Inc.
v. Dukes, 564 U.S. 338 (2011) (quotations omitted). “That common contention . . .
must be of such a nature that it is capable of classwide resolution—which means
that determination of its truth or falsity will resolve an issue that is central to the
validity of each one of the claims in one stroke.” Id.; see also Williams v. Mohawk
Indus., Inc., 568 F.3d 1350, 1355 (11th Cir. 2009) (“Commonality requires that
there be at least one issue whose resolution will affect all or a significant number
of the putative class members.” (quotation omitted)). Here, the claims of the
10
members of the Class are all based on the common legal question of whether payonly probationers were charged and paid for allegedly unauthorized probation
supervision fees after the enactment of O.C.G.A. § 42-8-103(b). The Court finds
that the commonality requirement of Rule 23(a)(2) is satisfied.
To satisfy the typicality requirement, the claims of the class representative
must be typical of the claims of the class members. Fed. R. Civ. P. 23(a)(3). The
claim of a class representative is typical if “the claims or defenses of the class and
the class representative arise from the same event or pattern or practice and are
based on the same legal theory.” Ault v. Walt Disney World Co., 692 F.3d 1212,
1216 (11th Cir. 2012) (quoting Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d
1332, 1337 (11th Cir 1984)). Here, the Plaintiffs and the other members of the
Class all assert claims based on Defendants’ alleged practice of charging pay-only
probationers fees in excess of that allowable by Section 42-8-103(b). Although
there are marginal factual differences among particular Class Members, the “strong
similarity of legal theories” asserted by each Class Member is sufficient to satisfy
Rule 23(a)(3). Local 703, I.B. of T. Grocery & Food Employees Welfare Fund v.
Regions Financial Corp., 762 F.3d 1248, 1259 (11th Cir. 2014) (quoting Williams,
568 F.3d at); see Ault, 692 F.3d at 1216 (finding typicality requirement satisfied
where class members asserted claims based on amusement park’s prohibition of
certain mobility devices even though “each class member may have a stronger or
11
weaker claim depending upon his or her degree of reliance” on the device).
Plaintiffs’ claims arise of out of the same conduct as the claims of the Settlement
Class, and the Court finds that the typicality requirement of Rule 23(a)(3) is
satisfied.
To satisfy the adequacy of representation requirement, Plaintiffs must show
that they “will fairly and adequately protect the interests of the class.”
Fed. R. Civ. P. 23(a)(4). “This ‘adequacy of representation’ analysis encompasses
two separate inquiries: (1) whether any substantial conflicts of interest exist
between the representatives and the class; and (2) whether the representatives will
adequately prosecute the action.” Valley Drug Co. v. Geneva Pharm., Inc., 350
F.3d 1181, 1189 (11th Cir. 2003). Here, Plaintiffs Stacey Adams and Jerry Saint
Vil have no interests antagonistic to those of the other Class Members, and
Plaintiffs have vigorously prosecuted this action to date. Plaintiffs are represented
by attorneys from the Southern Center for Human Rights, who have litigated
numerous class actions in the state and federal courts, and by attorneys from
Caplan Cobb LLP, who have extensive experience in complex litigation.
Plaintiffs, and their counsel, have fairly and adequately protected the interests of
the Settlement Class. The Court finds that the adequacy of representation
requirement of Rule 23(a)(4) is satisfied.
12
2.
Rule 23(b)
Plaintiffs must also satisfy one of the requirements of Rule 23(b). Plaintiffs
move for class certification under Rule 23(b)(3) which “allows the maintenance of
a class action when ‘the court 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.’” Carriuolo, 823 F.3d at 985 (quoting
Fed. R. Civ. P. 23(b)(3)).
“[T]he focus of Rule 23(b)(3) is on the predominance of common
questions.” Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, 568
U.S. 455, 466 (2013) (emphasis omitted). Common issues predominate “if they
have a ‘direct impact on every class member’s effort to establish liability that is
more substantial than the impact of individualized issues in resolving the claim or
claims of each class member.” Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1270
(11th Cir. 2009); see also Williams, 568 F.3d at 1357 (noting common questions
predominate “if they have a direct impact on every class member’s effort to
establish liability and on every class member’s entitlement to injunctive and
monetary relief.”). The Court must “take into account the claims, defenses,
relevant facts, and applicable substantive law” in determining whether common
question predominate. Coastal Neurology, Inc. v. State Farm Mut. Auto. Ins. Co.,
13
458 F. App’x 793, 794 (11th Cir. 2012) (quoting Klay v. Humana, Inc., 382 F.3d
1241, 1254 (11th Cir. 2004)). Common issues may predominate over
individualized ones “if those issues that are subject to generalized proof
predominate over those that are subject to individualized proof.” Kubiak v. S.W.
Cowboy, Inc., 2014 WL 2625181, at *18 (M.D. Fla. June 12, 2014).
In this case, common questions of law and fact predominate over
individualized issues. Defendants supervised thousands of pay-only probationers
sentenced by the Municipal Court of Atlanta and charged similar, if not identical,
probation supervision fees to probationers. Plaintiffs assert that the imposition of
and the collection of certain of these fees was unlawful and unconstitutional. If
every Class Member brought an individual action, each would attempt to prove
essentially the same facts and Defendants would generally assert the same
defenses. Similarly, if the Court were to hold that the fees charged and collected
were unauthorized and unlawful, that conclusion would establish Defendants’
liability in all of the Class Members’ cases. The Court finds the proposed class
here is “sufficiently cohesive to warrant adjudication by representation.” See
Amchem, 521 U.S. at 623.
The second part of Rule 23(b)(3) requires that Plaintiffs establish that a class
action is “superior to other available methods for fairly and efficiently adjudicating
14
the controversy.” Fed. R. Civ. P. 23(b)(3). Factors bearing on this determination
include:
(A) the class members’ interests in individually controlling the
prosecution or defense of separate actions; (B) the extent and nature
of any litigation concerning the controversy already begun by or
against class members; (C) the desirability or undesirability of
concentrating the litigation of the claims in the particular forum; and
(D) the likely difficulties in managing a class action.
Id. In weighing the relative advantages of a class action, courts consider what is
“realistically available to plaintiffs.” Klay, 382 F.3d at 1269.
The proposed class action is a fair and superior method of adjudication
because individual legal representation is unlikely due to class members’ lack of
resources and the modest damages involved. The “small recoveries” that would
likely be available to potential plaintiffs “do not provide the incentive for any
individual to bring a solo action prosecuting his or her rights.” Amchem, 521 U.S.
at 617 (quoting Mace v. Van Ru Credit Corp., 109 F.3d 338, 344 (7th Cir. 1997)).
This class action is also an efficient and superior method of adjudication
because the alternative—requiring each Class Member to adjudicate a separate
claim—would be “repetitive, wasteful, and an extraordinary burden on the courts.”
Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718, 725 (11th Cir. 1987) (quoting
Kennedy v. Tallant, 710 F.2d 711, 718 (11th Cir. 1983)). Concentrating this action
in a single forum promotes efficiency as well as Class Members’ interests. This
15
forum is appropriate because most of the Class Members reside in or near Atlanta,
Georgia.
Having found that the requirements of Rule 23(a) and 23(b)(3) are satisfied,
the Court grants the parties’ motion to certify a Settlement Class. The Court
certifies the Settlement Class as:
Individuals who meet the following criteria: (1) the person was
sentenced to “pay only” probation as defined by O.C.G.A. § 42-8-103
by the Municipal Court of Atlanta, Georgia on or after July 1, 2015;
and (2) the person was subsequently charged and paid to Defendant
Sentinel Offender Services, LLC at least one enrollment fee of $20
and subsequent supervision fees of at least $81 for a single sentencing
event (defined as a single sentencing order whether said order
references multiple cases or imposes consecutive sentences).
B.
Appointment of Class Counsel
Rule 23(g) of the Federal Rules of Civil Procedure provides that “a court
that certifies a class must appoint class counsel.” Fed. R. Civ. P. 23(g)(1). Class
counsel “must fairly and adequately represent the interests of the class” and, in
appointing class counsel, the Court must consider:
(i)
the work counsel has done in identifying or investigating
potential claims in the action;
(ii)
counsel’s experience in handling class actions, other complex
litigation, and the types of claims asserted in the action;
(iii)
counsel’s knowledge of the applicable law; and
(iv)
the resources that counsel will commit to representing the class.
Fed. R. Civ. P. 23(g)(1)(A)(i)-(iv), (2), (4).
16
Plaintiffs are represented by attorneys from the Southern Center for Human
Rights, a privately funded, non-profit organization with extensive experience in
civil rights and class action litigation, and by attorneys from Caplan Cobb LLP,
who have experience in complex litigation. ([25.1] at 12 n. 1). Plaintiffs’ counsel
have investigated the facts by, among other things, interviewing numerous
witnesses and probationers, and reviewing hundreds of case files and thousands of
documents. Plaintiffs’ counsel also spent a substantial amount of time researching
Plaintiffs’ legal claims and procedural issues such as class certification. Plaintiffs’
counsel have successfully prosecuted this action to obtain a reasonable settlement
of the claims. Plaintiffs’ counsel have also agreed to commit their resources to
providing notice to the Class and administering the Settlement Agreement.
Having considered the Rule 23(g) factors for the appointment of class
counsel, the Court concludes that counsel have significant experience in litigating
similar cases, have performed substantial work in prosecuting this action to date,
are well-versed in the law that applies to the claims asserted in this action, and
have the necessary resources to devote to the prosecution of this action. The Court
finds that the Southern Center for Human Rights, specifically attorneys Sarah
Geraghty and Akiva Freidlin, and Caplan Cobb LLP, specifically attorneys
Michael Caplan and Julia Stone, satisfy the requirements of Rule 23(g) and are
qualified to serve as Co-Class Counsel.
17
C.
Preliminary Settlement Approval
Rule 23(e) of the Federal Rules of Civil Procedure requires parties to obtain
Court approval of any class action settlement agreement. The Court may approve
the settlement “only after a hearing and on a finding that the settlement . . . is fair,
reasonable, and adequate” and not the product of collusion. Fed. R. Civ. P.
23(e)(2); Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir. 1984). “Approval
is generally a two-step process in which a ‘preliminary determination on the
fairness, reasonableness, and adequacy of the proposed settlement terms’ is
reached.” Holman v. Student Loan Xpress, Inc., No. 8:08-CV-305-T23MAP, 2009
WL 4015573, at *4 (M.D. Fla. Nov. 19, 2009) (quoting David F. Herr, Annotated
Manual for Complex Litigation § 21.632 (4th ed. 2008)). The Eleventh Circuit has
identified the following factors to evaluate whether a settlement agreement is fair,
reasonable and adequate:
(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.
Dikeman v. Progressive Express Ins. Co., 312 F. App’x 168, 171 (11th Cir. 2008)
(quoting Bennett, 737 F.2d at 986).
In considering the Bennett factors, the Court first notes that there is no
evidence of fraud or collusion influencing the parties reaching a settlement. The
18
parties have stated that the Settlement Agreement was the product of good-faith,
arm’s-length negotiations and the Settlement Agreement was reached between
experienced and qualified counsel with the assistance of an experienced and
neutral mediator. The parties agree that there is uncertainty about how the merits
of Plaintiffs’ claims would ultimately be resolved given Defendant’s legal and
factual defenses to the Plaintiffs’ claims.2
The range of individual recoveries under the proposed settlement is well
within the range of the possible benefit and recovery should the case go to trial. If
this case went to a trial and classwide liability were established, the Class
Members might recover more or less than the Restitution Amount provided for in
the Settlement Agreement. See, e.g., Gray ex rel. Alexander v. Bostic, 720 F.3d
887, 892 (11th Cir. 2013) (evaluating request for attorney’s fees after award of
nominal damages); cf. Carey v. Piphus, 435 U.S. 247, 266-67 (1978) (holding
plaintiff could “recover nominal damages not to exceed one dollar” for violations
of right to procedural due process). “If [defendant] prevails at trial, the class will
be left with no remedy at all.” Ault, 692 F.3d at 1218. In contrast, the Settlement
Agreement provides for not only restitution of money paid (at $23 per sentencing
incident for approximately 2,352 incidents), but additional damages of $30 per
Defendants deny that Plaintiffs or other probationers’ rights were violated
and contend that the fees charged and collected were authorized, lawful, and less
than similar pay-only probation fees charged in other jurisdictions.
19
2
Class Member. Thus, the total reimbursement/compensation to be paid to each
Class Member ($53) may be in excess of what each Class Member financially
incurred as a result of the Defendant’s alleged improper collection of fees. See,
e.g., Poertner v. Gillette Co., 618 F. App’x 624, 628 (11th Cir. 2015) (finding
settlement fair and reasonable where “the $6 that could be claimed [by certain class
members] exceeded the damages that an average class member would have
received if the class had prevailed at trial”). The payments called for by the
Settlement Agreement are within the range that would be fair, adequate and
reasonable.
The Court notes further that litigation of this case would be lengthy,
expensive, and uncertain. Approval of the Settlement Agreement would eliminate
that uncertainty and avoid the time and expense necessary to litigate a case of this
magnitude. At this stage, there is no apparent opposition to the Settlement
Agreement. Nor is there any indication that Plaintiffs’ claims have not been
sufficiently vetted to permit a comprehensive and fair settlement at this stage of the
proceedings. Lipuma v. Am. Express Co., 406 F. Supp. 2d 1298, 1324 (S.D. Fla.
2005) (“The stage of the proceedings at which a settlement is achieved is evaluated
to ensure that Plaintiffs had access to sufficient information to adequately evaluate
the merits of the case and weigh the benefits of settlement against further
litigation.”).
20
Upon consideration of the Bennett factors, the Court preliminarily approves
the Settlement Agreement as a “fair, reasonable, and adequate” compromise of
Plaintiffs’ claims. The Court also preliminarily approves as reasonable payment to
the Class Representatives as follows: Stacey Adams ($5,000.00) and Jerry Saint
Vil ($5,000.00).
D.
Notification of the Class
Rule 23(e) provides that “[t]he court must direct notice in a reasonable
manner to all class members who would be bound by a proposed settlement,
voluntary dismissal, or compromise.” The Court finds that the Parties have
developed a process consistent with the notification requirements of Rule 23(e) and
the Court approves the process. The Court also approves the proposed
Advertisement attached to the Settlement Agreement as Appendix A ([25.1] at
46-52), the proposed Notice attached as Appendix B ([25.1] at 53-59), and the
proposed Response Form attached as Appendix C ([25.1] at 60-63) with the
deadline dates as provided below.
E.
Scheduling of Fairness Hearing
Rule 23(e)(2) requires the Court to hold a hearing to determine whether the
proposed settlement is fair, reasonable, and adequate, and whether it should be
approved by the Court. The Court will hold such a Final Fairness Hearing at the
time and place provided below. Plaintiff shall file a motion for attorney’s fees in
21
accordance with Rule 23(h) and as directed below to provide an adequate period
for objection and consideration of the fee request at the Final Fairness Hearing.
III.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that the parties’ Joint Motion for Conditional
Certification of Settlement Class [21] is DENIED as MOOT.
IT IS FURTHER ORDERED that the parties’ First Amended Joint Motion
for Conditional Certification of Settlement Class [25] is GRANTED. The Court
conditionally certifies, for purposes of settlement only, a class consisting of 2,352
persons who meets the following criteria: (1) the person was sentenced to “pay
only” probation as defined by O.C.G.A. § 42-8-103 by the Municipal Court of
Atlanta, Georgia on or after July 1, 2015; and (2) the person was subsequently
charged and paid to Defendant Sentinel Offender Services, LLC at least one
enrollment fee of $20 and subsequent supervision fees of at least $81 for a single
sentencing event (defined as a single sentencing order whether said order
references multiple cases or imposes consecutive sentences).
IT IS FURTHER ORDERED that Plaintiffs Stacey Adams and Jerry Saint
Vil are appointed Representatives for the Class.
IT IS FURTHER ORDERED that attorneys Sarah Geraghty and Akiva
Freidlin of the Southern Center for Human Rights and Michael Caplan and Julia
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Stone of Caplan Cobb LLP are appointed as Class Counsel.
IT IS FURTHER ORDERED that the proposed Settlement Agreement is
preliminarily approved.
IT IS FURTHER ORDERED that the notice procedure proposed by the
parties is approved. Notice shall be provided in the following manner:
a. Defendants will publish the advertisement attached to the Settlement
Agreement as Appendix A (“the Advertisement”). The Advertisement
shall be published in the Fulton County Daily Report once per week for
two weeks to begin by June 8, 2018.
b. On or before June 8, 2018, Plaintiffs’ attorneys will mail the notice
attached to the Settlement Agreement as Appendix B (“the Notice”). The
Notice shall be sent by U.S. Mail and electronic mail (if available), to the
individuals who are believed by the parties to be the members of the
Class. The Notice shall be mailed to the most recent address contained in
the probation files maintained by Defendants. If a Notice is returned
with a forwarding address, Plaintiffs’ attorneys shall mail a second
Notice to the forwarding address provided or any other address obtained
through investigation as potential forwarding addresses.
c. If a Notice is returned as undeliverable and without a forwarding address,
Plaintiffs’ attorneys will make reasonable efforts to contact each such
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Class Member to determine a current address for the Class Member. If a
current address is identified, Plaintiffs’ attorneys shall mail a Notice to
that address within 5 business days of receipt of the address.
d. Each Notice mailed in accordance with the above procedure will be
accompanied by a copy of the Response Form attached to the Settlement
Agreement as Appendix C. Copies of the Notice and the Response Form
will also be made available electronically on the website for the Southern
Center for Human Rights. Plaintiffs’ attorneys will deliver a copy of the
Response Form by U.S. Mail, hand delivery, or electronic mail to any
individual who requests a copy of the form.
IT IS FURTHER ORDERED that the settlement shall be administered as
follows:
a. Defendants shall pay $72,328.00 to attorneys for the Class within 23 days
of the date of this order. Attorneys for the Class shall deposit the funds
in a trust account pending final approval and distribution. If funds
greater than this amount is required to pay all valid claims, Defendants
shall deposit all additional funds necessary to pay all validly filed and
cognizable claims.
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b. Defendants will reimburse Plaintiffs’ attorneys for the actual costs up to a
maximum of $8,000.00 of publication, postage and copying associated
with the notice procedure.
c. Members of the Class who wish to claim money owed to them under the
Settlement Agreement must return a completed Response Form to Class
Counsel by first-class mail, hand delivery, facsimile or electronic mail no
later than October 5, 2018.
d. Members of the Class who wish to opt out of the Settlement Agreement
must return a completed Response Form to Class Counsel by first-class
mail, hand delivery, facsimile or electronic mail no later than
October 5, 2018.
e. Members of the Class who wish to intervene in this case or object to the
terms of the Settlement Agreement must file their appearance or
objections with the Clerk of Court no later than October 5, 2018.
f. If a timely request to opt out of the Class is made by a person otherwise
entitled to be included as a member of that Class, then the person opting
out will be excluded from the Class, and the settlement agreement and
any determinations and judgments concerning the agreement will not
bind the excluded person.
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g. All members of the Class who do not opt out in accordance with the
terms of the settlement agreement and the notice provided to the Class
Members will be bound by any and all determinations and judgments
concerning the settlement agreement.
h. Class Members who object to the Settlement Agreement must file written
objections with the Court no later than October 5, 2018. The written
objection must state the full name and address of the objector, and must
include: (1) a statement of each objection being made; (2) a detailed
description of the legal authorities underlying each such objection; (3) a
statement of whether the objector intends to appear at the Final Fairness
Hearing; (4) a list of witnesses who the objector may call by live
testimony, oral deposition testimony, or affidavit during the Final
Fairness Hearing; and (5) a list of the exhibits that the objector may offer
during the Final Fairness Hearing, along with copies of those exhibits.
Any Class Member who does not file an objection within the time and in
the manner described above and in the notice to Class Members will be
forever barred from raising any objection to such matters in the event that
the Settlement Agreement is approved by the Court.
i. Any member of the Class who fails to timely file a written objection with
the Court and notice of his or her intent to appear at the Final Fairness
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Hearing, in accordance with the instructions in the notice and this Order,
shall not be permitted to object to the Settlement Agreement at the Final
Fairness Hearing, shall be barred from seeking review of the Settlement
Agreement by appeal or otherwise, and shall be deemed to have waived
forever any objections to the Settlement Agreement.
j. All members of the Class, except those members who timely request to
opt out of the Class, will be bound by all judgments in this action.
k. If the Settlement Agreement is not granted final approval, the parties will
be returned to their respective positions, as they existed immediately
prior to reaching the Settlement Agreement.
l. The Settlement Agreement and any and all negotiations, documents, and
discussions associated with the Settlement Agreement, shall not be
deemed an admission or evidence of any violation of law, the amount of
any damages owed to any Class Member, the value of attorney services
provided to the Plaintiffs or Class Members, or any other matter.
IT IS FURTHER ORDERED that the following deadlines shall apply:
a. The parties shall provide notice to the Class within 30 days of this Order,
and no later than June 8, 2018.
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b. Each potential Class Member must submit a Response Form indicating
the Class Member’s intent to receive payment, or to opt out of the class,
no later than October 5, 2018.
c. Class Members seeking to object to terms of the settlement agreement, or
to intervene in the case, must do so no later than October 5, 2018.
d. The Court shall hold a Final Fairness Hearing at the United States
Courthouse, 75 Ted Turner Drive, SW, Courtroom 1705, Atlanta, GA
30303-3309, at 9:30 a.m. on October 26, 2018.
e. Plaintiffs’ counsel shall file a motion for attorney’s fees in accordance
with Fed. R. Civ. P. 23(h) on or before September 21, 2018. The fees
requested shall not exceed $30,000 with the amount of fees ultimately
awarded, if any, to be in the discretion of the Court.
SO ORDERED this 10th day of May, 2018.
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