Albright et al v. Bi-State Development Agency of the Missouri-Illinois Metropolitan District

Filing 65

MEMORANDUM AND ORDER OF FINAL APPROVAL OF SETTLEMENT IT IS HEREBY ORDERED, ADJUDGED, and DECREED that Plaintiffs' Motion for Final Approval of Class Action Settlement is GRANTED. (Doc. No. 56.) IT IS FURTHER ORDERED that this action is DISMISSE D without prejudice in accordance with the terms of the Settlement Agreement. Without affecting the finality of this Order of Final Approval, the Court reserves continuing and exclusive jurisdiction over all matters relating to the administration, implementation, effectuation, and enforcement of the Settlement Agreement. Signed by District Judge Audrey G. Fleissig on 9/11/2013. (NCL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
NANCY ALBRIGHT and SARAH
RODHOUSE, individually and as the
representatives of a class of similarly situated
persons,
Plaintiffs,
v.
THE BI-STATE DEVELOPMENT
AGENCY OF THE MISSOURI–ILLINOIS
METROPOLITAN DISTRICT d/b/a
METRO,
Defendant.

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Case No. 4:11CV01691 AGF

MEMORANDUM AND ORDER OF FINAL APPROVAL OF SETTLEMENT
This matter is before the Court on the motion of Plaintiffs Nancy Albright and
Sarah Rodhouse (“Plaintiffs”) for Final Approval of Class Action Settlement. In this
case, Plaintiffs asserted a single claim against Defendant, the Bi-State Development
Agency of the Missouri – Illinois Metropolitan District (“MetroLink”), for willful
violation of the Fair and Accurate Credit Transactions Act (“FACTA”), 15 U.S.C. §
1681(c)(g)(1), a provision of the Fair Credit Reporting Act (“FCRA”).
I.

Background
By an Order of Preliminary Approval (Doc. 51) dated March 4, 2013, the Court

preliminarily approved the proposed Settlement Agreement based on the terms and
conditions of the Unopposed Amended Motion for Preliminary Approval of Class Action
Settlement Agreement and Notice to the Settlement Class (Doc. No. 50) (the “Motion for

Preliminary Approval”), and the Settlement Agreement (Doc. No. 50-1), subject to
further consideration at the Final Settlement and Fairness Hearing. In its Order of
Preliminary Approval, the Court conditionally certified the case to proceed as a class
action for settlement purposes only and temporarily certified Plaintiffs as representatives
of the following class: all individuals who used a personal credit or debit card to
purchase MetroLink tickets or passes at a Ticket Vending Machine between January 21,
2010, and August 16, 2011, and received an electronically printed receipt which
disclosed the expiration date for the credit or debit card used to make the payment. The
Court also ordered that notice to the Class be provided in the form attached as Exhibits 1,
2 and 3 to the Settlement Agreement.
On July 29, 2013, the Court conducted a Fairness Hearing to determine:
a. whether the Court should certify the Settlement Class and whether
Plaintiffs and their counsel have adequately represented the Class Members;
b. whether the Settlement Agreement, on the terms and conditions
provided for in the Settlement Agreement, should be finally approved by the Court
as fair, reasonable, and adequate;
c. whether the Lawsuit should be dismissed on the merits and with
prejudice as to MetroLink subject to the continuing jurisdiction of the Court;
d. whether the application for attorneys’ fees and expenses to be submitted
by Class Counsel should be approved; and
e. whether the application for an incentive award to Plaintiffs to be
submitted to the Court and which MetroLink does not oppose should be approved.
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All interested persons were afforded the opportunity to be heard. The Court has
duly considered all of the submissions and arguments presented with respect to the
proposed Settlement Agreement. After due deliberation and for the reasons set out
below, the Court has determined that the Settlement Agreement is fair, reasonable, and
adequate and should therefore be approved.1
II.

The Settlement Class
As recognized in the Order of Preliminary Approval (Doc. 51), the Court

previously certified a class pursuant to Federal Rules of Civil Procedure 23(a) and (b)(3)
for settlement purposes only. The Court hereby affirms its decision certifying that class
and approving the Settlement Agreement. The Court finds that the requirements for
approving a settlement class pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)
(3) have been met.
The Settlement Agreement required that a claims procedure be established
pursuant to which all Class Members who timely filed a valid Proof of Claim by the
Claims Submission Deadline would be entitled to receive a settlement benefit from one
of the following three categories:
a. Group One: If the Claimant provides with the Claim Form an original
or copy of their Metro Link credit or debit card receipt displaying the expiration
date of their personal credit or debit card printed by the MetroLink TVM on the
credit or debit card receipt, the Claimant shall be entitled to select from one of the
1

Capitalized terms used in this Order that are not otherwise identified herein have the
meaning assigned to them in the Settlement Agreement.

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following benefits: (i) A payment in the amount of $30.00; (ii) a MetroLink
Monthly Pass having a face value of $72.00; or (iii) two MetroLink 10 Ride passes
having a face value of $60.00.
b. Group Two: If the Claimant provides with the Claim Form an original
or copy of their personal credit or debit card statement showing that they made a
purchase from a MetroLink TVM at any time between January 21, 2010, and
August 16, 2011, the Claimant shall be entitled to receive three MetroLink roundtrip tickets having an aggregate face value of $13.50.
c. Group Three: If the Claimant signs the Claim Form, whether through a
manual or electronic signature, under penalty of perjury attesting that the Claimant
made at least one purchase from a MetroLink TVM at any time between January
21, 2010, and August 16, 2011, using his or her personal credit or debit card to pay
for any MetroLink ticket or pass, and received a printed receipt, the Claimant shall
be entitled to receive one MetroLink OneRide Ticket having a face value of $2.25.
Further, the Settlement Agreement provided that MetroLink assumed financial
responsibility for providing notice of the Settlement Agreement to Class Members and
administration of the Settlement Agreement.
III.

Notice to Class Members
In the Order of Preliminary Approval, the Court preliminarily approved the notice

and found that the proposed form and content of the notice to the Class Members
satisfied the requirements of due process. The terms of the settlement were
communicated to the Class pursuant to a plan negotiated by the parties and approved by
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the Court on March 4, 2013. Defendant published the notice of settlement three times in
the St. Louis Post-Dispatch and the St. Louis American, and prominently posted the
settlement notices on MetroLink ticket vending machines and kept the notices in place
through the claims submission deadline. Defendant also established a website that
contained all of the settlement information, permitted the filing of electronic claims, and
established a toll-free telephone number for use by Class members seeking additional
information.
The Court reaffirms its previous determinations with respect to notice issues and
holds that the best practicable notice was given to Class Members under the
circumstances and that the notice given constitutes due and sufficient notice of the
Settlement Agreement and Fairness Hearing to all persons affected by and/or entitled to
participate in the Settlement Agreement or the Fairness Hearing.
IV.

Benefits of the Settlement Agreement for Class Members
In determining whether the Settlement Agreement is fair, reasonable, and adequate

in accordance with Federal Rule of Civil Procedure 23 (e)(1)(C), the Court considers the
following factors: (1) the existence of fraud or collusion behind the settlement; (2) the
complexity, expense, and likely duration of the litigation; (3) the stage of the proceedings
and the amount of discovery completed; (4) the probability of plaintiffs' success on the
merits; (5) the range of possible recovery; and (6) the opinions of the class counsel, class
representatives, and absent class members. See Daniels v. Greenkote, No. 4:10CV1954
DDN, 2013 WL 1890654, at *2 (E.D. Mo. May 6, 2013); E.E.O.C. v. McDonnell
Douglas Corp., 894 F.Supp. 1329, 1333 (E.D. Mo. 1995).
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Upon reviewing the circumstances, the Court is satisfied that the benefits available
to the Class Members by virtue of the Settlement Agreement represent a positive result
that can be summarized as set forth below:
The parties agree that the filing of this case on August 15, 2011, in the Circuit
Court of the City of St. Louis caused MetroLink immediately to cease its alleged illegal
conduct, the disclosure of credit card expiration dates on credit card receipts for the
purchase of MetroLink tickets, thereby achieving for Plaintiffs the statutory goal of
protecting individuals from the risk of identity theft. The case was removed to this Court
on September 28, 2011, and nearly two years later, after some degree of discovery, and
the filing of a fully briefed motion to dismiss, the parties settled the case after two days of
mediated negotiations. See Settlement Agreement (Doc. 50-1, § 2.4.1). The Settlement
is the culmination of adversarial litigation and negotiation. The Settlement terms were
agreed upon only after arm’s-length bargaining by experienced counsel in the mediation
sessions convened on March 20, 2012 and July 11, 2012. Following the initial mediation
session, the parties signed a term sheet outlining an agreement in principle on the general
terms of class relief and notice. Subsequently, the parties exchanged numerous drafts of
the Settlement Agreement over a period of several months, before they agreed upon the
final terms. Even at that juncture, however, the parties failed to reach agreement with
respect to the issue of attorney’s fees, necessitating the second mediation session.
Settlement of this case resulted in the protection of customers’ financial
information, specifically credit card expiration dates, and provided compensation to
claiming Class members of $30 cash or up to a $72 value in MetroLink tickets. Of the
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fifty two class submitted claims, eight were rejected for inadequate documentation and
one claim was initially rejected as untimely. At the July 29, 2013 hearing, the parties
agreed to accept and pay the untimely claim. Thus, at the time of final approval, fortyfour claimants had received a total of $742.50 as a result of the settlement.
If the case were to proceed, the resulting motion practice, trial and appeals, could
have been lengthy, involved, and expensive, presenting a substantial risk that Plaintiffs
and the Settlement Classes would not ultimately prevail on their claim that Defendants
willfully violated the FACTA. Given this uncertainty the Court is satisfied that the
Settlement Agreement eliminates a substantial risk that the Class Members would walk
away “empty-handed.” In addition, even if Plaintiffs had litigated and prevailed on the
merits, they might not obtain a better recovery than they have achieved in this Settlement
Agreement. See, e.g., S.C. Nat’l Bank v. Stone, 139 F.R.D. 335, 340 (D.S.C. 1991).
Therefore the Court is satisfied that the provisions of the Settlement Agreement are of
benefit to the Class Members.
In addition to finding the terms of the proposed Settlement Agreement to be fair,
reasonable, beneficial and adequate, the Court finds no indication in the record that there
was fraud or collusion between the parties or their counsel in negotiating the terms of the
Settlement Agreement. Furthermore, the terms of the Settlement Agreement make it
clear that all negotiations were made at arm’s-length and the process by which the
Settlement Agreement was achieved was fair.

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V.

Objections and Opt-outs
The Court finds that there were no objections filed to the Settlement Agreement.

Therefore, all Class Members who did not timely opt-out from the Class(es) are bound by
the Settlement Agreement including the releases contained in Paragraphs 3.19 and 3.20 of
the Settlement Agreement.
VI.

Class Counsel
The Court reaffirms its preliminarily approval of Class Counsel finding that Class

Counsel are competent and experienced attorneys who adequately and aggressively
represented the interests of the Class Members. In addition, there is no evidence of
unethical behavior on the part of Class Counsel.
VII.

Incentive Awards
The Court hereby certifies Plaintiffs Albright and Rodhouse as Class

Representatives. The terms of the Settlement Agreement provide that MetroLink will
pay an incentive award of $2,500 to each of the Class Representatives. The Court
approves these incentive awards as reasonable and appropriate in light of the additional
effort and time expended by the Class Representatives to achieve the benefits of the
Settlement for all members of the Classes.
VIII. Attorney’s Fees and Expenses
The parties did not reached agreement with respect to attorney’s fees and Plaintiffs
filed a separate Motion for Award of Attorneys’ Fees and Expenses and Incentive
Payments to the Class Representatives pursuant to Fed. R. Civ. P. 23(h) and 54(d)(2).
For the reasons set forth in a separate Memorandum and Order, filed today, attorneys’
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fees shall be awarded in the amount of $176,571.50 together with expenses of
$14,022.21.
Accordingly, after due consideration,
IT IS HEREBY ORDERED, ADJUDGED, and DECREED that Plaintiffs’
Motion for Final Approval of Class Action Settlement is GRANTED. (Doc. No. 56.)
IT IS FURTHER ORDERED that this action is DISMISSED without
prejudice in accordance with the terms of the Settlement Agreement. Without affecting
the finality of this Order of Final Approval, the Court reserves continuing and exclusive
jurisdiction over all matters relating to the administration, implementation, effectuation,
and enforcement of the Settlement Agreement.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 11th day of September, 2013.

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