Brown et al v. Lowe's Companies, Inc. et al
Filing
173
ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT. Signed by District Judge Richard Voorhees on 11/1/2016. (Pro se litigant served by US Mail.)(cbb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
JASON DAVID BROWN, LASZLO BOZSO,
and MERIS DUDZIC, individually and on
behalf of all others similarly situated,
)
)
)
)
Plaintiffs,
)
)
v.
)
)
LOWE’S COMPANIES, INC., and
)
LEXISNEXIS SCREENING SOLUTIONS,
)
INC.
)
)
Defendants.
)
__________________________________________)
APRIL INGRAM-FLEMING, individually
)
and on behalf of all others similarly situated,
)
)
Plaintiff,
)
)
v.
)
)
LOWE’S HOME CENTERS, LLC, d/b/a
)
LOWE’S,
)
)
Defendant.
)
__________________________________________)
No. 5:13-CV-00079-RLV-DSC
(consolidated case number)
No. 5:15-CV-00018-RLV-DSC
ORDER GRANTING FINAL APPROVAL OF
CLASS ACTION SETTLEMENT
This matter is before the court on a motion for final approval of class action settlement filed
by the Plaintiffs, Jason Brown, Laszlo Bozso, and April Ingram-Fleming (“Plaintiffs”), and
unopposed by the Defendant, Lowe’s Companies, Inc. (“Lowe’s” or “Defendant”) (jointly referred
to as the “Parties”).1 The Parties have submitted a Settlement Agreement and Release (“Settlement
All references to “Lowe’s” herein are deemed to include both the Defendant Lowe’s Companies,
Inc. named in the Brown case and “Lowe’s Home Centers, LLC, d/b/a Lowe’s” named in the
Ingram-Fleming case.
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Agreement”) that the court has reviewed. The Court finds that the settlement falls within the range
of reasonability and should receive final approval.
Upon consideration of Plaintiffs’ motion for final approval of class action settlement
(Doc. No. 170), the Settlement Agreement filed on May 6, 2016 (Doc. No. 125-1), the exhibits to
the Settlement Agreement, as well as all other exhibits, pleadings, submissions and filings in this
action, including plaintiffs’ unopposed motion for approval of attorneys’ fees, costs, and service
awards (Doc. No. 171), and the arguments presented to the Court at the final approval hearing held
on October 31, 2016, the Court makes the following findings and it is ORDERED that Plaintiffs’
motions for final approval of class action settlement and for approval of attorneys’ fees and
expenses are GRANTED as follows:
1.
This Court’s Order granting Plaintiffs’ motion for preliminary approval of class
action settlement (Doc. No. 139), preliminarily certified and ordered that notice of the settlement
be directed by the claims administrator to the following class: “All natural persons residing in the
United States (including all territories and other political subdivisions of the United States) (a) who
submitted an employment application to Lowe’s, (b) who were the subject of a consumer report
which was used by Lowe’s or its agent to make an employment decision regarding such person
between May 16, 2011 and February 3, 2015, (c) for whom that decision was either a rejection or
a delay of the employment, and (d) who were not provided a copy of that consumer report and/or
the mandatory disclosures required in 15 U.S.C. § 1681b(b)(3) before that employment decision
was adjudicated.” Specifically excluded from this Class are: (a) all federal court judges who
preside over this case and their spouses; (b) all persons who elect to exclude themselves from the
Class; and (c) all persons who have previously executed and delivered to Lowe’s releases of all
their claims or all of their Pre-Adverse Action Settlement Class claims. In addition, the Court finds
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that excluded from the settlement class are all individuals who timely exercised their rights under
Federal Rule of Civil Procedure 23 to opt out of this settlement.
2.
The proposed resolution of this litigation includes the award of benefits for eligible
class members including cash payments to qualified settlement class members. Settlement
amounts shall be calculated by the Claims Administrator with the review and consent of the Parties
and pursuant to the benefit methodology set forth in the Settlement Agreement. Settlement awards
in the form of checks will be mailed by the Claims Administrator to eligible class members.
3.
For purposes of settlement only, final certification of the class defined above in
Paragraph 1 is granted and the Court makes the following findings pursuant to Rules 23(a) and
23(b)(3) of the Federal Rules of Civil Procedure:
a. The settlement class consists of thousands of individuals, and joinder of all
members is impracticable;
b. There exist questions of fact and law common to the settlement class members;
c. The claims of the named plaintiffs are typical of the claims of the settlement
class members;
d. The named plaintiffs and class counsel will fairly and adequately protect the
interests of the settlement class;
e. The questions of law or fact that are common to settlement class members, and
which are relevant for settlement purposes, predominate over questions
affecting only individual settlement class members; and
f. Resolution of this litigation in the manner proposed by the Parties’ Settlement
Agreement is superior to other available methods for a fair and efficient
adjudication of this litigation.
4.
Settlement class members were provided with notice of the settlement in the
manner and form set forth in the Settlement Agreement, as reflected in the submissions by Class
Counsel and the Claims Administrator. Notice was also provided to pertinent state and federal
officials. The notice plan was reasonably calculated to give actual notice to settlement class
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members of their right to receive benefits from the settlement or to be excluded from the settlement
or object to the settlement. The notice plan met the requirements of Rule 23 and due process.
5.
The settlement is entitled to an initial presumption of fairness. It was reached
following meaningful litigation, discovery, investigation, mediation and negotiation conducted by
class counsel. The settlement is the result of adversarial, arm’s-length negotiations between the
parties and the terms and conditions of the settlement are fair, adequate and reasonable when
balanced against the risks of further litigation on the released claims. At the time the settlement
was negotiated, counsels were reasonably able to evaluate their respective positions. The
settlement will avoid substantial additional costs to all parties as well as the delay and risks that
would be presented by further prosecution of this litigation.
6.
The Court finds that the settlement is fair, reasonable and adequate. Accordingly,
pursuant to Rule 23(e) of the Federal Rules of Civil Procedure the Settlement Agreement is finally
approved and shall be consummated in accordance with its terms.
7.
In reaching this conclusion, the Court considered, inter alia, the following:
evidence regarding plaintiffs’ case; the complexity, expense and likely duration of further litigation
on the released claims; the stage of the proceedings including the extent of investigation and
discovery completed; the risks of establishing liability, proving damages and maintaining the class
action through a trial; and the range of reasonableness of the settlement in light of the best possible
recovery and the attendant risks of litigation.
8.
The Court also considered the reaction of the class to the settlement, including
written objections to the settlement. The Court finds that the objections are without merit and
overrules the objections.
9.
The Court also considered valid requests for exclusion from the settlement
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submitted by the settlement class members and identified in Exhibit B to the Declaration of Steve
Platt of American Legal Claims Service, filed as part of the final approval motion on October 17,
2016 (Doc. No. 170-2.) The Court hereby grants their requests for exclusion. Their rights shall not
be affected by the settlement and they shall not receive any of the benefits of the settlement.
10.
Upon entry of this Order, the settlement class members, except for those who
returned valid requests for exclusion, shall be bound by the terms set forth in the Settlement
Agreement. They shall be deemed to have released their claims as set forth in the Settlement
Agreement.
11.
The Court finally approves the method of allocation and distribution of the
settlement fund set forth in the Settlement Agreement, which includes provisions for the payment
of Claims Administrator expenses, dissemination of class notice, distribution of check awards to
eligible class members, as well as the awarding of attorneys’ fees and costs, and incentive fees to
the named Plaintiffs, all as approved by the Court.
12.
The Court finally appoints Caddell & Chapman, Consumer Litigation Associates,
P.C., O’Toole, McLaughlin, Dooley & Pecora, Co., LPA, Lyngklip & Associates Consumer Law
Center, PLC, Sellers, Hinshaw, Ayers, Dortch & Lyons, P.A., Wenzel, Fenton, Cabassa, P.A., and
Wallace & Graham, P.A. as class counsel for the settlement class.
13.
With respect to Plaintiffs’ motion for approval of attorneys’ fees and expenses
(Doc. No. 171), the Court finds that this case warrants the requested award of attorneys’ fees and
costs to class counsel in the amount of $752,540, constituting one-third of the Maximum
Settlement Amount as described in the Settlement Agreement. This amount is reasonable in light
of the results obtained, is consistent with Fourth Circuit precedent and the practice of this Court,
and is confirmed as reasonable with a lodestar cross-check that falls in line with fees approved in
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other cases in this District and Circuit.
14.
The Court finally appoints Plaintiffs Jason Brown, Laszlo Bozso, and April Ingram-
Fleming as the class representatives. The Court grants Plaintiffs’ request for service awards from
the settlement fund in the amount of $5,000 to each of the class representatives and finds that these
service awards are fair and reasonable.
15.
The Court finally appoints American Legal Claim Services as the claims
administrator to perform the duties assigned to them in the Settlement Agreement. Further, the
Court approves payments to the claims administrator for the costs of notice and claims
administration, including the claims administrator’s own fees. As provided for in § 7.1.2 and 8.3
of the Settlement Agreement, the Court approves the application of any uncashed settlement
checks issued pursuant to this Order to Lowe’s costs of notice and administration.
16.
Under Fed. R. Civ. P. 54(b), the Court enters final judgment on and dismisses with
prejudice all claims asserted by Plaintiffs and the settlement class that are released pursuant to
§§ 9.1 and 1.31 of the Settlement Agreement, including all claims against Lowe’s pursuant to
§ 1681b(b)(3) of the federal Fair Credit Reporting Act (“FCRA”) and FCRA state equivalents. As
stated in the Settlement Agreement, the release does not include First Advantage Corporation or
LexisNexis Screening Solutions, Inc. and does not include any claim brought as to any Defendant
under 15 U.S.C. § 1681b(b)(2). Further, the Court rules that this final judgment shall not bind any
settlement class members who timely opted out. All claims not dismissed herein are preserved and
shall remain pending. The Clerk of the Court is ordered to enter this final judgment pursuant to
Rule 54(b) of the Federal Rules of Civil Procedure as to all claims against Defendant Lowe’s
pursuant to § 1681b(b)(3) of the federal Fair Credit Reporting (“FCRA”) and FCRA state
equivalents.
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17.
Neither this order, the Settlement Agreement, nor any and all negotiations,
documents and discussions associated with them shall be deemed or construed to be an admission
or evidence of any violation of any statute or law, of any liability or wrongdoing by Lowe’s, or the
truth of any of the claims or allegations contained in the Complaint or any other pleading or
document, and evidence thereof shall not be discoverable, admissible or otherwise used directly
or indirectly, in any way by any party, wither in this litigation or in any other action or proceeding,
nor shall the Settlement Agreement be used or referred to in any subsequent motion for class
certification made by any party to this litigation.
18.
In the event the settlement does not become final in accordance with its terms, this
order shall be rendered null and void, shall be vacated, all orders entered and releases delivered in
connection herewith shall be null and void to the extent provided by and in accordance with the
Settlement Agreement.
19.
Without in any way affecting the finality of this order and final judgment as to the
Parties with regard to the settled claims, the Court retains and reserves jurisdiction over the
litigation and the parties to the settlement to enter any future orders as may be necessary for the
implementation, enforcement, construction and interpretation of the Settlement Agreement as to
the settled claims, and retains jurisdiction over the pending claims that have not been dismissed
herein.
It is so ORDERED, this 1st day of November, 2016.
Signed: November 1, 2016
2016
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