Gaston et al v. LexisNexis Risk Solutions, Inc. et al

Filing 169

ORDER granting 163 , 165 , 167 Motion for Preliminary Approval of Proposed Settlement. Remaining briefs to be filed by counsel as stated in the Order are due 3/29/2021. Final Approval Hearing set for 5/24/2021 10:00 AM in Courtroom, 200 W Broad St, Statesville, NC 28677 before District Judge Kenneth D. Bell. Signed by District Judge Kenneth D. Bell on 1/25/2021. (nvc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
Statesville Division
Civil Action No. 5:16-cv-00009-KDB-DCK

DELORIS GASTON, et al.,
Plaintiffs,
v.
LEXISNEXIS RISK SOLUTIONS INC., et al.,
Defendants.

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ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL OF
PROPOSED SETTLEMENT AND ORDER PRELIMINARILY APPROVING CLASS
ACTION SETTLEMENT, CERTIFYING CONDITIONAL SETTLEMENT CLASS AND
SUBCLASS, APPOINTING CLASS COUNSEL AND CLASS SETTLEMENT
ADMINISTRATOR, AND SCHEDULING FINAL FAIRNESS HEARING
THIS CAUSE came before the Court upon the Motion for Preliminary Approval of
Proposed Settlement (Dkt. No. 163), which was filed jointly by Plaintiffs and Defendants, who
wish to settle this case. A telephone conference was held with the Court on November 19, 2020
regarding the motion. Following the conference, the Plaintiffs filed a Supplemental Memorandum
in Support of the Motion (Dkt. No. 165) and a revised Settlement Agreement and Release (Dkt.
167). On January 22, 2021, in response to questions and issues raised by the Court, the parties
submitted a second revised Settlement Agreement and Release. The Court has carefully
considered the Motion and the matter is now ripe for resolution.
In this action, Plaintiffs Deloris and Leonard Gaston (“Named Plaintiffs” or “Plaintiffs”),
on behalf of themselves and all others similarly situated, assert claims against Defendants
LexisNexis Risk Solutions Inc. and PoliceReports.US, LLC (“Defendants”) (collectively, the
“Parties”), for alleged violations of the Driver’s Privacy Protection Act (“DPPA”), 18 U.S.C. §
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2721 et seq. The Named Plaintiffs contend that crash reports contain “personal information”
“from a motor vehicle record” and are thus regulated by the DPPA. The Named Plaintiffs claim
that Defendants violated the DPPA by allegedly disclosing Plaintiffs’ crash reports to third
parties on the PRUS eCommerce web portal for the purposes of marketing and solicitation
without Plaintiffs’ express consent. (See Am. Compl. ¶¶ 22, 23.) Defendants have taken the
position that crash reports do not fall within the scope of the DPPA on numerous grounds
including that crash reports are a “motor vehicle record” under the DPPA or are otherwise
outside the scope of the DPPA and that they are entitled to qualified immunity and otherwise had
an express permissible purpose under the DPPA. The Court ultimately rejected each of
Defendants’ broad arguments at summary judgment as discussed below.
The Named Plaintiffs filed their Complaint on January 12, 2016 (Dkt. No. 1) and a Class
Action Amended Complaint on May 12, 2016 (Dkt. No. 21). The Class Action Amended
Complaint described a single putative class. It sought injunctive and equitable relief,
compensatory, statutory and punitive damages, and an award of attorneys’ fees and costs.
Defendants denied each of the claims asserted against them in this action and any liability to the
putative class.
The Named Plaintiffs moved for class certification on June 11, 2020, (Dkt. No. 101), and
the Parties filed cross-motions for summary judgment on June 19, 2020. (Dkt. Nos. 122, 124).
Following extensive briefing and oral argument, the Court entered an Order on September 2,
2020 granting in part and denying in part the motion for class certification, granting in part and
denying in part Plaintiffs' motion for summary judgment and denying Defendants' motion for
summary judgment (Dkt. No. 148).
With respect to class certification, the Court declined to certify the nationwide, statewide
and Rule 23(b)(1) and 23(b)(3) money damages classes sought by Plaintiffs but certified a
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limited class under Federal Rule of Civil Procedure 23(b)(2) to consider Plaintiffs’ claim for
injunctive relief under the DPPA. On the parties’ cross motions for summary judgment, the
Court held that North Carolina accident reports are “motor vehicle records” under the statute and
– based on Defendants’ admission that they disclosed the reports without regard to whether the
personal information in the reports would be used for a purpose permitted by the DPPA as well
as the undisputed evidence that at least some of those reports were used for an impermissible
purpose – awarded Plaintiffs summary judgment on their claim for declaratory and injunctive
relief to end Defendants’ unlawful practices. However, finding disputed fact issues, the Court
denied Plaintiff’s motion for summary judgment on their claim for liquidated damages. Finally,
the Court decided that Defendants were not entitled to summary judgment because the Court
found they were liable for injunctive relief as discussed above and did not have immunity,
qualified or otherwise, based on their profitable alleged “public service” in making the accident
reports available. (Id.)
The Parties thereafter filed their respective notices of appeal from the Order to the United
States Court of Appeals for the Fourth Circuit (Dkt. Nos. 150, 158.) On October 2, 2020, per the
Parties’ stipulation, the Court entered an Order and Stipulated Judgment extending the injunctive
relief to the full certified Rule 23(b)(2) class. (Dkt No. 159.) This Stipulation and Judgment left
pending only the Plaintiffs’ individual claims for liquidated damages of $2500 each, which the
Court stayed in the interest of judicial economy pending the Parties’ appeals. The Parties
represent to the Court that absent their settlement, they would have pursued their respective
challenges of the Court’s final judgments on appeal and otherwise.1
With respect to the process of their settlement, the Parties first participated in a full-day
The Parties agree that the settlement and the final judgment following from the settlement will not
prejudice in any way the Parties’ right to raise any of the arguments that the Parties made in this
case, including arguments decided by the District Court in its Order of September 2, 2020, in any
future litigation.
1

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mediation in Charlotte, North Carolina on February 12, 2020. Both sides set out their positions in
substantive presentations to the mediator, Wayne P. Huckel. The Parties again mediated with Mr.
Huckel on March 4, 2020. The Parties held a third mediation session via Zoom on October 7,
2020 again with Mr. Huckel. The Parties’ mediation efforts were ultimately successful and
produced a proposed resolution of this litigation. On November 3, 2020, the Parties filed a Joint
Motion and supporting Memorandum for Preliminary Approval of Proposed Settlement (Dkt.
No. 163). In that Motion and the Supplemental Memorandum filed on December 15, 2020 (Dkt.
No. 165), the Parties asked this Court to conditionally certify a settlement class and subclass
pursuant to Fed. R. Civ. P. 23(b)(2), appoint class counsel, appoint a settlement administrator for
the purpose of providing the required notice under the Class Action Fairness Act, 28 U.S.C. §
1715 (“CAFA”), approve a notice program to class members, and schedule a final fairness
hearing. On January 22, 2021, in response to questions and issues raised by the Court, the parties
submitted a second revised Settlement Agreement and Release.
After careful consideration of the Settlement Agreement, its exhibits, the instant Motion
and supporting Memorandum, the Supplemental Memorandum and considering arguments of
counsel, the Court finds that the Motion should be granted. Accordingly, the Court FINDS and
ORDERS as follows:
I.

Conditional Certification of Settlement Class and Subclass
The Parties now move this Court to certify a settlement class and subclass pursuant to

Fed. R. Civ. P. 23(b)(2). The Rule 23(b)(2) Settlement Class is composed of all persons who: (i)
at any time within the four years prior to the date the Complaint was filed through the date of
Final Judgment, (ii) had his or her personal information (including a driver identification
number, name, address, or telephone number) appear on a Crash Report; and (iii) that Crash
Report was available for purchase via an online solution supported, owned or operated by
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PoliceReports.US, LLC or LexisNexis Claims Solutions Inc. The Rule 23(b)(2) CMPD
Settlement Subclass is composed of all persons who: (i) are members of the Rule 23(b)(2)
Settlement Class, and (ii) whose Crash Report was prepared by the Charlotte-Mecklenburg
Police Department (“CMPD”). Excluded from the Rule 23(b)(2) Settlement Class and Rule
23(b)(2) CMPD Settlement Subclass are counsel of record (and their respective law firms) for
any of the Parties, employees of Defendants, and any judge presiding over this action and their
staff, and all members of their immediate families. The Rule 23(b)(2) settlement, if approved,
requires Defendants to implement certain business changes impacting their disclosure of Crash
Reports, which they say represents a significant shift from current practices. The Parties urge the
Court to find that the settlement represents not only a fair, reasonable, and adequate resolution of
the claims brought in this action, but also represents a new standard for the treatment of
information on a Crash Report nationwide.
When the Court is presented with a proposed settlement, the Court must determine
whether the proposed settlement class satisfies the requirements for class certification under
Federal Rule of Civil Procedure 23. The requirements that must be met under Rule 23(a) are (1)
numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation. In addition, the
parties must satisfy one of the subsections of Rule 23(b) for each of their proposed classes.
The Court holds that the Rule 23(b)(2) Settlement Class and Rule 23(b)(2) CMPD
Settlement Subclass satisfy the numerosity requirement of Rule 23(a)(1). Although it is not
feasible at this time to identify all class members, because the Rule 23(b)(2) Settlement Class
includes every individual nationwide who has had his or her personal identifying information
listed on a crash report regardless of the source of the information and the Rule 23(b)(2) CMPD
Settlement Subclass includes all persons in the Rule 23(b)(2) Settlement Class whose Crash
Report was prepared by the CMPD, the Rule 23(b)(2) Settlement Class and Rule 23(b)(2) CMPD
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Settlement Subclass easily satisfy the numerosity requirement. See, e.g., Cypress v. Newport
News Gen. and Non-Sectarian Hosp. Ass’n, 375 F.2d 648, 653 (4th Cir. 1967) (stating that a
class of 18 members met numerosity requirement); West v. Cont’l Auto., Inc., No. 3:16-cv-502FDW-DSC, 2017 U.S. Dist. LEXIS 87382, at *3 (W.D.N.C. June 7, 2017) (finding that
approximately sixty (60) class members was sufficient to satisfy the numerosity requirement).
The Court further holds that the commonality requirement of Rule 23(a)(2) is met. The
Parties argue that the commonality requirement – at least as it relates to a settlement class – is
“not usually a contentious one: the requirement is generally satisfied by the existence of a single
issue of law or fact that is common across all class members and thus is easily met in most
cases.” Conte, 1 NEWBERG ON CLASS ACTIONS 5th § 3:18; see also Tatum v. R.J. Reynolds
Tobacco Co., 254 F.R.D. 59, 64 (M.D.N.C. 2008) (noting that “[t]he commonality requirement is
relatively easy to satisfy”) (quoting Buchanan v. Consol. Stores Corp., 217 F.R.D. 178, 187 (D.
Md. 2003)). Significantly here, the commonality analysis differs for settlement and trial
purposes. See Davenport, 2014 U.S. Dist. LEXIS 205626, at *8–10 (citation omitted)
(acknowledging that while individualized questions would be relevant for a class certified for the
purpose of litigation, they are not relevant to a settlement class for which there will be no trial);
see also In re CertainTeed Corp., 269 F.R.D. at 478 (certifying settlement class and concluding
that the Court need not consider trial-manageability issues as part of its commonality analysis
because such issues are not relevant when considering certification of a settlement class).
While, as the Court has previously held, the Parties have not established that the putative
class members outside North Carolina have sufficient commonality to support a nationwide class
for purposes of trial, the Court finds that the commonality requirement is met here for the limited
purpose of settlement. 2 The Settlement Agreement treats all Rule 23(b)(2) Settlement Class

2

Although the Court is reluctant to certify a nationwide class, there appears to be little risk of harm
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Members and Rule 23(b)(2) CMPD Settlement Subclass Members alike in granting them the
benefits of the injunctive relief program. Two of the key issues in this case, whether the DPPA
applies to crash reports (without taking into account the source of the information), and if so,
whether Defendants’ anticipated disclosure of crash reports to third parties who may use the
information for marketing and solicitation purposes will violate the DPPA, are common to all
members of the Rule 23(b)(2) Settlement Class and Rule 23(b)(2) CMPD Settlement Subclass.
The typicality requirement of Rule 23(a)(3) is also met. Typicality requires the class
representatives’ claims to be “typical of the claims or defenses of the class.” Fed. R. Civ. P.
23(a)(3). Typicality is satisfied as long as the plaintiff’s claim is not “so different from the claims
of absent class members that their claims will not be advanced by plaintiff’s proof of his own
individual claim. That is not to say that typicality requires that the plaintiff’s claim and the
claims of class members be perfectly identical or perfectly aligned.” Deiter v. Microsoft Corp.,
436 F.3d 461, 466–67 (4th Cir. 2006).
Here, there is a sufficient link between Plaintiffs’ claims and those of the absent class
members because Plaintiffs allege that Defendants violated the DPPA by disclosing their crash
reports for a purpose not permitted under the DPPA, and further allege potential future violations
of the DPPA given Defendants continue to operate the eCommerce web portals. Plaintiffs’
success on essential elements of their claims, such as whether the DPPA applies to crash reports
and whether Defendants had a permissible use for disclosing Plaintiffs’ crash reports, would
advance the claims of the members of the proposed class. Accordingly, the typicality
requirement is met. Id. at 466 (“The essence of the typicality requirement is captured by the
to class members (or to the Defendants who seek approval). To the extent that vehicle crash reports
outside of North Carolina also fall within the DPPA then there would likely be common issues of
fact with Plaintiffs’ claims and to the extent that such reports are outside the scope of the DPPA
then settlement class members in those states will get the benefits of the settlement but not be
burdened with the consideration of the settlement (because they would not have a DPPA claim in
any event).
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notion that ‘as goes the claim of the named plaintiff, so go the claims of the class.’”).
The Court further holds that the Named Plaintiffs and their counsel are adequate
representatives of the Rule 23(b)(2) Settlement Class and Rule 23(b)(2) CMPD Settlement
Subclass under Rule 23(a)(4). In reaching this determination, the Court has considered whether
the proposed class representatives will fairly and adequately protect the interests of the class.
Knight v. Lavine, No. 1:12-CV-611, 2013 U.S. Dist. LEXIS 14855, at *9 (E.D. Va. Feb. 4,
2013).
First, the Court finds that the Named Plaintiffs have no interests that are antagonistic to
the interests of the Rule 23(b)(2) Settlement Class or Rule 23(b)(2) CMPD Settlement Subclass
and are unaware of any actual or apparent conflicts of interest between them and the Rule
23(b)(2) Settlement Class or Rule 23(b)(2) CMPD Settlement Subclass. Moreover, the
Settlement preserves the right of individual Rule 23(b)(2) Settlement Class Members and Rule
23(b)(2) CMPD Settlement Subclass Members to bring an individual suit for actual damages and
statutory liquidated damages if they so choose.
The Court also finds proposed Class Counsel to be competent to undertake this litigation.
Class Counsel have extensive experience in class actions. Class Counsel have also demonstrated
vigorous prosecution of the class claims throughout the litigation and mediation. Class Counsel
have adequately represented the interests of the proposed class and subclass. Accordingly, the
Court is satisfied that the Named Plaintiffs and Class Counsel are adequate representatives of the
conditional settlement class under Rule 23(a)(4).
In addition to the requirements of Rule 23(a), a proposed class action must satisfy one of
the sections of Rule 23(b). See EQT Prod. Co. v. Adair, 764 F.3d 347, 357 (4th Cir. 2014). With
respect to Rule 23(b)(2), parties seeking class certification must show that the defendants have
“acted or refused to act on grounds generally applicable to the class, thereby making appropriate
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final injunctive relief ... with respect to the class as a whole.” Fed. R. Civ. P. 23(b)(2).
The Court finds that as to this Rule 23(b)(2) Settlement Class and Rule 23(b) Settlement
Subclass, Defendants have acted on grounds generally applicable to the class as a whole. Here,
the Settlement Agreement treats all Rule 23(b)(2) Settlement Class Members and Rule 23(b)(2)
CMPD Settlement Subclass Members alike in granting them the benefits of the injunctive relief
program. As discussed above, the Court earlier found that, at least in North Carolina, Defendants
violated the DPPA and should be enjoined (a ruling which Defendants dispute); therefore, the
fact that the Settlement modifies Defendants’ conduct as to the Rule 23(b)(2) Settlement Class
and Rule 23(b)(2) CMPD Settlement Subclass as a whole makes it appropriate for certification
under Rule 23(b)(2). See Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2557 (2011) (“The key
to the (b)(2) class is the indivisible nature of the injunctive or declaratory remedy warranted—the
notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the
class members or as to none of them.”) (citation omitted); see also Berry v. LexisNexis Risk &
Info. Analytics Grp., Inc., No. 3:11-CV-754, 2014 U.S. Dist. LEXIS 124415, at *34 (E.D. Va.
Sept. 5, 2014), affirmed by Berry v. Schulman, 807 F.3d 600 (4th Cir. 2015) (“The Court finds
that certification of the Rule 23(b)(2) class in this case is appropriate because the injunctive relief
sought is indivisible and applicable to all members of the Rule 23(b)(2) class.”) (citation and
internal quotation marks omitted). The proposed class action settlement thus satisfies the
elements of Rule 23(b)(2).
In sum, for the sole purpose of determining: (i) whether this Court should finally approve
the proposed settlement as fair, reasonable, and adequate; and (ii) whether the Court should
dismiss the litigation with prejudice as to the Defendants, the Court hereby certifies a conditional
settlement class and subclass as follows:
Settlement Class: All persons who: (i) at any time within the four years prior to the
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date the Complaint was filed through the date of Final Judgment, (ii) had his or her
personal information (including a driver identification number, name, address, or
telephone number) appear on a Crash Report, and (iii) that Crash Report was
available for purchase via an online solution supported, owned or operated by or on
behalf of PoliceReports.US, LLC or LexisNexis Claims Solutions Inc.
Settlement Subclass: All persons who: (i) are members of the Rule 23(b)(2)
Settlement Class, and (ii) whose Crash Report was prepared by the CMPD.
Excluded from the Settlement Class and Settlement Subclass are counsel of record
(and their respective law firms) for any of the Parties, employees of Defendants,
and any judge presiding over this action and their staff, and all members of their
immediate families.
If the proposed Settlement Agreement is not finally approved, is not upheld on appeal, or
is otherwise terminated for any reason, the Rule 23(b)(2) Settlement Class and Rule 23(b)
CMPD Settlement Subclass shall be decertified; the Settlement Agreement and all negotiations,
proceedings, and documents prepared, and statements made in connection therewith, shall be
without prejudice to any party and shall not be deemed or construed to be an admission or
confession by any party of any fact, matter, or proposition of law; all parties shall stand in the
same procedural position as if the Settlement Agreement had not been negotiated, made, or filed
with the Court; and the Parties shall be permitted to pursue their respective appeals to the United
States Court of Appeals for the Fourth Circuit.
II.

Appointment of Class Counsel and Class Representatives
Having certified the class under Rule 23(b)(2), the Court is now required to appoint Class

Counsel under Rule 23(g). Fed. R. Civ. P. 23(g)(1)(A). Having considered the work Named
Plaintiffs’ counsel have done in identifying and investigating potential claims in this action,
counsel’s experience in handling complex litigation, counsel’s knowledge of the applicable law,
and the resources counsel will commit to representing the class and subclass, the following
attorneys are designated Class Counsel under Rule 23(g)(l):


David M. Wilkerson and Larry S. McDevitt of the Van Winkle Law Firm;
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

Christopher L. Cogdill of Christopher L. Cogdill P.A.; and



Eugene Clark Covington, Jr., of Eugene C. Covington, P.A.

The following individuals are designated as the Class Representatives: Deloris Gaston
and Leonard Gaston.
III.

Preliminary Approval of Proposed Settlement
Under Rule 23(e)(l) the Court will approve a class action settlement if it is “fair,

reasonable, and adequate.” Fed. R. Civ. P. 23(e)(1). At the preliminary approval stage, the Court
must make a determination as to the fairness, reasonableness, and adequacy of the settlement
terms. Fed. R. Civ. P. 23(e)(2); see also Manual for Complex Litigation (Fourth) (“MCL”), §
21.632 (4th ed. 2004). The Fourth Circuit has bifurcated this analysis into consideration of the
fairness of settlement negotiations and the adequacy of the consideration to the class. In re Jiffy
Lube Secs. Litig., 927 F.2d 155, 158–59 (4th Cir. 1991)). However, at the preliminary approval
stage, the Court need only find that the settlement is within “the range of possible approval.”
Scott v. Family Dollar Stores, Inc., No. 3:08-cv-00540-MOC-DSC, 2018 U.S. Dist. LEXIS
41908, at *10 (W.D.N.C. Mar. 14, 2018); Horton v. Merrill Lynch, Pierce, Fenner & Smith,
855 F. Supp. 825, 827 (E.D.N.C. 1994) (citing In Re Mid-Atlantic Toyota Antitrust Litigation,
564 F. Supp. 1379, 1384 (D. Md. 1983)).
The Fourth Circuit has set forth the factors to be used in analyzing a class settlement for
fairness: (1) the posture of the case at the time the proposed settlement was reached, (2) the
extent of discovery that had been conducted, (3) the circumstances surrounding the settlement
negotiations, and (4) counsel’s experience in the type of case at issue. Jiffy Lube, 927 F.2d at
158–59. The Court finds that the settlement reached in this case was the result of a fair process.
The present action has been pending for over five years. The Parties participated in many
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telephonic meet-and-confer discussions regarding the merits of Plaintiffs’ claim and mediated
the issues over the course of several mediation sessions. Where a settlement is the result of
genuine arm’s-length negotiations, there is a presumption that it is fair. See, e.g., Ray v. Mechel
Bluestone, Inc., 2018 U.S. Dist. LEXIS 40677, at *10 (S.D. W. Va. Mar. 13, 2018) (citing In re
General Motors Corp. Pick-up Truck Fuel Tank Products Liability Litig., 55 F.3d 768 (3d Cir.
1995)); Brown v. Lowe’s Cos., 2016 U.S. Dist. LEXIS 192451, at *8 (W.D.N.C. Nov. 1, 2016).
Plaintiffs also obtained substantial discovery in this case sufficient to support their
position that the settlement is the best and most appropriate means for resolving this case. The
extensive discovery and motion practice in this case provided each side with the additional
insight to evaluate the merits and laid the groundwork for the arm’s-length negotiations that
resulted in the settlement.
Finally, counsel is experienced in the investigation and/or prosecution of consumer class
action litigation and endorse the settlement as fair and adequate under the circumstances. Indeed,
the opinion of experienced and informed counsel in favor of settlement should be afforded due
consideration in determining whether a class settlement is fair and adequate. See Jiffy Lube, 927
F.2d at 159; Sims v. BB&T Corp., No. 1:15-CV-732, No. 1:15-CV-841, 2019 U.S. Dist. LEXIS
75837, at *16 (M.D.N.C. May 6, 2019); In re MicroStrategy Inc. Sec. Litig., 148 F. Supp. 2d
654, 665 (E.D. Va. 2001). For the foregoing reasons, for the purposes of this preliminary
approval motion, the Court finds that the terms of the proposed settlement are fair.
The Court further finds that the terms of the proposed settlement are adequate and
reasonable for the purposes of preliminary approval; that is, they are “within the range of
possible approval.” In an analysis of the adequacy of a proposed settlement, the relevant factors
to be considered may include: (1) the relative strength of the case on the merits, (2) any
difficulties of proof or strong defenses the plaintiff and class would likely encounter if the case
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were to go to trial, (3) the expected duration and expense of additional litigation, (4) the solvency
of the defendants and the probability of recovery on a litigated judgment, (5) the degree of
opposition to the proposed settlement, (6) the posture of the case at the time settlement was
proposed, (7) the extent of discovery that had been conducted, (8) the circumstances surrounding
the negotiations, and (9) the experience of counsel in the substantive area and class action
litigation. See Jiffy Lube, 927 F.2d at 159; West v. Cont’l Auto., Inc., No. 3:16-cv-00502, 2018
U.S. Dist. LEXIS 26404, at *10 (W.D.N.C. Feb. 5, 2018).
Defendants have disputed Plaintiffs’ DPPA claim since the inception of this case,
including the initial question of whether the DPPA applies to crash reports. While the Court has
rejected the merits of Defendants’ defenses as discussed above, the resolution of their appeals as
well as the appeals of the Plaintiffs from the Court’s rulings against them would require
protracted adversarial litigation and appeals at substantial risk and expense to both parties. Aside
from the potential that either side will lose on appeal, the Parties anticipate incurring substantial
additional costs in pursuing this litigation further. The level of additional costs would
significantly increase as the appellate process proceeded and any effort that might be required if
the matter is remanded for further proceedings. Thus, the likelihood of substantial future costs
favors approving the proposed settlement. Sims, 2019 U.S. Dist. LEXIS 75837 at *17; Horton,
855 F. Supp. at 833.
Despite the size of the Rule 23(b)(2) Settlement Class and Rule 23(b)(2) CMPD
Settlement Subclass, only one consumer to date is pursuing a class-wide claim that will be
resolved through this settlement. See Hatch v. LexisNexis Risk Solutions Inc., et al., 3:19-cv00449 (W.D.N.C.) (“Hatch”). Given the claims preserved by the Rule 23(b)(2) Settlement Class
and Rule 23(b)(2) CMPD Settlement Subclass under the Settlement Agreement, the plaintiff in
Hatch however would be able to continue to pursue his claim for actual damages and liquidated
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statutory damages on an individual basis.
The Parties have been litigating Plaintiffs’ claims for more than five years. The Plaintiffs
had a complete understanding from formal and informal discovery as to Defendants’ business
practices and what defenses as to liability and as to class certification would be faced. As
discussed above, each of the remaining elements of “adequacy” under Jiffy Lube are more than
met. The negotiations were self-evidently arms-length, with settlement made possible only
through the considerable efforts of an experienced mediator. Given this analysis, the Jiffy Lube
factors weigh in favor of the adequacy and reasonableness of the settlement.
Accordingly, based on the foregoing considerations, the Court finds that the terms of the
proposed settlement are adequate and reasonable for purposes of preliminary approval and the
proposed settlement as set forth in the Settlement Agreement is hereby preliminarily approved as
fair, reasonable, and adequate, subject to further consideration at the final approval hearing
described below. Named Plaintiffs and Defendants are authorized and directed to take all actions
that may be required prior to final approval by the Court of the proposed settlement and release
set forth in the Settlement Agreement.
IV.

Notice for This Rule 23(b)(2) Settlement Class
The parties have proposed American Legal Claim Services LLC (“ALCS”) as the

Settlement Administrator for the purpose of providing the required notice under CAFA and
administering the Notice Program. The Court has reviewed the materials about this organization
and concludes that they have extensive and specialized experience and expertise in class-action
settlements and notice programs. The Court hereby appoints American Legal Claim Services
LLC as the Settlement Administrator.
Neither Rule 23 nor the case law requires individualized, mailed notice for a Rule
23(b)(2) settlement class, where class members do not have the opportunity to opt out of the
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settlement and are not required to take any affirmative action to receive the benefits of the
settlement. However, the Court finds that notice by means of an extensive and targeted
publication as described in the Notice Plan below (to which the Parties have agreed) is necessary
and appropriate in this case to give class members a fair and adequate opportunity to challenge or
otherwise respond to the proposed settlement which will bind them as well as the Named
Plaintiffs.
Notice to class members upon settlement of class claims should be conducted in a
“reasonable manner.” See Fed. R. Civ. P. 23(e)(1)(B). “[S]ettlement notices should be delivered
or communicated to class members in the same manner as certification notices.” Manual for
Complex Litig., Fourth, § 21.312 (“Manual”). Under Rule 23(c)(2)(A), “the court may direct
appropriate [certification] notice to the class.” Fed. R. Civ. P. 23(c)(2)(A). “If [certification]
notice is appropriate, it need not be individual notice because, unlike a Rule 23(b)(3) class, there
is no right to request exclusion from Rule 23(b)(1) and (b)(2) classes.” Manual, § 21.311; see
also Wright and Miller’s Federal Practice and Procedure, Civil § 1786 (“The first specific
question to be dealt with in determining the quality of the notice typically is whether individual
notice must be given. In actions under Rules 23(b)(1) and 23(b)(2), the court is only directed to
give ‘appropriate notice to the class,’ leaving the type of notice discretionary.”). Notice programs
that circulate settlement information via publication methods are reasonable in conjunction with
a Rule 23(b)(2) class. See, e.g., Berry v. LexisNexis Risk & Info. Analytics Group, Inc., No 3:11cv-754, 2014 U.S. Dist. LEXIS 124415, at *6 (E.D. Va. Sept. 5, 2014), aff’d sub nom. Berry v.
Schulman, 807 F.3d 600 (4th Cir. 2015) (approving a Rule 23(b)(2) class settlement with a notice
plan employing publication via multiple print and online media platforms, purchasing related
search terms with major search engines, and a settlement website and toll-free telephone number
with settlement-related information).
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As outlined in the Settlement Agreement, the required Notice Plan consists of four
primary components: (1) a settlement website; (2) a call center; (3) notice by print publication;
and (4) publication via digital and social media channels. The settlement website will enable
class members to access a host of information regarding the class settlement. That information
will include important settlement documents such as the Settlement Agreement, the Long-Form
Notice (in both English and Spanish), and the Preliminary Approval Order. In addition, the class
settlement website will include a section for frequently- asked questions, and procedural
information regarding the status of the Court-approval process, such as an announcement when
the final approval hearing is scheduled, when the Final Judgment and Order has been entered,
and when the Effective Date is expected or has been reached.
Class members will also have access to a call center facilitated by ALCS that will be
available 24 hours a day. The toll-free telephone number will provide class members with access
to recorded information, in both English and Spanish, related to the class settlement website. The
Notice Plan further provides for the purchase of a 1/8-page advertisement in the nationwide
edition of USA Today to appear twice over a one-month period. The 1/8-page advertisement
would provide space for roughly 800 words, which would provide ample room for a description
of the case and how to access additional information via the settlement website and call center.
The digital and social media strategy will involve working with at least Facebook and Google to
develop and place digital and social media advertisements over a six-week period to notify
potential settlement class members about the settlement.
Accordingly, based on the nature of the proposed injunctive relief, the Court finds the
Notice Plan for this Rule 23(b)(2) Settlement Class and Rule 23(b)(2) CMPD Settlement
Subclass is reasonable and adequate. 3 The Court hereby appoints American Legal Claim

3

The form of the various notices to class members which have been approved by the Court (subject
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Services LLC as the Settlement Administrator as to the Notice Plan.
V.

Procedure for Objecting to the Rule 23(b)(2) Settlement
Any member of the Rule 23(b)(2) Settlement Class or Rule 23(b)(2) CMPD Settlement

Subclass or representative of a government entity who wishes to object to the proposed Rule
23(b)(2) settlement may do so by mailing a copy of the objection to the Settlement Administrator
at the following address: Gaston v. LexisNexis Settlement Administrator, PO Box 23309,
Jacksonville, Florida 32241 or emailing the administrator at the address listed in the required
notices. The objection must be mailed and postmarked or sent by email by May 3, 2021 (21 days
prior to the scheduled final hearing), and must include all of the following:


The name of the case, Deloris Gaston, et al. v. LexisNexis Risk Solutions Inc., et
al., Case No. 5:16-cv-00009 (W.D.N.C.);



The objector’s name, address, and telephone number;



A brief statement of the objection and the reasons for the objection;



Copies of any documents upon which the objection is based; and



A statement of whether the objector or the objector’s lawyer will ask to speak at
the final approval hearing.

Any member of the Rule 23(b)(2) Settlement Class or Rule 23(b)(2) CMPD Settlement
Subclass who wishes to appear at the final approval hearing, either in person or through counsel,
in addition to providing the above information shall also:


Generally identify the points the objector wishes to speak about at the hearing;



Enclose copies of any documents on which the objector intends to rely at the
hearing;

to changing the date of the final hearing and other deadlines based on this Order) are attached as
exhibits to the parties settlement agreement. See Dkt. No. 168-1.
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

State the amount of time the objector requests for speaking at the hearing; and



State whether the objector intends to have a lawyer speak on his or her behalf.

Any lawyer who intends to appear or speak at the final approval hearing on behalf of a
member of the Rule 23(b)(2) Settlement Class or Rule 23(b)(2) CMPD Settlement Subclass must
enter a written notice of appearance of counsel with the Clerk of the Court no later than May 17,
2021 (one week before the final hearing). All properly submitted objections will be considered
by the Court.
Any objector to the Rule 23(b)(2) settlement who does not properly and timely object in
the manner set forth above may, in the discretion of the Court, not be allowed to appear at the
final approval hearing or be allowed to object to or appeal the final approval of the proposed
settlement, the dismissal of the case, any award of attorneys’ fees and expenses to Class Counsel,
or any incentive awards to the Named Plaintiffs.
VI.

Final Approval Hearing
A final approval hearing shall be held on May 24, 2021 at 10:00 a.m. for the purpose of

determining whether the proposed settlement set forth in the Settlement Agreement shall be
approved finally by the Court and whether final judgment dismissing the litigation with respect
to Defendants is appropriate. The Court will also consider Class Counsel’s request for attorneys’
fees, costs, and expenses, and Named Plaintiffs’ request for an incentive award. This hearing will
be held at the United States Courthouse, United States District Court, Western District of North
Carolina, 200 West Broad Street, Statesville, NC 28677.
Class Counsel are directed to file any material in support of their fee petition no later than
March 29, 2021 and counsel are directed to file any remaining briefs in support of the proposed
settlement no later than the same date.

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At the final hearing, the Court may (i) approve the Settlement Agreement, with such
modifications as may be agreed to by the parties, without further notice; and (ii) adjourn the final
approval hearing from time to time, by oral announcement at the hearing without further notice.
The Court retains exclusive jurisdiction over the litigation to consider all further matters arising
out of or in connection with the proposed settlement.
NOW THEREFORE IT IS ORDERED THAT:
1. The Motion for Preliminary Approval of Proposed Settlement (Dkt. Nos. 163; 165;
167) is GRANTED, consistent with this Order;
2. The Parties’ proposed notices and other communications to the class members are
approved subject to changing the notices to reflect the date of the final hearing and
other deadlines described in this Order;
3. Class Counsel are directed to file any material in support of their fee petition no
later than March 29, 2021 and counsel are directed to file any remaining briefs in
support of the proposed settlement no later than the same date; and
4. A final approval hearing shall be held in this matter on May 24, 2021 at 10:00 a.m.
at the United States Courthouse, United States District Court, Western District of
North Carolina, 200 West Broad Street, Statesville, NC 28677.
SO ORDERED ADJUDGED AND DECREED
Signed: January 25, 2021

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