Little v. Wash. Metro. Area Transit Auth.

313 F.Supp.3d 27

Erick LITTLE, et al., Plaintiffs,

v.WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, et al., Defendants.

Civil No. 14–1289 (RMC)

consolidated with 15–98, 15–114, 15–1298, 17–168

United States District Court, District of Columbia.

Signed April 27, 2018

Ajmel A. Quereshi, Coty R. Montag, NAACP Legal Defense & Educational Fund, Inc., Brett E. Marston, Peter Thomas Grossi, Jr., Whitney Allyn Moore, Brittany Erin McClure, Katherine E. Clemons, Michael Duane Harris, John Arak Freedman, Arnold & Porter Kaye Scholer LLP, Dennis A. Corkery, Matthew K. Handley, Washington Lawyers' Committee For Civil Rights & Urban Affairs, Kristian L. Hinson, Willkie Farr & Gallagher, LLP, Washington, DC, Rachel M. Kleinman, Pro Hac Vice, NAACP Legal Defense & Educational Fund, Inc., New York, NY, for Plaintiffs.

Bernard S. Levi, Washington, DC, pro se.

Kathleen E. Kraft, Harvey A. Levin, Thompson Coburn, LLP, Gerard Joseph Stief, Michael Kelly Guss, Office of General Counsel, Melissa E. Hoppmeyer, Nat Peter Calamis, Bernard G. Dennis, III, Matthew D. Berkowitz, Carr Maloney PC, Washington, DC, Charles M. Poplstein, Pro Hac Vice, Tabitha G. Davisson, Pro Hac Vice, Robert J. Wagner, Thompson Coburn LLP, St. Louis, MO, Michael Nicholas Petkovich, Amanda Leigh Scott Vaccaro, Jackson Lewis P.C., Reston, VA, Richard William Black, Littler Mendelson, P.C., Atlanta, GA, William Simmons, Pro Hac Vice, Littler Mendelson, P.C., Philadelphia, PA, for Defendants.

MEMORANDUM OPINION

ROSEMARY M. COLLYER, United States District Judge

This matter came before the Court following a fairness hearing for final approval of a proposed class settlement (Settlement) embodied in a Class Action Settlement Agreement (Settlement Agreement), dated as of November 22, 2017, between the Washington Metropolitan Area Transit Authority (WMATA) and Erick Little, Gerald Tucker, Fitzgerald Stoney, Marcello Virgil, Leroy Quarles, Timothy McClough, Leon McKenzie, and Louia McKenzie (collectively, Class Representatives) on behalf of themselves and the respective class(s) of which they are Class Representatives; Sidney Davis; and D.W., a minor child of Lawrence Whitted, who is deceased, and Joyce Short, D.W.'s next friend (collectively, Ms. Short). A copy of the Settlement Agreement was submitted to the Court as part of the motion to approve the Settlement. Capitalized terms used and not otherwise defined in this Memorandum Opinion and accompanying Order shall have the meanings assigned to them in the Settlement Agreement.

Having read, reviewed, and considered the papers filed with this Court in support of final approval of the Settlement, including any declarations submitted, oral arguments of counsel, the Settlement Agreement, and the pleadings filed in this action; having conducted a fairness hearing with regard to the Settlement and approval thereof; being fully informed regarding the facts surrounding the proposed Settlement; and based upon this information and the record as a whole; the Court will grant final approval of the Settlement, attorneys' fees, and service awards.

I. BACKGROUND

A complete explanation of the background and claims raised in this case can be found in this Court's opinion on class certification. See Opinion [Dkt. 186]. The Court includes a brief summary here.

Plaintiffs brought a class-action suit on behalf of themselves and other similarly situated individuals under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and the District of Columbia Human Rights Act (DCHRA), D.C. Code § 2.1401.01 et seq alleging that a criminal background check (Policy 7.2.3), see Notice of Second Am. Compl., Ex. C, Policy 7.2.3 [Dkt. 200–4], used by WMATA to screen candidates and employees, was facially neutral but had a disparate impact on African Americans. WMATA's Policy 7.2.3 governed how and when individuals with criminal convictions could obtain or continue employment with WMATA and its contractors and subcontractors. WMATA at all points has argued that it adopted Policy 7.2.3 as a business necessity and that it did not have a discriminatory impact on African Americans. Policy 7.2.3 included four appendices which specified the background check criteria for different types of positions. Plaintiffs moved for class certification and on March 31, 2017, the Court certified three classes under Fed. R. Civ. P. 23(b)(2) : Appendix A Class, Appendix C Class, and Appendix F Class/MetroAccess Class. See Opinion at 46–47. The Court did not certify a damages class under Fed. R. Civ. P. 23(b)(3). See id. at 41, 44–45.

Following class certification the parties began merits discovery and also engaged in extensive settlement negotiations. The parties met in person on multiple occasions and participated in two formal mediation settlements with a neutral mediator. See Mem. in Supp. of Pls.' Mot. for Final Approval of Proposed Class Action Settlement (Final Class Settlement Mot.) [Dkt. 240] at 5–6. On November 22, 2017, the parties memorialized the terms of the Settlement Agreement. See id. at 6. The Settlement Agreement provides that WMATA shall pay $6.5 million into a Class Settlement Fund to be distributed to Class Counsel for payment of fees and costs, a Claims Administrator for its work in administering the Fund, eligible class members that submit short or long claims forms, and Class Representatives for their assistance in the litigation. See id. at 6–8. Additionally, WMATA agreed to maintain a new policy (2017 Policy), adopted in 2017, which provides for individualized assessments after an applicant fails the background check rather than presumptive disqualification, for at least one year after the date of the Court's final order approving the Settlement Agreement. See id. at 9.

On December 7, 2017, this Court granted preliminary approval of the proposed class-action Settlement between the Class Representatives and WMATA. See Preliminary Approval Order [Dkt. 230]. The Preliminary Approval Order ordered that notice of the proposed Settlement be sent by first-class mail to a Settlement Class consisting of individuals, determined by Class Counsel from records provided by third party First Choice Background Screening, Inc. (First Choice)¹ who: (i) failed a criminal background screening under the Background Screening Policy since February 23, 2012; (ii) were denied employment, terminated, or otherwise permanently separated from their position, suspended from employment with or without pay, and/or denied employment with WMATA or a contractor or subcontractor of WMATA as a result of the Background Screening Policy; and (iii) either were identified in the First Choice records as African American or had not been identified in the First Choice records as having a particular race. The notice was sent in this manner to ensure that all members of the Settlement Class were notified.

On April 6, 2018, Plaintiffs filed a Motion for Final Approval of the Proposed Class Action Settlement and a Motion for Approval of Service Payments. Final Class Settlement Mot. [Dkt. 240]; Mot. for Approval of Serv. Payments [Dkt. 241]. WMATA also filed a Memorandum in Support of Plaintiffs' Motion for Final Approval of Class Lawsuit Settlement Agreement. WMATA Mem. in Supp. of Class Action Settlement [Dkt. 245]. The Court also received objections from six individuals and reviewed and considered each objection despite some untimely filing. See Objections [Dkts. 232, 233, 234, 236, 237, 239, 244, 246, and 252].

On April 18, 2018, the Court held a formal fairness hearing to consider whether to grant final approval of the Settlement. See 4/18/2018 Minute Entry. The Court heard and considered argument from the parties and the following individuals who elected to appear to voice their support for, or objection to, the Settlement: Galen Pendergrass, Bernhard Levi, Thomas Hall, Tiffany Burke, Kaye Lawton, and Sterling Pickett.

II. LEGAL STANDARD

A. Final Approval of Class Settlement

Under Federal Rule of Civil Procedure 23(e), in order to grant final approval of a settlement, the Court must find that "the settlement is fair, adequate and reasonable and is not the product of collusion between the parties." Thomas v. Albright , 139 F.3d 227, 231 (D.C. Cir. 1998) ; see also Greenberg v. Colvin , No. 13-1837 (RMC), 2015 WL 4078042, at *3 (D.D.C. July 1, 2015) ; Fed. R. Civ. P. 23(e)(2).

"In this Circuit, there is no single test for evaluating a proposed settlement under Rule 23(e)."

Stephens v. US Airways Group, Inc. , 102 F.Supp.3d 222, 226 (D.D.C. 2015). "District courts consider the facts and circumstances of the case, and examine the following factors: (a) whether the settlement is the result of arms-length negotiations; (b) the terms of the settlement in relation to the strength of plaintiffs' case; (c) the stage of the litigation proceedings at the time of settlement; (d) the reaction of the class; and (e) the opinion of experienced counsel." Id. (quotations and citation omitted). In analyzing these factors, the Court's role is a limited one:

It is well-established that courts assume a limited role when reviewing a proposed class action settlement. They should not substitute their judgment for that of counsel who negotiated the settlement. Rather, courts favor the resolution of disputes through voluntary compromise, and, therefore, strongly encourage settlements. In the context of class actions, settlement is particularly appropriate given the litigation expenses and judicial resources required in many such suits. Absent evidence of fraud or collusion, such settlements are not to be trifled with.

Osher v. SCA Realty I, Inc. , 945 F.Supp. 298, 304 (D.D.C. 1996) (citations and quotations omitted).

B. Reasonableness of Attorneys' Fees Award

In the D.C. Circuit, the "percentage of the fund" method of calculating attorneys' fees is the "proper measure" of "contingent counsel fees in class actions resulting in the creation of a common fund payable to plaintiffs." Swedish Hosp. Corp. v. Shalala , 1 F.3d...