Barel v. Bank of America

255 F.R.D. 393, 2009 U.S. Dist. LEXIS 3573, 2009 WL 122805
CourtDistrict Court, E.D. Pennsylvania
DecidedJanuary 16, 2009
DocketCivil Action No. 06-2372
StatusPublished
Cited by18 cases

This text of 255 F.R.D. 393 (Barel v. Bank of America) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barel v. Bank of America, 255 F.R.D. 393, 2009 U.S. Dist. LEXIS 3573, 2009 WL 122805 (E.D. Pa. 2009).

Opinion

MEMORANDUM & ORDER

SURRICK, District Judge.

Presently before the Court are the Representative Plaintiffs Motion for Final Approval of Settlement and Certification of Settlement Class (Doc. No. 57) and Representative Plaintiffs Motion for Award of Attorneys’ Fees and Reimbursement of Expenses (Doc. No. 58). After conducting a Fairness Healing on the proposed final settlement and disbursement of attorneys’ fees, and considering all documents filed in support the proposed settlement and fees, the Motions will be granted.

I. BACKGROUND

Plaintiff Karen A. Barel (“Representative Plaintiff’) filed a Complaint against Bank of America (“Defendant”) on June 5, 2006. She alleges that Defendant violated the Fair Credit Reporting Act, 15 U.S.C. §§ 1681 et seq. (“FCRA”), by obtaining the credit reports of non-customers who were given power-of-attorney status by customers of Defendant. Representative Plaintiff alleges that Defendant obtained these consumer reports without a permissible purpose under the FCRA and that Defendant’s conduct was willful.

The parties exchanged discovery and conducted a number of fact and expert depositions. On May 25, 2007, Defendant filed a motion for summary judgment. {See Doc. No. 34.) On the same day, Representative Plaintiff filed a motion for class certification. {See Doc. No. 33.) While these motions were pending, the parties negotiated a settlement.

On September 22, 2008, a hearing was held after which we entered an Order preliminarily approving the settlement. In that Order, we certified a class for settlement purposes as follows:

All persons who, during the time period of June 5, 2004 through and inclusive of May 10, 2007, were added as attorney-in-fact pursuant to a power of attorney authorization (a “POA”) to another individual’s Bank of America deposit account at a time when the POA was not a customer of the Bank, and whose credit report was obtained by [397]*397the Bank in connection was an application to be added as a POA to the account.

(Doc. No. 52 ¶ 2.) We allowed each class member the right to exclude himself or herself from the settlement class by mailing a request for exclusion to the Settlement Administrator. (Id. at ¶ 8.) The request of exclusion had to be postmarked no later than thirty days after the mailing of the Class Notice. (Id.) We also designated James A. Francis, David A. Searles, and Glen H. Chulsky as Counsel for the Class (“Class Counsel”), and scheduled the Fairness Hearing for January 8, 2009. (Id. ¶¶ 4,12.)

Under the terms of the settlement agreement, Defendant will provide four free months of “Privacy Assist Premier,” a credit report monitoring service with a retail value of $12.99 a month, to each settlement class member who submits a claim form within 60 days after the date of this Memorandum and Order. At the end of the four months, the service will automatically terminate absent affirmative action from the class member to continue the service. Defendant will also that request the credit bureaus remove from the credit report of each class member who submits a claim form the credit inquiry made by them in connection with the class member’s power-of-attorney application. In addition, Defendant has agreed not to resume the practice of obtaining credit reports of power-of-attorney applicants who are not Defendant’s customers absent a change in the law or interpretation of the law which, in the Defendant’s sole judgment, further demonstrates that this practice is permissible.

As of the time of the Fairness Hearing, Class Counsel had provided notice to 27,350 class members via first class mail. (Doc. No, 57, Memo, at 2.) The notice included information regarding: the pendency of the action; the terms of the proposed settlement; the opportunity to opt out, object or participate; and the date of the final Fairness Hearing. (Id.) Class Counsel also published the same notice in the national edition of USA Today on October 29,2008.

At the Fairness Hearing on January 8, 2008, Class Counsel and counsel for Defendant expressed their satisfaction with the settlement agreement and their belief that the agreement was fair, reasonable, and adequate. Class Counsel advised that as of December 29, 2008, approximately 139 class members (or about .005%) had opted out of the settlement. (See Doc. No. 57, Memo, at 12; Doe. No. 57, Ex. A.) None of the opt-outs attended the hearing. Class Counsel further advised that they received no objections to the settlement agreement. No class members, objectors or otherwise, attended the hearing.

II. FAIRNESS OF THE SETTLEMENT AGREEMENT

Pursuant to Federal Rule of Civil Procedure 23(e), a district court “may approve a settlement ... that would bind class members only after a hearing and on finding that the settlement ... is fair, adequate, and reasonable.” Fed.R.Civ.P. 23(e)(1)(C). In assessing whether the proposed settlement is fair, adequate, and reasonable, we must “ ‘independently and objectively analyze the evidence and circumstances ... to determine whether the settlement is in the best interest of those whose claims will be extinguished.’ ” In re Gen. Motors Corp., 55 F.3d 768, 785 (3d Cir.1995) (quoting 2 Herbert B. Newberg & Alba Conte, Newberg on Class Actions § 11.41, at 11-88 to 11-89 (3d ed.1992)); see also id. (stating that “the district court acts as a fiduciary who must serve as a guardian of the rights of absent class members”). To do this effectively, we must engage in a two-step analysis, examining first whether the settlement class meets the requirements of Rule 23 and second whether the settlement meets the standards of fairness articulated by the Third Circuit in Girsh v. Jepson, 521 F.2d 153, 157 (3d Cir.1975).

A. Rule 23 Class Certification

A settlement class must meet the Requirements of Rule 23 before a court can grant final approval of a class action settlement. See, e.g., Orloff v. Syndicated Office Sys., No. 00-5355, 2004 WL 870691, at *6-7, 2004 U.S. Dist. LEXIS 7151, at *6 (E.D.Pa. Apr. 22, 2005). “Settlement classes must satisfy the Rule 23(a) requirements of numerosity, commonality, typicality, and adequacy of representation, as well as the rele[398]*398vant 23(b) requirements .In re G.M., 55 F.3d at 778; see also Fry v. Hayt, Hayt, & Landau, 198 F.R.D. 461, 467-69 (E.D.Pa. 2000). Rule 23(b) requires that the class satisfy one of its three criteria. See Kaplan v. Chertoff, No. 06-5304, 2008 WL 200108, at *6, 2008 U.S. Dist. LEXIS 5082, at *20 (E.D.Pa. Jan. 24, 2008).

1. Numerosity

Rule 23(a)(1) requires that a class be so numerous “that joinder of all members is impracticable.” Fed.R.Civ.P. 23(a)(1). The Third Circuit has held that while “[n]o minimum number of plaintiffs is required to maintain a suit as a class action ...

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Bluebook (online)
255 F.R.D. 393, 2009 U.S. Dist. LEXIS 3573, 2009 WL 122805, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barel-v-bank-of-america-paed-2009.