Case 1:15-cv-06261 Document 1 Filed 10/30/15 Page 1 of 21 PageID #: 1

OUTTEN & GOLDEN LLP Ossai Miazad Christopher M. McNerney 3 Park Avenue, 29th Floor New York, New York 10016 (212) 245-1000
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

ERIC KEELS, individually and on behalf of all others similarly situated,
Plaintiff, v. THE GEO GROUP, INC. and ACCURATE BACKGROUND, INC.,
Defendants.

CLASS ACTION COMPLAINT
Jury Trial Demanded

Plaintiff Eric Keels (“Plaintiff” or “Keels”), individually and on behalf of all others similarly situated, alleges, upon personal knowledge as to himself and upon information and belief as to other matters, as follows:
STATEMENT OF THE CASE 1. Plaintiff Eric Keels (“Keels or “Plaintiff”) brings this case as a class action pursuant to the federal Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq., and the New York State Fair Credit Reporting Act (“NY FCRA”), N.Y. Gen. Bus. Law § 380 et seq., against the GEO Group, Inc. (“GEO”) and Accurate Background, Inc. (“Accurate”) (with GEO, “Defendants”). 2. GEO routinely rejects job applicants, including Mr. Keels, based on information contained in background check reports (“consumer reports”) that it obtains from background

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check companies called “consumer reporting agencies” or “CRAs,” such as Accurate. 3. In doing so, GEO fails to strictly comply with federal law governing the
procurement and use of consumer reports for employment purposes. 4. Accurate provides consumer reports to companies, including GEO, to be used for
employment purposes, such as making hiring decisions. 5. In doing so, Accurate fails to strictly comply with federal law governing the
procurement and use of consumer reports for employment purposes. 6. GEO systemically violates section 1681b(b)(3)(A) of the FCRA by using
consumer reports to make adverse employment decisions without first providing the applicant who is the subject of the report with sufficient and timely notification of its intent to take an adverse action, a copy of the report, and a summary of the applicants’ rights under the FCRA. 15 U.S.C. § 1681b(b)(3)(A)(i) and (ii).
7. Accurate also violates section 1681b(b)(3)(A) of the FCRA by failing to timely provide applicants with appropriate pre-adverse action disclosures, including a copy of the relevant consumer report and a written description of the applicant’s rights under the FCRA, in violation of FCRA, 15 U.S.C. § 1681b(b)(3)(A)(i) and (ii).
8. Accurate has further violated the FCRA by failing to notify job applicants when it furnishes consumer reports that are likely to adversely affect the applicant’s ability to obtain employment and failing to follow strict procedures to ensure the timely and complete nature of those reports, in violation of U.S.C. § 1681k(a).
9. Defendants have also violated the NY FCRA by failing to provide job applicants with a copy of Article 23-A of the Correction Law, in violation of N.Y. Gen. Bus. Law § 380g(d).
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10. Defendants have violated the above-mentioned provisions of the FCRA willfully and pursuant to their respective companywide policies and procedures.
11. On behalf of himself and others similarly situated, Plaintiff seeks injunctive and declaratory relief; statutory and/or actual and/or real damages; punitive damages; pre-judgment and post-judgment interest; and reasonable attorneys’ fees, costs, and expenses associated with this action.
PARTIES Plaintiff
12. Mr. Keels is an African American man with a criminal record who lives in Long Island City, Queens, New York.
13. Mr. Keels, and other GEO job applicants, are “consumers” as defined by the FCRA and New York FCRA. Defendants
GEO 14. GEO is a Florida corporation with a corporate headquarters located at 621 NW 53rd Street, Suite 700, Boca Raton, Florida, 33487-8242. 15. It is in the business of incarceration, operating private, for-profit prisons throughout the world. 16. GEO employs approximately 20,500 employees, managing approximately 105 correction, detention and residential treatment facilities totaling approximately 87,000 beds throughout the United States, Australia, South Africa, and the United Kingdom. 17. The vast majority of GEO’s business is in the United States, where it operates 64 correctional facilities, totaling approximately 71,973 beds.
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18. GEO operates the Queens Detention Facility, within Queens County in the State of New York, at 182-22 150th Avenue, Jamaica, NY 11413. The Queens Detention Facility houses primarily pre-sentence detainees, and has an approximately 222 bed capacity.
19. At all relevant times, GEO has been a “person” using “consumer reports” of Mr. Keels and similarly situated applicants for “employment purposes,” and has taken “adverse action” against Plaintiff and similarly situated applicants, as defined by the FCRA and NY FCRA. These adverse actions have been based wholly or in part on those consumer reports. Accurate
20. Accurate is a California corporation with a corporate headquarters located at 7515 Irvine Center Drive, Irvine, California, 92618.
21. Upon information and belief, at all relevant times, Accurate has been a “consumer reporting agency” and “person” within meaning of the FCRA and NY FCRA.
22. Among its services, Accurate provides “consumer reports,” as defined by the FCRA and NY FCRA.
23. Accurate provides background checks to approximately 6,500 corporate clients. 24. Accurate provides background checks to companies in New York State, including GEO. 25. Accurate mailed its background check to Plaintiff’s address in Long Island City, Queens, New York. 26. Upon information and belief, at all relevant times, Accurate has been a “consumer reporting agency” and “person” within meaning of the FCRA and NY FCRA. 27. Upon information and belief, at all relevant times, Accurate has regularly engaged in the business of assembling, evaluating and disbursing information concerning consumers for
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the purpose of furnishing consumer reports. JURISDICTION AND VENUE
28. This Court has original subject matter jurisdiction over Mr. Keel’s FCRA claims pursuant to 15 U.S.C. § 1681p and 28 U.S.C. § 1331 and jurisdiction over Mr. Keel’s NY FCRA claims pursuant to 28 U.S.C. § 1367 (supplemental jurisdiction).
29. Plaintiff’s NY FCRA claims are so closely related to the FCRA claims that they form part of the same case or controversy under Article III of the United States Constitution
30. Venue is proper in this District under 28 U.S.C. § 1391(b)(2) because Defendants conduct business and can be found in this district and a substantial part of the events and omissions giving rise to the claims alleged herein occurred in this District.
31. The Court has personal jurisdiction over this matter because Defendants are doing business in this District, and because many of the unlawful acts described herein occurred in this District and gave rise to the claims alleged.
STATEMENT OF FACTS Mr. Keel’s Experience
32. Mr. Keels has a criminal record. 33. In approximately August 2013, Mr. Keels applied for a position as a cook at GEO’s Queens Detention Facility. 34. Mr. Keels has a Certificate in the program of Restaurant Management from the New York Restaurant School, which is a college of culinary arts and restaurant management. 35. Mr. Keels has years of experience in the culinary industry and as a cook. 36. Shortly after applying, Jerry Morgan, GEO’s Food Services Director, called Mr. Keels and asked him to interview at GEO’s Queens Detention Facility for the cook position. 37. Shortly thereafter, Mr. Keels was interviewed by Mr. Morgan and several other
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GEO employees at GEO’s Queens Detention Facility. 38. At that interview, Mr. Morgan told Mr. Keels that he was going to offer Mr. Keels
the position as cook. 39. Shortly thereafter, GEO brought Mr. Keels in for a second interview where Mr.
Keels interviewed with several GEO employees including Mr. Morgan, Mr. Morgan’s supervisor, the head of security, and a female HR employee.
40. At that interview, Mr. Morgan again informed Mr. Keels that he had the job. 41. During one of those two interviews, GEO provided Mr. Keels with an authorization form to run a background check, which Mr. Keels signed. 42. At these two interviews, Mr. Keels was extensively questioned about his culinary experiences, and answered the questions asked to the satisfaction of Mr. Morgan and the other interviewers. 43. On or about October 7, 2013, GEO requested that Accurate run a consumer report on Mr. Keels. 44. By October 16, 2013, Accurate states that it had completed the background check on Mr. Keels. 45. Around approximately Thanksgiving, the GEO HR employee who had interviewed Mr. Keels called Mr. Keels and told him that issues had arisen in his consumer report pertaining to his criminal record and credit history. 46. That GEO HR employee informed Mr. Keels that he was being denied employment because of the information contained in the consumer report. 47. That GEO HR employee also told Mr. Keels that the United States Marshals at the prison did not want anyone to work in the prison who had been in prison, like Mr. Keels.
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48. At that point, Mr. Keels had not received any notification that GEO and Accurate had run a consumer report on him.
49. Months later, on February 19, 2014, Mr. Keels received a letter from Accurate, carbon copying GEO. That letter enclosed the consumer report that had been requested by GEO in connection with Plaintiff’s job application. That letter did not include a statement of rights under Article 23-A of the N.Y. Correction Law (“Correction Law”), N.Y. Corr. Law § 750 et seq.
50. During the entire relevant period, Mr. Keels resided at the address that he provided to GEO in conjunction with his application. Factual Allegations Common to All Class Members The Fair Credit Reporting Act
51. Employers commonly use criminal background screening reports to determine employment eligibility. A significant percentage of these reports, however, contain incomplete, inaccurate, misleading, or improper records that can erroneously disqualify a job applicant or employee. Recognizing this danger, Congress provided strict reporting and disclosure requirements in the FCRA to ensure that prospective employees have the opportunity to review reports summarizing their background information and to contest any inaccuracies and illegal disclosures and/or provide additional information before these reports influence employment decisions.
52. The FCRA requires that “before taking any adverse action based in whole or in part on [a consumer report],” the employer taking the adverse action must provide “the consumer to whom the report relates” with:
(i) a copy of the report; and
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(ii) a description in writing of the rights of the consumer under this subchapter, as prescribed by the [Consumer Financial Protection] Bureau under section 1681g(c)(3).
15 U.S.C. § 1681b(b)(3)(A)(i) and (ii). 53. The FCRA defines adverse action as either “a denial of employment or any other
decision for employment purposes that adversely affects any current or prospective employee,” or “an action taken or determination that is . . . adverse to the interests of the consumer.” 15 U.S.C. § 1681a(k)(1)(B).
54. A consumer reporting agency’s delivery of a consumer report containing information likely to prove detrimental to the consumer’s ability to secure employment is an “adverse action” in itself under this section. GEO and Accurate have routinely and systematically failed to provide Plaintiff and other job applicants with a copy of their consumer reports before taking adverse actions against them.
55. GEO and Accurate further have routinely and systematically failed to provide Plaintiff and other job applicants with a summary of their rights under the FCRA before taking adverse actions against them.
56. The FCRA mandates that any consumer reporting agency that “furnishes a consumer report for employment purposes” and, in so doing, “compiles and reports items of information on consumers which are matters of public record and are likely to have an adverse effect upon the consumer’s ability to obtain employment” shall:
(i) at the time such public record information is reported to the user of such consumer report, notify the consumer of the fact that public record information is being reported by the consumer reporting agency, together with the name and address of the person to whom such information is being reported; or
(ii) maintain strict procedures designed to [ensure] that whenever public record information which is likely to have an adverse effect on a
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consumer’s ability to obtain employment is reported it is complete and up to date. U.S.C. § 1681k(a)(1) and (2). 57. Accurate routinely and systematically fails to provide consumers with timely notice of its reporting of public-record information likely to have an adverse effect on the consumer’s ability to obtain employment. Accurate also routinely and systematically fails to maintain strict procedures to ensure that the public record information that it reports is complete and current. 58. In failing to fulfill either of these obligations, Accurate systematically violates 15 U.S.C. § 1681k(a). 59. Defendants have acted willfully in violating the requirements of the FCRA. Defendants knew or should have known about their obligations under the FCRA. These obligations are well-established by the plain language of the FCRA and in the promulgations and opinion letters of the Federal Trade Commission. 60. Despite Defendants’ awareness of their legal obligations, Defendants have acted consciously in breaching their known duties and depriving Plaintiff and other job applicants of their rights under the FCRA. 61. At a minimum, Defendants’ conduct has been reckless in failing to make an appropriate inquiry to ascertain its obligations under the FCRA. The NY FCRA 62. The NY FCRA requires that: When a consumer reporting agency provides a consumer report that contains criminal conviction information, permitted by paragraph one of subdivision (a) of section three hundred eighty-j of this article, to a user, the person, firm, corporation or other entity requesting such report shall provide the subject of such report a printed or electronic copy of article twenty-three-A of the correction law
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governing the licensure and employment of persons previously convicted of one or more criminal offenses. N.Y. Gen. Bus. Law § 380-g(d). 63. “The public policy of [New York] state, as expressed in [its Correction Law], [is] to encourage the licensure and employment of persons previously convicted of one or more criminal offenses.” N.Y. Corr. Law § 753(1)(a). 64. GEO and Accurate have routinely and systematically failed to provide Plaintiff and other job applicants with a summary of their rights under the NY FCRA before taking adverse actions against them. 65. Defendants have acted willfully in violating the requirements of the NY FCRA. Defendants knew or should have known about their obligations under the NY FCRA. These obligations are well-established by the plain language of the NY FCRA. 66. Despite Defendants’ awareness of their legal obligations, Defendants have acted consciously in breaching their known duties and depriving Plaintiff and other job applicants of their rights under the NY FCRA. 67. At a minimum, Defendants’ conduct has been reckless in failing to make an appropriate inquiry to ascertain its obligations under the NY FCRA
CLASS ACTION ALLEGATIONS 68. Plaintiff Keels brings this class action pursuant to Federal Rule of Civil Procedure 23 on behalf of himself and seven classes of persons. 69. Plaintiff asserts the First, Second, Fourth and Fifth Causes of Action against GEO and Accurate on behalf of the “FCRA Consumer Report Copy Class” and “FCRA Summary of Rights Class” defined as follows: FCRA Consumer Report Copy Class: All applicants for employment with GEO in the United States within five years of the filing of this complaint through the
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date of final judgment who were subject to an adverse action based in whole or in part on information contained in a consumer report without receiving a copy of the consumer report before the adverse action, as required by 15 U.S.C. § 1681b(b)(3)(A)(i).
FCRA Summary of Rights Class: All applicants for employment with GEO in the United States within five years of the filing of this complaint through the date of final judgment who were subject to an adverse action based in whole or in part on information contained in a consumer report without receiving a written description of their rights under the FCRA before the adverse action, as required by 15 U.S.C. § 1681b(b)(3)(A)(ii).
70. Plaintiff asserts the Sixth Cause of Action against Accurate on behalf of the
“Adverse Public-Record Information Class” defined as follows:
Adverse Public-Record Information Class: All applicants for employment with GEO in the United States, within five years of the filing of this complaint through the date of final judgment about whom Accurate delivered a consumer report to GEO containing public-record information likely to adversely affect the applicant’s ability to obtain employment without either providing advance notice to the affected applicant or maintaining strict procedures to ensure the information reported was complete and up to date, as required by 15 U.S.C. § 1681k(a).
71. Plaintiff asserts the Third and Seventh Causes of Action against Accurate and
GEO on behalf of the “NY FCRA Summary of Rights Class” defined as follows:
NY FCRA Summary of Rights Class: All applicants for employment with GEO in the United States within five years of the filing of this complaint through the date of final judgment who were subject to an adverse action based in whole or in part on information contained in a consumer report without receiving a written description of their rights under Article 23-A of the N.Y. Correction Law before the adverse action, as required by N.Y. Gen. Bus. Law § 380-g(d).
72. The members of these classes are collectively referred to as “Class Members.”
73. Plaintiff reserves the right to amend the definition of the Class based on discovery
or legal developments.
74. The members of the Classes identified herein are so numerous that joinder of all
members is impracticable. GEO employs approximately 20,500 workers worldwide, with the
vast majority located within the United States. Although Plaintiff does not know the precise
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number of job applicants with criminal records who received consumer reports from Accurate or who were denied employment at GEO, the number is far greater than can be feasibly addressed through joinder. The precise number is also uniquely within Defendants’ possession.
75. There are questions of law and fact common to the Class, and these questions predominate over any questions affecting only individual members. Common questions include, among others:
a. whether Defendants’ policies and practices violate the FCRA and NY FCRA; b. whether Defendants were willful in their noncompliance with the
requirements of the FCRA and NY FCRA; c. whether Defendants were negligent in their noncompliance with the
requirements of the FCRA and NY FCRA; and d. whether equitable remedies, injunctive relief, statutory damages, and punitive
damages for Class Members are warranted. 76. Plaintiff is a member of the classes he seeks to represent. 77. Plaintiff’s claims are typical of the claims of the classes he seeks to represent. Upon information and belief, it is Defendants’ standard practice to take adverse action against applicants without first providing affected individuals with a copy of their consumer reports and a written summary of their rights under the FCRA and NY FCRA. Upon information and belief, it is Accurate’s standard practice to deliver to GEO public-record information likely to prove detrimental to the ability of applicants to obtain employment without first (a) notifying the applicants of the fact that the public record information is being reported and the name and address of the recipient; or (b) maintaining strict procedures to ensure the information is complete and up to date. Plaintiff is entitled to relief under the same causes of action as other Class Members.
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78. Plaintiff will fairly and adequately represent and protect the interests of the Class Members. Plaintiff has retained Counsel who are competent and experienced in complex class actions, employment litigation, and the intersection thereof. There is no conflict between Plaintiff and the Class Members.
79. Class certification is appropriate pursuant to Federal Rule of Civil Procedure 23(b)(2) because the Defendants have acted and/or refused to act on grounds generally applicable to the Class Members, making declaratory and injunctive relief appropriate with respect to Plaintiff and the Class Members as a whole. The Class Members are entitled to injunctive relief to end Defendants’ common, uniform, unfair discriminatory—and illegal— policies and practices.
80. Class certification is also appropriate pursuant to Federal Rule of Civil Procedure 23(b)(3) because common questions of fact and law predominate over any questions affecting only individual Class Members, and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation. Class Members have been damaged and are entitled to recovery as a result of Defendants’ uniform policies and practices. Because Defendants have maintained a common policy of failing to properly inform Class Members of their rights under the FCRA and NY FCRA, many Class Members are likely unaware that their rights have been violated.
81. The amount of each Class Member’s individual claim is also small compared to the expense and burden of individual prosecution of this litigation. The FCRA has statutorily specified damages, which Class Members will prove at trial are warranted, that will render calculation of damages for Class Members highly straightforward. The propriety and amount of
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punitive damages are based on Defendants’ conduct, making these issues common to Class Members.
CAUSES OF ACTION FIRST CLAIM FOR RELIEF GEO’s Failure to Provide Consumer Report Copies Before Taking Adverse Action (15 U.S.C. § 1681b(b)(3)(A)(i), Brought by Plaintiff on Behalf of Himself and the FCRA Consumer Report Copy Class) 82. Plaintiff incorporates the preceding paragraphs as alleged above. 83. GEO procured consumer reports containing information regarding Plaintiff and the FCRA Consumer Report Copy Class Members from a consumer reporting agency. 84. GEO took adverse employment actions against Plaintiff and the FCRA Consumer Report Copy Class Members based in whole or in part on the information contained within those consumer reports. 85. Before taking these adverse employment actions, GEO failed to provide Plaintiff and each FCRA Consumer Report Copy Class Member with a copy of his or her consumer report and a reasonable amount of time to respond. 86. As a result of GEO’s actions, Plaintiff and the FCRA Consumer Report Copy Class Members have been deprived of their consumer rights and prevented from timely and effectively contesting the adverse action. 87. GEO’s conduct was willful, making it liable for actual or statutory damages, punitive damages, and attorneys’ fees and costs, in an amount to be determined by the Court pursuant to 15 U.S.C. § 1681n. 88. Alternatively, GEO’s actions were negligent, rendering it liable for actual damages, and attorneys’ fees and costs, pursuant to 15 U.S.C. § 1681o.
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SECOND CLAIM FOR RELIEF GEO’s Failure to Provide Summary of FCRA Rights Before Taking Adverse Action
(15 U.S.C. § 1681b(b)(3)(A)(ii), Brought by Plaintiff on Behalf of Himself and the FCRA Summary of Rights Class)
89. Plaintiff incorporates the preceding paragraphs as alleged above. 90. GEO procured consumer reports containing information regarding Plaintiff and the FCRA Summary of Rights Class Members from a consumer reporting agency. 91. GEO took adverse employment actions against Plaintiff and the FCRA Summary of Rights Class Members based in whole or in part on the information contained within those consumer reports. 92. Before taking these adverse employment actions, GEO failed to provide Plaintiff and each FCRA Summary of Rights Class Member with a summary of his or her rights under FCRA and a reasonable amount of time to respond. 93. As a result of GEO’s actions, Plaintiff and the FCRA Summary of Rights Class Members have been deprived of their consumer rights and prevented from timely and effectively contesting the adverse action. 94. GEO’s conduct was willful, making it liable for actual or statutory damages, punitive damages, and attorneys’ fees and costs, in an amount to be determined by the Court pursuant to 15 U.S.C. § 1681n. 95. Alternatively, GEO’s actions were negligent, rendering it liable for actual damages, and attorneys’ fees and costs, pursuant to 15 U.S.C. § 1681o.
THIRD CLAIM FOR RELIEF GEO’s Failure to Provide Summary of NY FCRA Rights Before Taking Adverse Action
(N.Y. Gen. Bus. Law § 380-g(d), Brought by Plaintiff on Behalf of Himself and the NY FCRA Summary of Rights Class)
96. Plaintiff incorporates the preceding paragraphs as alleged above.
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97. GEO procured consumer reports containing information regarding Plaintiff and the NY FCRA Summary of Rights Class Members from a consumer reporting agency.
98. GEO took adverse employment actions against Plaintiff and the NY FCRA Summary of Rights Class Members based in whole or in part on the information contained within those consumer reports.
99. Before taking these adverse employment actions, GEO failed to provide Plaintiff and each NY FCRA Summary of Rights Class Member with a copy of Article 23-A of the Correction Law, in violation of N.Y. Gen. Bus. Law § 380-g(d).
100. As a result of GEO’s actions, Plaintiff and the NY FCRA Summary of Rights Class Members have been deprived of their rights and prevented from timely and effectively contesting the adverse action.
101. GEO’s conduct was willful, making it liable for actual damages, punitive damages, and attorneys’ fees and costs, in an amount to be determined by the Court pursuant to N.Y. Gen. Bus. Law § 380-l.
102. Alternatively, GEO’s actions were negligent, rendering it liable for actual damages, and attorneys’ fees and costs, pursuant to N.Y. Gen. Bus. Law § 380-m.
FOURTH CLAIM FOR RELIEF Accurate’s Failure to Provide Consumer Report Copy Before Taking Adverse Action
(15 U.S.C. § 1681b(b)(3)(A)(i), Brought by Plaintiff on Behalf of Himself and the FCRA Consumer Report Copy Class)
103. Plaintiff incorporates the preceding paragraphs as alleged above. 104. Accurate has compiled and delivered to GEO consumer reports containing information regarding Plaintiff and the FCRA Consumer Report Copy Class Members that were likely to prove harmful to the ability of Plaintiff and the FCRA Consumer Report Copy Class Members to obtain employment.
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105. Each instance of delivery of this information constituted an adverse action as defined by FCRA and prevailing case law.
106. Before taking these adverse employment actions, Accurate failed to provide Plaintiff and each FCRA Consumer Report Copy Class Member with a copy of his or her consumer report.
107. As a result of Accurate’s actions, Plaintiff and the FCRA Consumer Report Copy Class Members have been deprived of their consumer rights and prevented from timely and effectively contesting the adverse action.
108. Accurate’s conduct was willful, making it liable for actual or statutory damages, punitive damages, and attorneys’ fees and costs, in an amount to be determined by the Court pursuant to 15 U.S.C. § 1681n.
109. Alternatively, Accurate’s actions were negligent, rendering it liable for actual damages, and attorneys’ fees and costs, pursuant to 15 U.S.C. § 1681o.
FIFTH CLAIM FOR RELIEF Accurate’s Failure to Provide Summary of Rights Before Taking Adverse Action
(15 U.S.C. § 1681b(b)(3)(A)(ii), Brought by Plaintiff on Behalf of Himself and the FCRA Summary of Rights Class)
110. Plaintiff incorporates the preceding paragraphs as alleged above. 111. Accurate has compiled and delivered to GEO consumer reports containing information regarding Plaintiff and the FCRA Summary of Rights Class Members that were likely to prove harmful to the ability of Plaintiff and the FCRA Summary of Rights Class Members to obtain employment. 112. Each instance of delivery of this information constituted an adverse action as defined by FCRA and prevailing case law. 113. Before taking these adverse employment actions, Accurate failed to provide
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Plaintiff and each FCRA Summary of Rights Class Member with a summary of his or her rights under FCRA.
114. As a result of Accurate’s actions, Plaintiff and the FCRA Summary of Rights Class Members have been deprived of their consumer rights and prevented from timely and effectively contesting the adverse action.
115. Accurate’s conduct was willful, making it liable for actual or statutory damages, punitive damages, and attorneys’ fees and costs, in an amount to be determined by the Court pursuant to 15 U.S.C. § 1681n.
116. Alternatively, Accurate’s actions were negligent, rendering it liable for actual damages, and attorneys’ fees and costs, pursuant to 15 U.S.C. § 1681o.
SIXTH CLAIM FOR RELIEF Accurate’s Failure to Either Provide Notice or Maintain Strict Procedures to Ensure
Completeness and Currency of Public-Record Information (15 U.S.C. § 1681k(a), brought by Plaintiff on Behalf of
Himself and the Adverse Public-Record Information Class Members) 117. Plaintiff incorporates the preceding paragraphs as alleged above. 118. Accurate compiled consumer reports for GEO containing information regarding Plaintiff and the Adverse Public-Record Information Class Members. 119. Accurate included in these reports information available through public records that was likely to adversely affect the ability of Plaintiff and the Adverse Public-Record Information Class Members to obtain employment. 120. Before taking these adverse employment actions, Accurate failed to either:
a. inform Plaintiff and the Adverse Public-Record Information Class Members of the adverse information contained in the reports as well as the name and address of the report’s recipient; or
b. maintain strict procedures intended to ensure that the information contained in the reports was complete and up to date.
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121. As a result of Accurate’s actions, Plaintiff and the Adverse Public-Record Information Class Members have been deprived of their consumer rights and denied the ability to ensure that the information likely to adversely impact their ability to obtain employment was complete and up to date.
122. Accurate’s conduct was willful, making it liable for actual or statutory damages, punitive damages, and attorneys’ fees and costs, in an amount to be determined by the Court pursuant to 15 U.S.C. § 1681n.
123. Alternatively, Accurate’s actions were negligent, rendering it liable for actual damages, and attorneys’ fees and costs, pursuant to 15 U.S.C. § 1681o.
SEVENTH CLAIM FOR RELIEF Accurate’s Failure to Provide Summary of NY FCRA Rights
Before Taking Adverse Action (N.Y. Gen. Bus. Law § 380-g(d), Brought by Plaintiff on Behalf of
Himself and the NY FCRA Summary of Rights Class) 124. Plaintiff incorporates the preceding paragraphs as alleged above. 125. Accurate has compiled and delivered to GEO consumer reports containing information regarding Plaintiff and the NY FCRA Summary of Rights Class Members that were likely to prove harmful to the ability of Plaintiff and the NY FCRA Summary of Rights Class Members to obtain employment. 126. Each instance of delivery of this information constituted an adverse action. 127. Before taking these adverse employment actions, Accurate failed to provide Plaintiff and each NY FCRA Summary of Rights Class Member with a copy of Article 23-A of the Correction Law, in violation of N.Y. Gen. Bus. Law § 380-g(d). 128. As a result of Accurate’s actions, Plaintiff and the FCRA Summary of Rights Class Members have been deprived of their rights and prevented from timely and effectively
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contesting the adverse action. 129. Accurate’s conduct was willful, making it liable for actual damages, punitive
damages, and attorneys’ fees and costs, in an amount to be determined by the Court pursuant to N.Y. Gen. Bus. Law § 380-l.
130. Alternatively, Accurate’s actions were negligent, rendering it liable for actual damages, and attorneys’ fees and costs, pursuant to N.Y. Gen. Bus. Law § 380-m.
PRAYER FOR RELIEF 131. WHEREFORE, Plaintiff and Class Members pray for relief as follows:
(a) Certification of the case as a class action on behalf of the proposed classes pursuant to Federal Rule of Civil Procedure 23;
(b) Designation of Plaintiff Eric Keels as representative of Class Members; (c) Designation of Plaintiff’s counsel of record as Class Counsel; (d) An order forbidding Defendants from engaging in further unlawful
conduct in violation of the FCRA and NY FCRA; (e) An award of actual, real and/or statutory damages for Defendants’ willful
or negligent conduct; (f) Punitive damages to deter future misconduct in an amount commensurate
with Defendants’ ability to pay; (g) Costs incurred herein, including reasonable attorneys’ fees to the extent
allowable by law; (h) Pre-judgment and post-judgment interest, as provided by law; (i) Payment of a reasonable service award to Plaintiff, in recognition of the
services they have rendered and will continue to render to the Class Members, and the risks they have taken and will take; and (j) Such other and further legal and equitable relief as this Court deems necessary, just and proper.
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JURY DEMAND

132. Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiff demand

a trial by jury in this action.

Dated: New York, New York October 30, 2015

Respectfully submitted,

By: /s/ Ossai Miazad

OUTTEN & GOLDEN LLP Ossai Miazad Christopher M. McNerney 3 Park Avenue, 29th Floor New York, New York 10016 Telephone: (212) 245-1000 Facsimile: (646) 509-2060

Attorneys for Plaintiff and the Putative Class

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OUTTEN & GOLDEN LLP Adam T. Klein Ossai Miazad Lewis M. Steel Christopher M. McNerney 3 Park Avenue, 29th Floor New York, New York 10016 (212) 245-1000
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

ERIC KEELS and SANDRA INMAN, individually and on behalf of all others similarly situated,
Plaintiffs, v. THE GEO GROUP, INC. and ACCURATE BACKGROUND, INC.,
Defendants.

Case No. 15 Civ. 6261 (CBA)(SMG)
FIRST AMENDED CLASS ACTION COMPLAINT
Jury Trial Demanded

Plaintiffs Eric Keels and Sandra Inman (“Plaintiffs”), individually and on behalf of all others similarly situated, allege, upon personal knowledge as to themselves and upon information and belief as to other matters, as follows:
STATEMENT OF THE CASE 1. Plaintiffs bring this case as a class action pursuant to the federal Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq., and the New York State Fair Credit Reporting Act (“NY FCRA”), N.Y. Gen. Bus. Law § 380 et seq., against the GEO Group, Inc. (“GEO”) and Accurate Background, Inc. (“Accurate”) (with GEO, “Defendants”). 2. GEO routinely rejects job applicants and fails to retain employees, including Mr. Keels and Ms. Inman, based on information contained in background check reports (“consumer

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reports”) that it obtains from background check companies called “consumer reporting agencies” or “CRAs,” such as Accurate.
3. In doing so, GEO fails to strictly comply with federal law governing the procurement and use of consumer reports for employment purposes.
4. Accurate provides consumer reports to companies, including GEO, to be used for employment purposes, such as making hiring and retention decisions.
5. In doing so, Accurate fails to strictly comply with federal law governing the procurement and use of consumer reports for employment purposes.
6. GEO systemically violates section 1681b(b)(3)(A) of the FCRA by using consumer reports to make adverse employment decisions without first providing the applicant and/or employee who is the subject of the report with sufficient and timely notification of its intent to take an adverse action, a copy of the report, and a summary of rights under the FCRA. 15 U.S.C. § 1681b(b)(3)(A)(i) and (ii).
7. Accurate also violates section 1681b(b)(3)(A) of the FCRA by failing to timely provide applicants and employees with appropriate pre-adverse action disclosures, including a copy of the relevant consumer report and a written description of rights under the FCRA, in violation of FCRA, 15 U.S.C. § 1681b(b)(3)(A)(i) and (ii).
8. Accurate has further violated the FCRA by failing to notify job applicants and employees when it furnishes consumer reports that are likely to adversely affect the ability to obtain or retain employment and failing to follow strict procedures to ensure the timely and complete nature of those reports, in violation of U.S.C. § 1681k(a).
9. Defendants also have violated the NY FCRA by failing to provide job applicants and employees with a copy of Article 23-A of the Correction Law, in violation of N.Y. Gen. Bus.
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Law § 380-g(d). 10. Defendants have violated the above-mentioned provisions of the FCRA willfully
and pursuant to their respective companywide policies and procedures. 11. On behalf of themselves and others similarly situated, Plaintiffs seek injunctive
and declaratory relief; statutory and/or actual and/or real damages; punitive damages; prejudgment and post-judgment interest; and reasonable attorneys’ fees, costs, and expenses associated with this action.
PARTIES Plaintiffs
12. Mr. Keels is an African American man who lives in Long Island City, Queens, New York.
13. Ms. Inman is an African American woman who lives in Springfield Garden, New York.
14. Mr. Keels, Ms. Inman, and other GEO job applicants and employees, are “consumers” as defined by the FCRA and New York FCRA. Defendants
GEO 15. GEO is a Florida corporation with a corporate headquarters located at 621 NW 53rd Street, Suite 700, Boca Raton, Florida, 33487-8242. 16. It is in the business of incarceration, operating private, for-profit prisons throughout the world. 17. GEO employs approximately 20,500 employees, managing approximately 105 correction, detention and residential treatment facilities totaling approximately 87,000 beds
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throughout the United States, Australia, South Africa, and the United Kingdom. 18. The vast majority of GEO’s business is in the United States, where it operates 64
correctional facilities, totaling approximately 71,973 beds. 19. GEO operates the Queens Detention Facility, within Queens County in the State
of New York, at 182-22 150th Avenue, Jamaica, NY 11413. The Queens Detention Facility houses primarily pre-sentence detainees, and has an approximately 222 bed capacity.
20. At all relevant times, GEO has been a “person” using “consumer reports” of Plaintiffs and similarly situated applicants and employees for “employment purposes,” and has taken “adverse action” against Plaintiffs and similarly situated applicants and employees, as defined by the FCRA and NY FCRA. These adverse actions have been based wholly or in part on those consumer reports.
Accurate 21. Accurate is a California corporation with a corporate headquarters located at 7515 Irvine Center Drive, Irvine, California, 92618. 22. Upon information and belief, at all relevant times, Accurate has been a “consumer reporting agency” and “person” within meaning of the FCRA and NY FCRA. 23. Among its services, Accurate provides “consumer reports,” as defined by the FCRA and NY FCRA. 24. Accurate provides background checks to approximately 6,500 corporate clients. 25. Accurate provides background checks to companies in New York State, including GEO. 26. Upon information and belief, at all relevant times, Accurate has been a “consumer reporting agency” and “person” within meaning of the FCRA and NY FCRA.
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27. Upon information and belief, at all relevant times, Accurate has regularly engaged in the business of assembling, evaluating and disbursing information concerning consumers for the purpose of furnishing consumer reports.
JURISDICTION AND VENUE 28. This Court has original subject matter jurisdiction over Plaintiffs’ FCRA claims pursuant to 15 U.S.C. § 1681p and 28 U.S.C. § 1331 and jurisdiction over Plaintiffs’ NY FCRA claims pursuant to 28 U.S.C. § 1367 (supplemental jurisdiction). 29. Plaintiffs’ NY FCRA claims are so closely related to the FCRA claims that they form part of the same case or controversy under Article III of the United States Constitution. 30. Venue is proper in this District under 28 U.S.C. § 1391(b)(2) because Defendants conduct business and can be found in this district and a substantial part of the events and omissions giving rise to the claims alleged herein occurred in this District. 31. The Court has personal jurisdiction over this matter because Defendants are doing business in this District, and because many of the unlawful acts described herein occurred in this District and gave rise to the claims alleged.
STATEMENT OF FACTS Mr. Keels’ Experience
32. Mr. Keels has a criminal record. 33. In approximately August 2013, Mr. Keels applied for a position as a cook at GEO’s Queens Detention Facility. 34. Mr. Keels has a Certificate in the program of Restaurant Management from the New York Restaurant School, which is a college of culinary arts and restaurant management. 35. Mr. Keels has years of experience in the culinary industry and as a cook. 36. Shortly after applying, Jerry Morgan, GEO’s Food Services Director, called Mr.
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Keels and asked him to interview at GEO’s Queens Detention Facility for the cook position. 37. Shortly thereafter, Mr. Keels was interviewed by Mr. Morgan and several other
GEO employees at GEO’s Queens Detention Facility. 38. At that interview, Mr. Morgan told Mr. Keels that he was going to offer Mr. Keels
the position as cook. 39. Shortly thereafter, GEO brought Mr. Keels in for a second interview where Mr.
Keels interviewed with several GEO employees including Mr. Morgan, Mr. Morgan’s supervisor, the head of security, and a female HR employee.
40. At that interview, Mr. Morgan again informed Mr. Keels that he had the job. 41. During one of those two interviews, as a condition of employment GEO required that Mr. Keels authorize a consumer report, which would check among other topics Mr. Keels’ criminal record and credit history. 42. At these two interviews, Mr. Keels was extensively questioned about his culinary experiences, and answered the questions asked to the satisfaction of Mr. Morgan and the other interviewers. 43. On or about October 7, 2013, GEO requested that Accurate run a consumer report on Mr. Keels. 44. By October 16, 2013, Accurate states that it had completed the background check on Mr. Keels. 45. Around approximately Thanksgiving, the GEO HR employee who had interviewed Mr. Keels called Mr. Keels and told him that issues had arisen in his consumer report pertaining to his criminal record and credit history. 46. That GEO HR employee informed Mr. Keels that he was being denied
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employment because of the information contained in the consumer report. 47. That GEO HR employee also told Mr. Keels that the United States Marshals at
the prison did not want anyone to work in the prison who had been in prison, like Mr. Keels. 48. At that point, Mr. Keels had not received a copy of his consumer report. 49. At that point, Mr. Keels also had not received a written description of his rights
under the FCRA. 50. Mr. Keels also had not received a statement of rights under Article 23-A of the
N.Y. Correction Law (“Correction Law”), N.Y. Corr. Law § 750 et seq. 51. Months later, on February 19, 2014, Mr. Keels received a letter from Accurate,
carbon copying GEO. That letter enclosed the consumer report that had been requested by GEO in connection with the job application of Mr. Keels. That letter did not include a statement of rights under Article 23-A of the Correction Law.
52. During the entire relevant period, Mr. Keels resided at the address that he provided to GEO in conjunction with his application. Ms. Inman’s Experience
53. Ms. Inman worked at GEO for approximately 14 years as a correctional officer. 54. During her employment with GEO, it was GEO’s practice to have consumer reports run on employees to check employees’ credit and criminal records. 55. Upon information and belief, GEO employed Accurate to run these consumer reports. 56. Defendants would run these consumer reports on employees approximately every five years. 57. Throughout her employment with GEO, Ms. Inman was subjected to consumer
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reports that checked, among other topics, her credit and criminal record history. 58. Ms. Inman never received a copy of any of these consumer reports that
Defendants ran. 59. In approximately April 2011, GEO terminated Ms. Inman’s employment. 60. As a result of losing her job and source of income, Ms. Inman incurred credit
debt. 61. Ms. Inman contested this termination through her collective bargaining agreement
and arbitration and prevailed with a finding that her termination was improper. 62. As part of the relief granted through the arbitration, GEO was required to reinstate
Ms. Inman. 63. Prior to permitting her to return to work, GEO required that Ms. Inman authorize
a consumer report, which would check among other topics Ms. Inman’s criminal record and credit history.
64. In a letter dated December 19, 2012, Yolanda Bathea, an HR Specialist at GEO, informed Ms. Inman that on December 6, 2012, Accurate had run a background and credit check on Ms. Inman.
65. Ms. Inman followed up with Ms. Bathea regarding credit discrepancies on her background check, resolved the discrepancies and then informed Ms. Bathea that her credit issues had been resolved.
66. Nevertheless, GEO refused to allow Ms. Inman to return to work. 67. Ms. Inman never received a copy of her consumer report. 68. Ms. Inman never received a written description of her rights under the FCRA. 69. Ms. Inman never received a copy of her rights under Article 23-A of Correction
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Law. 70. During the entire relevant period, Ms. Inman resided at the address that she
provided to GEO in conjunction with her application. Factual Allegations Common to All Class Members The Fair Credit Reporting Act
71. Employers commonly use criminal background screening reports to determine employment eligibility. A significant percentage of these reports, however, contain incomplete, inaccurate, misleading, or improper records that can erroneously disqualify a job applicant or employee. Recognizing this danger, Congress provided strict reporting and disclosure requirements in the FCRA to ensure that prospective employees and employees have the opportunity to review reports summarizing their background information and to contest any inaccuracies and illegal disclosures and/or provide additional information before these reports influence employment decisions.
72. The FCRA requires that “before taking any adverse action based in whole or in part on [a consumer report],” the employer taking the adverse action must provide “the consumer to whom the report relates” with:
(i) a copy of the report; and (ii) a description in writing of the rights of the consumer under this
subchapter, as prescribed by the [Consumer Financial Protection] Bureau under section 1681g(c)(3). 15 U.S.C. § 1681b(b)(3)(A)(i) and (ii). 73. The FCRA defines adverse action as either “a denial of employment or any other decision for employment purposes that adversely affects any current or prospective employee,”
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or “an action taken or determination that is . . . adverse to the interests of the consumer.” 15 U.S.C. § 1681a(k)(1)(B).
74. A consumer reporting agency’s delivery of a consumer report containing information likely to prove detrimental to the consumer’s ability to secure and/or retain employment is an “adverse action” in itself under this section. GEO and Accurate have routinely and systematically failed to provide Plaintiffs and other job applicants and employees with a copy of their consumer reports before taking adverse actions against them.
75. GEO and Accurate further have routinely and systematically failed to provide Plaintiffs and other job applicants and employees with a summary of their rights under the FCRA before taking adverse actions against them.
76. The FCRA mandates that any consumer reporting agency that “furnishes a consumer report for employment purposes” and, in so doing, “compiles and reports items of information on consumers which are matters of public record and are likely to have an adverse effect upon the consumer’s ability to obtain employment” shall:
(i) at the time such public record information is reported to the user of such consumer report, notify the consumer of the fact that public record information is being reported by the consumer reporting agency, together with the name and address of the person to whom such information is being reported; or
(ii) maintain strict procedures designed to [ensure] that whenever public record information which is likely to have an adverse effect on a consumer’s ability to obtain employment is reported it is complete and up to date.
U.S.C. § 1681k(a)(1) and (2). 77. Accurate routinely and systematically fails to provide consumers with timely
notice of its reporting of public-record information likely to have an adverse effect on the consumer’s ability to obtain and/or retain employment. Accurate also routinely and
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systematically fails to maintain strict procedures to ensure that the public record information that it reports is complete and current.
78. In failing to fulfill either of these obligations, Accurate systematically violates 15 U.S.C. § 1681k(a).
79. Defendants have acted willfully in violating the requirements of the FCRA. Defendants knew or should have known about their obligations under the FCRA. These obligations are well-established by the plain language of the FCRA and in the promulgations and opinion letters of the Federal Trade Commission.
80. Despite Defendants’ awareness of their legal obligations, Defendants have acted consciously in breaching their known duties and depriving Plaintiffs and other job applicants and employees of their rights under the FCRA.
81. At a minimum, Defendants’ conduct has been reckless in failing to make an appropriate inquiry to ascertain its obligations under the FCRA. The NY FCRA
82. The NY FCRA requires that: When a consumer reporting agency provides a consumer report that contains criminal conviction information, permitted by paragraph one of subdivision (a) of section three hundred eighty-j of this article, to a user, the person, firm, corporation or other entity requesting such report shall provide the subject of such report a printed or electronic copy of article twenty-three-A of the correction law governing the licensure and employment of persons previously convicted of one or more criminal offenses. N.Y. Gen. Bus. Law § 380-g(d). 83. “The public policy of [New York] state, as expressed in [its Correction Law], [is] to encourage the licensure and employment of persons previously convicted of one or more criminal offenses.” N.Y. Corr. Law § 753(1)(a). 84. GEO and Accurate have routinely and systematically failed to provide Plaintiffs
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and other job applicants and employees with a summary of their rights under the NY FCRA before taking adverse actions against them.
85. Defendants have acted willfully in violating the requirements of the NY FCRA. Defendants knew or should have known about their obligations under the NY FCRA. These obligations are well-established by the plain language of the NY FCRA.
86. Despite Defendants’ awareness of their legal obligations, Defendants have acted consciously in breaching their known duties and depriving Plaintiffs and other job applicants and employees of their rights under the NY FCRA.
87. At a minimum, Defendants’ conduct has been reckless in failing to make an appropriate inquiry to ascertain its obligations under the NY FCRA
CLASS ACTION ALLEGATIONS 88. Plaintiffs bring this class action pursuant to Federal Rule of Civil Procedure 23 on behalf of themselves and seven classes of persons. 89. Plaintiffs assert the First, Second, Fourth and Fifth Causes of Action against GEO and Accurate on behalf of the “FCRA Consumer Report Copy Class” and “FCRA Summary of Rights Class” defined as follows: FCRA Consumer Report Copy Class: All applicants for employment with GEO and employees of GEO in the United States within five years of the filing of the complaint through the date of final judgment who were subject to an adverse action based in whole or in part on information contained in a consumer report without receiving a copy of the consumer report before the adverse action, as required by 15 U.S.C. § 1681b(b)(3)(A)(i). FCRA Summary of Rights Class: All applicants for employment with GEO and employees of GEO in the United States within five years of the filing of the complaint through the date of final judgment who were subject to an adverse action based in whole or in part on information contained in a consumer report without receiving a written description of their rights under the FCRA before the adverse action, as required by 15 U.S.C. § 1681b(b)(3)(A)(ii).
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90. Plaintiffs assert the Sixth Cause of Action against Accurate on behalf of the
“Adverse Public-Record Information Class” defined as follows:
Adverse Public-Record Information Class: All applicants for employment with GEO and employees of GEO in the United States, within five years of the filing of the complaint through the date of final judgment about whom Accurate delivered a consumer report to GEO containing public-record information likely to adversely affect the ability to obtain employment without either providing advance notice to the affected applicant or employee or maintaining strict procedures to ensure the information reported was complete and up to date, as required by 15 U.S.C. § 1681k(a).
91. Plaintiffs assert the Third and Seventh Causes of Action against GEO and
Accurate on behalf of the “NY FCRA Summary of Rights Class” defined as follows:
NY FCRA Summary of Rights Class: All applicants for employment with GEO and employees of GEO in the United States within five years of the filing of the complaint through the date of final judgment who were subject to an adverse action based in whole or in part on information contained in a consumer report without receiving a written description of their rights under Article 23-A of the N.Y. Correction Law before the adverse action, as required by N.Y. Gen. Bus. Law § 380-g(d).
92. The members of these classes are collectively referred to as “Class Members.”
93. Plaintiffs reserve the right to amend the definition of the Class based on discovery
or legal developments.
94. The members of the classes identified herein are so numerous that joinder of all
members is impracticable. GEO employs approximately 20,500 workers worldwide, with the
vast majority located within the United States. Although Plaintiffs do not know the precise
number of job applicants and employees with criminal records who received consumer reports
from Accurate or who were denied employment or not retained at GEO, the number is far greater
than can be feasibly addressed through joinder. The precise number is also uniquely within
Defendants’ possession.
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95. There are questions of law and fact common to the Class, and these questions predominate over any questions affecting only individual members. Common questions include, among others:
a. whether Defendants’ policies and practices violate the FCRA and NY FCRA; b. whether Defendants were willful in their noncompliance with the
requirements of the FCRA and NY FCRA; c. whether Defendants were negligent in their noncompliance with the
requirements of the FCRA and NY FCRA; and d. whether equitable remedies, injunctive relief, statutory damages, and punitive
damages for Class Members are warranted. 96. Plaintiffs are members of the classes they seek to represent. 97. Plaintiffs’ claims are typical of the claims of the classes they seek to represent. Upon information and belief, it is Defendants’ standard practice to take adverse action against applicants and employees without first providing affected individuals with a copy of their consumer reports and a written summary of their rights under the FCRA and NY FCRA. Upon information and belief, it is Accurate’s standard practice to deliver to GEO public-record information likely to prove detrimental to the employment of applicants and employees without first (a) notifying them of the fact that the public record information is being reported and the name and address of the recipient; or (b) maintaining strict procedures to ensure the information is complete and up to date. Plaintiffs are entitled to relief under the same causes of action as other Class Members. 98. Plaintiffs will fairly and adequately represent and protect the interests of the Class Members. Plaintiffs have retained Counsel who are competent and experienced in complex class actions, employment litigation, and the intersection thereof. There is no conflict between Plaintiffs and the Class Members.
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99. Class certification is appropriate pursuant to Federal Rule of Civil Procedure 23(b)(2) because the Defendants have acted and/or refused to act on grounds generally applicable to the Class Members, making declaratory and injunctive relief appropriate with respect to Plaintiffs and the Class Members as a whole. The Class Members are entitled to injunctive relief to end Defendants’ common, uniform, unfair discriminatory—and illegal— policies and practices.
100. Class certification is also appropriate pursuant to Federal Rule of Civil Procedure 23(b)(3) because common questions of fact and law predominate over any questions affecting only individual Class Members, and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation. Class Members have been damaged and are entitled to recovery as a result of Defendants’ uniform policies and practices. Because Defendants have maintained a common policy of failing to properly inform Class Members of their rights under the FCRA and NY FCRA, many Class Members are likely unaware that their rights have been violated.
101. The amount of each Class Member’s individual claim is also small compared to the expense and burden of individual prosecution of this litigation. The FCRA has statutorily specified damages, which Class Members will prove at trial are warranted, that will render calculation of damages for Class Members highly straightforward. The propriety and amount of punitive damages are based on Defendants’ conduct, making these issues common to Class Members.
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CAUSES OF ACTION FIRST CLAIM FOR RELIEF GEO’s Failure to Provide Consumer Report Copies Before Taking Adverse Action (15 U.S.C. § 1681b(b)(3)(A)(i), Brought by Plaintiffs on Behalf of Themselves and the FCRA Consumer Report Copy Class) 102. Plaintiffs incorporate the preceding paragraphs as alleged above. 103. GEO procured consumer reports containing information regarding Plaintiffs and the FCRA Consumer Report Copy Class Members from a consumer reporting agency. 104. GEO took adverse employment actions against Plaintiffs and the FCRA Consumer Report Copy Class Members based in whole or in part on the information contained within those consumer reports. 105. Before taking these adverse employment actions, GEO failed to provide Plaintiffs and each FCRA Consumer Report Copy Class Member with a copy of his or her consumer report and a reasonable amount of time to respond. 106. As a result of GEO’s actions, Plaintiffs and the FCRA Consumer Report Copy Class Members have been deprived of their consumer rights and prevented from timely and effectively contesting the adverse action. 107. GEO’s conduct was willful, making it liable for actual or statutory damages, punitive damages, and attorneys’ fees and costs, in an amount to be determined by the Court pursuant to 15 U.S.C. § 1681n. 108. Alternatively, GEO’s actions were negligent, rendering it liable for actual damages, and attorneys’ fees and costs, pursuant to 15 U.S.C. § 1681o. SECOND CLAIM FOR RELIEF GEO’s Failure to Provide Summary of FCRA Rights Before Taking Adverse Action (15 U.S.C. § 1681b(b)(3)(A)(ii), Brought by Plaintiffs on Behalf of Themselves and the FCRA Summary of Rights Class) 109. Plaintiffs incorporate the preceding paragraphs as alleged above.
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110. GEO procured consumer reports containing information regarding Plaintiffs and the FCRA Summary of Rights Class Members from a consumer reporting agency.
111. GEO took adverse employment actions against Plaintiffs and the FCRA Summary of Rights Class Members based in whole or in part on the information contained within those consumer reports.
112. Before taking these adverse employment actions, GEO failed to provide Plaintiffs and each FCRA Summary of Rights Class Member with a summary of his or her rights under FCRA and a reasonable amount of time to respond.
113. As a result of GEO’s actions, Plaintiffs and the FCRA Summary of Rights Class Members have been deprived of their consumer rights and prevented from timely and effectively contesting the adverse action.
114. GEO’s conduct was willful, making it liable for actual or statutory damages, punitive damages, and attorneys’ fees and costs, in an amount to be determined by the Court pursuant to 15 U.S.C. § 1681n.
115. Alternatively, GEO’s actions were negligent, rendering it liable for actual damages, and attorneys’ fees and costs, pursuant to 15 U.S.C. § 1681o.
THIRD CLAIM FOR RELIEF GEO’s Failure to Provide Summary of NY FCRA Rights Before Taking Adverse Action
(N.Y. Gen. Bus. Law § 380-g(d), Brought by Plaintiffs on Behalf of Themselves and the NY FCRA Summary of Rights Class)
116. Plaintiffs incorporate the preceding paragraphs as alleged above. 117. GEO procured consumer reports containing information regarding Plaintiffs and the NY FCRA Summary of Rights Class Members from a consumer reporting agency. 118. GEO took adverse employment actions against Plaintiffs and the NY FCRA Summary of Rights Class Members based in whole or in part on the information contained
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within those consumer reports. 119. Before taking these adverse employment actions, GEO failed to provide Plaintiffs
and each NY FCRA Summary of Rights Class Member with a copy of Article 23-A of the Correction Law, in violation of N.Y. Gen. Bus. Law § 380-g(d).
120. As a result of GEO’s actions, Plaintiffs and the NY FCRA Summary of Rights Class Members have been deprived of their rights and prevented from timely and effectively contesting the adverse action.
121. GEO’s conduct was willful, making it liable for actual damages, punitive damages, and attorneys’ fees and costs, in an amount to be determined by the Court pursuant to N.Y. Gen. Bus. Law § 380-l.
122. Alternatively, GEO’s actions were negligent, rendering it liable for actual damages, and attorneys’ fees and costs, pursuant to N.Y. Gen. Bus. Law § 380-m.
FOURTH CLAIM FOR RELIEF Accurate’s Failure to Provide Consumer Report Copy Before Taking Adverse Action
(15 U.S.C. § 1681b(b)(3)(A)(i), Brought by Plaintiffs on Behalf of Themselves and the FCRA Consumer Report Copy Class)
123. Plaintiffs incorporate the preceding paragraphs as alleged above. 124. Accurate has compiled and delivered to GEO consumer reports containing information regarding Plaintiffs and the FCRA Consumer Report Copy Class Members that were likely to prove harmful to the ability of Plaintiffs and the FCRA Consumer Report Copy Class Members to obtain and/or retain employment. 125. Each instance of delivery of this information constituted an adverse action as defined by FCRA and prevailing case law. 126. Before taking these adverse employment actions, Accurate failed to provide Plaintiffs and each FCRA Consumer Report Copy Class Member with a copy of his or her
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consumer report. 127. As a result of Accurate’s actions, Plaintiffs and the FCRA Consumer Report Copy
Class Members have been deprived of their consumer rights and prevented from timely and effectively contesting the adverse action.
128. Accurate’s conduct was willful, making it liable for actual or statutory damages, punitive damages, and attorneys’ fees and costs, in an amount to be determined by the Court pursuant to 15 U.S.C. § 1681n.
129. Alternatively, Accurate’s actions were negligent, rendering it liable for actual damages, and attorneys’ fees and costs, pursuant to 15 U.S.C. § 1681o.
FIFTH CLAIM FOR RELIEF Accurate’s Failure to Provide Summary of Rights Before Taking Adverse Action
(15 U.S.C. § 1681b(b)(3)(A)(ii), Brought by Plaintiffs on Behalf of Themselves and the FCRA Summary of Rights Class)
130. Plaintiffs incorporate the preceding paragraphs as alleged above. 131. Accurate has compiled and delivered to GEO consumer reports containing information regarding Plaintiffs and the FCRA Summary of Rights Class Members that were likely to prove harmful to the ability of Plaintiffs and the FCRA Summary of Rights Class Members to obtain and/or retain employment. 132. Each instance of delivery of this information constituted an adverse action as defined by FCRA and prevailing case law. 133. Before taking these adverse employment actions, Accurate failed to provide Plaintiffs and each FCRA Summary of Rights Class Member with a summary of his or her rights under FCRA. 134. As a result of Accurate’s actions, Plaintiffs and the FCRA Summary of Rights Class Members have been deprived of their consumer rights and prevented from timely and
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effectively contesting the adverse action. 135. Accurate’s conduct was willful, making it liable for actual or statutory damages,
punitive damages, and attorneys’ fees and costs, in an amount to be determined by the Court pursuant to 15 U.S.C. § 1681n.
136. Alternatively, Accurate’s actions were negligent, rendering it liable for actual damages, and attorneys’ fees and costs, pursuant to 15 U.S.C. § 1681o.
SIXTH CLAIM FOR RELIEF Accurate’s Failure to Either Provide Notice or Maintain Strict Procedures to Ensure
Completeness and Currency of Public-Record Information (15 U.S.C. § 1681k(a), brought by Plaintiffs on Behalf of
Themselves and the Adverse Public-Record Information Class Members) 137. Plaintiffs incorporate the preceding paragraphs as alleged above. 138. Accurate compiled consumer reports for GEO containing information regarding Plaintiffs and the Adverse Public-Record Information Class Members. 139. Accurate included in these reports information available through public records that was likely to adversely affect the ability of Plaintiffs and the Adverse Public-Record Information Class Members to obtain and/or retain employment. 140. Before taking these adverse employment actions, Accurate failed to either:
a. inform Plaintiffs and the Adverse Public-Record Information Class Members of the adverse information contained in the reports as well as the name and address of the report’s recipient; or
b. maintain strict procedures intended to ensure that the information contained in the reports was complete and up to date.
141. As a result of Accurate’s actions, Plaintiffs and the Adverse Public-Record Information Class Members have been deprived of their consumer rights and denied the ability to ensure that the information likely to adversely impact their ability to obtain and/or retain employment was complete and up to date.
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142. Accurate’s conduct was willful, making it liable for actual or statutory damages, punitive damages, and attorneys’ fees and costs, in an amount to be determined by the Court pursuant to 15 U.S.C. § 1681n.
143. Alternatively, Accurate’s actions were negligent, rendering it liable for actual damages, and attorneys’ fees and costs, pursuant to 15 U.S.C. § 1681o.
SEVENTH CLAIM FOR RELIEF Accurate’s Failure to Provide Summary of NY FCRA Rights
Before Taking Adverse Action (N.Y. Gen. Bus. Law § 380-g(d), Brought by Plaintiffs on Behalf of
Themselves and the NY FCRA Summary of Rights Class) 144. Plaintiffs incorporate the preceding paragraphs as alleged above. 145. Accurate has compiled and delivered to GEO consumer reports containing information regarding Plaintiffs and the NY FCRA Summary of Rights Class Members that were likely to prove harmful to the ability of Plaintiffs and the NY FCRA Summary of Rights Class Members to obtain and/or retain employment. 146. Each instance of delivery of this information constituted an adverse action. 147. Before taking these adverse employment actions, Accurate failed to provide Plaintiffs and each NY FCRA Summary of Rights Class Member with a copy of Article 23-A of the Correction Law, in violation of N.Y. Gen. Bus. Law § 380-g(d). 148. As a result of Accurate’s actions, Plaintiffs and the FCRA Summary of Rights Class Members have been deprived of their rights and prevented from timely and effectively contesting the adverse action. 149. Accurate’s conduct was willful, making it liable for actual damages, punitive damages, and attorneys’ fees and costs, in an amount to be determined by the Court pursuant to N.Y. Gen. Bus. Law § 380-l.
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150. Alternatively, Accurate’s actions were negligent, rendering it liable for actual

damages, and attorneys’ fees and costs, pursuant to N.Y. Gen. Bus. Law § 380-m.

PRAYER FOR RELIEF

151. WHEREFORE, Plaintiffs and Class Members pray for relief as follows:

(a) Certification of the case as a class action on behalf of the proposed classes pursuant to Federal Rule of Civil Procedure 23;

(b) Designation of Plaintiffs Eric Keels and Sandra Inman as representatives of Class Members;

(c) Designation of Plaintiffs’ counsel of record as Class Counsel;

(d) An order forbidding Defendants from engaging in further unlawful conduct in violation of the FCRA and NY FCRA;

(e) An award of actual, real and/or statutory damages for Defendants’ willful or negligent conduct;

(f) Punitive damages to deter future misconduct in an amount commensurate with Defendants’ ability to pay;

(g) Costs incurred herein, including reasonable attorneys’ fees to the extent allowable by law;

(h) Pre-judgment and post-judgment interest, as provided by law;

(i) Payment of a reasonable service award to Plaintiffs, in recognition of the services they have rendered and will continue to render to the Class Members, and the risks they have taken and will take; and

(j) Such other and further legal and equitable relief as this Court deems necessary, just and proper.

JURY DEMAND

152. Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiffs

demand a trial by jury in this action.

Dated: New York, New York December 17, 2015

Respectfully submitted,

By: /s/ Ossai Miazad

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Case 1:15-cv-06261-CBA-SMG Document 16 Filed 12/17/15 Page 23 of 23 PageID #: 90 OUTTEN & GOLDEN LLP Adam T. Klein Ossai Miazad Lewis M. Steel Christopher M. McNerney 3 Park Avenue, 29th Floor New York, New York 10016 Telephone: (212) 245-1000 Facsimile: (646) 509-2060 Attorneys for Plaintiffs and the Putative Class
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 Case 1:15-cv-06261-CBA-SMG Document 49 Filed 10/05/16 Page 1 of 33 PageID #: 258

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

ERIC KEELS and SANDRA INMAN, individually and on behalf of all others similarly situated,
Plaintiffs, v.

No. 1:15-cv-06261-CBA-SMG

THE GEO GROUP, INC. and ACCURATE BACKGROUND, INC.,
Defendants.

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT, CONDITIONAL CERTIFICATION OF THE SETTLEMENT CLASS,
APPOINTMENT OF PLAINTIFFS’ COUNSEL AS CLASS COUNSEL, AND APPROVAL OF PLAINTIFFS’ PROPOSED NOTICE OF SETTLEMENT

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TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 1 I. FACTUAL AND PROCEDURAL BACKGROUND........................................................ 1
A. Overview of Litigation............................................................................................ 1 B. Discovery and Settlement Negotiations.................................................................. 3 II. SUMMARY OF THE SETTLEMENT TERMS ................................................................ 3 A. The Settlement Amount .......................................................................................... 3 B. Equitable Revisions to GEO’s Policies Relief........................................................ 4 C. Class Members........................................................................................................ 4 D. Releases................................................................................................................... 5 E. Allocation Formula ................................................................................................. 5 F. Attorneys’ Fees and Costs ...................................................................................... 5 G. Service Awards ....................................................................................................... 6 H. Settlement Administrator ........................................................................................ 6 III. CLASS ACTION SETTLEMENT PROCEDURE ............................................................ 6 IV. PRELIMINARY APPROVAL OF THE SETTLEMENT IS APPROPRIATE ................. 8 A. The Settlement Is Fair, Reasonable, and Adequate .............................................. 12
1. Litigation Through Trial Would Be Complex, Costly, and Long (Grinnell Factor 1) .................................................................................... 12
2. The Court Cannot Assess the Reaction of the Class Until After Notice Issues (Grinnell Factor 2) ......................................................................... 12
3. Discovery Has Advanced Far Enough to Allow the Parties to Resolve the Case Responsibly (Grinnell Factor 3)................................................. 12
4. Plaintiffs Would Face Risk If the Case Proceeded (Grinnell Factors 4 and 5) ..................................................................................................... 13
5. Maintaining a Class Through Trial Presents Risk (Grinnell Factor 6) ..... 14 6. Defendant’s Ability to Withstand a Greater Judgment Is Not
Determinative (Grinnell Factor 7) ............................................................ 15 7. The Settlement Fund Is Substantial, Even in Light of the Best Possible
Recovery and Attendant Litigation Risks (Grinnell Factors 8 and 9) ...... 16 V. CONDITIONAL CERTIFICATION OF THE CLASS IS APPROPRIATE ................... 18
A. Numerosity.............................................................................................................19 B. Commonality......................................................................................................... 19 C. Typicality .............................................................................................................. 20 D. Adequacy of the Named Plaintiffs and Their Counsel ......................................... 21
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Case 1:15-cv-06261-CBA-SMG Document 49 Filed 10/05/16 Page 3 of 33 PageID #: 260 E. Certification Is Proper Under Rule 23(b)(3) ......................................................... 22 1. Common Questions Predominate..............................................................22 2. A Class Action Is a Superior Mechanism ................................................. 23
VI. PLAINTIFFS’ COUNSEL SHOULD BE APPOINTED AS CLASS COUNSEL .......... 24 VII. THE NOTICE AND AWARD DISTRIBUTION PROCESS ARE APPROPRIATE ..... 25 CONCLUSION............................................................................................................................. 25
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TABLE OF AUTHORITIES

CASES

PAGE(S)

In re Am. Intern. Grp., Inc. Sec. Litig., 689 F.3d 229 (2d Cir. 2012).....................................................................................................22

Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997).................................................................................................................24

In re Austrian & German Bank Holocaust Litig., 80 F. Supp. 2d 164 (S.D.N.Y. 2000)......................................................................11, 12, 15, 16

Ballinger v. Advance Magazine Publishers, Inc., No. 13 Civ. 4036, 2014 WL 7495092 (S.D.N.Y. Dec. 29, 2014)......................................13, 16

Beckman v. Keybank, N.A., 293 F.R.D. 467 (S.D.N.Y. 2013) .............................................................................................21

Berkson v. Gogo LLC, 147 F. Supp. 3d 123 (E.D.N.Y. 2015) .......................................................................................9

Chapman v. Dowman, Heintz, Boscia & Vician, P.C., No. 15 Civ. 120, 2016 WL 3247872 (N.D. Ind. June 13, 2016)..............................................14

Church v. Accretive Health, Inc., __ F. App’x __, No. 15-15708, 2016 WL 3611543 (11th Cir. July 6, 2016) ..........................14

City of Detroit v. Grinnell Corporation, 495 F.2d 448 (2d Cir. 1974)............................................................................................. passim

Cnty. of Suffolk v. Long Island Lighting Co., 710 F. Supp. 1422 (E.D.N.Y. 1989) ........................................................................................18

Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473 (2d Cir. 1995).......................................................................................................19

Cordes & Co. Fin. Servs., Inc. v. A.G. Edwards & Sons, Inc., 502 F.3d 91 (2d Cir. 2007).......................................................................................................22

Delmoral v. Credit Prot. Ass’n, LP, No. 13 Civ. 242, 2015 WL 5793311 (E.D.N.Y. Sept. 30, 2015).............................................15

Denney v. Deutsche Bank AG, 443 F.3d 253 (2d Cir. 2006).....................................................................................................21

Domonoske v. Bank of Am., N.A., 790 F. Supp. 2d 466 (W.D. Va. 2011) .....................................................................................17

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Case 1:15-cv-06261-CBA-SMG Document 49 Filed 10/05/16 Page 5 of 33 PageID #: 262
Dziennik v. Sealift, Inc., No. 05 Civ. 4659, 2007 WL 1580080 (E.D.N.Y. May 29, 2007)............................................21
In re EVCI Career Colls. Holding Corp. Sec. Litig., Nos. 05 Civ. 10240, et al., 2007 WL 2230177 (S.D.N.Y. July 27, 2007) ..............................10
Frank v. Eastman Kodak Co, 228 F.R.D. 174 (W.D.N.Y. 2005)......................................................................................16, 20
Galper v. JP Morgan Chase Bank, N.A., 802 F.3d 437 (2d Cir. 2015).....................................................................................................11
In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768 (3d Cir. 1995).......................................................................................................19
Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147 (1982).................................................................................................................19
Gilliam v. Addicts Rehab. Ctr. Fund, No. 05 Civ. 3452, 2008 WL 782596 (S.D.N.Y. Mar. 24, 2008) .............................................17
Green v. Wolf Corp., 406 F.2d 291 (2d Cir. 1968).....................................................................................................23
Houser v. Pritzker, 28 F. Supp. 3d 222 (S.D.N.Y. 2014)........................................................................................21
In re Ira Haupt & Co., 304 F. Supp. 917 (S.D.N.Y. 1969)...........................................................................................13
Johnson v. Brennan, No. 10 Civ. 4712, 2011 WL 4357376 (S.D.N.Y. Sept. 16, 2011) .............................................8
Karic v. Major Automotive Cos., Inc., No. 09 Civ. 5708, 2016 WL 1745037 (E.D.N.Y. Apr. 27, 2016)............................................12
Katz v. ABP Corp., No. 12 Civ. 4173, 2014 WL 4966052 (E.D.N.Y. Oct. 3, 2014) ..................................13, 20, 23
Lizondro-Garcia v. Kefi LLC, 300 F.R.D. 169 (S.D.N.Y. 2014) ...............................................................................................9
Manuel v. Wells Fargo Bank, Nat’l Ass’n, No. 14 Civ. 238, 2015 WL 4994549 (E.D. Va. Aug. 19, 2015) ..............................................20
Manuel v. Wells Fargo Bank, Nat’l Ass’n, No. 14 Civ. 238, 2016 WL 1070819 (E.D. Va. Mar. 15, 2016) ..................................17, 23, 24
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Marisol A. v. Giuliani, 126 F.3d 372 (2d Cir. 1997).....................................................................................................20
McBean v. City of N.Y., 228 F.R.D. 487 (S.D.N.Y. 2005) .............................................................................................23
Meza v. Verizon Communications, Inc., No. 16 Civ. 739, 2016 WL 4721475 (E.D. Cal. Sep.t 9, 2016) ...............................................14
Morris v. Affinity Health Plan, Inc., 859 F. Supp. 2d 611 (S.D.N.Y. 2012)......................................................................................13
In re Nickelodeon Consumer Privacy Litig., 857 F.3d 262 (3d Cir. 2016).....................................................................................................14
Puglisi v. TD Bank, N.A., No. 13 Civ. 637, 2015 WL 4608655 (E.D.N.Y. July 30, 2015) ..............................................21
Reyes v. Altamarea Grp., LLC, No. 10 Civ. 6451, 2010 WL 5508296 (S.D.N.Y. Dec. 22, 2010)............................................25
Roach v. T.L. Cannon Corp., 778 F.3d 401 (2d Cir. 2015).....................................................................................................22
Robidoux v. Celani, 987 F.2d 931 (2d Cir. 1993).....................................................................................................19
Sewell v. Bovis Lead Lease, Inc., No. 09 Civ. 6548, 2012 WL 1320124 (S.D.N.Y. Apr. 16, 2012) ............................................13
Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) .............................................................................................................14
Syed v. M-I LLC, No. 14 Civ. 742, 2016 WL 310135 (E.D. Cal. Jan. 26, 2016).................................................17
Sykes v. Mel Harris & Assocs., No. 09 Civ. 8486, 2016 WL 3030156 (S.D.N.Y. May 24, 2016)............................................13
Thomas v. FTS USA, LLC, 312 F.R.D. 407 (E.D. Va. 2016) ..................................................................................20, 23, 24
Thomas v. FTS USA, LLC, No. 13 Civ. 825, 2016 WL 3653878 (E.D. Va. June 30, 2016)...............................................14
Torres v. Gristede’s Operating Corp., Nos. 04 Civ. 3316, et al., 2010 WL 2572937 (S.D.N.Y. June 1, 2010) ....................................6
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In re Traffic Exec. Ass’n E. R.R., 627 F.2d 631 (2d Cir. 1980).......................................................................................................9
Tyson Foods Inc. v. Bouaphakeo, 136 S. Ct. 1036 (2016) .............................................................................................................22
In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124 (2d Cir. 2001).....................................................................................................22
Wal-Mart Stores, Inc. v. Visa U.S.A. Inc., 396 F.3d 96 (2d Cir. 2005).....................................................................................................8, 9
In re Warfarin Sodium Antitrust Litig., 391 F.3d 516 (3d Cir. 2004).................................................................................................8, 12
Watkins v. Hireright, Inc., No. 13 Civ. 1432, 2016 WL 1732652 (S.D. Cal. May 2, 2016) ........................................17, 18
White v. Experian Info. Solutions, 993 F. Supp. 2d 1154 (C.D. Cal. 2014) ...................................................................................11
White v. First Am. Registry, Inc., 378 F. Supp. 2d 419 (S.D.N.Y. 2005)......................................................................................18
White v. First Am. Registry, Inc., No. 04 Civ. 1611, 2007 WL 703926 (S.D.N.Y. Mar. 7, 2007) ...............................................17
Statutes 15 U.S.C. § 1681n..........................................................................................................................16 15 U.S.C. § 1681p..........................................................................................................................14 Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. .......................................................................1 Fed. R. Civ. P. 23 ................................................................................................................... passim New York State Fair Credit Reporting Act, N.Y. Gen. Bus. Law § 380 et seq. .............................1 Other Authorities Herbert B. Newberg & Alba Conte, Newberg on Class Actions, § 11.22 (4th ed.
2002) ................................................................................................................................6, 9, 18
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INTRODUCTION Plaintiffs Eric Keels and Sandra Inman (together, “Plaintiffs”) submit this memorandum of law in support of their motion for preliminary approval of the class settlement reached by Plaintiffs and Defendant The GEO Group, Inc. (“GEO” or “Defendant”) (together with Plaintiffs, the “Parties”). The proposed settlement is fair, reasonable, and adequate, and satisfies all of the criteria for preliminary approval under applicable federal and state law. Accordingly, Plaintiffs respectfully request that the Court: (1) grant preliminary approval of the settlement on the terms set forth in the Settlement Agreement (“Settlement Agreement”), attached as Exhibit A to the Declaration of Ossai Miazad (“Miazad Decl.”)1; (2) conditionally certify the proposed settlement class, for settlement purposes only, under Federal Rule of Civil Procedure 23(b)(3); (3) appoint Outten & Golden LLP (“O&G”) as Class Counsel; (4) approve the proposed Court Authorized Notice (“Notice”), attached as Exhibit B to the Settlement Agreement, and direct its distribution; and (5) schedule a fairness hearing for final approval of the settlement. I. FACTUAL AND PROCEDURAL BACKGROUND A. Overview of Litigation On October 30, 2015, Plaintiff Keels filed his Class Action Complaint alleging, inter alia, that GEO and Accurate Background, Inc. (“Accurate”) violated the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq., and the New York State Fair Credit Reporting Act (“NY FCRA”), N.Y. Gen. Bus. Law § 380 et seq., by failing to provide Keels, and other job applicants to GEO, with a copy of their consumer reports, a statement of their rights under the FCRA, and a copy of Article 23-A of the New York Correction Law—before denying them employment. See ECF No. 1. On December 17, 2015, Plaintiff Keels filed his First Amended

1

Unless otherwise indicated, all Exhibits are attached to the Miazad Declaration and all

capitalized terms have the definitions set forth in the Settlement Agreement.

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Class Action Complaint adding Inman as a Plaintiff, and expanding the class definition to include employees in addition to applicants for employment with GEO. ECF No. 16.
On January 15, 2016, GEO and Accurate filed letters with the Court requesting premotion conferences regarding anticipated motions to dismiss, and on January 22, 2016, Plaintiffs filed responses to those letters. ECF Nos. 22-25. On February 26, 2016, the Court held a hearing on GEO’s and Accurate’s requests to move to dismiss, heard argument as to the respective merits of the motions, and set a briefing schedule for both motions to dismiss. Miazad Decl. ¶ 12; see also February 26, 2016 Minute Entry.
On February 29, 2016, GEO filed a letter with the Court requesting a pre-motion conference regarding its anticipated motion to stay the case until the resolution of two Supreme Court cases—Robins v. Spokeo, 742 F.3d 409 (9th Cir. 2014), cert. granted, 135 S. Ct. 1892 (Apr. 27, 2015), and Bouaphakeo v. Tyson Foods, Inc., 765 F.3d 791 (8th Cir. 2014), cert. granted, 135 S. Ct. 2806 (June 8, 2015). See ECF No. 29. Plaintiffs and GEO subsequently agreed to engage a private mediator to attempt to resolve their dispute before further litigation. Miazad Decl. ¶ 14. In contemplation of mediation, the Court stayed Plaintiffs’ time to respond to GEO’s pre-motion letter for a litigation stay, see March 3, 2016 Order, and GEO’s time to file its motion to dismiss, see April 11, 2016 Docket Order. Contemporaneously, GEO informed Plaintiffs that their motion to dismiss was drafted and ready to file. Miazad Decl. ¶ 15.
Accurate and Plaintiffs fully briefed Accurate’s motion to dismiss, but were able to resolve their dispute amicably after GEO and Plaintiffs settled their claims in principle. Id. ¶ 16; see also ECF No. 38. On July 19, 2016, the Court endorsed the stipulation between Plaintiffs and Accurate dismissing Plaintiffs’ claims against Accurate. ECF No. 41.
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B. Discovery and Settlement Negotiations Before their mediation, the Parties entered into a confidentiality agreement and exchanged information relevant to Plaintiffs’ claims—including client files and information relating to the size and ascertainability of the putative Class. Miazad Decl. ¶ 17. All told, Defendant produced over 600 pages of documents, which Plaintiffs reviewed. Id. ¶ 18. The Parties held multiple telephone conferences where they discussed this information, and its implication for the merits of the case. Id. ¶ 19. Plaintiffs then conducted a preliminary damages analysis for purposes of settlement negotiations. Id. ¶ 20. Before mediation, the Parties also exchanged detailed mediation briefs outlining their respective evaluations of the strengths and weaknesses of the claims at issue. Id. ¶ 21. Plaintiffs’ Counsel also conducted their own independent investigation, interviewing multiple putative Class Members. Id. ¶ 22. On April 22, 2016, the Parties participated in a full day of mediation in New York, New York, with the Honorable Diane M. Welsh, an experienced and well-respected employment, consumer and class action law mediator, and a former United States Magistrate Judge in the Eastern District of Pennsylvania. Id. ¶ 23. After concluding a full day of arms-length negotiations, the Parties reached an agreement on the material terms of a settlement. Id. ¶ 24. Over the next approximately five months, the Parties extensively negotiated the detailed Settlement Agreement to finalize topics including equitable revisions to GEO’s policies and the notice and claims process. Id. ¶ 25; Ex. A (Settlement Agreement). II. SUMMARY OF THE SETTLEMENT TERMS A. The Settlement Amount GEO has agreed to pay a maximum Settlement Amount of $900,000.00 to cover payment to Class Members, and Court-approved costs and fees including Plaintiffs’ Counsel’s attorneys’ fees and costs, the Settlement Administrator’s fees and costs, and any Court-approved Service
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Awards. Ex. A §§ I(Q), (TT). B. Equitable Revisions to GEO’s Policies Relief GEO also has agreed to significant equitable changes to its policies and business
practices above and beyond the Settlement Amount. See Ex. A. First, GEO has implemented a formal Background Check Policy to codify the procedures it uses to ensure FCRA compliance across all GEO locations nationwide. GEO’s affirmative obligations are to: (1) consolidate background check vendors (“vendors”); (2) contract with those vendors to assume the administration process for sending pre- and post- adverse action notices and engage in periodic compliance audits/reviews; (3) perform FCRA training for existing and new HR employees; (4) transfer responsibility for initiating the adverse action notice process from the facility to regional or corporate level; (5) standardize FCRA-related forms across all facilities; (6) make copies of the periodic background check reports obtained by GEO available to employees upon request and inform employees of this right; and (7) conduct periodic audits of the process. See id. § III(A)(1). In addition, GEO has agreed to revise its corporate policies and procedures manuals to include a copy of its Background Check Policy. See id. § III(A)(2). GEO also is obligated to ensure that all current and new human resources employees will be trained regarding the Background Check Policy. See id. § III(A)(3).
C. Class Members Class Members are: All persons for whom GEO obtained a Consumer Report, from October 30, 2010, through the date of the Preliminary Approval Order, as part of the GEO hiring or employee retention process, and at some point later in time either were not hired or were terminated. See id. at p.2.
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D. Releases All Class Members who do not exclude themselves from the settlement will release the
following claims:
any and all claims, causes of action, liabilities, demands, and causes of action, fixed or contingent, that were or could have been asserted by the named Plaintiffs, for themselves and as representatives of the Settlement Class, and on behalf of each member of the Settlement Class and/or his or her respective spouse, heirs, executors, administrators, representatives, agents, attorneys, partners, successors, predecessors and assigned and all those acting or purporting to act on their behalf, or any member of the Settlement Class against the Released Parties, or any of them, based upon the FCRA and FCRA State Equivalent that are the subject of this Litigation, including but not limited to the duties to provide applicants and employees notice any kind of notice under the FCRA or the FCRA State Equivalents (including but not limited to disclosure and authorization notice, preadverse action notice, adverse action notice, and any documents associated with such notices).
Id. § VII(1).
E. Allocation Formula Class Members are divided into Class A Members and Class B Members, depending on
when their claims arose. Class A Members are those who had a Consumer Report that was
completed and returned to GEO on or after October 30, 2013, through the date of the Preliminary
Approval Order. See id. § I(E). Class B Members are those who had a Consumer Report that
was completed and returned to GEO on or after October 30, 2010, and on or before October 29,
2013. See id. § I(F). Each Eligible Settlement Class Member is entitled to claim a pro rata
share of the Settlement Amount (after fees and costs are subtracted), not to exceed $200.00 per
Class A Member or $100.00 per Class B Member. Id. § III(C)(1). Any unclaimed funds will
revert to GEO. Id.
F. Attorneys’ Fees and Costs Plaintiffs will seek Court approval for up to one-third ($300,000.00) of the Settlement
Amount for their attorneys’ fees, plus their actual litigation expenses and costs. Id. § III(D).
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Pursuant to Federal Rules of Civil Procedure 23(h) and 54(d)(2), Plaintiffs will move for Court approval of their Attorneys’ Fees and Costs simultaneously with their Motion for Final Approval of the Settlement.
G. Service Awards In addition to their payment under the allocation formula, Plaintiffs will apply for Service Awards of no more than $5,000.00 each for Named Plaintiffs Keels and Inman. Id. § VIII. Plaintiffs will move for Court approval of the Service Awards simultaneously with their Motion for Final Approval of the Settlement. H. Settlement Administrator The Parties have selected as Settlement Administrator KCC LLC to provide notice to the Class Members and otherwise administer the settlement. Miazad Decl. ¶ 26. The Settlement Administrator’s costs and expenses will be paid from the Settlement Amount. See Ex. A § III(B)(2), (5). III. CLASS ACTION SETTLEMENT PROCEDURE Rule 23’s class action settlement procedure includes three distinct steps: 1. Preliminary approval of the proposed settlement after submission to the Court of a
written motion for preliminary approval; 2. Dissemination of mailed and/or published notice of settlement to all affected class
members; and 3. A final settlement approval hearing at which class members may be heard
regarding the settlement, and at which argument concerning the fairness, adequacy, and reasonableness of the settlement may be presented. See Fed. R. Civ. P. 23(e); see also Herbert B. Newberg & Alba Conte, Newberg on Class Actions (“Newberg”), §§ 11.22, et seq. (4th ed. 2002); see also Torres v. Gristede’s Operating Corp., Nos. 04 Civ. 3316, et al., 2010 WL 2572937, at *3-5 (S.D.N.Y. June 1, 2010). This process
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safeguards class members’ procedural due process rights and enables the Court to fulfill its role
as the guardian of the class’s interests.
With this motion, Plaintiffs request that the Court take the first step—granting
preliminary approval of the Settlement Agreement, conditionally certifying a settlement class
under Rule 23 of the Federal Rules of Civil Procedure for settlement purposes only, approving
the Parties’ proposed Notice, and authorizing the Settlement Administrator chosen by the Parties
to send the proposed Notice to Class Members.
The Parties respectfully submit the following proposed schedule for final resolution of
this matter for the Court’s consideration and approval:
1. Within 15 days of the Order Preliminarily Approving Settlement, Defendant’s Counsel will provide the Settlement Administrator with the list of Settlement Class Members. Ex. A § IV(B)(1).
2. Within 25 days of days of the Order Preliminarily Approving Settlement, the Settlement Administrator shall cause to be disseminated the notices by mail and by email (if available). Id. § IV(B)(2)-(3). If any Claim Form is returned as undeliverable, the Settlement Administrator will take reasonable steps to obtain the correct address of such Class Member through the National Change of Address Database and re-mail. Id. § IV(B)(3), (5).
3. Within 30 days before the close of the notice period, the Settlement Administrator will send a reminder postcard reminding Settlement Class Members of their opportunity to submit a Claim Form (by mail and by email, where available). Id. § IV(B)(6).
4. Class Members will have 60 days from the Notice Date to submit a Claim Form (the “Claims Period”). Class Members may submit a Claim Form by mail, email, fax, or on the Settlement Administrator website. Id. § IV(B)(9).
5. Class Members who wish to object or opt out must do so within 45 days from the Notice Date. Id. § I(FF)-(GG).
6. A Fairness Hearing will be held as soon as is convenient for the Court, and the Parties request that it not be scheduled for a date less than 90 days following the mailing of CAFA notices. Id. § I(X).
7. Within 14 days of the Fairness Hearing, Class Counsel shall file supporting documents and materials for Final Approval of the settlement.
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8. The Effective Date of the settlement will be 15 business days after Judgement has become final. Id. § I(S). Judgement will become final when either: (i) no appeal has been filed and 30 days have lapsed since entry of the Judgment, or (ii) if a timely appeal has been filed, the appeal is finally resolved, with no possibility of further appellate or other review. Id. § I(W).
9. Settlement Funding:
a. Within 5 days of the entry of the Order Preliminarily Approving Settlement, Defendant will pay into the Settlement Fund an Initial Contribution of $300,000.00, to be used by the Settlement Administrator to cover the costs of Notice and administration of the Settlement, Id. § III(B)(2);
b. Within 5 days of the expiration of the Claims Period, Defendant will pay into the Settlement Fund the Second Contribution of $300,000.00, Id. § III(B)(3);
c. The remaining monetary obligation of $300,000.00, the Third Contribution, will be paid into the Settlement Fund within 5 days of the Effective Date. In the event the amount of claims received: (a) does not exceed the amount of Second Contribution, Defendant does not have to pay the Third Contribution into the Settlement Fund until it receives notice, if any, from the Settlement Administrator that such contribution is needed to satisfy any claims; or (b) exceeds the amount of the Second Contribution but does not rise to the level of the Third Contribution amount, Defendant shall pay into the Settlement Fund an amount of the Third Contribution identified by the Settlement Administrator as necessary to satisfy the claims received, Id. § III(B)(4).
10. Settlement checks will be distributed by mail within 15 days of the Effective Date. Id. § III(B)(6). Settlement checks will expire 120 days after issuance. Id. § III(B)(7).
IV. PRELIMINARY APPROVAL OF THE SETTLEMENT IS APPROPRIATE.
The law favors compromise and settlement of class action suits. See Wal-Mart Stores,
Inc. v. Visa U.S.A. Inc., 396 F.3d 96, 116-17 (2d Cir. 2005) (noting the “strong judicial policy in
favor of settlements, particularly in the class action context” (quoting In re PaineWebber Ltd.
P’ships Litig., 147 F.3d 132, 138 (2d Cir. 1998))); In re Warfarin Sodium Antitrust Litig., 391
F.3d 516, 535 (3d Cir. 2004) (“[T]here is an overriding public interest in settling class action
litigation, and it should therefore be encouraged.”); see also Johnson v. Brennan, No. 10 Civ.
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4712, 2011 WL 4357376, at *12 (S.D.N.Y. Sept. 16, 2011) (“If the proposed settlement reflects a reasonable compromise over contested issues, the court should approve the settlement.”).
“Preliminary approval . . . requires only an initial evaluation of the fairness of the proposed settlement on the basis of written submissions and an informal presentation by the settling parties.” Lizondro-Garcia v. Kefi LLC, 300 F.R.D. 169, 179 (S.D.N.Y. 2014) (internal citation and quotation marks omitted); see also Berkson v. Gogo LLC, 147 F. Supp. 3d 123, 130 (E.D.N.Y. 2015) (“Preliminary approval of a proposed settlement is appropriate where it is the result of serious, informed, non-collusive (‘arm’s length’) negotiations, where there are no grounds to doubt its fairness and no other obvious deficiencies . . . and where the settlement appears to fall within the range of possible approval.” (quoting Cohen v. J.P. Morgan Chase & Co., 262 F.R.D. 153, 157 (E.D.N.Y. 2009)). To grant preliminary approval, the Court need only find that there is “probable cause to submit the [settlement] proposal to class members and hold a full-scale hearing as to its fairness.” In re Traffic Exec. Ass’n E. R.R., 627 F.2d 631, 634 (2d Cir. 1980) (internal quotation marks omitted); see Newberg § 11.25 (“[I]f the preliminary evaluation of the proposed settlement does not disclose grounds to doubt its fairness . . . and appears to fall within the range of possible approval,” the court should permit notice of the settlement to be sent to class members (quoting Manual for Complex Litigation (3d ed.) § 30.41)).
To determine “whether a class settlement is fair, a district court examines (1) the negotiations that led up to the settlement, and (2) the substantive terms of the settlement.” Berkson, 147 F. Supp. 3d at 13 (quoting In re Air Cargo Shipping Servs. Antitrust Litig., No. 06 MDL 1775, 2009 WL 3077396, *6 (E.D.N.Y. Sept. 25, 2009)). “A presumption of fairness, adequacy, and reasonableness may attach to a class settlement reached in arm’s-length negotiations between experienced, capable counsel after meaningful discovery.” Wal-Mart
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Stores, 396 F.3d at 116 (quoting Manual for Complex Litigation (3d ed.) § 30.42) (internal quotation marks omitted).
If the settlement was achieved through arm’s-length negotiations involving experienced counsel, “[a]bsent fraud or collusion, [courts] should be hesitant to substitute [their] judgment for that of the parties who negotiated the settlement.” In re EVCI Career Colls. Holding Corp. Sec. Litig., Nos. 05 Civ. 10240, et al., 2007 WL 2230177, at *4 (S.D.N.Y. July 27, 2007).
Preliminary approval is the first step in the settlement process. It simply allows notice to issue and for Class Members to object to or opt out of the settlement. After notice issues, the Court will be able to evaluate the settlement with the benefit of Class Members’ input.
A. The Settlement Is Fair, Reasonable, and Adequate. In evaluating a class action settlement, courts in the Second Circuit generally consider the nine factors set forth in City of Detroit v. Grinnell Corporation, 495 F.2d 448, 463 (2d Cir. 1974), abrogated on other grounds by Goldberger v. Integrated Res., Inc., 209 F.3d 43 (2d Cir. 2000). The Grinnell factors are: (1) the complexity, expense and likely duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining the class action through the trial; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery; and (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation. Id. Here, all of the Grinnell factors either weigh in favor of approval of the Settlement Agreement or are neutral.
1. Litigation Through Trial Would Be Complex, Costly, and Long (Grinnell Factor 1).
By reaching a settlement prior to dispositive motions or trial, Plaintiffs seek to avoid
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significant expense and delay, and instead ensure recovery for the Class Members. The FCRA is a “complex statute[.]” Galper v. JP Morgan Chase Bank, N.A., 802 F.3d 437, 444 (2d Cir. 2015). “[P]articularly in the class action context, [it] is a complex and challenging area of law.” White v. Experian Info. Solutions, 993 F. Supp. 2d 1154, 1172 (C.D. Cal. 2014); see also In re Austrian & German Bank Holocaust Litig., 80 F. Supp. 2d 164, 174 (S.D.N.Y. 2000) (“Most class actions are inherently complex and settlement avoids the costs, delays and multitude of other problems associated with them.”), aff’d sub. nom. D’Amato v. Deutsche Bank, 236 F.3d 78 (2d Cir. 2001). This case is no exception, with an estimated 11,000 individuals and claims under federal and New York law.2
Extensive discovery would be required to establish liability and damages and to support Plaintiffs’ class certification motion and Defendant’s opposition to such motion. This discovery would include further electronic and paper discovery of Defendant’s background check and hiring policies; depositions of Class Members and Defendant’s employees, such as relevant hiring managers and human resources personal; and depositions of Defendant’s corporate representatives. After completing discovery, the Parties would likely move for summary judgment on the merits of the claims. If the Court determined that fact disputes precluded summary judgment, a fact-intensive trial would be necessary. Any judgment would likely be appealed, further extending the Litigation. This settlement, on the other hand, provides significant relief to Class Members in a prompt and efficient manner. Therefore, the first Grinnell factor weighs in favor of preliminary approval.

2

The current class list consists of approbatively 11,000 individuals. GEO is in the process

of obtaining the final class list from Accurate, which is expected to be lower than this number.

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2. The Court Cannot Assess the Reaction of the Class Until After Notice Issues (Grinnell Factor 2).
Because Class Members have not been notified of the settlement at this stage, the Court will be in a better position to more fully analyze this factor after notice issues and Class Members have had an opportunity to opt out or object to the settlement. Thus, this factor is neutral and does not preclude the Court from granting preliminary approval.
3. Discovery Has Advanced Far Enough to Allow the Parties to Resolve the Case Responsibly (Grinnell Factor 3).
The Parties have completed enough discovery to recommend settlement. The proper question is “whether counsel had an adequate appreciation of the merits of the case before negotiating.” In re Warfarin, 391 F.3d at 537 (quoting In re Cendant Corp. Litig., 264 F.3d 201, 235 (3d Cir. 2001)) (internal quotation marks omitted); see also Karic v. Major Automotive Cos., Inc., No. 09 Civ. 5708, 2016 WL 1745037, at *6 (E.D.N.Y. Apr. 27, 2016). “[T]he pretrial negotiations and discovery must be sufficiently adversarial that they are not designed to justify a settlement;” rather, they must be “an aggressive effort to ferret out facts helpful to the prosecution of the suit.” In re Austrian, 80 F. Supp. 2d at 176 (quoting Martens v. Smith Barney, Inc., 181 F.R.D. 243, 263 (S.D.N.Y. 1998)) (internal quotation marks omitted).
The Parties’ discovery here meets this standard. In the months leading up to mediation, the Parties engaged in informal discovery. Defendant provided Plaintiffs information relevant to Plaintiffs’ claims including client files and information relating to the size and ascertainability of the putative Class. Miazad Decl. ¶ 17. All told, Defendant produced over 600 pages of documents, which Plaintiffs reviewed. Id. ¶ 18. The Parties also had multiple telephone conferences to discuss the information produced by Defendant, and its potential impact on the claims at issue. Id. ¶ 19. Plaintiffs’ Counsel conducted their own independent investigation, interviewing multiple putative Class Members involved in the hiring process. Id. ¶ 20. Before
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the mediation, Plaintiffs’ Counsel crafted a damages model based on information provided by Defendant and their own evaluation of the merits. Id. ¶ 21. Accordingly, the third Grinnell factor favors preliminary approval. See, e.g., Katz v. ABP Corp., No. 12 Civ. 4173, 2014 WL 4966052, at *1 (E.D.N.Y. Oct. 3, 2014) (granting preliminary approval of FCRA settlement based on pre-mediation discovery and arms-length negotiations); see also Ballinger v. Advance Magazine Publishers, Inc., No. 13 Civ. 4036, 2014 WL 7495092, at *2 (S.D.N.Y. Dec. 29, 2014); see also Morris v. Affinity Health Plan, Inc., 859 F. Supp. 2d 611, 620 (S.D.N.Y. 2012) (collecting cases) (granting preliminary approval even where no formal discovery had occurred because the parties nonetheless had “ample information from which to weigh the strengths and weaknesses of their claims”).
4. Plaintiffs Would Face Risk If the Case Proceeded (Grinnell Factors 4 and 5).
Although Plaintiffs believe their case is strong, it is subject to risk. “[R]isks are inherent in litigation.” Sewell v. Bovis Lead Lease, Inc., No. 09 Civ. 6548, 2012 WL 1320124, at *8 (S.D.N.Y. Apr. 16, 2012). Indeed, “[i]f settlement has any purpose at all, it is to avoid a trial on the merits because of the uncertainty of the outcome.” In re Ira Haupt & Co., 304 F. Supp. 917, 934 (S.D.N.Y. 1969). In weighing the risks of establishing liability and damages, the court “must only weigh the likelihood of success by the plaintiff class against the relief offered by the settlement.” Sykes v. Mel Harris & Assocs., No. 09 Civ. 8486, 2016 WL 3030156, at *13 (S.D.N.Y. May 24, 2016) (quoting In re Austrian, 80 F. Supp. 2d at 177).
Here, Plaintiffs first would have had to survive a motion to dismiss. In its pre-motion letter to the Court, Defendant stated that it intended to move to dismiss Inman’s claims as timebarred (among other arguments). See ECF No. 23 at 3. Should Defendant have succeeded, two categories of individuals provided recovery through this settlement would have had their claims
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barred—employees who were fired after a background check, and employees and job applicants

who only had timely claims if the longer five-year statute of limitation applied (three entire years

of claims). See 15 U.S.C. § 1681p. The Supreme Court also recently issued a new decision on

standing in the FCRA context, Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), which might have

subjected Plaintiffs to further motion to dismiss briefing. Although Plaintiffs are confident that

they would have survived both bases for motions to dismiss,3 the putative Class nonetheless

faced risk given that the Second Circuit has not yet expressly ruled on either issue.

If Plaintiffs’ claims survived, they would have faced risks as to class certification and

summary judgment after a lengthy discovery process. If at summary judgement they lost on the

issue of willfulness, recovery of statutory damages would have been barred. Surviving those

motions, a trial on the merits would involve significant risk as to both liability and damages.

While Plaintiffs believe they could ultimately defeat Defendant’s defenses and establish liability,

this would require significant factual development and favorable outcomes at trial, and on

appeal, all of which is inherently uncertain and lengthy. The proposed settlement alleviates

uncertainty. This factor weighs in favor of preliminary approval.

5. Maintaining a Class Through Trial Presents Risk (Grinnell Factor 6).

The risk of obtaining class certification and maintaining it through trial also is

present. Defendant would likely contest class certification resulting in extensive discovery and

3

Post-Spokeo, multiple Courts have held that Plaintiffs have standing under the FCRA

and, specifically, for Section 1681b(b)(3) claims. See, e.g., Thomas v. FTS USA, LLC, No. 13

Civ. 825, 2016 WL 3653878, at *12 (E.D. Va. June 30, 2016) ; see also Meza v. Verizon

Communications, Inc., No. 16 Civ. 739, 2016 WL 4721475, at *3 (E.D. Cal. Sep.t 9, 2016)

(adopting Thomas’s reasoning as to 1681b(b)(2) claims); Chapman v. Dowman, Heintz, Boscia

& Vician, P.C., No. 15 Civ. 120, 2016 WL 3247872, at *1 & n.1 (N.D. Ind. June 13, 2016)

(granting final approval of FDCPA settlement and finding “Spokeo largely reiterated long-

standing principles”). To date, two Circuits have expressly held that Spokeo does not change the

existing law of standing. In re Nickelodeon Consumer Privacy Litig., 857 F.3d 262, 273 (3d Cir.

2016); Church v. Accretive Health, Inc., __ F. App’x __, No. 15-15708, 2016 WL 3611543, at

*2-3 (11th Cir. July 6, 2016) (per curiam).

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briefing. If the Court were to grant class certification, Defendant would likely challenge that determination, requiring additional briefing. Defendant may have argued different defenses for certain Class Members based on their particular factual circumstances. Although FCRA cases are certified, there is nonetheless a legitimate risk that the Court would conclude that individualized factual inquiries would preclude class treatment. See, e.g., Delmoral v. Credit Prot. Ass’n, LP, No. 13 Civ. 242, 2015 WL 5793311, at *6 (E.D.N.Y. Sept. 30, 2015) (denying class certification in FDCPA case where “each proposed class member’s claim would require an individualized determination of exactly when he or she received the” relevant communications). Moreover, Defendant’s position is that GEO’s records do not uniformly contain information regarding whether an adverse employment decision was made on the basis of a background check, or on other grounds not implicated by the FCRA and, thus, the class list is necessarily over-inclusive. To address this potential, the parties have employed a claims process requiring individuals to state that they “believe in good faith that GEO’s adverse employment decision was related to information in [their] Consumer Report, and [they] did not receive timely notices under the Fair Credit Reporting Act” to address the potential that the class list is over inclusive. Ex. A (Settlement Agreement) at Ex. C (Claim Form). Settlement eliminates risk, expense, and delay. Accordingly, this factor favors preliminary approval.
6. Defendant’s Ability to Withstand a Greater Judgment Is Not Determinative (Grinnell Factor 7).
A “defendant[’s] ability to withstand a greater judgment, standing alone, does not suggest that the settlement is unfair.” In re Austrian, 80 F. Supp. 2d at 178 n.9. Here, the settlement eliminates the risk of collection by requiring Defendant to pay the full Settlement Amount owed within five days after the Effective Date, and significant amounts before then. See Ex. A § III(B). Accordingly, this factor is neutral.
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7. The Settlement Fund Is Substantial, Even in Light of the Best Possible Recovery and Attendant Litigation Risks (Grinnell Factors 8 and 9).
The $900,000 Settlement Amount represents substantial value given the risks of litigation, even though the recovery could be greater if Plaintiffs survived a motion to dismiss, summary judgment, and prevailed and maintained a class through trial and on appeal. The determination of whether a settlement is reasonable “is not susceptible of a mathematical equation yielding a particularized sum.” In re Austrian, 80 F. Supp. 2d at 178 (quoting In re Michael Milken & Assocs. Sec. Litig., 150 F.R.D. 57, 66 (S.D.N.Y. 1993)); see also Ballinger, 2014 WL 7495092, at *3 (“The inquiry . . . is to see whether the settlement falls below the lowest point in the range of reasonableness.”) (internal quotation marks and citation omitted). “Instead, there is a range of reasonableness with respect to a settlement—a range which recognizes the uncertainties of law and fact in any particular case and the concomitant risks and costs necessarily inherent in taking any litigation to completion.” Frank v. Eastman Kodak Co, 228 F.R.D. 174, 186 (W.D.N.Y. 2005) (quoting Newman v. Stein, 464 F.2d 689, 693 (2d Cir. 1972)) (internal quotation marks omitted). “[T]here is no reason, at least in theory, why a satisfactory settlement could not amount to a hundredth or even a thousandth part of a single percent of the potential recovery.” Grinnell, 495 F.2d at 455 n.2.
Here, the settlement provides more than “a fraction of the potential recovery.” Id. at 455. If (and only if) willfulness is proven, Class Members’ best outcome under the FCRA would be damages between $100 and $1,000 per claim. 15 U.S.C. § 1681n. Through this settlement, Class Members will receive up to $200 if they fall within the two-year statute of limitations period and $100 if they fall within the five-year statute of limitations (i.e. years 3-5).4 These

4

In the unlikely event that the amount to be distributed will be exceeded if claims are paid

in full, then the recoveries will be proportionately reduced: two-thirds of that amount will be

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potential recoveries are similar to, and in some cases well-exceed, the range of acceptable recoveries approved by Courts in FCRA settlements. White v. First Am. Registry, Inc., No. 04 Civ. 1611, 2007 WL 703926, at *2 (S.D.N.Y. Mar. 7, 2007) (finally approving payments up to $100 for class members who submit claims with pro rata reduction if total claims exceeds available balance after settlement expenses including claims administration and attorneys’ fees and costs deducted); Domonoske v. Bank of Am., N.A., 790 F. Supp. 2d 466, 470 (W.D. Va. 2011) (finally approving proportional payments up to $100, but no less than $2, for class members who submit claim forms).5
When a settlement assures immediate payment of substantial amounts to class members, “even if it means sacrificing ‘speculative payment of a hypothetically larger amount years down the road,’” settlement is reasonable under this factor. Gilliam v. Addicts Rehab. Ctr. Fund, No. 05 Civ. 3452, 2008 WL 782596, at *5 (S.D.N.Y. Mar. 24, 2008) (citation omitted).
Beyond the cash payment, Plaintiffs have achieved significant equitable revisions aimed at ensuring that job applicants and employees will be provided with notification of their FCRA rights before an adverse action is taken—the very issue of this litigation. This includes consolidating background check vendors, having the vendors send required notices, centralizing the process, training employees on the process, and auditing the process. GEO’s policies also will be included in its corporate policies and procedures manuals, helping inform employees of

allocated pro rata to Class A Claims and one-third will be allocated pro rata to Class B claims.

See Ex. A § III(C)(2).

5

See also Watkins v. Hireright, Inc., No. 13 Civ. 1432, 2016 WL 1732652, at *7 (S.D. Cal.

May 2, 2016) (preliminarily approving settlement where cap to recovery was $200, but parties

estimated each class member would receive approximately $58.00); Manuel v. Wells Fargo

Bank, Nat’l Ass’n, No. 14 Civ. 238, 2016 WL 1070819, at *2 (E.D. Va. Mar. 15, 2016) (finally

approving settlement where class members would receive either $35 or $75 dollars); Syed v. M-I

LLC, No. 14 Civ. 742, 2016 WL 310135, at *8 (E.D. Cal. Jan. 26, 2016) (finally approving

settlement where class members would receive approximately $16).

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their FCRA rights (one of the central purposes of Section 1681b(b)(3)). Significantly, the settlement also provides employees with the right to request copies of their background check reports even if no adverse action is taken. This provides employees with a free opportunity to review their credit and criminal history and address any issues presented (and is otherwise not a right provided by the FCRA). The equitable revisions are all the more significant given that the FCRA does not provide for injunctive relief and these revisions could not have been achieved absent this settlement. See White v. First Am. Registry, Inc., 378 F. Supp. 2d 419, 424 (S.D.N.Y. 2005) (holding injunctive and declaratory relief unavailable to private parties under FCRA); cf. Watkins v. Hireright, Inc., No. 13 Civ. 1432, 2016 WL 1732652, at *7 (S.D. Cal. May 2, 2016) (including equitable relief as benefit when weighing fairness of FCRA settlement).
Weighing the benefits of the settlement against the available evidence and the risks associated with proceeding in the litigation, the Settlement Amount is reasonable. V. CONDITIONAL CERTIFICATION OF THE CLASS IS APPROPRIATE.
For settlement purposes, Plaintiffs seek to certify a class under Federal Rule of Civil Procedure 23(e). In the context of settlement and for purposes of settlement, the settlement class meets all of the requirements for class certification, and Defendants do not oppose certification for settlement purposes only. Cnty. of Suffolk v. Long Island Lighting Co., 710 F. Supp. 1422, 1424 (E.D.N.Y. 1989) (“It is appropriate for the parties to a class action suit to negotiate a proposed settlement of the action prior to certification of the class.”), aff’d in part, rev’d in part on other grounds, 907 F.2d 1295 (2d Cir. 1990); Newberg § 11.27 (“When the court has not yet entered a formal order determining that the action may be maintained as a class action, the parties may stipulate that it be maintained as a class action for the purpose of settlement only.”).
Settlement class certification and appointment of class counsel have several practical purposes, including avoiding costs of litigating class status while facilitating a global settlement,
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ensuring notification of the terms of settlement, and setting the time for the final approval hearing. See In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 790-92 (3d Cir. 1995) (noting practical purposes of provisionally certifying settlement class).
Under Rule 23, a class action may be maintained if all of the prongs of Rule 23(a), as well as one of the prongs of Rule 23(b), are met. Rule 23(a) requires that:
(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the
claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of
the class. Fed. R. Civ. P. 23(a). Rule 23(b)(3) requires the court to find that:
[Q]uestions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Id. at (b)(3). A. Numerosity “[N]umerosity is presumed at a level of 40 members.” Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995) (citation omitted). Here, the proposed Class is comprised of approximately 11,000 job applicants and employees, making joinder impracticable. See Fed. R. Civ. P. 23(a)(1); Robidoux v. Celani, 987 F.2d 931, 936 (2d Cir. 1993). B. Commonality The proposed class also satisfies the commonality requirement, the purpose of which is to test “whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.” Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 157 n.13 (1982). Here, Plaintiffs and Class Members all share the common contentions that they denied
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employment without being provided pre-adverse action notice packets (i.e. consumer reports and statements of FCRA rights). These common factual and legal questions satisfy commonality for settlement purposes. See Thomas v. FTS USA, LLC, 312 F.R.D. 407, 417-18 (E.D. Va. 2016) (finding commonality when pre-adverse action notices were never sent); Manuel v. Wells Fargo Bank, Nat’l Ass’n, No. 14 Civ. 238, 2015 WL 4994549, at *10-12 (E.D. Va. Aug. 19, 2015) (substantively same). Plaintiffs also allege that Defendant’s violations were willful, and courts routinely find that the question of willfulness is a common question that establishes commonality. Thomas, 312 F.R.D. at 417; Manuel, 2015 WL 4994549, at *10-12; Katz, 2014 WL 4966052, at *2 (for FCRA settlement purposes).
C. Typicality Rule 23 requires that the claims of the representative party be typical of the claims of the class. “Like the commonality requirement, typicality does not require the representative party’s claims to be identical to those of all class members.” Frank, 228 F.R.D. at 182. Typicality is often satisfied “when each class member’s claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant’s liability.” Marisol A. v. Giuliani, 126 F.3d 372, 376 (2d Cir. 1997) (citation omitted). Here, like the putative Class, Keels was a job applicant denied employment because of his background check without having been provided pre-adverse action notice packets. See ECF No. 16 (First Amended Complaint) ¶¶ 45-49. Also like the putative Class, Inman was an employee denied employment because of her background check without having been provided pre-adverse action notice packets. See id. ¶¶ 64-68. Typicality is met because Plaintiffs were “subjected to the same procedures as all putative class members and it is those procedures that are challenged.” Manuel, 2015 WL 4994549, at *14; see also Thomas, 312 F.R.D. at 419 (“[L]ike every other class member, Thomas did not receive any pre-adverse action materials[.]”).
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D. Adequacy of the Named Plaintiffs and Their Counsel Rule 23(a)(4) requires that “the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). The adequacy requirement exists to ensure that the named representatives will “have an interest in vigorously pursuing the claims of the class, and . . . have no interests antagonistic to the interests of other class members.” Denney v. Deutsche Bank AG, 443 F.3d 253, 268 (2d Cir. 2006). “[O]nly a conflict that goes to the very subject matter of the litigation will defeat a party’s claim of representative status.” Dziennik v. Sealift, Inc., No. 05 Civ. 4659, 2007 WL 1580080, at *6 (E.D.N.Y. May 29, 2007). Plaintiffs do not have interests that are antagonistic to or at odds with the Class Members’ interests. See Puglisi v. TD Bank, N.A., No. 13 Civ. 637, 2015 WL 4608655, at *1 (E.D.N.Y. July 30, 2015) (adequacy satisfied where, inter alia, there was no evidence that named plaintiffs’ and class members’ interests were at odds). Plaintiffs have also selected Counsel capable of adequately representing the class’s interests. See, e.g., Houser v. Pritzker, 28 F. Supp. 3d 222, 248 (S.D.N.Y. 2014) (finding O&G and non-profit partners “bring to the case a wealth of class action litigation experience” and were adequate to represent approximately half-million person Black and Latino job applicant class in background check litigation); Ex. B (July 30, 2015 Hr’g Tr. for Puglisi v. TD Bank, N.A., No. 13 Civ. 637 (E.D.N.Y.)) at 11-12 (lawyering by plaintiffs’ counsel—including O&G—was “excellent” and noting “the high level of service that was provided to the class”); Beckman v. Keybank, N.A., 293 F.R.D. 467, 477 (S.D.N.Y. 2013) (attorneys at O&G “are experienced employment lawyers with good reputations among the employment law bar”); see also Miazad Decl. ¶¶ 4-10. Thus, for the purposes of settlement, the adequacy requirement is satisfied.
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E. Certification Is Proper Under Rule 23(b)(3). Rule 23(b)(3) requires that the common questions of law or fact “predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). This inquiry examines “whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Tyson Foods Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1045 (2016) (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997)). For the purposes of settlement, these requirements are met in this case.
1. Common Questions Predominate The predominance requirement is more demanding than the Rule 23(a) commonality inquiry and “tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” In re Am. Intern. Grp., Inc. Sec. Litig., 689 F.3d 229, 239 (2d Cir. 2012) (internal quotation marks and citations omitted). To establish predominance, Plaintiffs must demonstrate that “the issues in the class action that are subject to generalized proof, and thus applicable to the class as a whole, . . . predominate over those issues that are subject only to individualized proof.” Cordes & Co. Fin. Servs., Inc. v. A.G. Edwards & Sons, Inc., 502 F.3d 91, 107-08 (2d Cir. 2007) (internal quotation omitted). The essential inquiry is whether “liability can be determined on a class-wide basis, even when there are some individualized damage issues.” In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 139 (2d Cir. 2001), abrogated on other grounds by Miles v. Merrill Lynch & Co., Inc. (In re Initial Pub. Offering Sec. Litig.), 471 F.3d 24 (2d Cir. 2006); see also Roach v. T.L. Cannon Corp., 778 F.3d 401, 405 (2d Cir. 2015) (individualized damages are merely a factor that courts “consider in deciding whether issues susceptible to generalized proof outweigh individual issues[,]” not an absolute bar to class certification (internal quotation marks and citation omitted)). Where plaintiffs are
22

Case 1:15-cv-06261-CBA-SMG Document 49 Filed 10/05/16 Page 30 of 33 PageID #: 287
“unified by a common legal theory . . . and by common facts[,]” the predominance requirement is satisfied. McBean v. City of N.Y., 228 F.R.D. 487, 502 (S.D.N.Y. 2005).
Here, Plaintiffs’ common contentions—that Defendants have uniformly failed to provide job applicants and employees with pre-adverse action notice packets—predominate over any issues affecting only individual Class Members. See, e.g., Thomas, 312 F.R.D. at 425; Manuel, 2015 WL 499549, at *17 (also noting that “[n]o individualized proof would be necessary to determine the issue of willfulness”); Katz, 2014 WL 4966052, at *2 (citing Engel v. Scully & Scully, Inc., 279 F.R.D. 117, 130 (S.D.N.Y. 2011) (finding predominance when parties dispute defendant’s business practice and complaint sought statutory, not individualized, damages)).
2. A Class Action Is a Superior Mechanism. The second part of the Rule 23(b)(3) analysis examines whether “the class action device [is] superior to other methods available for a fair and efficient adjudication of the controversy.” Green v. Wolf Corp., 406 F.2d 291, 301 (2d Cir. 1968). The superiority analysis considers four factors: (1) individual interest of class members in controlling prosecution of the action; (2) the extent of similar, prior litigation commenced by members of the class; (3) the desirability of concentrating the litigation in a particular forum; and (4) the difficulties of managing the class action. Fed. R. Civ. P. 23(b)(3). Here, potential recovery for Class Members is comparatively modest—even if Class Members were to recover full statutory damages. See, e.g., Thomas, 312 F.R.D. at 425 (in FCRA cases, “potential class members’ claims for statutory damages are small when considered in comparison to the effort it would take to assert them in court”); Katz, 2014 WL 4966052, at *3 (class adjudication superior “due to the low damages incentive for individual litigation”). Employing the class device to concentrate litigation in this Court will achieve economies of scale, conserve the resources of the judicial system, and avoid the waste and delay of repetitive proceedings and inconsistent adjudications of similar issues and claims. See, e.g.,
23

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Thomas, 312 F.R.D. at 426; Manuel, 2015 WL 499549, at *18. Moreover, “many plaintiffs will not be aware that their rights were violated because of the technical nature of the FCRA and thus would not be able to bring a suit at all” without this settlement. Thomas, 312 F.R.D. at 425 -26.6 VI. PLAINTIFFS’ COUNSEL SHOULD BE APPOINTED AS CLASS COUNSEL.
Rule 23(g), which governs the standards and framework for appointing class counsel for a certified class, sets forth four criteria the district court must consider in evaluating the adequacy of proposed counsel: (1) “the work counsel has done in identifying or investigating potential claims in the action;” (2) “counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action;” (3) “counsel’s knowledge of the applicable law;” and (4) “the resources that counsel will commit to representing the class.” Fed. R. Civ. P. 23(g)(1)(A). The Court may also “consider any other matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class[.]” Fed. R. Civ. P. 23(g)(1)(B). The Advisory Committee has noted that “[n]o single factor should necessarily be determinative in a given case.” Fed. R. Civ. P. 23(g) advisory committee’s note.
Plaintiffs’ Counsel satisfy these criteria. They have done substantial work identifying, investigating, negotiating, and settling Plaintiffs’ and Class Members’ claims. Miazad Decl. ¶¶ 11-25. Plaintiffs’ Counsel has substantial experience prosecuting and settling employment class actions, including background check cases. Miazad Decl. ¶¶ 6-7, 10. Further, courts have repeatedly found Plaintiffs’ Counsel to be adequate class counsel. See supra Argument, § V(D); Miazad Decl. ¶¶ 6-7, 10.

6

“Manageability” need not be considered in deciding whether to certify a class for

settlement purposes only, as the litigation would not proceed on the basis of the certified

settlement class if settlement is unsuccessful. Amchem, 521 U.S. at 620 (“Confronted with a

request for settlement-only class certification, a district court need not inquire whether the case,

if tried, would present intractable management problems.”).

24

Case 1:15-cv-06261-CBA-SMG Document 49 Filed 10/05/16 Page 32 of 33 PageID #: 289
VII. THE NOTICE AND AWARD DISTRIBUTION PROCESS ARE APPROPRIATE. The Notice fully complies with due process and Rule 23(c)(2)(B), which requires: the best notice that is practicable under the circumstances....The notice must clearly and concisely state in plain, easily understood language: (i) the nature of the action; (ii) the definition of the class certified; (iii) the class claims, issues, or defenses; (iv) that a class member may enter an appearance through an attorney if the member so desires; (v) that the court will exclude from the class any member who requests exclusion; (vi) the time and manner for requesting exclusion; and (vii) the binding effect of a class judgment on members under Rule 23(c)(3). The Notice satisfies these requirements. It is written in plain English and is organized
and formatted to be as clear as possible. It is based on the model notice forms provided by the Federal Judicial Center (“FJC”) on its website (www.fjc.gov). See Reyes v. Altamarea Grp., LLC, No. 10 Civ. 6451, 2010 WL 5508296, at *2 (S.D.N.Y. Dec. 22, 2010) (approving notice based on FJC model). The Notice describes the settlement’s terms, informs Class Members about the allocation of fees and costs, and provides the date, time, and place of the final approval hearing and Class Members’ ability to exclude themselves. See Ex. A (Settlement Agreement) at Ex. B (Class Notice). The Settlement Agreement provides that the Settlement Administrator will mail and email (where available) Court-approved Notices and Claim Forms to all Class Members within 20 days of the entry of the Preliminary Approval Order. Id. § IV(B)(2)-(3). The Settlement Administrator will take reasonable steps to obtain correct addresses of any Class Member whose Claim Form is returned as undeliverable and will attempt a re-mailing.
CONCLUSION For these reasons, Plaintiffs respectfully request that the Court grant the Motion.
25

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Dated: October 5, 2016 New York, New York

Respectfully submitted,
/s/ Ossai Miazad OUTTEN & GOLDEN LLP Adam T. Klein Ossai Miazad Lewis M. Steel Christopher M. McNerney 685 Third Ave, 25th Floor New York, New York 10017 Tel.: (212) 245-1000
Attorneys for Plaintiffs and the Putative Class

26

 
 Case: 1:15-cv-6261 As of: 10/08/2017 01:34 PM EDT 1 of 7
ACO
U.S. District Court Eastern District of New York (Brooklyn) CIVIL DOCKET FOR CASE #: 1:15−cv−06261−CBA−SMG

Keels v. The GEO Group, Inc. et al Assigned to: Judge Carol Bagley Amon Referred to: Chief Mag. Judge Steven M. Gold Cause: 15:1681 Fair Credit Reporting Act
Plaintiff
Eric Keels individually and on behalf of all others similarly situated

Date Filed: 10/30/2015 Jury Demand: Plaintiff Nature of Suit: 890 Other Statutory Actions Jurisdiction: Federal Question
represented by Adam Todd Klein Outten & Golden LLP 685 Third Avenue 25th floor New York, NY 10017 212−245−1000 Fax: 212−977−4005 Email: atk@outtengolden.com ATTORNEY TO BE NOTICED

Christopher McNerney Outten & Golden LLP 685 Third Avenue 25th floor New York, NY 10017 212−245−1000 Fax: 646−509−2060 Email: cmcnerney@outtengolden.com ATTORNEY TO BE NOTICED

Lewis M. Steel Outten & Golden LLP 685 Third Avenue 25th floor New York, NY 10017 212−245−1000 Fax: 646−509−2060 Email: ls@outtengolden.com ATTORNEY TO BE NOTICED

Ossai Miazad Outten & Golden LLP 60 East 42nd Street 25th floor New York, NY 10017 212−245−1000 Fax: 646−509−2060 Email: omiazad@outtengolden.com ATTORNEY TO BE NOTICED

Plaintiff Sandra Inman

represented by Adam Todd Klein (See above for address) ATTORNEY TO BE NOTICED

Lewis M. Steel (See above for address) ATTORNEY TO BE NOTICED

Ossai Miazad (See above for address)

Case: 1:15-cv-6261 As of: 10/08/2017 01:34 PM EDT 2 of 7 ATTORNEY TO BE NOTICED

V. Defendant The GEO Group, Inc.
Defendant Accurate Background, Inc. TERMINATED: 07/20/2016

represented by Anne E. Rollins Reed Smith LLP 1717 Arch Street, Suite 3100 Three Logan Square Philadelphia, PA 19103 215−851−8100 Fax: 215−851−1420 PRO HAC VICE ATTORNEY TO BE NOTICED
Carolyn P. Short Reed Smith LLP 3 Logan Square 1717 Arch Street Suite 3100 Philadelphia, PA 19103 215−851−8242 Fax: 215−851−1420 Email: cshort@reedsmith.com PRO HAC VICE ATTORNEY TO BE NOTICED
Evan K. Farber Reed Smith LLP 599 Lexington Ave New York, NY 10022 212−521−5409 Fax: 212−521−5450 Email: efarber@reedsmith.com ATTORNEY TO BE NOTICED
Michael O'Neil Reed Smith LLP 10 South Wacker Drive Chicago, IL 60606 312−207−2879 Fax: 312−207−6400 Email: michael.oneil@reedsmith.com PRO HAC VICE ATTORNEY TO BE NOTICED
Shannon E. McClure Reed Smith LLP 1717 Arch Street, Suite 3100 Three Logan Square Philadelphia, PA 19103 215−851−8100 Fax: 215−851−1420 Email: smcclure@reedsmith.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Pamela Q. Devata Seyfarth Shaw 131 S Dearborn Street Suite 2400 Chicago, IL 60603

Case: 1:15-cv-6261 As of: 10/08/2017 01:34 PM EDT 3 of 7
312−460−5882 Fax: 312−460−7882 Email: pdevata@seyfarth.com ATTORNEY TO BE NOTICED
Robert Tadeusz Szyba Seyfarth Shaw LLP 620 Eighth Avenue New York, NY 10018 212−218−3351 Fax: 917−344−1174 Email: rszyba@seyfarth.com ATTORNEY TO BE NOTICED

Date Filed 10/30/2015
10/30/2015
10/30/2015 11/02/2015
11/02/2015 11/03/2015 11/06/2015 11/16/2015 11/23/2015 11/23/2015 11/24/2015 11/30/2015

# Docket Text
1 COMPLAINT against All Defendants filing fee $ 400, receipt number 0207−8137471 Was the Disclosure Statement on Civil Cover Sheet completed −NO,, filed by Eric Keels. (Attachments: # 1 Civil Cover Sheet, # 2 Proposed Summons, # 3 Proposed Summons) (Miazad, Ossai) (Entered: 10/30/2015)
Case assigned to Chief Judge Carol Bagley Amon and Chief Mag. Judge Steven M. Gold. Please download and review the Individual Practices of the assigned Judges, located on our website. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. (Bowens, Priscilla) (Entered: 11/02/2015)
2 Summons Issued as to All Defendants. (Attachments: # 1 Accurate summons) (Bowens, Priscilla) (Entered: 11/02/2015)
3 In accordance with Rule 73 of the Federal Rules of Civil Procedure and Local Rule 73.1, the parties are notified that if all parties consent a United States magistrate judge of this court is available to conduct all proceedings in this civil action including a (jury or nonjury) trial and to order the entry of a final judgment. Attached to the Notice is a blank copy of the consent form that should be filled out, signed and filed electronically only if all parties wish to consent. The form may also be accessed at the following link:http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO085.pdf. You may withhold your consent without adverse substantive consequences. Do NOT return or file the consent unless all parties have signed the consent. (Bowens, Priscilla) (Entered: 11/02/2015)
4 This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made, if any. (Bowens, Priscilla) (Entered: 11/02/2015)
5 NOTICE of Appearance by Christopher McNerney on behalf of Eric Keels (aty to be noticed) (McNerney, Christopher) (Entered: 11/03/2015)
6 SUMMONS Returned Executed by Eric Keels. The GEO Group, Inc. served on 11/4/2015, answer due 11/25/2015. (Miazad, Ossai) (Entered: 11/06/2015)
7 SUMMONS Returned Executed by Eric Keels. Accurate Background, Inc. served on 11/3/2015, answer due 11/24/2015. (Miazad, Ossai) (Entered: 11/16/2015)
8 NOTICE of Appearance by Evan K. Farber on behalf of The GEO Group, Inc. (aty to be noticed) (Farber, Evan) (Entered: 11/23/2015)
9 Consent MOTION for Extension of Time to File Answer re 1 Complaint, By Stipulation by The GEO Group, Inc.. (Farber, Evan) (Entered: 11/23/2015)
ORDER granting 9 Motion for Extension of Time to Answer The GEO Group, Inc. answer due 12/18/2015. So Ordered by Chief Magistrate Judge Steven M. Gold on 11/24/2015. (Vasquez, Lea) (Entered: 11/24/2015)
10 MOTION for Leave to Appear Pro Hac Vice by Michael O'Neil Filing fee $ 150, receipt number 0207−8202543. by The GEO Group, Inc.. (O'Neil, Michael) (Entered: 11/30/2015)

Case: 1:15-cv-6261 As of: 10/08/2017 01:34 PM EDT 4 of 7

11/30/2015 11/30/2015 11/30/2015 12/01/2015
12/04/2015 12/07/2015 12/07/2015
12/17/2015 12/18/2015 12/23/2015 12/27/2015 12/29/2015 12/30/2015 01/08/2016 01/15/2016 01/15/2016 01/15/2016

11 Notice of MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0207−8202566. by The GEO Group, Inc.. (Short, Carolyn) (Entered: 11/30/2015)
12 MOTION for Leave to Appear Pro Hac Vice for The Geo Group with Certificate of Service Filing fee $ 150, receipt number 0207−8203215. by The GEO Group, Inc.. (McClure, Shannon) (Entered: 11/30/2015)
13 MOTION for Leave to Appear Pro Hac Vice of Anne E. Rollins for The Geo Group with Certificate of Service Filing fee $ 150, receipt number 0207−8203527. by The GEO Group, Inc.. (Rollins, Anne) (Entered: 11/30/2015)
ORDER granting 10 Motion for Leave for Michael O'Neil; granting 11 Motion for Leave for Carolyn P. Short; granting 12 Motion for Leave for Shannon E. McClure; and, granting 13 Motion for Leave for Anne E. Rollins to Appear Pro Hac Vice for The Geo Group. So Ordered by Chief Magistrate Judge Steven M. Gold on 12/1/2015. (Vasquez, Lea) (Entered: 12/01/2015)
14 MOTION for Extension of Time to File Answer re 1 Complaint, to be extended through and including December 18, 2015 by Stipulation by Accurate Background, Inc.. (Szyba, Robert) (Entered: 12/04/2015)
ORDER granting 14 Motion for Extension of Time to Answer Accurate Background, Inc. answer due 12/18/2015. So Ordered by Chief Magistrate Judge Steven M. Gold on 12/7/2015. (Vasquez, Lea) (Entered: 12/07/2015)
15 SCHEDULING ORDER: An in−person initial conference will be held at 11:00 a.m. on January 20, 2016 before the undersigned in Courtroom 13−D South. Counsel are directed to refer to and comply with the attached Order. So Ordered by Chief Magistrate Judge Steven M. Gold on 12/7/2015. (Attachments: # 1 Chambers Individual Rules) (Vasquez, Lea) Modified on 12/7/2015 to correct date of conference to January 20th.(Vasquez, Lea). (Entered: 12/07/2015)
16 AMENDED COMPLAINT against Accurate Background, Inc., The GEO Group, Inc., filed by Eric Keels, Sandra Inman. (Miazad, Ossai) (Entered: 12/17/2015)
17 NOTICE of Appearance by Adam T. Klein on behalf of Sandra Inman, Eric Keels (aty to be noticed) (Klein, Adam) (Entered: 12/18/2015)
18 Consent MOTION for Extension of Time to File Answer re 16 Amended Complaint By Stipulation by The GEO Group, Inc.. (Farber, Evan) (Entered: 12/23/2015)
ORDER granting 18 Motion for Extension of Time to Answer The GEO Group, Inc. answer due 1/15/2016. So Ordered by Chief Magistrate Judge Steven M. Gold on 12/27/2015. (Vasquez, Lea) (Entered: 12/27/2015)
19 MOTION for Extension of Time to File Answer re 1 Complaint, to be extended through and including January 15, 2015 by Stipulation by Accurate Background, Inc.. (Szyba, Robert) (Entered: 12/29/2015)
ORDER granting 19 Motion for Extension of Time to Answer Accurate Background, Inc. answer due 1/15/2016. So Ordered by Chief Magistrate Judge Steven M. Gold on 12/30/2015. (Vasquez, Lea) (Entered: 12/30/2015)
20 NOTICE of Appearance by Lewis M. Steel on behalf of Sandra Inman, Eric Keels (aty to be noticed) (Steel, Lewis) (Entered: 01/08/2016)
21 MOTION to Adjourn Conference Unopposed Motion for Adjournment of Rule 16 Initial Scheduling Conference by Accurate Background, Inc.. (Attachments: # 1 Scheduling Order, # 2 Certificate of Service) (Szyba, Robert) (Entered: 01/15/2016)
22 Letter MOTION for pre motion conference Request a pre motion conference before filing a motion to dismiss by Accurate Background, Inc.. (Szyba, Robert) (Entered: 01/15/2016)
23 Letter Setting Forth The Basis For Its Anticipated Motion to Dismiss Plaintiffs' Amended Complaint by The GEO Group, Inc. (Short, Carolyn) (Entered: 01/15/2016)

Case: 1:15-cv-6261 As of: 10/08/2017 01:34 PM EDT 5 of 7

01/19/2016 01/22/2016
01/22/2016 01/22/2016 01/26/2016 01/26/2016 01/26/2016 01/28/2016
02/26/2016
02/29/2016 02/29/2016
02/29/2016 03/02/2016 03/03/2016

ORDER granting 21 Motion to Adjourn Conference: The conference scheduled for January 20th will instead be held at 2:00 p.m. on March 2, 2016. So Ordered by Chief Magistrate Judge Steven M. Gold on 1/19/2016. (Vasquez, Lea) (Entered: 01/19/2016)
SCHEDULING ORDER re: 22 Motion for pre−motion conference. APPLICATION GRANTED. A pre−motion conference on both defendants' anticipated motions to dismiss will be held on February 12, 2016 at 3 p.m. in Courtroom 10D South before Chief Judge Amon. SO ORDERED by Chief Judge Carol Bagley Amon on January 22, 2016. (Sinha, Alex) (Entered: 01/22/2016)
24 RESPONSE in Opposition re 22 Letter MOTION for pre motion conference Request a pre motion conference before filing a motion to dismiss filed by Sandra Inman, Eric Keels. (Miazad, Ossai) (Entered: 01/22/2016)
25 Letter Response in Opposition to the Anticipated Motion to Dismiss Plaintiffs' Amended Complaint by The GEO Group, Inc. by Sandra Inman, Eric Keels (Miazad, Ossai) (Entered: 01/22/2016)
26 MOTION for Leave to Appear Pro Hac Vice For Pamela Q. Devata Filing fee $ 150, receipt number 0207−8328321. by Accurate Background, Inc.. (Devata, Pamela) (Entered: 01/26/2016)
ORDER granting 26 Motion for Leave for Pamela Devata to Appear Pro Hac Vice for defendant Accurate Background, Inc. So Ordered by Chief Magistrate Judge Steven M. Gold on 1/26/2016. (Vasquez, Lea) (Entered: 01/26/2016)
27 Letter MOTION to Adjourn Conference respectfully request that the pre−motion conference presently scheduled for Feb. 12, 2016 at 3:00 pm be rescheduled by Accurate Background, Inc.. (Devata, Pamela) (Entered: 01/26/2016)
ORDER re: 27 Motion to Adjourn Conference, on consent. APPLICATION GRANTED. The pre−motion conference presently scheduled for February 12, 2016, is hereby rescheduled for 3 p.m. on February 26, 2016, in Courtroom 10D South before Chief Judge Amon. SO ORDERED by Chief Judge Carol Bagley Amon on January 28, 2016. (Sinha, Alex) (Entered: 01/28/2016)
Minute Entry for pre−motion conference held before Chief Judge Carol Bagley Amon on February 26, 2016: Appearances: for plaintiffs, Christopher McNerney and Ossai Miazad; for defendant GEO Group, Michael O'Neil and Carolyn Short; for defendant Accurate, Pamela Devata and Rob Szyba. As stated on the record, the schedule for both defendants' motions to dismiss is as follows: Defendants' moving papers are due March 28, 2016; plaintiffs' opposition is due April 25, 2016; and defendants' reply is due May 2, 2016. Oral argument is scheduled for 2 p.m. on May 23, 2016, in Courtroom 10D South before Chief Judge Carol Bagley Amon. (Court Reporter Lisa Schmid.) (Sinha, Alex) (Entered: 02/26/2016)
28 Joint MOTION to Adjourn Conference Rule 16 Initial Scheduling Conference by Accurate Background, Inc., The GEO Group, Inc.. (McClure, Shannon) Modified on 2/29/2016 (Vasquez, Lea). (Entered: 02/29/2016)
ORDER granting 28 Motion to Adjourn Conference: The March 2nd conference is adjourned without date. Counsel shall immediately request that the conference be restored to the Court's calendar should the case survive the anticipated motion to dismiss. So Ordered by Magistrate Judge Steven M. Gold on 2/29/2016. (Vasquez, Lea) (Entered: 02/29/2016)
29 Letter Setting Forth the Basis for Anticipated Motion to Stay by The GEO Group, Inc. (McClure, Shannon) (Entered: 02/29/2016)
30 First MOTION for Extension of Time to File Response/Reply as to 29 Letter GEO's Anticipated Motion to Stay by Sandra Inman, Eric Keels. (Miazad, Ossai) (Entered: 03/02/2016)
ORDER re: 30 Motion for Extension of Time to File Response/Reply, on consent. APPLICATION GRANTED. Plaintiff's time to respond to defendant GEO Group's pre−motion letter, Docket Number 29 , is extended until seven days from the date on which the parties notify the Court that progress has stalled on reaching a settlement. SO ORDERED by Chief Judge Carol Bagley Amon on March 3, 2016. (Sinha, Alex)

Case: 1:15-cv-6261 As of: 10/08/2017 01:34 PM EDT 6 of 7

03/28/2016 03/29/2016 04/11/2016
04/20/2016 04/21/2016
05/12/2016 05/19/2016
05/19/2016 05/19/2016 05/23/2016 07/14/2016 07/14/2016 07/15/2016 07/20/2016

(Entered: 03/03/2016)
31 Letter confirming service of Motion to Dismiss and supporting documents upon Plaintiffs' counsel by Accurate Background, Inc. (Szyba, Robert) (Entered: 03/28/2016)
32 Letter to Hon. Carol Bagley Amon by The GEO Group, Inc. (Short, Carolyn) (Entered: 03/29/2016)
ORDER re: 32 Motion to Adjourn Briefing Schedule, on consent. APPLICATION GRANTED. Defendants' briefing in support of the motion to dismiss will be due seven days from the date on which the parties notify the Court that progress has stalled on reaching a settlement. Upon receiving such notice from the parties, the Court will set further dates in the briefing schedule as necessary. SO ORDERED by Chief Judge Carol Bagley Amon on April 11, 2016. (Sinha, Alex) (Entered: 04/11/2016)
33 Letter MOTION for Extension of Time to File Response/Reply as to 31 Letter Defendant Accurate's Motion to Dismiss by Sandra Inman, Eric Keels. (Miazad, Ossai) (Entered: 04/20/2016)
ORDER re: 33 Motion for Extension of Time to File Response/Reply, on consent. APPLICATION GRANTED. Plaintiffs' opposition to defendant Accurate's motion to dismiss is due May 12, 2016, and defendant Accurate's reply is due May 19, 2016. As a result of impending mediation, the briefing schedule for Defendant GEO Group's motion to dismiss remains suspended per earlier Orders of this Court. Oral argument on both defendants' motions to dismiss is hereby rescheduled for 3 p.m. on July 19, 2016, in Courtroom 10D South before Chief Judge Amon. SO ORDERED by Chief Judge Carol Bagley Amon on April 21, 2016. (Sinha, Alex) (Entered: 04/21/2016)
34 Letter confirming service of Plaintiffs' Memorandum of Law in Opposition to Defendant Accurate Background, Inc.'s Motion to Dismiss the First Amended Complaint upon Defendant Accurate Background, Inc.'s counsel by Sandra Inman, Eric Keels (Miazad, Ossai) (Entered: 05/12/2016)
35 Motion to Dismiss for Failure to State a Claim Motion to Dismiss First Amended Complaint by Accurate Background, Inc.. (Attachments: # 1 Memorandum in Support Defendant Accurate Background, LLC's Memorandum of Law in Support of Its Motion to Dismiss the First Amended Complaint, # 2 Declaration Of Robert T. Szyba in Support of Motion to Dismiss, # 3 Exhibit A to Szyba Declaration, # 4 Exhibit B to Szyba Declaration, # 5 Exhibit C to Szyba Declaration) (Szyba, Robert) (Entered: 05/19/2016)
36 REPLY in Support re 35 Motion to Dismiss for Failure to State a Claim Motion to Dismiss First Amended Complaint Reply Memorandum of Law in Further Support of its Motion to Dismiss the First Amended Complaint filed by Accurate Background, Inc.. (Szyba, Robert) (Entered: 05/19/2016)
37 MEMORANDUM in Opposition re 35 Motion to Dismiss for Failure to State a Claim Motion to Dismiss First Amended Complaint filed by Sandra Inman, Eric Keels. (Miazad, Ossai) (Entered: 05/19/2016)
38 Letter as per Judge Amon's Individual Rule 3D(2) this is to confirm that courtesy copy of the fully briefed Motion to Dismiss papers have been sent to your Honor's attention by Accurate Background, Inc. (Szyba, Robert) (Entered: 05/23/2016)
39 STIPULATION of Dismissal of Plaintiffs' Claims Against Accurate Background, Inc. by Sandra Inman, Eric Keels (Miazad, Ossai) (Entered: 07/14/2016)
SCHEDULING ORDER: In light of 39 Stipulation of Dismissal, the oral argument scheduled for July 19, 2016 at 3:00pm is adjourned. (Entered: 07/14/2016)
40 Joint MOTION to Adjourn Conference / Oral Argument by The GEO Group, Inc.. (Farber, Evan) (Entered: 07/15/2016)
41 Endorsed Order Dismissing Defendant Accurate Background, Inc. re 39 Stipulation of Dismissal. Ordered by Judge Carol Bagley Amon on 7/19/2016. (Barrett, C) (Entered: 07/20/2016)

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08/15/2016 08/30/2016 08/30/2016 08/30/2016 08/30/2016 09/15/2016 09/30/2016 10/05/2016 10/05/2016
10/05/2016
10/06/2016
04/26/2017
09/30/2017

42 Letter regarding status of parties' settlement negotiations by Sandra Inman, Eric Keels (Miazad, Ossai) (Entered: 08/15/2016)
43 NOTICE of Change of Address by Adam Todd Klein (Klein, Adam) (Entered: 08/30/2016)
44 NOTICE of Change of Address by Christopher McNerney (McNerney, Christopher) (Entered: 08/30/2016)
45 NOTICE of Change of Address by Lewis M. Steel (Steel, Lewis) (Entered: 08/30/2016)
46 NOTICE of Change of Address by Ossai Miazad (Miazad, Ossai) (Entered: 08/30/2016)
47 Letter MOTION for pre motion conference regarding Plaintiffs' motion for preliminary approval of the class action settlement by Sandra Inman, Eric Keels. (Miazad, Ossai) (Entered: 09/15/2016)
ORDER denying 47 Motion for Pre Motion Conference. No pre−motion conference will be held. The parties are directed to file a motion for preliminary approval of the class action settlement by October 5, 2016. Ordered by Judge Carol Bagley Amon on 9/30/2016. (Hart, Grace) (Entered: 09/30/2016)
48 MOTION for Settlement for Preliminary Approval of Class Action Settlement, Conditional Certification of the Settlement Class, Appointment of Plaintiffs' Counsel as Class Counsel, and Approval of Plaintiffs' Proposed Notice of Settlement by Sandra Inman, Eric Keels. (Miazad, Ossai) (Entered: 10/05/2016)
49 MEMORANDUM in Support re 48 MOTION for Settlement for Preliminary Approval of Class Action Settlement, Conditional Certification of the Settlement Class, Appointment of Plaintiffs' Counsel as Class Counsel, and Approval of Plaintiffs' Proposed Notice of Settlement< filed by Sandra Inman, Eric Keels. (Miazad, Ossai) (Entered: 10/05/2016)
50 AFFIDAVIT/DECLARATION in Support re 48 MOTION for Settlement for Preliminary Approval of Class Action Settlement, Conditional Certification of the Settlement Class, Appointment of Plaintiffs' Counsel as Class Counsel, and Approval of Plaintiffs' Proposed Notice of Settlement< filed by Sandra Inman, Eric Keels. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Miazad, Ossai) (Entered: 10/05/2016)
51 Letter regarding courtesy copies of Plaintiffs' Motion for Preliminary Approval of Class Action Settlement, Conditional Certification of the Settlement Class, Appointment of Plaintiffs' Counsel as Class Counsel, and Approval of Plaintiff's Proposed Notice of Settlement by Sandra Inman, Eric Keels (Miazad, Ossai) (Entered: 10/06/2016)
52 MEMORANDUM in Support re 48 MOTION for Settlement for Preliminary Approval of Class Action Settlement, Conditional Certification of the Settlement Class, Appointment of Plaintiffs' Counsel as Class Counsel, and Approval of Plaintiffs' Proposed Notice of Settlement< Notice of Supplemental Authority filed by Sandra Inman, Eric Keels. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C) (Miazad, Ossai) (Entered: 04/26/2017)
53 ORDER re 48 52 Motion for Settlement: The Court having reviewed and considered the parties' joint motion for conditional class certification, appointment of class counsel, and appointment of class representatives, and the memorandum of law in support thereof, and having reviewed and considered the terms and conditions of the Settlement Agreement, and on the basis of such submissions and all prior proceedings had in this action: 1. The Court finds that all the requirements of Rule 23 of the Federal Rules of Civil Procedure are satisfied for settlement purposes. 2. The Court conditionally certifies the class described in the Order under Federal Rule of Civil Procedure 23(e) for settlement purposes only. 3. Appoints named plaintiffs as class representatives. (See attachment for full Order details). Ordered by Judge Carol Bagley Amon on 09/30/2017. (Fernandez, Erica) (Entered: 10/02/2017)

 
 Case 1:15-cv-06261-SMG Document 54-1 Filed 01/23/18 Page 1 of 29 PageID #: 395

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

ERIC KEELS and SANDRA INMAN, individually and on behalf of all others similarly situated,
Plaintiffs, v.

No. 1:15-cv-06261-CBA-SMG

THE GEO GROUP, INC. and ACCURATE BACKGROUND, INC.,
Defendants.

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ UNOPPOSED MOTION FOR CERTIFICATION OF THE SETTLEMENT CLASS AND
FINAL APPROVAL OF CLASS ACTION SETTLEMENT

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TABLE OF CONTENTS

INTRODUCTION .......................................................................................................................... 1

I. FACTUAL AND PROCEDURAL BACKGROUND........................................................ 2

II. SUMMARY OF THE SETTLEMENT TERMS ................................................................ 2

A.

The Settlement Amount ...................................................................................... 2

B.

Equitable Revisions to GEO’s Policies Relief.................................................... 2

C.

Class Members.................................................................................................... 3

D.

Releases............................................................................................................... 3

E.

Allocation Formula ............................................................................................. 3

F.

Attorneys’ Fees and Costs .................................................................................. 4

G.

Service Awards ................................................................................................... 4

H.

CAFA Notice ...................................................................................................... 4

I.

Settlement Administration .................................................................................. 4

J.

Objections and Opt-Outs..................................................................................... 5

ARGUMENT .................................................................................................................................. 5

I. The Settlement Class Meets the Legal Standard for Class Certification. ........................... 5

A. Numerosity.............................................................................................................. 5

B. Commonality........................................................................................................... 6

C. Typicality ................................................................................................................ 7

D. Adequacy of the Named Plaintiffs and Their Counsel ........................................... 7

E. Certification is Proper Under Rule 23(b)(3). .......................................................... 8

1. Common Questions Predominate. .................................................................. 9

2. A Class Action is a Superior Mechanism. .................................................... 10

II. The Proposed Settlement is Fair, Reasonable, and Adequate and Should Be Approved........................................................................................................................... 11

A. The Proposed Settlement is Procedurally Fair...................................................... 12

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B. The Proposed Settlement Is Substantively Fair. ................................................... 13 1. Litigation Through Trial Would Be Complex, Costly, and Long (Grinnell Factor 1). ................................................................................... 14 2. The Reaction of the Class Has Been Positive (Grinnell Factor 2). .......... 15 3. Discovery Has Advanced Far Enough to Allow the Parties to Resolve the Case Responsibly (Grinnell Factor 3)................................................. 16 4. Plaintiffs Would Face Risk If the Case Proceeded (Grinnell Factors 4 and 5)......................................................................... 17 5. Maintaining the Class Through Trial Would Not Be Simple (Grinnell Factor 6). ................................................................................... 18 6. Defendants’ Ability to Withstand a Greater Judgment Is Not Determinative (Grinnell Factor 7). ........................................................... 19 7. The Settlement Fund Is Substantial, Even in Light of the Best Possible Recovery and the Attendant Risks of Litigation (Grinnell Factors 8 and 9)......................................................................... 19
CONCLUSION............................................................................................................................. 22
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TABLE OF AUTHORITIES

CASES

PAGE(S)

In re Am. Int’l Grp., Inc. Sec. Litig., 689 F.3d 229 (2d Cir. 2012).......................................................................................................9

Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997).................................................................................................................11

In re Austrian & German Bank Holocaust Litig., 80 F. Supp. 2d 164 (S.D.N.Y. 2000)............................................................................14, 16, 19

Ballinger v. Advance Magazine Publishers, Inc., No. 13 Civ. 4036, 2014 WL 7495092 (S.D.N.Y. Dec. 29, 2014)......................................17, 19

Beckman v. Keybank, N.A., 293 F.R.D. 467 (S.D.N.Y. 2013) ...............................................................................................8

Behzadi v. Int’l Creative Mgmt. Partners, LLC, No. 14 Civ. 4382, 2015 WL 4210906 (S.D.N.Y. July 9, 2015) ..............................................15

City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974).........................................................................................11, 13, 20

Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473 (2d Cir. 1995).........................................................................................................5

Cordes & Co. Fin. Servs., Inc. v. A.G. Edwards & Sons, Inc., 502 F.3d 91 (2d Cir. 2007).........................................................................................................9

D’Amato v. Deutsche Bank, 236 F.3d 78 (2d Cir. 2001)...........................................................................................11, 13, 14

Delmoral v. Credit Prot. Ass’n, LP, No. 13 Civ. 242, 2015 WL 5793311 (E.D.N.Y. Sept. 30, 2015).............................................18

Denney v. Deutsche Bank AG, 443 F.3d 253 (2d Cir. 2006).......................................................................................................7

Domonoske v. Bank of Am., N.A., 790 F. Supp. 2d 466 (W.D. Va. 2011) .....................................................................................20

Dziennik v. Sealift, Inc., No. 05 Civ. 4659, 2007 WL 1580080 (E.D.N.Y. May 29, 2007)..............................................8

Engel v. Scully & Scully, Inc., 279 F.R.D. 117 (S.D.N.Y. 2011) ...............................................................................................6

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In re EVCI Career Colls. Holding Corp. Sec. Litig., Nos. 05 Civ. 10240, et al., 2007 WL 2230177 (S.D.N.Y. July 27, 2007) ...............................13
Flores v. Anjost Corp., No. 11 Civ. 1531, 2014 WL 321831 (S.D.N.Y. Jan. 29, 2014)...............................................13
Frank v. Eastman Kodak Co., 228 F.R.D. 174 (W.D.N.Y. 2005)........................................................................................7, 20
Galper v. JP Morgan Chase Bank, N.A., 802 F.3d 437 (2d Cir. 2015).....................................................................................................14
Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147 (1982)...................................................................................................................6
Gilliam v. Addicts Rehab. Ctr. Fund, No. 05 Civ. 3452, 2008 WL 782596 (S.D.N.Y. Mar. 24, 2008) .............................................21
Goldberger v. Integrated Res., Inc., 209 F.3d 43 (2d Cir. 2000).......................................................................................................11
Green v. Wolf Corp., 406 F.2d 291 (2d Cir. 1968).....................................................................................................10
Houser v. Pritzker, 28 F. Supp. 3d 222 (S.D.N.Y. 2014)..........................................................................................8
In re Ira Haupt & Co., 304 F. Supp. 917 (S.D.N.Y. 1969)...........................................................................................17
Karic v. Major Auto. Cos., Inc., No. 09 Civ. 5708, 2016 WL 1745037 (E.D.N.Y. Apr. 27, 2016)............................................16
Katz v. ABP Corp., No. 12 Civ. 4173, 2014 WL 4966052 (E.D.N.Y. Oct. 3, 2014) ....................................6, 10, 17
Keele v. Wexler, 149 F.3d 589 (7th Cir. 1998) .....................................................................................................6
Lengel v. HomeAdvisor, Inc., No. 15 Civ. 2198, 2017 WL 364582 (D. Kan. Jan. 25, 2017) .................................................10
Lizondro-Garcia v. Kefi LLC, No. 12 Civ. 1906, 2014 WL 4996248 (S.D.N.Y. Oct. 7, 2014) ..............................................15
Manuel v. Wells Fargo Bank, N.A., No. 14 Civ. 238, 2015 WL 4994549 (E.D. Va. Aug. 19, 2015) ......................................6, 7, 10
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Manuel v. Wells Fargo Bank, Nat’l Ass’n, No. 14 Civ. 238, 2016 WL 1070819 (E.D. Va. Mar. 15, 2016) ..............................................20
Marisol A. v. Giuliani, 126 F.3d 372 (2d Cir. 1997).......................................................................................................7
McBean v. City of N.Y., 228 F.R.D. 487 (S.D.N.Y. 2005) ...............................................................................................9
Miles v. Merrill Lynch & Co., Inc. (In re Initial Pub. Offering Sec. Litig.), 471 F.3d 24 (2d Cir. 2006).........................................................................................................9
Morris v. Affinity Health Plan, Inc., 859 F. Supp. 2d 611 (S.D.N.Y. 2012)................................................................................15, 17
Pickett v. Simos Insourcing Sols., Corp., 249 F. Supp. 3d 897 (N.D. Ill. 2017) .........................................................................................6
Pickett v. Simos Insourcing Sols., Corp., No. 17 Civ. 1013, 2017 WL 3444755 (N.D. Ill. Aug. 10, 2017).........................................8, 10
Puglisi v. TD Bank, N.A., No. 13 Civ. 637, 2015 WL 4608655 (E.D.N.Y. July 30, 2015) ................................................8
Rhom v. Thumbtack, Inc., No. 16 Civ. 2008, 2017 WL 4642409 (N.D. Cal. Oct. 17, 2017) ............................................15
Roach v. T.L. Cannon Corp., 778 F.3d 401 (2d Cir. 2015).......................................................................................................9
Robidoux v. Celani, 987 F.2d 931 (2d Cir. 1993).......................................................................................................6
Rosario v. Livaditis, 963 F.2d 1013 (7th Cir. 1992) ...................................................................................................6
Sewell v. Bovis Lend Lease, Inc., No. 09 Civ. 6548, 2012 WL 1320124 (S.D.N.Y. Apr. 16, 2012) ............................................17
Slomovics v. All for a Dollar, Inc., 906 F. Supp. 146 (E.D.N.Y. 1995) ..........................................................................................15
Spann v. AOL Time Warner Inc., No. 02 Civ. 8238, 2005 WL 1330937 (S.D.N.Y. June 7, 2005)..............................................11
Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) .............................................................................................................17
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Syed v. M-I LLC, No. 14 Civ. 742, 2016 WL 310135 (E.D. Cal. Jan. 26, 2016).................................................20
Sykes v. Harris, No. 09 Civ. 8486, 2016 WL 3030156 (S.D.N.Y. May 24, 2016)............................................17
Thomas v. FTS USA, LLC, 312 F.R.D. 407 (E.D. Va. 2016) ...................................................................................... passim
Toure v. Amerigroup Corp., No. 10 Civ. 5391, 2012 WL 3240461 (E.D.N.Y. Aug. 6, 2012) .............................................13
Tyson Foods Inc. v. Bouaphakeo, 136 S. Ct. 1036 (2016) ...............................................................................................................8
In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124 (2d Cir. 2001).......................................................................................................9
Wal-Mart Stores, Inc. v. Visa U.S.A. Inc., 396 F.3d 96 (2d Cir. 2005).................................................................................................11, 13
In re Warfarin Sodium Antitrust Litig., 391 F.3d 516 (3d Cir. 2004).....................................................................................................16
Watkins v. Hireright, Inc., No. 13 Civ. 1432, 2016 WL 5719812 (S.D. Cal. Sept. 30, 2016) ...............................16, 20, 21
White v. Experian Info. Solutions, 993 F. Supp. 2d 1154 (C.D. Cal. 2014) ...................................................................................14
White v. First Am. Registry, Inc., 378 F. Supp. 2d 419 (S.D.N.Y. 2005)......................................................................................21
White v. First Am. Registry, Inc., No. 04 Civ. 1611, 2007 WL 703926 (S.D.N.Y. Mar. 7, 2007) ...............................................20
STATUTES 15 U.S.C. § 1681n..........................................................................................................................20 15 U.S.C. § 1681p..........................................................................................................................17 28 U.S.C. § 1715(d) .........................................................................................................................4 OTHER AUTHORITIES Fed. R. Civ. P. 23 ................................................................................................................... passim
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INTRODUCTION Plaintiffs Eric Keels and Sandra Inman (together, “Plaintiffs”) respectfully submit this memorandum of law in support of their motion for final approval of the class settlement reached by Plaintiffs and The GEO Group, Inc. (“GEO” or “Defendant”) (together with Plaintiffs, the “Parties”). The proposed settlement is fair, reasonable, and adequate, and satisfies all of the criteria for final approval under applicable law. Accordingly, Plaintiffs seek an order: (1) certifying the settlement class described below; and (2) approving as fair and adequate the classwide settlement of this action, as set forth in the Settlement Agreement, attached as Ex. A to the Declaration of Ossai Miazad in Support of Plaintiffs’ Motions for Certification of the Settlement Class and Final Approval of the Class Action Settlement, Approval of Attorneys’ Fees and Reimbursement of Expenses and Approval of Service Payments (“Miazad Decl.”).1 On September 30, 2017, the Court took the first step in the settlement approval process by preliminarily approving the Settlement Agreement; provisionally certifying the Settlement Class2 pursuant to Federal Rule of Civil Procedure 23; appointing Outten & Golden LLP (“O&G”) as Class Counsel; directing that notice be sent to the Class Members through a variety of means; and setting a date for the final fairness hearing. ECF No. 53 (Order Preliminarily Approving Settlement (“PA Order”)). Class Members have been notified of the terms of the settlement, including the monetary relief, the allocation of settlement funds, and their right to opt out of or object to the settlement. Ex. B (Declaration of Zachary Cooley Re: Notice Procedures (“Cooley Decl.”)) at Ex. C (Notice). As of January 23, 2018, 1,513 Class Members have submitted claim forms, no Class

1

Unless otherwise indicated, all exhibits are attached to the Miazad Declaration.

2

Unless otherwise indicated, all capitalized terms have the definitions set forth in the

Settlement Agreement.

1

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Members have objected, and one Class Member has requested exclusion from this settlement. Ex. B (Cooley Decl.) ¶¶ 12-14. Accordingly, for the reasons stated below, the Court should grant final approval. I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs incorporate by reference the factual allegations and procedural history set forth in Plaintiffs’ Memorandum of Law in Support of Plaintiffs’ Unopposed Motion for Preliminary Approval of Class Action Settlement, Conditional Certification of the Settlement Class, and Appointment of Plaintiffs’ Counsel as Class Counsel, and Approval of Plaintiffs’ Proposed Notice of Settlement. See ECF No. 49; see also Miazad Decl. ¶¶ 12-26. II. SUMMARY OF THE SETTLEMENT TERMS
A. The Settlement Amount GEO has agreed to pay a maximum Settlement Amount of $900,000.00 to cover payment to Class Members, Court-approved costs and fees including Plaintiffs’ Counsel’s attorneys’ fees and costs and the Settlement Administrator’s fees and costs, and any Court-approved Service Awards. Ex. A (Settlement Agreement) §§ I(Q), (TT). B. Equitable Revisions to GEO’s Policies Relief GEO also has agreed to significant equitable changes to its policies and business practices above and beyond the Settlement Amount. See id. § III(A). First, GEO has implemented a formal Background Check Policy to codify the procedures it uses to ensure FCRA compliance across all GEO locations nationwide. GEO’s affirmative obligations are to: (1) consolidate background check vendors (“vendors”); (2) contract with those vendors to assume the administration process for sending pre- and post- adverse action notices and engage in periodic compliance audits/reviews; (3) perform FCRA training for existing and new HR employees; (4) transfer responsibility for initiating the adverse action notice process from the
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facility to regional or corporate level; (5) standardize FCRA-related forms across all facilities; (6) make copies of the periodic background check reports obtained by GEO available to employees upon request and inform employees of this right; and (7) conduct periodic audits of the process. See id. § III(A)(1). In addition, GEO has agreed to revise its corporate policies and procedures manuals to include a copy of its Background Check Policy. See id. § III(A)(2). GEO also is obligated to ensure that all current and new human resources employees will be trained regarding the Background Check Policy. See id. § III(A)(3).
C. Class Members Class Members are: All persons for whom GEO obtained a Consumer Report, from October 30, 2010, through September 30, 2017, as part of the GEO hiring or employee retention process, and at some point later in time either were not hired or were terminated. See id. at p.2. D. Releases All Class Members who do not exclude themselves from the settlement will release claims “that were or could have been asserted by the named Plaintiffs . . . based upon the FCRA and FCRA State Equivalent that are the subject of this Litigation[.]” Id. § VII(1). E. Allocation Formula Class Members are divided into Class A Members and Class B Members, depending on when their claims arose. Class A Members are those who had a Consumer Report that was completed and returned to GEO on or after October 30, 2013, through September 30, 2017. See id. § I(E). Class B Members are those who had a Consumer Report that was completed and returned to GEO on or after October 30, 2010, and on or before October 29, 2013. See id. § I(F). Each Eligible Settlement Class Member is entitled to claim a pro rata share of the Settlement
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Amount (after fees and costs are subtracted), not to exceed $200.00 per Class A Member or $100.00 per Class B Member. Id. § III(C)(1). Any unclaimed funds will revert to GEO. Id.
F. Attorneys’ Fees and Costs Plaintiffs also move the Court for approval for up to 33% of the Settlement Amount for their attorneys’ fees, plus their actual litigation expenses and costs. Id. § III(D). Plaintiffs submitted a Motion for Approval of Attorneys’ Fees and Reimbursement of Expenses simultaneously with the instant motion. G. Service Awards In addition to their payment under the allocation formula, Plaintiffs seek Service Awards of $5,000.00 each for Named Plaintiffs Keels and Inman. Id. § VIII. Plaintiffs submitted a Motion for Approval of Service Awards simultaneously with the instant motion. H. CAFA Notice The Settlement Administrator sent notices to federal and state authorities as required by the Class Action Fairness Act (“CAFA”) on October 12, 2016. See 28 U.S.C. § 1715(d); Ex. B (Cooley Decl.) ¶¶ 2-4. I. Settlement Administration The Parties selected KCC LLC, an experienced class action claims administrator, to administer the settlement. The Settlement Administrator’s costs and expenses of $65,000.00 will be paid from the Gross Settlement Amount. Ex. A (Settlement Agreement) § III(B)(2), (5); see Ex. B (Cooley Decl.) ¶ 15. On October 27, 2017, the Settlement Administrator mailed 11,808 Court-approved notices. Id. ¶ 6. On November 11, 2017, the Settlement Administrator mailed reminder postcards to 11,111 Class Members who had not submitted a Claim Form or Request for Exclusion. Id. ¶ 8. During the notice process, Plaintiffs’ Counsel identified Class Members with
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duplicate addresses. Id. ¶ 9. As a result, the Parties agreed that notice would be reissued to the 264 Class Members who had updated addresses. Id. Those Class Members also were provided with an additional 30 days to submit claim forms. See id.
J. Objections and Opt-Outs The Notice advised Class Members that they could object to or exclude themselves from the settlement. Ex. B (Cooley Decl.) at Ex. C (Notice) ¶¶ XIV, XIX. No Class Members have objected to the settlement and one Class Members has requested exclusion from the settlement.
ARGUMENT I. The Settlement Class Meets the Legal Standard for Class Certification.
On September 30, 2017, the Court preliminarily certified the Settlement Class. See ECF No. 53 (PA Order). Plaintiffs now respectfully request that the Court grant final certification because the Settlement Class meets all of the requirements of Rule 23.3
A. Numerosity “[N]umerosity is presumed at a level of 40 members.” Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995). Here, the proposed Class is comprised of 11,808 job applicants and employees, making joinder impracticable. Ex. B (Cooley Decl.) ¶ 5; See Fed. R. Civ. P. 23(a)(1); Robidoux v. Celani, 987 F.2d 931, 936 (2d Cir. 1993).

3

Under Rule 23, a class action may be maintained if all of the prongs of Rule 23(a) are

met, as well as one of the prongs of Rule 23(b). Rule 23(a) requires that: “(1) the class is so

numerous that joinder of all members is impracticable; (2) there are questions of law or fact

common to the class; (3) the claims or defenses of the representative parties are typical of the

claims or defenses of the class; and (4) the representative parties will fairly and adequately

protect the interests of the class.” Fed. R. Civ. P. 23(a). Rule 23(b)(3) requires the Court to find

that questions of law or fact common to class members predominate over any questions affecting

only individual members, and that a class action is superior to other available methods for fairly

and efficiently adjudicating the controversy. Id. at (b)(3). Here, Plaintiffs seek certification of a

Settlement Class only, and GEO’s non-opposition to such certification is only for purposes of a

Settlement Class. To the extent the Settlement were not approved for any reason and this

litigation were to proceed, GEO retains all rights to challenge certification of a litigation class.

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B. Commonality The proposed Settlement Class satisfies the commonality requirement, which tests “whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 n.13 (1982). The requirement requires only “questions of law or fact common to the class.” Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998). Some factual variation among class members will not defeat a class action. Rosario v. Livaditis, 963 F.2d 1013, 1017-18 (7th Cir. 1992). This case involves numerous common issues. Plaintiffs and Class Members all share the common contention that they were denied employment without being provided pre-adverse action notice packets. These common factual and legal questions satisfy commonality for settlement purposes. Thomas v. FTS USA, LLC, 312 F.R.D. 407, 417-18 (E.D. Va. 2016) (finding commonality when pre-adverse action notices were never sent); Manuel v. Wells Fargo Bank, N.A., No. 14 Civ. 238, 2015 WL 4994549, at *10-12 (E.D. Va. Aug. 19, 2015) (substantively same); see also Pickett v. Simos Insourcing Sols., Corp., 249 F. Supp. 3d 897, 899 (N.D. Ill. 2017) (for settlement purposes, commonality satisfied where defendant “uniformly failed to provide individuals with pre-adverse action notice packets”). Plaintiffs also allege that Defendant’s violations were willful. Courts routinely find that the question of willfulness is a common question. Thomas, 312 F.R.D. at 417; Manuel, 2015 WL 4994549, at *12; Katz v. ABP Corp., No. 12 Civ. 4173, 2014 WL 4966052, at *2 (E.D.N.Y. Oct. 3, 2014) (for FCRA settlement purposes); see also Engel v. Scully & Scully, Inc., 279 F.R.D. 117, 128 (S.D.N.Y. 2011) (“The critical questions of the defendant’s business practices and willfulness are common to all class members, and are likely to generate common answers which drive the resolution of the litigation.”).
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C. Typicality Rule 23 requires that the claims of the representative party be typical of the claims of the Settlement Class. “Like the commonality requirement, typicality does not require the representative party’s claims to be identical to those of all class members.” Frank v. Eastman Kodak Co., 228 F.R.D. 174, 182 (W.D.N.Y. 2005). Typicality is often satisfied “when each class member’s claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant’s liability.” Marisol A. v. Giuliani, 126 F.3d 372, 376 (2d Cir. 1997). Here, like the putative Settlement Class, Keels alleges that he was a job applicant denied employment because of his background check without having been provided pre-adverse action notice packets. See ECF No. 16 (First Amended Complaint) ¶¶ 45-49. Also like the putative Settlement Class, Inman alleges that she was an employee denied employment because of her background check without having been provided pre-adverse action notice packets. See id. ¶¶ 64-68. Typicality is met for the Settlement Class because Plaintiffs were “subjected to the same procedures as all putative class members and it is those procedures that are challenged.” Manuel, 2015 WL 4994549, at *14; see also Thomas, 312 F.R.D. at 419 (“[L]ike every other class member, Thomas did not receive any pre-adverse action materials[.]”). D. Adequacy of the Named Plaintiffs and Their Counsel Rule 23(a)(4) requires that “the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). The adequacy requirement exists to ensure that the named representatives will “have an interest in vigorously pursuing the claims of the class, and . . . have no interests antagonistic to the interests of other class members.” Denney v. Deutsche Bank AG, 443 F.3d 253, 268 (2d Cir. 2006). “[O]nly a conflict that goes to the very
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subject matter of the litigation will defeat a party’s claim of representative status.” Dziennik v. Sealift, Inc., No. 05 Civ. 4659, 2007 WL 1580080, at *6 (E.D.N.Y. May 29, 2007).
Plaintiffs do not have interests that are antagonistic to or at odds with the Settlement Class Members’ interests. See Puglisi v. TD Bank, N.A., No. 13 Civ. 637, 2015 WL 4608655, at *1 (E.D.N.Y. July 30, 2015) (adequacy satisfied where, inter alia, there was no evidence that named plaintiffs’ and class members’ interests were at odds). Plaintiffs also have selected Counsel capable of adequately representing the Settlement Class’s interests. See, e.g., Houser v. Pritzker, 28 F. Supp. 3d 222, 248 (S.D.N.Y. 2014) (finding O&G and non-profit partners “bring to the case a wealth of class action litigation experience” and were adequate to represent approximately half-million person Black and Latino job applicant class in background check litigation); Ex. F (July 30, 2015 Hr’g Tr. for Puglisi v. TD Bank, N.A., No. 13 Civ. 637 (E.D.N.Y.)) at 11-12 (lawyering by plaintiffs’ counsel—including O&G—was “excellent” and noting “the high level of service that was provided to the class”); Beckman v. Keybank, N.A., 293 F.R.D. 467, 477 (S.D.N.Y. 2013) (attorneys at O&G “are experienced employment lawyers with good reputations among the employment law bar”); Pickett v. Simos Insourcing Sols., Corp., No. 17 Civ. 1013, 2017 WL 3444755, at *1 (N.D. Ill. Aug. 10, 2017) (same when finally approving Section 1681b(b)(3) FCRA settlement); see also Miazad Decl. ¶¶ 4-10. Thus, for the purposes of settlement, the adequacy requirement is satisfied.
E. Certification is Proper Under Rule 23(b)(3). Rule 23(b)(3) requires that the common questions of law or fact “predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). This inquiry examines ‘“whether proposed classes are sufficiently cohesive to warrant adjudication by representation.”’ Tyson Foods Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1045 (2016) (quoting
8

Case 1:15-cv-06261-SMG Document 54-1 Filed 01/23/18 Page 16 of 29 PageID #: 410
Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997)). For the purposes of settlement, these requirements are met in this case.
1. Common Questions Predominate. The predominance requirement is more demanding than the Rule 23(a) commonality inquiry and “tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” In re Am. Int’l Grp., Inc. Sec. Litig., 689 F.3d 229, 239-40 (2d Cir. 2012) (internal quotation omitted). To establish predominance, Plaintiffs must demonstrate that “the issues in the class action that are subject to generalized proof, and thus applicable to the class as a whole, . . . predominate over those issues that are subject only to individualized proof.” Cordes & Co. Fin. Servs., Inc. v. A.G. Edwards & Sons, Inc., 502 F.3d 91, 107-08 (2d Cir. 2007). The essential inquiry is whether “liability can be determined on a class-wide basis, even when there are some individualized damage issues.” In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 139 (2d Cir. 2001), abrogated on other grounds by Miles v. Merrill Lynch & Co., Inc. (In re Initial Pub. Offering Sec. Litig.), 471 F.3d 24 (2d Cir. 2006); see also Roach v. T.L. Cannon Corp., 778 F.3d 401, 405 (2d Cir. 2015) (individualized damages are merely a factor that courts “consider in deciding whether issues susceptible to generalized proof outweigh individual issues[,]” not an absolute bar to class certification) (internal quotation omitted). Where plaintiffs are “unified by a common legal theory . . . and by common facts[,]” the predominance requirement is satisfied. McBean v. City of N.Y., 228 F.R.D. 487, 502 (S.D.N.Y. 2005). Here, Plaintiffs’ common contentions—that Defendants have uniformly failed to provide job applicants and employees with pre-adverse action notice packets—predominate over any issues affecting only individual Settlement Class Members. See Thomas, 312 F.R.D. at 425 (predominance satisfied where defendant never provided pre-adverse action notices to any class
9

Case 1:15-cv-06261-SMG Document 54-1 Filed 01/23/18 Page 17 of 29 PageID #: 411
members); Manuel, 2015 WL 4994549, at *17 (noting that “[n]o individualized proof would be necessary to determine the issue of willfulness”); see also Katz, 2014 WL 4966052, at *2 (finding predominance when parties dispute defendant’s business practice and complaint sought statutory, not individualized, damages) (citing Engel, 279 F.R.D. at 130); Lengel v. HomeAdvisor, Inc., No. 15 Civ. 2198, 2017 WL 364582, at *7 (D. Kan. Jan. 25, 2017) (“[T]he question whether HomeAdvisor willfully violated the FCRA is the same for each settlement class member.”).
2. A Class Action is a Superior Mechanism. The second part of the Rule 23(b)(3) analysis examines whether “the class action device [is] superior to other methods available for a fair and efficient adjudication of the controversy.” Green v. Wolf Corp., 406 F.2d 291, 301 (2d Cir. 1968). The superiority analysis considers four factors: (1) individual interest of class members in controlling prosecution of the action; (2) the extent of similar, prior litigation commenced by members of the class; (3) the desirability of concentrating the litigation in a particular forum; and (4) the difficulties of managing the class action. Fed. R. Civ. P. 23(b)(3). Here, potential recovery for Settlement Class Members is comparatively modest—even if Class Members were to recover full statutory damages. See, e.g., Thomas, 312 F.R.D. at 425 (in FCRA cases, “potential class members’ claims for statutory damages are small when considered in comparison to the effort it would take to assert them in court”); Katz, 2014 WL 4966052, at *3 (class adjudication superior “due to the low damages incentive for individual litigation”); see also Pickett, 2017 WL 3444755, at *1 (“Class adjudication is superior because, among other reasons, the potential recovery for Class Members [under the FCRA] is comparatively modest—even if Class Members were to recover full statutory damages—when compared with the effort it would take to assert them individually in court.”). Employing the Settlement Class device to concentrate litigation in this Court will
10

Case 1:15-cv-06261-SMG Document 54-1 Filed 01/23/18 Page 18 of 29 PageID #: 412

achieve economies of scale, conserve the resources of the judicial system, and avoid the waste and delay of repetitive proceedings and inconsistent adjudications of similar issues and claims. See, e.g., Thomas, 312 F.R.D. at 426; Manuel, 2015 WL 4994549, at *18. Moreover, “many plaintiffs will not be aware that their rights were violated because of the technical nature of the FCRA and thus would not be able to bring a suit at all” without this settlement. Thomas, 312 F.R.D. at 425-26.4 II. The Proposed Settlement is Fair, Reasonable, and Adequate and Should Be
Approved. Rule 23(e) requires court approval for a class action settlement to ensure that it is procedurally and substantively fair, reasonable, and adequate. Fed. R. Civ. P. 23(e). To determine procedural fairness, courts examine the negotiating process leading to the settlement. Wal-Mart Stores, Inc. v. Visa U.S.A. Inc., 396 F.3d 96, 116 (2d Cir. 2005); D’Amato v. Deutsche Bank, 236 F.3d 78, 85 (2d Cir. 2001). To determine substantive fairness, courts evaluate whether the settlement’s terms are fair, adequate, and reasonable according to the factors set forth in City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir. 1974), abrogated on other grounds by Goldberger v. Integrated Res., Inc., 209 F.3d 43 (2d Cir. 2000). Courts examine procedural and substantive fairness in light of the “strong judicial policy in favor of settlement[]” of class action suits. Wal-Mart Stores, 396 F.3d at 116 (internal quotation omitted); see also Spann v. AOL Time Warner Inc., No. 02 Civ. 8238, 2005 WL 1330937, at *6 (S.D.N.Y. June 7, 2005) (“[P]ublic policy favors settlement, especially in the case of class actions.”).

4

Manageability need not be considered in deciding whether to certify a class for settlement

purposes only, as the litigation would not proceed on the basis of the certified settlement class if

settlement is unsuccessful. Amchem, 521 U.S. at 620 (“Confronted with a request for settlement-

only class certification, a district court need not inquire whether the case, if tried, would present

intractable management problems.”).

11

Case 1:15-cv-06261-SMG Document 54-1 Filed 01/23/18 Page 19 of 29 PageID #: 413
A. The Proposed Settlement is Procedurally Fair. The proposed settlement is procedurally fair because it was reached as a result of vigorous, arm’s-length negotiations and mediation conducted under the auspices of the Honorable Diane M. Welsh, an experienced and well-respected employment, consumer and class action law mediator, and a former United States Magistrate Judge in the Eastern District of Pennsylvania. Miazad Decl. ¶ 24. The Parties’ negotiations took place against a backdrop of hard-fought litigation involving anticipated motion practice concerning complex legal issues at the motion to dismiss stage. See, e.g., ECF Nos. 23, 24, 25. Before their mediation, the Parties entered into a confidentiality agreement and exchanged information relevant to Plaintiffs’ claims—including client files and information relating to the size and ascertainability of the putative Class. Miazad Decl. ¶ 18. All told, Defendant produced over 600 pages of documents, which Counsel reviewed. Id. ¶ 19. The Parties held multiple telephone conferences where they discussed this information, and its implication for the merits of the case. Id. ¶ 20. Plaintiffs then conducted a preliminary damages analysis for purposes of settlement negotiations. Id. ¶ 21. Before mediation, the Parties also exchanged detailed mediation briefs outlining their respective evaluations of the strengths and weaknesses of the claims at issue. Id. ¶ 22. Plaintiffs’ Counsel also conducted their own independent investigation, interviewing multiple putative Class Members. Id. ¶ 23. On April 22, 2016, the Parties participated in a full day of mediation in New York, New York with Judge Welsh. Id. ¶ 24. After concluding a full day of arms-length negotiations, the Parties reached an agreement on the material terms of a settlement. Id. ¶ 25. Over the next approximately five months, the Parties extensively negotiated the detailed Settlement Agreement to finalize topics including equitable revisions to GEO’s policies and the notice and claims process. Id. ¶ 26; see Ex. A (Settlement Agreement).
12

Case 1:15-cv-06261-SMG Document 54-1 Filed 01/23/18 Page 20 of 29 PageID #: 414
This process afforded the Parties’ experienced counsel an ample basis to evaluate the merits of the claims. See Toure v. Amerigroup Corp., No. 10 Civ. 5391, 2012 WL 3240461, at *3 (E.D.N.Y. Aug. 6, 2012) (finding settlement to be “procedurally fair, reasonable, adequate, and not a product of collusion” after plaintiffs engaged in significant discovery and enlisted the services of an experienced employment law mediator); Flores v. Anjost Corp., No. 11 Civ. 1531, 2014 WL 321831, at *4 (S.D.N.Y. Jan. 29, 2014) (same). A “presumption of fairness, adequacy and reasonableness may attach to a class settlement reached in arm’s-length negotiations between experienced, capable counsel after meaningful discovery.” Wal-Mart Stores, 396 F.3d at 116 (internal quotation omitted); see also D’Amato, 236 F.3d at 85. “Absent fraud or collusion, [courts] should be hesitant to substitute [their] judgment for that of the parties who negotiated the settlement.” In re EVCI Career Colls. Holding Corp. Sec. Litig., Nos. 05 Civ. 10240, et al., 2007 WL 2230177, at *4 (S.D.N.Y. July 27, 2007).
B. The Proposed Settlement Is Substantively Fair. In Grinnell, the Second Circuit provided the analytical framework for evaluating the substantive fairness of a class action settlement. 495 F.2d at 463. The Grinnell factors guide district courts in making this determination. They are: (1) the complexity, expense, and likely duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining the class action through the trial; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery; and (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation. Id. All of the Grinnell factors weigh in favor of final approval of the settlement.
13

Case 1:15-cv-06261-SMG Document 54-1 Filed 01/23/18 Page 21 of 29 PageID #: 415
1. Litigation Through Trial Would Be Complex, Costly, and Long (Grinnell Factor 1).
By reaching a settlement prior to dispositive motions or trial, Plaintiffs seek to avoid significant expense and delay, and instead ensure recovery for the Class Members. The FCRA is a “complex statute[.]” Galper v. JP Morgan Chase Bank, N.A., 802 F.3d 437, 444 (2d Cir. 2015). “[P]articularly in the class action context, [it] is a complex and challenging area of law.” White v. Experian Info. Solutions, 993 F. Supp. 2d 1154, 1172 (C.D. Cal. 2014); see also In re Austrian & German Bank Holocaust Litig., 80 F. Supp. 2d 164, 174 (S.D.N.Y. 2000) (“Most class actions are inherently complex and settlement avoids the costs, delays and multitude of other problems associated with them.”), aff’d sub. nom. D’Amato v. Deutsche Bank, 236 F.3d 78 (2d Cir. 2001). This case is no exception, with FCRA claims covering 11,808 individuals.
Extensive discovery would be required to establish liability and damages and to support Plaintiffs’ class certification motion and defend against Defendant’s opposition to such motion. This discovery would include further electronic and paper discovery of Defendant’s background check and hiring policies; depositions of Class Members and Defendant’s employees, such as relevant hiring managers and human resources personnel; and depositions of Defendant’s corporate representatives. In Counsel’s experience, there is a strong possibility that discovery as to the Section 1681b(b)(3) claims also would include third-party subpoenas of the consumer reporting agency contracted with by GEO (with discovery disputes likely arising as to the propriety and scope of such subpoenas). After completing discovery, the Parties would likely move for summary judgment on the merits of the claims. If the Court determined that fact disputes precluded summary judgment, a trial would be necessary. Any judgment would likely be appealed, further extending the Litigation. This settlement, on the other hand, provides
14

Case 1:15-cv-06261-SMG Document 54-1 Filed 01/23/18 Page 22 of 29 PageID #: 416
significant relief to Class Members in a prompt and efficient manner. Therefore, the first Grinnell factor weighs in favor of final approval.
2. The Reaction of the Class Has Been Positive (Grinnell Factor 2). The absence of objections by Class Members is significant in determining whether the proposed class settlement is reasonable to the class as a whole. See Slomovics v. All for a Dollar, Inc., 906 F. Supp. 146, 150 (E.D.N.Y. 1995) (The lack of class member objections “may itself be taken as evidencing the fairness of the settlement.”) No Class Member has objected to the settlement and only one Class Member has requested exclusion. This is strong evidence of the fairness of the settlement. See, e.g., Behzadi v. Int’l Creative Mgmt. Partners, LLC, No. 14 Civ. 4382, 2015 WL 4210906, at *2 (S.D.N.Y. July 9, 2015) (noting that “reaction to the settlement was positive [because] [n]o Class Member objected to the Settlement Stipulation, and only 24 Exclusion Forms were timely submitted”); Lizondro-Garcia v. Kefi LLC, No. 12 Civ. 1906, 2014 WL 4996248, at *4 (S.D.N.Y. Oct. 7, 2014) (finding class’s reaction to settlement to be “extremely positive” when no class member objected and only one opted out) (collecting cases); Morris v. Affinity Health Plan, Inc., 859 F. Supp. 2d 611, 619 (S.D.N.Y. 2012) (where 16 out of 1,500 class members excluded themselves and only one objected, the “response demonstrates strong support for the settlement”). In addition to the absence of objections and sole request for exclusion, Class Members’ participation rate supports final approval of the settlement. Here, approximately 12.8% of Class Members have submitted claim forms. See Ex. B (Cooley Decl.) ¶¶ 5, 12 (the Parties have agreed that the 54 late-filed claim forms will be accepted, for a total to date of 1513 claim forms). This participation rate well exceeds the claims rate approved by other courts in FCRA settlements. Miazad Decl. ¶ 51; see Rhom v. Thumbtack, Inc., No. 16 Civ. 02008, 2017 WL 4642409, at *6 (N.D. Cal. Oct. 17, 2017) (granting final approval to FCRA settlement with
15

Case 1:15-cv-06261-SMG Document 54-1 Filed 01/23/18 Page 23 of 29 PageID #: 417
66,676 class members, 3.5% claims rate, one objection, and one request for exclusion); Watkins v. Hireright, Inc., No. 13 Civ. 1432, 2016 WL 5719812, at *3 (S.D. Cal. Sept. 30, 2016) (granting final approval to FCRA settlement with 298, 318 class members, 5.9% claims rate, and several objectors). It is all the more reasonable given Defendant’s position that the class list was over-inclusive. See infra n. 5.
3. Discovery Has Advanced Far Enough to Allow the Parties to Resolve the Case Responsibly (Grinnell Factor 3).
The Parties have completed enough discovery to recommend settlement. The proper question is ‘“whether counsel had an adequate appreciation of the merits of the case before negotiating.”’ In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 537 (3d Cir. 2004) (quoting In re Cendant Corp. Litig., 264 F.3d 201, 235 (3d Cir. 2001)); see also Karic v. Major Auto. Cos., Inc., No. 09 Civ. 5708, 2016 WL 1745037, at *6 (E.D.N.Y. Apr. 27, 2016). ‘“[T]he pretrial negotiations and discovery must be sufficiently adversarial that they are not designed to justify a settlement;”’ rather, they must be ‘“an aggressive effort to ferret out facts helpful to the prosecution of the suit.”’ In re Austrian, 80 F. Supp. 2d at 176 (quoting Martens v. Smith Barney, Inc., 181 F.R.D. 243, 263 (S.D.N.Y. 1998)).
Here, the Parties’ discovery meets this standard. In the months leading up to mediation, the Parties engaged in informal discovery. Defendant provided Plaintiffs information relevant to Plaintiffs’ claims including client files and information relating to the size and ascertainability of the putative Class. Defendant produced over 600 pages of documents, which Plaintiffs reviewed. The Parties also had multiple telephone conferences to discuss the information produced by Defendant, and its potential impact on the claims at issue. Plaintiffs’ Counsel conducted their own independent investigation, interviewing multiple putative Class Members involved in the hiring process. Before the mediation, Plaintiffs’ Counsel crafted a damages model based on
16

Case 1:15-cv-06261-SMG Document 54-1 Filed 01/23/18 Page 24 of 29 PageID #: 418
information provided by Defendant and their own evaluation of the merits. Accordingly, the third Grinnell factor favors final approval. See, e.g., Katz, 2014 WL 4966052, at *1, *9 (granting preliminary approval of FCRA settlement based on pre-mediation discovery and armslength negotiations); see also Ballinger v. Advance Magazine Publishers, Inc., No. 13 Civ. 4036, 2014 WL 7495092, at *2 (S.D.N.Y. Dec. 29, 2014); Morris, 859 F. Supp. 2d at 620 (collecting cases).
4. Plaintiffs Would Face Risk If the Case Proceeded (Grinnell Factors 4 and 5).
Although Plaintiffs believe their case is strong, it is subject to risk. “[R]isks are inherent in litigation.” Sewell v. Bovis Lend Lease, Inc., No. 09 Civ. 6548, 2012 WL 1320124, at *8 (S.D.N.Y. Apr. 16, 2012). Indeed, “[i]f settlement has any purpose at all, it is to avoid a trial on the merits because of the uncertainty of the outcome.” In re Ira Haupt & Co., 304 F. Supp. 917, 934 (S.D.N.Y. 1969). In weighing the risks of establishing liability and damages, the Court “must only weigh the likelihood of success by the plaintiff class against the relief offered by the settlement.” Sykes v. Harris, No. 09 Civ. 8486, 2016 WL 3030156, at *13 (S.D.N.Y. May 24, 2016) (quoting In re Austrian, 80 F. Supp. 2d at 177).
Here, Plaintiffs first would have had to survive a motion to dismiss. In its pre-motion letter to the Court, Defendant stated that it intended to move to dismiss Inman’s claims as timebarred (among other arguments). See ECF No. 23 at 3. Should Defendant have succeeded, two categories of individuals provided recovery through this settlement would have had their claims barred—employees who were fired after a background check, and employees and job applicants who only had timely claims if the longer five-year statute of limitation applied (three entire years of claims). See 15 U.S.C. § 1681p. In 2016, the Supreme Court also issued a new decision on standing, Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), which courts are still in the process of
17

Case 1:15-cv-06261-SMG Document 54-1 Filed 01/23/18 Page 25 of 29 PageID #: 419
interpreting, and which might have subjected Plaintiffs to further motion to dismiss briefing. Although Plaintiffs are confident that they would have survived both bases for motions to dismiss, the putative Class nonetheless faced risk.
If Plaintiffs’ claims survived, they would have faced risks as to class certification and summary judgment after a lengthy discovery process. If they lost on the issue of willfulness at summary judgment, recovery of statutory damages for the class would have been barred. Surviving those motions, a trial on the merits would involve significant risk as to both liability and damages. While Plaintiffs believe they could ultimately defeat Defendant’s defenses and establish liability, this would require significant factual development and favorable outcomes at trial, and on appeal, all of which is inherently uncertain and lengthy. The proposed settlement alleviates uncertainty. This factor weighs in favor of final approval.
5. Maintaining the Class Through Trial Would Not Be Simple (Grinnell Factor 6).
The risk of obtaining class certification and maintaining it through trial also is present. Defendant would likely contest class certification resulting in extensive discovery and briefing. Defendant may have argued different defenses for certain Class Members based on their particular factual circumstances. Although many FCRA cases are certified, there is nonetheless a legitimate risk that the Court would conclude that individualized factual inquiries would preclude class treatment. See, e.g., Delmoral v. Credit Prot. Ass’n, LP, No. 13 Civ. 242, 2015 WL 5793311, at *6 (E.D.N.Y. Sept. 30, 2015) (denying class certification in FDCPA case where “each proposed class member’s claim would require an individualized determination of exactly when he or she received the” relevant communications). If the Court were to grant class
18

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certification, Defendant would likely challenge that determination, requiring additional briefing including opposing a Rule 23(f) petition.5 Accordingly, this factor favors final approval.
6. Defendants’ Ability to Withstand a Greater Judgment Is Not Determinative (Grinnell Factor 7).
A “defendant[’s] ability to withstand a greater judgment, standing alone, does not suggest that the settlement is unfair.” In re Austrian, 80 F. Supp. 2d at 178 n.9. Here, the settlement eliminates the risk of collection by requiring Defendant to pay the full Settlement Amount owed within five days after the Effective Date, and significant amounts before then. See Ex. A (Settlement Agreement) § III(B). Accordingly, this factor is neutral.
7. The Settlement Fund Is Substantial, Even in Light of the Best Possible Recovery and the Attendant Risks of Litigation (Grinnell Factors 8 and 9).
The $900,000 Settlement Amount represents substantial value given the risks of litigation, even though the recovery might be greater if Plaintiffs survived a motion to dismiss, summary judgment, and prevailed and maintained a class through trial and on appeal. The determination of whether a settlement is reasonable ‘“is not susceptible of a mathematical equation yielding a particularized sum.”’ In re Austrian, 80 F. Supp. 2d at 178 (quoting In re Michael Milken & Assocs. Sec. Litig., 150 F.R.D. 57, 66 (S.D.N.Y. 1993)); see also Ballinger, 2014 WL 7495092, at *3 (“The inquiry . . . is to see whether the settlement falls below the lowest point in the range of reasonableness.”) (internal quotation omitted). “Instead, ‘there is a range of reasonableness with respect to a settlement—a range which recognizes the uncertainties

5

Moreover, Defendant’s position is that GEO’s records do not uniformly contain

information regarding whether an adverse employment decision was made on the basis of a

background check, or on other grounds not implicated by the FCRA and, thus, the class list is

necessarily over-inclusive. To address this potential, the parties have employed a claims process

requiring individuals to state that they “believe in good faith that GEO’s adverse employment

decision was related to information in [their] Consumer Report, and [they] did not receive timely

notices under the Fair Credit Reporting Act.” Ex. B (Cooley Decl.) at Ex. C (Claim Form).

19

Case 1:15-cv-06261-SMG Document 54-1 Filed 01/23/18 Page 27 of 29 PageID #: 421
of law and fact in any particular case and the concomitant risks and costs necessarily inherent in taking any litigation to completion.”’ Frank, 228 F.R.D. at 186 (quoting Newman v. Stein, 464 F.2d 689, 693 (2d Cir. 1972)). “[T]here is no reason, at least in theory, why a satisfactory settlement could not amount to a hundredth or even a thousandth part of a single percent of the potential recovery.” Grinnell, 495 F.2d at 455 n.2.
Here, the settlement provides more than “a fraction of the potential recovery.” Id. at 455. If (and only if) willfulness is proven by Plaintiffs, Class Members’ best outcome under the FCRA would be damages between $100 and $1,000 per claim. 15 U.S.C. § 1681n. Through this settlement, Class Members will receive $200 if they fall within the two-year statute of limitations period and $100 if they fall within the five-year statute of limitations (i.e. years 3-5). These potential recoveries are similar to, and in some cases well exceed, the range of acceptable recoveries approved by courts in FCRA settlements. White v. First Am. Registry, Inc., No. 04 Civ. 1611, 2007 WL 703926, at *2 (S.D.N.Y. Mar. 7, 2007) (finally approving payments up to $100 for class members who submit claims with pro rata reduction if total claims exceeds available balance after settlement expenses including claims administration and attorneys’ fees and costs deducted); Domonoske v. Bank of Am., N.A., 790 F. Supp. 2d 466, 470 (W.D. Va. 2011) (finally approving proportional payments up to $100, but no less than $2, for class members who submit claim forms).6

6

See also Watkins, 2016 WL 1732652, at *7 (preliminarily approving settlement where

cap to recovery was $200, but parties estimated each class member would receive approximately

$58.00); Manuel v. Wells Fargo Bank, Nat’l Ass’n, No. 14 Civ. 238, 2016 WL 1070819, at *2

(E.D. Va. Mar. 15, 2016) (finally approving settlement where class members would receive

either $35 or $75 dollars); Syed v. M-I LLC, No. 14 Civ. 742, 2016 WL 310135, at *8 (E.D. Cal.

Jan. 26, 2016) (finally approving settlement where class members would receive approximately

$16).

20

Case 1:15-cv-06261-SMG Document 54-1 Filed 01/23/18 Page 28 of 29 PageID #: 422
When a settlement assures immediate payment of substantial amounts to class members, “even if it means sacrificing speculative payment of a hypothetically larger amount years down the road,” settlement is reasonable under this factor. Gilliam v. Addicts Rehab. Ctr. Fund, No. 05 Civ. 3452, 2008 WL 782596, at *5 (S.D.N.Y. Mar. 24, 2008) (internal quotation omitted).
Further, beyond the cash payment, Plaintiffs have achieved significant equitable revisions aimed at ensuring that job applicants and employees will be provided with notification of their FCRA rights before an adverse action is taken—the issue at the heart of this litigation. This includes consolidating background check vendors, having the vendors send required notices, centralizing the process, training employees on the process, and auditing the process. GEO’s policies also will be included in its corporate policies and procedures manuals, helping inform employees of their FCRA rights (one of the central purposes of Section 1681b(b)(3)).
Significantly, the settlement also provides employees with the right to request copies of their background check reports even if no adverse action is taken. This provides employees with a free opportunity to review their credit and criminal history and address any issues presented (and is otherwise not a right provided by the FCRA). The equitable revisions are all the more significant given that the FCRA does not provide for injunctive relief and these revisions could not have been achieved absent this settlement. See White v. First Am. Registry, Inc., 378 F. Supp. 2d 419, 424 (S.D.N.Y. 2005) (holding injunctive and declaratory relief unavailable to private parties under FCRA); cf. Watkins, 2016 WL 1732652, at *7 (including equitable relief as benefit when weighing fairness of FCRA settlement).
Weighing the benefits of the settlement against the available evidence and the risks associated with proceeding in the litigation, the Settlement Amount is reasonable.
21

Case 1:15-cv-06261-SMG Document 54-1 Filed 01/23/18 Page 29 of 29 PageID #: 423
CONCLUSION For the reasons set forth above, Plaintiffs respectfully request that the Court grant their Motion for Certification of the Settlement Class and Final Approval of the Class Action Settlement, and enter the Proposed Order filed herewith. Dated: January 23, 2018 New York, New York
Respectfully submitted, /s/ Ossai Miazad OUTTEN & GOLDEN LLP Ossai Miazad Christopher McNerney 685 Third Avenue, 25th Floor New York, New York 10017 Telephone: (212) 245-1000 Facsimile: (646) 509-2060 Attorneys for Plaintiffs and the Settlement Class
22

 
 Case 1:15-cv-06261-SMG Document 57-8 Filed 01/23/18 Page 1 of 5 PageID #: 575
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