CLOSED,ECF,MAGCONSENT
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:18−cv−02993−DCF

Times et al v. Target Corporation

Date Filed: 04/05/2018

Assigned to: Magistrate Judge Debra C. Freeman

Date Terminated: 12/04/2019

Cause: 42:2000e−2e Job Discrimination (Unlawful Employment Jury Demand: Plaintiff

Practices)

Nature of Suit: 442 Civil Rights: Jobs

Jurisdiction: Federal Question

Plaintiff

Carnella Times On behalf of herself and all others similarly situated

represented by Cheryl−Lyn Deon Bentley Outten & Golden, LLP (NYC) 685 Third Avenue, 25th Floor New York, NY 10017 (212)−245−1000 Fax: (646)−509−2060 Email: cbentley@outtengolden.com TERMINATED: 09/09/2019

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

Coty Rae Montag NAACP Legal Defense and Educational Fund, Inc. 700 14th Street N.W. Suite 600 Washington, DC 20005 202−682−1300 Fax: 202−682−1312 Email: cmontag@naacpldf.org PRO HAC VICE ATTORNEY TO BE NOTICED

Giovanna Shay Greater Hartford Legal Aid 999 Asylum Ave., 3rd Floor Hartford, CT 06105 (860)−541−5061 Fax: (860)−541−5050 Email: gshay@ghla.org ATTORNEY TO BE NOTICED

Lisa Ann Levy Greater Hartford Legal Aid, Inc. 999 Asylum Avenue, 3rd Fl. Hartford, CT 06105 (860)−541−5021 Fax: (860)−541−5050 Email: llevy@ghla.org ATTORNEY TO BE NOTICED

Ossai Miazad Outten & Golden, LLP (NYC) 685 Third Avenue, 25th Floor

Plaintiff
Erving Smith On behalf of himself and all others similarly situated

New York, NY 10017 (212)−245−1000 Fax: (646)−509−2060 Email: omiazad@outtengolden.com ATTORNEY TO BE NOTICED
Samuel Spital NAACP Legal Defense & Educational Fund, Inc. 40 Rector Street, 5th Floor New York, NY 10006 212−965−2200 Fax: 212−226−7592 Email: SSpital@naacpldf.org ATTORNEY TO BE NOTICED
Sherrilyn A. Ifill NAACP Legal Defense & Educational Fund, Inc. 40 Rector Street 5th Floor New York, NY 10006 (212)−965−2200 Email: sifill@naacpldf.org ATTORNEY TO BE NOTICED
Adam T Klein Outten & Golden, LLP (NYC) 685 Third Avenue, 25th Floor New York, NY 10017 212 245−1000 Fax: (646)−509−2060 Email: atk@outtengolden.com ATTORNEY TO BE NOTICED
represented by Cheryl−Lyn Deon Bentley (See above for address) TERMINATED: 09/09/2019
Christopher McNerney (See above for address) ATTORNEY TO BE NOTICED
Coty Rae Montag (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ossai Miazad (See above for address) ATTORNEY TO BE NOTICED
Samuel Spital (See above for address) ATTORNEY TO BE NOTICED
Sherrilyn A. Ifill (See above for address) ATTORNEY TO BE NOTICED
Adam T Klein (See above for address) ATTORNEY TO BE NOTICED

Plaintiff The Fortune Society, Inc.
V. Defendant Target Corporation
Date Filed # Docket Text

represented by Cheryl−Lyn Deon Bentley (See above for address) TERMINATED: 09/09/2019
Christopher McNerney (See above for address) ATTORNEY TO BE NOTICED
Coty Rae Montag (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ossai Miazad (See above for address) ATTORNEY TO BE NOTICED
Samuel Spital (See above for address) ATTORNEY TO BE NOTICED
Sherrilyn A. Ifill (See above for address) ATTORNEY TO BE NOTICED
Adam T Klein (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph George Schmitt Nilan Johnson Lewis Pa 120 South Sixth Street, Suite 400 Minneapolis, MN 55402 (612)−305−7577 Fax: (612)−305−7501 Email: jschmitt@nilanjohnson.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Donald Marion Lewis Nilan Johnson Lewis Pa 120 South Sixth Street, Suite 400 Minneapolis, MN 55402 612−305−7500 Fax: 612−305−7501 Email: dlewis@nilanjohnson.com ATTORNEY TO BE NOTICED
Mark Girouard Nilan Johnson Lewis Pa 120 South Sixth Street, Suite 400 Minneapolis, MN 55402 (612)−305−7579 Email: mgirouard@nilanjohnson.com ATTORNEY TO BE NOTICED

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1 COMPLAINT against Target Corporation. (Filing Fee $ 400.00, Receipt Number 0208−14902103)Document filed by Carnella Times, The Fortune Society, Inc., Erving Smith.(Klein, Adam) (Entered: 04/05/2018)
2 REQUEST FOR ISSUANCE OF SUMMONS as to Target Corporation, re: 1 Complaint. Document filed by Erving Smith, The Fortune Society, Inc., Carnella Times. (Klein, Adam) (Entered: 04/05/2018)
3 CIVIL COVER SHEET filed. (Klein, Adam) (Entered: 04/05/2018)
4 MOTION to Approve Notice of Plaintiffs' Unopposed Motion for Preliminary Approval of Class Action Settlement, Conditional Certification of Settlement Class, Appointment of Class Counsel, and Approval of Plaintiffs' Proposed Notice of Settlement . Document filed by Erving Smith, The Fortune Society, Inc., Carnella Times.(Miazad, Ossai) (Entered: 04/05/2018)
5 MEMORANDUM OF LAW in Support re: 4 MOTION to Approve Notice of Plaintiffs' Unopposed Motion for Preliminary Approval of Class Action Settlement, Conditional Certification of Settlement Class, Appointment of Class Counsel, and Approval of Plaintiffs' Proposed Notice of Settle . Document filed by Erving Smith, The Fortune Society, Inc., Carnella Times. (Miazad, Ossai) (Entered: 04/05/2018)
6 DECLARATION of Ossai Miazad in Support re: 4 MOTION to Approve Notice of Plaintiffs' Unopposed Motion for Preliminary Approval of Class Action Settlement, Conditional Certification of Settlement Class, Appointment of Class Counsel, and Approval of Plaintiffs' Proposed Notice of Settle. Document filed by Erving Smith, The Fortune Society, Inc., Carnella Times. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Miazad, Ossai) (Entered: 04/05/2018)
7 DECLARATION of Coty Montag in Support re: 4 MOTION to Approve Notice of Plaintiffs' Unopposed Motion for Preliminary Approval of Class Action Settlement, Conditional Certification of Settlement Class, Appointment of Class Counsel, and Approval of Plaintiffs' Proposed Notice of Settle. Document filed by Erving Smith, The Fortune Society, Inc., Carnella Times. (Miazad, Ossai) (Entered: 04/05/2018)
8 NOTICE OF APPEARANCE by Sherrilyn A. Ifill on behalf of Erving Smith, The Fortune Society, Inc., Carnella Times. (Ifill, Sherrilyn) (Entered: 04/05/2018)
9 NOTICE OF APPEARANCE by Samuel Spital on behalf of Erving Smith, The Fortune Society, Inc., Carnella Times. (Spital, Samuel) (Entered: 04/05/2018)
CASE OPENING INITIAL ASSIGNMENT NOTICE: The above−entitled action is assigned to Judge Deborah A. Batts. Please download and review the Individual Practices of the assigned District Judge, located at http://nysd.uscourts.gov/judges/District. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at http://nysd.uscourts.gov/ecf_filing.php. (pne) (Entered: 04/06/2018)
Magistrate Judge Debra C. Freeman is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: http://nysd.uscourts.gov/forms.php. (pne) (Entered: 04/06/2018)
Case Designated ECF. (pne) (Entered: 04/06/2018)
10 ELECTRONIC SUMMONS ISSUED as to Target Corporation. (pne) (Entered: 04/09/2018)
11 WAIVER OF SERVICE RETURNED EXECUTED. Target Corporation waiver sent on 4/5/2018, answer due 6/4/2018. Document filed by Carnella Times; The Fortune Society, Inc.; Erving Smith. (Miazad, Ossai) (Entered: 04/11/2018)
12 FILING ERROR − DEFICIENT DOCKET ENTRY − PROPOSED MOTION for Coty Rae Montag to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−15005365. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Erving Smith, The Fortune Society, Inc., Carnella Times. (Attachments: # 1 Affidavit Affidavit of Coty R. Montag, # 2 Supplement Cert. of

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Good Standing, # 3 Text of Proposed Order Proposed Order)(Montag, Coty) Modified on 4/30/2018 (bcu). (Entered: 04/30/2018)
>>>NOTICE REGARDING DEFICIENT MOTION TO APPEAR PRO HAC VICE. Notice to RE−FILE Document No. 12 PROPOSED MOTION for Coty Rae Montag to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−15005365. Motion and supporting papers to be reviewed by Clerk's Office staff... The filing is deficient for the following reason(s): missing Certificate of Good Standing from Supreme Court of California and please do not put the word "PROPOSED" in the filing;. Re−file the motion as a Corrected Motion to Appear Pro Hac Vice − attach the correct signed PDF − select the correct named filer/filers − attach valid Certificates of Good Standing issued within the past 30 days − attach Proposed Order.. (bcu) (Entered: 04/30/2018)
13 MOTION for Giovanna Shay to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−15029199. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Carnella Times. (Attachments: # 1 Text of Proposed Order, # 2 Affidavit Declaration of Attorney, # 3 Exhibit Certificate of Good Standing D.C. (inactive), # 4 Exhibit Certificate of Good Standing Connecticut, # 5 Exhibit Certificate of Good Standing Massachusetts)(Shay, Giovanna) (Entered: 05/04/2018)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 13 MOTION for Giovanna Shay to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−15029199. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (jc) (Entered: 05/04/2018)
14 MOTION for Coty Rae Montag to Appear Pro Hac Vice CORRECTED. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Erving Smith, The Fortune Society, Inc., Carnella Times. (Attachments: # 1 Affidavit of Coty R. Montag, # 2 District of Columbia Cert of Good Standing, # 3 Maryland Cert of Good Stan, # 4 California Cert of Good Standing, # 5 Text of Proposed Order)(Montag, Coty) (Entered: 05/07/2018)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 14 MOTION for Coty Rae Montag to Appear Pro Hac Vice CORRECTED. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (wb) (Entered: 05/07/2018)
15 MOTION for Lisa Ann Levy to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−15037416. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Carnella Times. (Attachments: # 1 Affidavit Attorney Declaration, # 2 Exhibit Certificate of Good Standing Mass, # 3 Exhibit Certificate of Good Standing CT, # 4 Text of Proposed Order)(Levy, Lisa) (Entered: 05/07/2018)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 15 MOTION for Lisa Ann Levy to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−15037416. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (jc) (Entered: 05/07/2018)
16 MOTION for Mark J. Girouard to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−15038251. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Target Corporation. (Attachments: # 1 Affidavit Affidavit of Girouard re Motion for Pro Hac Vice, # 2 Exhibit Certificate of Good Standing for Girouard, # 3 Text of Proposed Order Order for Motion Pro Hac Vice)(Girouard, Mark) (Entered: 05/07/2018)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 16 MOTION for Mark J. Girouard to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−15038251. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (wb) (Entered: 05/08/2018)
17 MOTION for Joseph G. Schmitt to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−15041228. Motion and supporting papers to be reviewed by Clerk's

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Office staff. Document filed by Target Corporation. (Attachments: # 1 Affidavit of Joseph Schmitt, # 2 Exhibit Certificate of Good Standing for Schmitt, # 3 Text of Proposed Order Order for Motion Pro Hac Vice)(Schmitt, Joseph) (Entered: 05/08/2018)
18 CONSENT TO JURISDICTION BY A US MAGISTRATE JUDGE by Erving Smith, Target Corporation, The Fortune Society, Inc., Carnella Times. (Case No Longer Referred to Magistrate Judge) CASE ASSIGNED to Magistrate Judge Debra C. Freeman. (Signed by Judge Deborah A. Batts on 5/7/2018) (kgo) (Entered: 05/08/2018)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 17 MOTION for Joseph G. Schmitt to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−15041228. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (wb) (Entered: 05/08/2018)
19 ORDER FOR ADMISSION PRO HAC VICE granting 13 Motion for Giovanna Shay to Appear Pro Hac Vice. (Signed by Magistrate Judge Debra C. Freeman on 5/11/2018) (rjm) (Entered: 05/11/2018)
20 ORDER FOR ADMISSION PRO HAC VICE OF MARK J.GIROUARD granting 16 Motion for Mark J. Girouard to Appear Pro Hac Vice. (Signed by Magistrate Judge Debra C. Freeman on 5/11/2018) (ne) (Entered: 05/11/2018)
21 ORDER FOR ADMISSION PRO HAC VICE OF JOSEPH G. SCHMITT granting 17 Motion for Joseph G. Schmitt to Appear Pro Hac Vice. (Signed by Magistrate Judge Debra C. Freeman on 5/11/2018) (ne) Modified on 7/19/2018 (ne). (Entered: 05/11/2018)
22 ORDER FOR ADMISSION PRO HAC VICE granting 14 Motion for Coty R. Montag to Appear Pro Hac Vice. (Signed by Magistrate Judge Debra C. Freeman on 5/11/2018) (ne) (Entered: 05/11/2018)
23 ORDER FOR ADMISSION PRO HAC VICE granting 15 Motion for Lisa Ann Levy to Appear Pro Hac Vice. (Signed by Magistrate Judge Debra C. Freeman on 5/11/2018) (ne) (Entered: 05/11/2018)
24 ORDER GRANTING PLAINTIFFS' UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT, CONDITIONAL CERTIFICATION OF SETTLEMENT CLASS, APPOINTMENT OF CLASS COUNSEL, AND APPROVAL OF PLAINTIFFS' PROPOSED NOTICE OF SETTLEMENT: granting 4 Motion to Approve. Having reviewed Plaintiffs' Notice of Motion and Motion For: (1) Preliminary Approval of Class Action Settlement; (2) Provisional Certification of Settlement Classes; (3) Approval and Distribution of Notice of Settlement; and ( 4) Appointment of Plaintiffs' counsel as Class Counsel; Plaintiffs' Memorandum of Law in Support thereof, and the proposed Settlement Agreement, along with the files and records of this case, the Court now FINDS, CONCLUDES, and ORDERS as follows: This Court has jurisdiction over the subject matter of the litigation and over all parties to this litigation, including all members of the Settlement Class, as defined below. As used below, "Defendant" means Target Corporation. Based on review of those papers, the Court concludes that the proposed Settlement Agreement was reached after Class Counsel thoroughly investigated the claims and defenses and became familiar with the strengths and weaknesses of Plaintiffs' case and was a result of extensive, arm's length negotiations between counsel well−versed in the prosecution of complex employment class actions. It is therefore ORDERED: That the Settlement Agreement is hereby PRELIMINARILY APPROVED. Final approval and entry of the Settlement Agreement is subject to a final hearing of any objections of members of the class to the proposed Settlement Agreement. Defendant will transfer Three Million Seven Hundred and Forty−Two Thousand, Five Hundred and Noll 00 Dollars ($3,742,500.00) to the Settlement Fund within fourteen days of the effective date of the settlement (which is defined as the later of: (a) the expiration of time for appeal of the Court Order finally approving the Settlement; or (b) if there is an appeal of the Court's decision granting final approval, the day after all appeals are finally resolved in favor of final approval). This amount shall be placed into an interest−bearing escrow account established by the settlement administrator, as escrow agent. Target has agreed to individual monetary awards not to

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exceed One Thousand Dollars ($1,000.00). The settlement administrator will oversee a simplified claims process. Settlement Class Members will be entitled to a single, pro rata award based on number of participants. Defendant's total contribution toward cash awards will not exceed One Million Two Hundred Thousand Dollars ($1,200,000.00) of the Settlement Fund. The parties have also agreed that Six Hundred Thousand Dollars ($600,000.00) of the Settlement Fund will be granted to not−for−profit organizations that provide re−entry support to individuals with criminal history records, with the goal of supporting those organizations' efforts to develop a pipeline of qualified applicants who have successfully completed work ready programs at such organizations (the "Pipeline Project"). These organizations will receive written information about the Pipeline Project and an invitation to submit statements of interest and other materials to assist in the selection of participant organizations. Settlement Class Members will receive notice of the selected work ready programs participating in the Pipeline Project, and as further set forth in this order. The Court CONDITIONALLY CERTIFIES the Settlement Class under Rules 23(a) and 23(b)(3). (Signed by Magistrate Judge Debra C. Freeman on 5/14/2018) (ap) Modified on 5/15/2018 (ap). (Entered: 05/14/2018)
25 JOINT LETTER addressed to Magistrate Judge Debra C. Freeman from Ossai Miazad dated July 13, 2018 re: Status Update regarding Industrial Organizational Expert Work. Document filed by Erving Smith, The Fortune Society, Inc., Carnella Times.(Miazad, Ossai) (Entered: 07/13/2018)
26 NOTICE OF APPEARANCE by Christopher McNerney on behalf of Erving Smith, The Fortune Society, Inc., Carnella Times. (McNerney, Christopher) (Entered: 07/13/2018)
27 NOTICE OF APPEARANCE by Cheryl−Lyn Deon Bentley on behalf of Erving Smith, The Fortune Society, Inc., Carnella Times. (Bentley, Cheryl−Lyn) (Entered: 07/13/2018)
28 MEMO ENDORSEMENT on re: 25 Letter Status Update, filed by Erving Smith, The Fortune Society, Inc., Carnella Times. ENDORSEMENT: Granted. So Ordered. (Signed by Magistrate Judge Debra C. Freeman on 7/16/18) (yv) (Entered: 07/17/2018)
29 LETTER addressed to Magistrate Judge Debra C. Freeman from Ossai Miazad dated September 27, 2018 re: Second Status Update regarding Industrial Organizational Expert Work. Document filed by Erving Smith, The Fortune Society, Inc., Carnella Times.(Miazad, Ossai) (Entered: 09/27/2018)
30 MEMO ENDORSEMENT on re: 29 Letter, filed by Erving Smith, The Fortune Society, Inc., Carnella Times. Granted. SO ORDERED. (Signed by Magistrate Judge Debra C. Freeman on 10/12/2018) (jca) (Entered: 10/12/2018)
31 LETTER addressed to Magistrate Judge Debra C. Freeman from Ossai Miazad dated November 30, 2018 re: Third Status Update regarding Industrial Organizational Expert Work. Document filed by Erving Smith, The Fortune Society, Inc., Carnella Times.(Miazad, Ossai) (Entered: 11/30/2018)
32 JOINT LETTER addressed to Magistrate Judge Debra C. Freeman from Ossai Miazad dated July 11, 2019 re: Status Update Regarding Industrial Organizational Expert Work. Document filed by Erving Smith, The Fortune Society, Inc., Carnella Times. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Miazad, Ossai) (Entered: 07/11/2019)
33 ORDER APPROVING ADDENDUM TO SETTLEMENT AGREEMENT AND RELEASE, REVISED NOTICE OF CLASS ACTION SETTLEMENT AND CLAIM FORM, AND SCHEDULE FOR NOTICE DISTRIBUTION AND FINAL APPROVAL re: 24 Order on Motion to Approve. The Court ORDERS: 1. The Settlement Addendum is hereby APPROVED. Final approval and entry of the Settlement Agreement and Settlement Addendum is subject to a final hearing of any objections of members of the class to the proposed Settlement Agreement. In its May 14, 2018 Preliminary Approval Order, the Court approved the form of Notice of Class Action Settlement and Claim Form and the manner for distribution. ECF No. 24 at 4−7. The parties have submitted for this Court's approval a revised Notice of Class Action Settlement and Claim Form for Group A Filers attached as Exhibit A to the

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Joint Status Report and a revised Notice of Class Action Settlement and Claim Form for Group B Filers attached as Exhibit B to the Joint Status Report (collectively, "revised Notices and Claim Forms"). The Court FINDS and CONCLUDES as follows: l. The revised Notices and Claim Forms are the best notice practicable under the circumstances and allows Settlement Class Members a full and fair opportunity to consider the proposed settlement. 2. The revised Notices and Claim Forms provide separate notices and claims forms for Class Members who are eligible to be either Group A or Group B Filers and Class Members who are eligible only as Group B Filers. The revised Notices and Claim Forms will provide specific information regarding the date, time, and place of the final approval hearing and how to object to or exclude oneself from the settlement. This information is adequate to put Class Members on notice of the proposed settlement and is well within the requirements of Rule 23(c)(2)(B). (as further set forth in this Order). It is SO ORDERED. (Signed by Magistrate Judge Debra C. Freeman on 7/18/2019) (kv) (Entered: 07/18/2019)
34 NOTICE OF CHANGE OF ADDRESS by Coty Rae Montag on behalf of Erving Smith, The Fortune Society, Inc., Carnella Times. New Address: NAACP Legal Defense and Educational Fund, Inc., 700 14th St. N.W., Suite 600, Washington, DC, United States 20005, 202−682−1300. (Montag, Coty) (Entered: 07/22/2019)
35 LETTER addressed to Magistrate Judge Debra C. Freeman from Cheryl−Lyn D. Bentley dated September 06, 2019 re: Withdrawal of Cheryl−Lyn D. Bentley as Attorney of Record. Document filed by Erving Smith, The Fortune Society, Inc., Carnella Times.(Bentley, Cheryl−Lyn) (Entered: 09/06/2019)
36 MEMO ENDORSEMENT on re: 35 Letter, filed by Erving Smith, The Fortune Society, Inc., Carnella Times. ENDORSEMENT: SO ORDERED. Attorney Cheryl−Lyn Deon Bentley terminated. (Signed by Magistrate Judge Debra C. Freeman on 9/9/2019) (kv) (Entered: 09/09/2019)
37 LETTER addressed to Magistrate Judge Debra C. Freeman from Mark J. Girouard dated September 27, 2019 re: Issue with the claims administration process. Document filed by Target Corporation. (Attachments: # 1 Exhibit A − Notice (Clean), # 2 Exhibit B − Claim (Clean), # 3 Exhibit C − Marked Up Notice, # 4 Exhibit D − Marked Up Claim)(Girouard, Mark) (Entered: 09/27/2019)
38 MEMO ENDORSEMENT on re: 37 Letter, filed by Target Corporation. ENDORSEMENT: The parties proposed approach, as outline on page 3 of this letter, is approved. SO ORDERED. (Signed by Magistrate Judge Debra C. Freeman on 10/4/2019) (kv) (Entered: 10/04/2019)
39 FILING ERROR − DEFICIENT DOCKET ENTRY − MOTION for Donald M. Lewis to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC−17718058. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Target Corporation.(Lewis, Donald) Modified on 10/4/2019 (bcu). (Entered: 10/04/2019)
40 FILING ERROR − DEFICIENT DOCKET ENTRY − AFFIDAVIT of Donald M. Lewis in Support re: 39 MOTION for Donald M. Lewis to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC−17718058. Motion and supporting papers to be reviewed by Clerk's Office staff.. Document filed by Target Corporation. (Lewis, Donald) Modified on 10/4/2019 (bcu). (Entered: 10/04/2019)
>>>NOTICE REGARDING DEFICIENT MOTION TO APPEAR PRO HAC VICE. Notice to RE−FILE Document No. 39 MOTION for Donald M. Lewis to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC−17718058. Motion and supporting papers to be reviewed by Clerk's Office staff... The filing is deficient for the following reason(s): missing Certificate of Good Standing from Supreme Court of Minnesota. We do not except certificates from state bar associations.; missing Proposed Order; Attorney Affidavit/Declaration missing per local rule 1.3;. Re−file the motion as a Corrected Motion to Appear Pro Hac Vice − attach the correct signed PDF − select the correct named filer/filers − attach valid Certificates of Good Standing issued within the past 30 days − attach Proposed Order.. (bcu) (Entered: 10/04/2019)
41 MOTION for Donald M. Lewis to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Target

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Corporation. (Attachments: # 1 Affidavit Affidavit of Donald M. Lewis in Support of Motion for Admission Pro Hac Vice, # 2 Exhibit Certificate of Good Standing, # 3 Text of Proposed Order)(Lewis, Donald) (Entered: 10/04/2019)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 41 MOTION for Donald M. Lewis to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (bcu) (Entered: 10/04/2019)
42 MOTION to Approve Motion for Certification of the Settlement Class and Final Approval of Class Action Settlement . Document filed by Erving Smith, The Fortune Society, Inc., Carnella Times.(Miazad, Ossai) (Entered: 10/09/2019)
43 MEMORANDUM OF LAW in Support re: 42 MOTION to Approve Motion for Certification of the Settlement Class and Final Approval of Class Action Settlement . . Document filed by Erving Smith, The Fortune Society, Inc., Carnella Times. (Miazad, Ossai) (Entered: 10/09/2019)
44 MOTION to Approve Motion for Approval of Service Awards . Document filed by Erving Smith, The Fortune Society, Inc., Carnella Times.(Miazad, Ossai) (Entered: 10/09/2019)
45 MEMORANDUM OF LAW in Support re: 44 MOTION to Approve Motion for Approval of Service Awards . . Document filed by Erving Smith, The Fortune Society, Inc., Carnella Times. (Miazad, Ossai) (Entered: 10/09/2019)
46 MOTION to Approve Motion for Approval of Attorneys' Fees and Costs . Document filed by Erving Smith, The Fortune Society, Inc., Carnella Times.(Miazad, Ossai) (Entered: 10/09/2019)
47 MEMORANDUM OF LAW in Support re: 46 MOTION to Approve Motion for Approval of Attorneys' Fees and Costs . . Document filed by Erving Smith, The Fortune Society, Inc., Carnella Times. (Miazad, Ossai) (Entered: 10/09/2019)
48 DECLARATION of Ossai Miazad in Support re: 46 MOTION to Approve Motion for Approval of Attorneys' Fees and Costs ., 44 MOTION to Approve Motion for Approval of Service Awards ., 42 MOTION to Approve Motion for Certification of the Settlement Class and Final Approval of Class Action Settlement .. Document filed by Erving Smith, The Fortune Society, Inc., Carnella Times. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Miazad, Ossai) (Entered: 10/09/2019)
49 DECLARATION of Coty Montag in Support re: 46 MOTION to Approve Motion for Approval of Attorneys' Fees and Costs ., 44 MOTION to Approve Motion for Approval of Service Awards ., 42 MOTION to Approve Motion for Certification of the Settlement Class and Final Approval of Class Action Settlement .. Document filed by Erving Smith, The Fortune Society, Inc., Carnella Times. (Miazad, Ossai) (Entered: 10/09/2019)
50 DECLARATION of Lisa Levy in Support re: 46 MOTION to Approve Motion for Approval of Attorneys' Fees and Costs ., 44 MOTION to Approve Motion for Approval of Service Awards ., 42 MOTION to Approve Motion for Certification of the Settlement Class and Final Approval of Class Action Settlement .. Document filed by Erving Smith, The Fortune Society, Inc., Carnella Times. (Miazad, Ossai) (Entered: 10/09/2019)
51 DECLARATION of Joanne Page in Support re: 44 MOTION to Approve Motion for Approval of Service Awards .. Document filed by Erving Smith, The Fortune Society, Inc., Carnella Times. (Miazad, Ossai) (Entered: 10/09/2019)
52 ORDER FOR ADMISSION PRO HAC VICE OF DONALD M. LEWIS granting 41 Motion for Donald M. Lewis to Appear Pro Hac Vice. IT IS HEREBY ORDERED that Applicant is admitted to practice Pro Hac Vice in the above−captioned case in the United States District Court for the Southern District of New York. All attorneys appearing before this Court are subject to the Local Rules of this Court, including the Rules governing discipline of attorneys. (Signed by Magistrate Judge Debra C. Freeman on 10/10/2019) (kv) (Entered: 10/10/2019)

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10/28/2019 10/29/2019 10/29/2019

53 ORDER FOR ADMISSION PRO HAC VICE OF DONALD M. LEWIS: The motion of Donald M. Lewis for admission to practice Pro Hac Vice in the above−captioned action is GRANTED. IT IS HEREBY ORDERED that Applicant is admitted to practice Pro Hac Vice in the above−captioned case in the United States District Court for the Southern District of New York. All attorneys appearing before this Court are subject to the Local Rules of this Court, including the Rules governing discipline of attorneys. (Signed by Magistrate Judge Debra C. Freeman on 10/16/2019) (kv) (Entered: 10/16/2019)
54 SUPPLEMENTAL MEMORANDUM OF LAW in Support re: 46 MOTION to Approve Motion for Approval of Attorneys' Fees and Costs ., 44 MOTION to Approve Motion for Approval of Service Awards ., 42 MOTION to Approve Motion for Certification of the Settlement Class and Final Approval of Class Action Settlement . . Document filed by Erving Smith, The Fortune Society, Inc., Carnella Times. (Attachments: # 1 Exhibit 1: Updated Fees Summary, # 2 Exhibit 2: Updated Costs Summary)(Miazad, Ossai) (Entered: 10/28/2019)
Minute Entry for proceedings held before Magistrate Judge Debra C. Freeman: Fairness Hearing held on 10/29/2019. (aba) (Entered: 10/29/2019)
55 ORDER GRANTING PLAINTIFFS' UNOPPOSED MOTIONS FOR CERTIFICATION OF THE SETTLEMENT CLASS AND CONDITIONALLY GRANTING FINAL APPROVAL OF THE CLASS ACTION SETTLEMENT, APPROVAL OF ATTORNEYS' FEES AND COSTS, AND APPROVAL OF SERVICE AWARD granting 42 Motion to Approve Motion for Certification of the Settlement Class and Final Approval of Class Action Settlement; granting 44 Motion to Approve Motion for Approval of Service Awards ; granting 46 Motion to Approve Motion for Approval of Attorneys' Fees and Costs. Based upon the Court's review of the motions, memorandum, declarations, and other papers submitted in connection with the Motions for Final Approval and conditioned on no additional class members who were belatedly given notice of the proposed settlement coming forward with objections, the Court grants final approval of the settlement memorialized in the Settlement Agreement and "so orders" all of its, terms, which are incorporated herein. Capitalized terms used in this Order shall have the same meanings as set forth in the Settlement Agreement, unless otherwise defined herein. IT IS HEREBY ORDERED AS FOLLOWS: Pursuant to Rule 23, the Court certifies the following Settlement Class: all African−American and Latino applicants who were denied employment from a Target Stores Job due to a final adjudication on a pre−employment background check that did not clear the applicant to proceed based on their criminal history record, from May 11, 2006, to May 14, 2018, except: (1) individuals are excluded if Target can establish they were, or would have been, denied employment for reasons other than their criminal history records; (2) individuals are excluded if they have convictions that would have rendered them unqualified for employment under the Interim Criteria, if those criteria had been effect at the time of their application; and (3) individuals are excluded if they are current Target Team Members. The Court hereby conditionally finally approves the Settlement as set forth in the Settlement Agreement. The Court has reviewed the terms of the proposed Settlement Agreement along with its exhibits, including specifically the programmatic and class member relief, and Plaintiffs' Motions for Final Approval. The parties have also agreed that Six Hundred Thousand Dollars ($600,000.00) will be granted to not−for−profit organizations that provide re−entry support to individuals with criminal history records, with the goal of supporting those organizations' efforts to develop a pipeline of qualified applicants who have successfully completed work ready programs at such organizations (the "Pipeline Project"). These organizations will receive written information about the Pipeline Project and an invitation to submit statements of interest and other materials to assist in the selection of participant organizations. Settlement Class Members will receive notice of the selected work ready programs participating in the Pipeline Project. Within fourteen (14) days of the Effective Date of the Settlement, Defendant will pay to Class Counsel Three Million Seven Hundred and Forty−Two Thousand, Five Hundred and No/100 Dollars ($3,742,500.00), which shall fully resolve and satisfy the programmatic, individualized, and organizational relief, any claim for attorneys' fees and costs approved by the Court, and any Court−approved Service Awards to Named Plaintiffs. The Settlement is hereby APPROVED and incorporated herein and shall become effective according to its terms. Upon the Effective Date of the Settlement, each Settlement Class Member who has not excluded him or herself

11/19/2019 11/19/2019 12/03/2019 12/04/2019 12/26/2019

will release the Defendant from: all claims, demands, causes of action, and liabilities, known and unknown, that they had, have, or may have under any legal or equitable theory, against Defendant arising from or relating to or concerning their denial of a Target Stores Job based on criminal history records under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. and parallel state and local laws, rules, regulations and ordinances. The Class Release will not include claims under the federal Fair Credit Reporting Act, which is the subject of a separate, unrelated settlement. The Court awards Class Counsel an award of $1,900,000.00 in fees and in costs for their efforts in support of this litigation. The award to Class Counsel of $1,900,000 in less than their total loadstar as of September 22, 2019, and does not include all the work that Class Counsel has done since September 22, 2019, or will do in the future. In light of the above, the award of $1,900,000.00 in fees and costs is a reasonable award. The award shall be paid by Defendant. The Court finds that service awards of $20,000 to Named Plaintiff Camella Times and the Fortune Society, and a service award of $2,500 to Named Plaintiff Erving Smith, are reasonable. Without affecting the finality of this Settlement Order and Final Judgment, the Court retains continuing jurisdiction over: (a) implementation of the Settlement Agreement and programmatic relief contemplated by the Settlement Agreement, until all acts agreed to be performed pursuant to the Settlement Agreement have been performed; and (b) all parties to this action and Settlement Class Members for the purpose of enforcing and administering the Settlement Agreement. This final order grants certification of the settlement class, but the Court's approval of the terms of the settlement agreement is conditioned on this Court's being informed by counsel that, by the expiration of the op−out period for any class members who were belatedly served with notice of the proposed settlement, no such class members stepped forward with any objections to the settlement, or expressed a desire to be heard by the Court as to the settlement agreement's adequacy and fairness. Counsel are directed to provide a written update to the Court by 12/19/19, to inform the Court if any such claim members wish to be heard. The Clerk of Court is directed to keep this case open, pending further order of the Court and as further set forth in this Order. It is so ORDERED. (Signed by Magistrate Judge Debra C. Freeman on 10/29/19) (yv) (Entered: 10/30/2019)
56 TRANSCRIPT of Proceedings re: SETTLEMENT CONFERENCE held on 10/29/2019 before Magistrate Judge Debra C. Freeman. Court Reporter/Transcriber: Carole Ludwig, (212) 420−0771. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/10/2019. Redacted Transcript Deadline set for 12/20/2019. Release of Transcript Restriction set for 2/18/2020.(kgo) (Entered: 11/19/2019)
57 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a SETTLEMENT CONFERENCE proceeding held on 10/29/2019 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(kgo) (Entered: 11/19/2019)
58 LETTER addressed to Magistrate Judge Debra C. Freeman from Ossai Miazad dated December 3, 2019 re: Supplemental Notice Status Update. Document filed by Erving Smith, The Fortune Society, Inc., Carnella Times. (Attachments: # 1 Exhibit 1: Objection, # 2 Exhibit 2: Proposed Order)(Miazad, Ossai) (Entered: 12/03/2019)
59 ORDER FINALLY APPROVING SETTLEMENT AGREEMENT: Having reviewed Plaintiffs' December 3, 2019 Status Report providing the requested information, and having reviewed the single additional objections received (Dkt. 58−1), the Court now FINDS, CONCLUDES, and ORDERS as follows: The Court's October 29, 2019 Order Conditionally Granting Final Approval of the Class Action Settlement, Approval of Attorneys' Fees and Costs, And Approval of Service Award is adopted herein and Finally Approved. The Clerk of Court is directed to close this matter. (Signed by Magistrate Judge Debra C. Freeman on 12/4/2019) (mro) (Entered: 12/04/2019)
60 MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S MOTION TO INTERVENE AS A CLASS MEMBER. Document filed by Isaac J. Rodriguez, non −party. (sc) Modified on 12/30/2019 (sc). (Entered: 12/30/2019)

01/08/2020 01/16/2020

61 LETTER addressed to Magistrate Judge Debra C. Freeman from Ossai Miazad dated January 8, 2020 re: Response to Motion to Intervene as Class Member filed by Isaac Rodriguez on December 26, 2019, ECF. No. 60. Document filed by Erving Smith, The Fortune Society, Inc., Carnella Times.(Miazad, Ossai) (Entered: 01/08/2020)
62 MEMO ENDORSEMENT on MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S MOTION TO INTERVENE AS A CLASS MEMBER re: 60 Memorandum of Law in Support. ENDORSEMENT: The prose motion of Isaac Rodriguez to intervene in this action is denied as moot, in light of the stated agreement of the parties to include Mr. Rodriguez as a class member. (See Dkt. 61). SO ORDERED. (Signed by Magistrate Judge Debra C. Freeman on 1/16/2020) (ks) (Entered: 01/16/2020)

 
 Case 1:18-cv-02993 Document 1 Filed 04/05/18 Page 1 of 16

OUTTEN & GOLDEN LLP Adam T. Klein Ossai Miazad Lewis Steel Cheryl-Lyn Bentley Christopher McNerney 685 Third Avenue, 25th Floor New York, New York 10017
*Pro hac vice motion forthcoming

NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. Sherrilyn Ifill Samuel Spital 40 Rector Street, 5th Floor New York, New York 10006
Coty Montag* 1444 I Street NW, 10th Floor Washington, DC 20005

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

CARNELLA TIMES and ERVING SMITH, on behalf of themselves and all others similarly situated, and THE FORTUNE SOCIETY, INC.
Plaintiffs,
v.
TARGET CORPORATION,
Defendant.

CLASS ACTION COMPLAINT Jury Trial Demanded

Carnella Times and Erving Smith, individually and on behalf of all others similarly situated (“Named Plaintiffs”), and The Fortune Society, Inc. (“Organizational Plaintiff Fortune” or “Fortune”) (collectively, “Plaintiffs”) by their attorneys, bring the following allegations against Defendant Target Corporation (“Target” or “Defendant”):
SUMMARY OF CLAIMS 1. In this class action complaint, Plaintiffs allege that Target—one of the largest private retail corporations in the United States, which owns and operates over 1800 stores nationwide and employs over 300,000 workers annually—has in the past and continues to utilize a job applicant screening process that systematically eliminates thousands of qualified African

Case 1:18-cv-02993 Document 1 Filed 04/05/18 Page 2 of 16
Americans and Latinos from jobs based on their race or national origin in violation of Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. § 2000e et seq. At issue is Target’s use of criminal background checks to screen applicants for prior convictions, many of which are unrelated to the job sought by the applicant or occurred long before the individual’s application for employment at Target to the detriment of thousands of African American and Latino job applicants. Target has also systematically eliminated from consideration job applicants who it contends “falsified” their criminal histories in their applications without probing the nature of any discrepancy between the application and the result of the criminal history search.
2. The jobs at issue in this case are hourly and entry-level non-exempt positions. They include jobs such as food service workers, stockers, cashiers, and cart attendants. Such jobs could be a source of stable employment for many individuals who lack formal education or technical job skills and who are trying to get their lives back on track after some interaction with the criminal justice system. Such stable employment has proven to be important in preventing recidivism.
3. Target’s hiring practices and procedures are unlawful under Title VII because they have a significant adverse impact upon African Americans and Latinos (who, because of systemic discrimination in the criminal justice system are arrested and incarcerated at rates substantially higher than whites), and because these practices are neither job-related nor consistent with business necessity.
FACTUAL BACKGROUND 4. Target has performed criminal background checks on all its applicants for employment in its U.S.-based stores since 2001. 5. Since 2001, Target has revised various aspects of its criteria for excluding applicants with criminal background histories (“Adjudication Guidelines”). Target has also used
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various third-party vendors to perform its criminal background checks. However, important aspects of Target’s background check policies, practices, and procedures have remained unchanged, including its use of a centralized background check process designed and directed by its management team headquartered in Minneapolis, Minnesota, and its use of human relations and managerial personnel who apply these policies and procedures to all U.S-based Target stores and applicants for employment.
6. Target’s hiring process begins with two initial interviews. Target’s interviewers utilize a standard set of questions based on interview guides provided by Target’s headquarters. After the second interview, the Target interviewer may extend a conditional offer of employment and inform the applicant that the offer is contingent upon the results of a criminal record check. The applicant is then required to fill out a previous conviction questionnaire form, which requests information about the applicant’s criminal record. Target then has a third-party vendor conduct a criminal background check on the applicant.
7. The third-party vendor applies the Target mandated Adjudication Guidelines to the applicant’s criminal record to determine if the applicant should be excluded from employment or if the applicant’s record requires further review.
8. Pursuant to Target’s uniform Adjudication Guidelines, Target mandates automatic rejection of applicants within broad categories of certain criminal convictions that may involve violence, theft, or controlled substances—whether misdemeanor or felony—within the past seven years.
9. Target’s Adjudication Guidelines also mandate that applicants must be rejected from employment for what Target identifies as an inaccurate disclosure of prior criminal convictions; Target labels such inaccuracies, “falsifications” (Target’s “Falsification Policy”).
10. When the third-party vendor applies Target’s Adjudication Guidelines, three
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determinations are possible: (1) the applicant is eligible for employment; (2) the applicant is ineligible; or (3) the applicant needs further review by Target’s Team Member Screening Team (“Screening Team”).
11. If the applicant is deemed ineligible pursuant to Target’s Adjudication Guidelines, the third-party vendor notifies the applicant in writing by sending the applicant the required Fair Credit Reporting Act (“FCRA”) notices with a copy of the background check.
12. If the vendor determines that the criminal history requires further review pursuant to Target’s Adjudication Guidelines, it is forwarded to Human Resources at Target headquarters. The Screening Team assesses the applicants who require further review. Target’s policies allow members of the Screening Team to use their discretion rather than apply any objective or validated measures to assess applications.
13. Target’s Screening Process, which consists of the Adjudication Guidelines, the Falsification Policy, and the review by the Screening Team, imported the racial and ethnic disparities that exist in the criminal justice system into the employment process, thereby multiplying the negative impact on African American and Latino job applicants.
CLASS DEFINITION 14. Plaintiffs bring this case as a class action under Federal Rules of Civil Procedure 23(a) and (b), on behalf of the following class: All African American and Latino applicants for employment in a non-exempt position at a U.S.-based retail Target store (“Target Stores Job”), who, from May 11, 2006, to the date of preliminary approval of the proposed settlement, were denied an employment opportunity in a Target Stores Job based on a final adjudication on a pre-employment background check that did not clear the applicant to proceed based on their criminal history (“the Class”).
JURISDICTION AND VENUE 15. The court has jurisdiction under 28 U.S.C. §§ 1331 and 1343(a)(4), as this claim
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arises under the laws of the United States, and under § 717 of Title VII, 42 U.S.C. § 2000e et seq. 16. Venue is proper in this district pursuant to 42 U.S.C. § 2000e-5(f)(3), because
Organizational Plaintiff Fortune has members residing within the district and is incorporated in the State of New York with its main offices in Queens, New York and additional facilities in West Harlem. Additionally, venue is proper in this district pursuant to 28 U.S.C. § 1391(b)(2) because part of the events or omissions giving rise to the claims occurred in this district and Defendant conducts business within this district.
EXHAUSTION OF ADMINISTRATIVE REQUIREMENTS 17. On March 6, 2007, Plaintiff Carnella Times (formerly Carnella McDade) filed a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission (“EEOC”) based on Target’s denial of employment. Ms. Times’s Charge was originally filed with the EEOC’s Boston office and was transferred to the Chicago office in 2009. 18. On August 4, 2011, the EEOC issued an adverse finding against Target, finding reasonable cause to believe that through the application of its background check policy, Target had discriminated against a class of applicants because of their race and national origin by denying them employment and/or refusing to consider them for employment. 19. On September 14, 2015, after years of investigation, the EEOC issued Plaintiff Times a Notice of Right to Sue. 20. On December 10, 2015, Ms. Times entered into a tolling agreement with Defendant on behalf of herself and other potential plaintiffs who might have claims piggybacking on her EEOC Charge to toll the statute of limitations of Title VII claims during the period from November 26, 2015 until the date of final approval of any settlement the parties reach. 21. This action was filed on April 5, 2018, within the required time limits. 22. Any and all other prerequisites to the filing of this lawsuit have been met.
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PARTIES Plaintiff Carnella Times
23. Plaintiff Times is a 47-year old African American female resident of Hartford, Connecticut.
24. In August 2006, Plaintiff Times applied to an overnight stocker position in a new Target store located in South Windsor, Connecticut.
25. Plaintiff Times was qualified for the position based on the job description and her prior experience.
26. During her application process, Plaintiff Times informed Target of her relevant work experience as a merchandise stocker at another large retailer.
27. Plaintiff Times informed Target personnel that she had a misdemeanor conviction from 1996. Target representatives conducted several interviews with her and extended a conditional job offer for a stocker position contingent on the results of her criminal background check.
28. A week later, in or about August 2006, Plaintiff Times received a letter from Target stating that it had conducted a criminal background check. She was provided with a copy of the background report, which showed that she had two 10-year old misdemeanor convictions from 1996.
29. Later, in or about August 2006, Target sent Plaintiff Times a second letter stating that it would not offer her employment “in whole or in part” due to the information in the consumer report. After receiving this letter, Plaintiff Times spoke with a Target HR representative of the Connecticut store where she applied, who confirmed that the letter was a withdrawal of Target’s offer of employment.
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Plaintiff Erving Smith 30. Plaintiff Erving Smith is a 40-year old African American male resident of Smyrna,
Georgia. 31. In or about early 2014, Plaintiff Smith applied to a stocker position in a Target
store located in Pittsburgh, Pennsylvania. 32. Plaintiff Smith was qualified for the position based on the job description and his
prior experience. 33. During his application process, Plaintiff Smith informed Target of his relevant
work experience as a stocker at another large retailer. 34. Plaintiff Smith informed Target personnel that he had a drug-related felony
conviction from 2004. Target representatives conducted two interviews with him and extended a conditional job offer for a stocker position contingent on the results of his criminal background check.
35. Approximately two weeks later, Plaintiff Smith received a phone call from the Target Store Manager where he applied stating that his conditional job offer was rescinded due to the results of his criminal background check.
36. Approximately several weeks after the phone call from Target’s manager, Plaintiff Smith received a letter from Target stating that it had obtained a consumer report on his background and that it would not offer him employment “in whole or in part” due to the information in the consumer report. Organizational Plaintiff The Fortune Society, Inc.
37. Founded in 1967, Organizational Plaintiff Fortune is a New York not-for-profit community-based organization headquartered in Queens, New York, with a mission to support the successful reentry of formerly incarcerated individuals and promote alternatives to
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incarceration, thus strengthening the fabric of our communities. At least half of Fortune’s staff are formerly incarcerated individuals, and its Board of Directors is comprised of at least one-third formerly incarcerated individuals.
38. Fortune provides holistic services to formerly incarcerated people, serving approximately 7,000 individuals impacted by the justice system each year at three New York City locations. Fortune’s employment services program is germane to its mission of expanding career pathways for people with justice system involvement and is designed to equip formerly incarcerated jobseekers with the skills necessary to obtain employment and thrive in the workplace through job readiness workshops, sector-based skills trainings, mentoring, and job placement assistance and retention services. Fortune files this action individually as a distinguished advocacy organization and on behalf of its formerly incarcerated clients, who are also members of the proposed class. Target’s hiring policies and Adjudication Guidelines affect many of Fortune’s clients who apply and are denied employment or are deterred from applying because of Target’s policies.
39. Target’s hiring policies and Adjudication Guidelines impede Fortune’s ability to carry out its mission to advance the employment attainment of the formerly incarcerated population in New York and, more broadly, throughout the United States. Fortune has expended significant time and expense in employment and education programming for its clients with criminal background histories. Defendant Target
40. Target is a retail establishment with approximately 1,800 stores across the United States, including in the state of New York, and is headquartered in Minneapolis, Minnesota. Target is the second largest discount retailer in the country.
41. At all relevant times, Target has been an employer as defined by Title VII of the
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Civil Rights Act. 42. Target, by soliciting, conducting, and transacting business in the state of New
York, engages in continuous, permanent, and substantial activity within the state. STATEMENT OF CLAIMS
43. At all times relevant to this Complaint, Target utilized a uniform procedure for hiring non-exempt employees in all of its stores in the United States. At its headquarters, Target developed a standardized set of procedures that each store in the United States utilizes, including the Adjudication Criteria, the Falsification Policy, and the Screening Team review process (described throughout and collectively, “Target’s Screening Process”).
44. Target’s Screening Process screened out individuals who would be eligible for employment according to any valid and fair system.
45. At all times relevant to this Complaint, African Americans and Latinos were arrested and convicted of crimes at more than double the rates of whites.1 As a result of Target’s Screening Process, each component individually and collectively as described above, had and continues to have a significant and detrimental impact on them, based on their race and national origin, as compared to white applicants.
46. Any selection device that has a disparate impact must have a “manifest relationship to the employment in question.” Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971). It must “be shown to be necessary to safe and efficient job performance to survive a Title VII challenge.” Dothard v. Rawlinson, 433 U.S. 321, 331 n. 14 (1977). A criminal record exclusion is valid only when it “operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position.” EEOC Enforcement
1 See United States Department of Justice. Office of Justice Programs. Bureau of Justice Statistics. National Prisoner Statistics, 1978-2014.
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Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, at 14 (April 25, 2012).
47. Target cannot show business necessity with respect to its blanket exclusions found in its Adjudication Guidelines, nor can it show business necessity for excluding applicants pursuant to its Falsification Policy and Screening Team review process.
48. Target’s exclusions in its Adjudication Guidelines (including exclusion for controlled substance felonies) bear no relation to the employment in question—entry level jobs like food service workers, stockers, cashiers, and cart attendants.
49. Having a conviction (whether disclosed or not) is not an accurate proxy for determining whether an applicant would be able to perform the duties of the job. There are no reliable studies or empirical data to suggest that applicants with criminal records are more likely to engage in terminable offenses.2
50. Target excluded many applicants from employment for various felony convictions (including controlled substance felonies, assault and battery, forgery, fraud, and identify theft). Applicants were also excluded from employment based on various misdemeanor convictions. Even the most petty offenses could lead to an applicant’s exclusion if the applicant failed to disclose his or her conviction history to Target’s satisfaction.
51. Target’s Screening Process is far too over-inclusive to meet the standards of jobrelatedness and consistency with business necessity.
52. In the limited places where the Adjudication Guidelines allows for further review (as opposed to automatic exclusion), Target’s Screening Team applies ad hoc standards,

2

See, e.g., Ian B. Petersen, Toward True Fair-Chance Hiring: Balancing Stakeholder

Interests and Reality in Regulating Criminal Background Checks, 94 Tex. L. Rev. 175, 187-88

(2015)

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unguided by professional principles. 53. Upon information and belief, Target does not have a process or policy to
determine whether individuals convicted of crimes many years ago had made positive changes in their lives such that they no longer posed a risk to others. Target lacked a systematized process to enable applicants to provide proof of rehabilitation, such as documentation of successful participation in drug treatment programs, educational achievements or relevant employment, or to submit certificates of relief from disabilities, which in many states create a presumption of rehabilitation.
54. There are less discriminatory alternatives that would have better achieved Target’s legitimate hiring interests. As discussed above, the Screening Process created significant barriers to employment that excluded many properly qualified persons, including disproportionate numbers of African American and Latino applicants. There are less discriminatory alternatives that would have better achieved Target’s legitimate hiring interests in protecting the public and avoiding workplace misconduct.
55. Less discriminatory alternatives include, but are not limited to: (1) considering all applicants with a record of an arrest over one year old at the time of application and no record of criminal conviction, as well as those applicants with juvenile adjudications or adult convictions that have been expunged or sealed; (2) considering all applicants with a record of conviction for a crime that by its nature does not pose a legitimate threat to the public safety or risk of workplace misconduct; (3) eliminating the practice of denying applicants based on discrepancies in their self-disclosure; and (4) giving each individual tagged as “needs review” a meaningful opportunity to demonstrate that he or she does not present a current threat, including providing evidence of rehabilitation, an explanation of events leading to the conviction, or information regarding other mitigating factors.
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CLASS ACTION ALLEGATIONS 56. Named Plaintiffs, and those similarly situated, are all members of the Class, which includes all African American and Latino applicants who sought employment with Target from 2006 through the present, and were denied employment based on application of Target’s Adjudication Guidelines and/or review by Target’s Screening Team. 57. The members of the Class are so numerous that joinder of all of them is impracticable. Target is a large retail employer with roughly 1,800 stores across the country, including many in New York. The number of job applicants harmed by Target’s violations of the law is far greater than feasibly could be addressed through joinder. The precise number is uniquely within Target’s possession, and Class Members may be notified of the pendency of this action by mailed notice. 58. There are questions of law and fact common to the Class, and these questions predominate over any questions affecting only individual members. Target had a single, uniform criminal background check procedure that was used for all job applicants. Common questions include, but are not limited to: (1) Whether it was Defendant’s policy and practice to exclude job applicants with
criminal histories who have never been convicted or who should have been eligible for employment based on valid factors assessing legitimate threat to public safety or risk of workplace misconduct; (2) Whether Defendant’s policy and practice to exclude job applicants based on criminal history had a discriminatory disparate impact on African American and Latino applicants; (3) Whether Defendant’s policy and practice to exclude job applicants based on their criminal history records is job-related and consistent with business necessity; (4) Whether there was a less discriminatory policy and practice that would have met Defendant’s legitimate needs; and (5) What equitable and injunctive relief for the Class is warranted.
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59. Named Plaintiffs’ claims are typical of the claims of the Class: (1) Each Plaintiff applied for a job with Target within the relevant time period; (2) Each was processed through the same application procedure; (3) Each was subjected to the same screening devices and hiring processes; (4) Each was denied the position; and (5) Each has the same discrimination claim based on disparate impact. All of these claims are shared by each and every class member.
60. Named Plaintiffs will fairly and adequately represent and protect the interests of the members of the Class. Plaintiffs have no conflict with one another or any class member. Plaintiffs are committed to the goal of having Target revise its hiring policy and practice to eliminate its discriminatory impact on African American and Latino applicants.
61. Plaintiffs have retained counsel competent and experienced in complex class actions, employment discrimination litigation, and the intersection thereof.
62. Class certification is appropriate pursuant to Federal Rule of Civil Procedure 23(b) due to: (1) the risk of inconsistent or varying adjudications with respect to individual class members through the prosecution of separate actions; (2) Defendant’s refusal to act on grounds that apply generally to the class, so that final injunctive or declaratory relief is appropriate respecting the class as a whole; and/or (3) the predominance of questions of law and/or fact common to class members over any questions affecting only individual members, and the superiority of a class action to other methods for fairly and efficiently adjudicating this controversy.
CLAIM FOR RELIEF Disparate Impact Discrimination Title VII of the Civil Rights Act of 1964, 42 U.S.C §§ 2000e et seq. (On Behalf of All Plaintiffs and the Class) 63. Plaintiffs incorporate by reference the allegations in all preceding paragraphs. 64. Named Plaintiffs bring this claim on their own behalf and on behalf of the Class.
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65. Organizational Plaintiff Fortune brings this claim on its own behalf and that of its clients who are also members of the putative Class.
66. Plaintiff Times timely filed a charge with the EEOC, with class wide allegations, and has thus exhausted the administrative remedies.
67. Defendant’s policy and practice of using employment screens that exclude applicants with arrest or irrelevant conviction records from obtaining employment opportunities, has harmed, and continues to harm, Plaintiffs, and constitutes unlawful discrimination on the basis of race, ethnicity, color, and/or national origin in violation of 42 U.S.C. §§ 2000e et seq.
68. Defendant’s policy and practice of using employment screens that exclude applicants with arrest or irrelevant conviction records from obtaining employment opportunities had a disparate impact on African Americans and Latinos and is neither job related nor consistent with business necessity. Even if Defendant’s policy and practice of denying employment opportunities based on applicants’ criminal history records could be justified by business necessity, a less discriminatory alternative exists that would have equally served any legitimate purpose.
69. Plaintiffs and the Class have no plain, adequate, or complete remedy at law to redress the wrongs alleged herein, and the injunctive relief sought in this action is the only means of securing complete and adequate relief. The practices identified above have been in place since at least 2006, and Target continues the alleged discriminatory hiring practices today. Plaintiffs and the Class they seek to represent are now suffering, and will continue to suffer, irreparable injury from Defendant’s discriminatory acts and omissions.
70. Defendant’s conduct has caused, and continues to cause, Plaintiffs and the members of the Class substantial losses in earnings and other employment benefits.
71. Organizational Plaintiff Fortune has been harmed, as it has been forced to divert
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resources from its primary advocacy projects in order to assist its members who are adversely affected by their inability to obtain employment because of Defendant’s actions.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray for relief as follows:
72. Certification of the case as a class action on behalf of the proposed Class; 73. Designation of Named Plaintiffs Carnella Times and Erving Smith as representatives on behalf of the Class; 74. Designation of Plaintiffs’ counsel of record as Class counsel; 75. A declaratory judgment that the practices complained of herein are unlawful and violate Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.; 76. A preliminary and permanent injunction against Defendant and all officers, agents, successors, employees, representatives, and any and all persons acting in concert with them, from engaging in each of the unlawful policies, practices, customs and usages set forth herein, consistent with the less discriminatory alternative described above; 77. An order that Defendant institute and carry out policies, practices, and programs that provide equal employment opportunities for all Class members who would be eligible under application of the Uniform Guidelines for Employee Selection Procedures and related EEOC Guidance, and that Defendant eradicate the effects of past and present unlawful employment practices; 78. Restore Plaintiffs Carnella Times and Erving Smith and Class Members to their rightful positions at Target; 79. Back pay accruing as a result of a delay in hiring Plaintiffs and Class Members caused by the illegal policies and practices alleged herein; 80. Damages caused to Organizational Plaintiff The Fortune Society by the illegal
15

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policies and practices alleged herein;

81. Costs incurred herein, including reasonable attorneys’ fees to the extent allowable

by law, including but not limited to 42 U.S.C. §§ 2000e-5(k) & 2000e-16;

82. Pre-judgment and post-judgment interest, as provided by law; and

83. Such other and further legal and equitable relief as this Court deems necessary,

just, and proper.

Dated: New York, New York April 5, 2018

Respectfully submitted,
_______________________________
OUTTEN & GOLDEN LLP Adam T. Klein Ossai Miazad Lewis Steel Cheryl-Lyn Bentley Christopher McNerney 685 Third Avenue, 25th Floor New York, New York 10017 Tel.: (212) 245-1000

NAACP LEGAL DEFENSE AND EDUCATION FUND Sherrilyn Ifill Samuel Spital 40 Rector Street, 5th Floor New York, New York 10006 Tel.: (212) 965-2200
Coty Montag* 1444 I Street NW, 10th Floor Washington, DC 20005

GREATER HARTFORD LEGAL AID, INC. Lisa Levy* Giovanna Shay* 999 Asylum Avenue, 3rd Fl. Hartford, Connecticut 06105 Tel.: (860) 541-5021
*Pro hac vice motion forthcoming
Attorneys for Plaintiffs and the Putative Settlement Class

16

 
 Case 1:18-cv-02993 Document 5 Filed 04/05/18 Page 1 of 35

OUTTEN & GOLDEN LLP Adam T. Klein Ossai Miazad Lewis Steel Cheryl-Lyn Bentley Christopher McNerney 685 Third Avenue, 25th Floor New York, New York 10017
*Pro hac vice motion forthcoming

NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. Sherrilyn Ifill Samuel Spital 40 Rector Street, 5th Floor New York, New York 10006
Coty Montag* 1444 I Street NW, 10th Floor Washington, DC 20005

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

CARNELLA TIMES and ERVING SMITH,

:

on behalf of themselves and all others

:

similarly situated, and

:

THE FORTUNE SOCIETY, INC.,

:

:

Plaintiffs,

:

:

-against-

:

:

TARGET CORPORATION,

:

:

Defendant.

:

:

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

Case 1:18-cv-02993 Document 5 Filed 04/05/18 Page 2 of 35
TABLE OF CONTENTS INTRODUCTION .......................................................................................................................... 1 BACKGROUND ............................................................................................................................ 2
I. Target’s Criminal History Screening Process......................................................... 2 II. EEOC Filing............................................................................................................ 4 III. Investigation and Settlement Negotiations ............................................................. 5 SUMMARY OF SETTLEMENT TERMS..................................................................................... 6 I. The Proposed Settlement ........................................................................................ 6
A. Programmatic Relief ................................................................................... 7 B. Priority Hiring/Interviewing for Non-Exempt Jobs at
Target Stores or Monetary Relief ............................................................... 8 C. Pipeline Project Supporting Re-Entry of Individuals with
Criminal History Records ........................................................................... 9 II. Class Members...................................................................................................... 10 III. Release .................................................................................................................. 11 IV. Attorneys’ Fees, Costs, and Service Awards ........................................................ 11 V. Settlement Administrator ...................................................................................... 11 CLASS ACTION SETTLEMENT PROCEDURE ...................................................................... 12 ARGUMENT ................................................................................................................................ 12 I. Preliminary Approval of the Class Action Settlement is Appropriate.................. 12
A. Litigation Through Trial Would Be Complex, Costly, and Long (Grinnell Factor 1) ........................................................................... 14
B. The Court Cannot Assess the Reaction of the Class Until After Notice Issues (Grinnell Factor 2) .................................................... 15
C. The Parties Have Completed Sufficient Discovery to Evaluate the Claims and Defenses (Grinnell Factor 3)............................................ 16
D. The Risk of Establishing Liability and Damages for the Class Through Trial Favor Approval (Grinnell Factors 4 and 5) ....................... 17
E. The Risk of Obtaining Class Certification (Grinnell Factor 6)................. 18
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F. The Settlement Is Substantial, Even in Light of the Best Possible Recovery and the Attendant Risks of Litigation (Grinnell Factors 8 and 9) ......................................................................... 18
II. Conditional Certification of the Class is Appropriate........................................... 19 A. Numerosity................................................................................................ 20 B. Commonality............................................................................................. 20 C. Typicality .................................................................................................. 21 D. Adequacy of the Plaintiffs and Their Counsel .......................................... 21 E. Certification Is Proper Under Rule 23(b)(3) ............................................. 23 1. Common Questions Predominate ................................................. 23 2. A Class Action Is a Superior Mechanism ..................................... 24
III. Plaintiffs’ Counsel Should Be Appointed as Class Counsel................................. 25 IV. The Notice and Award Distribution Process are Appropriate .............................. 26 CONCLUSION............................................................................................................................. 27
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TABLE OF AUTHORITIES

CASES

PAGE(S)

Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) .......................................................................................................... 23, 24

Capsolas v. Pasta Res., Inc., No. 10 Civ. 5595, 2012 WL 1656920 (S.D.N.Y. May 9, 2012)............................................... 25

City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974)...................................................................................................... 14

Clark v. Ecolab, Inc., Nos. 07 Civ. 8623, 04 Civ. 4488, 06 Civ. 5672, 2009 WL 6615729 (S.D.N.Y. Nov. 27, 2009) .......................................................................... 13

Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473 (2d Cir. 1995)........................................................................................................ 20

Duling v. Gristede’s Operating Corp., 267 F.R.D. 86 (S.D.N.Y. 2010) .......................................................................................... 21, 22

Dziennik v. Sealift, Inc., No. 05 Civ. 4659, 2007 WL 1580080 (E.D.N.Y. May 29, 2007)............................................. 22

Easterling v. Conn. Dep’t of Corr., No. 08 Civ. 826, 2011 WL 5864829 (D. Conn. Nov. 22, 2011)............................................... 24

Easterling v. Conn., Dep't of Correction, 265 F.R.D. 45 (D. Conn. 2010)................................................................................................. 22

Frank v. Eastman Kodak Co., 228 F.R.D. 174 (W.D.N.Y. 2005)................................................................................. 13, 21, 24

Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147 (1982).................................................................................................................. 20

Gilliam v. Addicts Rehab. Ctr. Fund, No. 05 Civ. 3452, 2008 WL 782596 (S.D.N.Y. Mar. 24, 2008) .............................................. 18

Green v. Wolf Corp., 406 F.2d 291 (2d Cir. 1968)...................................................................................................... 24

Houser v. Pritzker, 28 F. Supp. 3d 222 (S.D.N.Y. 2014)................................................................................... 21, 22

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

iv

Case 1:18-cv-02993 Document 5 Filed 04/05/18 Page 5 of 35
In re Cendant Corp. Litig., 264 F.3d 201 (3d Cir. 2001)...................................................................................................... 16
In re Drexel Burnham Lambert Grp., 960 F.2d 285 (2d Cir. 1992)...................................................................................................... 21
In re EVCI Career Colls. Holding Corp. Sec. Litig., No. 05 Civ.10240, 2007 WL 2230177 (S.D.N.Y. July 27, 2007) ............................................ 14
In re Ira Haupt & Co., 304 F. Supp. 917 (S.D.N.Y. 1969)............................................................................................ 17
In re PaineWebber Ltd. P’ships Litig., 147 F.3d 132 (2d Cir. 1998)...................................................................................................... 12
In re Traffic Exec. Ass’n E. R.R., 627 F.2d 631 (2d Cir. 1980)...................................................................................................... 13
In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124 (2d Cir. 2001)................................................................................................ 23, 25
In re Warfarin Sodium Antitrust Litig., 391 F.3d 516 (3d Cir. 2004)...................................................................................................... 16
Int’l Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977).................................................................................................................. 17
Katz v. ABP Corp., No. 12 Civ. 4173, 2014 WL 4966052 (E.D.N.Y. Oct. 3, 2014) ............................................... 17
Little v. Wash. Metro. Area Transit Auth., 249 F. Supp. 3d 394 (D.D.C. 2017) .......................................................................................... 22
Marisol A. v. Giuliani, 126 F.3d 372 (2d Cir. 1997)................................................................................................ 20, 21
Martens v. Smith Barney, Inc., 181 F.R.D. 243 (S.D.N.Y. 1998) ........................................................................................ 16, 22
Maywalt v. Parker & Parsley Petroleum Co., 67 F.3d 1072 (2d Cir. 1998)................................................................................................ 12, 20
McBean v. City of New York, 228 F.R.D. 487 (S.D.N.Y. 2005) .............................................................................................. 23
Penney v. Deutsche Bank AG, 443 F.3d 253 (2d Cir. 2006)...................................................................................................... 21
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Reade-Alvarez v. Eltman, Eltman & Cooper, P.C., 237 F.R.D. 26 (E.D.N.Y. 2006) ................................................................................................ 20
Reyes v. Altamarea Grp., LLC, No. 10 Civ. 6451, 2010 WL 5508296 (S.D.N.Y. Dec. 22, 2010)............................................. 26
Robidoux v. Celani, 987 F.2d 931 (2d Cir. 1993)...................................................................................................... 21
Shahriar v. Smith & Wollensky Rest. Grp., Inc., 659 F.3d 234 (2d Cir. 2011)...................................................................................................... 18
Teachers’ Ret. Sys. of La. v. A.C.L.N., Ltd., No. 01 Civ. 11814, 2004 WL 1087261 (S.D.N.Y. May 14, 2004)........................................... 19
Torres v. Gristede’s Operating Corp., Nos. 04 Civ. 3316, 08 Civ. 8531, 08 Civ. 9627, 2010 WL 2572937 (S.D.N.Y. June 1, 2010) ............................................................................ 13
Toure v. Cent. Parking Sys. of N.Y., No. 05 Civ. 5237, 2007 WL 2872455 (S.D.N.Y. Sept. 28, 2007) ............................................ 21
Tyson Foods Inc. v. Bouaphakeo, 136 S. Ct. 1036 (2016) .............................................................................................................. 23
United States v. City of New York, 276 F.R.D. 22 (E.D.N.Y. 2011) ................................................................................................ 24
Wal-Mart Stores, Inc. v. Visa U.S.A. Inc., 396 F.3d 96 (2d Cir. 2005).................................................................................................. 12, 13
Willix v. Healthfirst, Inc., No. 07 Civ. 1143, 2011 WL 754862 (E.D.N.Y. Feb. 18, 2011) ............................................... 14
Wright v. Stern, 553 F. Supp. 2d 337 (S.D.N.Y. 2008)....................................................................................... 22
STATUTES
42 U.S.C. § 2000e.......................................................................................................................1, 11
OTHER AUTHORITIES
Fed. R. Civ. P. 23 ................................................................................................................... passim
Herbert B. Newberg & Alba Conte, Newberg on Class Actions, §§ 11.22 (4th ed. 2002) ........................................................................................................................................12
Manual for Complex Litigation, Fourth, § 21.632 (2004) ............................................................ 13
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Case 1:18-cv-02993 Document 5 Filed 04/05/18 Page 7 of 35 Manual for Complex Litigation, Fourth, § 21.634 (2004) ............................................................ 13 Manual for Complex Litigation, Third, § 30.42 (1995)................................................................ 13
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INTRODUCTION Plaintiffs Carnella Times and Erving Smith, on behalf of those similarly situated, and The Fortune Society (“Fortune Society”), which supports the successful reentry of formerly incarcerated individuals, respectfully submit for the Court’s preliminary approval, a proposed settlement with Target Corporation (“Defendant” or “Target”) (collectively, “the Parties”), which seeks to remedy Target’s job applicant screening processes, which Plaintiffs allege has resulted in thousands of qualified African-Americans and Latinos being denied jobs in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. As set forth below, the settlement was reached after extensive investigation, pre-litigation discovery, and negotiations. The proposed Settlement Agreement and Release (“Settlement Agreement”),1 which is attached as Exhibit A to the Miazad Decl.,2 is the product of several years of arm’slength, good faith negotiations, including eight mediation sessions between experienced counsel aided by a well-respected mediator. The Settlement Agreement provides for significant class member and programmatic relief. First, the settlement provides class members with hourly, non-exempt entry-level jobs at Target stores through a Priority Hiring process. Class members can also opt for consideration for a Team Lead role and automatically advance to the second stage of the interview process for these positions that have a supervisory component. If class members are not qualified for such

1

Defendant does not oppose preliminary approval of the Settlement Agreement,

conditional certification of the settlement class, approval of the proposed notice of class action

settlement, or approval of the proposed schedule for final settlement approval. See Declaration

of Ossai Miazad in Support of Plaintiffs’ Unopposed Motion for Preliminary Approval of Class

Action Settlement, Conditional Certification of Settlement Class, Appointment of Class Counsel,

and Approval of Plaintiffs’ Proposed Notice of Settlement (“Miazad Decl.”) ¶ 27.

2

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

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

Case 1:18-cv-02993 Document 5 Filed 04/05/18 Page 9 of 35
priority hiring, they may be eligible to receive a monetary award in lieu of employment. Second, the Parties have jointly selected experts, paid by Target, to work together as independent consultants to revise and validate Target’s guidelines developing substantial programmatic relief remedying the hiring practices at issue in this litigation. Lastly, Target has agreed to make a financial contribution of $600,000 to nonprofits that provide re-entry support to individuals with criminal history records, with the goal of supporting these organizations’ efforts in developing a pipeline of qualified applicants who have successfully completed work ready programs.
As set forth below, the Settlement Agreement is fair, reasonable, and adequate, and satisfies all of the criteria for preliminary approval under federal law. Plaintiffs respectfully request that the Court: (1) grant preliminary approval of the Settlement Agreement; (2) conditionally certify the proposed settlement class, for settlement purposes only, under Federal Rule of Civil Procedure 23; (3) appoint Outten & Golden LLP (“O&G”) and the NAACP Legal Defense and Educational Fund, Inc. (“LDF”) (together, “Plaintiffs’ Counsel”) as Class Counsel; (4) approve the proposed Court-Authorized Notice and Claim Form (“Notice and Claim Form”), attached as Exhibit B to the Miazad Decl., and authorize its distribution; and (5) order the parties to provide an update to the Court within sixty (60) days of the Court’s Preliminary Approval Order proposing a date for the fairness hearing for final approval of the settlement.
BACKGROUND I. Target’s Criminal History Screening Process.
Since 2001, Target has performed criminal background checks on all applicants for employment to its U.S.-based stores. See ECF No. 1 (Compl.) ¶¶ 4-5. Over the years, Target has revised various aspects of its criteria for excluding applicants with criminal backgrounds, which Target calls its “Adjudication Guidelines.” Id. ¶ 5. However, important aspects of
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Target’s background check policies and procedures have remained unchanged, including its use of a centralized background check process designed and directed by its management team headquartered in Minneapolis, Minnesota, and its use of human relations and managerial personnel who apply these policies and procedures to all U.S.-based Target stores and applicants for employment. Id.
Target’s hiring process begins with two initial interviews. Id. ¶ 6. Target’s interviewers utilize a standard set of questions based on interview guides provided by Target’s headquarters. Id. After the second interview, Target interviewers may extend a conditional offer of employment and inform the applicant that the offer is contingent upon the results of a criminal background check. Id. The applicant is then required to fill out a previous conviction questionnaire form, which requests information about the applicant’s criminal record. Id. Since 2001, Target has also contracted with various third-party vendors to perform criminal background checks on applicants. Id.
The third-party vendor, on behalf of Target, applies Target’s mandated Adjudication Guidelines to the applicant’s criminal record to determine if the applicant should be excluded from employment or if the applicant’s record requires further review. Id. ¶ 7. Pursuant to Target’s uniform Adjudication Guidelines, Target mandates rejection of applicants with certain criminal convictions that may involve violence, theft, or controlled substances—whether misdemeanor or felony—within the past seven years. Id. ¶ 8.
Target’s Adjudication Guidelines also mandate that applicants must be rejected from employment for what Target identifies as inaccurate disclosure of prior criminal convictions. Id. ¶ 9. Target labels such inaccuracies as “falsifications” (“Target’s Falsification Policy”). Id.
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When the vendor applies Target’s Adjudication Guidelines, three determinations are possible: (1) the applicant is eligible for employment; (2) the applicant is ineligible; or (3) the applicant needs further review by Target’s Team Member Screening Team (“Screening Team”). Id. ¶ 10. If the applicant is deemed ineligible pursuant to Target’s Adjudication Guidelines, the vendor notifies the applicant in writing by sending the applicant the required Fair Credit Reporting Act (“FCRA”) notices with a copy of the background check. Id. ¶ 11.
If the vendor determines that the applicant’s criminal history requires further review pursuant to Target’s Adjudication Guidelines, it is forwarded to Human Resources at Target’s headquarters. Id. ¶ 12. The Screening Team assesses the applicants who require further review. Target’s policies allow members of the Screening Team to use their discretion rather than apply any objective or validated measures to assess applications. Id.
Plaintiffs allege that Target’s Screening Process, which consists of the Adjudication Guidelines, the Falsification Policy, and the review by the Screening Team, imports the racial and ethnic disparities that exist in the criminal justice system into the employment process, thereby multiplying the negative impact on African-American and Latino job applicants. Id. ¶ 13. II. EEOC Filing.
On March 6, 2007, Plaintiff Carnella Times (born McDade) filed a Charge of Discrimination (“Charge”) with the U.S. Equal Employment Opportunity Commission (“EEOC”) based on Target’s denial of employment. Id. ¶ 17. On August 4, 2011, the EEOC issued an adverse finding against Target, finding reasonable cause to believe that through the application of its background check policy, Target had discriminated against a class of applicants because of their race and national origin by denying them employment and/or refusing to
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consider them for employment. Id. ¶ 18; Miazad Decl. ¶ 9. On September 14, 2015, after years of investigation, the EEOC issued Plaintiff Times a Notice of Right to Sue, Compl. ¶ 19, and produced documents that Target had provided to the EEOC. Miazad Decl. ¶ 10.
On November 17, 2015, Plaintiffs’ Counsel sent Target a letter on behalf of Plaintiff Times and the putative class inviting Target to negotiate a resolution of the claims. Id. ¶ 11. On December 10, 2015, Plaintiff Times entered into a tolling agreement with Target on behalf of herself and the class. Compl. ¶ 20. III. Investigation and Settlement Negotiations.
Plaintiffs have conducted a thorough investigation of Target’s hiring practices and potential remedies to eliminate any disparate impact on African-American and Latino applicants. Miazad Decl. ¶ 14. As part of this effort, Plaintiffs’ Counsel regularly met and communicated with organizational Plaintiff Fortune Society in order to understand the challenges that Target’s Screening Process imposed on individuals with criminal histories. Id. ¶ 16. Plaintiffs’ Counsel also conducted in-depth interviews of potential class members, including Plaintiffs, and conducted research regarding the claims, defenses, and damages. Id. ¶ 17. Plaintiffs’ Counsel also obtained and reviewed the EEOC investigation file, consisting of hundreds of pages of documents and data. Id. ¶ 18.
Following the execution of the tolling agreement, the Parties engaged in an informal exchange of discovery to facilitate the dispute resolution process. Id. ¶ 19. Target produced voluminous records about its Screening Process and applicant data. Id. Plaintiffs’ Counsel engaged experts to assess and analyze Target’s Screening Process and data. Id.
With a well-informed understanding of the scope of the legal issues and underlying facts, the Parties agreed to mediate the dispute with the assistance of an experienced mediator, Lynn
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Cohn. Id. ¶ 21. Because the liability issues and hiring processes were complex, the Parties understood that one mediation session would not suffice. Id. ¶ 22. Instead, the Parties agreed to, and participated in, ongoing, intensive mediation sessions over a period of 15 months. Id. From March 2016 to June 2017, the Parties attended eight mediation sessions in Chicago, Illinois, and New York, New York. Id. Throughout the entire process, the Parties also held private conferences with the mediator to facilitate the settlement discussions. Id. ¶ 23.
By mid-2017, the Parties had an agreement in principle and finalized a Settlement Term Sheet on October 27, 2017. Id. ¶ 24. Over the following six months, the Parties negotiated a detailed settlement agreement. Id. On March 26, 2018, the Parties executed the Settlement Agreement. See Ex. A (Settlement Agreement).
SUMMARY OF SETTLEMENT TERMS I. The Proposed Settlement.
The settlement requires Target to retain two experts in the field of Industrial and Organizational (“I/O”) psychology to design, develop, and implement properly validated adjudication guidelines for the hiring of job applicants with criminal histories for hourly, nonexempt jobs at Target stores. Ex. A (Settlement Agreement), § 3.3(B). The validated criteria are intended for use both in future hiring and in determining class member eligibility for jobs. Id. § 3.3(G). The settlement provides eligible class members with relief directly tied to the harm they suffered: entry-level jobs at Target stores. Id. § 3.4(A)(1). Class members who can show that they will not benefit from a Target job (for reasons articulated in the Settlement Agreement, such as because they obtained other employment or do not reside within 20 miles of a Target store), see id. § 3.4(B)(1), may be eligible to receive a monetary award not to exceed $1,000 in lieu of employment. Id. § 3.4(B)(2). Finally, the settlement provides funding to non-profit
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organizations who assist individuals with criminal histories re-enter the workforce. Id. § 3.5. Target has agreed to pay $3,742,500 (the “Settlement Fund”) to resolve the lawsuit, exclusive of the I/O experts’ fees and the cost of administering the settlement. Id. § 1.36.
A. Programmatic Relief. Target has agreed to adopt meaningful programmatic relief. The Parties jointly selected the I/O experts, Drs. Kathleen Lundquist and Nancy Tippins, to work together to revise and validate Target’s guidelines for use of criminal history records in making its hiring decisions. See Ex. A (Settlement Agreement), § 3.3(A). First, the I/O experts will meet and confer with the Parties as they begin the Scoping Phase of their work. Id. § 3.3(D). The Scoping Phase includes: developing a detailed scope of work and budget proposal; identifying relevant data, documents, and other information necessary to conduct their work; and providing a time line for the work completion, which will be documented in a Scope of Work and Budget Report (“SOW”). Id. §§ 3.3(D), (E). The Parties will have an opportunity to review and comment on the SOW. Id. § 3.3(E)(2). Once there is a SOW, the I/O experts will research and draft Interim Criteria, which are the revised adjudication guidelines and revised screening process for Target’s evaluation of criminal history records of job applicants, informed by validation techniques set forth in the Society for Industrial Organizational Psychology (“SIOP”) Principles, the EEOC’s Uniform Guidelines on Employee Selection Procedures (“Uniform Guidelines”), and/or other applicable professional standards. Id. §§ 3.3(B), (E). The Settlement Agreement will also guide the I/Os’ work by outlining considerations specific to Target’s hiring needs and Plaintiffs’ concerns for fairness and equity in the screening process. Id. § 3.3(F). The Parties will have an opportunity to review and comment on the I/Os’ Interim Criteria, with any conflicts to be negotiated with a mediator. Id. § 3.3(G). Upon completion of
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the review and negotiation process, the undisputed Interim Criteria will be used for hiring applicants with criminal history records for jobs at Target stores (prior to the implementation of the Final Criteria), see infra, determining membership in the Settlement Class, and determining if class members are qualified to participate in Priority Hiring/Interviewing. Id. For any individual who was denied employment at Target for what Target defined as “falsification,” membership in the Settlement Class will be based on whether the individual would have qualified for employment under the Interim Criteria based on their incomplete disclosure and their criminal history. Id.
For a period of one year, during which the Interim Criteria are implemented, the I/Os will continue to monitor and explore further refinements to develop the Final Criteria. The Parties will have an opportunity to review and comment, with any conflicts negotiated with a mediator. Id. § 3.3(H). The I/Os will then revise and finalize the Final Criteria to maximize their validity and minimize their potential for adverse impact. Id.
B. Priority Hiring/Interviewing for Non-Exempt Jobs at Target Stores or Monetary Relief.
Target will engage in Priority Hiring of class members for hourly, non-exempt, nonsupervisory jobs for which they are qualified, but were denied based on Target’s Screening Process (“Group A Filers”). See id. § 3.4(A). Qualified class members will be offered available Target store positions before other applicants. Id. If an hourly position is not immediately available within a twenty (20) mile commuting distance of the class member, the class member will be offered the first Target store job for which he or she is qualified that becomes available for a period of 12 months from judicial approval of the settlement. Id. Additionally, class members who are qualified for a supervisory role (e.g., “Team Lead” or “Senior Team Lead”) will bypass the initial screening interview and be given an opportunity to interview for those
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positions. Id. § 3.4(A)(2)(b). Moreover, Group A Filers who are hired pursuant to the Priority Hiring process and
remain employed for six months will receive a letter of employment that states that Target hired them with knowledge of their criminal record, and as of that date, they remained employed with Target. Id. § 3.4(A)(4)(a). Group A Filers who are hired pursuant to the Priority Hiring process, but are terminated less than six months for reasons outside of their control, will receive a letter of employment that states that Target hired them with knowledge of their criminal record, and that the Group A Filer’s employment was terminated due to business reasons. Id. § 3.4(A)(4)(b). Such letters of employment can be a valuable resource to class members in assisting them in seeking future employment opportunities. Miazad Decl. ¶ 32.
Some class members will not be successful in gaining employment with Target because, among other things, they are already employed, retired, or have a disability; do not reside within a defined commuting distance of a Target store; are or will be out of the workforce due to family medical obligations or military service obligations; or are ineligible to participate in Priority Hiring/Interviewing pursuant to reasons specified in the Settlement Agreement. Ex. A (Settlement Agreement) § 3.4(B). For those class members (“Group B Filers”), Target has agreed to individual monetary awards not to exceed $1,000.00. Id. § 3.4(B)(2). The Settlement Administrator will pay Group B Filers pro rata based on the number of participants, not to exceed $1,000. Id. Target’s total contribution toward cash awards will not exceed $1,200,000.00 of the Settlement Fund. Id. § 3.4(B)(3).
C. Pipeline Project Supporting Re-Entry of Individuals with Criminal History Records.
Target has agreed to contribute $600,000.00 to organizations that provide re-entry support to individuals with criminal history records, with the goal of supporting those
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organizations’ efforts to develop a pipeline of qualified applicants who have successfully completed work ready programs at such organizations (the “Pipeline Project”). Id. § 3.5(A). The parties will work cooperatively to identify potential organizations, and have already identified the following organizations: A New Way of Life Reentry Project; AccessAbility Career & Education Pathways; The Center for Employment Opportunities; The Fortune Society, Inc.; RS Eden Correctional Services; and Community Partners in Action. Id. § 3.5(B). These organizations will receive written information about the Pipeline Project and an invitation to submit statements of interest and other materials to assist in the selection of participant organizations. Id. Moreover, class members will receive notice of the selected, Target-funded work ready programs participating in the Pipeline Project. Id. II. Class Members.
The Class consists of: all African-American and Latino applicants who were denied employment from a Target Stores Job due to a final adjudication on a pre-employment background check that did not clear the applicant to proceed based on their criminal history record, from the start of the class liability period on May 11, 2006, to the date of preliminary approval of the proposed settlement, except: (1) individuals are excluded if Target can establish they were, or would have been, denied employment for reasons other than their criminal history records, see id. § 3.2(A)(1); (2) individuals are excluded if they have convictions that would have rendered them unqualified for employment under the revised criteria determined by the expert I/Os, see id. § 3.2(A)(2); and (3) individuals are excluded if they are current Target Team Members, see id. at Ex. 2. According to information produced by Target, over 41,000 African American and Latino applicants were denied jobs based on the criminal history screening process from May 2008 to December 2016 alone. See Miazad Decl. ¶ 34.
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III. Release. All class members who do not exclude themselves from the settlement will release: all claims, demands, causes of action, and liabilities, known and unknown, that they had, have, or may have under any legal or equitable theory, against Defendant arising from or relating to or concerning their denial of a Target Stores Job based on criminal history records under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. and parallel state and local laws, rules, regulations and ordinances. The Class Release will not include claims under the federal Fair Credit Reporting Act, which is the subject of a separate, unrelated settlement.
Ex. A (Settlement Agreement) §§ 1.7, 5.1. IV. Attorneys’ Fees, Costs, and Service Awards.
Plaintiffs will seek Court approval of an award of no more than $1,900,000.00 for attorneys’ fees plus actual litigation expenses and costs. Id. § 3.7. Pursuant to Rules 23(h) and 54(d)(2) of the Federal Rules of Civil Procedure, Plaintiffs will move for Court approval of attorneys’ fees and costs simultaneously with the Motion for Final Approval of the Settlement. The Court need not decide attorneys’ fees and costs now.
Plaintiffs will also apply for service awards of no more than $20,000.00 each for Plaintiffs Times and Fortune Society, and $2,500.00 for Plaintiff Smith. Id. § 3.8. Plaintiffs will move for Court approval of the service awards simultaneously with the Motion for Final Approval. V. Settlement Administrator.
If the proposed settlement is approved by the Court, the Parties will jointly select a Settlement Administrator, through a Request for Proposal process, to manage the settlement account, distribute the Notice and Claim Form, distribute service awards and settlement payments, distribute approved attorneys’ fees and costs, and otherwise administer the settlement.
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Id. § 1.35. Target will pay the Settlement Administrator’s fees and costs on top of the Settlement Fund. Id.
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 notice of settlement to all affected class members by first class
mail and electronic mail; and 3. A final settlement approval hearing at which class members may be heard
regarding the settlement, and at which arguments 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, 4 Newberg on Class Actions (“Newberg”), § 13:10 (5th ed. 2017). This process 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: grant preliminary approval of the Settlement Agreement; conditionally certify the settlement class; and approve Plaintiffs’ proposed Notice and Claim Form, and order their distribution.
ARGUMENT I. Preliminary Approval of the Class Action Settlement is Appropriate.
The law favors compromise and settlement of class action suits. Wal-Mart Stores, Inc. v. Visa U.S.A. Inc., 396 F.3d 96, 116-17 (2d Cir. 2005) (quoting In re PaineWebber Ltd. P’ships Litig., 147 F.3d 132, 138 (2d Cir. 1998)) (internal quotation marks omitted) (noting the “strong judicial policy in favor of settlements, particularly in the class action context”). The approval of a proposed class action settlement is a matter of discretion for the trial court. See Maywalt v. Parker & Parsley Petroleum Co., 67 F.3d 1072, 1079 (2d Cir. 1998). In exercising discretion,
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courts should give “proper deference to the private consensual decision of the parties.” Torres v. Gristede’s Operating Corp., Nos. 04 Civ. 3316, 08 Civ. 8531, 08 Civ. 9627, 2010 WL 2572937, at *2 (S.D.N.Y. June 1, 2010) (quoting Clark v. Ecolab, Inc., Nos. 07 Civ. 8623, 04 Civ. 4488, 06 Civ. 5672, 2009 WL 6615729, at *3 (S.D.N.Y. Nov. 27, 2009)) (internal quotation marks omitted).
Review of a class settlement proceeds in two steps. First, “counsel submit the proposed terms of settlement and the judge makes a preliminary fairness evaluation.” Manual for Complex Litigation (Fourth) § 21.632 (2004). The Court need only find that there is “‘probable cause’ to submit the [settlement] 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); see Newberg § 13:10 (“[I]f a court’s preliminary evaluation of the proposed settlement shows that it [is neither illegal nor collusive and is within the range of possible approval], the court will direct that notice of the settlement be given to the class members . . . .”). Second, after notice is given to the class, the court holds a fairness hearing. See Manual for Complex Litigation (Fourth) § 21.634.
Preliminary approval requires an “initial evaluation” of the fairness of the proposed settlement based on written submissions and an informal presentation by the settling parties. Newberg § 13:10. “Fairness is determined upon review of both the terms of the settlement agreement and the negotiating process that led to such agreement.” Frank v. Eastman Kodak Co., 228 F.R.D. 174, 184 (W.D.N.Y. 2005). “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 (quoting Manual for Complex Litigation, Third, § 30.42 (1995)) (internal quotation marks omitted). “Absent fraud or collusion, [courts] should be hesitant to substitute [their] judgment
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for that of the parties who negotiated the settlement.” Willix v. Healthfirst, Inc., No. 07 Civ.
1143, 2011 WL 754862, at *2 (E.D.N.Y. Feb. 18, 2011) (quoting In re EVCI Career Colls.
Holding Corp. Sec. Litig., No. 05 Civ.10240, 2007 WL 2230177, at *4 (S.D.N.Y. July 27,
2007)).
The first step in the settlement process simply allows notice to issue to the class and for
class members to object to or opt out of the settlement. After the notice period, the Court will be
able to evaluate the settlement with the benefit of the class members’ input. In evaluating a class
action settlement, courts in the Second Circuit consider the nine factors set forth in City of
Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir. 1974), abrogated on other grounds by
Goldberg v. Integrated Res., Inc., 209 F.3d 43 (2d Cir. 2000). Although the Court need not
evaluate the Grinnell factors to conduct its initial evaluation of the settlement, for purposes of
evaluating the settlement’s fairness, it is useful for the Court to consider these criteria.
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.
Grinnell, 495 F.2d at 463 (citations omitted).
Here, the relevant Grinnell factors weigh in favor of preliminary approval.
A. Litigation Through Trial Would Be Complex, Costly, and Long (Grinnell Factor 1).
By reaching a favorable settlement early, before certification and dispositive motions,
trial, or appeals, Plaintiffs avoid significant expense and delay and ensure timely individual and 14

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programmatic relief for the class. “Most class actions are inherently complex and settlement avoids the costs, delays and multitude of other problems associated with them.” In re Austrian & German Bank Holocaust Litig., 80 F. Supp. 2d 164, 174 (S.D.N.Y. 2000), aff’d sub. nom. D’Amato v. Deutsche Bank, 236 F.3d 78 (2d Cir. 2001). This case is highly complex, with thousands of class members raising Title VII disparate impact claims that have been litigated in very few cases. Miazad Decl. ¶ 15.
Plaintiffs would likely have faced a motion to dismiss, and if their claims survived, strong opposition to class certification and a motion for summary judgment after a lengthy discovery process. If Plaintiffs were able to certify the class and overcome a summary judgment motion, a trial on the merits would have involved significant risk as to both liability and damages. While Plaintiffs believe they could ultimately defeat Target’s defenses and establish liability, this would require significant factual development and favorable outcomes at trial, and on appeal, all of which are inherently uncertain and lengthy. The proposed settlement eliminates this uncertainty and guarantees class members prompt relief. This factor therefore weighs in favor of preliminary approval.
B. The Court Cannot Assess the Reaction of the Class Until After Notice Issues (Grinnell Factor 2).
After notice issues and class members have had an opportunity to be heard, the Court can fully analyze the second Grinnell factor. The settlement addresses a principal concern of the lawsuit – ensuring that individuals with criminal histories have access to stable employment. It does so by providing for priority hiring for class members and allocating funds to those who cannot be hired. It also provides programmatic relief that addresses the causes of class members’ harm – a process for replacing Target’s Screening Process with one that is validated and under
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the supervision of expert I/Os. For these reasons, Plaintiffs’ Counsel are confident that the class will respond favorably to the Settlement Agreement.
C. The Parties Have Completed Sufficient Discovery to Evaluate the Claims and Defenses (Grinnell Factor 3).
The Parties have completed sufficient 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)). “[T]he pretrial negotiations and discovery must be sufficiently adversarial that they are not designed to justify a settlement . . . [, but] an aggressive effort to ferret out facts helpful to the prosecution of the suit.” In re Austrian & German Bank Holocaust Litig., 80 F. Supp. 2d at 176 (quoting Martens v. Smith Barney, Inc., 181 F.R.D. 243, 263 (S.D.N.Y. 1998)).
The Parties’ efforts and discovery here meet this standard. The Parties engaged in significant investigation before entering into negotiations and in preparing for multiple mediations. Miazad Decl. ¶¶ 14, 16-20. Throughout the mediation process, the Parties exchanged detailed mediation statements setting forth their respective positions, and extensively arguing their positions. Id. ¶ 23. Target produced a substantial number of documents, including its policies and procedures used to screen applicants, such as the Adjudication Guidelines, Falsification policies, and procedures involving the Screening Team, which Plaintiffs’ Counsel and Plaintiffs’ experts reviewed and analyzed. Id. ¶ 20.
The Parties attended eight full-day mediation sessions. Id. ¶ 22. The Parties also had multiple telephone conferences to discuss the information Target produced and the Parties’ positions. Id. ¶ 23.
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Plaintiffs’ Counsel also conducted their own independent investigation, including extensively interviewing Plaintiffs and reviewing hundreds of documents produced as part of the EEOC’s investigation. Id. ¶¶ 17-20.
Based on these circumstances, the Parties were well equipped to evaluate the strengths and weaknesses of the case. Thus, this factor supports 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 settlement based on “pre-mediation discovery and arms-length negotiations”).
D. The Risk of Establishing Liability and Damages for the Class Through Trial Favor Approval (Grinnell Factors 4 and 5).
Although Plaintiffs believe their claims are meritorious, they also recognize the significant legal and procedural obstacles they would face in establishing liability and recovering damages. Indeed, “if 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).
Title VII disparate impact class actions are subject to considerable risk. This is especially true here, where Plaintiffs’ legal theory is relatively novel. Additionally, establishing damages for a class of thousands of class members is not without challenges. Target likely would argue that questions concerning individual employment decisions and entitlement to damages would overwhelm the litigation. If the Court agreed, even if Plaintiffs prevailed on the merits, eligibility for back pay for tens of thousands of class members would likely have to be determined through some form of individualized hearings. See Int’l Brotherhood of Teamsters v. United States, 431 U.S. 324, 361 (1977). Each class member first would have to prove that he or
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she would have been minimally qualified for the position, based on the validated criminal history adjudication process, and then satisfy other conditions to demonstrate a right to monetary relief.
In contrast to these known risks, the settlement ensures that Target will offer employment to qualified class members or compensation and will change its policies. These circumstances favor preliminary approval.
E. The Risk of Obtaining Class Certification (Grinnell Factor 6). The risk of obtaining class certification and maintaining it through trial is also present. The Court has not yet certified the class and such a determination would likely be reached only after extensive briefing. Target may argue that individual questions preclude class certification, including whether the relevant policies and procedures were consistently applied in all 1,800 stores. Should the Court certify the class, Target would likely later challenge certification and move to decertify, requiring another round of briefing. Target may also seek permission to file an interlocutory appeal under Rule 23(f). See, e.g., Shahriar v. Smith & Wollensky Rest. Grp., Inc., 659 F.3d 234 (2d Cir. 2011). Risk, expense, and delay permeate such a process. Settlement eliminates this risk, expense, and delay. This factor also favors preliminary approval. F. The Settlement Is Substantial, Even in Light of the Best Possible Recovery
and the Attendant Risks of Litigation (Grinnell Factors 8 and 9). The relief provided in the settlement is comprehensive and targeted to the harm addressed in this litigation. In particular, it provides a process for remedying Target’s allegedly flawed hiring policies; it affords class members opportunities to obtain jobs or compensation; and it funds a Pipeline Project that will help nonprofit organizations engaged in reentry work. When, as here, settlement ensures immediate relief to class members tailored to the alleged harms, “even if it means sacrificing ‘speculative payment of a hypothetically larger amount years down the road,’” the settlement should be found reasonable. See Gilliam v.
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Addicts Rehab. Ctr. Fund, No. 05 Civ. 3452, 2008 WL 782596, at *5 (S.D.N.Y. Mar. 24, 2008)
(quoting Teachers’ Ret. Sys. of La. v. A.C.L.N., Ltd., No. 01 Civ. 11814, 2004 WL 1087261, at
*5 (S.D.N.Y. May 14, 2004)).
In sum, the terms of the Settlement Agreement are fair and reasonable, as evidenced by
application of the relevant Grinnell factors. The Court should grant preliminary approval.
II. Conditional Certification of the Class is Appropriate.
For settlement purposes, Plaintiffs seek to certify the following Settlement Class under
Federal Rule of Civil Procedure 23:
All African-American and Latino applicants who were denied employment from a Target Stores Job due to a final adjudication on a pre-employment background check that did not clear the applicant to proceed based on their criminal history record, from the start of the class liability period on May 11, 2006, to the date of preliminary approval of the proposed settlement, with the following exceptions:
(1) The Settlement Class will exclude all individuals that Target can establish were, or would have been, denied employment for reasons other than their criminal history records (e.g. failed drug test, SSN name-match screen, or similar reasons). Target shall provide a list of potentially excluded Settlement Class Members to Class Counsel with an explanation for the proposed exclusion; and
(2) The Settlement Class will exclude all individuals with convictions that would have rendered them unqualified for employment under the Interim Criteria, if those criteria had been in effect at the time of their application.
See Ex. A (Settlement Agreement) § 3.2; see also id. at Ex. 2.
The Settlement Class satisfies Rule 23’s requirements.
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.
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Rule 23(b)(3) requires that: (1) questions of law or fact common to the members of the class predominate over any questions affecting only individual members; and (2) a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
The approval of a proposed class action settlement is a matter of discretion for the trial court. Maywalt, 67 F.3d at 1079. “[I]n the Second Circuit, ‘Rule 23 is given liberal rather than restrictive construction, and courts are to adopt a standard of flexibility’” in evaluating class certification. Reade-Alvarez v. Eltman, Eltman & Cooper, P.C., 237 F.R.D. 26, 31 (E.D.N.Y. 2006) (quoting Marisol A. v. Giuliani, 126 F.3d 372, 377 (2d Cir. 1997)).
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). According to information produced by Target, there are over 41,000 Class members from May 2008 to December 2016 alone. Miazad Decl. ¶ 34. While the precise number of putative class members is not known at this stage, Plaintiffs estimate that there will be thousands of class members easily satisfying this requirement. Id. 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, all members of the class are unified by common factual allegations and legal theory—they were subjected to the same criminal history screening process that had a disparate impact on African-Americans and Latinos due to their overrepresentation in the criminal justice
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system. These common issues predominate over any issues affecting only individual class members. See Houser v. Pritzker, 28 F. Supp. 3d 222 at 243-45 (certifying class of applicants in lawsuit challenging Census Department’s criminal history hiring screen).
C. Typicality “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 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., 126 F.3d at 376 (quoting In re Drexel Burnham Lambert Grp., 960 F.2d 285, 291 (2d Cir. 1992)) (internal quotation marks omitted). “Minor variations in the fact patterns underlying individual claims” do not defeat typicality when the defendant directs “the same unlawful conduct” at the named plaintiffs and the class. Robidoux v. Celani, 987 F.2d 931, 936-37 (2d Cir. 1993). Here, like the putative class, Plaintiffs Times and Smith allege that they were denied employment because of Target’s unlawful Screening Process. See Compl. ¶¶ 1, 13, 44-45, 51, 54. Typicality is met because Plaintiffs Times and Smith and all putative class members were subjected to the same procedures, which Plaintiffs challenge. See Duling v. Gristede’s Operating Corp., 267 F.R.D. 86, 97-98 (S.D.N.Y. 2010). D. Adequacy of the Plaintiffs and Their Counsel. Rule 23(a)(4) requires that “the representative parties will fairly and adequately protect the interests of the class.” “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.” Toure v. Cent. Parking Sys. of N.Y., No. 05 Civ. 5237, 2007 WL 2872455, at *7 (S.D.N.Y. Sept. 28, 2007) (quoting Penney v. Deutsche Bank AG, 443 F.3d 253, 268 (2d Cir. 2006)) (internal quotation marks omitted).
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“[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) (quoting Martens v. Smith Barney Inc., 181 F.R.D. 243, 259 (S.D.N.Y. 1998)) (internal quotation marks omitted).
Plaintiffs Times and Smith meet the adequacy requirement because there is no evidence that they have interests that are antagonistic to or at odds with those of putative class members. See Duling, 267 F.R.D. at 99 (“The interests of the proposed class representatives . . . are well aligned with those of the absent class members.”). Further, Plaintiffs Times and Smith have suffered the same alleged Title VII violations as members of the putative class. Plaintiff Fortune Society also meets the adequacy requirement because its interests are aligned with the putative class members: to secure stable employment for formerly incarcerated individuals and to address the negative impact of unvalidated and flawed criminal background check procedures.
Plaintiffs’ Counsel also meet the adequacy requirement of Rule 23(a)(4). See, e.g., Little v. Wash. Metro. Area Transit Auth., 249 F. Supp. 3d 394, 422 (D.D.C. 2017) (finding class counsel, which included LDF, adequate in a Title VII challenge to employer’s use of criminal background checks, and noting that “class counsel are experienced in class actions and other complex litigation”); Houser, 28 F. Supp. 3d at 248 (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); Easterling v. Conn., Dep't of Corr., 265 F.R.D. 45, 51 (D. Conn. 2010), modified, 278 F.R.D. 41 (D. Conn. 2011) (holding O&G attorneys met standard of qualified and experienced class counsel in Title VII discrimination class case); Wright v. Stern, 553 F. Supp. 2d 337, 346 (S.D.N.Y. 2008) (commending class counsel, which included LDF, in employment
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discrimination case); see also Miazad Decl. ¶¶ 6-7; Declaration of Coty Montag (“Montag Decl.”) ¶ 8. Thus, the adequacy requirement is satisfied.
E. Certification Is Proper Under Rule 23(b)(3). Rule 23(b)(3) requires that common questions of law or fact not only be present, but also that they “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.
1. Common Questions Predominate. The Rule 23(b)(3) predominance inquiry tests whether the proposed class is “sufficiently cohesive to warrant adjudication by representation.” Amchem Prods., Inc., 521 U.S. at 623. Predominance requires 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.” In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 136 (2d Cir. 2001) (internal quotation marks omitted), abrogated on other grounds by Miles v. Merrill Lynch & Co. (In re Initial Pub. Offering Sec. Litig.), 471 F.3d 24 (2d Cir. 2006). 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, 280 F.3d at 139. Where plaintiffs are “unified by a common legal theory” and by common facts, the predominance requirement is satisfied. McBean v. City of New York, 228 F.R.D. 487, 502 (S.D.N.Y. 2005). Here, Plaintiffs’ common contentions—that Target’s Screening Process had a disparate impact on African-Americans and Latinos in violation of Title VII—predominate over any issues
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affecting only individual class members. See Easterling v. Conn. Dep’t of Corr., No. 08 Civ. 826, 2011 WL 5864829, at *8 (D. Conn. Nov. 22, 2011) (holding that individual questions regarding class member status, qualifications, and mitigation were less substantial than the issues that were subject to generalized proof, including whether the challenged physical fitness test had a disparate impact on female applicants; whether that impact was justified by business necessity; the total amount of back pay, the rate at which those women would have been paid; the total number of priority hiring slots that should be awarded, if any; and the total amount of front pay); United States v. City of New York, 276 F.R.D. 22, 48-49 (E.D.N.Y. 2011) (finding that common issues, including the aggregate amount of relief available and the criteria used to establish who is eligible to receive retroactive seniority and priority hiring relief, predominated in a disparate impact case challenging a written entrance examination, despite individual questions regarding claimants’ mitigation efforts).
2. A Class Action Is a Superior Mechanism. Rule 23(b)(3) next considers 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). Rule 23(b)(3) sets forth a non-exclusive list of relevant factors, including whether individual class members wish to bring, or have already brought, individual actions; and the desirability of concentrating the litigation of the claims in the particular forum.3

3

Another factor, whether the case would be manageable as a class action at trial, is not of

consequence in the context of a proposed settlement. See Amchem, 521 U.S. at 620

(“[c]onfronted with a request for settlement-only class certification, a [trial] court need not

inquire whether the case, if tried, would present intractable management problems, . . . for the

proposal is that there be no trial”) (internal citation omitted); Frank, 228 F.R.D. at 183 (“The

court need not consider the [manageability] factor, however, when the class is being certified

solely for the purpose of settlement.”). Moreover, denying class certification on manageability

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Here, certification of the Settlement Class is “superior to individual adjudication because it will conserve judicial resources and is more efficient for class members, particularly those who lack the resources to bring their claims individually.” Capsolas v. Pasta Res., Inc., No. 10 Civ. 5595, 2012 WL 1656920, at *2 (S.D.N.Y. May 9, 2012). Plaintiffs and class members have limited financial resources with which to prosecute individual actions. Employing the class device here will achieve economies of scale for putative class members, conserve judicial resources, and preserve public confidence in the system by avoiding repetitive proceedings and preventing inconsistent adjudications. III. Plaintiffs’ Counsel Should Be Appointed as Class Counsel.
O&G and LDF 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,
grounds is “disfavored” and “should be the exception rather than the rule.” In re Visa Check, 280 F.3d at 140 (internal quotation marks omitted).
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investigating, negotiating, and settling Plaintiffs’ and putative class members’ claims. Miazad
Decl. ¶¶ 14-25; Montag Decl. ¶¶ 9-11, 13. Plaintiffs’ Counsel have substantial experience
prosecuting and settling employment class actions, including background check cases. Miazad
Decl. ¶ 6; Montag Decl. ¶ 7. Plaintiffs’ Counsel are well-versed in the impediments to
employment that criminal records create. Further, courts have repeatedly found Plaintiffs’
Counsel to be adequate class counsel. See supra Argument § II.D; Miazad Decl. ¶ 7; Montag
Decl. ¶ 8.
IV. The Notice and Award Distribution Process are Appropriate.
The Notice and Claim Form, which is attached to the Miazad Decl. as Exhibit B, fully
comply 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 and Claim Form satisfy these requirements. They are written in plain English
and organized and formatted to be as clear as possible. The Notice is based on the model notice
forms provided by the Federal Judicial Center (“FJC”) on its website.4 See Reyes v. Altamarea
Grp., LLC, No. 10 Civ. 6451, 2010 WL 5508296, at *2 (S.D.N.Y. Dec. 22, 2010) (approving

4

See Federal Judicial Center, Illustrative Forms of Class Action Notices: Notice Checklist

and Plain Language Guide, https://www.fjc.gov/content/301350/illustrative-forms-class-action-

notices-notice-checklist-and-plain-language-guide (last visited April 3, 2018).

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notice based on FJC model). The Notice describes the settlement’s terms, informs putative class members about the allocation of fees and costs, explains how to opt out or object, and will provide the date, time, and place of the final approval hearing. See Ex. B (Notice and Claim Form).
The Settlement Agreement provides that the settlement administrator will mail and email (where available) the Notice and Claim Form to class members, take reasonable steps to obtain correct addresses of any class member whose Notice and Claim Form is returned as undeliverable and attempt a re-mailing, and send reminder notices by mail and email. See Ex. A (Settlement Agreement), §§ 4.1(D), (G). The Claim Form is simple and straightforward, and can be returned by mail, email, or via a case website. See Ex. B (Notice and Claim Form).
CONCLUSION For the reasons set forth above, Plaintiffs respectfully request that the Court preliminarily approve the settlement, conditionally certify the proposed settlement class, appoint Plaintiffs’ Counsel as Class Counsel, approve the Notice and Claim Form, and enter an Order granting Plaintiffs’ Motion.5

5

For the Court’s convenience, a Proposed Order Granting Plaintiffs’ Motion for

Preliminary Approval of the Settlement is attached as Exhibit C to the Miazad Declaration.

27

Case 1:18-cv-02993 Document 5 Filed 04/05/18 Page 35 of 35

Dated: April 5, 2018 New York, New York

Respectfully submitted,
/s/ Ossai Miazad OUTTEN & GOLDEN LLP Ossai Miazad Adam T. Klein Lewis Steel Cheryl-Lyn Bentley Christopher M. McNerney 685 Third Avenue, 25th Floor New York, New York 10017 Tel.: (212) 245-1000
NAACP LEGAL DEFENSE FUND Sherrilyn Ifill Samual Spital 40 Rector Street, 5th Floor New York, New York 10006 Tel.: (212) 965-2200
Coty Montag* 1444 I Street NW, 10th Floor Washington, DC 20005
*Pro hac vice motion forthcoming
Attorneys for Plaintiffs and the Putative Settlement Class

28

 
 CCaassee11::1188--ccvv--0022999933-D-DCCFF DDocoucmumenetn4t85-58 FFiilleedd 1100//0299//1199 PPaaggee21ooff1110

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

CARNELLA TIMES and ERVING SMITH, on behalf of themselves and all others similarly situated, and THE FORTUNE SOCIETY, INC.,
Plaintiffs,
-against-
TARGET CORPORATION,

No.18 c·

USDCSDNY DOCUMENT
ELE.CTRONICALL¥~ . ·

DOC#:

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DATE~:·:. . ;-JQ ,z ;. - .

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Defendant.

(,.Df-/Of"fl Of'.[ftt--L 'f 6fl-A--,Vtl (\) (1--

[PR:OPOSEDfORDER GRANTING PLAINTIFFS' UNOPPOSED r

MOTIONS FOR CERTIFICATION OF THE SETTLEMENT CLASS ANDjFINAL

APPROVAL OF THE CLASS ACTION SETTLEMENT, APPROVAL OF ATTORNEYS'

FEES AND COSTS, AND APPROVAL OF SERVICE AWARD

The above-entitled matter came before the Court on Plaintiffs' Unopposed Motions for

Certification of the Settlement Class and Final Approval of Class Action Settlement, Approval of

Attorneys' Fees and Costs, and Approval of Service Awards ("Motions for final Approval").

1 u., Based upon the Court's review of the motions, _memorandum, declarations, and oth~r • -f.. , <:f IM'l,d. e(N\,/,f-tM4..,1 dv'-. r,o tuf.ld-~ c&4-! ~h--t/T w-tv, W<fl-. k-ta..U J 11./'"U'- /1--(J
r {; papers submitted in connection with the Motions for Final Approval, the Court grants final ~ ~ : / ovvi, I ,,_,#~cf approval of the settlement memorialized in the Settlement Agreement and "so orders" all of its ,_µ.''f-rt.h.. ju-"r'viH J
terms, which are incorporated herein. Capitalized terms used in this Order shall have the same

meanings as set forth in the Settlement Agreement, un)ess otherwise defined herein.

IT IS HEREBY ORDERED AS FOLLOWS:

I. JURISDICTION 1. This Court has jurisdiction over the subject matter of the litigation and over all

parties to this litigation, including all members of the Settlement Class, as defined below. As

CCaassee11:1:188-c-cvv-0-022999933-D-DCCFF DDocoucmumenetn4t85-85 FFiilleedd 1100//0299//1199 PPaaggee32oof f1110
used below, "Defendant" means Target Corporation.
II. CERTIFICATION OF SETTLEMENT CLASS
2. On May 14, 2018, the Court preliminarily certified the Settlement Class under Rule 23 of the Federal Rules of Civil Procedure ("Rule 23"). ECF No. 24. The Court now grants final certification because the requirements under Rule 23 have been met.
3. Plaintiffs allege that Defendant's criminal background screening process unlawfully disqualified African-American and Latino applicants for Target hourly j9bs based on their race and national origin in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.
4. Pursuant to Rule 23, the Court certifies the following Settlement Class: all African-American and Latino applicants who were denied employment from a Target Stores Job due to a final adjudication on a pre-employment background check that did not clear the applicant to proceed based on their criminal history record, from May 11, 2006, to May 14, 2018, except: (1) individuals are excluded if Target can establish they were, or would have been, denied employment for reasons other than their criminal history records; (2) individuals are excluded if they have convictions that would have rendered them unqualified for employment under the Interim Criteria, if those criteria had been effect at the time of their application; and (3) individuals are excluded if they are current Target Team Members.
5. The Settlement Class meets all of the requirements for class certification under Rules 23(a) and (b)(2) and (b)(3). There are thousands of Settlement Class Members, satisfying the numerosity requirement. Named Plaintiffs are typical and adequate representatives of the Settlement Class they seek to represent because their interests are co-extensive with those of Settlement Class Members and they have retained experienced counsel to represent them. Plaintiffs raise common questions, and the Settlement Class satisfies the predominance and
2

CCaassee11:1:188-c-cvv-0-022999933-D-DCCFF DDocoucmumenetn4t85-85 FFiilleedd 1100//0299//1199 PPaaggee43oof f1110

superiority requirements for certification under Rule 23(b)(3) for settlement class purposes

including because Plaintiffs' common contentions-that Target's Screening Process had a

disparate impact on African-American and Latino applicants in violation of Title VII and is

inconsistent with business necessity-predominate over any issues affecting only individual

Class Members.

The Court CERTIFIES the Settlement Class under Rules 23(a) and 23(b)(3).
~µ~ rno ,uftl-
111. APPROVAL OF SETTLEMENT AGREEMENT
A
6. 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).

~f-_N--fi{'1

7.

The Court hereby finally approves the Settlement as set forth in the Settlement

~

A.

Agreement. The Court has reviewed the terms of the proposed Settlement Agreement along with

its exhibits, including specifically the programmatic and class member relief, and Plaintiffs'

Motions for Final Approval.

8. Based on a review of those papers and the Court's familiarity with the case, the

Court concludes that the Settlement is the result of extensive, arm's-length negotiations and is in

all respects, fair, reasonable, and adequate, and binding on all members of the Class who have

not opted out. See Wal-Mart Stores, Inc. v. Visa U.S.A. Inc., 396 F.3d 96, 116 (2d Cir. 2005);

Duling v. Gristede 's Operating Corp., 267 F.R.D. 86, 99 (S.D.N.Y. 2010); Capsolas v. Pasta

Res., Inc., No. 10 Civ. 5595, 2012 WL 1656920, at *1 (S.D.N.Y. May 9, 2012). The

programmatic and class member relief are significant and meaningful, especially when weighed

against the risks of ongoing litigation.

9. The parties have agreed to the detailed programmatic relief as set forth in the

Settlement Agreement. The parties jointly selected Industrial Organization ("I/0) experts as

independent consultants to work with the parties to design, develop, and implement properly 3

CCaassee11:1:188-c-cvv-0-022999933-D-DCCFF DDocoucmumenetn4t85-85 FFiilleedd 1100//0299//1199 PPaaggee54oof f1110
validated adjudication guidelines relating to the use of criminal history records in hiring for Target Stores Jobs that are valid and meet the standards of the Uniform Guidelines, Society for Industrial and Organizational Psychology ("SIOP") Principles, or other applicable professional standards.
10. The parties have also agreed to individualized class member relief, as set forth in the Settlement Agreement. Defendant will engage in priority hiring/interviewing of Settlement Class Members for hourly, non-exempt jobs for which they are qualified, but were denied based on Target's screening process. By the terms of the priority hiring of the settlement, qualified Settlement Class Members will be offered available Target store positions before other applicants. Additionally, Settlement Class Members who are qualified for a supervisory role will be given an opportunity to interview for those positions without completing the customary prescreening interview. Settlement Class Members who are hired pursuant to the priority hiring process, but are terminated less than six months for reasons outside of their control, will receive a letter of employment that states that Target hired them with knowledge of their criminal background record, and that their employment was terminated due to business reasons. For Settlement Class Members who can reasonably demonstrate that instatement would not benefit them at the time of the implementation of the Settlement Agreement and will not benefit them over the following 12-month period for reasons articulated in the Settlement Agreement, Target has agreed to individual monetary awards not to exceed One Thousand Dollars ($1,000.00). The settlement administrator will oversee a simplified claims process. Settlement Class Members will be entitled to a single, pro rata award based on number of participants. Defendant's total contribution toward cash awards will not exceed One Million Two Hundred Thousand Dollars ($1,200,000.00) of the Settlement Fund.
4

CCaassee11:1:188-c-cvv-0-022999933-D-DCCFF DDocoucmumenetn4t85-85 FFiilleedd 1100//0299//1199 PPaaggee65oof f1110
11. The parties have also agreed that Six Hundred Thousand Dollars ($600,000.00) will be granted to not-for-profit organizations that provide re-entry support to individuals with criminal history records, with the goal of supporting those organizations' efforts to develop a pipeline of qualified applicants who have successfully completed work ready programs at such organizations (the "Pipeline Project"). These organizations will receive written information about the Pipeline Project and an invitation to submit statements of interest and other materials to assist in the selection of participant organizations. Settlement Class Members will receive notice of the selected work ready programs participating in the Pipeline Project.
12. Within fourteen (14) days of the Effective Date of the Settlement, Defendant will pay to Class Counsel Three Million Seven Hundred and Forty-Two Thousand, Five Hundred and No/100 Dollars ($3,742,500.00), which shall fully resolve and satisfy the programmatic, individualized, and organizational relief, any claim for attorneys' fees and costs approved by the Court, and any Court-approved Service Awards to Named Plaintiffs.
13. The Settlement Fund constitutes the total settlement cash outlay by Defendant in connection with the resolution of this Action. No other money shall be separately paid by Defendant in connection with this settlement, except certain implementation costs of the programmatic relief, such as the I/Os' compensation, as outlined in the Settlement Agreement. The Settlement Fund is inclusive of payment for: (a) all amounts paid to satisfy the class member and organizational relief; (b) all amounts paid to Named Plaintiffs for Court-Approved Service Awards; (c) all attorneys' fees and costs awarded by the Court, including those in connection with securing Court Approval of the settlement and the claims process and the monitoring by Class Counsel of the Settlement Agreement; and (d) all costs in connection with the Settlement Fund including, but not limited to, those related to investing and liquidating the Settlement Fund.
5

CCaassee 11::1188--ccvv--0022999933-D-DCCFF DDoocucmumenetn4t 85-58 FFiilleedd 1100//0299//1199 PPaaggee76ooff1110
The Settlement Fund does not include the costs of the programmatic relief which costs will be borne by Defendant directly. Defendant shall pay the Settlement Administrator's fees and costs.
14. The Effective Date is the date the Judgment has become Final. In turn, "Final" means the date the Judgment becomes final for all purposes, because either (i) no appeal has been filed and thirty (30) days have lapsed since entry of the Judgment, or (ii) ifthere is an appeal of the Court's decision granting final approval, the day after all appeals are finally resolved in favor of final approval.
15. The settlement is procedurally and substantively fair, reasonable, adequate, and is not a product of collusion. See Fed. R. Civ. P. 23(e); Reyes v. Altamarea Group LLC, No. 10 Civ 6451, 2011 WL 4599822, at *4 (S.D.N.Y. Aug. 16, 2011); City ofDetroit v. Grinnell Corp., 495 F.2d 448, 462-63 (2d Cir. 1974).
16. The assistance of an experienced mediator reinforces that the Settlement Agreement is non-collusive. See Capsolas, 2012 WL 1656920, at *1.
17. Having considered the strengths and weaknesses of the Plaintiffs' case versus the benefits of the Settlement; the likely complexity, length, and expense of further litigation; the limited opposition to the Settlement among the Settlement Class; the opinion of competent counsel, and the substantial amount of discovery and litigation already undertaken, the Court finds that the Settlement is fair, reasonable, and adequate, and well within the range of other settlements that have obtained final approval by federal courts
18. The Court further finds that the response of the Class Members to the Settlement Agreement supports approval of the Settlement. As of the date of this Order, no individuals have opted out of the Settlement and only one individual has objected to the Settlement.
6

CCaassee 11::1188--ccvv--0022999933-D-DCCFF DDoocucmumenetn4t 85-58 FFiilleedd 1100//0299//1199 PPaaggee87ooff1110
19. The Court has considered the objection to the Settlement, and overrules it on that bases that a) the service awards are reasonable; b) the class member relief is fair, reasonable, and adequate.
20. The Court finds that the Notice effectuated was the best practicable notice under the circumstances, and was accomplished in all material respects, as set forth in the Declaration of Sara Schwermer-Sween on behalf of the Claims Administrator, Rust Consulting, Inc.
21. The Class Notices provided adequate notice of these proceedings and the terms of the Settlement Agreement to all parties entitled to such notice. The distribution of the notice fully met the requirements of Federal Rule of Civil Procedure ("Rule") 23 and satisfied the requirements of constitutional due process and any other applicable law.
22. Outten & Golden LLP ("O&G") and NAACP Legal Defense and Educational Fund, Inc. ("LDF"), which the Court previously appointed as Class Counsel, satisfy the requirements of Rule 23(g).
The Settlement is hereby APPROVED and incorporated herein and shall become effective according to its terms. IV. RELEASE AND DISMISSAL OF CLAIMS WITH PREJUDICE.
23. Upon the Effective Date of the Settlement, each Settlement Class Member who has not excluded him or herself will release the Defendant from:
all claims, demands, causes of action, and liabilities, known and unknown, that they had, have, or may have under any legal or equitable theory, against Defendant arising from or relating to or concerning their denial of a Target Stores Job based on criminal history records under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. and parallel state and local laws, rules, regulations and ordinances. The Class Release will not include claims under the federal Fair Credit Reporting Act, which is the subject of a separate, unrelated settlement. V. AWARD OF ATTORNEYS' FEES AND COSTS
24. The Court awards Class Counsel an award of $1,900,000.00 in fees and in costs 7

CCaassee11:1:188-c-cvv-0-022999933-D-DCCFF DDocoucmumenetn4t85-85 FFiilleedd 1100//0299//1199 PPaaggee98oof f1110
for their efforts in support of this litigation. 25. Class Counsel engaged considerable resources in the prosecution of this case over
the course of approximately four years. 26. The attorneys at O&G and LDF who prosecuted this case are experienced class
action and employment lawyers with good reputations among the class action and employment bars and significant experience in litigating criminal history discrimination matters. Class Counsel are nationally recognized employment class action litigators. See, e.g., Gonzalez v. Pritzker, No. 10 Civ. 3105, 2016 WL 5395905, at *4 (S.D.N.Y. Sept. 20, 2016) ("Class Counsel are nationally recognized employment class action litigators .... Outten & Golden's resources played a significant role in Class Counsel's ability to pursue this litigation without compensation over the past six years."); Aros v. United Rentals, Inc., Nos. 10 Civ. 73, 11 Civ. 1281, 11 Civ. 1282, 11 Civ. 1283, 11 Civ. 1284, 11 Civ. 1285, 2012 WL 3060470, at *6 (D. Conn. July 26, 2012) (the attorneys of "Outten & Golden LLP ... are experienced employment lawyers with good reputations among the employment law bar. They have prosecuted and favorably settled many employment law class actions."); Damassia v. Duane Reade, Inc., No. 04 Civ. 8819, No. 04 Civ. 2295, 2009 WL 5841128, at *3 (S.D.N.Y. July 27, 2009) (noting that Outten & Golden "has substantial experience prosecuting and settling employment class actions"); Little v. Washington Metro. Area Transit Auth., 249 F. Supp. 3d 394,422 (D.D.C. 2017) (finding LDF adequate class counsel in a Title VII challenge to employer's use of criminal background checks, and noting that "class counsel are experienced in class actions and other complex litigation").
27. Although Class Counsel had no guarantee of any compensation in pursuing this case, and has worked without compensation for over four years, they achieved substantial success in settling the claims on behalf of the class.
8

CCaasese11:1:18-8c-vc-v0-20929939-3D-DCFCFDoDcoucmuemnet n4t85-85 FFilieledd1100/0/299/1/199 PPaagege190 ooff 1110
28., The award to Class Counsel of $1,900,000 in less than their total loadstar as of September 22, 2019, and does not include all the work that Class Counsel has done since September 22, 2019, or will do in the future.
29. In light of the above, the award of $1,900,000.00 in fees and costs is a reasonable award. The award shall be paid by Defendant. VI. SERVICE AWARDS TO NAMED PLAINTIFFS
30. The Court finds that service awards of $20,000 to Named Plaintiff Camella Times
$J., fl>D
and the Fortune Society, and a service award of ~ t o Named Plaintiff Erving Smith, are reasonable.
31. Service awards are common in class action cases and serve to compensate plaintiffs for the time and effort expended in assisting the prosecution of the litigation, the risks incurred by becoming and continuing as a named plaintiff, and any other burdens sustained by the plaintiffs. See Reyes, 2011 WL 4599822, at *9. Here, the requested service awards are reasonable and are approved.
~iV~ ,noN-A-tVII. FINAL APPROVAL OF SETTLEMENT
32. Without affecting the finality of this Settlement Order and Final Judgment, the Court retains continuing jurisdiction over: (a) implementation of the Settlement Agreement and programmatic relief contemplated by the Settlement Agreement, until all acts agreed to be performed pursuant to the Settlement Agreement have been performed; and (b) all parties to this action and Settlement Class Members for the purpose of enforcing and administering the Settlement Agreement.
33. As of the Effective Date of the Settlement, the action shall automatically be dismissed with prejudice, except that the Court will retain continuing jurisdiction as set forth above.
9

CCaassee11:1:188-c-cvv-0-022999933-D-DCCFF DDocoucmumenetn4t85-85 FFiilleedd 1100//0299//1199 PPaaggee1110oof f1110

34. The parties shall abide by all terms of the Settlement Agreement.

ti- It

. ts

so

ORDERED

this

2j

day of--6~.~I ~I .~, --' 2019.

Hon. Debra Freeman

United States Magistrate Judge

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