IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ELIZABETH PICHLER, et al. : CIVIL ACTION

:

 v. :

:

UNITE (UNION OF NEEDLETRADES, :

INDUSTRIAL & TEXTILE EMPLOYEES :

AFL-CIO) : NO. 04-2841

MEMORANDUM

Dalzell, J. February 22, 2011

This Memorandum will consider the resolution of this

class action that has reposed on this Court's docket since June

28, 2004. As it risks understatement to mention that the

background of this case has been extensively rehearsed , we will 1

only briefly describe it here in order to put into relief class

counsel's motion for approval of the settlement and for an award

of attorneys' fees and expenses. 

This action alleged UNITE's violation of the privacy of

 Pichler v. UNITE, 339 F.Supp.2d 665 (E.D. Pa. 2004) 1

(holding the action not a labor dispute exempt from the DPPA)

("Pichler I"); 228 F.R.D. 230 (E.D. Pa. 2005) (certifying class

action against UNITE) ("Pichler II"); 446 F.Supp.2d 353 (E.D. Pa.

2006) (granting summary judgment as to liability against UNITE

only and entering judgment of $2,500 per violation of certain

named plaintiffs) ("Pichler III"); 457 F.Supp.2d 524 (E.D. Pa.

2006) (amended final judgment) ("Pichler IV"); 238 F.R.D. 405

(E.D. Pa. 2006) (unsealing much of the record) ("Pichler V"); and

646 F.Supp.2d 759 (E.D. Pa. 2009) (denying punitive damages,

entering $2,500 judgment for nine remaining named plaintiffs, and

enjoining UNITE from using their motor vehicle information)

("Pichler VI").
public motor vehicle records of various employees of Cintas

Corporation in the Allentown, Pennsylvania area. The named

plaintiffs and then-putative class representatives claimed that

UNITE and the International Brotherhood of Teamsters ("IBT")

violated the Driver's Privacy Protection Act ("DPPA"), 18 U.S.C.

§ 2721, et seq., when UNITE organizers obtained the plaintiffs' 2

names and addresses from official motor vehicle records as part

of UNITE's nationwide campaign to unionize Cintas.

After extensive discovery and motion practice, we

certified a class which, pursuant to the settlement, both sides

now agree numbers as many as 1,209 members. After disposing of

the liability issues involving the class representatives, we

entered judgment in most of their favor for $2,500 each and

resolved other related issues as to them only. See Pichler III

and IV. 

Both sides cross-appealed to the Court of Appeals,

which ultimately affirmed our imposition of liability and entry

 UNITE is an acronym for the Union of Needletrades, 2

Industrial & Textile Employees AFL-CIO. After this action was

filed, UNITE joined with another union to form UNITE HERE. The

settling party is actually "UNITE HERE" as successor to defendant

"UNITE", but for ease of reference and consistency we will

throughout this Memorandum refer to the defendant and settling

party as "UNITE".

2
of separate awards to two class representatives and the dismissal

of two others. Pichler v. UNITE, 542 F.3d 380 (3d Cir. 2008). 

The Court of Appeals vacated and remanded for further proceedings

our refusal to award punitive damages or grant multiple awards of

liquidated damages. Notably, the Court of Appeals did not

address questions relating to classwide relief. 

The United States Supreme Court denied UNITE's petition

for a writ of certiorari on March 23, 2009, UNITE v. Pichler, 129

S.Ct. 1662 (2009). On remand after the Supreme Court's denial of

review, UNITE moved for summary judgment on the punitive damages

issue, which the class opposed. In Pichler VI we granted UNITE's

motion and denied the class the right to seek punitive damages.

Whereupon, we entered judgment on August 12, 2009 for the

remaining class representatives in the amount of $2,500 each and

enjoined UNITE from using their motor vehicle information. 

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After it became apparent from the plaintiffs'

submissions that they disagreed over many issues regarding classwide relief and other class-related matters, with their agreement

we referred the matter to the Hon. Jacob P. Hart for mediation. 

 By this time plaintiffs had settled and dismissed their 3

claims against the IBT and Bruce Raynor. Thus, UNITE remained

the only defendant in the class action.

3
After protracted mediation that included three sessions before

Judge Hart, the parties finally agreed to a Settlement Agreement

that we preliminarily approved in our Order of October 15, 2010. 

Notices were mailed first class to the 1,209 members that the

parties agreed were potential members of the class entitled to

submit proofs of claim. We convened a final fairness hearing on

February 18, 2011.

The Settlement Agreement

After almost a year of negotiations under the patient

and creative supervision of Judge Hart , the parties on September 4

30, 2010 at last executed the Settlement Agreement. Briefly

summarized, the Settlement Agreement adopted this Court's

December 14, 2005 class definition in Pichler II which included:

All persons whose personal

information from motor vehicle

records was knowingly obtained,

used and/or disclosed, directly or

indirectly, by UNITE or UNITE HERE

between July 1, 2002 and October

13, 2004 to attempt to contact

Cintas Corporation employees.

Sett. Agr. at ¶ 2.5. The Agreement also obliged UNITE to deposit

$4,022,500 into an escrow account to pay claimants and to fund

 Indeed, counsel for both sides agreed at the fairness 4

hearing that Judge Hart's efforts were "invaluable and

essential."

4
the $1 million in attorneys' fees and costs to be paid to class

counsel if we approved that sum.

As noted, the Settlement Agreement identified 1,209

potential class members with known addresses. It also provided

that each eligible class member should receive the statutorily

liquidated damages of $2,500 to which we found such class members

should be entitled, rather than actual damages (a statutorily

significant distinction, see 18 U.S.C. § 2724(b)(1)). To the

extent that fewer than 1,209 potential claim members become

eligible claimants, any balance remaining in the escrow account

would be returned to UNITE.

On October 15, 2010, we entered an Order granting

preliminary approval of the settlement. This Order gave

objectors until January 4, 2011 to file any objections to the

Settlement Agreement, and set the fairness hearing that we in

fact convened (as ordered) on February 18, 2011. The Order also

imposed a deadline of April 8, 2011 for potential class members

to send in completed Claim Forms in order to determine whether

they were indeed eligible to receive the $2,500.

As of the hearing, no one had objected to any term of

the Settlement Agreement or to the agreed-upon award of

attorneys' fees and costs.

5
Fairness Analysis

Since 1975 the leading case in this Circuit for

determining the fairness, reasonableness and adequacy of class

action settlements is Girsh v. Jepson, 521 F.2d 153 (3d Cir.

1975). Girsh identified, id. at 157, nine factors that courts

should consider in determining whether to approve class action

settlements. To be sure, our Court of Appeals has recently 5

noted that the nine Girsh factors are not necessarily exclusive

factors that courts should consider, see In re Insurance

Brokerage Antitrust Litig., 579 F.3d 241, 259 n.17 (3d Cir. 2009)

(citation omitted). But, as will shortly become clear, the

fairness, reasonableness and adequacy of this settlement is so

plain that we need not consider any factors beyond those Girsh

identified.

 The nine Girsh factors are: (1) the complexity, expense, 5

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 a class action through 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.

6
A. Complexity, Expense and Duration of the Litigation

This first Girsh factor need not detain us in view of

the pendency since June of 2004 of this hotly-contested action. 

In the recitation of the pertinent history, we listed

in note 1 the six reported decisions we have made, as well as the

Court of Appeals's exhaustive canvass of the many issues --

almost all of first impression -- that it canvassed after we

entered judgment as to the named plaintiffs only. Indeed, it is

fair to say that every issue of any moment that we faced in this

litigation was of first impression. The DPPA landscape was so

barren of landmarks that when a Court of Appeals first navigated

the terrain it looked to our decision in Pichler II for

assistance. Kehoe v. Fidelity Federal Bank & Trust, 421 F.3d

1209, 1213 n.3 (11th Cir. 2005) (holding, with respect to the

reasoning in Pichler II that considered several novel issues, "we

find its analysis of the issue before us well-reasoned and

persuasive").

UNITE is unquestionably correct when it notes in its

memorandum that "[h]ad a settlement agreement not been reached,

the Court and the parties would have had to resolve the same

issues addressed by the Settlement Agreement -- determining how

an individual demonstrates membership in the Class and hence

7
entitlement to an award of liquidated damages, whether Class

Members may recover multiple damages, and the form of any final

judgment." Mem. at 8. And the history of this litigation

demonstrates beyond peradventure that UNITE is also correct that

any final disposition we made "would not necessarily have ended

the litigation", id., and that one or both sides "would likely

have appealed the final judgment to the Third Circuit." Id. In

short, absent a settlement, this almost seven year saga would age

to become a latter-day Jarndyce and Jarndyce.

The first Girsh factor weighs heavily in favor of

approval of this settlement.

B. The Reaction of the Class

Unlike other settlements where Courts necessarily must,

at least in part, rely on publication notice, here the parties

agreed on the identity of each and every potential class member. 

Thus, it was possible to send to 1,209 people a first-class

mailing of the Notice at their last known addresses. As of the

January 4, 2011 deadline, not one potential class member

objected. By the time of the hearing, that number remained at

zero.6

 To be sure, class counsel reported at the hearing that 6

some mailings have been reported as undeliverable, but this only

8
The second Girsh factor strongly favors approving the

settlement.

C. The Stage of the 

Proceedings and Quantum of Discovery

This third Girsh factor is, as our Court of Appeals

later noted, designed "to ensure that a proposed settlement is

the product of informed negotiations . . . ." In re Prudential

Ins. Co. of Am. Sales Practices Litig., 148 F.3d 283, 319 (3d

Cir. 1998). Again, UNITE understates the reality when it

observes that it "is difficult to conceive of a matter in which

the parties are more informed about the underlying facts and

law." Mem. at 9. There were, for example, depositions of forty

individuals as well as review of thousands of pages of documents. 

As UNITE adds, "[t]he litigation of this matter, both in this

Court and the Third Circuit, has, in large part, established the

law in this jurisdiction regarding DPPA liability." Id.; see

Pichler v. UNITE, 542 F.3d at 383 (3d Cir. 2008) (“This case

presents several issues of first impression in this court of

appeals regarding application of the Driver’s Privacy Protection

Act of 1994.”). As noted above, the Eleventh Circuit in Kehoe,

constitutes mundane evidence (if any more were needed) that we

will never live in a perfect world.

9
supra, also found our reasoning "persuasive". Not-at-allparenthetically, Kehoe reversed a district court decision to the

contrary of Pichler II. 

Under these circumstances, there is no doubt that the

parties are intimately familiar with the facts and law at issue. 

It is also, as UNITE points out, "beyond dispute that the

Settlement resulted from arms-length negotiations between Class

Counsel and UNITE’s counsel." Mem. at 10. By the time the

parties proffered the settlement to us, this matter had reposed

on our docket for over six years. The remaining issues -- and

they were many and, as noted, worthy of Bleak House -- still had 7

to be decided. After three protracted settlement conferences

under the supervision of Judge Hart -- himself a demonstrated

master of mediation -- the matter at last was resolved.

This third Girsh factor unquestionably supports the

 For example, assume class representatives Thomas and Amy 7

Riley, who are married registered co-owners of a car, received

two visits from a UNITE organizer made possible by finding the

Rileys' car registration in the Pennsylvania Department of Motor

Vehicles. Do Thomas and Amy each get $2,500? Should they get

$2,500 for each visit by the organizer because each visit

constitutes a different "use" under 18 U.S.C. § 2724(a)? It

would take little time for the fertile imaginations of lawyers to

multiply this exemplar into dozens of occasions for pettifogging

that would justly place this case beside Jarndyce and Jarndyce

"which was squeezed dry years upon years ago." Charles Dickens,

Bleak House 7 (Norton Critical Ed. 1977).

10
approval of this settlement.

D. Litigation Risks and Maintaining the Class Action

Although the Settlement Agreement provides for the

payment of the full $2,500 per eligible class member -- one

hundred percent of the liquidated damages we held were applicable

-- and although the Court of Appeals affirmed our decision as to

the named plaintiffs, the question as to liability of the class

action was, as UNITE notes, dependent on the viability of our

decision in Pichler VI granting summary judgment to UNITE on the

putative damages question. Indeed, from the beginning of this

case, our holding that only statutory damages of $2,500 were

available was the linchpin of our holding on class action

certification. See Pichler II at n.48. While we harbor little

doubt on our decision regarding putative damages, our Court of

Appeals could well have taken another view, which alone could

have been fatal to the maintenance of this litigation as a class

action.

It is therefore clear that class members would be

unlikely to benefit from further litigation, and indeed the

handsome result obtained in the Settlement Agreement would be put

at risk had the litigation continued. The fourth, fifth and

sixth Girsh factors together tip in favor of approval.

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E. Ability of the Defendant 

to Withstand a Greater Judgment

As noted in our description of the Settlement

Agreement, UNITE is paying each class member the full amount we

awarded to the named plaintiffs. And against the contingencies

of further litigation and the risks entailed with it, UNITE has

in fact paid the full amount at issue into escrow.

This seventh factor is therefore of no moment to our

Girsh calculus.

F. Range of Reasonableness

These Girsh factors (eight and nine), too, are readily

disposed of. Under the proposed Settlement Agreement, each

eligible class member will receive one hundred percent of what we

awarded to the named plaintiffs. This result alone puts this

case in stark contrast to every other class action over which we

have presided, where claimants typically received only a small

percentage of their possible recovery if the matter had proceeded

to judgment. And it bears repeating that class members' one

hundred percent recovery is not subject to reduction for counsel

fees, which UNITE will pay separately.

Since UNITE has already deposited the funds into the

escrow account, each of the 1,209 individuals on the list of

12
potential class members will, if eligible, promptly receive the

$2,500 payment to which we held they are entitled. Such an

outcome defines reasonableness. 

Taken together, there is no doubt under Girsh that the

settlement is fair, reasonable and adequate. We will therefore

approve it.

Attorneys' Fees and Expenses

Class counsel's motion for an award of attorneys' fees

and costs in the exact amount of one million dollars need not

long detain us.

It is important to note here that class counsel was

originally retained by Cintas Corporation, a national employer

with over $3.5 billion in sales in fiscal year 2010. Cintas is

publicly-traded on NASDAQ. As of the close of trading on

February 17, 2011, Cintas had a market capitalization of

$4,260,227,460 (145,301,073 outstanding common shares at a

closing price of $29.32).

Cintas describes itself in its Report on SEC Form 10-K

(the "10-K") as the employer (as of May 31, 2010) of

"approximately 30,000 employees of which approximately 225 were

represented by labor unions". 10-K at 4. Thus, on the face of

13
its 10-K, in one short sentence Cintas describes itself as being

essentially union-free. See also note 8, below. Its market

capitalization and number of employees also make clear that it is

a major business enterprise.

Class counsel advises in its motion for the award of

fees and expenses that through December 31, 2010 it "has charged

Cintas a total of $1,442,449.82 in fees and $127,227.78 in outof-pocket disbursements." Mem. of Law in Supp. of Pls.' Mot. for

Award of Atty. Fees for Pls.' Class's Counsel ("Atty. Fee Mem.")

at 7. After the writeoff of $10,846.22, Cintas was billed

$1,548,826.30. Class counsel represents that "Cintas has paid

nearly all of this amount" id., and has done so on a monthly

basis throughout the course of this litigation.

Thus, we are here in the unusual position of having a

lodestar that has no hypothetical aspect to it. Cintas, a

highly-sophisticated purchaser of legal services, has regularly

paid for these services and the incurring of these expenses for

over six and a half years. The award class counsel seeks here is

only 64.6% of this real-world lodestar amount. Measured against

an outcome where eligible class members receive one hundred

percent of what we held they were entitled, this discount of the

lodestar is generous and the sum to be paid is (relatively)

14
modest.

And measured against a litigation where each side

regarded its opponent as the White Whale, there is no need to 8

belabor the usual analysis undertaken under the fee-shifting

authority of Hensley v. Eckerhart, 461 U.S. 424 (1982) or its

progeny in this Circuit. In the class action context, we are

mindful of the need to look at the lodestar as our Court of

Appeals instructed in, e.g., In Re Prudential, 148 F.3d at 336-

40.

It is important to stress that, unlike cases such as In

re Rite Aid Sec. Litig., 396 F.3d 294 (3d Cir. 2005), this is not

 As to the parties' regard for each other as Ahab and the 8

White Whale, a flavor of this perception may be found in Cintas's

description of itself on page 6 of its 10-K: 

Cintas continues to be the target of a corporate

unionization campaign by several unions. These unions

are attempting to pressure Cintas into surrendering our

employees' rights to a government-supervised election

by unilaterally accepting union representation. We

continue to vigorously oppose this campaign and defend

our employees' rights to a government-supervised

election.

But it bears stress that in contrast to the epic antagonism of

the parties, class counsel and UNITE's counsel throughout this

litigation have conducted themselves with high standards of

professionalism. To be sure, every inch of ground was hardfought, but we salute class counsel and UNITE's for the exemplary

level of their advocacy.

15
a common fund case. As canvassed at length, the class recovery

will in no way be diminished by class counsel's receipt of

attorneys' fees and expenses. Thus, it is a matter of

indifference to any class member what UNITE has agreed to pay

class counsel.

But since the lodestar here is uniquely "hard" because

a sophisticated third party has in fact paid it over more than

six years, and because the sought fee and expense constitute less

than two-thirds of the lodestar, there can be no question as to

its reasonableness. We will therefore approve the agreed-upon

one million dollar payment to class counsel.

BY THE COURT:

__\s\Stewart Dalzell

16