DUKES v. AIR CANADA

Civil Action No. 8:18-cv-02176-EAK-JSS in United States District Court for the Middle District of Florida (Tampa Division)

NOTICE OF PROPOSED CLASS ACTION SETTLEMENT AND HEARING

 

A court authorized this Notice.  This is not a solicitation from a lawyer.

 

 

 

 

 

YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT

Do Nothing

If you do nothing and the Court approves this Settlement, you will receive a settlement payment. You will not be able to sue Defendant for the same issues as in this lawsuit again.

Ask to be Excluded by

December 6, 2019

If you do not want to be included in the case and the Settlement, you must exclude yourself.  This is called “opting out.” This is the only option that allows you to sue Defendant for these same issues.

Object by December 13, 2019

You may write to the Court about why you don’t like the settlement. You cannot object if you opt out.

Go to a Hearing on January 16, 2020

Ask to speak in Court about the fairness of the settlement.

 

  1. Why did I get this notice?

    1. This notice has been sent for the benefit of potential members of the Settlement Class.  The Settlement Class consists of the Disclosure Form Class and the Pre-Adverse Action Notice Subclass.  The Disclosure Form Class consists of:

      All Air Canada employees and job applicants who applied for or worked in a position at Air Canada in the United States and who were the subject of a consumer report that was procured by Air Canada within five years of the filing of this complaint [July 30, 2018] through September 6, 2018 and as to whom Air Canada used a noncompliant FCRA disclosure.

      The Pre-Adverse Action Subclass consists of:

      All Air Canada employees and job applicants in the United States against whom an adverse employment action was taken based, in whole or in part, on information contained in a consumer report within five years of the filing of this complaint [July 30, 2018] through September 6, 2018, who were not provided a pre-adverse notice as required by 15 U.S.C. § 1681b(b)(3)(A). 

      Composition of the Settlement Class is based upon Defendant’s records.  This Notice has been sent because members of the Settlement Class have a right to know about the proposed Settlement of the class action lawsuit in which they are putative class members, and about all of their options, before the Court decides whether to approve the Settlement.  If the Court approves the Settlement, and after objections or appeals relating to that Settlement are resolved, the benefits provided for by the Settlement will be available to members of the Settlement Class.

      This Notice explains the lawsuit, the Settlement, your legal rights, what benefits are available, who is eligible for them, and how to get them.  A full copy of the Settlement Agreement is available to Class Members here.

  2. What is the lawsuit about?

    1. Plaintiff alleges that Defendant’s D&A Form and its procurement of background check reports on the basis of that Form violated the Fair Credit Reporting Act (“FCRA”) because it contained extraneous language.  Plaintiff also alleges that Defendant’s process for distributing a copy of the background check report, and summary of FCRA rights, before taking adverse employment action based upon that report did not comply with the FCRA. Based on these allegations, Plaintiff seeks statutory damages.

      Defendant disputes the Plaintiff’s allegations and denies all liability to Plaintiff and the Settlement Class.  In the lawsuit, Defendant denied Plaintiff’s allegations and raised a number of defenses to the claims asserted. No court has found Defendant violated the law in any way.  No court has found that the Plaintiff could recover any certain amount in this litigation.  Although the Court has authorized Notice to be given of the proposed Settlement, this Notice does not express the opinion of the Court on the merits of the claims or defenses asserted by either side in the lawsuit.

  3. Why is this case a class action?

    1. Class actions are lawsuits in which the claims and rights of many people are decided in a single proceeding.  In a class action, representative plaintiffs seek to assert claims on behalf of all members of a class of similarly situated people.  In a class action, people with similar claims are treated alike.  The Court is guardian of the class’s interests and supervises the prosecution of the class claims by Counsel for the Settlement Class to assure that the representation is adequate.  Class members are not individually responsible for the costs or fees of counsel, which are subject to court award.

  4. Why is there a Settlement?

    1. The Court did not decide this case in favor of the Class Representative or in favor of Defendant.  Instead, Counsel for the Settlement Class investigated the facts and applicable law regarding the Class Representative’s claims and Defendant’s defenses.  The parties engaged in lengthy and arm’s-length negotiations to reach this Settlement.  The Class Representative and Counsel for the Settlement Class believe that the proposed Settlement is fair, reasonable, and adequate and in the best interests of the Settlement Class.

       

      Both sides agree that, by settling, Defendant is not admitting any liability or that it did anything wrong.  Both sides want to avoid the uncertainties and expense of further litigation.

  5. How do I know if I am part of the Settlement?

    1. If you received a notice, Defendant’s records indicate you are a member of the Settlement Class.  If you are not certain as to whether you are a member of the Settlement Class, you may contact the Claims Administrator to find out.  In all cases, the question of class membership will be determined based on Defendant’s records.

  6. What does the Settlement provide?

    1. If you are a member of the Settlement Class, you will receive benefits under the Settlement.

       

      If you are a member of the Settlement Class, you are eligible to receive a benefit under the Settlement.  Defendant has agreed to pay $100,000 into a settlement fund.  After deducting any attorneys’ fees and expenses that the Court may award to class counsel and any services awards that the Court may award to the Plaintiffs, the fund will be divided pro rata among all Settlement Class members who do not opt out.  If the expected requests for attorneys’ fees and expenses and the Plaintiff’s award are granted by the Court, you should receive approximately $41.61, or possibly more if you did not receive or were fired from a job at Defendant based on the information in your background check.  

       

      If any settlement funds remain after all checks have been distributed, after all attorneys’ fees and expenses have been paid, and after all administrative costs incurred by Defendant have been recouped from any uncashed checks, any unclaimed portion of the Settlement Fund will constitute a “cy pres” fund to be donated to a charitable organization and subject to the Court’s approval.

  7. How can I get a benefit?

    1. To receive your settlement payment, you do not have to do anything. Your interest as a member of the Settlement Class will be represented by the Plaintiff and Counsel for the Class. You will be bound by any judgment arising from the Settlement.  If the Settlement is approved, you will receive a check for your share of the net settlement fund.

  8. When would I get my benefit?

    1. The Court will hold a Fairness Hearing at 10:00 a.m. on Thursday, January 16, 2020, United States Courthouse for the Middle District of Florida, 801 North Florida Avenue Tampa, Florida 33602, Courtroom 11A, to decide whether to approve the settlement.  If the Settlement is approved, there may be appeals.  Payments to members of the Settlement Class will be made only if the Settlement is finally approved.  This may take some time, so please be patient.

  9. What am I giving up to get a payment or stay in the Class?

    1. Upon the Court’s approval of the Settlement, all members of the Settlement Class who do not exclude themselves (as well as spouses, heirs, and others who may possess rights on their behalf) will fully release Defendant (and its affiliates, subsidiaries, employees, agents, insurers, and others as specified in the Settlement Agreement) for all claims, including claims for statutory damages and actual damages, arising out of or relating directly or indirectly in any manner whatsoever to the facts alleged or which could have been alleged or asserted in this case, including but not limited to any and all claims under sections  15 U.S.C. § 1681b(b)(2)(A) and 15 U.S.C. § 1681b(b)(3) of the FCRA.  That means you cannot sue, continue to sue, or be part of any other lawsuit against Defendant or any other Released Person on the issues that were or could have been raised in this case.  It also means that all of the Court’s orders concerning the Settlement Class will apply to you and legally bind you, including the Release described in detail in release in the Settlement Agreement.  The Release describes the legal claims that you give up if this Settlement is approved and you do not exclude yourself.  Please carefully read the Release and the Settlement Agreement as a whole. 

  10. How do I get out of the Settlement?

    1. If you choose to be excluded from the Settlement, you will not be bound by any judgment or other final disposition of the lawsuit.  You will retain any claims against Defendant you might have.  To request exclusion, you must state in writing your desire to be excluded from the Settlement Class.  Your request for exclusion must be sent by first class mail, postmarked on or before December 6, 2019, addressed to:

       

      Dukes v Air Canada

      c/o Settlement Administrator

      PO Box 23309

      Jacksonville, FL 32241-3309

      (877) 312-9154

       

      If the request is not postmarked on or before December 6, 2019, your request for exclusion will be invalid, and you will be bound by the terms of the Settlement approved by the Court, including without limitation, the judgment ultimately rendered in the case, and you will be barred from bringing any claims which arise out of or relate in any way to the claims in the case as specified in the Release referenced in FAQ 9 above.

  11. If I don't exclude myself, can I sue Defendant for the same thing later?

    1. No.  Unless you exclude yourself, you give up any right to sue Defendant for the claims that this Settlement resolves, including those regarding background check-related claims. 

  12. If I exclude myself, can I get benefits from this Settlement?

    1. No.  If you exclude yourself, you are not part of the Settlement.

  13. Do I have a lawyer in this case?

    1. The Court has appointed Mary Dukes as Class Representative.  The Court has appointed Wenzel Fenton Cabassa, P.A. as Counsel for the Settlement Class:

       

      Luis A. Cabassa, Esq.

      Brandon J. Hill, Esq.

      WENZEL FENTON CABASSA, P.A.

      1110 North Florida Ave., Suite 300

      Tampa, Florida 33602

      Telephone: (813) 224-0431

       

      Counsel for the Settlement Class represent the interests of the Settlement Class.  You may hire your own attorney to advise you, but if you hire your own attorney, you will be responsible for paying that attorney’s fees.

  14. How will the lawyers be paid?

    1. Class Counsel intend to apply to the Court for an award of attorneys’ fees and expenses in an amount not to exceed one-third of the settlement fund, totaling $33,333. The Court may award less. Class Counsel also will seek compensation for their out-of-pocket expenses and compensation for the Named Plaintiff in an amount not to exceed $5,000.  These amounts will be paid separately from the settlement fund, not by you. 

  15. How do I tell the Court that I don't like the settlement?

    1. You can object to any aspect of the proposed Settlement by filing and serving a written objection. Your written objection must include: (1) your name, address, telephone number, email address and signature; (2) a detailed statement of the specific factual and legal basis for the objection(s) being asserted; (3) a notice of your intent to appear at the final Fairness Hearing at 10:00 a.m. on January 16, 2020, if you intend to appear; and (4) a detailed description of any and all evidence, including copies of any exhibits, which you may offer at the Fairness Hearing. 

       

      You must file any objection with the Clerk of the Court, along with any notice of intent to appear, at the address below by December 13, 2019.

       

      United States Courthouse for the Middle District of Florida

      U.S. Federal Building and Courthouse

      801 North Florida Avenue

      Tampa, Florida 33602

       

      You must also send your objection by first class mail, postmarked on or before December 13, 2019, to Counsel for the Settlement Class and counsel for Defendant.  These documents should be mailed to Settlement Class Counsel at:

       

      Luis A. Cabassa, Esq.

      Brandon J. Hill, Esq.

      WENZEL FENTON CABASSA, P.A.

      1110 North Florida Ave., Suite 300

      Tampa, Florida 336022

      813.224.0431

       

      And to counsel for Defendant at:

       

      Brad Kimbro

      Charles Wachter

      Holland & Knight, LLP

      100 N. Tampa St., Suite 4100

      Tampa, Florida 33602

      Trial Counsel for Air Canada

       

      Any member of the Settlement Class who does not file and serve an objection in the time and manner described above will not be permitted to raise that objection later.

  16. What's the difference between objecting and excluding?

    1. Objecting is simply telling the Court that you don’t like something about the Settlement.  You can object only if you stay in the Settlement.  Excluding yourself is telling the Court that you don’t want to be part of the Settlement.  If you exclude yourself, you have no basis to object because the lawsuit no longer affects you.

  17. Where and when will the Court decide whether to approve the Settlement?

    1. There will be a Fairness Hearing to consider approval of the proposed Settlement at 10:00 a.m. on January 16, 2020 at the United States Courthouse for the Middle District of Florida, 801 North Florida Avenue Tampa, Florida 33602, Courtroom 11A. The hearing may be postponed to a later date without further notice.  The purpose of the hearing is to determine the fairness, reasonableness, and adequacy of the terms of settlement; whether the Settlement Class is adequately represented by the Class Representative and Counsel for the Settlement Class; and whether an order and final judgment should be entered approving the proposed settlement.  The Court also will consider Settlement Class Counsel’s application for an award of attorneys’ fees and expenses and for a service award for the Class Representatives.

      You will be represented at the Fairness Hearing by Counsel for the Settlement Class, unless you choose to enter an appearance in person or through your own counsel.  The appearance of your own attorney is not necessary to participate in the Fairness Hearing.

  18. Do I have to come to the hearing?

    1. No.  Counsel for the Settlement Class will represent the Settlement Class at the Fairness Hearing, but you are welcome to come at your own expense.  If you send any objection, you do not have to come to Court to talk about it.  As long as you filed and mailed your written objection on time, the Court will consider it.  You may also pay your own lawyer to attend, if you wish.

  19. May I speak at the hearing?

    1. You may ask the Court for permission to speak at the Fairness Hearing. 

  20. Are there more details about the Settlement?

    1. For a more detailed statement of the matters involved in the lawsuit or the Settlement, you may refer to the papers filed in this case during regular business hours at the office of the Clerk of the of the United States Courthouse for the Middle District of Florida, 801 North Florida Avenue Tampa, Florida 33602, Courtroom 11A, Clerk’s office, M.D. Fla. Case File: Dukes v. Air Canada, 8:18-cv-02176-EAK-JSS.  The full Settlement Agreement and certain pleadings filed in this case can also be accessed on the website created for this Settlement by the Claims Administrator, available here.

  21. How do I get more information?

    1. If you have any questions, you can contact the Claims Administrator, identified above, or Class Counsel at the below contact addresses: 

       

      Luis A. Cabassa, Esq.

      Brandon J. Hill, Esq.

      WENZEL FENTON CABASSA, P.A.

      1110 North Florida Ave., Suite 300

      Tampa, Florida 336022

      813.224.0431

      Attorneys for Plaintiffs