Gregory Berry v. LexisNexis Risk and Information
807 F.3d 600
4th Cir.2015Background
- FCRA class action against LexisNexis for selling Accurint reports without FCRA protections.
- Settlement creates two classes: a (b)(3) monetary class and a (b)(2) injunctive class covering ~200 million people.
- (b)(2) class gets injunctive relief and keeps right to pursue actual damages; statutory damages are waived.
- Agreement restructures Lexis’s product lines into two suites (Collections Decisioning as consumer reports; Contact & Locate not a consumer report).
- District court certified the (b)(2) settlement class and approved the agreement after extensive discovery and arm’s-length negotiations; Objectors appealed challenging certification, fairness, and fees.
- Objectors argue the release of statutory damages (non-incidental monetary relief) violates Dukes/Allison and due process; district court found damages incidental and settlement fair.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether (b)(2) class certification was proper. | Objectors say monetary damages predominate and defeat cohesiveness. | Lexis contends damages are incidental to injunctive relief and class remains cohesive. | Yes; certification proper as damages are incidental and class remains cohesive. |
| Whether the release of statutory damages is incidental to injunctive relief under Dukes/Allison. | Objectors contend statutory damages release is not incidental. | Court treated statutory damages as a group remedy tied to Lexis’s uniform policy. | Incidental; release permissible under Rule 23(b)(2). |
| Whether due process requires opt-out rights for a settlement class. | Objectors rely on Dukes dicta to require opt-outs. | Settlement provides opt-out-like protections; injunctive relief is extensive and representative adequacy is ensured. | Not required; due process protections adequate given settlement structure. |
| Whether class representation was adequate under Rule 23(a)(4). | Concerns about conflict from large fee to class representatives. | court found representatives adequately represented and fees justified. | Adequate representation approved. |
| Whether the district court abused its discretion in approving the attorneys’ fees. | Objector argues fee detail insufficient. | Fee award supported by lodestar, expert testimony, and result; objections lacked leverage. | No abuse of discretion; fee approved. |
Key Cases Cited
- Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1998) (Rule 23(b)(2) valid when injunctive relief dominates and monetary claims are incidental)
- Dukes v. Wal-Mart Stores, Inc., 131 S. Ct. 2541 (Supreme Court 2011) (Individual monetary claims not permissible under Rule 23(b)(2) unless incidental)
- Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311 (4th Cir. 2006) (Rule 23(b)(2) classes may be certified when monetary relief is incidental to injunctive relief)
- In re Jiffy Lube Int’l, Inc. Litig., 927 F.2d 158 (3d Cir. 1991) (Settlement fairness analysis factors for class settlements)