Opinion
3:21-cv-01214-CSH
09-26-2023
MARTIN JOHNSON and JANE DOE on behalf of themselves and all others similarly situated, Plaintiffs, v. FRANK KENDALL, Secretary of the Air Force, Defendant .
ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE
WHEREAS, as of September 26, 2023, Martin Johnson and Jane Doe (“Plaintiffs”), and Mr. Alex Wagner, Assistant Secretary of the Air Force for Manpower and Reserve Affairs, duly authorized in his official capacity to execute this settlement agreement on behalf of Defendant Frank Kendall, in his official capacity as Secretary of the Air Force (the “Air Force”) (“Defendant”), entered into a Stipulation and Agreement of Settlement (the “Stipulation” or “Settlement Agreement”) in the above-titled litigation (the “Action”), which is subject to review under Rule 23 of the Federal Rules of Civil Procedure and which, together with the exhibits thereto, sets forth the terms and conditions of the proposed settlement of the Action and the claims alleged in the Complaint filed on September 13, 2021 (ECF No. 1) on the merits and with prejudice (the “Settlement”); and
WHEREAS, the Court has reviewed and considered the Stipulation and the accompanying exhibits; and
WHEREAS, the Parties to the Stipulation have consented to the entry of this order; and
WHEREAS, all capitalized terms used in this order that are not otherwise defined herein have the meanings defined in the Stipulation;
NOW, THEREFORE, IT IS HEREBY ORDERED, this 26th day of September, 2023 that:
1. The Court has reviewed the Stipulation and preliminarily finds the Settlement set forth therein to be fundamentally fair, reasonable, adequate, and in the best interests of the Settlement Class members, especially in light of the benefits achieved on behalf of them, the risks and delay inherent in continued litigation, and the limited amount of potential recovery that could be shared by the Settlement Class members. Furthermore, the Parties' Settlement Agreement was the result of good-faith, arm's-length negotiations between experienced counsel under the supervision of Magistrate Judge Robert M. Spector, and is without any obvious deficiencies.
2. Pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure, the Court has made a preliminary determination to certify the following Settlement Class for the purposes of settlement only:
Members and former members of the Air Force, Space Force, Air Force Reserve, and Air National Guard who served in the military during the Iraq and Afghanistan eras, defined as those with discharge dates from October 7, 2001 through the Effective Date of Settlement, and who:
a) were discharged from the Air Force, Space Force, Air Force Reserve, or Air National Guard with the following service characterizations: Under Honorable Conditions (General), or Under Other Than Honorable Conditions (UOTHC); but not the following service characterizations: Bad Conduct Discharges (BCDs), Dishonorable discharges, Uncharacterized discharges, or Dismissals;
b) who, if they submitted a previous discharge upgrade application or application for reconsideration, submitted at least one such application on or after September 13, 2006;
c) have not received upgrades of their service characterizations to Honorable; and
d) have diagnoses of post-traumatic stress disorder (PTSD), Traumatic Brain Injury (TBI), or other mental health conditions, or have experiences of sexual assault or sexual harassment, or records documenting that one or more symptoms of PTSD, TBI, other mental health conditions, or experiences of sexual assault or sexual harassment existed/occurred during military service, under the Kurta Memo standard of liberal consideration.
3. The Court finds and concludes that the prerequisites of class action certification under Rule 23 of the Federal Rules of Civil Procedure have been satisfied for the Settlement Class defined herein and for the purposes of the Settlement only, in that:
(a) the members of the Settlement Class are so numerous that joinder of all Settlement Class members is impracticable;
(b) there are questions of law and fact common to the Settlement Class members;
(c) the claims of the Class Representatives are typical of the Settlement Class's claims;
(d) Class Representatives and Class Counsel have fairly and adequately represented and protected the interests of the Settlement Class;
(e) there are no conflicts of interest between the Class Representatives and members of the Settlement Class;
4. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, and for the purposes of the Settlement only, Martin Johnson and Jane Doe are certified as Class Representatives. The Jerome N. Frank Legal Services Organization of Yale Law School and the law firm of Jenner & Block LLP are appointed as Class Counsel.
5. A hearing (the “Fairness Hearing”) pursuant to Rule 23(e) of the Federal Rules of Civil Procedure is hereby scheduled to be held before the Court on December 4, 2023, at 10:00 a.m. At the Fairness Hearing, the Court will address: (a) whether to grant final approval to the Settlement as fair, reasonable, and adequate, and issue the Final Approval Order dismissing the Amended Complaint with prejudice and releasing the claims set forth in the Stipulation; (b) whether the Settlement Class should be finally certified for purposes of the Settlement only; (c) whether the relief provided to the Settlement Class for reconsideration and reapplication of discharge upgrade applications is fair, reasonable, and adequate; (d) whether to approve the Stipulation's award of attorneys' fees and costs; and (e) any other matters the Court may deem appropriate.
6. The Court reserves the right to approve the Settlement with or without modification and with or without further notice to the Settlement Class of any kind. The Court may also adjourn the Fairness Hearing or modify any of the dates herein without further notice to members of the Settlement Class.
7. The Court finds that the distribution of the Class Notice attached as Exhibit B to the Stipulation in the manner set forth in the Stipulation is the best notice practicable under the circumstances, consistent with due process of law, and constitutes due and sufficient notice of this Order and the Settlement to all persons entitled thereto and is in full compliance with the requirements of Rule 23 of the Federal Rules of Civil Procedure.
8. Class Counsel are directed to undertake the extensive outreach strategy described in the Stipulation that includes issuance of a joint press release with Defendant as well as the following efforts: (a) engagement with both traditional media outlets and social media, (b) engagement with military- and veterans-specific news media, (c) collaboration with key elected officials, and (d) publicizing the settlement with veterans' organizations, legal services offices, and veterans advocates across the country. Recipients of communications from Class Counsel should receive copies of the Stipulation and Agreement of Settlement.
9. Defendant shall publicize the Settlement and Class Notice through the issuance of the joint press release with Class Counsel.
10. Plaintiffs shall cause the Class Notice to be distributed to Settlement Class members in accordance with the terms of the Stipulation no later than fourteen (14) days after the entry of this Order.
11. Settlement Class members shall be bound by all orders, determinations and judgments in this Action concerning the Settlement, whether favorable or unfavorable.
12. Any Settlement Class member may appear in person or through counsel (at their own expense) at the Fairness Hearing and be heard in support of or in opposition to the fairness, reasonableness, and adequacy of the proposed Settlement, award of counsel fees, and the reimbursement of costs. The Court will consider any Settlement Class member's objection to the Settlement only if such Settlement Class member has served upon Class Counsel, by hand, mail, or e-mail, their written objection and supporting papers (including any legal support or evidence in support of the objection and grounds to support their status as a Class member) such that they are received on or before twenty-one (21) calendar days before the Fairness Hearing by: Michael J. Wishnie, Jerome N. Frank Legal Services Organization, Yale Law School, P.O. Box 209090, New Haven, CT 06520-9090, johnson.settlement@ylsclinics.org; and Defendant's Counsel: Natalie N. Elicker, U.S. Attorney's Office for the District of Connecticut, 157 Church St, 25thFloor, New Haven, CT 06510, Natalie.Elicker@usdoj.gov; and has filed said objections and supporting papers with the Clerk of the Court, United States District Court for the District of Connecticut, 141 Church Street, New Haven, CT 06510. Any Settlement Class member who does not make his, her, or its objection in the manner provided for in the Class Notice shall be deemed to have waived such objection and shall forever be foreclosed from making any objection to any aspect of the Settlement, unless otherwise ordered by the Court. Attendance at the Fairness Hearing is not necessary; however, persons wishing to be heard orally in opposition to the approval of the Settlement are required to indicate in their written objection their intention to appear at the hearing. Persons who intend to object to the Settlement and desire to present evidence at the Fairness Hearing must include in their written objections the identity of any witnesses they may call to testify and exhibits they intend to introduce into evidence at the Fairness Hearing.
13. Settlement Class members do not need to appear at the hearing or take any other action to indicate their approval.
14. Pending final determination of whether the Settlement should be approved, the Class Representatives, all Settlement Class members, and each of them, and anyone who acts or purports to act on their behalf, shall not institute, commence or prosecute any action which asserts the Settled Claims in the Stipulation against the Defendant.
15. Class Counsel shall file and serve its application for final approval of the Settlement no later than seven (7) days prior to the date of the Fairness Hearing. Along with this application, Class Counsel shall file and serve an affidavit stating and describing in detail the communications between Class Counsel and recipients of the outreach efforts referred to in Paragraph 8 of this Order.
16. If the Settlement fails to become effective as defined in the Stipulation or is terminated, then both the Stipulation, including any amendment(s) thereof, except as expressly provided in the Stipulation, and this Preliminary Approval Order shall be null and void, of no further force or effect, and without prejudice to any Party, and may not be introduced as evidence or used in any actions or proceedings by any person or entity against the Parties, and the Parties shall be deemed to have reverted to their respective litigation positions as of the date and time immediately prior to the execution of the Stipulation.
17. The Court retains jurisdiction over this discontinued action, in the event disputes arise over the implementation of the Settlement Agreement.