Opinion
CIVIL ACTION NO.: 06-180-JGW.
June 13, 2008
MEMORANDUM ORDER
On April 29, 2008 counsel for plaintiff advised the court that this litigation had been resolved through individual settlement, even though plaintiff had previously moved the court for class certification. In order to satisfy the public policy concern that the class action device not be used "by the individual representative plaintiff to secure an unjust private settlement and to protect the absent class members against the prejudice of discontinuance," the court directed the parties to place in the record additional information concerning the settlement. See Doe v. Lexington-Fayette Urban County Government, 407 F.3d 755 (6th Cir. 2005) (quoting Alba Conte Herbert B. Newberg, Newberg on Class Actions § 8:18 (4th ed. 2002)). On May 8, 2008, the parties filed a "joint motion for voluntary dismissal pursuant to Rule 23(a), seeking either dismissal of the putative class action or, in the alternative, permitting withdrawal of the class allegations."
The court convened a status conference on Thursday, June 5, 2008 at 10:00 a.m. in order to review additional information relating to the proposed settlement. On June 6, 2008, plaintiff filed a notice reflecting an intent to withdraw his pending motion for class certification as well as an affidavit reflecting his knowledge of any other members of the originally-proposed class.
As previously noted by this court, the Sixth Circuit has held that a failure to provide Rule 23(e) notice where a putative class is likely to be prejudiced by dismissal or settlement constitutes an abuse of discretion. Id. (adopting the majority view that Rule 23(e) applies in a precertification context, criticizing district court even where motion for class certification was denied prior to entry of settlement without notice). Therefore, this court has an independent duty to determine whether an individual settlement in this case will have the effect of prejudicing potential class members who may have relied upon the belief that the named plaintiff was pursuing claims on their behalf.
In favor of his position that notice should not be required in this case and that dismissal of the class allegations is appropriate, plaintiff's counsel has made both oral and written representations to this court that: 1) no person has contacted plaintiff's counsel regarding this litigation (other than the named plaintiff); 2) counsel is unaware of the existence of any particular member of the putative class other than the named plaintiff; 3) counsel has not advertised the existence of this litigation; 4) counsel has not identified any other plaintiff nor sought to contact any potential plaintiff; 5) an internet search conducted within the past two weeks locates no reference to this litigation in the press or in any other media or record, other than the docket sheet of this court. Finally, plaintiff explains that his decision to withdraw his class allegations and to settle his individual claim was prompted in large part by an adverse decision recently issued by the United States District Court for the Southern District of Florida on similar claims. Plaintiff suggests that the existence of this adverse case authority, in combination with the lack of possible reliance by any other prospective plaintiff, favors dismissal of the class allegations and approval of the individual settlement without notice to the unidentified class.
Having considered the representations of counsel for both parties, the court is satisfied that there is virtually no possibility that any unnamed plaintiff is aware of this litigation or reasonably would have relied upon the prosecution of his/her claims by the named plaintiff. There is no evidence that the proposed settlement has been influenced by any collusion between the named plaintiff and the defendant. Moreover, it is obvious that neither party knows either the precise number or composition of the putative class members, such that identification of those members for purposes of effecting notice would be unduly expensive and complicated. Based on the facts presented, dismissal of the class allegations and approval of the individual settlement without the necessity of class notification will not be prejudicial to the absent putative class members. Accord Anderberg v. Masonite Corp., 176 F.R.D. 682, 689 (N.D. Ga. 1997) (applying functional approach to notice requirement, collecting cases).
Therefore, IT IS ORDERED:
1. Plaintiff's notice of withdrawal of his motion for class certification [Doc. #63] is construed as a motion to dismiss class allegations and is granted;
2. Plaintiff's motion to certify a class [Doc. #33] is denied as moot in light of the withdrawal of class allegations;
3. The parties' joint motion to dismiss this case pursuant to their settlement agreement [Doc. #60] is granted;
4. The parties shall submit an Agreed Order of Dismissal within thirty (30) days of the date of this order.