JORDAN KELLY V ORION MARINE CONSTRUCTION, INC. CLASS ACTION SETTLEMENT

CASE NO: 8:18-CV-01400-T-36-CPT

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

 

JORDAN KELLY, on behalf of himself

and all others similarly situated, Plaintiff

 

v.                   

 

ORION MARINE CONSTRUCTION, INC.

d/b/a ORION MARINE GROUP, Defendant.

 

Case No.:  8:18-cv-01400-T-36CPT

____________________________________/

 

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 of approximately $25.00. You will not be able to sue Defendant for the same issues as in this lawsuit again.

Ask to be Excluded by

March 22, 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 again.

Object by March 22, 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 April 18, 2019

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 following Settlement Class:

       

      All applicants for employment with and employees of Defendant as to whom Defendant procured a background check, including a consumer report, from May 5, 2016 (two years before the filing of the original complaint), through October 5, 2018 (the date of the mediated settlement).

       

      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 a proposed settlement of a class action lawsuit in which they are 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 on a website created by the settlement administrator, available here.

  2. What is the lawsuit about?

    1. Plaintiff alleges that Defendant’s pre-employment Background Investigation and Authorization Forms, and Defendant’s alleged procurement of consumer reports on the basis of that form, violates the Fair Credit Reporting Act (“FCRA”).  Based on this allegation, Plaintiff seeks statutory damages.

       

      Defendant disputes the Plaintiff’s allegations and denies all liability to Plaintiff and the Settlement Class.  In the lawsuit, Defendant have denied Plaintiff’s allegations and have 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 (“Class Representatives”) seek to assert claims on behalf of all members of a class or 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 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 postcard 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 are eligible to receive a benefit under the settlement.  Defendant has agreed to pay approximately $25.00 to every class member.  Once checks are mailed out, the checks will remain valid for 60 days.  After that, the checks will become void.   

       

      If any settlement funds remain after all checks have been distributed, subject to Court approval, any unclaimed portion of the Settlement Fund after distributing the Net Settlement Fund proceeds and after the 60-day period for negotiating checks will constitute a “cy pres” fund and, subject to the Court’s approval, will be donated to Tampa Bay Legal Services, a nonprofit, public interest organization that provides civil legal assistance to low-income residents.

  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 settlement fund.

  8. When would I get my benefit?

    1. The Court will hold a Fairness Hearing at 10:00 a.m. on April 18, 2019 in the United States District Court for the Middle District of Florida, Tampa Division, 801 N. Florida Ave., Tampa, FL 33602, in Courtroom 13A, to decide whether to approve the settlement.  It is also possible that there may be appeals.  Payments to members of the Settlement Class will be made only if the settlement is finally approved and all appeals are resolved.  This may take some time, so please be patient.

  9. What am I giving up to receive a benefit 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, and others who may be subject to claims with respect to Defendant 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 the FCRA.  This release may affect your rights, and may carry obligations, in the future.

  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 March 19, 2019, addressed to:

       

      Kelly FCRA Settlement

      c/o Settlement Administrator

      PO Box 23648

      Jacksonville, FL 32241-3648

       

      If the request is not postmarked on or before March 19, 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.

  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 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 Jordan Kelly as Class Representative.  The Court has appointed Wenzel Fenton Cabassa, P.A. as Counsel for the Settlement Class:

       

      Matthew K. Fenton, 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, in an amount not to exceed $29,800. The Court may award less. Named Plaintiff Jordan Kelly will also ask for an incentive payment for serving as the Named Plaintiff in an amount not to exceed $8,000.  These amounts will be paid by the Defendant, not by you, and whether they are awarded in full, or not, will not impact the amount recovered by each class member. 

  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 April 18, 2019, 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 at the address below within 60 days of the postmark on this Notice:

       

      United States District Court for the Middle District of Florida,

      Tampa Division

      801 N. Florida Ave.

      Tampa, FL 66302

      Kelly v. Orion Marine Construction, Inc.,

      Case No.: 8:18-cv-01400-T-36CPT

       

      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.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 April 18, 2019 at the United States District Court for the Middle District of Florida, Tampa Division, 801 N. Florida Ave., Tampa, Florida 33602, in Courtroom 13A.  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 on an award of attorneys’ fees and expenses and Class Representative’s compensation.

       

      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. This Notice is only a summary.  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 calendar hours at the office of the Clerk of the Court, United States District Court for the Middle District of Florida, Tampa Division, 801 N. Florida Ave., Tampa, Florida 33602, File:  Kelly v. Orion Marine Construction, Inc., Case 8:18-cv-01400-T-36CPT.  The full Settlement Agreement and certain pleadings filed in this case can also be requested, in writing, from the Claims Administrator, identified in FAQ 10.

  21. How do I get more information?

    1. You can contact the Claims Administrator, identified in FAQ 10 or Class Counsel for Plaintiff at the below contact addresses with questions: 

       

      Brandon J. Hill, Esq.

      Matthew K. Fenton, Esq

      WENZEL FENTON CABASSA, P.A.

      1110 North Florida Ave., Suite 300

      Tampa, Florida 33602

      Class Counsel for Plaintiff