Unpublished Dispositionnotice: Seventh Circuit Rule 53(b)(2) States Unpublished Orders Shall Not Be Cited or Used As Precedent Except to Support a Claim of Res Judicata, Collateral Estoppel or Law of the Case in Any Federal Court Within the Circuit.sherry Eirhart and Eeoc, Plaintiffs/appellants, v. Libbey-owens-ford Co., Defendant/appellee.appeal of Carla Koch, a Disallowed Claimant, 921 F.2d 278 (7th Cir. 1990)

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U.S. Court of Appeals for the Seventh Circuit - 921 F.2d 278 (7th Cir. 1990)

Submitted Dec. 13, 1990. *Decided Dec. 21, 1990


Before BAUER, Chief Judge, and FLAUM and MANION, Circuit Judges.


ORDER

Carla Koch appeals from the district court's decision denying her class membership in a settlement agreement and consent decree with defendant-appellee Libbey-Owens-Ford ("LOF"). Koch challenges the notice provisions of the settlement agreement, arguing that she did not receive adequate notice and that the notice period was insufficient. Koch claims that these infirmities caused her to file a claim almost three months after the filing deadline. We find that the notice provisions in this case were reasonable and affirm the district court's decision to exclude Koch from the settlement class.

The settlement agreement in this case resulted from almost fifteen years of class action litigation regarding LOF's hiring practices for female job applicants. Together with the consent decree, it provided for a complex scheme of hiring priorities as well as a cash settlement to each class member. In granting preliminary approval of the settlement agreement, the district court ordered that the consent decree's notice procedures be used to publicize the proposed settlement.

The district court ordered that notice of the settlement was to be published three times between November 16, 1987 and December 14, 1987 in seventeen local newspapers of general circulation in communities where LOF had or had had a plant. In addition, during the same time period, notice of the settlement was to be published three times in the regional editions of T.V. Guide. The notice described the settlement agreement as well as potential class members' interests and stated that completed claim forms "must be received by January 28, 1988". (R. 663). Koch's claim was not received by the district court until March 11, 1988.

While Koch contends that the notice provisions were inadequate, she admits that she had actual notice of the suit no later than October 30, 1987. She concedes that she read an article published September 27, 1987 in the New York Times describing the proposed settlement. Although Koch states that she did not read the article on the day it was published, the record includes an affidavit from Koch's friend stating that, at her request, he contacted LOF on October 30, 1987 and was told to contact the EEOC for information. The affidavit further states that neither Koch nor her friend contacted the EEOC "right away". In declining to allow Koch to participate in the class, the district court emphasized that she did not offer any explanation for her failure to pursue the matter once she had actual notice. (Tr.Vol. 47 p. 9).

Fed. R. Civ. P. 23(e) provides that before a district court approves a class action settlement, notice of the proposed settlement, "shall be given to all members of the class in such manner as the court directs". A district court has "virtually complete discretion" as to the manner in which notice of a proposed settlement be given. See Wright, Miller & Kane: Federal Practice and Procedure: Civil 2d Sec. 1797. Regardless of the manner in which it is provided, the notice must fairly apprise class members of their rights and interests under the proposed agreement. Air Lines Stewards & Stewardesses Asso. v. American Airlines Inc., 455 F.2d 101, 108 (7th Cir. 1972).

The notice of the proposed settlement provided in this case satisfies the requirements of Rule 23(e). The notice clearly stated that delivery was required by the filing deadline, January 28, 1988. Further, notice to the class was provided through direct mailing to those class members whose addresses were known, publication in specified newspapers in the areas where LOF had plants and publication in a widely read periodical, T.V. Guide. Compare Simer v. Rios, 661 F.2d 655, 667 (7th Cir. 1981) (notice not best notice practicable under the circumstances when notice published in periodicals not sent directly to class members but to support organizations.)

Finally, the notice provided in this case was timely. Notice was published three times prior to December 14, 1987, more than 45 days prior to the claims filing deadline. This is consistent with the procedure outlined in Airline Stewards, 455 F.2d at 108, where we held that three weeks notice was timely. Similarly, no fault was found where notice was published 12 days prior to the scheduled fairness hearing in Armstrong v. Board of School Directors, 616 F.2d 305, 310 (7th Cir. 1980). Here, the third notice was published more than three months prior to the fairness hearing and almost eight weeks prior to the filing deadline. Therefore, the notice was adequate and timely.

The notice procedures ordered by the district court were reasonable. In conjunction with Koch's admission that she had actual notice by late October, 1987, the district court did not err in excluding Koch from the settlement class and we AFFIRM.

 *

After preliminary examination of the briefs, the court notified the parties that it had tentatively concluded that oral argument would not be helpful to the court in this case. The notice provided that any party might file a "Statement as to Need of Oral Argument." See Rule 34(a), Fed. R. App. P. ; Circuit Rule 34(f). No such statement having been filed, the appeal has been submitted on the briefs