Milbourne v. JRK Residential America, LLC, No. 3:2012cv00861 - Document 202 (E.D. Va. 2016)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 3/15/2016. (jsmi, )
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Milbourne v. JRK Residential America, LLC Doc. 202 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division DERRICK A. MILBOURNE, On his own behalf and on Behalf of those similarly Situated, Plaintiff, v. Civil Action No. 3:12cv861 JRK RESIDENTIAL AMERICA, LLC, Defendant. MEMORANDUM OPINION This matter is before the Court on DEFENDANT'S MOTION TO DECERTIFY THE IMPERMISSIBLE USE AND ADVERSE ACTION CLASSES No. 151), CLASS {ECF No. PLAINTIFFS' No. PLAINTIFFS' 190). 171), CROSS-MOTION and PLAINTIFFS' CROSS-MOTION TO AMEND ORDER (ECF CERTIFYING UNOPPOSED MOTION TO AMEND TO AMEND ORDER CERTIFYING For the reasons set forth herein, CLASS (ECF Defendant's motion will be denied, Plaintiffs' cross-motion will be granted in part and denied in part, and Plaintiffs' unopposed motion will be granted. BACKGROUND A. Class Claims On October ("Milbourne"), 26, 2015, Timothy Robins Plaintiffs ("Robins"), Derrick A. Milbourne and Samantha Churcher 1 Dockets.Justia.com ("Churcher") (collectively, Amended Complaint "Named ("FAC," ECF No. Plaintiffs") 147) and all others similarly situated, Residential America, Fair Credit LLC ("JRK") Reporting Act filed a First on behalf of themselves alleging that Defendant JRK violated two ("FCRA"). In sections Count One, of the the Named Plaintiffs allege that the disclosure form JRK provided to all potential employees ("the Standard Disclosure Form") violated 15 U.S.C. § 1681b(b) (3) (A), which requires that: In using a consumer report 1 for employment purposes, before taking any adverse action based in whole or in part on the report, the person intending to take such adverse action shall provide to the consumer to whom the report relates: ( i) a copy of the report; and (ii) a description in writing of the rights of the consumer under this subchapter, as presented by the Bureau under Section 1681g (c) (3) of this title. On March 15, 2016, Memorandum Opinion, for the reasons set forth the Court granted Plaintiffs' in a separate Second Motion for Partial Summary Judgment (ECF No. 162) on the issue of JRK's violation of § 168 lb (b) ( 3) as alleged in Count One. (ECF No. 198) . 1 The FCRA defines a "consumer report" as "any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used in whole or in part for the purposes of serving as a factor in establishing the consumer's eligibility for: ... employment purposes[.]" 15 U.S.C. § 1681a(d). 2 In Count Two, the Named Plaintiffs allege that JRK's use of the Standard Disclosure Form also violated 15 U.S. C. § 168lb(b) (2) {A), which provides that: A person may not procure a consumer report, or cau·se a consumer report to be procured, for employment purposes with respect to any consumer, unless: {i) a clear and conspicuous disclosure has been made in writing to the consumer at any time before the report is procured or caused to be procured, in a document that consists solely of the disclosure, that a consumer report may be obtained for employment purposes; and {ii) the consumer has authorized in writing {which authorization may be made on the document referred to in clause {i)) the procurement of the report by that person. The Court also granted Plaintiffs' judgment as to Count Two, motion for partial summary holding that the Standard Disclosure Form does not comply with § 168lb(b) (2) {A) as a matter of law. (ECFNo. 198). Count Three, filed on behalf of a putative subclass of the class represented in Count Two, alleges that a second disclosure form that Standalone JRK provided Disclosure to some Form" or potential "the employees contingency ("the form") also violated§ 1681b(b) (2) (A). On March 15, 2016, Memorandum Opinion, Summary Judgment Standalone for the reasons set forth in a separate the Court (ECF No. Disclosure 148) Form granted JRK' s Second Motion for on Count Three, holding that the satisfies 3 § 168lb(b) (2) (A) as a matter of law. denied (ECF No. 200). Plaintiffs' Count Three. motion for For the same reasons, the Court partial summary judgment to (ECF No. 198). B. Factual History 1. The Standard Disclosure Form In November 2010, received a job with background check. Milbourne applied for and conditionally JRK FAC <JI<JI pending satisfactory completion of a Before JRK obtained a consumer 7-9. report on Milbourne, he signed two disclosure forms. 18. as FAC <JI<JI 15- The first form, the "Standard Disclosure Form," provides in part: I certify that the information contained herein is true and understand that any falsification will result in the rejection of my application or termination of my employment. I also understand that the requested information is for the sole purpose of conducting a background investigation which may include a check of my identity, work and credit history, driving records, and any criminal history which may be in the files of any state or local criminal agency ... I hereby authorize this company, its corporate affiliates, its employees, its authorized agents, and representatives ... to verify all information contained in this form or in my application and to inquire into any character, general reputation, personal characteristics, and mode of living ... I hereby release this company, its corporate affiliates, its employees, its authorized agents and representatives and all others involved in this background investigation from any liability in 4 connection with any information they give or gather and any decisions made concerning my employment based on such information. I understand that any offer of employment I may receive is contingent upon the successful completion of the background investigation. I further understand that I have a right, under Section 606 (B) of the Fair Credit Reporting Act, to make a written request to this company within a reasonable period of time for a complete and accurate disclosure of the nature and scope of the investigation requested. ECF No. signed 4 9-2 at 2 the employment Standard with respectively. JRK FAC On October 31, on the (emphasis added) . alleged Disclosure in April Robins and Churcher also Form 2011 when and they applied September for 2013, 27-31. 2014, the Court certified two classes based deficiencies of the Standard Disclosure form. First, the Court certified an "Impermissible Use Class," defined as follows: All natural persons residing in the United States (including all territories and other political subdivisions of the United States), (a) who applied for an employment position with Defendant or any of its subsidiaries, (b) as part of this application process were the subject of a consumer report obtained by Defendant during the two years proceeding [sic] the filing of the Complaint, (c) where Defendant used a form to make its disclosures pursuant to 15 U.S.C. § 1681b(b) (2) that contained a release and/or waiver of the signing consumer's claims and/or rights. 5 (EC F No. 5 6) • The Court also certified an "Adverse Action" subclass, defined as follows: All natural persons residing in the United States (including all territories and other political subdivisions of the United States), (a) who applied for an employment position with Defendant or any of its subsidiaries, (b) as part of this application process were the subject of a consumer report background check obtained by Defendant on or after the date two years proceeding [sic] the filing of the Comp la int, ( c) where Defendant' s records show that the applicant was denied employment because of the background check, (d) and to whom Defendant did not provide a copy of the consumer report and other disclosures stated at 15 U.S. C. § 168lb(b) (3) (A) (ii) at least five business days before the date the employment decision is first noted in Defendant's records. Id. 2. After The Standalone Disclosure Form extensive on the eve of trial, discovery, after class certification, it became apparent that Milbourne, and along with 558 other class members 2 (not including Robins or Churcher), also signed a second disclosure form before 2 JRK obtained their A total of 650 class members signed the Standalone Disclosure Form. However, JRK revealed at oral argument that 91 class members actually signed the Standalone Disclosure Form after JRK had already procured their background reports. (Transcript of February 26, 2016 Hearing ("Hrg. Tr.") at 21-22) . Therefore, the Standalone Disclosure Form has no legal effect on those 91 class members. 6 background checks ("the Disclosure form"). contingency form" or "the Standalone That form provides: I understand that my employment with JRK is subject to the successful clearance of my background report to acceptable company standards. The results of my background report will be reviewed and evaluated by JRK and JRK, in its sole discretion, will determine whether it is approved. ECF No. 150, Exs. 1-650. The Named Plaintiffs allege that this form also failed to provide the notice Accordingly, add a required Milbourne sub-class representing of the seeks consumers Form before Plaintiffs also seek Class. as a class JRK to 15 U.S.C. § 168lb{b) (2) (A). to amend the class definition to to consumers 559 Disclosure Churcher by the Impermissible who signed obtained amend the representative their class of the the Use Class, Standalone consumer reports. definition to add Impermissible Use JRK contends that both the Impermissible Use Class and the Adverse Action Subclass should be decertified. LEGAL STANDARD Fed. R. Civ. P. 23 (c) (1) (C) explicitly authorizes a court to alter or amend a certification order at any time before final judgment. Fed. R. Ci v. P. 2 3 { c) {1) {C) . If it becomes apparent after the certification of the class that individualized issues predominate or class treatment "render[s) the case unmanageable," the court has a "responsibility to decertify the 7 class." (4th Gunnells v. Healthplan Servs., Cir. In 2003). considering a Inc., 348 F.3d 417, to motion 433 the decertify class, the Court looks to the legal standard required for class Chisholm v. certification. 538, 544 class (E.D. Va. has been representatives TranSouth Importantly, 2000). certified are found and to its be Fin. Corp., however, claims 194 "if after the heard inadequate F.R.D. for and some the reason during the course of the class claims ... the appropriate step is appointment of new representatives from the existing class, decertification." 706 F.2d 608, Carpenter v. 617-18 (5th Stephen F. Cir. not Austin State Univ., 1983) (internal citation omitted) . To obtain class certification, a plaintiff must satisfy the four requirements of Fed. R. Civ. P. 23 (a). Additionally, the proposed class must be consistent with at least one of the types of class actions delineated in Fed. R. 23(b), and must meet the corresponding prerequisites for certification. Because the in requirements of Rule 23 are set Civ. forth P. at length Court's previous Memorandum Opinion granting Plaintiffs' certification requirements motion (ECF reiterated only briefly here. No. 55), those See Milbourne v. the class are JRK Residential Am., LLC, 2014 WL 5529731 (E.D. Va. Oct. 31, 2014). The four Rule 23 (a) requirements are that: ( 1) the class is so numerous that joinder of all members is impracticable; 8 (2) there are questions of law or fact cormnon to the class; (3) the representative's claims or defenses are typical of those of the class; and (4) the representative will represent the interests of the class. Disc. Muffler Shops, Milbourne, Inc., and adequately See Broussard v. Meineke 155 F. 3d 331, 2014 WL 5529731. fairly 337 (4th Cir. 1998); The plaintiff bears the burden of Lienhart v. proving all requirements of Rule 23. Dryvi t Sys., Inc., 255 F.3d 138, 146 (4th Cir. 2001). As the Fourth Circuit has explained, courts are not required "to accept plaintiffs' pleadings when assessing whether a class should be certified." 368 F. 3d 356, 365 must take a Gariety v. (4th Cir. 2004) . 'close look' at Grant Thornton, Rather, the LLP, "the district court facts relevant to the certification question and, if necessary, make specific findings on the propriety of certification." Life Ins. Co., 445 F.3d Gariety, 368 F.3d at 365). 311, 319 Thorn v. (4th Cir. Jefferson-Pilot 2006) (quoting "Such findings can be necessary even if the issues tend to overlap into the merits of the underlying case," but "[t] he likelihood of the plaintiffs' success on the merits ... is not relevant to the issue of whether certification is proper." Id. (internal citations omitted). In order to be certified as a class action, the class must also satisfy at Rule 23 (b) . least one of the class categories defined in The class here is certified under Rule 23 (b) (3). 9 Certification under Rule 23(b) (3) is appropriate where the Court finds that questions of law or fact common to the members of the class predominate over any questions affecting only indi victual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. DISCUSSION I. Decertification A. The Impermissible Use Class JRK proffers several arguments in support of its motion for decertification, worn. argues First, the vast majority of which are weak and well- with respect to the Impermissible Use Class, that the 510 individuals signed who JRK arbitration (Memorandum of Law in agreements cannot be part of this action. Support of Defendant's Motion to Decertify the Impermissible Use Class and Adverse Action Classes 7). Second, necessary to JRK argues determine that whether ("Def. Mero.", "individual the ECF No. inquiries class members 152) at will be suffered any injury as a result of JRK's purported violation of § 168lb(b) (2) and what--if any--amount of statutory damages are appropriate to compensate class injury[,]" and members that these if they are "individual able to inquiries" over questions that are common to the class. prove any predominate Id. at 8. Third, JRK argues that because some class members signed the Standalone 10 Disclosure Form in addition to signing the Standard Disclosure Form, commonality Fourth, JRK because: asserts (1) Impermissible no longer that Use is Class; not typical of circumstances differ in those disputed Id. at the actually at are claims Milbourne (2) Id. not a did typical, member sign a Id. 12. of the Standalone and did not sign an Arbitration Agreement, not is satisfied. Milbourne' s Milbourne Disclosure Form, the ref ore is validity 15-16. Each of of class those respects; his and signature, these arguments members ( 3) whose Milbourne has which will and is be atypical. addressed in turn. First, for the reasons set forth in the Court's previous Memorandum Opinion denying JRK' s motion to compel arbitration, the fact that 510 Impermissible Use Arbitration Agreements is irrelevant. to compel submitted class that members no class to (Transcript of February 25, Thus, the Arbitration wishes and to 2016 Hearing Agreements members signed JRK has waived its right arbitrate, member Class have Class invoke ("Hrg. no Counsel that has right. Tr.") at 61). bearing on the viability or manageability of the class action. Second, for the reasons set forth in the Court's recent opinion in Manuel v. Wells Fargo, 2015 WL 4994538 (E.D. Va. Aug. 19, 2015), all class members who signed the Standard Disclosure Form have suffered an identical cognizable injury-in-fact: 11 the denial of specific information to which they were entitled under the FCRA. motion JRK raised this same issue in support of its second for analysis summary judgment; and rejection of accordingly, JRK' s position a more can be complete found in the Memorandum Opinion addressing that motion. Third, of JRK's argument concerning the individualized nature statutory damages is contrary to well-settled law, As most recently set been repeatedly rejected by this Court. forth in Thomas damages may be v. FTS USA, individualized but the predominance analysis." (E. D. Va. Inc., 2014 WL 2800766 "while Jan. some LLC, 7, 2016) questions statutory damages, "the question is minimally {citing Dreher v. may those Va. June 19, exist as questions of statutory influential in 2016 WL 94136, at *15 -- F.R.D. (E. D. and has to do Experian Info. 2014) how to Sol., (holding that, best not preclude apportion the common question of liability from predominating.")); see also Manuel v. Wells Fargo Bank, Nat'l Ass'n, 2015 WL 4994549, at *17 Aug. 19, 3816986, reasons 2015); Edelen v. at *7 that (D. Md. variation Residential Servs., Am. July 22, in 2013). statutory Therefore, damages does LLC, (E.D. Va. 2013 WL for the same not prevent class certification in the first instance, it similarly is not a proper ground for decertification. Fourth, Standalone the fact that some Disclosure Form by 12 class no members means signed def eats the either corrunonality original Class, or As predominance. Memorandum Opinion set certifying forth the in the Court's Impermissible Use "JRK has admitted that it has used a standardized waiver and disclosure form for all class members," and the legality of the Standard Disclosure form remains "of 'such a nature that it is capable of classwide resolution' corrunonali ty requirement Milbourne v. JRK Residential Am., (E.D. Va. Oct. 31, for 2014) the Impermissible LLC, (quoting Dukes, 131 S. ct. 2541, 2551 (2011)). Form does not change this satisfies and analysis Use Class." 2014 WL 5529731, Wal-Mart Stores, the at *5 Inc. v. The Standalone Disclosure for the majority of class members who did not sign it. However, of class JRK is entitled to surrunary judgment on the claims members who signed the Standalone before JRK procured their background reports, claims will simply no be dismissed, longer members and of therefore, the Form those consumers' those Impermissible Although the dismissal of some class members' warrant decertification, Disclosure consumers Use are Class. 3 claims does not the Court finds that it is appropriate 3 However, the Court notes that, even if these class members had meritorious claims, the existence of the Standalone Disclosure Form could be adequately addressed by the addition of a subclass and would not be grounds for decertification. No "individualized inquiry" is required; rather, this is merely a simple, binary determination: did a class member sign the Standalone Disclosure Form before JRK procured his or her consumer report or not? 13 to amend the definition of the Impermissible Use Class to clarify this change. Furthermore, did not arise after within the the Court noted that class period original Order certifying the class), have agreed support class of (subject to decertification), period. UNOPPOSED ORDER that as Accordingly, MOTION CERTIFYING TO AMEND CLASS (ECF is defined remaining appropriate set PLAINTIFFS' No. (as claim in the counsel for both parties JRK's it Churcher' s 191), forth arguments to in extend the PLAINTIFFS' CROSS-MOTION the in TO AMEND Impermissible Use Class will further be amended to include consumers who were the subject of a consumer report obtained by Defendant from November 30, 2010, two years through the date preceding of the the filing of the Complaint, entry of the Order accompanying this Memorandum Opinion. Therefore, the Impermissible Use Class definition will be accordingly modified to read as follows: All natural persons residing in the United States (including all territories and other political subdivisions of the United States), {a) who applied for an employment position with Defendant or any of its subsidiaries, (b) as part of this application process were the subject of a consumer report obtained by Defendant {c) on or after November 3 0, 2010 (two years preceding the filing of the Complaint) and before March 15, 2016 (the date of the Court's Order amending this definition) (d) where Defendant used a form to make its 14 disclosures pursuant to 15 U.S.C. § 1681b (b) (2) that contained a release and/or waiver of the signing consumer's claims and/or rights, and (e) Defendant did not provide the applicant with any other disclosure form prior to obtaining the applicant's consumer report. Because Milbourne signed the Standalone Disclosure Form before JRK procured his background report, his claim pursuant to § 1681b (b) (2) (A), pursued on Class, will be dismissed. behalf of the For that reason, Impermissible Use the Court need not reach the question whether he remains a typical representative of the Impermissible Use Class. of summary judgment against affect the See Int' 1 viability Woodworkers Plywood Corp., of Importantly, the class the claims of Am., however, representative does of AFL-CIO, other CLC v. class not members. Chesapeake 659 F.2d 1259, 1270 (4th Cir. 1981). discussed in more detail below, a grant Rather, Bay as the appropriate remedy is the appointment of a new class representative for the Impermissible Use Class who requirements. satisfies Therefore, the adequacy typicality motion JRK' s and decertify to the Impermissible Use Class will be denied. B. The Adverse Action Subclass With asserts respect that to Adverse "individualized whether class members individualized the Action inquiries suffered injury, inquiries predominate 15 as Subclass, JRK predominate" and for to again as to those who did, statutory damages. Id. at 17. JRK also claims that Milbourne is not a typical representative of the Adverse Action Subclass because: ( 1) he is not actually a member of the Adverse Action Subclass, because JRK procured his consumer report prior to November 30, 2010, two years before the filing of the Complaint; and (2) Milbourne' s claim that he did not receive an adverse action letter in the mail is atypical. JRK admits that no class member received a timely pre-adverse action notice as required by § and therefore concedes that Milbourne's claim 168lb {b) (3), that he never received an adverse action notice has no bearing on whether JRK violated § 1681b(b) (3), but posits that whether class members received their adverse action letters late, as opposed to never receiving any letter at all, bears on the issue of willfulness, and therefore Milbourne is an atypical representative as to that issue. (Hrg. Tr. at 75). For the same reasons set forth in part I.A above, failed to inquiries demonstrate warranting injury-in-fact these grounds or is the class statutory sufficient existence of decertification damages. to Adverse Action Subclass. 16 warrant any JRK has individualized concerning Therefore, either neither of decertification of the Second, Milbourne remains Adverse Action Subclass. 4 a typical As a threshold matter, Milbourne is a member of the Adverse Action Subclass, second consumer report Background Screening representative of the on because from Milbourne ( "USBS") , a JRK received a United consumer reporting agency, December 6, 2010, within the class time period. 8). on (ECF No. 36, at Specifically, JRK received a confirmation of records in the previous report from information bore and personal the States USBS of Because Id. character, general this reputation, expected to be used for Milbourne's eligibility for the communication qualifies as a "consumer report" under 15 U.S.C. on date. and was establishing employment with JRK, report that on Milbourne' s characteristics, purpose consumer on § 1681a(d). Milbourne Therefore, within the JRK obtained a two-year preceding the filing of the Complaint on November 30, period 2012, and accordingly, Milbourne fits the definition of the Adverse Action Subclass. Therefore, the Court turns to whether Milbourne's claim that he never received any adverse action letter renders him an 4 As noted above, even if the Court were to conclude that Milbourne is no longer a typical or adequate representative, decertification is not the appropriate remedy. Carpenter, 7 0 6 F. 2d at 617-18. Rather, Plaintiffs would have the opportunity to propose a new representative from the Adverse Action Subclass. 17 atypical representative. The Fourth Circuit has described the typicality requirement as follows: The typicality requirement goes to the heart of a representative [party's] ability to represent a class, particularly as it tends to merge with the commonality and adequacyof-representation requirements. The representative party's interest in prosecuting his own case must simultaneously tend to advance the interests of the absent class members. For that essential reason, plaintiff's claim cannot be so different from the claims of absent class members that their claims will not be advanced by plaintiff's proof of his own individual claim. That is not to say that typicality requires that the plaintiff's claim and the claims of class members be perfectly identical or perfectly aligned. But when the variation in claims strikes at the heart of the respective causes of actions, we have readily denied class certification. In the language of the Rule, therefore, the representative party may proceed to represent the class only if the plaintiff establishes that his claims or defenses are typical of the claims or defenses of the class. Deiter v. Microsoft Corp., (emphasis added) 436 F. 3d 461, (internal citations 466-67 and (4th Cir. quotation 2006) marks omitted) . Thus, the appropriate analysis of typicality "involves[s] a comparison of the plaintiffs' claims or defenses with those of the Id. absent analysis, class [the members." district court] at 467. begin[s] with "To conduct that a review of the elements of [the plaintiff's] prima facie case and the facts on 18 which the plaintiff would necessarily rely to prove it." Then, the district those facts members." would court must also prove determine the of the there is no dispute that Milbourne, Adverse Action Subclass member, by § 1681b (b) (3) action against him. has claims extent to which absent class Id. Here, required "the Id. proven as a like every other did not receive the information before JRK took adverse employment The elements that Milbourne must prove--and matter of law, as further discussed in the Court's previous Memorandum Opinion granting Milbourne's motion for summary violation judgment are on simple. this point--in Like every order other Milbourne need only show that: ( 1) report period; within employment the action relevant against adverse action notice, of his time him; and to Subclass FCRA at this member, JRK obtained his consumer ( 3) (2) he JRK least took did not copy of his consumer report, rights under the prove adverse receive an and summary five days prior to the adverse employment action. Given claims of the alignment every other between Adverse difference between providing the Milbourne's Action relevant claims Subclass and member, the the information late and not providing it at all is not so "fundamental" that it "strikes at the heart of" the Adverse Action Subclass' as JRK conceded at argument, claims. Rather, this difference goes only to the 19 issue of JRK's a willful, whether question fact admitted violation that is was negligent relevant only determination of statutory and punitive damages. 75-76). Therefore, Milbourne remains a to (Hrg. typical or the Tr. at representative of the Adverse Action Subclass. II. In class, Plaintiffs' Cross-Motion to Amend their cross-motion Plaintiffs consumers move to the amend Court the to: Order " {i) certifying add a sub-class [who signed the Standalone Disclosure Form] 1681b(b) (2) Impermissible Use Class; and (ii) the of to the § approve Plaintiff Samantha Churcher as a Class Representative of the § 1681b(b) (2) Impermissible Use Class." (EC F No . Plaintiffs also ask 1 71) . the Court to appoint Milbourne as the representative of the socalled "Contingency Form Impermissible Use Sub-Class." Id. A. Addition of a Sub-Class As noted above, and as set forth in more detail in the Court's previous Memorandum Opinion granting JRK's second motion for summary Standalone judgment, Disclosure "contingency form") matter of law. the Form Court (referred satisfies Therefore, finds 15 that to U.S. C. by § JRK' s use of the Plaintiffs as the 168 lb (b) ( 2) {A) as a there is no need to add a sub-class of consumers who signed that form, because those class members are no longer parties to this action. 20 Accordingly, Plaintiffs' motion will be denied as to the request for certification of a "Contingency Form Sub-Class." B. Appointment of Representative The Court finds New a that Impermissible Samantha Churcher is Class Use a typical and adequate representative of the amended Impermissible Use Class as defined above, representative stead. Class contradiction of and the will Impermissible Counsel from therefore have JRK, be Use Class submitted, that substituted in without Churcher as Milbourne's opposition signed the or Standard Disclosure Form and did not sign the Standalone Disclosure Form, and therefore is a typical and adequate representative. No. 171-1, Declaration of Susan M. Rotkis See ECF (stating that Churcher signed the Standard Disclosure Form, does not have any interests adverse to the remainder of the class, the prosecution of this case, defense counsel}. has cooperated fully in and has already been deposed by Additionally, Churcher is adequate to represent the remaining class members because she did not sign the Standalone Disclosure Form. Indeed, JRK agreed at oral argument that Churcher is a typical and adequate representative of those class members who signed only the Standard Disclosure Form. Tr. at 55:23-25. 21 Thus, the the undisputed record shows that Churcher satisfies typicality appointed and as adequacy class prongs of Rule representative of 23, and will be re-defined the Impermissible Use Class. 5 CONCLUSION For the reasons set forth herein, DEFENDANT'S MOTION DECERTIFY THE IMPERMISSIBLE USE AND ADVERSE ACTION CLASSES No. set 151) forth CERTIFYING denied For the reasons, will be denied. in PLAINTIFFS' above, CLASS PLAINTIFFS' (ECF part. No. CROSS-MOTION 171) PLAINTIFFS' CROSS-MOTION will be (ECF and to the extent, TO AMEND granted UNOPPOSED TO in MOTION ORDER part TO TO AMEND ORDER CERTIFYING CLASS and AMEND (ECF No. 190) will be granted. It is so ORDERED. Isl , Robert E. Payne Senior United States District Judge Richmond, Virginia Date: March 2016 5 Because summary judgment has been granted against Milbourne, as set forth in the Court's previous Memorandum Opinion, going forward Churcher will be the only representative of the redefined Impermissible Use Class. 22
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