United States Court of Appeals
For the First Circuit
No. 20-1783
JAMES ROBINSON, on behalf of himself and all others similarly
situated,
Plaintiff, Appellee,
v.
NATIONAL STUDENT CLEARINGHOUSE,
Defendant, Appellee,
PAÚL CAMARENA,
Objector, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor, IV, U.S. District Judge]
Before
Howard, Chief Judge,
Selya and Lynch, Circuit Judges.
Anthony Francisco Cruz,* with whom Paúl Camarena and North &
Sedgwick L.L.C. were on brief, for appellant.
James A. Francis, with whom Stuart T. Rossman, Persis S. Yu,
National Consumer Law Center, and Francis Mailman Soumilas, P.C.,
were on brief, for appellee James Robinson.
Lisa M. Simonetti, with whom David G. Thomas and Greenberg
* On August 23, 2021, the Court granted leave for Anthony
Francisco Cruz, a law student, to participate in oral argument
pursuant to 1st Cir. R. 46.0(f)(1)(B).
Traurig, LLP were on brief, for appellee National Student
Clearinghouse.
September 17, 2021
LYNCH, Circuit Judge. James Robinson filed a class
action lawsuit against National Student Clearinghouse ("NSC"). He
alleged that NSC violated the statutory requirements of the Fair
Credit Reporting Act ("FCRA") by overcharging for self-
verification reports of university degrees and dates of
enrollment. After mediation, the parties negotiated a class action
settlement providing for a $1.9 million settlement fund,
injunctive relief, and a free self-verification report for each
class member. Paúl Camarena, a class member, objected to the
settlement agreement. The district court heard Camarena's
arguments at a fairness hearing, overruled his objections, and
entered a Final Approval Order approving the class settlement.
See Robinson v. Nat'l Student Clearinghouse, No. 1:19-cv-10749,
2020 WL 4873728, at *1 (D. Mass. July 8, 2020).
Camarena appeals from that approval. We affirm.
I.
On April 18, 2019, Robinson filed a class action
complaint on behalf of himself and similarly situated consumers
against NSC in the United States District Court for the District
of Massachusetts. Robinson alleged that NSC violated federal and
Massachusetts law by overcharging consumers for self-verification
reports of their university degrees and dates of enrollment. NSC
charged $14.95 for self-verification reports and imposed an
additional school surcharge for some consumers, depending on their
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educational institution. Robinson alleged in part that NSC is a
consumer reporting agency ("CRA") subject to the FCRA and that NSC
violated 15 U.S.C. § 1681j(f) in charging him and other consumers
more than the maximum allowable disclosure charge for their self-
verification reports. The maximum allowable disclosure charge was
$12.00 from 2015 to 2018 and $12.50 from 2019 to 2020. See Consumer
Fin. Prot. Bureau, Fair Credit Reporting Act Disclosures, https://
www.consumerfinance.gov/rules-policy/final-rules/fair-credit-
reporting-act-disclosures/ (last visited Sept. 10, 2021).
Robinson thus alleged that most consumers were overcharged by $2.95
or $2.45 per self-verification report.
On June 20, 2019, the parties filed a joint motion to
stay proceedings pending the parties' attempt to resolve their
dispute through mediation before the Honorable Diane M. Welsh
(ret.). The district court granted the motion on June 23, 2019.
Before the mediation, NSC provided informal discovery to class
counsel, including the number of reports provided to class members
and the amounts charged for the self-verification reports. Through
mediation, the parties reached a settlement agreement that created
a $1.9 million settlement fund to support cash payments to class
members. Each class member would receive approximately $33.45 in
cash from the settlement fund. The class settlement also
negotiated prospective relief limiting NSC's charges moving
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forward and provided each class member with one free self-
verification report.
On January 21, 2020, the district court granted
Robinson's motion for an order directing notice of the class action
settlement. Notice was provided to approximately 35,839
individuals, including Camarena. On May 6, 2020, Camarena filed
an objection to the settlement agreement. He objected to the
representation by class counsel, the content of the notice provided
to the class members, the sufficiency of the recovery for class
members, and the attorneys' fees for class counsel. Camarena was
the only class member to submit a timely objection, and no class
member opted out of the settlement.
On July 7, 2020, the district court held a fairness
hearing. At the fairness hearing, the district court heard
Camarena's arguments and overruled his objections. The next day,
the district court entered the Final Approval Order approving the
class settlement. See Robinson, 2020 WL 4873728, at *1.
On August 7, 2020, Camarena filed a notice of appeal
challenging the district court's Final Approval Order.
II.
We review the district court's approval of the class
settlement for abuse of discretion. See Bezdek v. Vibram USA,
Inc., 809 F.3d 78, 82 (1st Cir. 2015). We review embedded legal
issues de novo and factual findings for clear error. See
id.
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A class action settlement must be "fair, reasonable, and
adequate." Fed. R. Civ. P. 23(e)(2). Where "the parties
negotiated at arm's length and conducted sufficient discovery, the
district court must presume the settlement is reasonable." In re
Pharm. Indus. Average Wholesale Price Litig., 588 F.3d 24, 32-33
(1st Cir. 2009). The district court considers a "laundry list[]
of factors" pertaining to the reasonableness of a class action
settlement, but "the ultimate decision by the judge involves
balancing the advantages and disadvantages of the proposed
settlement as against the consequences of going to trial or other
possible but perhaps unattainable variations on the proffered
settlement." Nat'l Ass'n of Chain Drug Stores v. New England
Carpenters Health Benefits Fund,
582 F.3d 30, 44 (1st Cir. 2009).
We have further explained that "the district court enjoys
considerable range in approving or disapproving a class action
settlement, given the generality of the standard and the need to
balance [the settlement's] benefits and costs."
Id. at 45.
Here, the district court did not abuse its discretion in
approving the class settlement. The district court considered
relevant factors and concluded that the class action settlement
was "fair, reasonable, and adequate" under Rule 23(e)(2).
The district court considered that the settlement
agreement was the product of arm's-length negotiation between
class counsel and NSC in mediation before Judge Welsh. The
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district court stayed its proceedings pending the parties' attempt
to resolve their dispute through mediation. Before the mediation,
NSC provided disclosures to class counsel, including the number of
class members and the total amount of the alleged overcharge. The
district court thus properly concluded that "the parties
negotiated at arm's length and conducted sufficient discovery."
In re Pharm. Indus., 588 F.3d at 32-33.
The district court also considered the litigation risks
and legal uncertainty related to the litigation for both parties.
Robinson's class action complaint raised an issue of first
impression about whether an entity like NSC is a CRA regulated by
the FCRA. The parties also disputed whether NSC's self-
verification reports qualify as "consumer reports" under the FCRA.
No court had yet ruled on whether an entity like NSC is subject to
regulation under the FCRA.1 The plaintiff class also encountered
serious challenges related to proving "willfulness," a
prerequisite for an award of statutory damages.2 The district
1 To date, NSC maintains that it is not subject to
regulation under the FCRA.
2 In Safeco Insurance Company of America v. Burr, the
Supreme Court held that to obtain statutory damages under the FCRA,
a plaintiff must demonstrate that a defendant knowingly violated
the statute or acted with reckless disregard. 551 U.S. 47, 52,
56-57 (2007). The Supreme Court further held that if the
defendant's interpretation of the statute is not "objectively
unreasonable," there can be no finding of recklessness.
Id. at
69-70.
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court properly credited both parties' arguments that settlement
was preferable to continued litigation given the litigation risks
for both sides.
Camarena argues on appeal that the district court abused
its discretion by ignoring his request to submit evidence that he
paid more than $14.95 for his self-verification reports, the
baseline amount indicated by class counsel and NSC in the
settlement agreement. He argues that the district court could not
have made an informed decision that the class settlement was fair
and reasonable without considering evidence of his individual
damages.
Camarena never made this objection or offer in his
written objections to the settlement agreement. Nor did he supply
a declaration with the evidence he wanted to provide. Camarena
instead requested to supplement the record with his individual
damages for the first time during the final fairness hearing. The
district court did not abuse its discretion in declining this
request that was not briefed and was raised for the first time in
oral argument. We do not consider this undeveloped claim that was
made in passing to the district court during oral argument. See
McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 22 (1st Cir. 1991).3
3 Even had Camarena properly briefed and preserved this
argument before the district court, the district court did not
abuse its discretion in declining to consider Camarena's evidence
of his own, individual damages. The district court was aware that
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As to Camarena's argument that we should adopt the
position that the district court must act as a full fiduciary in
class actions, this argument too has been waived. Camarena did
not develop this argument before the district court, and no
exceptional circumstances warrant consideration of this argument
for the first time on appeal. See United States v. Rodrigues, 850
F.3d 1, 13 n.6 (1st Cir. 2017); Johnston v. Holiday Inns, Inc.,
595 F.2d 890, 894 (1st Cir. 1979).
III.
Affirmed.
NSC charged some class members more than the uniform $14.95 based
on the school surcharge for certain institutions. That some class
members paid more than $14.95 was known to class counsel and Judge
Welsh during the mediation and factored into the class settlement
negotiations. Camarena's proffered evidence that he, too, was
charged more than $14.95 could not have affected the district
court's determination that the class settlement was "fair,
reasonable, and adequate."
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