Case 8:19-cv-02313-CEH-TGW Document 108 Filed 08/13/21 Page 1 of 32 PageID 1625
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`UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF FLORIDA
`TAMPA DIVISION
`
`Plaintiff,
`
`
`LOGAN LYTTLE, on his own behalf
`and on behalf of all similarly situated
`individuals,
`
`
`
`v.
`
`TRULIEVE, INC., a Florida Profit
`Corporation,
`
`Defendant.
`
`___________________________________/
`
`Case No: 8:19-cv-2313-CEH-TGW
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`O R D ER
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`This matter comes before the Court upon Plaintiff's Motion for Class
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`Certification (the “Motion for Class Certification”) (Doc. 61), Defendant’s Response
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`in Opposition to Plaintiff’s Motion for Class Certification (Doc. 70), and Plaintiff’s
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`Reply to Defendant’s Response in Opposition to Plaintiff’s Motion for Class
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`Certification (Doc. 76). The Court, having considered oral argument, the parties’
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`submissions, and being fully advised in the premises, will grant-in-part and deny-in-
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`part the Motion for Class Certification.
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`I.
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`BACKGROUND
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`Logan Lyttle, on behalf of himself and all others similarly situated, brings this
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`Fair Credit Reporting Act action against Trulieve, Inc. Doc. 1 ¶¶68, 72–75, 103–113.
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`Lyttle’s complaint contains the following factual allegations. Trulieve conducts
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`background checks on job applicants as part of a standard screening process. Id. at ¶24.
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`Trulieve also occasionally conducts background checks on employees during the
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`course of their employment. Id. In or about April of 2019, Lyttle applied for
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`employment with Trulieve. Id. at ¶51. Trulieve procured Lyttle’s consumer report from
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`Personal Security Concepts, LLC.1 Id. at ¶52. Lyttle did not know the nature or scope
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`of Trulieve’s investigation into his background. Id. at ¶54.
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`Trulieve conditionally offered employment to Lyttle. Id. at ¶57. However, based
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`on the contents of the consumer report, Trulieve rescinded the job offer and rejected
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`Lyttle’s employment application. Id. at ¶58. Before rescinding the job offer, Trulieve
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`did not provide Lyttle with notice of its intent to rescind the employment offer, a copy
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`of Lyttle’s background check, or a summary of his rights. Id. at ¶59.
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`After Trulieve rejected Lyttle’s employment application, Lyttle became
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`concerned about the information contained in his consumer report, whether the report
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`was accurate, and the impact of the report on his future employment prospects. Id. at
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`¶60. The retail regional human resources manager for Trulieve admitted that Trulieve
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`had mistakenly denied employment to Lyttle in April of 2019 based on his consumer
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`report. Id. at ¶65. If Trulieve had provided Lyttle with pre-adverse action notice, a copy
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`of his consumer report, and a summary of rights in April of 2019, Lyttle could have
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`clarified any confusion and started his career at Trulieve. Id. at ¶66. Trulieve did not
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`afford Lyttle an opportunity to address any concerns regarding his consumer report or
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`state his case before rejecting his employment application. Id.
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`1 Lyttle previously brought claims against Personal Security Concepts in this action, too, but
`the Court dismissed those claims, with prejudice, in June of 2020. Doc. 53 at 1.
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`2
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`Lyttle brings one claim against Trulieve under 15 U.S.C. § 1681b(b)(3)(A) on
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`behalf of himself and a class labeled as the “Adverse Action Class,” which consists of
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`[a]ll Trulieve applicants and employees in the United States
`against whom adverse employment action was taken,
`based, in whole or in part, on information contained in a
`consumer report obtained within five years preceding the
`filing of this action through the date of final judgment, who
`were not provided notice, a copy of their report or summary
`of rights pursuant to § 1681b(b)(3)(A).
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`Id. at ¶¶11, 14, 19, 68, 103–105, 112–113.
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`
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`Lyttle alleges that Trulieve violated 15 U.S.C. § 1681b(b)(3)(A) by failing to
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`provide him and other Adverse Action Class members with pre-adverse action notice,
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`a summary of their FCRA rights, and a copy of their consumer report prior to taking
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`adverse action. Id. at ¶105. Lyttle further alleges that the violations were willful and
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`that Trulieve “acted in deliberate or reckless disregard of its obligations” and the rights
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`of Lyttle and other Adverse Action Class members under 15 U.S.C. § 1681b(b)(3)(A).
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`Id. at ¶106.
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`
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`The Court heard oral argument on the Motion for Class Certification, Doc. 83
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`at 1, but deferred ruling because Trulieve indicated an intent to challenge subject
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`matter jurisdiction, Doc. 84. After the parties resolved that issue, the Court took the
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`Motion for Class Certification under advisement, only for an individual to move for
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`permissive intervention under Rule 24(b) for the purpose of serving as class
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`representative. Doc. 97 at 1. The Court denied that request. Doc. 104 at 20. The
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`Motion for Class Certification is now ripe for the Court’s review.
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`3
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`II.
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`LEGAL STANDARD
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`Decisions about class certification rest with the sound discretion of the district
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`court. Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1386 (11th Cir. 1998). A
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`district court has broad discretion in determining whether to certify a class. Washington
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`v. Brown & Williamson Tobacco Corp., 959 F.2d 1566, 1569 (11th Cir. 1992). A class
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`action may be maintained only when it satisfies all of the requirements of Federal Rule
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`of Civil Procedure 23(a) and at least one of the requirements of Rule 23(b). See Busby
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`v. JRHBW Realty, Inc., 513 F.3d 1314, 1321 (11th Cir. 2008). The party seeking class
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`certification carries the burden of proof and, if doubts exist regarding whether the
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`movant satisfies that standard, then the movant fails to carry its burden. Brown v.
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`Electrolux Home Prods., Inc., 817 F.3d 1225, 1233 (11th Cir. 2016).
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`As a threshold issue, a plaintiff must demonstrate that the proposed class is
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`“adequately defined and clearly ascertainable.” Little v. T-Mobile USA, Inc., 691 F.3d
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`1302, 1304 (11th Cir. 2012). A plaintiff seeking to maintain the class action must
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`affirmatively demonstrate his compliance with Rule 23. Id. The plaintiff must be
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`prepared to prove that there are “in fact sufficiently numerous parties, common
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`questions of law or fact, typicality of claims or defenses, and adequacy of
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`representation, as required by Rule 23(a).” Comcast Corp. v. Behrend, 569 U.S. 27, 33
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`(2013) (emphasis in original). Rule 23 “establishes the legal roadmap courts must
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`follow when determining whether class certification is appropriate.” Valley Drug Co. v.
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`4
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`Geneva Pharm., Inc., 350 F.3d 1181, 1187 (11th Cir. 2003). Under Rule 23, a court may
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`certify a class only if:
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`(1) the class is so numerous that joinder of all members is
`impracticable;
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`(2) there are questions of law or fact common to the class;
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`(3) the claims or defenses of the representative parties are
`typical of the claims or defenses of the class; and
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`(4) the representative parties will fairly and adequately
`protect the interests of the class.
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`Fed. R. Civ. P. 23(a).
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`III. ANALYSIS
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`Before certifying a class, a district court must determine that “at least one named
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`class representative has Article III standing to raise each class subclaim.” Prado-
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`Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1279 (11th Cir. 2000). Lyttle has
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`established standing.2 As such, the Court must examine ascertainability, the
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`2 The “irreducible minimum” of standing consists of three elements: “[t]he plaintiff must have
`(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the
`defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc.
`v. Robins, 136 S. Ct. 1540, 1547 (2016) (internal quotation marks omitted). In simpler terms,
`a plaintiff must show that the defendant harmed the plaintiff and that a judicial decision can
`either eliminate that harm or compensate him for it. Muransky v. Godiva Chocolatier, Inc., 979
`F.3d 917, 924 (11th Cir. 2020) (en banc). Here, Lyttle has established standing. He alleges
`that Trulieve rescinded the job offer based on the report’s contents and failed to provide him
`with notice of its intent, a copy of the background check, or a summary of his rights before
`rejecting his application. Doc. 1 ¶¶58–59. According to Lyttle, Trulieve admitted that it
`mistakenly denied him employment based on the report and, if Trulieve had provided him
`with the requisite notice before taking adverse action against him, he could have clarified any
`confusion and started his career at Trulieve. Id. at ¶¶65–66, 110. Lyttle also alleges that he
`was denied the opportunity to determine the veracity of the information in the report and
`understand how it may affect future efforts to obtain employment. Id. at ¶110. Lyttle further
`supports these allegations in his declaration. Doc. 61-1 at 3–4. Trulieve has recognized that
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`5
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`requirements under Rule 23(a), and the requirements under Rule 23(b). As explained
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`below, Lyttle satisfies these requirements.
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`A. Adequately Defined and Clearly Ascertainable
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`Ascertainability serves as an implied prerequisite of Rule 23. Cherry v. Dometic
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`Corp., 986 F.3d 1296, 1302 (11th Cir. 2021). “Class representatives bear the burden of
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`establishing that their proposed class is adequately defined and clearly ascertainable,
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`and they must satisfy this requirement before the district court can consider whether
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`the class satisfies the enumerated prerequisites of Rule 23(a).” Id. The Eleventh Circuit
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`has traditionally collapsed class definition and ascertainability into one inquiry. Id. To
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`that end, “a proposed class is ascertainable if it is adequately defined such that its
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`membership is capable of determination.” Id. at 1304. And “membership can be
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`capable of determination without being capable of convenient determination.” Id.
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`(emphasis in original). Id. at 1303. On the other hand, a class is inadequately defined
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`when it is defined through vague or subjective criteria. Id. at 1301. When a proposed
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`class lacks an adequate definition, the district court cannot ascertain who belongs in
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`that proposed class. Id. at 1302. Neither this analysis nor the remainder of the Rule 23
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`analysis requires “administrative feasibility”; if the action involves a proposed Rule
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`23(b)(3) class, the district court may consider administrative feasibility as part of the
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`manageability criterion under Rule 23(b)(3)(D). Id. at 1304.
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`Lyttle plausibly alleges harm under the standing analysis and does not challenge standing.
`Doc. 88 at 16.
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`6
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`The Adverse Action Class is adequately defined such that its membership is
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`capable of determination. The proposed definition covers all Trulieve applicants and
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`employees in the United States against whom adverse action was taken, based, in
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`whole or in part, on information within a consumer report obtained five years before
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`Lyttle filed this action through the date of the final judgment, who were not provided
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`notice, a copy of their report, or summary of rights under § 1681b(b)(3)(A). This
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`language does not employ vague or subjective criteria. Portions of the definition utilize
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`terms or language from § 1681b(b)(3)(A), such as the references to a copy of the report
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`and summary of rights. The definition does not demand speculation or guesswork.
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`Trulieve does not challenge class certification on this ground. The Adverse Action
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`Class is adequately defined and clearly ascertainable.3
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`B. Rule 23(a) Requirements
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`Because the Adverse Action Class is adequately defined and clearly
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`ascertainable, the Court will now address the prerequisites to class certification under
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`Rule 23(a). Cherry, 986 F.3d at 1302. Rule 23(a) requires the Court to examine: (i)
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`numerosity; (ii) commonality; (iii) typicality; and (iv) adequacy. Hines v. Widnall, 334
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`F.3d 1253, 1255–56 (11th Cir. 2003). Lyttle satisfies the requirements of Rule 23(a).
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`i. Numerosity and Impracticability of Joinder
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`3 As discussed in more detail below, the Court will modify the Adverse Action Class’s
`definition to provide for a two-year class period. This modification does not change the
`Court’s conclusion here.
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`7
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`Under Rule 23(a)(1), the class must be “so numerous that joinder of all members
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`is impracticable.” Fed. R. Civ. P. 23(a)(1). Generally, a putative class must include
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`more than forty members. Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir.
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`1986). Although a plaintiff need not show the precise number of members in the class,
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`the plaintiff “still bears the burden of making some showing, affording the district court
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`the means to make a supported factual finding, that the class actually certified meets
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`the numerosity requirement.” Vega v. T-Mobile, USA, Inc., 564 F.3d 1256, 1267 (11th
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`Cir. 2009) (original emphasis removed).
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`Lyttle contends that the Adverse Action Class is sufficiently numerous. Doc. 61
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`at 11. Trulieve does not challenge numerosity. In support of his numerosity argument,
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`Lyttle highlights that Trulieve denied employment to 1,047 applicants based upon
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`their criminal histories. Id. Indeed, one of Trulieve’s interrogatory responses to Lyttle’s
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`inquiry into the number of members in the Adverse Action Class indicates that
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`“approximately 1,047 individuals were denied employment due to a criminal record
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`during the two year period prior to the filing of the Complaint.” Doc. 61-2 at 17.
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`Although the interrogatory response relates to a two-year period, instead of the five-
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`year period in the definition for the Adverse Action Class, and does not explicitly focus
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`upon those individuals who did not receive notice under § 1681b(b)(3)(A), the response
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`serves as a good evidentiary indicator that the Adverse Action Class is sufficiently
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`numerous.4 It demonstrates that over 1,000 individuals were denied employment as a
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`4 And as discussed in more detail below, the Court will modify the Adverse Action Class’s
`definition to provide for a two-year class period.
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`8
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`result of a purported criminal history, similar to Lyttle. See Doc. 61-1 at 3; Doc. 70-2
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`at 44–54. Lyttle need not show the precise number of individuals in the Adverse
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`Action Class. Thus, Lyttle satisfies numerosity under Rule 23(a).
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`ii. Common Questions of Law or Fact
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`Under Rule 23(a)(2), “questions of law or fact common to the class” must exist.
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`Fed. R. Civ. P. 23(a)(2). “This part of the rule does not require that all the questions
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`of law and fact raised by the dispute be common or that the common questions of law
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`or fact predominate over individual issues.” Vega, 564 F.3d at 1268 (internal citation
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`and quotation marks omitted). This burden is “relatively light.” Id. “[A] class action
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`must involve issues that are susceptible to class-wide proof.” Murray v. Auslander, 244
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`F.3d 807, 811 (11th Cir. 2001). Commonality, like typicality, focuses “on whether a
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`sufficient nexus exists between the legal claims of the named class representatives and
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`those of individual class members.” Prado-Steiman, 221 F.3d at 1278.
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`A sufficient nexus exists here. Lyttle contends that Trulieve failed to provide
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`him with notice in accordance with § 1681b(b)(3)(A). Specifically, Lyttle alleges that
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`Trulieve failed to provide him with “notice of its intent to rescind its offer of
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`employment, a copy of his background check or a summary of his rights before
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`rescinding the offer.” Doc. 1 ¶59. The Adverse Action Class includes those individuals
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`who, like Lyttle, allegedly did not receive notice in accordance with § 1681b(b)(3)(A)
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`from Trulieve. Thus, whether Trulieve provided the information required under §
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`1681b(b)(3)(A) before taking adverse employment action is a factual question common
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`to Lyttle and individual class members. Relatedly, whether Trulieve willfully violated
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`the FCRA is another question common to Lyttle and the individual class members.
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`The Adverse Action Class satisfies the commonality requirement under Rule 23(a).
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`iii. Typicality
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`Next, the claims or defenses of the representative parties must be “typical of the
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`claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). “A class representative must
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`possess the same interest and suffer the same injury as the class members in order to
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`be typical under Rule 23(a)(3).” Vega, 564 F.3d at 1275 (internal quotation marks
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`omitted). The typicality analysis “measures whether a sufficient nexus exists between
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`the claims of the named representatives and those of the class at large.” Id. (internal
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`quotation marks omitted). Unlike commonality, which traditionally refers to a class’s
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`group characteristics as a whole, typicality refers to the named plaintiff’s individual
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`characteristics in relation to the class. Prado-Steiman, 221 F.3d at 1279. Even if the fact
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`patterns are unique to each claim, if the class representative and class members
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`experienced the same unlawful conduct, the typicality requirement will be satisfied.
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`Agan v. Katzman & Korr, P.A., 222 F.R.D. 692, 698 (S.D. Fla. 2004).
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`Here, Lyttle’s claim against Trulieve is typical of the claims of the class
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`members. Lyttle contends that Trulieve did not provide him notice in accordance with
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`§ 1681b(b)(3)(A) before taking adverse action based upon his report. The claims of the
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`members of the Adverse Action Class, as defined, similarly pertain to those employees
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`and applicants against whom Trulieve took adverse action based upon a report without
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`providing notice in accordance with § 1681b(b)(3)(A). Thus, Lyttle and the members
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`10
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`of the Adverse Action Class experienced the same unlawful conduct for purposes of
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`typicality under Rule 23(a).
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`iv. Adequacy of Protection of Class Interests
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`The final element of the Rule 23(a) analysis—adequacy—requires the
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`representative party to “fairly and adequately protect the interests of the class.” Fed.
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`R. Civ. P. 23(a)(4). This adequacy-of-representation requirement, which serves to
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`uncover any conflict of interest that the named parties may have with the class they
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`represent, Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997), contains two
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`separate inquiries: “(1) whether any substantial conflicts of interest exist between the
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`representatives and the class; and (2) whether the representatives will adequately
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`prosecute the action,” Valley Drug, 350 F.3d at 1189 (internal quotation marks
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`omitted). “If substantial conflicts of interest are determined to exist among a class,
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`class certification is inappropriate.” Id. But minor conflicts alone will not defeat class
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`certification; “the conflict must be a ‘fundamental’ one going to specific issues in
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`controversy.” Id. The Court also must consider competency and conflicts of class
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`counsel. Amchem Prods., 521 U.S. at 626 n.20.
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`Lyttle contends that he has represented the Adverse Action Class’s interests and
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`has no conflicts with, or interests adverse or agnostic to, members of the Adverse
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`Action Class. Doc. 61 at 15. Citing to his declaration, Lyttle describes his commitment
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`to the Adverse Action Class as “beyond reproach.” Id. Among other representations,
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`Lyttle states in his declaration that: (1) he understands that he has certain duties and
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`responsibilities as class representative; (2) he believes that he has fairly represented the
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`11
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`interests of the class members during the litigation; (3) he understands that, as class
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`representative, he assumed a fiduciary role and agreed to (i) consider his own interests
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`and, in some instances, place the interests of the Adverse Action Class before his own
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`interests; (ii) actively participate in the litigation, as necessary; and (iii) “champion
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`many other people with similar claims and injuries”; (4) he desires and intends to
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`prosecute the claim; (5) his interests are “not inconsistent” with those of any member
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`of the Adverse Action Class; (6) he has considered the interests of the Adverse Action
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`Class and has put those interests before his interests; and (7) he has participated in this
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`litigation. Doc. 61-1 at 4–5. Finally, relying upon declarations from his attorneys,
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`Lyttle asserts that his attorneys possess extensive experience litigating class actions and
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`employment law claims. Doc. 61 at 15.
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`But Trulieve attacks Lyttle’s adequacy on numerous grounds. Doc. 70 at 6–11.
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`Seeking to alleviate any concerns, Lyttle devotes much of his reply to countering
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`Trulieve’s adequacy attacks. Doc. 76 at 1–5, 7. The Court will address each of these
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`attacks. As explained below, Lyttle has carried his burden of demonstrating adequacy.
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`1. Credibility and Conflicting Statements
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` First, Trulieve argues that Lyttle has demonstrated “serious credibility
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`concerns that will dominate trial and prejudice the absent class.” Doc. 70 at 6. Trulieve
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`highlights that Lyttle admitted to lying under oath and offered numerous false
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`statements during his deposition. Id. When asked during his deposition if he ever met
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`one of his attorneys in person, Lyttle initially described a random encounter between
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`him and his attorney, in which he “just happened to bump into” his attorney at a
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`12
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`restaurant. Doc. 70 at 114:4–20, 115:1–3. According to Lyttle, he approached his
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`attorney, told his attorney that he looked familiar, inquired about his attorney’s name,
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`and introduced himself. Id. at 115:20–25, 116:1–7, 117:20–25, 118:1–7. Lyttle stated
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`this brief encounter was unrelated to the litigation. Id. at 123:6–9, 22–25, 124:1–4.
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`After the deposition lunch break, Lyttle advised that he wanted to “amend [his]
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`testimony regarding [his] preparation for the deposition.” Id. at 144:17–19. According
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`to Lyttle, contrary to his prior testimony, he had met his attorney at the restaurant to
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`review the case and prepare for the deposition. Id. at 146:4–14. He sought to correct
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`this testimony to “clear the air” and ensure “that everything that did happen” was “as
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`correct as it can be.” Id. at 149:19–25, 150:1–5. Lyttle stated that he had lied because
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`he “got quite a bit nervous and spooked at the time, and once [he] started talking, [he]
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`couldn’t stop.” Id. at 149:19–25. When asked how anyone could have confidence that
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`he would not lie again during the litigation, Lyttle stated that he would “need to be
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`more conscious” about his anxiety and, if possible, “take a break during that time or
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`[something] of that nature.” Id. at 157:4–14. He claimed that he would have “no
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`problem” answering questions later in the litigation, even if he needed “like 5 [or] 10
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`seconds to breath” and “recenter” himself. Id. at 221:3–11.
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`Relatedly, Trulieve claims that “numerous conflicting statements” exist
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`between Lyttle’s deposition testimony and his declaration, which predates his
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`deposition. Doc. 70 at 6–7. For example, although Lyttle acknowledges in his
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`declaration that three attorneys represented him, Doc. 61-1 at 2, he did not recognize
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`the names of two of his attorneys during his deposition, Doc. 70-1 at 127:25, 128:1–9.
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`And although Lyttle states in his declaration that he has agreed to assume a fiduciary
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`role, Doc. 61-1 at 4, he did not understand the meaning of the word “fiduciary” during
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`his deposition, Doc. 70-1 at 198:16–25, 199:1–7. Trulieve also objects to Lyttle’s
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`acknowledgment in his declaration that he has agreed to place the Adverse Action
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`Class’s interests ahead of his interests, Doc. 61-1 at 4, considering that he agreed to
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`settle the claims against Personal Security Concepts, Doc. 70 at 7.
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`Neither Lyttle’s initially false testimony nor the identified contradictions
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`between his declaration and his deposition defeat Lyttle’s adequacy. Turning first to
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`the false testimony, as highlighted above, the Court must determine whether any
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`substantial conflicts of interest—not minor conflicts alone—exist. The conflict must be
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`a fundamental conflict going to specific issues in controversy. Lyttle’s false deposition
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`testimony was limited to a meeting with his attorney in preparation for his deposition,
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`not any of the specific issues in controversy. Lyttle’s fabricated testimony, which he
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`later corrected on his own accord, was unrelated to Trulieve’s FCRA violations. For
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`example, Lyttle did not lie about applying for employment with Trulieve or receiving
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`notice under § 1681b(b)(3)(A) from Trulieve before Trulieve took adverse action.
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`Trulieve’s cited district court cases here are distinguishable.5 Similarly, the purportedly
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`5 For example, in Pines Nursing Home (77), Inc. v. Rehabcare Group, Inc., the court expressed
`concerns about the plaintiff’s credibility and identified reasons that the plaintiff would be
`unable to fulfill its fiduciary role of class representative and sufficiently defend the interests of
`the proposed class: (1) the plaintiff’s existence was threatened; (2) the two individuals who
`jointly or independently owned the plaintiff were defendants in criminal actions for Medicaid
`fraud that was allegedly perpetrated by the plaintiff at their direction; and (3) witnesses for the
`plaintiff offered evasive and inconsistent deposition testimony on issues material to the case,
`including whether the plaintiff’s fax number was listed with the Florida Health Care
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`inconsistent statements do not defeat adequacy. Again, the relevant inquiry looks for
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`the existence of a fundamental conflict going to specific issues in controversy. But
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`Trulieve offers these purported inconsistencies as a means of attacking Lyttle’s
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`credibility.6 Although Lyttle’s credibility is relevant, any inconsistencies between the
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`declaration and the deposition testimony do not rise to the level of rendering Lyttle an
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`inadequate representative. Trulieve fails to link these statements to specific issues in
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`controversy. To the extent that these attacks also tie in to Trulieve’s other adequacy
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`arguments, such as Lyttle’s involvement in the litigation and his settlement with
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`Personal Security Concepts, the Court addresses those arguments below. Thus,
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`contrary to Trulieve’s assertion, Lyttle did not demonstrate credibility concerns that
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`will dominate trial or prejudice members of the Adverse Action Class.
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`Association. No. 1:14-cv-20039-UU, 2014 WL 12531512, at *3–4 (S.D. Fla. June 20, 2014).
`Similarly, in Hall v. National Recovery Systems, Inc., the court held that the plaintiff could not
`adequately represent the class because evidence suggested that he lacked credibility. No. 8:96-
`cv-132-EAK, 1996 WL 467512, at *5 (M.D. Fla. Aug. 9, 1996). The court based this
`conclusion upon: (1) the defendant’s evidence that the plaintiff had been convicted of
`impeachable crimes: (2) the defendant’s evidence that the plaintiff had been adjudicated guilty
`with respect to worthless checks, despite the plaintiff’s testimony that the State Attorney’s
`office had never contacted him; and (3) the defendant’s assertions that the plaintiff had filed
`for bankruptcy, his driver’s license was suspended, and three warrants had been issued for his
`arrest. Id. at *5. The court explained that the plaintiff’s impeachable convictions and prior
`inconsistent statements would render him incredible at trial, which would materially
`prejudice other class members. Id. at *6.
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` 6
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` During oral argument, Trulieve argued that other inconsistencies between the declaration
`and Lyttle’s deposition testimony exist concerning the disclosure form and Trulieve’s
`investigation into Lyttle’s background. The cited testimony pertains to claims no longer before
`the Court, and Trulieve’s arguments do not persuade the Court that Lyttle cannot adequately
`represent the Adverse Action Class. Trulieve also claimed during oral argument that
`discrepancies between the declaration and the deposition testimony revealed unique defenses
`that would apply to Lyttle, yet Trulieve failed to articulate those defenses.
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`2. Participation and Familiarity
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`Next, Trulieve argues that Lyttle is an inadequate representative because he has
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`not actively participated in the litigation. Doc. 70 at 7. Trulieve contends that Lyttle’s
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`lack of knowledge about the proceedings and his admission that he has ceded control
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`of the litigation to counsel demonstrates his lack of active participation. Id. at 7–8.
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`Trulieve highlights several portions of Lyttle’s deposition testimony. Id. at 8. Lyttle
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`claimed during his deposition that he does not seek monetary damages in this action,
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`Doc. 70-1 at 187:15–25, 188:1–6, yet he seeks, among other forms of relief, statutory
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`damages in the complaint, Doc. 1 ¶112. Lyttle acknowledged that he did not attend
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`mediation, and he could not recall whether Trulieve offered to settle at mediation or
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`whether his attorney offered to settle at mediation. Doc. 70-1 at 280:1–8, 24–25, 281:1–
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`2. Lyttle was unaware of whether a class representative maintains a duty to represent
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`the interests of absent class members in negotiating a resolution of the action. Id. at
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`181:8–12. And Lyttle did not recognize the names of two of his attorneys. Id. at 128:2–
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`9. As such, Trulieve contends that Lyttle is not actively involved in the litigation, but
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`rather a “passive strawman used by his attorneys.” Doc. 70 at 8.
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`Trulieve’s argument here falls short. “It is well-settled that it is not necessary for
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`named class representatives to be knowledgeable, intelligent or have a firm
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`understanding of the legal or factual basis on which the case rests in order to maintain
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`a class action.” Powers v. Gov’t Emps. Ins. Co., 192 F.R.D. 313, 317 (S.D. Fla. 1998). See
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`also Collins v. Quincy Bioscience, LLC, No. 19-CV-22864-COOKE/GOODMAN, 2020
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`WL 3268340, at *26 (S.D. Fla. Mar. 19, 2020) (stating that a party who is unfamiliar
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`with the basic elements of his or her claims is an inadequate representative for the class
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`because “there is no sense that there is an actual party behind counsel’s prosecution of
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`the action”). Merely relying on counsel to prosecute an action does not render a
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`plaintiff inadequate. City of Sunrise Gen. Emps.’ Ret. Plan v. FleetCor Techs., Inc., No.
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`1:17-cv-2207-LMM, 2019 WL 3449671, at *6 (N.D. Ga. July 17, 2019).
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`A review of Lyttle’s entire deposition testimony, rather than only Trulieve’s
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`selected portions thereof, demonstrates that he has actively participated in the
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`litigation. As of his deposition, Lyttle estimated that he had spent approximately 60
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`hours working on the case. Doc. 70-1 at 166:24–25, 167:1–6. This activity included
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`reviewing various documents, such as the complaint before it was filed, his
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`declaration, communications from counsel, and information about Trulieve. Id. at
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`162:11–19, 163:5–7, 167:7–12, 227:21–25, 228:1. Other activity includes deposition
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`preparation, providing information to counsel, and conducting online searches.7 Id. at
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`151:5–22, 167:7–12, 265:21–25, 266:1–8. He has consistently communicated with
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`counsel. Id. at 126:2–10, 132:9–12. He also provided the information included in his
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`declaration to counsel. Id. at 226:21–25, 227:1–5. The testimony shows that Lyttle
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`understands the nature of his cla