C. Considerations in Requesting a Fairness Hearing
In class case settlements, it may be appropriate to request that the court conduct a fairness hearing before it approves the consent decree. Although there is no requirement that a fairness hearing be requested in any particular type of case, the district office should always consider fairness hearings in resolving class litigation. This section provides guidelines for the exercise of the Regional Attorney’s discretion regarding whether to request a fairness hearing.
1. Factors Favoring Fairness Hearing
The following factors, none of which is dispositive, may weigh in favor of requesting a fairness hearing:
- There are numerous prospective claimants or classes of claimants, and/or there has been difficulty locating claimants, and a fairness hearing would provide the parties with an additional opportunity to ensure that all prospective claimants and groups of claimants share in the relief obtained.
- The nature of the formula or formulas used to distribute the settlement fund is complicated or some other complexity of the settlement increases the likelihood of mistake or error and a fairness hearing might help resolve any such issues.
- There is reason to believe that there will be persons who wish to object to the settlement amount, method of distribution, or other aspects of the resolution.
- It is important that certain claimants or class members have an opportunity to have their day in court. This sometimes occurs where a case has been particularly adversarial or emotionally charged.
- When for reasons such as controversy associated with the litigation, it is important for EEOC and/or defendants to have the court’s stamp of approval given in open court.
2. Factors Weighing Against Fairness Hearing
The following factors, none of which is dispositive, may weigh against requesting a fairness hearing:
- EEOC has had contact with each class member and is certain that each is satisfied with the settlement.
- The class is small and easily identified.
- The relief calculations are simple and without controversy.
- A fairness hearing would unduly delay distribution of settlement funds.