Thomas v. Byrd et al

Filing 61

ORDER directing the parties by 3/17/2017 to mail a copy of this Order to all potential class members who made claims (approved or rejected) or whose mailing address is otherwise known. The Court adopts the following schedule contained within this Ord er. Joint final claims report and Joint report on side agreements due 3/31/2017. Claims-exclusion hearing in Helena, federal courthouse, Courtroom #314 at 9:00 a.m. on 4/11/2017 before Magistrate Judge Volpe. Renewed joint motion for final settlement approval due 4/19/2017. Signed by Judge D. P. Marshall Jr. on 3/10/2017. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
EASTERN DIVISION
DONTEL THOMAS and
DALTON JACKSON, on
behalf of Themselves and all Others
Similarly Situated

v.

PLAINTIFFS

No. 2:15-cv-95-DPM

NEAL BYRD, in his Official Capacity;
JOHN THOMAS, individually and in his
official capacity as an employee of City of
Helena-West Helena; and SENTENCING
OPTIONS SPECIALISTS, INC.

DEFENDANTS

ORDER
1. The Court held a fairness hearing on the proposed class settlement
agreement in Helena on 6 March 2017. The Court confirmed its earlier
tentative conclusion that the proposal is within the range of fair, reasonable,
and adequate ways to resolve this case. There are some loose ends to tie up,
in the next month or so, before the Court can consider giving final approval.
2. All required notices were given. Potential class members received
adequate and proper notice of the proposed deal. They had a fair opportunity
to make a claim for a share of the settlement fund. The claims process is
proceeding well, with thoroughness and the right spirit: the point is to
identify all those who were wronged and should get some money. No

potential class member objected in writing to the terms of the proposed
settlement by the 31 January 2017 deadline. No potential class member
objected at the fairness hearing, or has otherwise contacted the parties or the
Court with an objection. The claims period has closed, subject to resolution
of disputed and timely claims already made. The time for objections to the
proposed settlement has passed.
3. The parties must file a joint final claims report by 31 March 2017.
This report must be comprehensive. It must include an exemplar of each of
the various letters that went out to claimants. It must include a final
spreadsheet listing all claims made, approved, and rejected. It must also note
whether any rejected claimant has appealed or sought reconsideration. The
spreadsheet should list claimants anonymously, by number.

A key

document, listing claimants by number and name, must be filed under seal by
31 March 2017 too.
4. At the fairness hearing, class counsel requested named-plaintiff
incentive awards of $25,000 for Dalton Jackson and $10,000 for Dontel
Thomas. Jackson attended the hearing and testified. Thomas couldn't attend.
Thomas must therefore file a sworn statement in support of his requested

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award by 31 March 2017. The Court will consider and decide about these
proposed awards as part of the final-approval process.
5.

Two potential side agreements were discussed at the fairness

hearing. The first would allow the three class members who opted out of the
class to opt in, without waiving non-Rule 8 claims against the defendants in
other law suits. Second, class counsel has agreed to drop a pending Circuit
Court suit against the Municipal League and the Arkansas Public Entities Risk
Management Association, if the Court gives final approval to the settlement.
File a joint report attaching the side agreements by 31March2017. FED. R.
Crv. P. 23(e)(3).
6. How is the money going to be divided? The parties' proposed
settlement agreement provides that the $210,000 will cover some incentive
award to Jackson and to Thomas (for taking the public lead in filing this case),
a reasonable attorney's fee to class counsel (to be set later by the Court), and
the balance will be divided among the class members who made timely and
valid claims. NQ 52-1, §IV, D, if 3. At the fairness hearing, class counsel said
his requested fee would not be more than $75,000. The Court and the lawyers
also discussed how the class members' share should be split-what would be

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the fairest, the most reasonable, and the most efficient method? Two options
were discussed: an equal division among all those people with a valid
approved claim (pro rata); or an unequal division based on the number of
days each approved claimant spent in jail without having had a firstappearance hearing before a judge (per diem).
For four reasons, the Court has concluded that an equal division is the
best method.

First, sharing the settlement money equally is what the

proposed settlement agreement implies would be done. There's a reasonable
expectation of a pro rata division. Second, figuring out a per diem award for
each person would be complicated and expensive-it would reduce the pot
of money available for payment to the approved claimants. The jail and court
records are incomplete and cloudy. Lawyers, legal assistants, claimants, and
the Court would have to go claim by claim to decide on each person's share.
We did this in the Covington v. Byrd case; and it was a long, winding road.
Greater precision could be achieved in this case, but it would end up taking
money out of people's pockets. Third, the Court is concerned about fair notice
to everyone. The original notices were silent about a per diem distribution, so
that would be adding something new at the last minute. Fourth, the maxim

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is" equity loves equality." There's a basic fairness in dividing the pot equally
among all those who asked for a share and showed that they deserved one.
No doubt the folks who stayed in jail longer without a bond hearing did
suffer more.

An equal distribution also recognizes, though, that the

constitutional injury occurs when a person has to stay in jail even one day too
long. All things considered, a pro rata division isn't perfect, but it's good and
fair.
7. The Court is concerned about the potential cy pres distribution of any
unclaimed money to a charitable entity. As long as it's cost effective to do so,
any unclaimed settlement funds should eventually be distributed equally
among all those who made approved claims. In re Bankamerica Corporation

Securities Litigation, 775 F.3d 1060, 1064 (8th Cir. 2015); PRINCIPLES OF
AGGREGATE LITIGATION§ 3.07 (2010). If this is impracticable, then the Court
must address the fit between the nominated charity (the International Trust
for the Humanities, NQ 52-1, § X,

if 1) and this case. Any recipient charity

must be one whose "interests reasonably approximate those being pursued
by the class." 775 F.3d at 1064.

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8. On Tuesday, 11 April 2017 at 9:00 a.m. in Helena at the federal
courthouse, in courtroom #314, Magistrate Judge Joe J. Volpe will hold a
hearing. He will consider the joint final claims report. Any potential class
member whose timely written claim was rejected, and who timely asked for
reconsideration in writing, may appear and be heard.

The Court also

authorizes Judge Volpe to equitably toll the deadline for objecting to
exclusion from the settlement proceeds, Ng 52-1, § VIII,

if 4, for good cause.

Any rejected claimant who made a timely written claim, appears at the April
11th hearing, and shows good cause for making a belated challenge to
exclusion should also be heard. The hearing does not, however, reopen the
claim period. That period lasted approximately three months, which was
plenty of time. Judge Volpe may not receive or consider previously unmade
claims - that would be unfair to all the people who followed the Courtapproved procedure, responded to the adequate notices, and made timely
claims. Instead, the hearing is solely to consider the evidence (existing or
new) about any rejected claimant who appears and seeks reconsideration.
The parties should come to the hearing prepared with all available records
and information about all rejected claims. Judge Volpe may enter any Order

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needed between now and the hearing to accomplish the hearing's objective.
9. By 17 March 2017, the parties must mail a copy of this Order to all
potential class members who made claims (approved or rejected) or whose
mailing address is otherwise known.
10. The Court adopts the following schedule:
• Order mailed to claimants

17 March 2017

• Thomas affidavit filed

31March2017

• Joint final claims report filed

31 March 2017

• Joint report on side agreements filed

31 March 2017

• Joint pre-hearing information sheet,
listing exhibits and witnesses, filed

6 April 2017

• Claims-exclusion hearing in Helena,
federal courthouse, courtroom
#314 at 9:00 a.m.

11April2017

• Attorney's fee petition filed

14 April 2017

• Renewed joint motion for final
settlement approval filed

19 April 2017

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So Ordered.

D.P. Marshall Jr.
United States District Judge

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