Thomas v. Byrd et al

Filing 81

ORDER adopting 73 Recommendation with thanks. The 79 Joint motion to approve the settlement agreement is adopted as modified. Any cy pres distributed will abide further Order. The 74 Motion for attorney's fees and costs is mostly granted a nd partly denied: attorney's fees and expenses of $63,752.60 are awarded out of the common fund to class counsel. Dalton Jackson is awarded $15,000 as a service fee; each award is in addition to the pro rata share of the common fund balance. The parties must send a copy of this Order and Judgment to each class member with the check. Judgment will be entered. Joint report on settlement administration due by 12/1/2017. Signed by Judge D. P. Marshall Jr. on 6/29/2017. (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 adopts Magistrate Judge Volpe's recommendation. The

Court resolves the claims objections and late claim as follows:
• Darren Buckner's claim is excluded as untimely. It was received
several months late, and it involved events in 2005, which are
outside the scope of this lawsuit.
• Staten and Winfield are added to the class. They both filed timely
written objections saying that they were denied a first appearance
during the class period. The existing records, which are incomplete
and imperfect, don't disprove their claims.
• Brown, Jackson, and Webster are added to the class. The Court
equitably tolls the objection deadline for them, because they showed
up at the claims-exclusion hearing and objected in person. Webster
and Jackson said they were denied first appearances. Here again, the
patchy records don't disprove these claims. And in Brown's case,
the documents prove he qualifies for the class.

• Harvey is added to the class based on extraordinary circumstances.
He qualifies as a class member, but missed notice because he had
moved; he contacted class counsel on the last day of the claim
period, but had no way to file a claim by fax or email that day. He
took all the right steps as soon as he reasonably could. And he
appeared at the claims exclusion hearing. In these extraordinary
circumstances, the Court modifies its prior Order, NQ 61 at 2 & 6,
reopens the claims period for Harvey, and includes him in the
settlement class. This step will slightly reduce other class members'
pro rata share, but it's fair in the compelling circumstances presented.
2. The Court grants, as modified, the joint motion to approve the
settlement agreement, NQ 79.

With an exception previously noted, the

proposed settlement agreement, NQ 52-1, is approved as fair, reasonable, and
adequate. In re Flight Transportation Corp. Securities Litigation, 730 F.2d 1128,
1135 (8th Cir. 1984). The settlement fund pays several thousand dollars in
compensatory damages to each approved class member, class counsel's
litigation fees and expenses, and the class representative's service awards.
Only one class member opted out, and he did so to pursue a similar claim and
an unrelated claim in a lawsuit on his own. All material circumstances
considered, the settlement fund appropriately covers these amounts. The side
agreement, NQ 79-2, is likewise approved. (There is one agreement, not two.

Compare NQ 61 at 3.) The side agreement is not self dealing, it's a fair
resolution of the related-litigation issues unique to Dontel Thomas, Dalton
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Jackson, Alexander J. (A.J.) Culler and Lakevis King. (The final claims chart,

NQ 79-1, needs to be updated to show that Culler and King are in the class.)
The exception. The Court remains concerned about the proposed cy pres
distribution of any unclaimed funds. NQ 52-1at14; 61atif7. Any remaining
funds must be distributed equally among all class members - as long as it's
cost effective to do so. In re Bankamerica Corp. Securities Litigation, 775 F.3d
1060, 1064 (8th Cir. 2015). If distribution to class members is impractical, then
the Court must address the fit between the International Trust for the
Humanities and this case. No cy pres distribution may be made until this is
done. Ibid.
3. The Court grants the requested injunctive relief against the City of
Helena-West Helena and Phillips County. NQ 52-1 at 11. The Court enjoins
the City, the County, and all their officials, agents, officers, employees, as
follows:
The City and County shall comply with the law in providing
timely Arkansas Rule of Criminal Procedure 8 hearings. The City
and the County must comply with the law in conducting the
proper inquiry into individuals' ability to pay and in appointing
adequate representation where appropriate before jailing
individuals for failure to pay monies owed to the city or the
county. The City and County shall not continue to incarcerate
any individual who has not received a timely post-arrest hearing.
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The City and County shall not take by action to collect any unpaid
fines or costs due from Thomas v. Byrd settlement class members
as a result of the underlying arrest.
4. In addition to getting a member's share of the settlement fund,
Jackson and Thomas are entitled to a reasonable service fee for acting as class
representatives. Being the public face for the case cost them time and was a
burden in other ways, as documented in Jackson's hearing testimony and
Thomas' s post-hearing affidavit. All material things considered, though, the
amounts requested for their services are too much. The Court awards Jackson
$15,000 and Thomas $6,000.
5. Class counsel deserves to be paid for much good work. The billing
records are somew ha tjumbled, but they' re good enough in the circumstances.
Class counsel seeks a $75,000 fee, which is more than one-third of the total
common fund. It's also the maximum that counsel said, at the fairness
hearing, he would seek. Considering the size of the fund, the class, and the
work counsel already did (and was paid for) in the Covington case on this
same issue, $75,000 is a little too much. The sometimes-favored "percentage
of the fund" method doesn't fit this case well. Compare Petrovic v. Amoco Oil
Company, 200 F.3d 1140, 1157 (8th Cir. 1999), with Johnston v. Comerica

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Mortgage Corporation, 83 F.3d 241, 244-47 (8th Cir. 1996). The lodestar method
best captures the reasonable compensation, in light of all the circumstances,
for class counsel's time and effort. 42U.S.C.§1988(b); Blanchard v. Bergeron,
489 U.S. 87, 93 (1989).
Class counsel's requested hourly rates are too high. The Court recently
approved certain rates for the same kind of work in Covington, and will use
them here:

Luther Sutter-$300;

Lucien Gillham-$250;

and Tona

Demers-$225. Using these rates, the time actually spent would produce an
even higher fee than counsel has requested. But the Court reduces the
amount of time awarded-without addressing specific problems in the
billing- because of the groundwork laid in Covington. Hensley v. Eckerhart,
461 U.S. 424, 433-34 (1983); United Healthcare Corporation v. American Trade

Insurance Company LTD, 88 F.3d 563, 574n.9 (8th Cir. 1996). It was reasonable
for Luther Sutter to spend 150 hours working on the case, for Tona Demers
to spend 25 hours, and for Lucien Gillham to spend 25 hours. The Court has
reduced the time total by 82 hours. The Court doesn't doubt these hours were
spent, but they aren't reasonably billed against the common fund in the
circumstances. The total fee award is $56,875.

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The Court approves the unopposed request for expenses of $6,877.60.
These were paid out of pocket, and were reasonable expenses for this case.
Most of the expenses were for an experienced paralegal. The tank of airplane
fuel is out of the ordinary, but it's a wash with the saved travel time. All said,
the award to class counsel for fees and expenses is $63,752.60. Subtracting
this and the class representative fees, the settlement fund has $125,247.40
remaining to divide between the 31 approved class members.

*

* *

Magistrate Judge Volpe's recommendation, NQ 73, is adopted, with
thanks. The joint motion to approve the settlement agreement, NQ 79, is
granted as modified. Any cy pres distribution will abide further Order. The
motion for attorney's fees and costs, NQ 74, is mostly granted and partly
denied: attorney's fees and expenses of $63,752.60 are awarded out of the
common fund to class counsel. Dalton Jackson is awarded $15,000 as a
service fee; Donte! Thomas is awarded $6,000 as a service fee; each award is
in addition to a pro rata share of the common fund balance. If the Court has
done the math correctly, each class member will receive $4,040.24. If the
Court has made a math error, the parties may adjust the distribution amount

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accordingly and explain this to class members in a cover letter. The parties
must send a copy of this Order and the Judgment to each class member with
the check.

Judgment will be entered.

Joint report on settlement

administration due by 1December2017.
So Ordered.

{/

D.P. Marshall Jr.
United States District Judge
..t4 &v~e ~o 17

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