Acks et al v. City and County of Denver et al

Filing 111

ORDER Granting 103 Stipulated Motion for Approval of Class Action Settlement. Plaintiffs' counsel is ordered to distribute the proceeds of the class settlement to the unnamed class members as described herein, by Judge Richard P. Matsch on 10/13/2011.(rpmcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 09-cv-02197-RPM
(Consolidated with 10-cv-00629-RPM)
NATHAN ACKS;
TIFFANY BRAY;
CHASE GOLL;
ELI HARDY;
AMINAH MASUD;
IAN MORRISON;
BLAKE PENDERGRASS;
KIM SIDWELL; and
JACOB STERNBERG
Plaintiffs,
v.
CITY AND COUNTY OF DENVER;
DEBORAH DILLEY, a Commander with the Denver Police Department, in her
individual capacity;
ANTHONY FOSTER, a Sergeant with the Denver Police Department, in his
individual capacity; and
WILLIAM LOVINGIER, Undersheriff with the Denver Police Department, in his
individual capacity;
Defendants.
______________________________________________________________________
ORDER GRANTING STIPULATED MOTION FOR
APPROVAL OF CLASS ACTION SETTLEMENT
______________________________________________________________________
This matter is before the Court on the Parties’ Stipulated Motion for Approval of
Class Action Settlement (Doc. #103) of Plaintiffs’ Third Claim for Relief as set forth in
Plaintiffs’ First Amended Complaint (Doc. #47).
Plaintiffs’ Third Claim for Relief alleges that 93 individuals who were arrested
solely for municipal code violations on August 25, 2008, during the Democratic National
Convention (“DNC”), were denied access to counsel while they were held at an arrest

processing site, in violation of C.R.S. § 16-3-404. Upon the Motion of the 8 named
class representatives -- Plaintiffs Nathan Acks, Tiffany Bray, Chase Goll, Eli Hardy,
Aminah Masud, Ian Morrison, Blake Pendergrass, and Kim Sidwell -- Plaintiffs’ Third
Claim for Relief was subsequently certified to proceed as a class action on behalf of 84
unnamed individuals, as well as Plaintiff Jacob Sternberg, whose individual action was
consolidated with the action brought by Acks, et al.1 On May 9, 2011, this Court issued
its Order granting summary judgment for Defendants and dismissing Plaintiffs’ Third
Claim for Relief against Undersheriff Lovingier.
On June 16, 2011, the Parties reached a settlement in principle on all of
Plaintiffs’ claims, including a settlement of the class’ dismissed third claim for relief.
With respect to the settlement of their class action claim, Plaintiffs agreed not to appeal
this Court’s Order Dismissing [Plaintiffs’] Third Claim for Relief. As consideration for
that agreement, Defendants agreed to both monetary and non-monetary relief.
Specifically, for monetary relief, each of the 84 absent class members will receive $20.
Additionally, as non-monetary relief, Defendants have agreed that: “If a temporary
processing facility is to be used by DSD, that facility and its physical capabilities and
available DSD resources and personnel will be analyzed to determine if attorney visits
are feasible at the facility.”
On July 25, 2011, the Parties filed their Stipulated Motion for Approval of Class
Action Settlement. At the same time, the Parties filed a Notice of Proposed Settlement
of Class Action and Hearing to be distributed to the unnamed class members, which
was approved by the Court on July 27, 2011. As certified by Plaintiffs’ Counsel, that
written notice was mailed to all unnamed Plaintiffs for whom addresses had been
1

Mr. Sternberg voluntarily dismissed his Complaint against Defendants on July 29, 2011.
2

obtained. Additionally, notice was provided to the class through a posting of the Notice
of Proposed Settlement on the website of the American Civil Liberties Union Foundation
of Colorado (“ACLU”).

After issuing such notice, no objections to the proposed

settlement were received by Plaintiffs, Defendants, or this Court.
On October 12, 2011, this Court conducted a fairness hearing pursuant to
Fed.R.Civ.P. 23(e) regarding the Parties’ Stipulated Motion for Approval of Class Action
Settlement.

Fed.R.Civ.P. 23(e) provides that “the claims, issues, or defenses of a

certified class may be settled, voluntarily dismissed, or compromised only with the
Court’s approval.” “[T]he Court may approve [a class action settlement] only after a
hearing and on finding that it is fair, reasonable, and adequate.” (Rule 23(e)(2).) In
determining the fairness of a class settlement, the Tenth Circuit directs District Courts to
consider the following four factors:
(1)

whether the proposed settlement was fairly and honestly negotiated;

(2)

whether serious questions of law and fact exist, placing the ultimate
outcome of the litigation in doubt;

(3)

whether the value of an immediate recovery outweighs the mere
possibility of future relief after protracted and expensive litigation; and

(4)

the judgment of the parties that the settlement is fair and reasonable.

(Rutter & Wilbanks Corp. v. Shell Oil Co., 314 F.3d 1180, 1188 (10th Cir. 2002).)
For the reasons described in the Parties’ Stipulated Motion for Approval of Class
Action Settlement, and those articulated by the Parties and this Court at the October 12,
2011, hearing, the Court finds that the proposed settlement is fair, reasonable, and
adequate and should be approved. In particular, factors 2 and 4 support a finding that
the proposed settlement was fair, reasonable, and adequate.
3

With respect to the

second factor, the Court finds that there are serious questions of law and fact, which
place the ultimate outcome of this litigation in doubt as it pertains to Plaintiffs’ Third
Claim for Relief. After all, this Court dismissed Plaintiffs’ Third Claim for Relief and
Plaintiffs’ Counsel acknowledged that they were not likely to obtain the reversal of that
Order on appeal. Additionally, the fourth factor, that in the judgment of the Parties the
settlement is fair and reasonable, also favors approval of this settlement. In this case,
all of the Parties and their counsel agreed that the settlement was fair and reasonable.
Additionally, no objections were received from the unnamed class members to the
approval of this settlement.
During the hearing, the Parties and the Court agreed to a procedure for
distributing the class action settlement proceeds to the unnamed Plaintiffs. Specifically,
Plaintiffs’ Counsel agreed to send a check for $20 to each individual for whom an
address has been obtained. With respect to individuals for whom a current address has
not been discovered, notice of this Court’s approval of the settlement and the unnamed
class members entitled to a $20 distribution will be placed on the ACLU website for one
year from the date of this Order. After one year from the date of this Order has expired,
any unclaimed proceeds of the class settlement will be distributed equally among the
class representatives.
Consequently, this Court ORDERS as follows:
1.

This Court GRANTS the Parties’ Stipulated Motion for Approval of Class
Action Settlement; and

2.

Plaintiffs’ Counsel is ordered to distribute the proceeds of the class
settlement to the unnamed class members as described herein.

4

Dated this 13th day of October, 2011.
BY THE COURT:
s/Richard P. Matsch
________________________________
The Honorable Richard P. Matsch

5