Davis et al v. Abercrombie et al
Filing
875
AMENDED ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT. Signed by JUDGE LESLIE E. KOBAYASHI on 05/22/2017. - - This Court HEREBY GRANTS final approval of the settlement and ORDERS the parties to implement the terms of the settlement. Pursuant to the terms of the settlement, all of the remaining claims in this case are HEREBY DISMISSED WITH PREJUDICE, with all parties to bear their own respective attorneys' fees and costs of suit, except as expressly provided in this Order.There being no remaining claims in this case, the Court DIRECTS the Clerk's Office to close this case immediately. (eps, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
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Plaintiffs,
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vs.
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NEIL ABERCROMBIE, in his
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official capacity as the
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Governor of the State of
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Hawaii; Director of Public
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Safety of the State of
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Hawai`i NOLAN ESPINDA;
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CORECIVIC,
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Defendants.
_____________________________ )
RICHARD KAPELA DAVIS, MICHAEL
HUGHES, DAMIEN KAAHU, ROBERT
A. HOLBRON, JAMES KANE, III,
ELLINGTON KEAWE, KALAI POAHA,
TYRONE KAWAELANILUA`OLE
NA`OKI GALDONES,
CIVIL NO. 11-00144 LEK-BMK
AMENDED ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT
On February 24, 2016, Ted Sakai, in his official
capacity as Director of the Hawai`i Department of Public Safety,
and Corrections Corporation of America (“CCA”) filed their Motion
for Preliminary Approval of Class Settlement Agreement Reached by
Counsel on May 14, 2015 and Request to Set Fairness Hearing
(“Preliminary Approval Motion”).1
[Dkt. no. 778.]
This Court
granted the Preliminary Approval Motion at a hearing on August 8,
1
On May 16, 2017, this Court approved the parties’
stipulation to replace CCA with CoreCivic and Ted Sakai with
Director of Public Safety of the State of Hawai`i Nolan Espinda.
[Dkt. no. 873.] This Court will refer to CoreCivic and
Director Espinda collectively as “Defendants.”
2016.
[Dkt. no. 800 (Minutes).]
On February 6, 2017, this
matter came before the Court for a final fairness hearing.
For
the reasons set forth below, and after due consideration of the
evidence and arguments presented by the parties and the record in
this case, the Court CONCLUDES that good cause exists to GRANT
final approval of the settlement in this action pursuant to Fed.
R. Civ. P. 23(e).
BACKGROUND
I.
Procedural History
Plaintiffs Richard Kapela Davis, Michael Hughes,
Damien Kaahu, Robert A. Holbron, James Kane, III,
Ellington Keawe, and Kalai Poaha filed the Second Amended
Complaint for Damages and for Classwide Declaratory and
Injunctive Relief (“Second Amended Complaint”) on August 22,
2012.
[Dkt. no. 145.]
Plaintiff Tyrone Galdones also filed his
Supplemental Complaint for Damages and for Classwide Declaratory
and Injunctive Relief (“Supplemental Complaint”) on August 22,
2012.
[Dkt. no. 146.]
Plaintiffs are all Hawai`i residents who were convicted
and sentenced for committing criminal violations of Hawai`i law.
The Second Amended Complaint alleges that, during all periods
relevant to the instant case, they were incarcerated at either
Saguaro Correctional Center (“Saguaro”) or Red Rock Correctional
2
Center (“Red Rock”).2
Each Plaintiff is of Native Hawaiian
ancestry and is a practitioner of the Native Hawaiian religion.
Saguaro and Red Rock are private prisons in Arizona, operated by
CoreCivic.
The State of Hawai`i houses inmates at CoreCivic’s
facilities pursuant to various contracts.
[Second Amended
Complaint at ¶¶ 7-10, 12(c), 17-18; Supplemental Complaint at
¶¶ 7-10, 12(c), 17-18.]
In the instant case, Plaintiffs allege
that Defendants have prohibited them from exercising their
constitutional and statutory right to practice their faith.
The Second Amended Complaint alleges the following
claims:
-Violation of Plaintiffs’ right to the free exercise of their
religion pursuant to the First and Fourteenth Amendments of
the United States Constitution as to daily worship practices
(“Count I”), the observance of Makahiki3 (“Count II”),
access to sacred items (“Count III”), access to sacred space
(“Count IV”), and access to a spiritual advisor (“Count V”);
-Violation of Plaintiffs’ equal protection rights pursuant to the
Fourteenth Amendment of the United States Constitution as to
daily worship practices (“Count VI”), the observance of
2
As of May 30, 2013, the Hawai`i inmates who were assigned
to Red Rock were permanently transferred to Saguaro. [Defs.’
Concise Statement of Facts in Supp. of Motion for Summary
Judgment, filed 7/31/13 (dkt. no. 361-2), Decl. of Warden Thomas
at ¶ 5; id., Decl. of Warden Stolc at ¶ 5.]
3
Plaintiffs allege that “[t]he Makahiki season is signaled
by the rising of the Makali`i (Pleiades) Constellation in
October-November of each year. The Makahiki season ends by the
setting of Makali`i (Pleiades) Constellation in February-March of
each year.” [Second Amended Complaint at ¶ 47.] There are
ceremonies, including customary and traditional activities,
marking the beginning and the end of the Makahiki season. [Id.
at ¶ 48.]
3
Makahiki (“Count VII”), access to sacred items
(“Count VIII”), access to sacred space (“Count IX”), and
access to a spiritual advisor (“Count X”);
-Violation of Plaintiffs’ right to free exercise of their
religion pursuant to Article I, § 4 of the Hawai`i State
Constitution as to daily worship practices (“Count XI”), the
observance of Makahiki (“Count XII”), access to sacred items
(“Count XIII”), access to sacred space (“Count XIV”), and
access to a spiritual advisor (“Count XV”);
-Violation of Plaintiffs’ equal protection rights pursuant to
Article I, § 5 of the Hawai`i State Constitution as to daily
worship practices (“Count XVI”), the observance of Makahiki
(“Count XVII”), access to sacred items (“Count XVIII”),
access to sacred space (“Count XIX”), and access to a
spiritual advisor (“Count XX”);
-Violation of Plaintiffs’ rights relating to native Hawaiian
customary and traditional practices pursuant to Article XII,
§ 7 of the Hawai`i State Constitution and Haw. Rev. Stat.
§ 1-1 as to the observance of Makahiki (“Count XXI”);
-Violation of the Religious Land Use and Institutionalized
Persons Act, 42 U.S.C. § 2000cc, et seq. (“RLUIPA”), as to
daily worship practices (“Count XXII”), the observance of
Makahiki (“Count XXIII”), access to sacred items
(“Count XXIV”), access to sacred space (“Count XXV”), and
access to a spiritual advisor (“Count XXVI”).
The Supplemental Complaint states that Plaintiff
Galdones “hereby joins in and asserts COUNTS I through XXVI of
the Amended Complaint[4] on his own behalf and on behalf of all
those similarly situated.”
[Supplemental Complaint at ¶ 124.]
The Supplemental Complaint also asserted an additional claim
alleging that Defendants retaliated against him, in violation of
4
Plaintiffs’ Amended Complaint for Damages and for
Classwide Declaratory and Injunctive Relief, [filed 11/14/11
(dkt. no. 42),] alleged the same twenty-six claims that
Plaintiffs allege in the Second Amended Complaint.
4
both federal law and state law.
[Id. at ¶¶ 125-37.]
This Court
dismissed Galdones’s retaliation claim under federal law for
failure to exhaust his administrative remedies.
[Order Granting
in Part and Denying in Part Defendants’ Motion to Dismiss for
Failure to Exhaust, filed 4/11/13 (dkt. no. 286) (“4/11/13
Order”), at 28-29.5]
Plaintiff Galdones’s state law retaliation
claim and the claims that are asserted in the Second Amended
Complaint remained.
On September 30, 2014, this Court issued its Order
Granting in Part and Denying in Part Plaintiffs’ Amended Second
Motion for Class Certification (“9/30/14 Certification Order”).
[Dkt. no. 644.6]
This Court certified:
-“a class, seeking prospective declaratory and injunctive relief,
as to Plaintiffs’ remaining claims regarding daily, outdoor,
group worship and the remaining claims regarding access to
sacred items (‘the Prospective Relief Class’)”; 9/30/14
Certification Order, 2014 WL 4956454, at *28;
-“a subclass, seeking prospective declaratory and injunctive
relief, with regard to: 1) the same claims described supra
as to the Prospective Relief Class; and 2) the remaining
state and federal claims regarding lack of access to
communal sacred items in protective custody (‘the
Prospective Relief Subclass’)”; id. at *29;7
5
The 4/11/13 Order is available at 2013 WL 1568425.
6
The 9/30/14 Certification Order is also available at 2014
WL 4956454.
7
The 9/30/14 Certification Order, however, mistakenly
refers to the Protective Custody Prospective Relief Subclass as
the “Prospective Relief Subclass.” 2014 WL 4956454, at *29.
5
-“a class, seeking nominal damages and other retrospective
relief, as to Counts I through X, and XXII through XXVI
(‘the Damages Class’)”; id.;
-“a subclass, seeking nominal damages and other retrospective
relief, as to Counts I, II, III, V, VI, VII, VIII, X, XXII,
XXIII, XXIV, and XXVI (‘the SHIP Damages Subclass’)”;8 id.;
and
-“a subclass, seeking nominal damages and other retrospective
relief, as to Counts I through X, and XXII through XXVI
(‘the Protective Custody Damages Subclass’)”; id.
A.
Remaining Claims
By the time of trial, which was scheduled for June 5,
2015, the following claims remained:
1.
Class Claims
-Counts I (federal free exercise), VI (federal equal protection),
XI (state free exercise), XVI (state equal protection), and
XXII (RLUIPA) regarding daily, outdoor, group worship
by the Prospective Relief Class and the Protective
Custody Prospective Relief Subclass;
-Counts III (federal free exercise), XIII (state free exercise),
and XXIV (RLUIPA) regarding lack of daily access to personal
amulets and `ohe hano ihu (bamboo nose flute) by the
Prospective Relief Class and the Protective Custody
Prospective Relief Subclass;
-Counts VIII (federal equal protection) and XVIII (state equal
protection) regarding lack of daily access to personal
amulets, `ohe hano ihu, coconut oil, and malo, kihei, and
pau (native garments) by the Prospective Relief Class and
the Protective Custody Prospective Relief Subclass;
-Counts III, VIII, XIII, XVIII, and XXIV regarding lack of access
to communal sacred items in protective custody by the
Protective Custody Prospective Relief Subclass;
8
“SHIP” refers to Saguaro’s Special Housing Incentive
Program. 9/30/14 Certification Order, 2014 WL 4956454, at *29.
6
-Counts I through V (federal free exercise), VI through X
(federal equal protection), and XXII through XXVI (RLUIPA) by the
Damages Class and the Protective Custody Damages Subclass; and
-Counts I, II, III, V, VI, VII, VIII, X, XXII, XXIII, XXIV, and
XXVI by the SHIP Damages Subclass.
2.
Individual Claims
The individual Plaintiffs had the following claims, in
addition to the claims they were pursuing as class
representatives.
-Plaintiff Galdones’s state law retaliation claim, set forth in
his Supplemental Complaint.
-Plaintiffs Kane and Keawe’s federal claims for compensatory
damages, nominal damages, and retrospective equitable relief
based on alleged violations that occurred while they were in
protective custody at Red Rock. See Order Granting in Part
and Denying in Part Defs.’ Motion for Summary Judgment Re:
Sovereign Immunity/Damages, filed 7/31/14 (dkt. no. 596)
(“7/31/14 Summary Judgment Order”), at 37, available at 2014
WL 3809499, at *11 (ruling that Plaintiffs’ remaining claims
under 42 U.S.C. § 1983 and RLUIPA claims for damages are
limited to compensatory and nominal damages). These were
the claims regarding: the observance of Makahiki (Counts II,
VII, and XXII); access to sacred items (Counts III, VIII,
and XXIV); and access to a spiritual advisor (Counts V, X,
and XXVI).
-Plaintiffs Kane and Keawe’s claims for prospective equitable
relief regarding the observance of Makahiki in protective
custody at Saguaro (Counts II, VII, XII, XVII, and XXII).
-Plaintiff Davis’s federal claims for compensatory damages,
nominal damages, and retrospective equitable relief based on
the exclusion from certain Makahiki ceremonies (Counts II,
VII, and XXII) on the ground that he allegedly had
insufficient attendance at the Native Hawaiian religion
classes that were a prerequisite to participation.
-Plaintiff Holbron’s claims for prospective equitable relief
regarding the practice of the Native Hawaiian religion in
administrative segregation and SHIP. These are: the
observance of Makahiki (Counts II, VII, XII, XVII, and
7
XXII); access to sacred items (Counts III, VIII, XIII,
XVIII, and XXIV); and access to a spiritual advisor
(Counts V, X, XV, XX, and XXVI). However, his claims were
subject to him establishing that there is a reasonable
expectation that he may be placed in administrative
segregation and/or SHIP in the future. See Amended Order
Granting in Part and Denying in Part Defendants’ Motion for
Summary Judgment; Granting in Part and Denying in Part
Plaintiff Robert Holbron’s Counter-motion for Summary
Judgment on His Claims; and Granting in Part and Denying in
Part Plaintiffs’ Motion for Partial Summary Judgment Against
Defendants as to Their Claims under the Religious Land Use
and Institutionalized Persons Act, filed June 13, 2014
(“6/13/14 Summary Judgment Order”) (dkt. no. 544), available
at 2014 WL 2716856, at *5.
B.
Settlement
On May 14, 2015, the magistrate judge held a settlement
conference.
The case settled and the terms of the settlement
were placed on the record (“Settlement on the Record”).
[Minutes, filed 5/14/15 (dkt. no. 745).]
The magistrate judge
stated:
I understand we have now reached an agreement.
This, of course, will be subject to the consent of
members of the class, the plaintiffs. We’ve
discussed this at length during our settlement
conference this afternoon, but perhaps this would
be a good opportunity to put the material terms of
the agreement on the record.
I know that some work will be required to
finalize a number of the details, but we should
put the parameters of this on the record at this
time, so that we can be set in place, and then, of
course, call off the dogs on our trial prep, and
trial date, and the like.
[Trans. of 5/14/15 proceedings (“5/14/15 Trans.”), filed 6/5/15
(dkt. no. 751), at 3-4.]
After counsel placed the essential
8
terms of the agreement on the record, the magistrate judge
stated:
This is an agreement that you all have reached,
and I know the defendants are fully on board with
this. All we need to do is to get the class
representatives to agree, and then of course
notice out to the class.
So at this point, I believe we have enough of
an agreement to stop the process of preparing for
trial and that’s one of the incentives, of course,
to, you know, reach this agreement at this
time. . . .
[Id. at 15.]
II.
The Settlement
Defendants describe the terms of the settlement reached
on May 14, 2015 as follows:
Religious Items:
-
Registered Native Hawaiian practitioners in
[the general population (“GC”)] and
[protective custody (“PC”)] may: (1) retain
in-cell one each of lava lava (pau), kīhei,
and malo in a Ziploc bag with the inmate’s
in-cell property; (2) retain previously
authorized pa`akai (sea salt), written
religious materials (chants/ genealogies),
and ti leaf; (3) check out a `ohe hano ihu
(bamboo nose flute) for religious use;
(4) have access to communal religious items
stored in the chapel during group
programming; (5) purchase a small amount of
coconut oil for in-cell religious use only;
and (6) purchase one approved amulet.
-
Kīhei, malo and lava to be made by [Saguaro]
Native Hawaiian practitioners in the GP
religious programming classes. Parties to
work together to identify a vendor source for
materials, [Saguaro] to procure source
9
materials, inmates paying their pro rata
share for fabric cost through their inmate
accounts (donations restricted).
-
Bamboo nose flute loaner system to be
implemented for the six flutes available in
the [Saguaro] chapel for week long checkouts,
subject to individualized safety/security
restriction. [Saguaro] to purchase six
additional flutes for the loaner system.
-
Counsel
approve
shapes,
inmates
amulets
-
[Saguaro] to source coconut oil in bulk from
a Hawaiian company, inmates paying their pro
rata share, with process to be put into place
for frequency of refills.
-
Registered Native Hawaiian practitioners in
administrative/ disciplinary segregation
custody (including SHIP I/II/III), may
retain: (1) one approved amulet; (2) pa`akai
(sea salt); (3) written religious materials
(chants/genealogies); and (4) either a lava
lava, kīhei, or malo (Parties to work
together to elect one standard item/no
individual inmate election. No possession of
coconut oil or bamboo nose flutes for
safety/security reasons.
-
[Saguaro] agrees to publish in-cell retention
list in [Saguaro] chapel and add list to
[Saguaro] Policy 14-6.
-
While donations are restricted, replacement
of communal use religious items may be
requested and [Saguaro] agrees to work with
inmate population to identify a source/vendor
for replacement.
-
[Saguaro] agrees to publish a communal items
list in [Saguaro] chapel and add list to
[Saguaro] Policy 14-6.
to work together to identify and
vendor source for amulets, in five
subject to [Saguaro] approval,
paying their pro rata cost for
through their inmate accounts.
10
Religious Programming:
-
Registered Native Hawaiian practitioners in
GP: (1) permitted outdoor worship classes six
times a year for 1.5 hours each time during
regularly scheduled ritual class; and
(2) permitted to participate in two
solstice/equinox and two Makahiki
celebrations each year.
-
Registered Native Hawaiian practitioners in
PC: (1) permitted once a week group gathering
for 1.5 hours in a secure location to be
determined by the facility; (2) provided
access to limited number of communal items
stored in the chapel; and (3) permitted
limited, two Makahiki celebrations each year
within a few days of the GP Makahiki
celebrations, provided the same food
offerings permitted for GP.
-
Upon request and subject to availability,
registered Native Hawaiian practitioners in
segregation/SHIP I may request to meet with a
spiritual advisor (if available) for
Makahiki, the spiritual advisor may meet with
the inmate through the cell door for
approximately 15-20 minutes for nondisruptive ministry/prayers/chants.
Ceremonial food offerings administered by the
spiritual advisor through the cell door food
slot and, by written advance request, inmate
may receive (in-cell) the meal tray provided
to GP inmates participating in Makahiki.
-
Upon request and subject to availability,
registered Native Hawaiian practitioner
inmates in SHIP II/III may request to meet
with a spiritual advisor (if available) for
Makahiki, the spiritual advisor may meet with
the inmates in the dayroom of the SHIP II/III
pods (separate gatherings) for non-disruptive
chants/prayers/administering of ceremonial
food offerings. By written advance request,
inmates may receive (in-cell) the meal tray
provided to GP inmates participating in
Makahiki.
11
-
Participation in programming subject to
restrictions for safety/security/operational
risks based on an individualized assessment
of an inmate’s history/behavior.
Waiver of Claims/Damages and Costs Payment:
-
The individual Plaintiffs and the Class waive
and release all claims, including all claims
for damages.
-
Defendant [CoreCivic] agrees to pay a total
amount of $70,000.00 to the Native Hawaiian
Legal Corporation for costs incurred.
Parties to incur their own attorneys’ fees.
Other Provisions:
-
Within sixty (60) days after the Court has
approved the final Settlement Agreement, the
agreed upon religious programming and items
will be made available for [Saguaro] inmates
registered as Native Hawaiian practitioners.
-
If an inmate changes his religion from Native
Hawaiian to another religion, he will no
longer be allowed to possess the in-cell
items, use any communal religious items, or
participate in Native Hawaiian programming.
-
The Parties agree there will be no consent
decree or court-ordered monitoring, and the
Court will not retain jurisdiction over
enforcement of this Agreement.
[Mem. in Supp. of Preliminary Approval Motion at 12-15 (footnote
and citations omitted).]
III. Approval Process
The magistrate judge held two status conferences to
address issues related to the settlement during May 2015.
nos. 747, 749.]
[Dkt.
On October 16, 2015, the magistrate judge held a
12
further settlement conference.
He reiterated that the case had
settled and stated that the parties were working on the
settlement documents.
[Minutes, filed 10/16/15 (dkt. no. 765);
Entering Order, filed 10/21/15 (dkt. no. 766) (clarifying
deadlines in dkt. no. 765).]
The parties, however, had
difficulty finalizing the settlement documents, and the
magistrate judge held further status conferences to address
issues related to the settlement.
[Dkt. nos. 769, 772, 776.]
As previously noted, Defendants filed their Preliminary
Approval Motion on February 24, 2016.
Plaintiffs filed a
memorandum in opposition on April 18, 2016, and Defendants filed
a reply on April 25, 2016.
[Dkt. nos. 789, 790.]
This Court
granted preliminary approval on August 8, 2016.
On September 7, 2016, this Court issued the Order
Approving Notice of Proposed Class Action Settlement and Setting
Final Fairness Hearing (“9/7/16 Notice Order”).
[Dkt. no. 806.]
The 9/7/16 Notice Order set the final fairness hearing for
February 6, 2017 and approved the class notice attached to the
9/7/16 Notice Order as Exhibit A.
This Court ordered the parties
to commence distribution of the approved notice within ten days
of the filing of the 9/7/16 Notice Order and issued deadlines for
the submission of objections from class members and the filing of
the parties’ briefs regarding whether class members could opt-out
of the settlement.
13
On September 26, 2016, Defendants filed a notice
attesting to their compliance with the notice provisions of the
9/7/16 Notice Order.
[Dkt. no. 818.]
On December 8, 2016, and
December 15, 2016, Plaintiffs and Defendants filed their
respective statements addressing the opt-out issue.
[Dkt. nos.
860, 861.]
Prior to the final fairness hearing, this Court
received fourteen letters of objection to the settlement.
nos. 815-17, 821-22, 829, 835, 848-51, 857-59, 864.]
[Dkt.
These
include a letter signed by nine inmates and a letter from Class
counsel on behalf of Plaintiffs.
[Dkt. nos. 857, 858.]
Many of
the objections expressed personal complaints that were outside of
the scope of this litigation.
The majority of the objections
merely reiterated argument that have already been addressed by
this Court.
STANDARD
Federal Rule of Civil Procedure 23(e) states, in
pertinent part:
The claims, issues, or defenses of a certified
class may be settled, voluntarily dismissed, or
compromised only with the court’s approval. The
following procedures apply to a proposed
settlement, voluntary dismissal, or compromise:
(1) The court must direct notice in a
reasonable manner to all class members who would
be bound by the proposal.
(2) If the proposal would bind class
members, the court may approve it only after a
14
hearing and on finding that it is fair,
reasonable, and adequate.
(3) The parties seeking approval must file a
statement identifying any agreement made in
connection with the proposal.
(4) If the class action was previously
certified under Rule 23(b)(3), the court may
refuse to approve a settlement unless it affords a
new opportunity to request exclusion to individual
class members who had an earlier opportunity to
request exclusion but did not do so.
(5) Any class member may object to the
proposal if it requires court approval under this
subdivision (e); the objection may be withdrawn
only with the court’s approval.
“The purpose of Rule 23(e) is to protect the unnamed members of
the class from unjust or unfair settlements affecting their
rights.”
In re Syncor ERISA Litig., 516 F.3d 1095, 1100 (9th
Cir. 2008) (citation omitted).
This Court must examine the parties’ settlement as a
whole for overall fairness.
This Court must approve or reject
the settlement in this case in its entirety; this Court cannot
alter certain provisions.
See Hanlon v. Chrysler Corp., 150 F.3d
1011, 1026 (9th Cir. 1998).
Hanlon directs a district court
evaluating a proposed class action settlement to balance the
following factors:
the strength of the plaintiffs’ case; the
risk, expense, complexity, and likely
duration of further litigation; the risk of
maintaining class action status throughout
the trial; the amount offered in settlement;
the extent of discovery completed and the
stage of the proceedings; the experience and
15
views of counsel; the presence of a
governmental participant; and the reaction of
the class members to the proposed settlement.
Id. (citations omitted).
DISCUSSION
I.
Existence of a Settlement Agreement
At the outset, this Court must address Plaintiffs’
argument that the parties never actually reached a settlement
agreement.
Plaintiffs raised this argument in their memorandum
in opposition to the Preliminary Approval Motion, and this Court
has already rejected this argument in granting the motion.
However, Plaintiffs continue to raise this argument.
[Pltfs.’
Statement Regarding Allowing Individuals to Opt-out, filed
12/8/16 (dkt. no. 860), at 1 (asserting that “there is no
agreement that Defendants have signed and promised to be bound
by”).]
This district court has stated:
Federal courts apply state contract law
principles to the construction and enforcement of
settlement agreements, even if the underlying
claims are federal. See O’Neil v. Bunge Corp.,
365 F.3d 820, 822 (9th Cir. 2004); United
Commercial Ins. Serv., Inc. v. Paymaster Corp.,
962 F.2d 853, 856 (9th Cir. 1992). In order to be
enforceable, a settlement agreement must have the
traditional elements of a contract: offer,
acceptance, consideration, and parties who have
the capacity and authority to enter into the
agreement. See Amantiad v. Odum, 90 Hawai`i 152,
162, 977 P.2d 160, 170 (1999). In addition, there
must be mutual asset or a meeting of the minds as
to all the essential elements of the contract.
See Mednick v. Davey, 87 Hawai`i 450, 458, 959
P.2d 439, 447 (Ct. App. 1998). . . .
16
If all of the elements of a valid contract
are established, the settlement agreement should
be given full force and effect unless there is
evidence of bad faith or fraud. See Moran v.
Guerreiro, 97 Hawai`i 354, 371, 37 P.3d 603, 620
(Ct. App. 2001) (“Generally, in the absence of bad
faith or fraud, when parties enter into an
agreement settling and adjusting a dispute,
neither party is permitted to repudiate it.”
(quoting Miller v. Manuel, 9 Haw. App. 56, 63, 828
P.2d 286, 291 (Ct. App. 1991)). . . .
Kaina v. Cty. of Maui, Civil No. 04–00608 DAE–LEK, 2008 WL
4108026, at *1 (D. Hawai`i Sept. 4, 2008); accord Doe v. Washoe
Cty., 339 F. App’x 747, 748 (9th Cir. 2009) (“In determining
whether a conditional settlement agreement is binding, courts
look to whether the parties demonstrated an intent to be bound by
the circumstances and the terms of the agreement.”).
Based upon counsel’s statements during the Settlement
on the Record, this Court FINDS that: there was an offer,
acceptance, and agreed upon consideration; the parties who
participated in the settlement conference which resulted in the
Settlement on the Record had the capacity and authority to enter
into the settlement; and counsel agreed to the essential terms of
the settlement.
Further, this Court rejects Plaintiffs’ argument
that, because the parties never generated a signed written
agreement, Defendants are not bound by the terms stated during
the Settlement on the Record.
The representations by Defendants’
counsel at the Settlement on the Record and in their subsequent
filings in the settlement approval process are sufficient
17
evidence of Defendants’ agreement to the settlement.
If
Defendants fail to honor the terms of the settlement after this
Court grants final approval, Defendants’ breach of the settlement
agreement would be actionable.
Finally, there is no evidence in
the record of bad faith or fraud by Defendants or their counsel
in the settlement process.
This Court therefore CONCLUDES that,
subject to the Court’s approval, there is a valid and enforceable
settlement agreement between the parties.
II.
Request for Litigation Expenses
Insofar as the settlement includes reimbursement of
Class counsel’s litigation expenses, this Court must examine the
reasonableness of the award before it can grant final approval of
the settlement.
Fed. R. Civ. P. 23(h) states, inter alia: “In a
certified class action, the court may award reasonable attorney’s
fees and nontaxable costs that are authorized by law or by the
parties’ agreement.”
Thus, pursuant to Rule 23(h), the parties’
settlement agreement alone is a sufficient basis for an award of
reasonable nontaxable costs to Plaintiffs.
The Court, however,
emphasizes that it has only relied upon the parties’ agreement as
the basis for Plaintiffs’ entitlement to the award; the Court has
not relied upon the parties’ representation that the requested
award is reasonable.
The Court will independently review the
requested award for reasonableness.
See In re Bluetooth Headset
Prod. Liab. Litig., 654 F.3d 935, 941 (9th Cir. 2011) (noting
18
that, even where the parties in a class action have agreed to an
amount for attorneys’ fees and costs, “courts have an independent
obligation to ensure that the award, like the settlement itself,
is reasonable”).
Based on this Court’s knowledge of the
proceedings in the case, which has been pending in this district
court for over six years, this Court FINDS that the payment of
$70,000.00 for the litigation costs incurred by Class counsel is
reasonable.
The Court next turns the analysis of whether the
parties’ settlement meets the requirements set forth in
Rule 23(e).
III. Rule 23(e) Requirements
A.
Request for a Second Opt-out Period
This Court certified the Saguaro Damages Class, the
SHIP Damages Subclass, and the Saguaro Protective Custody Damages
Subclass pursuant to Rule 23(b)(3).
Order, 2014 WL 4956454, at *28.
See 9/30/14 Certification
Thus, pursuant to Rule 23(e)(4),
this Court “may refuse to approve a settlement unless it affords
a new opportunity to request exclusion to individual class
members who had an earlier opportunity to request exclusion but
did not do so.”
(Emphasis added.)
Plaintiffs argue that the
Class members should be allowed to opt out of the settlement
because Rule 23(e) encourages it, and because it is necessary to
protect the Class members’ due process rights.
19
This Court disagrees with Plaintiffs that Rule 23(e)(4)
encourages or favors allowing a post-settlement opt-out process.
Rule 23(e)(4)’s use of the word “may” does not support
Plaintiffs’ position; it means that the decision to require a
post-settlement opt-out process is within the court’s sound
discretion.
See, e.g., In re Washington Mut., Inc.,
No. 2:08-md-1919 MJP, 2015 WL 12803633, at *1 (W.D. Wash.
June 22, 2015) (“[T]he Court will exercise its discretion under
Rule 23(e)(4) and will not provide Class Members with a second
opportunity to exclude themselves from the Class in connection
with this Settlement.”); Klein v. O’Neal, Inc., 705 F. Supp. 2d
632, 663 (N.D. Tex. 2010) (“Under Rule 23(e)(4), the decision
whether to allow a second opt out is left to the court’s
discretion.”).
Further, in a related context, the district court in
Klein stated, “class members who object to a proposed settlement
on due process grounds ‘must allege constitutional violations
with factual detail and particularity.’”
705 F. Supp. 3d at 663
(some citations and internal quotation marks omitted) (quoting
Newby v. Enron Corp., 394 F.3d 296, 309 (5th Cir. 2004)).
While
this Court does not conclude that Plaintiffs’ argument in favor
of a post-settlement opt-out process must meet this same
standard, this Court does conclude that the facts and legal
20
arguments Plaintiffs have presented do not warrant ordering a
post-settlement opt-out process based on due process grounds.
Plaintiffs also argue that a second opt-out period is
necessary to protect the Class members’ due process rights
because Defendants are seeking approval of a settlement that they
themselves are not bound to, and because Plaintiffs have not
actually agreed to the purported settlement.
This Court has
already rejected these arguments, and therefore CONCLUDES that
these arguments do not constitute grounds for a second opt-out
period.
Further, this Court notes that only the Damages Class
and subclasses were certified – to seek nominal damages only –
pursuant to Rule 23(b)(3).
See 9/30/14 Certification Order, 2014
WL 4956454, at *21 (finding that the Prospective Relief Class and
the Protective Custody Prospective Relief Subclass met the
Rule 23(b)(2) requirements).
“In a Rule 23(b)(2) class
action, . . . class members are not allowed to opt out.”
Frank
v. United Airlines, Inc., 216 F.3d 845, 851 (9th Cir. 2000).
The
fact that the Rule 23(b)(2) class and subclasses were not
entitled to an opt-out period in the fist instance and the fact
that the settlement does not include any award of damages weigh
against the requirement of a post-settlement opt-out process.
This Court, in the exercise of its sound discretion,
DECLINES to order a second opt-out period in the instant case.
21
B.
Remaining Requirements
Based on the class notification efforts described
above, the Court FINDS that, as required by Rule 23(e)(1), notice
of the settlement was directed in a reasonable manner to all
Class members who would be bound by the settlement.
Further, at the August 8, 2016 hearing, this Court
granted the Preliminary Approval Motion, finding that the
proposed settlement was “fair, reasonable, and adequate,” as
required by Rule 23(e)(2).
Defendants’ Preliminary Approval
Motion also satisfies Rule 23(e)(3)’s requirement of a statement
identifying the parties’ agreement.
This Court received objections from Class members for
approximately three months prior to the final fairness hearing.
This Court FINDS that any Class member who objected to the
settlement had the opportunity to present his objections to this
Court, as required by Rule 23(e)(5).
In light of the foregoing, this Court FINDS that all of
the Rule 23(e) requirements have been satisfied in this case.
This Court now turns to the evaluation of the settlement under
the Hanlon analysis.
IV.
Hanlon Factors
As to the first Hanlon factor, the strength of the
plaintiffs’ case, while Plaintiffs had multiple claims survive
summary judgment, at the time of the Settlement on the Record,
22
Defendants’ motion for de-certification was pending, as were
numerous motions in limine.9
The rulings on these motions could
have had a significant effect on the course of the trial.
Based
on the existing record, it is not clear that which side would
have prevailed at trial.
This Court therefore FINDS that the
first Hanlon factor weighs in favor of approving the settlement.
As to the second Hanlon factor, the risk, expense,
complexity, and likely duration of the rest of the case, the
trial was scheduled to begin on June 2, 2015.
expected to last approximately ten days.
The trial was
[Minutes, filed 5/1/15
(dkt. no. 703) (final pretrial conference before the magistrate
judge).]
This Court FINDS that the risk, expense, and complexity
of the trial weighs in favor of approving the settlement.
As to the third Hanlon factor, the risk of maintaining
class action status, Defendants’ decertification motion was
pending at the time of the Settlement on the Record.
This Court
therefore FINDS that this factor weighs in favor of approving the
settlement.
As to the fourth Hanlon factor, the amount offered in
settlement, the settlement does not involve any monetary payments
to the Class.
However, it involves significant policy and
9
Defendants filed their Motion for Decertification of Class
Action Claims on April 24, 2015. [Dkt. no. 696.] On May 11,
2015, Plaintiffs filed eleven motions in limine. [Dkt. nos. 71019, 729.] On May 12, 2015, Defendants filed fourteen motions in
limine. [Dkt. nos. 723-28, 730-31, 734-36, 738, 741-42.]
23
programming changes at Saguaro that will benefit the members of
the Class and will address many of the conditions challenged in
this case.
This Court therefore FINDS that the fourth Hanlon
factor weighs in favor of approving the settlement.
As to the fifth Hanlon factor, the extent of discovery
completed and the stage of the proceedings, the Settlement on the
Record occurred less than three weeks prior to the start of
trial.
Compared to the significant amount of time the case had
been pending and the extensive litigation practice that occurred
prior to the Settlement on the Record, there was a relatively
short time remaining until the expected end of the trial.
However, settling the case avoided, not only the trial itself,
but also the possibility of post-trial motions and appeals.
This
Court therefore FINDS that the fifth Hanlon factor is neutral.
As to the sixth Hanlon factor, it is undisputed that
both the Class and Defendants are represented by experienced
counsel who have specialized knowledge of cases such as this one.
At the time of the Settlement on the Record, Class counsel and
Defendants’ counsel agreed to the terms of the settlement, which
the magistrate judge described as “clearly in the best interest
of all of the parties.”
[5/14/15 Trans. at 16-17.]
Defendants
have continued to advocate the reasonableness of the settlement.
Although Class counsel filed objections to the settlement on
behalf of Plaintiffs prior to the final fairness hearing, Class
24
counsel’s current position must be viewed in light of their
position at the time of the Settlement on the Record and in light
of the fact that this Court has already rejected Plaintiffs’
arguments that an agreement was never reached and that Defendants
are not bound by the settlement of which they seek approval.
This Court therefore FINDS that the sixth Hanlon factor weighs in
favor of approving the settlement.
This Court FINDS that the seventh Hanlon factor, the
presence of government participants, weighs in favor of approving
the settlement because two of the defendants are State of Hawai`i
officials sued in their official capacity.
See, e.g., California
v. eBay, Inc., Case No. 5:12–cv–05874–EJD, 2015 WL 5168666, at *5
(N.D. Cal. Sept. 3, 2015) (noting in its analysis of this Hanlon
factor that “the State is charged with the trust of protecting
the state and its citizens”).
Finally, this Court must consider the Class members’
reaction to the settlement.
In the 9/30/14 Certification Order,
this Court noted that “there are 179 inmates at Saguaro . . .
that have registered as practitioners of the Native Hawaiian
religion.”
2014 WL 4956454, at *7.
Although this Court received
objections from more than twenty members of the Class (including
Plaintiffs), the vast majority of the Class members who will be
affected by the settlement have not objected.
25
This Court
therefore FINDS that the final Hanlon factor weighs in favor of
approving the settlement.
Thus, none of the Hanlon factors weigh against
settlement approval, and the majority of the factors weigh in
favor of approval.
This Court FINDS that the settlement –
including the reimbursement of Class counsel’s litigation costs –
is fair, reasonable, and adequate.
CONCLUSION
On the basis of the foregoing, this Court HEREBY GRANTS
final approval of the settlement and ORDERS the parties to
implement the terms of the settlement.
Pursuant to the terms of
the settlement, all of the remaining claims in this case are
HEREBY DISMISSED WITH PREJUDICE, with all parties to bear their
own respective attorneys’ fees and costs of suit, except as
expressly provided in this Order.
There being no remaining claims in this case, the Court
DIRECTS the Clerk’s Office to close this case immediately.
IT IS SO ORDERED.
26
DATED AT HONOLULU, HAWAII, May 22, 2017.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
RICHARD KAPELA DAVIS, ET AL. VS. NEIL ABERCROMBIE, ET AL.; CIVIL
NO. 11-00144 LEK-BMK; AMENDED ORDER GRANTING FINAL APPROVAL OF
CLASS ACTION SETTLEMENT
27
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