Stinson et al v. The City of New York
Filing
338
OPINION re: 324 MOTION to Approve Unopposed Motion for Final Approval of Class Settlement, Service Payments to Class Representatives and Attorneys Fees and Expenses . filed by Chanel Meausa, Gary Shaw, Ricardo Jones, David Thompso n, Ryburn Walkes, Jeremy Thames, Victor Breland, Michael Bennett, Sharif Stinson, Leander Griffin: For the foregoing reasons, Plaintiffs' motion for final approval of the Settlement, award of service payments to the Class Representatives, and attorneys' fees and expenses is granted. (Signed by Judge Robert W. Sweet on 6/7/2017) (jwh) Modified on 6/12/2017 (jwh).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------x
SHARIF STINSON, et al.,
Plaintiffs,
10 Civ. 4228
(RWS)
- against OPINION
THE CITY OF NEW YORK , et al.,
Defendants.
------------------------------------------r:-x
=
===========n
A P P E A RA N C E S:
Attorneys for Plaintiffs
COHEN & FITCH LLP
233 Broadway, Suite 1800
New York, NY 10279
By:
Gera l d M. Cohen, Esq.
Joshua P. Fitch, Esq.
THE
225
New
By:
USDC SDNY
\, DOCU~itENT
j j ELECTl{ONICALLY FlLED
I
ll DOC #: - - h I~ I1711
~OATEFILELJ:
LAW OFFICES OF JON L. NORINSBERG PLLC
Broadway, Suite 2700
York , NY 10 007
Jon L. Norisberg, Esq.
QUINN EMANUEL URQUHART & SULLIVAN, LLP
51 Madison Avenue
New York , NY 10010
By:
Stephen Neuwirth , Esq.
Elinor C. Sutton, Esq.
Attorney for Defendants
ZACHARY W. CARTER
Corporation Counsel of the City of New York
100 Church Street
New York , NY 10007
By:
Rachel Seligman Weiss, Esq.
Sweet, D.J.
This civil rights class action is the paradigm of change
and progress achievable in a society undergirded by the rule of
law. Skilled and dedicated counsel for the parties, aided by a
highly experienced and pragmatic mediator, have reached a
resolution benefitting all concerned. The strongly held
positions, vigorously litigated and, initially, diametrically
opposed, have been illuminated by facts developed in the
discovery process and resolved. Thanks to the skill of those
involved and a concerned administration, those injured will be
compensated, police procedures will be clarified and
strengthened, and the rights of all citizens will be fortified
through what has been represented as the largest settlement of
Fourth Amendment claims in New York City history.
To that end, named Plaintiffs Sharif Stinson, Ryburn
Walkes, Gary Shaw, Michael Bennett, Chanel Meausa, David
Thomson, Jeremy Thames, Leander Griffin, Ricardo Jones, and
Victor Breland (collectively, "Class Representatives" or
"Plaintiffs"), on behalf of themselves and the Class 1 ,
have moved
for orders (i) granting final approval of the proposed
1
The Class is represented by Cohen & Fitch, LLP, Jon L.
Norinsberg, Esq., and Quinn Emanuel Urquhart & Sullivan LLP
(hereinafter, the "Class Counsel").
1
settlement (the "Settlement") with the City of New York ("N YC " ) ,
Raymond Ke ll y ("Kelly") , the former Commissioner of the New York
Police Department ("NYPD"), and unnamed New York City Police
Off ice rs
(collectively, "Defendants") ;
(ii) the award of service
payments to the Class Representatives; and (iii) the granting of
attorneys '
fees and expenses . For the reasons set forth below ,
Plaintiffs' motion is granted.
I. Prior Proceedings
The procedural history and factual background of this
lengthy and intensely litigated class action has been set forth
in prior opinions by this Court. See e . g ., Stinson v . City of
N. Y., 282 F.R.D. 360, 364 - 67
(S .D. N.Y. 2012)
(laying out of the
allegations and factual background of the case) ; Stinson v. City
of N.Y., No. 10 Civ. 4228, 2015 WL 4610422
2015)
(S.D.N.Y. July 23 ,
(detailing stages of the discovery process); Stinson v.
City of N. Y. , No. 10 Civ . 4228 , 2016 WL 817445 (S . D. N. Y. Feb.
24, 2016)
(describing multiple motions to unseal). Familiarity
with this case ' s general background is assumed.
The instant action concerns hundreds of thousands of New
Yorkers who , over the course of many years, were issued
summonses later dismissed after a finding of facial
2
insufficiency or were ticketed without probable cause . The
Plaintiff Class is defined as "the Class Representatives and all
other individuals who were issued C Surrunonses by the NYPD that
were later dismissed upon a judicial finding of facial or le gal
insufficiency by the court prior to trial, and whose C Surrunonses
were issued without probable cause during the Class Period [May
25 , 2007 through January 24 , 20 1 7 ] ." (Dec l aration of Gerald M.
Cohen dated April 14, 2017
(" Cohen Deel."), Ex . D at !
1.32 ,
Dkt . 327) ; see also Stinson , 282 F.R.D. at 363 (defining and
cert if y in g c la ss).
During 2015 and 2016 , the parties met with retired Southern
District of New York District Judge John S. Martin to meditate
and try to reach a sett lement . The first full-day mediation
session in August 2015 was unsuccessful.
(Pls. ' Mem. in Supp . at
7 - 8 . ) After an add iti ona l yea r of d is covery and motion practice,
the parties engaged Judge Mart in for a series of med it ation
sessions throughout August 2016 .
(Id . ) These sessions culmi nated
on August 22 , 2016 with an agreement between the part i es as to a
final Class Fund figure and genera l outl ine of remedial measured
to be taken by the NYPD .
(Pls .' Mem . in Supp. at 8.) Subsequent
meetings, often with ass i stance from Judge Martin, resulted i n
determining proposed amounts for attorneys '
3
fees , expense
reimbursements , the notice and proof of c l aims language , and
c l aims procedures .
( Pls .' Mem. in Supp . at 9 . )
On January 23 , 2017 , both parties requested preliminary
approval of the Settlement , notice plan , and appointment of Rust
Consulting as the Settlement claims administrator.
(Dkt. 319.)
The Court granted preliminary approval of the proposed
Settlement on January 24 , 201 7 ,
( Dkt . 320), wh i ch was amended
with approval on January 30, 201 7,
( Dkt . 322) .
The proposed Settlement contains both monetary and non monetary benefits to the Class . Within seventy- five days of the
Settlement's final approval, NYC wi l l create a fund for the
Class that will contain $56 . 5 million (the "Class Fund"), from
which any service awards for Class Representatives and expense
costs in the administration of the Cl ass Fund would be drawn. 2
(Cohen Deel ., Ex. D
at~~
5 . 1 , 6.4 , 6 . 5.) The remaining Class
Fund will be distributed pro rata to e l ig i ble claimants on a per
summons incident basis with a maximum payout of $150 per
summons.
(Cohen Deel. , Ex. D at
~
2
7. 2.) A separate and
Class Counsel has represented that administrative costs are
est i mated to be between 1 . 35 and 1 . 5 million dollars. (Pls. '
Mem. in Supp. at 22 n.8.)
4
additional $18.5 million is to be paid to Class Counsel by NYC
for attorneys' fees and expense.
(Cohen Deel., Ex . D
at~
5.1.)
In addition, the NYPD has stated that within three to
twelve months of the Settlement 's final approval, the NYPD wil l
undertake remedial measures related to quotas, including:
sending Department-wide commun i cat ions informing officers that
quotas and other numeric measures of performance are improper
and subject to investigation by the NYPD's Internal Affairs
Bureau; revising the tr a ining new NYPD recruits receive with
regard to quotas and teaching recruits how to report observed
issues with o ut fear of reprisal; and improving public relations
by simplifying the process for individuals who receive summons
to identify officers responsible and for voicing complaints
about summons if individuals believe the summons was i ssued
unfairly.
3
(Cohen Deel., Ex. D at 6-8. )
3
These are in addition to a number of other remedial steps that
the NYC and NYPD have undertaken since the start of the instant
lawsuit, including passing laws that expand the use of civil
summons versus C- Summons and custodial arrests , amending the
NYPD forms for writ in g and issuing summons to include more
narrative space, providing regular summons issuan ce data to
increase NYPD transparency , and revising internal NYPD officer
patrol procedures and training on investigati ve
encounters. (Cohen Deel., Ex. D at 3 - 6.)
5
Following preliminary approval , a total of 922 , 316 copies
of the Notice and Proof of Claim (" Notices " ) were mailed to
potentia l Class members after reviewing records provided by the
New York Office of Court Administration.
(Cohen Deel ., Ex. F. )
At the time of the Fairness Hearing, fi ve object i ons had been
filed and thirt y individuals had opted- o ut of the Settlement. 4
( Fairness Hr'g Tr. 48:9-10, May 24 , 2017 . )
On April 14 , 2017 , Plaintiffs moved for final approval of
the Settlement , serv i ce payments to Class Representatives , and
granting of attorneys '
fees and expenses .
(Dkt. 324 . ) On May 24 ,
2017 , a Fairness Hearing was held pursuant to Fed. R . Civ. P .
23(e) (2) , at which time counse l from both sides spoke ,
ob ject ions to the proposed Settlement were heard , and th e motion
was marked fully submitted.
II.
Applicable Standard
Federal Rule of Civil Procedure 23(e) provides that
"claims, i ssues , o r defenses of a certified class may be
settled , voluntarily dismissed , or compromised on l y with the
court 's approval. " Fed . R. Civ. P . 23(e) . The Court may approve
4
Objections to the proposed Class Settlement are discussed in
greater detail at Section III(ii) (2) , in fra.
6
a settlement " on l y after a hearing and on finding that the
is fair , reasonable , and adequate. " Cent .
settlement
States Se. & Sw. Areas Health & Welfare Fund v . Merck-Medco
Managed Care, L.L.C ., 504 F . 3d 229, 247
(2d Cir . 2007)
(quoting
Fed . R . Civ . P . 23 (e) (1) (C)). To determine whether a settlement
is fair , reasonable, and adequate, the Second Ci rcuit instructs
district courts to examine "the neg ot iating process leading up
to the settlement, i.e ., procedural fairness, as well as the
settlement ' s substantive terms , i.e., substantive fairness ."
McReynolds v . Richards - Cantave , 588 F . 3d 790 , 803 - 04
2009)
(2d Cir .
(quoting D' Amato v. Deutsche Bank , 236 F.3d 78 , 85 (2d
Cir . 2001))
(internal quotation marks and alternations omitted)
Underlying the court ' s analysis is a "strong judicial policy in
favor of settlements , particularly in the class action context ."
Wal-Mart Stores , In c . v . Visa U.S.A ., Inc ., 396 F.3d 96 , 116 (2d
Cir. 2005)
(citations omitted) .
III. The Proposed Settlement is Approved
1.
The Settlement is Procedurally Fair
There is a presumption of fairness when settlements are
"reached in arm's-length negotiations between experienced ,
capable counsel after meaningful discovery." Wal - Mart Stores ,
7
Inc. , 396 F . 3d at 116 (citation omitted) . This presumption is
well-grounded here. The parties are represented by competent ,
experienced counsel who engaged in over six years of discovery
and contentious motion practice , addressing matters both before
this Court and the Second Circuit. See Stinson , 282 F . R.D. at
371 - 72 ;
(discussing the litigation experience of Plaintiffs '
counsel) ;
( Pls .' Mem. in Supp . at 5-7) . The proposed Settlement
was only reached at the tail-end of discovery and on the eve of
summary judgment, after multiple arm ' s-length mediation sessions
with Judge Martin , all of which further supports finding
procedural fairness in the process .
(See Cohen Deel., Ex. E at
2; Pls.' Mem. in Supp . at 7-8 , 25 . ) Accordingly , the proposed
Settlement is procedurally fair.
11.
The Settlement is Substantively Fair
In the Second Circuit, substantive fairness is evaluated by
considering the nine factors set forth in City of Detroit v .
Grinnell Corp. :
(1) the complexity, expense and likely duration of the
litigation;
( 2) the reaction of the class to the
settlement ; ( 3) the stage of the proceedings and the
amount of discovery completed;
( 4)
the
risks of
establishing liability; ( 5) the risks of establishing
damages; ( 6) the risks of maintaining the class action
through the trial; ( 7) the ability of the defendants
8
to withstand a greater judgment;
(8) the range of
reasonableness of the settlement fund in light of the
best
possible
recovery;
[and]
( 9)
the
range
of
reasonableness of the settlement fund t o a possible
recovery in light of all the attendant risks of
litigati on .
495 F . 2d 448 , 463 (2d Cir . 1974)
(c it ations omitted) , abrogated
on other grounds by Goldberger v . Integrated Res ., Inc ., 209
F . 3d 43 (2d Cir . 2000) .
As set forth below , eight of the nine of the Grinnell
factors weigh , in varying degrees , in favor of approval of the
Settlement, and none weigh against . Accordingly, the proposed
Settlement is substantively fair .
1. Complexity , Expense, and Likely Duration of the
Litigation
The difficulties presented in this case were legion . The
claims in the lawsuit covered a decade ' s worth of NYPD issued
summons and arrest quotas from ninety-eight different police
precincts across NYC . The Settlement was preceded by intense
fact discovery , involving the production and examination o f
hundreds of thousands of documents and thousands of hours of
audio visual materials . Forty-four depositions were conducted .
Class certification was challenged four times over six years
and, had settlement not been reached, it is reasonable to expect
9
that there would have been many more substantive motions leading
up to a l ikely trial of Plaintiffs ' claims, all of which would
have been expensive. Accordingly , the first Grinnell factor
supports approval of the proposed Settlement.
2 . Reaction of the Class t o the Settlement
" It is well settled that the reaction of the class to the
settlement is perhaps the most significant factor to be weighed
in considering its adequacy ." In re Bear Stearns Companies, Inc .
Sec . , Derivative , & ERISA Litig . , 909 F . Supp . 2d 259 , 266
( S . D. N. Y. 2012)
(quoting In re Am. Bank Note Holographies,
Inc .,
127 F. Supp . 2d418 , 425 (S . D. N. Y. 2001)).
A total of 922 , 316 Notices were sent to potential class
members . As o f May 14 , 2017, 39 , 094 class members have submitted
claim forms , and the claim period window remains open until
September 6 , 2017 .
(Defs . ' Ltr . of May 19, 2017, Dkt . 334)
During the Fairness Hearing , Class Co unsel represented to the
Court that there have been only 30 requests for exclusion .
(Fairness Hr ' g Tr . 48 : 3 - 4.)
Defendants have argued, both in response to the instant
motion and during the Fairness Hearing , that the number of
10
undeliverable Notices -
represented to the Court during the
hearing as approximately 276 , 000 Notices
52:6) - and the Class '
(Fairness Hr ' g Tr.
low response rate should forestall the
Court's final approval of the Settlement and permit more time to
opt - out,
(see Defs .' Ltr. of May 19, 2017). The present
difficu l ty in reaching approximately 30 % of the potential Class
members may be off set by the undertaking of the parties to run
an additional advertising campaign in major New York newspapers
throughout the summer , particularly targeting pub l ications
popular in neighborhoods where summons tended to be issued .
(See
Fairness Hr ' g Tr . 55 : 3-22 . )
Ultimately , though , the Notice mailing was sufficient to
comply with the requirements of Rule 23. "[ N] otice by mail sent
to the l ast known address of the absent class member meets the
due process requirement of notice through ' reasonable effort '
even where numerous class members have since changed addresses
and do not receive notice . " In re Prudential Sec . Inc. Ltd .
P ' ships Litig ., 164 F . R. D. 362 (S . D.N.Y . 1996)
(collecting
cases) ; see also Gonzalez v . City of N. Y., 396 F. Supp . 2d 411 ,
418
(S . D. N. Y. 2005)
(finding that individual mailings reaching
only one - third of the potential class , even without supplemental
newspaper publications , constituted adequate notice) . It is not
wholly surprising that a sizeable percentage of the Notices were
11
undeliverable. Given the breadth of time covered by the claim
period, and the probability of many potential Class members to
have moved and changed addresses, the resultant undeliverable
rate does not render the Settlement unfair. See In re W. Union
Money Transfer Litig., No. 01 Civ. 0335 (CPS), 2004 WL 3709932,
at *14
(E.D.N.Y. Oct. 19, 2004)
(approving a settlement as fair
where undeliverable rate was 45 % because of the "the length of
the class period, the size and the mobility of the Settlement
Class, and the likelihood that some name and address information
may not have been accurately provided or entered at the time").
Contrary to the position of Defendants, it is neither
improper nor premature for the Court to rule on the fairness of
the Settlement at present based on the current response of the
Class. While only a small percentage of Class members have made
claims, that number may increase in the coming months. It is the
"absence of significant exclusion[s] or objection[s]" that
courts in this Circuit regularly consider, not low response
rates. In re Bear Stearns, 909 F. Supp. 2d at 267
v. Bethlehem Steel Corp., 823 F.2d 20, 24
(citing Grant
(2d Cir. 1987)); see
also Jermyn v. Best Buy Stores, L.P., No. 08 Civ. 214
WL 2505644, at *6 (S.D.N.Y. June 27, 2012)
CIGNA Corp., 369 F. Supp. 2d 34, 52
12
(CM), 2012
(quoting Sylvester v.
(D. Me. 2005))
(observing
that "' claims made '
settlements regularly yield response rates
of 10 percent or less").
While on occasion courts wait until the close of the claims
deadline to determine the fairness of a settlement , the reverse
is neither unprecedented , see Lee v . Ocwen Loa n Servicing, LLC ,
No . 14 Civ . 60649 (JG) , 2015 WL 5449813 , at *23 (S . D. Fla . Sept .
14, 2015)
(collecting cases) , nor unfounded in the present
circumstance , where even Defendants concede that the " terms of
the settlement are fair , "
(Defs .' Ltr. of May 19 , 2017) . Delay
in approving the Settlement delays the Settlement ' s many
positive pr ov isions and pre vent s the tens of thousands of
wronged Class members who are already claimants from receiving
just compensation from the as-yet created Class Fund .
(See Cohen
Deel . , Ex . D at 17.) Delay also prol ongs the period before the
NYPD i s required to implement changes to the NYPD ' s recruit
training, its internal reporting protocol, and its officer
patrol guidan ce .
(See Cohen Deel ., Ex . D at 6- 8 . ) Approval
permits these substantive remedies and valuable reforms to
begin .
Five objections were filed prior to the Fairness Hearing .
Three objections were letters from claimants : Glenn Johnson ,
Boisey Caldwell , and Jason Montague .
13
(See Cohen Deel., Ex . G;
Pls .' Ltr . of May 23 , 2017 , Ex. A, Dkt. 337.) Mr . Johnson's
letter objects to the Settlement 's payment of $150 maximum per
summons, which he believes is an insufficiently small amount.
Mr . Caldwell's letter, if construed as an objection , expresses
similar discontent regarding the size of the settlement amount
payout . 5 Mr . Montague ' s letter objects to the need to receive
payout from the NYPD for what he terms "a mild inconvenience ."
(Pls .' Ltr. of May 23 , 2017 , Ex . A.) To the extent that the
handful of objections made based on this issue are grounded in
claims actua lly covered by the Settlement , they do not
const itute a basis to reject the Settlement. Given the degree of
injury inher ent in improperly receiving a summons , on average
about fi ve to ten minutes during which time the summons was
written up while the Class member simply had to wait, damages of
$150 per summons is sufficient to find that portion of the
Settlement fair . See, e . g. , Watson v . United States , 17 9 F.
Supp. 3d 251, 281
(E . D. N. Y. 2016)
(accept ing damages of $83 an
hour for " loss of liberty" c laim ) .
Two object i ons , while differing slightly , both
fundamentally focus on the "Released Claims" language of the
5
Several indi v iduals who spoke at the Fairness Hearing also
expressed discontent at the size of the Settlement amount,
similar to the letters of Messrs . Johnson and Ca ldwell. (See ,
e.g ., Fairness Hr'g Tr . 13 :1- 6 , 15:1 0 , 23:18 . )
14
Settlement .
(See Cohen Deel., Ex. D
at~
1 . 28 . ) One objection
was made by attorney Jeffrey Rothman ( "Rothman " ) on behalf of
some of his clients ; one object i on was made by the firms
Stecklow & Thompson and Wolf Haldenstein Adler Freeman & Herz
LLP on behalf of their clients in a separate litigation , Packard
v . City of N. Y., 15 Ci v . 7130
(S . D.N.Y. 20 15 )
("Pa ckard " ) . Both
provided both written submissions and made oral argument at the
Fairness Hearing . Rothman objects that the release la nguage has
the potential to release Class members' other claims that stem
from the issuance of improper summonses, even if those
derivative cla ims are substantially more serious , such as claims
for excess i ve force by the NYPD.
(See Fairness Hr'g Tr. 3 : 21-
6 :1. ) Packard objects that the release language might release
claims by potential class members of their yet-uncertified class
action against the NYPD based on arrests made during the Occupy
Wall Street first anniversary , during which some potential
Packard class members might have received summons .
(See Fairness
Hr'g Tr. 8 : 3-12 : 21 . ) Rothman requests that the release language
be removed; Packard requests a carve-out be in cluded in the
language fo r their nascent class action . Rothman and Packard
claim they have standing to object because some of their clients
are potential Class members covered by the instant Settlement .
15
As a threshold matter , it is not apparent that either
Rothman o r Packard have standing to object . On l y a " class member
may ob ject to the [se ttlement] proposal ," Fed. R . Civ . P .
23(e) (5) , which implies that "[o]bjectors who are non-Class
members lack standing to object to
. th e settlement ." In re
Drexel Burnham Lamb ert Grp ., Inc ., 130 B.R . 910 , 923 & n . 8
(S .D.N. Y. 1 991)
(collecting cases) ; see also Cent . States Se . &
Sw . Areas Health , 504 F . 3d at 244
("N onpart i es to a settlement
generally do not have standing to object to a settlement of a
class action ." ) . Rothman contends that he has clients who are
members of the instant Class , but the on ly clients he has
identified he also states have opted out .
(See Rothman Ltr . of
Apr. 24 , 2017 at 3 & n.3 , Dkt . 330 ; Fairness Hr ' g Tr . 67:19 - 24 ;
Pls. ' Mem . in Resp. to Objections at 2 n.1, Dkt. 335 . ) Class
members who opt - out of the settlement ext inguish their ability
to object to it and those objections need not be considered .
See , e . g ., People United for Children , Inc. v . City of N. Y. , No.
99 Civ . 648
(KTD) , 2 007 WL 582720 , at *3
(S . D. N. Y. Feb . 26 ,
2007) . Packard states that , of their potential class members ,
" [s]ome may have been issued summonses ," but have not identified
any particular individual shown to be a class member of the
instant action .
(Fairness Hr ' g Tr . 10: 21 ; see also Fairness Hr' g
Tr. 63:20 - 21 . ) In all likelihood , this renders both objecto rs
non-parties . Nevertheless , the breadth of the release claim
16
language is a legitimate concern for the Class and these
objectors attended the Fairness Hearing alleging to represent
Cl ass members. See United States v . N. Y., No . 13 Civ . 4165 (NGG)
(MDG) , 20 1 4 WL 1028982 , at *10 (E . D. N. Y. Mar . 17 , 2014)
(cons i de ri ng objections when possible non - party merely
" claim[ed] " to include class members , even when objectors failed
to at t e n d Fairness Hearing) .
Ro thman ' s concern about the Settlement extingu i sh i ng
potent i a l claims derivative to improperly i ssued summons is
based p ri ncipal l y on language from the Notice , not the re l ease
language of the Settlement , which unlike the Notice does not
mention particular causes of act i on to be released by the
Sett l ement .
(See Rothman Ltr . of Apr . 24 , 2017 at 1- 2 , Dkt . 330 ;
Fairness Hr ' g Tr . 65 :1 7 - 66 : 1 . ) Some of Rothman ' s concerns were
s u ff i c i en tl y resolved at the Fa ir ness Hear i ng , d u r i ng which the
parties st i pulated that the Settlement ' s release l anguage was
not to i nc l ude claims for excess i ve force .
(Fairness Hr ' g Tr .
69 : 4 -1 2 , 72 : 23 - 25 . ) However , insofar as the release language
states th at it r eleases claims " based upon or aris i ng out the
same t r ansaction , ser i es of connected transactions , occurrences
or nucle u s of operative facts that form the basis of the c l aims
t h at we r e or could have been asserted in the [instant ] Civil
Action ," both Rothman and Packard ' s concern remain outstanding :
17
some potential claims connected to issued summonses encompassed
by the instant Settlement could be released if the Settlement is
approved .
(Cohen Deel ., Ex . D
~
1.28 . ) Defendants conceded as
much during the Fairness Hearing, stating that , "I f there was
something that was factually similar to the summons charge , then
there may be an argument that [a class member] cannot recover
damages for the arrest based o n the re l ease languag e ." (Fa irness
Hr ' g Tr. 45 : 10 - 15 . )
" May " is the correct and operative word here : the thrust of
these objections is a hypothetical exercise . The Settlement ' s
release language does not, by its terms , release any class
member ' s claims of constitutional violation , even if such claims
were connected in some way to the issuance of a summons
otherwise resolved by the instant Settlement . As Class Counsel
stated during the Fairness Hearing , this Settlement is narrowly
about "t he improper Fourth Amendment vio lati on of improper
seizure of individuals.
[T]o the extent that someone has a
claim outside that , this would not prevent that indi vidual from
bringing that claim ." (Fairness Hr ' g Tr. 39 : 6- 15.) To argue
otherwise , while perhaps not impossible , would be attenuated ,
and is an argument for another day .
18
Given the hypothetical nature of the objections, foreclosed
in part by the oral stipulation of the parties and their
constraining language at the Fairness Hearing, these objections
are noted but do not weigh against approving a Settlement that
even the objectors acknowledge obtains "a very significant
public good."
(Rothman Ltr. of Apr. 24 , 2017 at 1 ) ; see also In
re Literary Works in Elec. Databases Copyright Litig.,
242 , 247 -4 8 (2d Cir. 2011)
106)
654 F.3d
(citing Wal-Mart Stores , 396 F.3d at
("Parties often reach broad settlement agreements
encompassing claims not presented in the complaint in order to
achieve comprehensive settlement of class actions, particularly
when a defendant's ability to limit his future liability is an
important factor in his willingness to settle.")
In sum, the Court does not find the Notice procedure,
presently low claims rate, or object ions to show a negative
Class reaction to the Settlement. Rather, the overall low number
of objections and requests for exclusion, in the context of the
hundreds of thousands of Notices already delivered, is itself a
positive indication of general approval. See Grant, 823 F.2 at
24
(finding an otherwise fair settlement should be approved even
when 36% of the total class was in opposition) ; Wright v . Stern,
553 F. Supp. 2d 337, 344-45 (S .D. N.Y . 2008)
(holding that "[t]he
fact that the vast majority of class members neither objected
19
nor opted out is a strong indication " of fairness) . The
objections raised are thoughtful , appreciated , and give the
Court pause , but ultimately this Grinnell factor leans in favor
of approval .
3 . Stage of Proceedings and Amount of Discovery
"In considering this factor , the question is whether the
parties had adequate information about their claims such that
their counsel can intelligently evaluate the merits of
plaintiff ' s c laims, the strengths of the defenses asserted by
defendants , and the value of plaintiffs ' causes of action for
purposes of settlement ." In re Bear Sterns , 909 F . Supp . 2d at
267
(quoting In re IMAX Sec . Litig ., 283 F.R.D. 1 78 , 190
(S.D . N. Y. 2012)
(internal quotation marks omitted). Here, the
parties reached the Settlement after years of discovery ,
depositions , extensive motion practice , and arguments before
this Court and the Second Cir cu it. At this "advanced stage ," the
parties were in a position to evaluate intelligently their
claims and defenses and to negotiate a fa i rly valued settlement .
In re Marsh ERISA Litig. , 265 F.R . D. 12 8 , 139 (S . D. N. Y. 2010)
(finding the stage of the proceeding "str ongly " favored approval
when co un sel had "reviewed millions of pages of documents,
participated in 100 depositions, exchanged expert rep orts and
20
rebuttal reports , and fully briefed the issue of class
certification" ) . This Grinnell factor greatly weighs in favor of
approval .
4 . Risks of Establishing Liability and Damages
"Liti gation inherently involved risk ," and had this c l ass
action advanced to trial , itwould have been no exception . In re
PaineWebber Ltd . P ' ships Litig. , 171 F.R.D . 104 , 126 (S .D.N.Y.
19 97) . This was a wide-reaching , complicated civil rights that
would have presented Plaintiffs significant obstacles at trial .
First , Plai ntiffs needed to estab lish municipal liability by
proving the existence of an o fficial NYPD policy , pattern , or
practice that required officers to issue summonses regardless of
probable cause to meet a minimum quota requirement established
by the Department or face punishment . Plaintiffs then needed to
show that such a policy resulted in violations of their
constituti onal rights . Given the breadth of summonses issued
over the span of a decade , across almost one hundred precincts ,
and by countless different police officers , proving their case
would have indeed been "a difficult task ." Gentile v . Cnty . of
Suffolk , 129 F . R. D. 435 , 444
Goode , 423 U. S . 362
(E . D. N. Y. 1990)
(citing Rizzo v .
(1976)) . Establishing damages would have
been no easier , as putting a value on the violation of one ' s
21
coffe r s ' before a settlement can be found adequate ." In re I MAX
Sec . Li t i g ., 283 F . R . D. 178 , 191
(S . D. N. Y. 2012)
(quoting In re
Sony SXRD Rear Projection Television Class Action Litig ., No . 06
Civ . 5173
(RPP) , 2008 WL 1956267 , at *8
(S . D. N.Y . May 1 , 2008)) .
Even with a $75 million Settlement , this Grinnell f actor i s
neutra l as to approval of the Settlement .
7 . The Range of Reasonableness of the Settlement Fund
in Light of the Best Possible Recovery and All the
Attendant Risks of Litigation
"[I] n any case there is a range of reasonab l eness with
respect to a settlement. " Newman v . Stein , 464 F . 2d 689 ,
693
(2d
Cir. 1972) . " The adequacy of the amount achieved in settlement
may not be judged ' in comparison with the possible recovery in
t he best of all possible worlds , but rather in light of the
strengths and weaknesses of plaintiffs ' case. '" In re Giant
Interact i ve Grp ., Inc . Sec . Litig ., 279 F . R . D. 151 , 162
(S . D. N. Y. 2011)
(quoting In re Agent Orange Prod . Liab . Litig .,
597 F . Supp . 740 , 762
(E . D. N. Y. 1984) , aff ' d , 818 F . 2d 145 (2d
Cir . 1 987)) . " The fact that a proposed settlement may only
amount to a fraction of the potential recovery does not , in and
of i tse l f , mean that the proposed settlement is grossly
inadequate and should be disapproved ." Grinnell , 495 F . 2d at 455
& n . 2 ("I n fact there is no reason , at least in theory , why a
satisfactory settlement could not amount to a hundredth or even
23
$4,000 to over $50,000 based on "pers onal risk (i f any)
incurred
by the plaintiff - applicant in becoming and continuing as a
litigant, the time and effort expended by that plaintiff in
assisting in the prosecution of the litigation
[and]
any other burdens sustained by that plaintiff in lending himself
or herself to the prosecution of the claim" ) .
V.
Approval of Requested Attorneys' Fees
"The Second Circuit has authorized district courts to
employ a percentage - of - the - fund method when awarding
[attorneys'] fees in common fund cases , although th e Circ uit has
encouraged district courts to cross-check the percentage fee
against counsel's "l odestar " amount of hourly rate multiplied by
hours spent. It bears emphasis that whether calcu la ted pursuant
to the lodestar or the percentage method , the fees awarded in
common fund cases may not exceed what is ' reasonable '
under the
circumstances ." In re Giant Interactive Grp ., 279 F.R . D. at 163 64
(quoting Goldberger , 209 F . 3d at 47 , 50)
(inter nal c itati o n
and quotation marks omitted) . As a general matter, however, "the
trend in this Ci rcuit is toward the percentage method ." McDaniel
v . Cnty. of Schenectady , 595 F . 3d 411 , 417
26
(2d Cir . 2010) .
The six factors laid out by the Second Circuit in
Goldberger "are applicable to the court ' s reasonableness
determination whether a percentage - of - fund or l odestar approach
is used . " I d . at 423 . The factors are : " ( l ) the time and labor
expended by counsel ;
litigation ;
(2) the magnitude and complexities of the
(3) the risk of the litigation ;
representati on ;
(4) the quality of
( 5) the requested fee in relati on to the
settlement ; and (6) public policy conside rati ons . " Goldberger,
209 F . 3d at 50 .
As set forth below , all the Go ldberger factors weigh in
favor of finding the requ ested fee award reas o nabl e .
1 . Time and Lab or Expended by Counse l
Class Co uns el and their para - professional staff have
dedicated 27 , 753 . 50 h ours to the instant class action .
(See
Pls .' Mem. in Supp . at 29 ; see also Declarat i on of Stephen
Neuwirth dated Apr . 14 , 2017 , Ex . A, Dkt . 325 ("N e uwirth
Deel.") ; Declaration of Jon L . Norinsberg dated Apr. 14, 2017 at
~~
49 - 51 , Ex . A, Dkt. 326 ("Norinsberg Deel . ") ; Cohen Deel. at
~~
52-61 , Ex . H. ) Ove r the years of litigati on , the se h o urs were
spent engage d in the work necessary to o rganize and maintain a
successful class action : coordinating with Cla ss members ;
27
responding to and making motions , including successfully for
Class certification ; attending court appearances ; engaging in
discovery resulting in hundreds of thousands of produced ,
organized , and analyzed documents ; taking and defending forty four depositi ons ; and participating in mediation sessions . Given
the scope of this case , the time and labor spent by Class
Counsel is both reasonable and weigh in favor of approval .
A lodestar cross - check confirms this view . 6 Based on their
total hours worked , Class Counsel has reported an aggregated
lodestar of $16 , 614 , 153 . 50 .
requested attorneys '
(Pls .' Mem . in Supp. at 29) The
fees thus represents a multiplier of 1 . 11
of the lodestar . As neither the rates billed nor the multiplier
sought are outside the normal ranges regularly accepted in this
district , this cross - check supports approval . See Arbor Hill
Concerned Citizens Neighborho od Ass ' n v . Cnty . o f Albany &
Albany Cnty. Bd . of Elections , 522 F . 3d 182 , 191 (2d Cir . 2008)
(stating that "a reasonable , paying client would in most cases
hire counsel from within his district , or at least co unsel whose
rates are consistent with those charged locally") ; Febus v .
Guardian First Funding Grp. , LLC , 870 F . Supp. 2d 337 , 340
6
The "lodestar" is a numeric value that aims to capture the
value of a firm ' s work over the course of a particular
litigat i on . It is ca lculated by multiplying h ours reasonably
expended by a reasonable hourly rate .
28
(S . D. N. Y. 2012)
(accepting a lodestar multipl i er of 2 . 2 as " well
wit hin the range of acceptable " ) .
2 . Magnit u de and Complexities of Liti gat i on
As se t
forth above , the i ssues present in the i n stant class
act i on we r e factua ll y vast , spanning many years and many
p r ec in ct s, and legally complex . See Section III(ii) (4)
supra .
Th is f acto r we i ghs i n favor of approva l.
3 . Risk of Li tigation
As d i sc u ssed above , there were many risks in this class
act i on , in cluding sustaining the Class , proving municipa l
li ab i lity , establish i ng causation , and calcula t ing damages . I n
addi t ion , there i s the risk attendant to when attorneys take a
case on a contingency fee:
for the past seven years , Class
Counse l h as h ad to dedicate resources without guarantee o f
comp e nsa ti on . When considering attorneys '
fees in such
ci r c ums t a n ces , "[n ] o one expects a l awyer whose compensat i on is
cont in gent upon h i s success to charge , when successfu l, as
little as he wo u ld charge a client who in adva n ce h ad agreed t o
p ay f o r his services , regardless of success. " Gr inne ll,
29
495 F. 2d
at 470. Taken together, the risks inherent to this lawsuit weigh
toward approval.
4. Quality of Representation
While the Class has been represented by attorneys
rightfully recognized as some of the top class action litigators
in the country,
(see Pls.' Mem. in Supp. at 25
(citing cases)),
it is the results of this class action that evidence strongest
the quality of the representation. Six years of a vigorous yet
forward-moving litigation strategy, a successful Class
certification, and, ultimately, a settlement for which the
monetary amount is the second largest in NYC history and the
non-monetary benefits could be, in the Court's view, "a gamechanger" for NYC communities, all are the true testaments to the
strength of the representation provided to the Class and weigh
in favor of approval.
(Fairness Hr'g Tr. 7 6:24.)
5. Requested Fee in Relation to the Settlement
The requested fee is 24.6 % of the total Settlement, a
figure that falls at the higher end of fees historically
approved in civil rights class actions in this district but
nevertheless lands comfortably within permissible bounds. See
30
Trinidad v . Pret a Manger (USA) Ltd ., No . 12 Ci v. 6094
20 1 4 WL 4670870 , at *11 -1 2 (S . D. N. Y. Sept . 1 9 , 20 1 4)
(PAE ) ,
(co l lecting
civil ri g h ts class action cases showing a range of award
percentages from 13 % to 25 % and ultimately approving 25 %, down
from an initial request of 33 %) ; Cronas v . Willis Grp . Holdings ,
Ltd ., No . 06 Civ . 15295 (RMB) , 2011 WL 6778490 , at *6 (S . D. N. Y.
Dec . 1 9 , 2011)
(awarding 2 1 .7 % in discrimination class act i o n
and no ti ng similar historically approved ranges) . Thus , th i s
factor leans in favor of approva l.
6 . Public Policy Considerations
There is a " strong federal public po l icy favoring
enforceme n t of the civil rights laws so important to the
advancement of modern society ." Red Bu l l Assocs . v . Best W.
Int ' 1 , I nc ., 862 F . 2d 963 , 967
(2d Ci r . 1 988). The proposed f ee
award properly balances moderation with e n couraging litigants to
bring forward substantive and impactful cases that are crucia l
to en f orc i ng our constitutional liberties . See Goldberger , 209
F . 3d a t
53 . Accordingly , this factor weighs in favor of
app r ova l .
31
For the foregoing reasons , and in the absence of any
ob j ect i ons to the proposed attorneys '
fees , the request is found
reasonable and approved.
VI.
Approval of Requests for Reimbursement of Expenses
"It
is well-settled that attorneys may be compensated for
reasonab l e out - of-pocket expenses incurred and customarily
charged to their clients , as long they were incidental and
necessary to the representation of those clients . " I n re Bear
Sterns,
909 F . Supp . 2d at 272
(citations omitted) . Class
Counsel have requested $374 , 224 . 19 to date in expenses .
(Pls . '
Mem. in Supp . at 34 - 35 . ) The list of submi tted expenses include
items li ke " deposition transcript[s] , " "investigator ," " online
research , " data storage and document ingestion ," " video
deposit i on/videotaping ," "mediation fee ," and many line items
that are, in different turns of phrase , related to document
pr i nting and reproduction .
(Neuwirth Deel ., Ex . Bat l ; see also
Nor i nsberg Deel. , Ex. B; Cohen Deel ., Ex . H. ) "T hese expenses
are the t ype for which the paying , arms ' length market
reimburses attorneys ." Cronas , 2011 WL 6778490 , at *7
(internal
quotat i on marks and citation omitted). Moreover , there were no
objections to these requests . Reimbursement for these expenses
i s there f ore approved .
32
Conclusion
For the foregoing reasons , Plaintiffs ' mot i on for final
approval of the Settlement , award of service payments to the
Cl ass Representatives , and attorneys '
fees and expenses is
granted .
It is so orde red.
New Yh k, NY
June ' /
, 201 7
U . S.D.J.
33
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