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August 10, 2005.

SAMSON BROWN, et al. Plaintiffs,

The opinion of the court was delivered by: DICKINSON DEBEVOISE, Senior District Judge


This is a class action instituted by plaintiffs, undocumented aliens who were detainees at a facility (the "Facility") which defendant, Esmor Correctional Services, Inc., ("Esmor") operated under contract with the Immigration and Naturalization Service ("INS") at Elizabeth, New Jersey from August 1994 until mid-June 1995. These detainees numbered approximately 1,600 persons. Presently before the court are the parties' application for approval of the Settlement Agreement, plaintiffs' application for approval of a Plan of Allocation of the settlement fund, and the application of Class Counsel for reimbursement of expenses and payment of attorneys' fees.

Also before the court are objections filed on behalf of former plaintiffs in Joaquin DaSilva, et al., v. Esmor Correctional Services, Inc., Civil Action No. 96-3755(DRD) (the DaSilva Action) and a motion to intervene and objections filed on behalf of remaining plaintiffs in Hawa Abdi Jama, et al. v. U.S. Immigration & Naturalization Serv., Civil Action No. 973-093(DRD) (the "Jama Action").

  I. Background Plaintiffs allege that while they were detainees at the Facility they were tortured, beaten, harassed and otherwise mistreated by Esmor guards and that they were subjected to abysmal living conditions including inadequate sanitation, exercise and medical treatment. The details of the allegations and of the proceedings are set forth in Jama v. U.S.I.N.S., 334 F. Supp. 2d 662 (D.N.J. 2004).

  Class Counsel filed the original complaint in this action in the Supreme Court of the State of New York. On April 19, 1996 Esmor removed the action to the United States District Court for the Southern District of New York. Class Counsel filed a motion to certify the class, after which discovery proceeded on the merits and on the issue of class certification. Esmor opposed class certification. Before the certification motion was decided, on March 11, 1998 the district court for the Southern District of New York transferred the action to this district. There were then pending in this court two other actions in which individual plaintiff-detainees sought recovery for abuses suffered by them during the period of detention — the Jama Action and the DaSilva Action.

  On April 2, 1998 Class Counsel filed an amended complaint and moved again for class certification. The court granted the motion and by order dated March 10, 1999 approved the form of notice to be sent to class members. The Class comprises all persons or entities who resided at the Elizabeth Detention Facility in Elizabeth, New Jersey, from on or about August 1, 1994 and June 18, 1995, inclusive of those dates. Excluded from the Class are those Members who submitted valid and timely requests for exclusion from the Class in accordance with the procedures set forth in an order dated March 9, 1999, as amended by an order dated June 19, 2003. The amended order is currently on appeal before the United States Court of Appeals for the Third Circuit (Nos. 03-3095, 03-3096, and 03-3348).

  Class Counsel undertook the difficult task of attempting to locate the former inmates of the Facility, all of whom had either been released, relocated to other facilities in the United States or deported. They were able to identify and locate approximately 1,180 detainees and mailed notices to them and/or their attorneys.

  The magistrate judge in charge of pretrial proceedings consolidated the Brown Action with the Jama and DaSilva actions for the purposes of discovery. This had the unintended effect of complicating discovery and making it more time consuming, involving multiple examinations of witnesses, motions to compel and motions for protective orders. The Jama plaintiffs had sued a large number of defendants. The depositions of Brown plaintiffs involved 17 witnesses and consumed 24 days; the depositions of Jama plaintiffs involved 4 witnesses and took 20 days; the depositions of Esmor, INS, Esmor officers and guards involved 26 witnesses and took 117 days. These deposition were conducted during a four-year period in a number of cities across the United States. In addition to depositions, document production proceeded on a massive scale.

  Failure of plaintiffs in the Jama and DaSilva Actions to opt-out of this action in accordance with the March 9, 1999 order resulted in extensive proceedings before two magistrate judges and this court. On June 10, 2003 the court entered an order extending the time within which the plaintiffs in those cases could opt-out. Nine Jama plaintiffs filed opt-outs within the extended deadline; none of the DaSilva plaintiffs did so. As a result all of the original Jama Action plaintiffs other than those nine and all of the DaSilva Action plaintiffs are members of the Class. The status of the nine opt-outs is in doubt because of the appeal of the order extending the time to opt-out. Because of the lapse of time since the inception of the case, during the summer of 2003 the court directed that a supplemental mail notice be sent to detainees at the Facility whose directly mailed Class action notices mailed in April 1999 were not returned as undeliverable and to the attorneys to whom class action notices were sent on April 19, 1999 and not returned. Such notices were mailed to more than 576 detainees and/or their attorneys and, of those mailings, 456 were deliverable.

  Esmor filed a motion for summary judgment dismissing the Jama Action on January 23, 2003. The INS and INS officials, the Esmor officers and Esmor guards filed similar motions for summary judgment. Certain of the key legal issues raised in those motions for summary judgment were critical to the outcome of this action, and consequently on June 26, 2003 the court directed that Esmor file its motion for summary judgment against the plaintiffs in this case by September 30, 2003 and further directed that consideration of common issues of law would be argued at a consolidated hearing.

  Esmor filed its motion for summary judgment in this action. Class Counsel were required to review and analyze the enormous record which included thousands of pages of deposition transcripts and thousands of pages of documents produced during discovery. Oral arguments on all the motions for summary judgment were conducted on June 29 and June 30, 2004. The key issues raised affecting this action were i) whether the INS Interim Report (which severely criticized Esmor's operation of the Facility) was admissible under Rule 803(c) of the Federal Rules of Evidence, ii) whether the plaintiffs had presented sufficient evidence of negligent hiring, retention, training and/or supervision to defeat the motion for summary judgment, iii) whether Esmor could avail itself of the government contract defense and iv) whether plaintiffs were third party beneficiaries of the contract between Esmor and the INS governing operation of the Facility.

  On September 9, 2004 the court rendered its decision on the summary judgment motion in this action. It ruled in plaintiffs' favor on issues i), ii) and iii) and in Esmor's favor on issue iv). Jama v. INS, 334 F. Supp. 2d 662 (D.N.J. 2004). In addition the court deconsolidated this case from the Jama and DaSilva Actions, noting that "[t]he Brown case is now ready to proceed to a final pretrial conference, a settlement conference, and, if no settlement is reached, a trial." The court denied an Esmor motion for a stay of settlement and/or trial pending the outcome of its appeal contesting whether the Jama plaintiffs had properly opted out of this class action.

  With the case in this posture Class Counsel made extensive preparations for a settlement conference, analyzing the data, researching possible damages theories and awards and preparing memoranda. Settlement conferences were held with the court and on February 17, 2005 a settlement was agreed upon. On May 24, 2005 the court issued an Order Preliminarily Approving Settlement and Approving Form and Manner of Notice.

  II. The Settlement Terms

  Under the Settlement Esmor shall pay $2.5 million on the Settlement Effective Date into an escrow account (the "Settlement Fund") controlled by Class Counsel, Ressler & Ressler. This payment will constitute the settlement of all claims relating to the operation of the Facility against Esmor and all of its current officers, directors, employees, agents, accountants, attorneys and other related parties. The fees and expenses of Ressler & Ressler, as approved by the Court will be paid from the Settlement Fund. The notice to class members of the hearing on the proposed settlement advised the recipients that the attorneys have made application for reimbursement of costs and expenses of $200,000 and for fees in the amount of $766,667, being 1/3 of the gross amount of the settlement. Thus the amount to be distributed to the class members will be $1,533,338 (the "Distribution Fund").

  The kinds of injuries that the various members of the Class suffered varied. Some, perhaps most, may only have had to endure the general conditions of the Facility at the particular time during which they were there; some may have undergone for a period of days or weeks the more onerous conditions of solitary confinement; some may have been physically assaulted or sexually harassed; some may have undergone body cavity searches; some may have been subjected to unjustified searches by Esmor's ERT Team; some may have been injured during the Esmor uprising that took place on June 18, 1995. In short different members of the Class suffered different kinds of injuries.

  Another unknown factor is the number of inmates who may be located so that they can share in the Settlement Fund. Pursuant to the Settlement Agreement Class Counsel have devised a Plan of Allocation which must be approved by the court. Each Class member is required to submit a Proof of Claim and Release which, among other things, requires the Class Member to specify the amount of time and dates spent at the Facility and the specifics of each kind of injury he or she suffered at the Facility. The Plan of Allocation allocates a certain number of units to each kind of injury. For example for each day spent at the Facility a detainee is awarded one unit, for a digital body search a detainee is award 15 units; for a beating by an Esmor guard a detainee is awarded 30 units per incident.

  The Plan Administrator (Ressler & Ressler) will evaluate each claim and compute the total number of units to be credited to each claimant and the total number of units of all claimants. To obtain the value of each unit, the total number of units will be divided into the fund to be distributed. To determine the award of each claimant, his or her total number of units will be multiplied by the value of each unit. The value of each unit, of course, will depend in part upon the number of former detainees who can be located and who file claims. The bar date for filing Proof of Claim Forms is November 10, 2005.

  The Settlement requires Ressler & Ressler to mail a notice of hearing to each Class Member who can be identified through reasonable effort and to give notice by publication on the Internet, in at least one national newspaper and in at least two ethnic newspapers. The mailed Notice of Hearing, among other things, informed members of the Class of the pendency of the application to approve the Settlement, described the terms of the Settlement and advised them of their opportunity to object and be heard at the hearing scheduled to consider its fairness, reasonableness and adequacy. Similarly the Settlement Agreement required Ressler and Ressler to mail a Proof of Claim Form and Release and a Description of the Plan of Allocation to each Class Member who can be identified through reasonable effort.

  The notice to Class Members meets the notice requirements of Fed.R.Civ.P. 23(e) as the best notice practicable under the circumstances of this case. Girsh v. Jepson, 521 F.2d 153 (3d Cir. 1975).

  Carmen E. Mendiola, Esq., counsel for the detainees who are the former DaSilva plaintiffs, filed objections on their behalf, challenging the fairness, reasonableness and adequacy of the Settlement Agreement.

  Counsel for the nine Jama plaintiffs who, this court found, successfully opted out, moved to intervene in the Brown Action for the purposes of the hearing on the Settlement Agreement, objected to provisions of the Settlement Agreement that they contend improperly limit the ability of the Jama plaintiffs to reach a settlement of the Jama Action, and seek to address amicus curiae one of the Settlement Agreement provisions. The court granted the motion to intervene, holding that the possibility that the Court of Appeals might rule that the Jama plaintiffs' opt-out was ineffective thus making them members of the Class gave them standing to intervene.

  The DaSilva and Jama plaintiffs' positions will be addressed in separate sections of this opinion.

  III. Fairness, Reasonableness and Adequacy

  The fairness, reasonableness and adequacy of the Settlement Agreement is supported by the prevailing circumstances. Settlement of disputed claims, especially those advanced in complex class action litigation, are favored by the courts. The Court of Appeals affords an initial procedural presumption of fairness of a settlement if adequate notice was given to affected members of the proposed settlement class and "if the court finds that (1) the negotiations occurred at arm's length; (2) there was sufficient discovery; (3) the proponents of the settlement are experienced in similar litigation; and (4) only a small fraction of ...

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