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October 3, 2005.

SAMSON BROWN, et al. Plaintiffs,

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


On August 10, 2005 the court entered an opinion and order approving the settlement of this class action as fair, reasonable and adequate, approving a Plan of Allocation and allowing attorneys' fees and expenses. On August 23, 2005 counsel for seven persons (the "DaSilva Plaintiffs") who had been plaintiffs in a previously dismissed action (the "DaSilva Action")*fn1 manually filed a Motion for Reconsideration of the Settlement Order. For the reasons set forth below the motion will be denied.

I. Background

  The instant action 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 in Elizabeth, New Jersey. Two related actions against Esmor and others were filed — the DaSilva Action and an action that will be referred to as the "Jama Action."*fn2 The three actions were consolidated for discovery purposes. During the course of the proceedings the question arose whether the DaSilva Plaintiffs and the Jama Plaintiffs had effectively opted-out of the instant action.

  Failure of the DaSilva Plaintiffs and the Jama Plaintiffs to opt-out of this action in accordance with a March 9, 1999 order resulted in extensive proceedings before two magistrate judges and this court in which Esmor and the Plaintiffs in this action challenged the effectiveness of the purported opt-outs. 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. Because the DaSilva Plaintiffs had not opted-out of the class, they became members of the class and the court dismissed the DaSilva Action. As class members the DaSilva Plaintiffs are entitled to share in the Settlement Fund if they file timely proofs of claim. The nine Jama Plaintiffs were not members of the class and continue to pursue their independent action.*fn3

  After merits discovery in this action was substantially completed and after Esmor's motions for summary judgment were briefed, argued and decided, Esmor's counsel and class counsel entered into settlement discussions and eventually arrived at a settlement. On May 24, 2005 the court preliminarily approved the settlement of this action. Prior to June 24, 2005, class counsel mailed notifications to all class members, including counsel for the DaSilva Plaintiffs, informing them of the settlement terms, the August 1, 2005 objection deadline, and the August 10, 2005 fairness hearing. Class counsel posted this information on its internet website and published it in four ethnic newspapers.

  On August 1, 2005 Jama Plaintiffs filed a letter requesting intervention and amicus participation along with objections to the settlement. The objections were directed to the provision of the Settlement Agreement in which Esmor undertook not to settle the Jama Action for amounts more favorable to the Jama Plaintiffs than the amounts paid to the class plaintiffs. The Jama Plaintiffs did not challenge the adequacy or fairness of the settlement in this action.*fn4

  On August 2, 2005 counsel for the DaSilva Plaintiffs filed objections. These objections and the several misconceptions contained therein are addressed in the court's August 10, 2005 opinion. The principal objection was "[t]he DaSilva Plaintiffs also request that this Court decline to approve the settlement agreement as it is empowered to do under Fed.R.Civ.P. 23(d)(1)(C) upon a finding that the proposed settlement agreement is not `fair, reasonable, and adequate.'" Voluminous material was in the record supporting the fairness, reasonableness and adequacy of the settlement. The only argument that the DaSilva Plaintiffs advanced in support of their position was their "[adoption] in [their] entirety the legal arguments and submissions of the Jama Plaintiffs as if fully set forth herein." As the court's August 10, 2005 opinion noted: "The Jama Plaintiffs, however, have advanced no criticism of the fairness, reasonableness and adequacy of the Settlement Agreement insofar as it relates to the Brown Action plaintiffs (included among whom are the DaSilva plaintiffs). Therefore the DaSilva plaintiffs did not advance in their papers a single ground for their contention that the Settlement Agreement is not fair, reasonable and adequate."

  At the fairness hearing the DaSilva Plaintiffs' counsel argued with considerable passion that her clients were people of substance and entitled to vastly greater sums of money than they were likely to receive under the Settlement Agreement. She placed nothing in the record about the circumstances of her clients and she addressed none of the many factors that must be considered in determining if a settlement is fair, reasonable and adequate.

  The court reviewed all the papers submitted in connection with the fairness hearing. It had the benefit of years of association with this case and the related cases during the course of discovery, opt-out motions, motions to dismiss and motions for summary judgment. It concluded that the settlement is fair, reasonable and adequate and set forth its reasons in its August 10, 2005 opinion.

  II. The Motion for Reconsideration

  Counsel for the DaSilva Plaintiffs move for reconsideration of the August 10, 2005 opinion and order, asking that the order approving the Settlement Agreement be vacated.

  It is evident that the DaSilva Plaintiffs have not accepted the fact that the court has held that they are members of the class and not parties pursuing an independent law suit. For example they state "[t]he DaSilva Plaintiffs have always maintained their separate action and were unjustifiably tossed into the class action" (Mendiola August 22, 2005 letter at 2). Unless and until the Court of Appeals reverses this court in this regard, the DaSilva Plaintiffs have been and are members of the class. If the Court of Appeals reverses this court's rulings, the DaSilva Plaintiffs will be free to litigate their own case and will not be bound by the terms of the Settlement Agreement.

  The DaSilva Plaintiffs object to the fact that the Settlement Agreement was negotiated by class counsel and that their counsel was not present during settlement discussions. This objection was not raised before or at the fairness hearing; in any event, that is the role of class counsel, and if members of the class believed that the settlement was inadequate they had ample opportunity to oppose it. The DaSilva Plaintiffs appear to be rearguing the opt-out motions, contending that "[b]y its own admission and certification, dated July 19, 1999, then Brown counsel stated `that they received the DaSilva Plaintiffs' opt out forms.'" As noted above, if ...

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