Case 2:07-cv-03482-PD Document 1 Filed 08/22/2007 Page 1 of 21

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SAJAN KURIAN, individually and on behalf of a class of others similariy situated,
Plaintiffs,

COMPLAINT - CLASS ACTION

V.

THE COUNTY OF LANCASTER, THE LANCASTER
COUNTY PRISON BOARD, and JOHN DOES 1 - 20, Civil Action No.
Defendants.

Jury Trial Demanded

INTRODUCTION
This is a class action brought to redress the deprivation by Defendants of rights secured to the Plaintiff and the proposed Class under the United States Constitution and the laws of the United States of America. The Lancaster County Prison Board, an agency of the County of Lancaster, has a uniform practice and procedure of strip-searching all individuals who enter the Lancaster County Prison and are placed in prison clothing, regardless of the crime or violation for which they are detained. Upon information and belief, this uniform practice and procedure is, in part, derived from the written procedures of the Lancaster County Prison Board, and was promulgated by senior Board members.

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It is well established that individuals charged with misdemeanors, summary violations, or other similar charges and/or crimes cannot be strip searched upon entry or transfer to the Lancaster County Prison absent particularized suspicion that those detainees possess weapons or contraband. In short, the uniform practice and procedure of Lancaster County and the Lancaster County Prison Board to force those charged with such crimes to undergo the indignities of a strip search upon transfer and/or entry into the Lancaster County Prison is not only clearly ifiegal, but is insensitive, unnecessary, and offensive. What is particularly troubling is that Defendants have continued to engage in this misconduct notwithstanding an overwhelming number of cases, within this Circuit and others, that have squarely declared these practices to be unlawful and unconstitutional.
Plaintiff brings this action on behalf of himself and a class of thousands of others who were unconstitutionally strip searched to vindicate the clear and unnecessary violations of their civil rights. Plaintiff was charged with a nonfelony offense and was subjected to a strip search in violation of his rights against unreasonable searches guaranteed by the Fourth Amendment of the United States Constitution, which is made applicable to the states by the Fourteenth Amendment. Plaintiff seeks monetary damages for himself and on behalf of the proposed class, a declaration that the Prison Board's uniform practices and procedures are unconstitutional, and an injunction preventing Lancaster County and the Lancaster County Prison Board from continuing to
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violate the rights of those placed into their custody. With this as a background, Plaintiff complains as follows:
JURISDICTION
1. This Court has jurisdiction over this action under the provisions of 28 U.S.C. § 1331, 1341 and 1343 because it is filed to obtain compensatory damages, punitive damages, and injunctive relief for the deprivation, under color of state law, of the rights of citizens of the United States secured by the Constitution and federal law pursuant to 42 U.S.C. § 1981 and 1983. This Court also has jurisdiction over this action under the provisions of 28 U.S.C. § 2201, as it is filed to obtain declaratory relief relative to the constitutionality of the policies of a local government.
2. Venue is proper under 28 U.S.C. § 1391(e)(2) because the events giving rise to Plaintiff's claims and those of proposed class members occurred in this judicial district.
PARTIES
3. Plaintiff Sajan Kurian ("Kurian" or "Plaintiff") is an adult male individual who resides in Lancaster, Pennsylvania. On or about Tuesday, April 11th, 2006, Kurian was arrested and placed in the Lancaster County Prison for a technical violation of parole for a driving while intoxicated arrest in York County.
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4. Defendant County of Lancaster (the "County") is a county government organized and existing under the laws of the Commonwealth of Pennsylvania. The County can be served at 50 North Duke Street in Lancaster, Pennsylvania. At all times relevant hereto, the County, acting through its Prison Board, was responsible for the policies, practices, supervision, implementation and conduct of all matters pertaining to the Lancaster County Prison and was responsible for the appointment, training, supervision and conduct of all Prison Board personnel, including those working in the Lancaster County Prison. In addition, at all relevant times, the County was responsible for enforcing the rules of the Lancaster County Prison, and for ensuring that Prison Board personnel employed in the Prison obey the Constitution and laws of the United States and of the Commonwealth of Pennsylvania.
5. The Lancaster County Prison Board (the "Prison Board") is an entity organized and existing under the laws of the Commonwealth of Pennsylvania, and can be served at the Lancaster County Courthouse, 50 North Duke Street, Room 502, Lancaster, Pennsylvania PA 17602. At all times relevant hereto, the Prison Board was responsible for operating, organizing, overseeing and administering the Lancaster County Prison (the "Prison"). At all times relevant hereto, Defendant Prison Board, together with the County of Lancaster, was responsible for the polices, practices, supervision, implementation and conduct of all matters pertaining to the Prison, and was responsible for the appointment, training, supervision and conduct of all Prison Board personnel, including those working in the Prison. In addition, at all times relevant hereto,
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Defendant Prison Board, together with the County of Lancaster, was responsible for enforcing the rules of the Prison, and for ensuring that Prison Board personnel employed in the Prison obeyed the Constitution and laws of the United States and of the Commonwealth of Pennsylvania.
6. Various other persons (including without limitation, Corrections Officers) and govermnental agencies or entities (collectively the "John Doe Defendants"), the identities of which are presently unknown, have participated as co-conspirators with Defendants in the violations alleged herein and have performed acts in furtherance thereof. The acts charged in this Complaint have been done by Defendants and their co-conspirators, or were authorized, ordered or done by their respective officers, agents, employees or representatives.
7. Collectively, the County of Lancaster, the Lancaster County Prison Board, and the John Doe Defendants shall be referred to herein as "Defendants."
CLASS ACTION ALLEGATIONS
8. Plaintiff brings this action pursuant to Rules 2 3(a), 23(b)(2) and 23(b)(3) of the Federal Rules of Civil Procedure on behalf of himself and a class of similarly situated individuals who were detained for misdemeanors, summary offenses, violations of probation or parole, traffic infractions, civil commitments, or other similar charges and/or crimes and were strip searched upon their transfer and/or entry into the Lancaster County Prison (the "Class").
9. The Class that Plaintiff seeks to represent is defined as follows:
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All persons who have been or will be placed into the custody of the Lancaster County Prison after being detained for misdemeanors, summary offenses, violations of probation or parole, traffic infractions, civil conmiitments, or other similar charges and/or crimes and were or will be strip searched upon their transfer and/or entry into the Lancaster County Prison pursuant to the policy, custom and practice of the Lancaster County Prison Board and the County of Lancaster. Specifically excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees. 10. This action has been brought and may properly be maintained as a
class action pursuant to the Federal Rules of Civil Procedure, as Plaintiff and
the Class satisfy the numerosity, commonality, typicality and adequacy requirements for maintaining a class action under FED. R. Civ. P. 2 3(a).
11. The number of members in the Class is so numerous as to render
joinder impracticable. Upon information and belief, there are hundreds of
people detained for misdemeanors and other violations who are placed into the custody of the Prison every month - all of whom are members of the proposed
Class. Upon information and belief, the size of the proposed Class totals at
least 5,000 individuals, some of whom have had their civil rights violated on
multiple occasions. Upon information and belief, the precise size of the Class
can be readily determined from documents and records maintained by
Defendants.
12. Upon information and belief, joinder of all of these individuals is
impracticable because of the large number of Class members and the fact that
Class members are likely dispersed over a large geographical area, with some
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members presently residing outside of Lancaster County and the geographic area served by this Judicial District. Furthermore, upon information and belief, many members of the Class are low-income persons, may not speak English, and likely would have great difficulty in pursuing their rights on an individual basis.
13. Common questions of law and fact exist as to all members of the Class, in that they each possessed the right to be free from unreasonable searches, and each were victims of Defendants' blanket policy of conducting strip searches absent individualized particularized suspicion, as required by law. All members of the Class were detained for misdemeanors, summary offenses, violations of probation or parole, traffic infractions, civil commitments, or other similar charges and/or crimes when placed into the custody of the Prison, and all were ifiegally strip searched in violation of well established law.
14. Plaintiff's claims are typical of the claims of the members of the Class. Plaintiff and all members of the Class were injured as a result of Defendants' ifiegal conduct. The harms suffered by the Plaintiff are typical of the harms suffered by the Class members.
15. The representative Plaintiff has the requisite personal interest in the outcome of this action and will fairly and adequately protect the interests of the Class. Plaintiff has no interests that are adverse to, or in conflict with, the interests of the members of the Class.
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16. Plaintiff has retained counsel who have substantial experience and success in the prosecution of class actions and in civil rights litigation. In short, Plaintiff's counsel has the resources, expertise and experience to successfully prosecute this action against Lancaster County and the Lancaster County Prison Board, and intends to prosecute this action vigorously. Counsel for the Plaintiff knows of no conflicts among members of the Class or between counsel and members of the Class.
17. This action, in part, seeks declaratory and injunctive relief. As such, the Plaintiff seeks class certification under FED. R. Civ. P. 23(b)(2),in that all Class members were subject to the same policy which required the ifiegal strip searches of individuals detained for misdemeanors, summary offenses, violations of probation or parole, traffic infractions, civil commitments, or other similar charges and/or crimes and placed into the custody of the Prison. The County of Lancaster and the Lancaster County Prison Board acted on grounds generally applicable to all class members, thereby making appropriate final equitable relief with respect to the Class as a whole.
18. In addition to certification under FED. R. Civ. P. 23(b)(2), Plaintiff seeks certification under FED. R. Civ. P. 23(b)(3).
19. Common questions of law and fact exist as to all members of the Class, and predominate over any questions that affect only individual members of the Class. These common questions of law and fact include, without limitation, the common and predominate question of whether the Defendants' written and/or de facto policy of strip searching all individuals detained for
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misdemeanors, summary offenses, violations of probation or parole, traffic infractions, civil commitments, or other similar charges and/or crimes and committed to the Prison is a violation of, inter alia, the Fourth and Fourteenth Amendments to the United States Constitution, whether such a written and/or defacto policy existed during the class period, whether Plaintiff and members of the Class are entitled to damages and/or equitable relief and, if so, the nature of this relief.
20. A class action is the superior method for the fair and efficient adjudication of this controversy, since joinder of all of the individuall members of the Class is impracticable given the large number of Class members and the fact that they are dispersed over a large geographical area. Furthermore, the expense and burden of individual litigation would make it difficult or impossible for individual members of the class to redress the wrongs done to them. The cost to the federal court system of adjudicating thousands of individual cases would be enormous. Individualized litigation would also magnify the delay and expense to all parties and the court system. By contrast, the maintenance of this action as a class action in this Court presents far fewer management difficulties, conserves the resources of the parties and the court system, and protects the rights of each member of the Class.
21. Upon information and belief, there are no other actions pending to address the Defendants' flagrant violation of the civil rights of members of the
Class.
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22. In the alternative to certification under FED. R. Civ. P. 23(b)(3), Plaintiff also seeks partial certification under FED. R. Civ. P. 23(c)(4), if
appropriate.
FACTS
Facts Applicable to the Class Generally 23. The Fourth Amendment of the United States Constitution, made applicable to the states by the Fourteenth Amendment, prohibits state officials, such as the Defendants in this action and the Corrections Officers they supervise, from performing strip searches of arrestees who have been detained for misdemeanors, summary offenses, violations of probation or parole, traffic infractions, civil commitments, or other similar charges and/or crimes unless the corrections officer has reasonable suspicion to believe that the detainee is concealing a weapon or contraband. 24. Upon information and belief, the Defendants have instituted a written and/or de facto policy, custom or practice of strip searching all individuals who enter the custody of the Lancaster County Prison and are placed into Prison clothing, regardless of the nature of their charged crime or violation and without the presence of reasonable suspicion to believe that the individual was concealing a weapon or contraband. 25. Upon information and belief, the Defendants have instituted a written and/or de facto policy, custom or practice of conducting visual body cavity searches (visual inspection of the vaginal and rectal cavities) on all individuals who enter the custody of the Lancaster County Prison, regardless of
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the individual characteristics or the nature of their charged crime or violation. For purposes of this Complaint, strip and visual cavity searches are collectively referred to as ("strip searches").
26. The Defendants know - or should know - that they may not institute, enforce or permit enforcement of a policy or practice of conducting strip searches without particularized, reasonable suspicion. Upon information
and belief, the Lancaster Prison's written policy was based on the policy promulgated by the Lancaster County Prison Board.
27. The Defendants' written and/or defacto policy, practice and custom mandating wholesale strip searches of all misdemeanor and violation detainees has been promulgated, effectuated and/or enforced in bad faith and contrary to clearly established law and to the United States Constitution.
28. Reasonable suspicion to conduct a strip search may only emanate from the particular circumstances antecedent to the search, such as the nature of the crime charged or violation, the particular characteristics of the arrestees, and/or the circumstances of the arrest.
29. Upon information and belief, the Defendants have promulgated, implemented, enforced, and/or failed to rectify a written and/or defacto policy, practice or custom of uniformly strip searching all individuals placed into the custody of the Lancaster Prison and placed into Prison clothing without any requirement of reasonable suspicion, or indeed suspicion of any sort. This written and/or de facto policy made the strip searching of pre-trial detainees routine; neither the nature of the offense charged, the characteristics of the
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arrestee, nor the circumstances of a particular arrest were relevant to the enforcement of the policy, practice and custom of routine strip searches.
30. Pursuant to this written and/or defacto policy, each member of the Class, including the named Plaintiff, was the victim of a routine strip search upon their transfer and/or entry into the Lancaster County Prison. These searches were conducted without any inquiry into or establishment of reasonable suspicion, and in fact were not supported by any reasonable suspicion. Strip searches are conducted for individuals arrested for, among other offenses, Driving While Intoxicated, Harassment, Trespassing, Failure to Pay Child Support, and violations of probation and parole for misdemeanor offenses; none of which signal the particularized reasonable suspicion that the detainee is concealing a weapon or contraband.
31. As a direct and proximate result of the unllawful strip searches conducted pursuant to this written and/or defacto policy, the victims of the unlawful strip searches -- each member of the class, including the named Plaintiff -- has suffered or will suffer psychological pain, humiliation, and mental anguish.
32. Upon information and belief, Defendants often - if not always -
conduct the strip searches in the presence of other detainees, prison officials, and other personnel, thereby adding to the humiliation suffered by members of the Class.
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Facts Applicable to the Named Plaintiff 33. Plaintiff Sajan Kurian is an adult male. On or about Tuesday, April 11th, 2006, at approximately 4:30 p.m., he was detained at the offices of the Lancaster County Adult Probation & Parole Services on a technical violation for an arrest for the non-felony charge of Driving Under the Influence of Alcohol. 34. At the time of his arrest, Kurian was on parole for Driving Under the Influence of Alcohol. 35. Kurian's technical violation of parole was void of any reasonable suspicion that he harbored any weapons or contraband. 36. Kurian was patted down by a sheriff at the offices of the Lancaster County Adult Probation & Parole Services before being transported on a bus to the Prison with additional males. 37. When Kurian arrived at the prison with the other detainees, and before being seen by a judge, he was patted down once again by correctional officers. Kurian was then sent through a metal detector. Again, there was no indication that Kurian was in possession of contraband or weapons. 38. Kurian and the other detainees were then instructed to enter a cell, one by one, where they were strip searched in clear view of the other individuals. Kurian was able to observe other individuals being strip searched while he was waiting for his iurn to be searched. 39. In connection with the strip search, Kurian was required to completely disrobe, lift up his testicles, bend over and cough, all so that he
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could be visually inspected by a correctional officer who used a flashlight to inspect Kurian's anal cavity.
40. As a direct and proximate result of the unlawful strip-search conducted pursuant to County and Prison Board's policy, practice and custom, Kurian has suffered and continues to suffer psychological pain, humiliation, suffering and mental anguish.
CAUSES OF ACTION COUNT I
Violations of 42 U.S.C. 1983
AGAINST ALL DEFENDANTS
41. Plaintiff incorporates by reference and realleges each and every allegation stated in paragraphs 1 through 40.
42. The Fourth Amendment of the United States Constitution, made applicable to the states by the Fourteenth Amendment, protects citizens from unreasonable searches by law enforcement officers, and prohibits officers from conducting strip searches of individuals detained for misdemeanors, summary offenses, violations of probation or parole, traffic infractions, civil commitments, or other similar charges and/or crimes absent some particularized suspicion that the individual in question has either contraband or weapons.
43. The actions of Defendants detailed above violated Plaintiff's rights under the United States Constitution. Simply put, it was not objectively reasonable for Prison Officers to strip search Plaintiff and Class members based
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on their arrests. It was also not objectively reasonable for the Defendants to order/direct Lancaster County Corrections Officers to conduct such strip searches.
44. These strip searches were conducted pursuant to the policy, custom or practice of the County of Lancaster and the Lancaster County Prison Board. As such, the County of Lancaster is directly liable for the damages of Plaintiff and members of the Class.
45. Upon information and belief, the Defendants are responsible for establishing the policies and procedures to be utilized in the operation of the Prison, and are responsible for the implementation of the strip search policy questioned in this lawsuit. As such, the Defendants are each responsible for the damages of the Plaintiff and members of the Class.
46. The Defendants knew that the Prison's strip search policy was ifiegal, and acted willfully, knowingly, and with specific intent to deprive Plaintiff and members of the Class of their Constilutional rights.
47. This conduct on the part of all Defendants represents a violation of 42 U.S.C. 1983, given that their unlawfull actions were undertaken under color of state law.
48. As a direct and proximate result of the unconstitutional acts described above, Plaintiff and the members of the Class have suffered damages.
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COUNT H
Demand for Declaratory Judgment
AGAINST ALL DEFENDNATS
49. Plaintiff incorporates by reference and realleges each and every allegation stated in paragraphs 1 through 48.
50. The policy, custom and practice of the Lancaster County Prison Board and the County of Lancaster is clearly unconstitutional, in that these entities and individuals are directing/conducting the strip searches of all individuals placed into the Prison without any particularized suspicion that the individuals in question have either contraband or weapons.
51. Plaintiff and members of the Class request that this Court issue a declaratory judgment, and that it declare the strip search policy of the County of Lancaster and the Lancaster County Prison Board to be unconstitutional.
52. Alternatively, Plaintiff and members of the Class lack an adequate remedy at law.
53. Plaintiff and members of the Class would be irreparably injured absent an order from this Court declaring these practices unlawful and unconstitutional.
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COUNT Ill
Demand for Preliminary and Permanent Injunction
AGAINST ALL DEFENDANTS
54. Plaintiff incorporates by reference and realleges each and every allegation stated in paragraphs 1 through 53.
55. The policy, custom and practice of the Lancaster County Prison Board and the County of Lancaster is clearly unconstitutional, in that these entities and individuals are directing/conducting the strip searches of all individuals placed into the Prison without any particularized suspicion that the individuals in question have either contraband or weapons.
56. Upon information and belief, this policy is currently in place at the Prison, with new and/or prospective members of the Class being subjected to the hanns that have already been inificted upon the Plaintiff.
57. The continuing pattern of strip searching individuals detained for misdemeanors, summary offenses, violations of probation or parole, traffic infractions, civil commitments, or other similar charges and/or crimes will cause irreparable harm to the new and/or prospective members of the Class, an adequate remedy for which does not exist at law.
58. Plaintiff demands that the County of Lancaster and the Lancaster County Prison Board immediately desist from uniformly strip searching all individuals placed into the custody of the Prison absent any particularized suspicion that the individuals in question have either contraband or weapons,

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and seeks both a preliminary and permanent injunction from this Court ordering as much.
59. Alternatively, Plaintiff and members of the Class lack an adequate remedy at law.
60. Plaintiff and members of the Class would be irreparably injured absent an order from this Court declaring these practices unlawful and unconstitutional.
61. Plaintiff and members of the Class are reasonably likely to succeed the on merits of their underlying claim, thereby making the issuance of a preliminary injunction appropriate.
DEMAND FOR PUNITIVE DAMAGES
62. The actions of the Defendants detailed herein are outrageous, in that they continue to propagate an ifiegal strip search policy in the face of numerous court decisions declaring such practices unlawful.
63. It is clear that the Defendants have no respect for the civil rights of individual citizens or for the rule of law. Consequently, an award of punitive damages is necessary to punish the Defendants, and to send a message to them that the requirements of the United States Constitution indeed apply to government officials in Lancaster County.
DEMAND FOR TRIAL BY .IURY
64. Plaintiff and members of the Class hereby demand a trial by jury.
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PRAYER FOR REUEF WHEREFORE, Plaintiff Sajan Kurian on behalf of himself and on behalf of
a Class of others similariy situated, request that this Court grant them the following relief:
A. An order certifying this action as a class action pursuant to FED. R.
Civ. P. 2 3(a), 23(b)(2) and 23(b)(3);
B. A judgment against all Defendants, jointly and severally on Plaintiff's First Cause of Action detailed herein, awarding Compensatory Damages to Plaintiff and each member of the proposed class in an amount to be determined by a Jury and/or the Court;
C. A declaratory judgment against all Defendants declaring the County of Lancaster and the Lancaster County Prison Board's policy, practice and custom of strip and visual cavity searching all detainees entering the Prison, regardless of the crime charged or suspicion of contraband, to be unconstitutional and improper.
D. A preliminary and permanent injunction enjoining Defendants from continuing to strip and visual cavity search individuals detained for misdemeanors, summary offenses, violations of probation or parole, traffic infractions, civil commitments, or other similar charges and/or crimes absent particularized, reasonable suspicion that the arrestee subjected to the search is concealing weapons or other contraband.
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E. A monetary award for attorney's fees and the costs of this action, pursuant to 42 U.S.C. § 1988 and other applicable fee shifting statutes and principals.

Dated: August 22, 2007

CHIMICLES & TIKELUS LLP

KirM3'erly M.'bonaldson (I.D. No. 84116) Joseph G. Sauder (I.D. No. 82467) Benjamin F. Johns (I.D. No. 201373) One Haverford Centre 361 West Lancaster Avenue Haverford, PA 19041 Telephone: (610) 642-8500 Facsimile: (610) 649-3633 E-mail: kimdonaldson@chimicles.com
Christopher G. Hayes (I.D. No. 57253)
LAW OFFICE OF CHRISTOPHER G. HAYES
225 South Church Street West Chester, PA 19382 610-431-9505 (phone)
610-431-1269 (fax)
Electronic Mail: chris@chayeslaw.com
Daniel C. Levin (I.D. No. 80013) Levin, Fishbein, Sedran & Berman 510 Walnut Street, Ste. 500 Philadelphia, PA 19106
Telephone: 215-592-1500 Telecopier: 215-592-4663 Electronic Mail: cllevin@lfsblaw.com

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Marc Durant (I.D. No. 15813) Durant & Durant LLP 325 Chestnut Street Suite 1116 Philadelphia PA 19106 (215) 592-1818 ATTORNEYS FOR PLAINTIFF AND
PROPOSED CLASS
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 Case 2:07-cv-03482-PD Document 47 Filed 07/29/2009 Page 1 of 33

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SAJAN KURIAN AND MICHAEL RHODES, individually and on behalf of a class of others similarly situated,
Plaintiffs,
v.
THE COUNTY OF LANCASTER, THE LANCASTER COUNTY PRISON BOARD, and JOHN DOES 1 - 20,
Defendants.

No. 2:07-cv-03482-PD Jury Trial Demanded

SETTLEMENT AGREEMENT Plaintiffs Sajan Kurian and Michael Rhodes (“Plaintiffs”), by and through their counsel, and Defendants the County of Lancaster and the Lancaster County Prison Board (“Defendants”) by and through their counsel, hereby enter into this Settlement Agreement providing, subject to the approval of the Court, for settlement of the claims herein described against Defendants. WHEREAS, Plaintiffs filed the above-captioned class action lawsuit against Defendants, alleging that Defendants violated Plaintiffs’ constitutional rights under color of state law by unconstitutionally strip searching them and others similarly situated upon entry into the Lancaster County Prison. WHEREAS, Plaintiffs further allege that, in violation of law and pursuant to the Defendants’ policy, custom, and practice, all persons such as Plaintiffs and the members of the class they purport to represent who entered the Lancaster County

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Prison charged with misdemeanors, summary offenses, violations of probation or parole, civil commitments, or minor crimes were strip searched absent any particularized suspicion that they possess weapons or other contraband.
WHEREAS, Defendants have denied and continue to deny Plaintiffs’ claims, and Defendants deny any wrongdoing or liability of any kind to Plaintiffs or to any members of the Class (as defined hereinafter).
WHEREAS, the Parties to this Settlement Agreement have conducted a thorough examination and investigation of the facts and law relating to the matters in this litigation, which included documentary and deposition discovery in the course of the litigation.
WHEREAS, the Parties have concluded that settlement is desirable in order to avoid the time, expense, and inherent uncertainties of defending protracted litigation and to resolve finally and completely all pending and potential claims of the Plaintiffs and all Class Members relating to alleged conduct involved in this litigation.
WHEREAS, Plaintiffs and Class Counsel (as defined hereinafter) recognize the costs and risks of prosecuting this litigation, and believe that it is in their interest, and in the interest of all Class Members, to resolve this litigation, and any and all claims against Defendants and against anyone acting on behalf of Defendants who may have devised, promulgated or enforced the policy or participated in the conduct that is the subject of this Settlement Agreement.
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WHEREAS, substantial, adversarial settlement negotiations have taken place between the Parties, including mediation conducted by the Hon. James Melinson (Ret.), of JAMS, and, as a result, this Settlement Agreement has been reached, subject to the Court approval process set forth herein.
WHEREAS, the Parties believe that this Settlement Agreement offers significant benefits to Plaintiffs and Class Members, and is fair, reasonable, adequate and in the best interests of Plaintiffs and Class Members.
WHEREAS, this Settlement Agreement is made and entered into by and among Defendants and Plaintiffs Sajan Kurian and Michael Rhodes, individually and on behalf of a class of similarly situated persons. The Class Members are defined as:
All persons who have been or will be placed into the custody of the Lancaster County Prison after being detained for misdemeanors, summary offenses, traffic infractions, civil commitments, bench warrants, violations of probation, parole or Accelerated Rehabilitative Disposition, and/or for other similar charges and/or crimes that do not involve the possession or distribution of drugs, possession of weapons, or are violent felonies, and who were or will be strip searched upon their entry into the Lancaster County Prison pursuant to the policy, custom and practice of the Defendants. The class period commences on August 22, 2005 and extends to July 28, 2009. Specifically excluded from the Class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees. NOW, THEREFORE, it is hereby stipulated and agreed, by and between the undersigned as follows:
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I. DEFINITIONS As used in this Settlement Agreement, the following terms shall have the meaning set forth below. Where appropriate, terms used in the singular shall be deemed to include the plural and vice versa. A. Claim Form. Claim Form shall mean a form in substantially the same form as that attached hereto as Exhibit A. B. Claims Period. Claims Period shall mean the time period during which claims may be made by Settlement Class Members, extending from the Notice Date (defined below) until the date 120 days thereafter, including weekends and holidays, provided that if the last day of the Claims Period falls on a weekend or Federal holiday, then the end of the Claims Period shall be the next following day that is not a weekend or Federal holiday. C. Class Counsel. Class Counsel shall mean: Joseph G. Sauder of Chimicles & Tikellis LLP; Christopher G. Hayes of the Law Office of Christopher G. Hayes; David Rudovsky of Kairys, Rudovsky, Messing & Feinberg LLP; and Daniel Levin of Levin Fishbein Sedran & Berman. D. Class List. The Class List shall be a list of the names and last known mailing addresses of all members of the Settlement Class. E. Class Notice. Class Notice shall mean the Court-approved form of notice in substantially the same form as Exhibit B. F. Class Representatives: Class Representatives shall mean Plaintiffs Sajan Kurian and Michael Rhodes.
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G. Class Settlement. Class Settlement shall mean the terms provided in this Settlement Agreement.
H. Court. Court shall mean the United States District Court for the Eastern District of Pennsylvania, The Honorable Paul Diamond presiding, or his duly appointed or designated successor.
I. Defendants. Defendants shall mean the County of Lancaster and the Lancaster County Prison Board, and shall include all employees of the County of Lancaster who may have devised, promulgated or enforced the policy or participated in the conduct that is the subject of this Settlement Agreement.
J. Defendants’ Counsel. Defendants’ Counsel shall mean David J. MacMain of Lamb McErlane, PC.
K. Distribution Amount. Distribution Amount shall mean the amount available for distribution to Class Members from the Settlement Fund.
L. Effective Date. Effective Date shall mean thirty days from the date on which the settlement has been finally approved by the Court, and/or thirty days from the date on which any appeals from final approval are resolved.
M. Final Approval Hearing. Final Approval Hearing shall mean the hearing at which the Court will consider and finally decide whether to enter the Final Judgment.
N. Final Judgment. Final Judgment shall mean that Court order that finally certifies the Settlement Class, approves this Settlement Agreement,
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approves payment of attorneys’ fees and expenses, and makes such other final rulings as are contemplated by this Settlement Agreement.
O. Litigation. Litigation shall mean the above-captioned lawsuit pending in the United States District Court for the Eastern District of Pennsylvania as No. 2:07-CV-03482.
P. Mediator. The Mediator shall mean the Hon. James Melinson (Ret.). Q. Notice Program. Notice Program shall mean the program for disseminating the Class Notice to Settlement Class Members, including public dissemination of the Summary Notice, in accordance with the terms herein. R. Notice Date. Notice Date shall mean the date upon which Class Notice is mailed to known Class Members in accordance with the terms herein. S. Objection Date. Objection Date shall mean the date agreed upon by the Parties or otherwise ordered by the Court by which Settlement Class Members must submit any objection to the Settlement Agreement's terms or provisions and submit any required statements, proof, or other materials and/or argument. T. Opt-Out Deadline. Opt-Out Deadline shall mean the date agreed upon by the Plaintiffs and Defendants or otherwise ordered by the Court by which any Settlement Class Members who do not wish to be included in the Settlement Class and participate in the Settlement must complete the acts necessary to properly effect such election to opt out.
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U. Opt-Out List. Opt-Out List shall mean a written list prepared by the Settlement Administrator of the names of all Settlement Class Members who submit timely Requests for Exclusion or Opt-Out Notices.
V. Opt-Out Notice. Opt-Out Notice or an Opt-Out Form shall mean a Request for Exclusion from the Settlement Class by a Settlement Class Member.
W. Parties. Parties shall mean the Plaintiffs and Defendants. W. Plaintiffs. Plaintiffs shall mean Sajan Kurian and Michael Rhodes. Y. Preliminary Approval Order. Preliminary Approval Order shall mean the order of the Court preliminarily approving this Settlement Agreement and conditionally certifying a provisional Settlement Class, in substantially the same form as Exhibit C. Z. Release. Release shall mean the release described in Section VII herein. AA. Released Claims. Released Claims shall mean and include any and all claims or causes of action by or on behalf of any and all Settlement Class Members (and their predecessors, successors, heirs, administrators, executors, agents, trustees, representatives, and assigns) that are released by the Release described in Section VII herein. BB. Released Parties. Released Parties shall mean all persons or entities against whom Released Claims will be released pursuant to the Release described in Section VII herein.
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CC. Request for Exclusion. Request for Exclusion shall mean any request by any Settlement Class Member for exclusion from the Settlement Class in compliance with Section V herein.
DD. Settlement. Settlement shall mean the agreement by the Plaintiffs and Defendants to resolve the Litigation, the terms of which have been memorialized in this Settlement Agreement.
EE. Settlement Administrator. Settlement Administrator shall mean the qualified party selected by the Plaintiffs and Defendants and designated in the Preliminary Approval Order to administer the Settlement, including implementing the Notice Program. Neither Plaintiffs nor Defendants shall have any responsibility for any acts or omissions of the Settlement Administrator. The parties will use a settlement administrator to be determined by the parties.
FF. Settlement Agreement. Settlement Agreement shall mean this Settlement Agreement, including any amendment hereto pursuant to Section X.D hereof, and all the exhibits attached hereto.
GG. Settlement Class. Settlement Class shall mean: All persons who have been or will be placed into the custody of the Lancaster County Prison after being detained for misdemeanors, summary offenses, traffic infractions, civil commitments, bench warrants, violations of probation, parole or Accelerated Rehabilitative Disposition, and/or for other similar charges and/or crimes that do not involve the possession or distribution of drugs, possession of weapons, or are violent felonies, and who were or will be strip searched upon their entry into the
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Lancaster County Prison pursuant to the policy, custom and practice of the Defendants. The class period commences on August 22, 2005 and extends to July 28, 2009. Specifically excluded from the Class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees.
HH. Settlement Class Members. Settlement Class Members shall mean all persons in the Settlement Class who do not exclude themselves pursuant to Section V herein.
II. Settlement Fund. Settlement Fund shall mean a fund, governed by terms to be agreed to between Class Counsel and Defendants’ Counsel which shall be placed in an escrow account and utilized to administer the monetary requirements of the Settlement. The Settlement Fund will be established by Class Counsel.
JJ. Settlement Amount. Settlement Amount shall mean the amount of up to two million, five hundred and seven thousand, two hundred dollars ($2,507,200.00) to be paid by or on behalf of the Defendants into the Settlement Fund; provided, however, that Defendants shall initially pay one million, nine hundred and forty six thousand, and eight hundred sixty dollars ($1,946,860.00), into the Settlement Fund. This initial payment may be increased depending on whether Defendants are required to make additional contributions to Class Members in Category 2, Category 3, and Category 4, based on the rate of return for claims made by these Class members. See Section (III)(C), infra.
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KK. Settlement Website. Class Counsel will establish a website to provide information about the settlement with a World Wide Web address of XXXXXXXXXXXXXX.
LL. Strip Search Policy or the “Checklist.” Strip Search Policy and the “Checklist” shall mean the written New Pretrial Detainee Strip Search Check List that has been used at Lancaster County Prison since the mid-1990s to govern the conduct of all strip searches of Class Members by Defendants, their agents, and employees. A blank copy of the Checklist is attached hereto as Exhibit D. The Parties have agreed upon the terms and language of a revised version of the Checklist, which shall be used going forward at Lancaster County Prison in lieu of the Checklist.
MM. Summary Notice. Summary Notice shall mean a notice in substantially the same form as that which appears at Exhibit E.
NN. Website Administrator: Website Administrator shall mean the qualified party selected by the Plaintiffs and designated in the Preliminary Approval Order to administer the Settlement Website. Neither Plaintiffs nor Defendants shall have any responsibility for any acts or omissions of the Website Administrator. The parties intend to use the claims administrator in § EE, supra, as the Website Administrator.
II. REQUIRED EVENTS A. Promptly after execution of this Settlement Agreement by all Parties:
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1. Class Counsel and Defendants’ Counsel shall use their best efforts to cause the Court to enter the Preliminary Approval Order and the Final Judgment.
2. The Parties to the Settlement Agreement shall jointly move for entry of a Preliminary Approval Order in substantially the same form as Exhibit C, which by its terms shall:
a. Preliminarily approve the terms of the Settlement Agreement, including the certification of the Class for purposes of this Settlement Agreement only, as within the range of fair, reasonable and adequate settlements for purposes of issuing notice;
b. Approve the contents of the Class Notice and methods in the Notice Plan;
c. Schedule a Final Approval Hearing to review any comments regarding the proposed Class Settlement and to consider the fairness, reasonableness, and adequacy of the proposed Class Settlement and the application for an award of attorneys' fees and reimbursement of expenses, and to consider whether the Court should issue a Final Judgment approving the Class Settlement, granting Class Counsel's application for fees and expenses, granting the Incentive Bonus application by the Class Representatives, and dismissing the Litigation with prejudice.
3. Class Counsel and Defendants’ Counsel will use their best efforts, consistent with the terms of this Settlement Agreement, to promptly obtain a Final Judgment.
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4. In the event that the Court fails to issue the Preliminary Approval Order or fails to issue the Final Judgment, Class Counsel and Defendants’ Counsel agree to use their best efforts, consistent with this Settlement Agreement, to cure any defect identified by the Court; provided, however, that in no event shall Defendants be required to agree to any such cure that would increase the cost or burden of the Settlement Agreement to such Defendants.
5. The Parties acknowledge that prompt approval, consummation, and implementation of the Settlement set forth in this Settlement Agreement are essential. The Parties shall cooperate with each other in good faith to carry out the purposes of and effectuate this Settlement Agreement, shall promptly perform their respective obligations hereunder, and shall promptly take any and all actions and execute and deliver any and all additional documents and all other materials and/or information reasonably necessary or appropriate to carry out the terms of this Settlement Agreement and the transactions contemplated hereby. Any disputes regarding the Parties’ obligations under this paragraph shall be submitted for decision by the Mediator and his decision shall be binding on the Parties.
III. SETTLEMENT TERMS A. Provision of New Policies and Corrections Officer Training 1. Defendants affirmatively state that, effective April 6, 2009, detainees admitted to the Lancaster County Prison are not strip searched pursuant to a blanket practice, custom or policy, and persons detained for misdemeanors, summary offenses, traffic infractions, civil commitments, bench warrants, violations
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of probation, parole or Accelerated Rehabilitative Disposition, and/or for other similar charges and/or crimes that do not involve the possession or distribution of drugs, possession of weapons, or are violent felonies, will not be strip searched in the absence of reasonable suspicion.
2. The County revised its strip search policy on April 6, 2009. The Parties agree that the revised policy complies with the United States Constitution. Corrections officers who work intake at the Lancaster County Prison will be retrained regarding the revised strip search policy, and when strip searches may and may not be performed. Defendants will use their best efforts to have the Lancaster County Prison Corrections Officers comply with the new revised policies. Defendants will use the New Checklist during the intake process at Lancaster County Prison.
3. Defendants will take reasonable steps to ensure that all Lancaster County Prison Corrections Officers abide by the revised strip search policy.
4. Class Counsel shall monitor Defendants’ compliance with the New Checklist and revised strip search policy at the Lancaster County Prison. Defendants shall, every ninety (90) days, provide Class Counsel with copies of the New Checklist and intake file (including all strip search forms) for all new commitments to Lancaster County prison during an agreed upon five (5) day period during that period. Class Counsel shall review these documents to determine whether Defendants are correctly filling out and applying the New Checklists. Class Counsel will not seek Court intervention for an alleged violation of the revised
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strip search policy, including any request for further relief or contempt, without first providing Defendants with notice of the relevant information concerning the alleged violation. After any such notice, the Parties shall thereafter meet and discuss the allegations of non-compliance, and shall seek to resolve any differences without Court intervention. If the parties are unable to reach an agreement, Class Counsel may seek relief from the Court, which will retain jurisdiction over the matter during the monitoring period.
5. Provided that Defendants have acted in compliance with the New Checklists and revised strip search policy, the monitoring period will terminate eighteen (18) months after the Final Approval date of this settlement. However, the monitoring period may be extended for good cause shown.
6. Class Counsel will be compensated for this work from the attorney fee settlement in this case. See Section (III)(B)(3). Provided, however, if the Court determines, pursuant to the provisions of Section (III)(A)(4), that the Defendants were not in compliance with the terms of the Settlement Agreement, any relief ordered by the Court shall include an award of counsel fees for reasonable time expended on monitoring and proceedings before the Court.
B. Settlement Fund 1. Upon entry of the Preliminary Approval Order, Defendants will be required to pay up to $2,507,200.00 into the Settlement Fund; provided, however, that the amount of $1,946,860.00 shall be initially paid by Defendants into the Settlement Fund (the “Initial Contribution”). If the Settlement does not become
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final, then any unspent money remaining from the Initial Contribution shall be returned to Defendants with no obligation on the part of any party to repay any portion of the money actually spent.
2. If, as set forth below, the claims made by Class Members that fall within Category 2, Category 3, and/or Category 4 exceed the Initial Contribution amount that is allocated to that respective Category, Defendants shall make a Second Contribution of up to $190,500.00 for Category 2; up to $260,160.00 for Category 3; and/or up to $109,680 for Category 4 (the “Second Contribution”). The Second Contribution of up to $560,340.00 will be provided for deposit into the Settlement Fund by either wire transfer or check within thirty (30) days of notice by the Claims Administrator that a Second Contribution is necessary. Plaintiffs’ counsel and/or the Settlement Administrator will provide the necessary forms (e.g., W-9s) to effectuate the issuance of either a wire transfer or check. The Settlement Administrator will notify the Defendants in the event that an additional contribution is required for Category 2, Category 3, and/or Category 4.
3. Class Counsel shall, subject to Court approval, seek to be reimbursed from the Settlement Fund for up to seven hundred and fifty thousand dollars ($750,000.00) in attorneys’ fees. Defendants’ agree to not oppose this request by Plaintiffs’ Counsel. Plaintiffs’ attorneys’ fees will be paid by Defendants separately from – and will not decrease – the amount to be distributed to Class Members.
4. Court approved Bonus-payments to the named Plaintiffs (up to $22,500.00), costs incurred by Plaintiffs’ Counsel in litigating this case (up to
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$35,000.00), and settlement administration costs (up to $200,000.00), shall all be deducted from the Settlement Fund before any monies are distributed to any Class Member.
C. Payments to Class Members and Distribution of the Settlement Fund 1. Each Class Member who submits a timely Claim Form will be entitled to receive their proportionate share of the Distribution Amount. This amount to be distributed to each Class Member shall be based on the following Plan of Distribution:
i. The Five Distribution Categories. • Category 1: Members of the Class who (i) were not on probation or parole at
the time of their admission to Lancaster County Prison, (ii) whose Checklist does not have any checks in the “Yes” column, and (iii) whose Checklist is checked or signed on the line next to “THIS PRISONER HAS BEEN SEARCHED BY ME.” • Category 2: Members of the Class who (i) were not on probation or parole at the time of their admission to Lancaster County Prison, (ii) whose Checklist does not have any checks in the “Yes” column, and (iii) whose Checklist is checked or signed on the line next to “THIS PRISONER HAS BEEN SEARCHED BY ME,” and is checked or signed on the line next to “THIS PRISONER HAS NOT BEEN SEARCHED BY ME.” • Category 3: Members of the Class who (i) were on probation or parole at the time of their admission to Lancaster County Prison, (ii) whose Checklist does
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not have any checks in the “Yes” column, and (iii) whose Checklist is checked or signed on the line next to “THIS PRISONER HAS BEEN SEARCHED BY ME.” • Category 4: Members of the Class who (i) were on probation or parole at the time of their admission to Lancaster County Prison, (ii) whose Checklist does not have any checks in the “Yes” column, and (iii) whose Checklist is checked or signed on the line next to “THIS PRISONER HAS BEEN SEARCHED BY ME,” and is checked or signed on the line next to “THIS PRISONER HAS NOT BEEN SEARCHED BY ME.” • Category 5: Members of the Class who do not qualify for membership in Categories 1 through 4, but who claimed that they were strip searched upon their admission to Lancaster County Prison.
ii. Distribution Allocation to the Five Categories. The Parties agree that Defendants shall fund the categories as follows: • $798,300.00 shall be allocated to Class Members who fall into Category 1. Class Members in Category 1 shall be entitled to their proportionate share of the funds allocated to Category 1; provided, however, that each individual Settlement Class Members’ claim shall not exceed $900. • $127,000.00 shall be allocated to Class Members who fall into Category 2. Class Members in Category 2 shall be entitled to their proportionate share of the funds allocated to Category 2; provided, however, that each individual Settlement Class Members’ claim shall not exceed $500.00. If the value of
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claims by Class Members in Category 2 exceeds $127,000.00, Defendants agree to fund Category 2 with up to an additional $190,500.00. • $173,440.00 shall be allocated to Class Members who fall into Category 3. Class Members in Category 3 shall be entitled to their proportionate share of the funds allocated to Category 3; provided, however, that each individual Settlement Class Members’ claim shall not exceed $400.00. If the value of claims by Class Members in Category 3 exceeds $173,440.00, Defendants agree to fund Category 3 with up to an additional $260,160.00. • $73,120.00 shall be allocated to Class Members who fall into Category 4. Class Members in Category 4 shall be entitled to their proportionate share of the funds allocated to Category 4; provided, however, that each individual Settlement Class Members’ claim shall not exceed $200.00. If the value of claims by Class Members in Category 4 exceeds $73,120.00, Defendants agree to fund Category 4 with up to an additional $109,680.00. • $25,000.00 shall be allocated to Class Members who fall into Category 5. Class Members in Category 5 shall be entitled to their proportionate share of the funds allocated to Category 5; provided, however, that the claims of each individual Settlement Class Member in Category 5 shall not exceed $50.00. Class Members in Category 5 shall execute a sworn and notarized affidavit, and submit it with their Claim form.
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2. For each Class Member who submits a Claim Form, Defendants shall review their Checklist and determine which of the foregoing Categories that particular Class Member is a member.
3. No Class Member shall be entitled to more than one proportionate share of the Distribution Amount, regardless of the number of times he or she has been booked and/or strip searched at the Lancaster County Prison.
4. In the event that there is money remaining in the Settlement Fund after payment to Class Members who have submitted timely Claim Forms, and after the payment of attorneys’ fees, litigation expenses, settlement administration costs, and any Court-approved Incentive Bonuses, the Defendants’ insurance company, Travelers, will receive a reverter of all remaining funds.
5. The Parties anticipate that late claims may be filed subsequent to the end of the claims period. Late claims may be allowed, if submitted on or before the date of the Final Approval Hearing, under the sole discretion of Class Counsel for good cause shown; provided, however, that any claims submitted more than twenty (20) days after the end of the claims period shall not be allowed. All late claims will be approved by the Court prior to being paid as part of the distribution of the settlement.
6. The Class List will be prepared and provided by Defendants’ Counsel to Class Counsel and to the Claims Administrator to facilitate notice to Class members.
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7. Any money paid to any Class Member shall be reduced by the amount of any outstanding debt(s) owed by the Class Member to Lancaster County or any of its agencies, including but not limited to Lancaster County Prison, Lancaster County Adult Probation and Parole, and/or the Lancaster County Court of Common Pleas. This provision shall be included in the notice provided to Class Members.
D. Additional Discovery Defendants will cooperate in a timely and reasonable manner in discovery to determine class size and Class Members’ names and addresses, including but not limited to the reasonable production of records necessary to identify the members of the Settlement Class. E. Partial Distribution Pending Appeal In the event that Final Approval of the Settlement is appealed by either party or by a third party objector, and if the payment of some portion of the Settlement Fund is not subject to dispute, that undisputed portion of the Settlement Fund shall be distributed in accordance with this agreement. If the distribution of some or all of the settlement proceeds is in dispute due to a pending appeal, the disputed amount will be placed in an insured interest bearing escrow account and shall not be distributed during the pendency of the appeal. In the event that final approval of the Settlement is overturned on appeal, all funds, including interest, will be refunded to Defendants, as per its contributions to the Settlement Fund, with the exception of the Initial Contribution, detailed in section
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III(B)(2), and any additional notice and administration costs incurred above the Initial Contribution.
IV. NOTIFICATION TO CLASS MEMBERS A. Responsibilities of the Settlement Administrator and Website Administrator 1. The Settlement Administrator shall implement and administer the Notice Program. 2. The Settlement Administrator shall be responsible for, without limitation: (i) mailing the Class Notices; (ii) arranging for the publication of the Summary Notice; (iii) responding to requests for a copy of the Class Notice; (iv) otherwise administering the Notice Program; and (v) distributing payments to the Settlement Class Members; and otherwise administering the Notice Program. The Notice Program shall comply with all requirements of applicable law. The Settlement Administrator will maintain an appropriate insurance policy to protect against any violation of its fiduciary duty to the Court, Class Members, or Class Counsel. 3. The Website Administrator will maintain the settlement website, which will provide information about the settlement to Class Members, including notice and claims documents, court documents, and a copy of the Settlement Agreement.
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B. Notice 1. Notice will be provided to the Class by direct mailing of Class Notice and a Claim Form to all individuals at their address on the Class List, and by publication in the Philadelphia Inquirer and in the Intelligencer Journal-Lancaster New Era on at least one day per week for three consecutive weeks commencing on the Notice date, and on one occasions during the last ten days of the Claims Period. Notice will also be posted in a prominent location by Defendants at the Lancaster County Prison and the Lancaster County Office of Probation and Parole. 2. The Settlement Administrator shall also provide a copy of the Class Notice and Claim Form to anyone who requests notice through written communication to the Settlement Administrator, or through a toll-free telephone number to be established by the Settlement Administrator. The Website Administrator will also provide downloadable copies of notices, claim forms, court decisions and other information to class members through a dedicated internet website. 3. Defendants will cooperate in the Notice Program by providing Plaintiffs’ Counsel and/or the Settlement Administrator with information reasonably necessary to identify the members of the settlement class, including the Class List. The Defendants will make reasonable efforts to provide Class Counsel with additional information in their possession upon reasonable notice that such information is required by Class Counsel for purposes of Notice to the Class. 4. If, after the initial mailing, the Notice is returned as undeliverable, the
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Claims Administrator will attempt to locate the Class Members by way of a national locator database or service and, if another address is found, re-mail the Notice to that new address.
5. The Settlement Administrator shall provide an affidavit to the Court, with a copy to Class Counsel and Defendants’ Counsel, attesting to the measures undertaken to provide Notice of the Settlement. The Website Administrator will also provide an affidavit attesting to activity on the settlement website, including number of visitors and number of documents downloaded.
6. The Settlement Administrator (and any person retained by the Settlement Administrator) shall sign a confidentiality agreement in a form agreed to by the Parties, which shall provide that the names, addresses and other information about specific Class Members and/or specific Class Members that is provided to it by Defendants, Class Counsel, or by individual Settlement Class Members, shall be treated as confidential and shall be used only by the Settlement Administrator as required by this Settlement Agreement.
V. REQUESTS FOR EXCLUSION BY CLASS MEMBERS A. The provisions of this paragraph shall apply to any Request for Exclusion. Any Class Member may make a Request for Exclusion by mailing or delivering such request in writing to the Settlement Administrator. Any Request for Exclusion must be postmarked or delivered not later than the Opt-Out Deadline. Any Request for Exclusion shall state the name, address and telephone number of the person requesting exclusion, and contain a clear statement communicating that
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such person elects to be excluded from the Settlement, does not wish to be a Settlement Class Member and elects to be excluded from any judgment entered by the Court pursuant to the Settlement.
B. Any Class Member who submits a timely Request for Exclusion may not file an objection to the Settlement, and shall be deemed to have waived any rights or benefits under this Settlement Agreement.
C. Not later than three (3) business days after the deadline for submission of Requests for Exclusion, the Settlement Administrator shall provide an Opt-Out List to Class Counsel and to Defendants’ Counsel together with copies of the Request for Exclusion. Class Counsel and Defendants’ Counsel shall jointly report the names appearing on the Opt-Out List to the Court at the time of the Final Approval Hearing.
D. Class Counsel agrees that they will not represent any individuals who opt out from the Settlement in asserting claims against Defendants that are the subject of this agreement.
VI. OBJECTIONS BY SETTLEMENT CLASS MEMBERS A. Any Settlement Class Member who wishes to be heard orally at the Final Approval Hearing, or who wishes for any objection to be considered, must file a written notice of objection by the Objection Date. Such objection shall state the name, address and telephone number of the person and provide proof of membership in the Settlement Class, as well as a detailed statement of each objection asserted, including the grounds for objection and reasons for appearing
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and being heard, together with any documents such person wishes to be considered in support of the objection.
B. The agreed-upon procedures and requirements for filing objections in connection with the Final Approval Hearing are intended to ensure the efficient administration of justice and the orderly presentation of any Settlement Class Members' objections to the Settlement Agreement, in accordance with such Settlement Class Members’ due process rights. The Preliminary Approval Order and Class Notice will require all Settlement Class Members who have any objections to file such notice of objection or request to be heard with the Clerk of the Court, and serve by mail or hand delivery such notice of objection or request to be heard, including all papers or evidence in support thereof, upon one of the Class Counsel and Defendants’ Counsel, at the addresses set forth in the Class Notice, no later than the Objection Date. The Preliminary Approval Order will further provide that objectors who fail to properly or timely file their objections with the Clerk of the Court, along with the required information and documentation set forth above, or to serve them as provided above shall not be heard during the Final Approval Hearing, nor shall their objections be considered by the Court.
C. In accordance with law, only Class Members who may object to the Settlement pursuant to the terms immediately above may appeal any Final Judgment. The proposed Final Judgment shall provide that any Class Member who wishes to appeal Final Judgment, which appeal will delay the distribution of the
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Settlement to the Class, shall post a bond with this Court in any amount to be determined by the Court as a condition of prosecuting such appeal.
VII. RELEASE, DISMISSAL OF ACTION, AND JURISDICTION OF COURT
A. By this Settlement Agreement and the following Release, Defendants, and all of their officials, affiliates, predecessors, successor and assigns, officers, agents, representatives, insurers and employees are released from any and all claims or causes of action that were, could have been, or should have been asserted by the Plaintiffs or any member of the Class against the Released Persons, or any of them, based upon or related to the actions that are the subject of this Settlement Agreement.
B. This Settlement Agreement and Release does not affect the rights, if any, of Class Members who timely and properly exclude themselves from the Settlement.
C. The administration and consummation of the Settlement as embodied in this Settlement Agreement shall be under the authority of the Court. The Court shall retain jurisdiction to protect, preserve, and implement the Settlement Agreement, including, but not limited to, the Release. The Court expressly retains jurisdiction in order to enter such further orders as may be necessary or appropriate in administering and implementing the terms and provisions of the Settlement Agreement, including, but not limited to, orders enjoining Settlement Class
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Members from prosecuting claims that are released pursuant to the Settlement Agreement.
D. Upon the Effective Date and the conclusion of any appeals: (i) the Settlement Agreement shall be the exclusive remedy for any and all Released Claims of Class Members; (ii) the Released Parties shall not be subject to liability or expense of any kind to any Settlement Class Members or their successors, predecessors or assigns except as set forth herein; and (iii) Class Members and their successors, predecessors and assigns shall be permanently barred from initiating, asserting, or prosecuting any and all Released Claims against any Released Party in any federal or state court in the United States or any other tribunal.
E. Tolling of Statute of Limitations. Defendants agree that, with respect to any claims asserted in the Litigation that are subsequently asserted by any member of the Class who has properly opted out of the Settlement, Defendants shall not assert any statute of limitations, repose, or laches defense that did not exist as of August 22, 2005.
VIII. INCENTIVE AWARDS TO CLASS REPRESENTATIVES Given the efforts of the Plaintiffs on behalf of the Class, Defendants will not oppose an application for awards of $15,000.00 for Class Representative Sajan Kurian, and $7,500.00 for Class Representative Michael Rhodes, such amounts to be paid before distributions to the general Class.
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IX. REPRESENTATIONS, WARRANTIES AND COVENANTS A. Class Counsel, who are signatories hereof, represent and warrant that they have the authority, on behalf of Plaintiffs, to execute, deliver, and perform this Settlement Agreement and to consummate all of the transactions contemplated hereby. This Settlement Agreement has been duly and validly executed and delivered by Class Counsel and Plaintiffs and constitutes their legal valid and binding obligation. B. Defendants, through their undersigned attorneys, represent and warrant that they has the authority to execute, deliver, and perform this Settlement Agreement and to consummate the transactions contemplated hereby. The execution, delivery and performance by Defendants of this Settlement Agreement and the consummation by them of the actions contemplated hereby have been duly authorized by all necessary corporate action on the part of Defendants. This Settlement Agreement has been duly and validly executed and delivered by Defendants and constitutes their legal, valid, and binding obligation.
X. MISCELLANEOUS PROVISIONS A. This Settlement Agreement, and the exhibits and related documents hereto, are not, and shall not at any time be construed or deemed to be, or to evidence, any admission against or concession by Defendants with respect to any wrongdoing, fault, or omission of any kind whatsoever, regardless of whether or not this Settlement Agreement results in entry of a Final Judgment as contemplated herein. Any payment of moneys on behalf of the Defendants, or any other action
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taken, by the Defendants pursuant to any provision of this Settlement Agreement, shall not at any time be construed or deemed to be, or to evidence, any admission against or concession by Defendants with respect to any wrongdoing, fault, or omission of any kind whatsoever, regardless of whether or not this Settlement Agreement results in entry of a Final Judgment as contemplated herein. Defendants deny any liability to Plaintiffs and to all Members of the Class. This provision shall survive the expiration or voiding of the Settlement Agreement.
B. This Settlement Agreement is entered into only for purposes of Settlement. In the event that the Effective Date does not occur for any reason or the Final Judgment is not entered, then this Settlement Agreement, including any releases or dismissals hereunder, is canceled. In the event this Settlement Agreement is cancelled or deemed cancelled, no term or condition of this Settlement Agreement, or any draft thereof, or of the discussion, negotiation, documentation or other part or aspect of the Parties’ settlement discussions shall have any effect, nor shall any such matter be admissible in evidence for any purpose, or used for any purposes whatsoever in the Litigation or in any other litigation, and all Parties shall be restored to their prior rights positions as if the mediation had never occurred and the Settlement Agreement had not been entered into.
C. The headings of the sections and paragraphs of this Settlement Agreement are included for convenience only and shall not be deemed to constitute part of this Settlement Agreement or to affect its construction.
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D. This Settlement Agreement, including all exhibits attached hereto, may not be modified or amended except in writing signed by all of the Parties or their counsel.
E. This Settlement Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.
F. This Settlement Agreement shall be governed by and construed in accordance with the substantive laws of the Commonwealth of Pennsylvania, without giving effect to any choice or conflict of law provision, or rule that would cause the application of the laws of any other jurisdiction.
G. Except as otherwise provided in this Settlement Agreement, each party to this Settlement Agreement shall bear his or its own costs of the Litigation.
H. If any clause, provision or paragraph of this Settlement Agreement shall for any reason, be held illegal, invalid, or unenforceable, such illegality, invalidity, or unenforceability shall not affect any other clause, provision or paragraph of this Settlement Agreement, and this Settlement Agreement shall be construed and enforced as if such illegal, invalid, or unenforceable clause, paragraph, or other provisions had not been contained herein.
I. The Parties to this Settlement Agreement reserve the right, by agreement and subject to the Court's approval, to grant any reasonable extensions of time that might be necessary to carry out any of the provisions of this Settlement Agreement.
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J. All applications for Court approval or Court orders required under this Settlement Agreement shall be made on notice to Plaintiffs and Defendant.
K. The determination of the terms of, and the drafting of, this Settlement Agreement, including its exhibits, has been by mutual agreement after negotiation, with consideration by and participation of all Parties and their counsel. Since this Settlement Agreement was drafted with the participation of all Parties and their counsel, the presumption that ambiguities shall be construed against the drafter does not apply. Each of the Parties was represented by competent and effective counsel throughout the course of settlement negotiations and in the drafting and execution of this Settlement Agreement, and there was no disparity in bargaining power among the Parties to this Settlement Agreement. In entering into this Settlement Agreement, none of the Parties relied on advice received from any other Party or any other Party’s counsel.
L. Integrated Agreement 1. All of the exhibits to this Settlement Agreement are material
and integral parts hereof, and are fully incorporated herein by reference. 2. This Settlement Agreement and the exhibits thereto constitute
the entire, fully integrated agreement among the Parties and cancel and supersede all prior written and unwritten agreements and understandings pertaining to the settlement of the Litigation.
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M. Notice: 1. Any notice, request or instruction or other document to be given
by any party to this Settlement Agreement to any other party to this Settlement Agreement (other than class notification) shall be in writing and delivered personally or sent by registered or certified mail, postage prepaid:
If to Defendants, to: David J. MacMain, Esquire LAMB McERLANE, PC 24 E. Market Street, P.O Box 565 West Chester, PA 19381 (610) 430-8000
If to Class Counsel or Plaintiffs, to: Joseph G. Sauder, Esquire CHIMICLES & TIKELLIS LLP One Haverford Centre 361 West Lancaster Avenue Haverford, PA 19041
N. Dispute Resolution The Parties agree that any disputes regarding the terms and conditions of this Agreement, the Parties’ rights and obligations under this Settlement Agreement, and/or the manner in which any issue or dispute arising under this Settlement Agreement shall be submitted to the Court, who shall attempt to mediate such dispute, and if such dispute cannot be resolved via mediation before the Mediator, shall decide such dispute. The Court's and/or Mediator’s decision shall be final and binding.
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IN WITNESS WHEREOF, Plaintiffs and Defendant and their respective counsel have executed this Settlement Agreement as of the date(s) indicated on the lines below.

FOR PLAINTIFFS AND THE CLASS:

FOR DEFENDANTS:

By: /s/ David Rudovsky David Rudovsky (I.D. No. 15168) Jonathan H. Feinberg (I.D. No. 88227) KAIRYS, RUDOVSKY, MESSING & FEINBERG LLP The Cast Iron Building 718 Arch Street, Suite 501 Philadelphia, PA 19106 Office: 215-925-4400 Fax: 215-925-5365

By:_/s/ David J. MacMain David J. MacMain (I.D. No. 59320) LAMB McERLANE, PC 24 E. Market St., P.O. Box 565 West Chester, PA 19381 (610) 430-8000

Joseph G. Sauder (I.D. No. 82467) Benjamin F. Johns (I.D. No. 201373) CHIMICLES & TIKELLIS LLP One Haverford Centre 361 West Lancaster Avenue Haverford, PA 19041 Telephone: (610) 642-8500 Facsimile: (610) 649-3633

Christopher G. Hayes (I.D. No. 57253) LAW OFFICE OF CHRISTOPHER G. HAYES 225 South Church Street West Chester, PA 19382 610-431-9505 (phone) 610-431-1269 (fax)

Daniel C. Levin (I.D. No. 80013) LEVIN, FISHBEIN, SEDRAN & BERMAN 510 Walnut Street, Ste. 500 Philadelphia, PA 19106
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 Case 2:07-cv-03482-PD Document 53 Filed 09/01/09 Page 1 of 25

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SAJAN KURIAN, individually and on

:

behalf of a class of others similarly situated, :

Plaintiffs,

:

v.

:

:

THE COUNTY OF LANCASTER, THE :

LANCASTER COUNTY PRISON BOARD :

and JOHN DOES 1-20,

:

Defendants.

:

CIVIL ACTION NO. 07-3482

ORDER

In this putative class action, Plaintiffs challenge Defendants’ alleged policy or practice of

strip searching all pretrial detainees upon their commitment to Lancaster County Prison: (1)

regardless of the nature of the charged offense; and (2) without determining whether reasonable

suspicion exists to believe the detainee is concealing weapons or contraband. 28 U.S.C. § 1983.

The Parties now ask me to certify conditionally a Rule 23(b)(3) class for settlement purposes and

approve preliminarily their proposed Settlement. I grant their Motion.

BACKGROUND The Supreme Court has held that in determining the Fourth Amendment reasonableness of pretrial detainee strip searches, courts must consider “the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” Bell v. Wolfish, 441 U.S. 520, 559 (1979) (upholding prison’s policy of strip searching all pretrial detainees that had contact visits with outsiders). Applying Bell, the First, Second, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth Circuits have held that a pretrial
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detainee charged with a misdemeanor or lesser offense may not be strip searched upon commitment without reasonable suspicion to believe that he or she is concealing a weapon or contraband. See Allison v. GEO Group, Inc., 611 F. Supp. 2d 433, 451-52 (E.D. Pa. 2009) (collecting cases); see also Young v. County of Cook, 616 F. Supp. 2d 834, 846 (N.D. Ill. 2009) (“The crux of these cases is that given the extreme intrusion into personal privacy that a strip search or body cavity search entails, people charged with minor offenses that do not involve drugs or weapons are not subject to such searches absent individualized reasonable suspicion. Of all the circuits to consider this issue, only the Eleventh Circuit has reached a contrary result.”); but see Powell v. Barrett, 541 F.3d 1298, 1310 (11th Cir. 2008) (“The difference between felonies and misdemeanors or other lesser offenses is without constitutional significance when it comes to detention facility strip searches.”). The Third Circuit has not yet addressed this issue. See Allison, 611 F. Supp. 2d at 437.
Plaintiffs filed the instant action on August 22, 2007, alleging that Defendants have “instituted a written and/or de facto policy, custom or practice of strip searching all individuals who enter the custody of the Lancaster County Prison and are placed into Prison clothing, regardless of the nature of their charged crime or violation and without the presence of reasonable suspicion to believe that the individual was concealing a weapon or contraband.” Compl. ¶ 24 (Doc. No. 1). Plaintiffs sought money damages and declaratory and injunctive relief pursuant to 28 U.S.C. § 1983, and asked me to certify a hybrid Rule 23(b)(2)/(b)(3) class of similarly situated persons: (1) who, commencing on August 22, 2005, have been or will be admitted to LCP after being detained for misdemeanors or similar offenses “that do not involve the possession or distribution of drugs, possession of weapons, or are violent felonies”; and (2)
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“who were or will be strip searched upon their entry into [LCP] pursuant to the practice, policy, or custom of Defendants.” Am. Compl. ¶ 11; Doc. No. 33 at 1.
Plaintiffs moved for class certification on November 11, 2007. (Doc. No. 17.) On November 21, 2007, I issued a Scheduling Order and allowed Plaintiffs to submit a renewed Motion for Class Certification following class discovery. (Doc. No. 21.) Plaintiffs filed an Amended Complaint on May 15, 2008, and renewed their Motion for Class Certification on October 14, 2008. (Doc. Nos. 28, 32.) Defendants filed an Opposition on November 4, 2008; Plaintiffs filed a Reply on November 14, 2008. (Doc. Nos. 35, 38, 39.) Oral argument on Plaintiffs’ Motion was scheduled for November 24, 2008. (Doc. No. 31.) During a Chambers Conference before oral argument, however, the Parties agreed to suspend litigation while they engaged in settlement discussions. (Doc. Nos. 42, 43.)
The Parties agreed to settle this matter on March 23, 2009. (Doc. Nos. 45, 48 at 2.) Their Settlement Agreement (executed on July 28, 2009) provides for a $2,507,200 Settlement Fund, with an initial contribution of $1,946,860. See Settlement Agreement § III.B.1. The amount distributed to each Class Member -- ranging from $50 to $900 -- will be determined by his or her classification into one of five categories. Id. § III.C.1(i). These categories are based on various criteria, including: whether the Class Member was on probation or on parole at the time of admission to LCP, and the information disclosed on the individual’s Strip Search Checklist pertaining to the nature of the charge, whether the detainee has a known history of violence or drug use, and whether the detainee was disruptive or threatening when he or she was admitted. Id.; see also id., Ex. D.
The Parties jointly filed the instant Motion on July 31, 2009, asking me to: (1) certify
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conditionally a Rule 23(b)(3) class for settlement purposes; (2) approve preliminarily the Settlement; (3) direct notice of the Settlement to the Class; and (4) schedule a Final Approval Hearing. (Doc. No. 48.) On August 20, 2009, I held a hearing on the Motion. Doc. No. 52; see Gates v. Rohm and Haas Co., 248 F.R.D. 434, 438 (E.D. Pa. 2008) (“Judicial review of a proposed class settlement generally requires two hearings: one preliminary approval hearing and one final ‘fairness’ hearing.”).
LEGAL STANDARDS Federal Rule of Civil Procedure 23(e) provides that “[t]he claims, issues, or defenses of a certified class may be settled . . . only with the court’s approval.” Fed. R. Civ. P. 23(e). At the preliminary approval stage, I must determine whether the “settlement falls within the range of reason.” Gates, 248 F.R.D. at 438 (quotations omitted); see also Manual for Complex Litigation, § 21.632 (4th ed. 2009). Where a class has not already been certified, I must also independently determine that the proposed settlement class satisfies the requirements of Rule 23. See Amchem v. Windsor, 521 U.S. 591, 620 (1997); In re Prudential Ins. Co. of Amer. Sales Practices Litig., 148 F.3d 283, 308 (3d Cir. 1998) (“[A] district court must first find [that] a class satisfies the requirements of Rule 23, regardless of whether it certifies the class for trial or settlement.”); see also Manual for Complex Litigation, § 21.632 (4th ed. 2009) (“The judge should make a preliminary determination that the proposed class satisfies the criteria set out in Rule 23(a) and at least one of the subsections of Rule 23(b).”). As the Supreme Court has explained: Confronted with a request for settlement-only class certification, a district court need not inquire whether the case, if tried, would present intractable management problems, see Fed. Rule Civ. Proc. 23(b)(3)(D), for the proposal is that there be
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no trial. But other specifications of the Rule -- those designed to protect absentees by blocking unwarranted or overbroad class definitions -- demand undiluted, even heightened, attention in the settlement context. Such attention is of vital importance, for a court asked to certify a settlement class will lack the opportunity, present when a case is litigated, to adjust the class, informed by the proceedings as they unfold. Amchem, 521 U.S. at 620. In determining whether to certify, I must accept as true all substantive allegations in the Amended Complaint. See Chiang v. Veneman, 385 F.3d 256, 262 (3d Cir. 2004) (citing Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78 (1974)). Although I may not consider whether Plaintiffs will prevail on the merits, I must “make whatever factual and legal inquiries are necessary and must consider all relevant evidence and arguments presented by the parties.” In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 307 (3d Cir. 2008).
DISCUSSION In deciding whether to certify the Settlement Class conditionally and in evaluating the proposed Settlement, I have considered, inter alia, those arguments made by the Parties before they agreed to settle. That review convinces me that conditional certification is warranted, that the Settlement appears reasonable, and that the Class Notice passes legal muster.
I. Conditional Certification of a Settlement Class A. Rule 23(a) Prerequisites Numerosity Rule 23(a)(1) requires that the Class be so numerous that joinder of its members is
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impracticable. “Generally, if the named plaintiff demonstrates that the potential number of plaintiffs exceed 40, the numerosity requirement of Rule 23(a) has been met.” Ketchum v. Sunoco, Inc., 217 F.R.D. 354, 357 (E.D. Pa. 2003) (citing Stewart v. Abraham, 275 F.3d 220, 227-28 (3d Cir. 2001)). The proposed Class consists of thousands of persons. (Doc. No. 48 at 21.) It is thus apparent that Plaintiffs meet Rule 23’s numerosity requirement.
Commonality Plaintiffs must also demonstrate that there are questions of law or fact common to the Class. Fed. R. Civ. P. 23(a)(2). A single such issue will suffice. Johnston v. HBO Film Mgmt., Inc., 265 F.3d 178, 184 (3d Cir. 2001). Here, the Parties have identified at least two such common questions: (1) whether Defendants employ a practice or policy of strip searching all new detainees admitted for misdemeanors or lessor charges without individualized reasonable suspicion; and (2) whether that practice or policy is constitutional. These issues satisfy the commonality requirement. See, e.g., In re Nassau County Strip Search Cases, 461 F.3d 219, 229230 (2d Cir. 2006); Florence v. Bd. of Chosen Freeholders of County of Burlington, No. 053619, 2008 WL 800970, at *7 (D.N.J. Mar. 20, 2008) (commonality requirement satisfied where the named Plaintiffs and the proposed class members’ claims involved “the same factual and legal theories”: (1) “that they were all subjected to the same intake procedures, which they claim involve suspicionless strip searching”; and (2) “that these procedures violate the Fourth Amendment”); Dodge v. County of Orange, 226 F.R.D. 177, 180 (S.D.N.Y. 2005) (shared, “central” issue of “the existence or non-existence of a policy at the [defendant prison] of strip searching each and every new pre-trial detainee upon arrival at the jail, regardless of the existence of individualized reasonable suspicion that the new arrival was carrying contraband,
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based on the nature of the crime charged, the circumstances of the arrest, and the particular characteristics of the arrestee” satisfied commonality requirement).
Typicality I must determine whether “the named plaintiff[s’] individual circumstances are markedly different or . . . the legal theory upon which the claims are based differs from that upon which the claims of other class members will perforce be based.” Johnston, 265 F.3d at 184 (quotations omitted). Here, the named Plaintiffs allege that they -- along with each member of the proposed Class -- were strip searched pursuant to Defendants’ blanket policy or practice. See Baby Neal v. Casey, 43 F.3d 48, 58 (3d Cir. 1994) (“[C]ases challenging the same unlawful conduct which affects both the named plaintiffs and the putative class usually satisfy the typicality requirement irrespective of the fact patterns underlying the individual claims.”). In these circumstances, I agree that the typicality requirement is met. See, e.g., Florence, 2008 WL 800970, at *9; Marriott v. County of Montgomery, 227 F.R.D. 159, 172 (N.D.N.Y. 2005) (“The claims of the representative parties in this case, while involving a more detailed search than every member of the class, still are based upon a strip search conducted pursuant [to] the Jail change-out policy. Therefore, the typicality requirement is met.”), aff’d, 2005 WL 3117194 (2d Cir. 2005); Sutton v. Hopkins County, No. 03-003, 2007 WL 119892, at *4 (W.D. Ky. Jan. 11, 2007) (“Because each named Plaintiff alleges an unconstitutional strip search after arrest for a minor violation or before release from Prison, the claims of the representatives are typical of the class as a whole.”). In their Opposition to Plaintiffs’ Motion for Class Certification, Defendants argued that Plaintiff Sajan Kurian’s “individual circumstances” are not typical of those of the Class because: (1) under Pennsylvania law, reasonable suspicion was not required to strip search him because he
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was a parolee; and (2) Kurian consented to the search when, as required by Pennsylvania law, he signed a document consenting to warrantless searches while on parole. Cf. Beck v. Maximus, Inc., 457 F.3d 291, 296 (3d Cir. 2006) (“[U]nique defenses bear on both the typicality . . . of a class representative.”).
I do not believe these defenses would have been viable had this litigation continued. Although Pennsylvania law authorizes parole and probation officers to conduct a “personal search” of a parolee when he or she enters or leaves a “correctional institution, jail, or detention facility,” Defendants have offered no authority suggesting: (1) that this law applies to intake officers; or (2) that a strip search is subsumed within a “personal search.” See 61 Pa. Con. Stat. §§ 331.27a(g), 331.27b(g) (defining a “personal search” as “[a] warrantless search of an offender’s person, including, but not limited to, the offender’s clothing and any personal property which is . . . within the reach or under the control of the offender”); id. §§ 331.27a(d)(1), 331.27b(d)(1).
Moreover, I do not agree that Kurian consented to being strip searched. The Supreme Court authority Defendants had relied upon related to a California statute requiring parolees to agree to be searched “with or without a search warrant and with or without cause.” Samson v. California, 547 U.S. 843, 846 (2006) (citing Cal. Penal Code § 3067(a)); Doc. No. 35 at 29-30. Kurian’s parole agreement included only his consent to be “search[ed] at any time by my probation officer based upon reasonable suspicion that I am in possession of contraband.” Doc. No. 38, Ex. 1 (emphasis supplied); see Commonwealth v. Williams, 457 Pa. 577, 588-89 (1997) (“[T]he parolee’s signing of a parole agreement . . . does not mean either that the parole officer can conduct a search at any time and for any reason or that the parolee relinquishes his Fourth
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Amendment Right to be free from unreasonable searches.”). In these circumstances, I believe that even though Kurian is a parolee, his claims are
typical of those of the Class. Accordingly, I conclude that the typicality requirement is satisfied. Adequacy of Representation Finally, Plaintiffs must demonstrate that they will fairly and adequately protect the
interests of the Class. Fed. R. Civ. P. 23(a)(4). In evaluating this requirement, I must determine “whether the representatives’ interests conflict with those of the class and whether the class attorney is capable of representing the class.” Johnston, 265 F.3d at 185; see also In re Community Bank of N. Va., 418 F.3d 277, 303 (3d Cir. 2005) (“This requirement encompasses two distinct inquiries designed to protect the interests of absentee class members: it considers whether the named plaintiffs’ interests are sufficiently aligned with the absentees’, and it tests the qualifications of the counsel to represent the class.”) (quotations omitted).
Neither Party has suggested any conflict of interest between the named Plaintiffs and the other Class Members. Moreover, Class Counsel -- led by David Rudovsky, the preeminent civil rights lawyer in this District -- are more than capable of representing the Class. Accordingly, I conclude that the adequacy requirement is satisfied.
B. Rule 23(b)(3) Requirements Predominance In determining predominance, I must consider whether [the] proposed class[ is] sufficiently cohesive to warrant adjudication by representation, a standard far more demanding than the commonality requirement of Rule 23(a), requiring more than a common claim. Issues common to the class must predominate over individual issues. Because the nature of the evidence that will suffice to resolve a question determines whether the question is common or
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individual, a district court must formulate some prediction as to how specific issues will play out in order to determine whether common or individual issues predominate in a given case. If proof of the essential elements of the cause of action requires individual treatment, then class certification is unsuitable. In re Hydrogen Peroxide Antitrust Litig., 552 F.3d at 310-11. Numerous courts have found the predominance requirement satisfied in actions similar to the instant matter, reasoning that the existence and constitutionality of a policy or practice of strip searching all new detainees without reasonable suspicion are common issues subject to generalized proof. See, e.g., Florence, 2008 WL 800970, at *12 (“Plaintiff challenges whether Defendants have a policy or practice of using intake procedures for non-indictable arrestees that are tantamount to suspicionless strip searches. This issue is at the heart of each putative class members’ claim and turns on generalized, not individualized, proof.”); Marriott, 227 F.R.D. at 173 (“[T]he common question is whether the change-out, strip search procedure applicable to all admittees, regardless of whether reasonable suspicion exists that contraband or weapons are possessed, violates the Fourth Amendment. This question does not vary among class members.”). Defendants had disputed predominance, pointing to evidence contradicting the allegation that they employ a blanket strip search policy, including: (1) LCP’s Strip Search Checklists, which include questions to help the intake officer determine whether reasonable suspicion exists; (2) the deposition testimony of several former and current corrections officers that all new detainees are not strip searched; and (3) a video demonstration of how new detainees are processed. See Doc. No. 35, Exs. 1-10, 12-13, 19. Defendants thus argued that whether each Class Member was illegally strip searched would require individualized determinations of
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reasonable suspicion. Other courts have rejected similar arguments, reasoning that whether a prison follows its
own strip search policies -- or instead, employs a de facto practice of strip searching all new detainees -- is a factual question that does not defeat predominance. See, e.g., Sutton, 2007 WL 119892, at *7 (rejecting argument that prison’s written policy refuted the existence of a blanket strip search practice and so defeated predominance; “Ultimately, a reasonable jury could find that the . . . Jail failed to follow its written policy, and instead followed a custom or practice to strip search all persons . . . without regard to . . . reasonable suspicion[.]”). Moreover, Plaintiffs have offered considerable evidence demonstrating the existence of a blanket practice, including: (1) the deposition testimony of current and former correctional officers who could not recall “a single instance” where a new detainee was not strip searched; (2) new detainee Strip Search Checklists created during a 77 day period indicating that 32% were strip searched even though the Checklists provided no basis for such action; and (3) LCP’s “Contraband Training” video -created in 1978 and purportedly still in use -- directing that all new detainees are to be strip searched. See Doc. No. 33 at 3-11.
Further, Defendants have admitted that all new detainees must submit to a “clothing exchange”: i.e., completely undress and change into prison clothes in the presence of a corrections officer. (Doc. No. 35 at 16-17.) At least one court has held that this practice does not differ materially from a strip search. See Marriott, 227 F.R.D. at 169 (certifying a Rule 23(b)(3) class challenging the constitutionality of a prison’s clothing “change-out” policy; “The differences . . . in the extent and purpose of the [clothing exchange] procedure do not change the fact that the admittees are required to strip naked in front of a [corrections officer] and submit to
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the observation of their body . . . . This procedure squarely fits both the common and legal definitions of strip search.”), aff’d, 2005 WL 3117194 (2d Cir. 2005). Accordingly, whether a “clothing exchange” is the equivalent of a “strip search,” and whether Defendants’ “clothing exchange” policy comports with the Fourth Amendment are also predominant, common issues.
Defendants further argued that individual issues would predominate because, the existence of a blanket strip search practice notwithstanding, some Class Members: (1) may have been strip searched as a result of reasonable suspicion; or (2) could have been searched as a result of reasonable suspicion. See Doc. No. 35 at 39-44. Several courts have rejected similar challenges to predominance in strip search class actions. See, e.g., In re Nassau County Strip Search Cases, 461 F.3d at 229-230 (“The class definition also implicated two broad common liability issues: whether the blanket policy existed and whether defendants are liable for its implementation. The only countervailing, individualized liability issue was whether, regardless of the policy, some plaintiffs were strip searched based upon ‘reasonable and contemporaneously held suspicion.’ The existence of this defense does ‘not . . . foreclose class certification.’”) (quoting In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 138 (2d Cir. 2001)). The First Circuit has reasoned that
[i]f there [is] in fact a rule, custom or policy of strip searching every arrestee or a substantially overlarge category, then it is a fair guess that most arrestees so classed were strip searched on this basis. There might yet be some number as to whom defensible individual judgments to strip search were actually made or could have been made -- two different situations with different legal implications; but whoever has the burden of identifying such persons, they may well not be numerous. Tardiff v. Knox County, 365 F.3d 1, 6 (1st Cir. 2004). Other courts have ruled that once plaintiffs establish a blanket practice of strip searching all new detainees: (1) the burden shifts to
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the defendant to prove that particular class members were legally strip searched based on reasonable suspicion; and (2) the existence of such a defense to certain class members’ claims does not defeat predominance. See Sutton, 2007 WL 119892, at *4 (“Courts generally recognize that if plaintiffs can establish that defendants had an unconstitutional strip search policy or custom, defendants will have the burden to show that a particular search was reasonable.”) (quotations omitted); Dodge, 226 F.R.D. at 182 (“[T]he fact that a particular class member could have been lawfully strip searched if [the prison] had made the constitutionally required assessment is a defense to a particular class member’s claim for damages, not a defense to the class-wide claim that the County searched everyone without making any assessment at all.”); Mack v. Suffolk County, 191 F.R.D. 16, 24 (D. Mass. 2000) (“[T]o require Plaintiff to prove that each individual search was unsupportable, as well as indiscriminate, would be unnecessary and unfair. Given that these [plaintiffs] were routinely strip-searched, the burden rests on Defendants to demonstrate that particular searches were reasonable.”).
In sum, I conclude that the predominance requirement is satisfied. Superiority I must also consider whether a class action is superior to other forms of adjudication. Fed. R. Civ. P. 23(b)(3). “The superiority requirement asks the court to balance, in terms of fairness and efficiency, the merits of a class action against those of alternative available methods of adjudication.” In re Prudential, 148 F.3d at 316 (quotations omitted). It is apparent that a class action is the superior form of adjudication. Indeed, because each Class Member’s “provable[,] actual damages” are likely low, a class action is “not only the superior means, but probably the only feasible one . . . to establish liability and perhaps
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damages.” Tardiff, 365 F.3d at 7 (“[O]nly the limited number of cases where serious damage ensued would ever be brought without class status and . . . the vast majority of claims would never be brought unless aggregated because provable actual damages are too small.”) (citations omitted); see also In re Nassau County Strip Search Cases, 461 F.3d at 229 (“Absent class certification and its attendant class-wide notice procedures, most of these individuals -- who potentially number in the thousands -- likely never will know that defendants violated their clearly established constitutional rights, and thus never will be able to vindicate those rights. As a practical matter, then, without use of the class action mechanism, individuals harmed by defendants’ policy and practice may lack an effective remedy altogether.”).
In sum, I conclude that Plaintiffs satisfy the requirements of Rule 23(a) and at least one requirement of Rule 23(b). Accordingly, I will conditionally certify a Rule 23(b)(3) class for settlement purposes.
II. Preliminary Approval of Settlement “The preliminary approval decision is not a commitment to approve the final settlement;
rather, it is a determination that there are no obvious deficiencies and the settlement falls within the range of reason.” Gates, 248 F.R.D. at 438 (quotations omitted); see also In re Diet Drugs Prods. Liab. Litig., No. 99-20593, 1999 WL 33644489, at *2 (E.D. Pa. Dec. 3, 1999) (“[A] district court’s first step in reviewing a class action settlement proposal is . . . to determine whether the proposed settlement is within the range of possible approval.”) (quoting Armstrong v. Bd. of Sch. Dirs. of the City of Milwaukee, 616 F.2d 305, 314 (7th Cir. 1980)); Manual for Complex Litigation, § 21.632 (4th ed. 2009). In determining whether to approve preliminarily
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the Settlement, I must consider whether: “(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 the class objected.” In re Linerboard Antitrust Litig., 292 F. Supp. 2d 631, 638 (E.D. Pa. 2003) (quoting In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 785-86 (3d Cir. 1995)).
It is apparent that the proposed Settlement is the result of good faith, arms-length negotiations between the Parties. Before settlement negotiations began, Class Counsel took extensive class discovery, including numerous interrogatories, voluminous document production, and many depositions and interviews. (Doc. No. 48 at 4). The Parties also vigorously litigated class certification. The settlement negotiations involved the mediation services of former Chief Magistrate Judge James R. Melinson and took several months. Moreover, Class Counsel and Defense Counsel are familiar with the issues presented, having previously litigated the constitutionality of prison strip search policies. See, e.g., Martinez v. Warner, No. 07-3213 (E.D. Pa. 2007) (David MacMain, counsel for Defendants); Boone v. City of Phil., No. 05-1851 (E.D. Pa. 2005) (Daniel C. Levin and Christopher G. Hayes, counsel for Plaintiffs). Finally, I am not aware of any objectors to the proposed Settlement at this stage.
Significantly, the Settlement Agreement will provide prospective relief that the named Plaintiffs sought in this action, but likely lacked standing to pursue. In their Amended Complaint, Plaintiffs brought claims for declaratory and injunctive relief, seeking to change practices at LCP. Courts have repeatedly concluded in similar circumstances that the plaintiffs lacked standing to seek such equitable relief because the threat that they would suffer future harm -- i.e., that they would again be arrested, detained at the same facility, and strip searched -- was
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too speculative. See, e.g., Powell v. Barrett, 496 F.3d 1288, 1308 n.27 (11th Cir. 2007); Smook v. Minnehaha County, 457 F.3d 806, 815-16 (8th Cir. 2006), cert. denied, 549 U.S. 1317 (2007); Shain v. Ellison, 356 F.3d 211, 214-216 (2004); Campbell v. Miller, 373 F.3d 834, 836 (7th Cir. 2004); Ducharme v. R.I., 30 F.3d 126, 1994 WL 390144, at *3-4 (1st Cir. July 15, 1994) (unpublished); see also O’Shea v. Littleton, 414 U.S. 488, 494 (1974) (“[I]f none of the named plaintiffs . . . establishes the requisite of a case or controversy with the defendants, none may seek [injunctive] relief on behalf of himself or any other member of the class.”).
In the proposed Settlement, however, Defendants have agreed to revise their strip search policy and employ a new Strip Search Checklist approved by Class Counsel. See Settlement Agreement § III.A.1. The Parties agree that the revised policy comports with the Fourth Amendment; Defendants have agreed to re-train their Corrections Officers to ensure compliance. Id. §§ III.A.2-3. In addition, the Parties have agreed that Class Counsel will monitor compliance with the new policy: every 90 days, Defendants will provide Class Counsel with copies of the intake files for all new detainees during a specified 5 day period. Id. § III.A.4. I will retain jurisdiction during this monitoring, which will terminate 18 months after Final Approval of the Settlement. Id. If Class Counsel believes that Defendants have violated the new policy, and the Parties cannot resolve the dispute, Class Counsel may seek relief from the Court, including contempt sanctions. Id. The providing of significant prospective relief along with monitoring and sanctions again confirms that the proposed Settlement is the product of vigorous litigation and arms-length negotiations.
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III. Class Notice Rule 23(e) requires that I “direct notice in a reasonable manner to all class members who
would be bound by the proposal.” Fed. R. Civ. P. 23(e)(1). This requirement is “designed to summarize the litigation and the settlement and to apprise class members of the right and opportunity to inspect the complete settlement documents, papers, and pleadings filed in the litigation.” In re Prudential, 148 F.3d at 326-27 (quotations omitted).
I conclude that the plan for notifying the Class of the proposed Settlement is reasonable. The Parties have agreed that Class Counsel will obtain from Defendants a last known address, date of birth, and social security number (if possible) for each Class Member. See Settlement Agreement §§ IV.B.1-4. The Notice will be mailed to each identified individual. Class Counsel will also use print media (the Philadelphia Inquirer and the Intelligencer Journal/Lancaster New Era), a website, and a toll-free number to provide notice. See id. § IV.B.1; Zimmer Paper Prods., Inc. v. Berger & Montague, P.C., 758 F.2d 86, 90 (3d Cir. 1985) (“It is well-settled that in the usual situation first class mail and publication fully satisfy the notice requirements of Fed. R. Civ. P. 23 and the due process clause.”). Moreover, the Class Notice and Claim Form will be posted in prominent locations in LCP and the Lancaster County Office of Probation and Parole. See Settlement Agreement §§ IV.B.1; cf. Harris v. Reeves, 761 F. Supp. 383, 393 (E.D. Pa. 1991) (approving similar notice in class action challenging prison overcrowding; “posting in the prisons remain[s] the best way to provide whatever notice is required”).
CONCLUSION In sum, I preliminarily conclude that: (1) the requirements for maintaining a Rule
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Case 2:07-cv-03482-PD Document 53 Filed 09/01/09 Page 18 of 25 23(b)(3) class action are met; (2) the Parties’ proposed Settlement “falls within the range of reason”; and (3) the Class Notice is reasonable. Gates, 248 F.R.D. at 438. Accordingly, I will grant the Parties’ Joint Motion for Preliminary Approval of Settlement and Provisional Class Certification, direct notice of the Settlement to the Class, and schedule a Final Approval Hearing.
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AND NOW, this 1st day of September, 2009, it is ORDERED that the Parties’ Joint “Motion for Preliminary Approval of Settlement and Provisional Class Certification” (Doc. No. 46) is GRANTED as follows:
1. Capitalized terms used in this Order have the meanings assigned to them in the Settlement Agreement and this Order.
2. The terms of the Parties’ Settlement Agreement are hereby conditionally approved, subject to further consideration thereof at the Final Approval Hearing provided for below. The Court finds that said Settlement is sufficiently within the range of reasonableness and that notice of the proposed Settlement should be given as provided in this Order.
3. Pursuant to Federal Rule of Civil Procedure 23, the Court conditionally certifies the following Settlement Class:
All persons who have been or will be placed into the custody of the Lancaster County Prison after being detained for misdemeanors, summary offenses, traffic infractions, civil commitments, bench warrants, violations of probation, parol or Accelerated Rehabilitative Disposition, and/or for other similar charges and/or crimes that do not involve the possession or distribution of drugs, possession of weapons, or are violent felonies, and who were or will be strip searched upon their entry into the Lancaster County Prison pursuant to the policy, custom and practice of the Defendants. The Class Period commences on August 22, 2005 and extends to July 28, 2009. Specifically excluded from the Class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees. 4. The Court further conditionally finds that Plaintiffs Sajan Kurian and Michael Rhodes are adequate Class Representatives for the Settlement Class. 5. The Court further finds that Plaintiffs’ Counsel are adequate Class Counsel. 6. The Parties’ joint “Motion to Court to Authorize Change in Notice” (Doc. No. 51) is GRANTED. The Court approves: (1) the Class Notice of Settlement attached as Exhibit B to
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the Parties’ Settlement Agreement (Doc. No. 47-3); (2) the Summary Notice for Publication
attached as Exhibit E to the Parties’ Settlement Agreement (Doc. No. 47-6); and (3) the final
Publication Notice attached as Exhibit B to the Parties’ joint “Motion to Court to Authorize
Change in Notice” (Doc. No. 51). The Court also approves the Notice Program as set forth in
Section IV of the Settlement Agreement.
7. If the Settlement Agreement is terminated or not consummated for any reason
whatsoever, the conditional certification of the Settlement Class shall be void, the Defendant
shall have reserved all its rights to oppose any and all class certification motions, to contest the
adequacy of Plaintiffs as representative of any putative class, and to contest the adequacy of
Class Counsel as adequate Class Counsel. Additionally, Plaintiffs reserve all of their rights,
including the right to continue with the litigation pending at the time of the Settlement should the
Settlement Agreement not be consummated.
Notice to Settlement Class and Appointment of Settlement Administrator
8. Counsel for the Class (“Class Counsel”) are as follows:
David Rudovsky (I.D. No. 15168) Jonathan H. Feinberg (I.D. No. 88227) KAIRYS, RUDOVSKY, MESSING & FEINBERG LLP The Cast Iron Building 718 Arch Street, Suite 501 Philadelphia, PA 19106 Office: 215-925-4400 Fax: 215-925-5365
Joseph G. Sauder (I.D. No. 82467) Benjamin F. Johns (I.D. No. 201373) CHIMICLES & TIKELLIS LLP One Haverford Centre 361 West Lancaster Avenue Haverford, PA 19041
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Case 2:07-cv-03482-PD Document 53 Filed 09/01/09 Page 21 of 25
Telephone: (610) 642-8500 Facsimile: (610) 649-3633 Christopher G. Hayes (I.D. No. 57253) LAW OFFICE OF CHRISTOPHER G. HAYES 225 South Church Street West Chester, PA 19382 610-431-9505 (phone) 610-431-1269 (fax) Daniel C. Levin (I.D. No. 80013) LEVIN, FISHBEIN, SEDRAN & BERMAN 510 Walnut Street, Ste. 500 Philadelphia, PA 19106 Telephone: 215-592-150 9. Beginning no later than sixty (60) days from the date of this Order Preliminarily Approving Settlement, Class Counsel shall cause to be disseminated the notices, substantially in the form attached as Exhibits A and B hereto, in the manner set forth in Section IV of the Settlement Agreement. Such Notice Program will be completed expeditiously pursuant to the terms of the Settlement Agreement. Class Members will have forty-five (45) days from the Notice Date to opt out or to object, and one-hundred twenty (120) days from the Notice Date to file claims. Prior to the Final Approval Hearing, Plaintiffs and/or the Claims Administrator shall serve and file a sworn statement attesting to compliance with the provisions of this paragraph. 10. The Class Notice to be provided as set forth in the Settlement Agreement as filed with the Court is hereby found to be the best practicable means of providing notice under the circumstances and, when completed, shall constitute due and sufficient notice of the proposed Settlement and the Final Approval Hearing to all persons and entities affected by and/or entitled to participate in the Settlement, in full compliance with the notice requirements of Fed. R. Civ. P. 23, due process, the Constitution of the United States, the laws of Pennsylvania and all other
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Case 2:07-cv-03482-PD Document 53 Filed 09/01/09 Page 22 of 25
applicable laws. The Notices are accurate, objective, informative and provide Class members with all of the information necessary to make an informed decision regarding their participation in the Settlement and its fairness.
11. Class Counsel are authorized to retain a claims administrator to be agreed upon by counsel in accordance with the terms of the Settlement Agreement and this Order.
Requests for Exclusion from the Settlement Class 12. Any member of the Settlement Class that wishes to be excluded (“opt out”) from the Settlement Class must send a written Request for Exclusion to the Claims Administrator, so that it is received by the Claims Administrator at the address indicated in the Notice on or before the close of the opt out period. The Request for Exclusion shall fully comply with the requirements set forth in the Settlement Agreement. Members of the Settlement Class may not exclude themselves by filing Requests for Exclusion as a group or class, but must in each instance individually and personally execute a Request for Exclusion and timely transmit it to the Claims Administrator. 13. Any member of the Settlement Class who does not properly and timely request exclusion from the Settlement Class shall be bound by all the terms and provisions of the Settlement Agreement, whether or not such person objected to the Settlement and whether or not such person made a claim upon, or participated in, the Settlement Fund pursuant to the Settlement Agreement. The Final Approval Hearing 14. A hearing on the Settlement is hereby scheduled to be held before this Court no later than one hundred fifty (150) days from the Notice Date, to consider the fairness, the
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Case 2:07-cv-03482-PD Document 53 Filed 09/01/09 Page 23 of 25
reasonableness, and adequacy of the proposed settlement, the dismissal with prejudice of this class action with respect to the Released Parties that are Defendant herein, and the entry of final judgment in this class action. Class Counsel’s application for award of attorney’s fees and costs shall be heard at the time of the hearing.
15. The hearing shall be subject to adjournment by the Court without further notice to the members of the Settlement Class other than that which may be posted by the Court. Class Counsel will advise members of the Settlement Class of any scheduling issues by way of the Settlement Website.
16. Any person or entity that does not elect to be excluded from the Settlement Class may, but need not, enter an appearance through his or her own attorney. Settlement Class members who do not enter an appearance through their own attorneys will be represented by Class Counsel.
17. Any person who does not elect to be excluded from the Settlement Class may, but need not, submit comments or objections to the proposed Settlement. Any Class member may object to the proposed Settlement, entry of Final Order and Judgment approving the Settlement, and Class Counsel’s application for fees and expenses by serving a written objection.
18. Any Class Member making the objection (an “objector”) must sign the objection personally. An objection must state why the objector objects to the proposed Settlement and provide the basis to support such position. If an objector intends to appear personally at the hearing, the objector must include with the objection a notice of the objector’s intent to appear at the hearing.
19. Objections, along with any notices of intent to appear, must be filed no later than
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Case 2:07-cv-03482-PD Document 53 Filed 09/01/09 Page 24 of 25
forty-five (45) days from the Notice Date. If counsel is appearing on behalf of more than one
Class Member, counsel must identify each such Class Member and each Class Member must
have complied with the requirements of this Order. These documents must be filed with the
Clerk of the Court at the following address:
United States District Court for the Eastern District of Pennsylvania Office of the Clerk of Court James A. Byrne Federal Courthouse 601 Market Street, Room 2609 Philadelphia, PA 19106-1797
20. Objections, along with any notices of intent to appear, must also be mailed to
Class Counsel and counsel for Defendant at the address listed below:
CLASS COUNSEL: Joseph G. Sauder (I.D. No. 82467) Benjamin F. Johns (I.D. No. 201373) CHIMICLES & TIKELLIS LLP One Haverford Centre 361 West Lancaster Avenue Haverford, PA 19041 Telephone: (610) 642-8500 Facsimile: (610) 649-3633
DEFENSE COUNSEL: David J. MacMain, Esquire (I.D. No. 59320) LAMB McERLANE, PC 24 E. Market Street, P.O Box 565 West Chester, PA 19381 (610) 430-8000
21. Only Class Members who have filed and served valid and timely notices of
objection shall be entitled to be heard at the Final Approval Hearing. Any Class Member who
does not timely file and serve an objection in writing to the Settlement, entry of Final Judgment,
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Case 2:07-cv-03482-PD Document 53 Filed 09/01/09 Page 25 of 25
or to Class Counsel’s application for fees, costs, and expenses, in accordance with the procedure set forth in the Class Notice and mandated in this Order, shall be deemed to have waived any such objection by appeal, collateral attack, or otherwise.
22. Persons wishing to be heard at the hearing are required to file written comments or objections and indicate in their written comments or objections their intention to appear at the hearing. Settlement Class Members need not appear at the hearing or take any other action to indicate their approval.
23. All members of the Settlement Class who do not personally and timely request to be excluded from the Class are enjoined from proceeding against the Defendant for the claims made in the Complaint.
Other Provisions 24. Upon approval of the Settlement provided for in the Settlement Agreement, each and every time period and provision thereof shall be deemed incorporated herein as if expressly set forth and shall have the full force and effect of an Order of this Court. 25. All reasonable costs incurred in notifying members of the Settlement Class, as well as administering the Settlement Agreement, shall be paid as set forth in the Settlement Agreement.
AND IT IS SO ORDERED.
s/ Paul S. Diamond __________________________ Paul S. Diamond, J.
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 Case 2:07-cv-03482-PD Document 68 Filed 04/09/10 Page 1 of 20

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SAJAN KURIAN, individually and on

:

behalf of a Class of others similarly situated, :

Plaintiffs,

:

v.

:

:

THE COUNTY OF LANCASTER, THE :

LANCASTER COUNTY PRISON BOARD :

and JOHN DOES 1-20,

:

Defendants.

:

CIVIL ACTION NO. 07-3482

ORDER

In this class action, Plaintiffs allege that Defendants maintained an unconstitutional

policy or practice of strip searching all pretrial detainees upon their commitment to Lancaster

County Prison: (1) regardless of the nature of the charged offense; and (2) without determining

whether there was reasonable suspicion to believe the detainee was concealing weapons or

contraband. 28 U.S.C. § 1983. On July 28, 2009, the Parties submitted a Settlement Agreement

for my approval. (Doc. No. 47.) On September 1, 2009, I granted the Parties’ Motion for

Preliminary Approval of the Settlement Agreement and conditionally certified the Class. (Doc.

No. 53.) I held a hearing on March 31, 2010 to determine whether finally to approve the

Settlement as fair, reasonable, and adequate. For the reasons that follow, I will certify the

Settlement Class and grant the Parties’ Motion for Approval of Settlement and Class

Certification (Doc. No. 61).

I. BACKGROUND

The Supreme Court has held that in determining the Fourth Amendment reasonableness

of pretrial detainee strip searches, courts must consider “the scope of the particular intrusion, the

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manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” Bell v. Wolfish, 441 U.S. 520, 559 (1979) (upholding prison’s policy of strip searching all pretrial detainees that had contact visits with outsiders). Applying Bell, a majority of Circuits have held that a pretrial detainee charged with a misdemeanor or lesser offense may not be strip searched upon commitment without reasonable suspicion to believe that he or she is concealing a weapon or contraband. See Allison v. GEO Group, Inc., 611 F. Supp. 2d 433, 45152 (E.D. Pa. 2009) (collecting cases); Young v. County of Cook, 616 F. Supp. 2d 834, 846 (N.D. Ill. 2009) (“The crux of these cases is that given the extreme intrusion into personal privacy that a strip search or body cavity search entails, people charged with minor offenses that do not involve drugs or weapons are not subject to such searches absent individualized reasonable suspicion.”); but see Powell v. Barrett, 541 F.3d 1298, 1310 (11th Cir. 2008) (“The difference between felonies and misdemeanors or other lesser offenses is without constitutional significance when it comes to detention facility strip searches.”). The Third Circuit has not yet addressed this issue, but has agreed to hear an interlocutory appeal involving prison strip searches of misdemeanor offenders. See Florence v. Bd. of Chosen Freeholders of the County of Burlington, No. 05-3619, 2008 WL 800970 (D.N.J. Mar. 20, 2008), appeal docketed, No. 09-3603 (3d Cir. Sept. 21, 2009).
Plaintiffs filed the instant action pursuant to 28 U.S.C. § 1983 on August 22, 2007, alleging that Defendants have “instituted a written and/or de facto policy, custom or practice of strip searching all individuals who enter the custody of the Lancaster County Prison and are placed into Prison clothing, regardless of the nature of their charged crime or violation and without the presence of reasonable suspicion to believe that the individual was concealing a weapon or contraband.” (Doc. No. 1, Compl. ¶ 24.) Plaintiffs sought money damages and
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Case 2:07-cv-03482-PD Document 68 Filed 04/09/10 Page 3 of 20
declaratory and injunctive relief, and asked me to certify a hybrid Rule 23(b)(2)/(b)(3) class of similarly situated persons: (1) who, commencing on August 22, 2005, have been or will be admitted to LCP after being detained for misdemeanors or similar offenses “that do not involve the possession or distribution of drugs, possession of weapons, or are violent felonies”; and (2) “who were or will be strip searched upon their entry into [LCP] pursuant to the practice, policy, or custom of Defendants.” (Doc. No. 33, Am. Compl. ¶ 11.)
Plaintiffs moved for Class Certification on November 11, 2007. (Doc. No. 17.) On November 21, 2007, I issued a Scheduling Order and allowed Plaintiffs to submit a renewed Motion for Class Certification following discovery. (Doc. No. 21.) Plaintiffs filed an Amended Complaint on May 15, 2008, and renewed their Motion for Class Certification on October 14, 2008. (Doc. Nos. 28, 32.) Defendants filed a Response in Opposition on November 4, 2008; Plaintiffs filed a Reply on November 14, 2008. (Doc. Nos. 35, 38, 39.) Oral argument on Plaintiffs’ Motion was scheduled for November 24, 2008. (Doc. No. 31.) During a Chambers Conference before oral argument, however, the Parties asked to suspend litigation while they engaged in settlement discussions. (Doc. Nos. 42, 43.)
The Parties agreed to settle this matter on March 23, 2009. (Doc. Nos. 45, 48 at 2.) Their Settlement Agreement, executed on July 28, 2009, provides for a $2,507,200 Settlement Fund, with an initial contribution of $1,946,860. See Settlement Agreement § III.B.1. The amount distributed to each Class Member -- ranging from $50 to $900 -- will be determined by his or her classification into one of five Categories. Id. § III.C.1(i). These Categories are based on criteria that include: whether the Class Member was on probation or on parole at the time of admission to LCP, the information disclosed on the individual’s Strip Search Checklist pertaining to the
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nature of the charge, whether the detainee has a known history of violence or drug use, and whether the detainee was disruptive or threatening when he or she was admitted. Id.; see also id., Ex. D. II. CERTIFICATION OF THE SETTLEMENT CLASS
I preliminarily certified a Rule 23(b)(3) Class for settlement purposes in my September 1st Order. (Doc. No. 53.) See also Fed. R. Civ. P. 23; In re General Motors Corp. Pick-Up Truck Fuel Tank Prods. Liability Litig., 55 F.3d 768, 786 (3d Cir. 1995) (a settlement class is “a device whereby the court postpones the formal certification procedure until the parties have successfully negotiated a settlement, thus allowing a defendant to explore settlement without conceding any of its arguments against certification”).
To be certified, a class must satisfy the four threshold requirements of Rule 23(a): (1) numerosity (a “class [so large] that joinder of all members is impracticable”); (2) commonality (“questions of law or fact common to the class”); (3) typicality (named parties’ claims or defenses “are typical . . . of the class”); and (4) adequacy of representation (representatives must “fairly and adequately protect the interests of the class”). See Fed. R. Civ. P. 23(a); Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613 (1997). Where, as here, a settlement class is sought to be certified under Rule 23(b)(3), the class must show that: (1) common questions “predominate over any questions affecting only individual members,” and (2) class resolution is “superior to other available methods for the fair and efficient adjudication of the controversy.” Fed. R. Civ. P. 23(b); Amchem, 521 U.S. at 615.
With more than 19,000 potential members of the Settlement Class, Rule 23(a)(1)’s numerosity requirement is obviously satisfied, and has never been disputed. See Ketchum v.
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Sunoco, Inc., 217 F.R.D. 354, 357 (E.D. Pa. 2003) (citing Stewart v. Abraham, 275 F.3d 220, 227-28 (3d Cir. 2001)) (“Generally, if the named plaintiff demonstrates that the potential number of plaintiffs exceed 40, the numerosity requirement of Rule 23(a) has been met.”).
The commonality requirement is met because the Parties have identified two questions of law or fact common to the Class: (1) whether Defendants employed a practice or policy of strip searching all new detainees admitted for misdemeanors or lesser charges without individualized reasonable suspicion; and (2) whether that practice or policy was constitutional. See, e.g., In re Nassau County Strip Search Cases, 461 F.3d 219, 229-230 (2d Cir. 2006); Florence, 2008 WL 800970 at *7 (D.N.J. Mar. 20, 2008) (commonality requirement satisfied where the named plaintiffs and the proposed class members’ claims involved “the same factual and legal theories”: (1) “that they were all subjected to the same intake procedures, which they claim involve suspicionless strip searching”; and (2) “that these procedures violate the Fourth Amendment”). Similarly, the Rule’s typicality requirement is satisfied because Plaintiffs allege that they -- along with each member of the proposed Class -- were strip searched pursuant to Defendants’ blanket policy or practice. See Baby Neal v. Casey, 43 F.3d 48, 58 (3d Cir. 1994) (“[C]ases challenging the same unlawful conduct which affects both the named plaintiffs and the putative class usually satisfy the typicality requirement irrespective of the fact patterns underlying the individual claims.”).
Finally, Rule 23(a) requires Plaintiffs to demonstrate that they will fairly and adequately protect the interests of the Class. Fed. R. Civ. P. 23(a)(4). In evaluating this requirement, I must determine “whether the representatives’ interests conflict with those of the class and whether the class attorney is capable of representing the class.” Johnston v. HBO Film Mgmt., Inc., 265 F.3d
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178, 185 (3d Cir. 2001). There is no suggestion of any conflict of interest between the named Plaintiffs and the other Class Members. Class Counsel are especially talented lawyers, who are more than capable of representing the Class. Lead counsel is David Rudovsky, the preeminent civil rights lawyer in this District. Also representing the Class are lawyers who are vastly experienced in class action litigation: Joseph Sauder of Chimicles & Tikellis LLP, Christopher G. Hayes of the Law Office of Christopher G. Hayes, and Daniel C. Levin of Levin, Fishbein, Sedran & Berman. Accordingly, I conclude that the adequacy requirement is satisfied.
Numerous courts have found Rule 23(b)’s predominance requirement satisfied in actions similar to the instant matter, reasoning that the issues respecting the existence and constitutionality of strip searching policies or practices are common to the class and subject to generalized proof. See, e.g., Florence, 2008 WL 800970, at *12 (“Plaintiff challenges whether Defendants have a policy or practice of using intake procedures for non-indictable arrestees that are tantamount to suspicionless strip searches. This issue is at the heart of each putative class members’ claim and turns on generalized, not individualized, proof.”); Marriott v. County of Montgomery, 227 F.R.D. 159, 173 (N.D.N.Y. 2005) (“[T]he common question is whether the change-out, strip search procedure applicable to all admittees, regardless of whether reasonable suspicion exists that contraband or weapons are possessed, violates the Fourth Amendment. This question does not vary among class members.”).
Defendants had contested predominance, however, before agreeing to settle. They offered evidence contradicting the suggestion that LCP employs a blanket strip search policy, and argued that individualized determinations of reasonable suspicion to strip search each Class Member would predominate. See Doc. No. 35, Exs. 1-10, 12-13, 19. Other courts have rejected
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similar arguments, concluding that whether a prison follows its own strip search policies -- or instead, employs a de facto practice of strip searching all new detainees -- is a factual question that does not defeat predominance. See, e.g., Sutton v. Hopkins County, No. 03-003, 2007 WL 119892, at *7 (W.D. Ky. Jan. 11, 2007) (rejecting argument that prison’s written policy refuted the existence of a blanket strip search practice and so defeated predominance: “Ultimately, a reasonable jury could find that the . . . Jail failed to follow its written policy, and instead followed a custom or practice to strip search all persons . . . without regard to . . . reasonable suspicion[.]”). Moreover, Plaintiffs offered considerable evidence establishing the existence of a blanket practice, including the deposition testimony of current and former correctional officers who could not recall “a single instance” where a new detainee was not strip searched. See Doc. No. 33 at 3-11. Courts have also ruled that once plaintiffs offer evidence of a blanket practice of strip searching all new detainees: (1) the burden shifts to the defendant to prove that particular class members were legally strip searched based on reasonable suspicion; and (2) the existence of such a defense to certain class members’ claims does not defeat predominance. See, e.g., Mack v. Suffolk County, 191 F.R.D. 16, 24 (D. Mass. 2000) (“[T]o require Plaintiff to prove that each individual search was unsupportable, as well as indiscriminate, would be unnecessary and unfair. Given that these [plaintiffs] were routinely strip searched, the burden rests on Defendants to demonstrate that particular searches were reasonable.”). In sum, I conclude that the predominance requirement is satisfied.
It is also apparent that a class action is the superior form of adjudication. In fact, because each Class Member’s “provable[,] actual damages” are not likely to be substantial, a class action is “not only the superior means, but probably the only feasible one . . . to establish liability and
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perhaps damages.” Tardiff v. Knox County, 365 F.3d 1, 7 (1st Cir. 2004) (“[O]nly the limited number of cases where serious damage ensued would ever be brought without class status and . . . the vast majority of claims would never be brought unless aggregated because provable actual damages are too small.”) (citations omitted); see also In re Nassau County Strip Search Cases, 461 F.3d at 229 (“Absent class certification and its attendant class-wide notice procedures, most of these individuals -- who potentially number in the thousands -- likely never will know that defendants violated their clearly established constitutional rights, and thus never will be able to vindicate those rights. As a practical matter, then, without use of the class action mechanism, individuals harmed by defendants’ policy and practice may lack an effective remedy altogether.”). Accordingly, because Plaintiffs have satisfied the requirements of Rule 23(a) and (b), I will certify a Rule 23(b)(3) Settlement Class. III. APPROVAL OF THE SETTLEMENT
I may approve a class action settlement under Rule 23 where, as here, it is “fair, reasonable and adequate.” See Fed. R. Civ. P. 23(e)(1)(c); In re Prudential Ins. Co. of Am. Sales Practices Litig., 148 F.3d 283, 316 (3d Cir. 1998); Stoetzner v. U.S. Steel Corp., 897 F.2d 115, 118 (3d Cir. 1990); Walsh v. Great Atlantic & Pacific Tea Co., Inc., 726 F.2d 956, 965 (3d Cir. 1983). I have broad discretion in making this decision. Girsh v. Jepson, 521 F.2d 153, 156 (3d Cir. 1975).
Courts in this Circuit give considerable weight and deference to the views of experienced counsel as to the merits of an arms-length settlement. In re Automotive Refinishing Paint Antitrust Litig., 2004 U.S. Dist. LEXIS 29161, at *6 (E.D. Pa. September 27, 2004); see also Petruzzi’s, Inc. v. Darling-Delaware Co., 880 F. Supp. 292, 301 (M.D. Pa. 1995) (“[T]he
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opinions and recommendations of … experienced counsel are … entitled to considerable weight.”); Lake v. First Nationwide Bank, 156 F.R.D. 615, 628 (E.D. Pa. 1994) (giving “due regard to the recommendations of the experienced counsel in this case, who have negotiated this settlement at arms-length and in good faith”). “A presumption of correctness is said to attach to a class settlement reached in arms-length negotiations between experienced, capable counsel after meaningful discovery.” In re Linerboard Antitrust Litig., 292 F. Supp. 2d 631, 640 (E.D. Pa. 2003).
In Girsh v. Jepson, the Third Circuit Court identified nine factors to assist courts in determining whether a class action settlement should be approved as “fair, adequate and reasonable.” 521 F.2d at 157. These “Girsh factors” are:
(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 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 in light of all the attendant risks of litigation. In re Cendant Corp. Litig., 264 F.3d 201, 232 (3d Cir. 2001). Applying these factors here, I conclude that the proposed Settlement is fair, adequate, and reasonable. The complexity, expense, and likely duration of the litigation support final approval of the Settlement. This matter has been pending since August 2007, and Class Counsel have already recorded 2,381 hours working on the case and incurred out-of-pocket costs of $40,867.87. (Doc. No. 59 at 19.) Moreover, the outcome of trial or dispositive motions is by no
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means certain, particularly because the Third Circuit could at any time issue a ruling on the constitutional questions presented here. See Florence, No. 05-3619 (D.N.J), appeal docketed, No. 09-3603, (3d Cir. Sept. 21, 2009). Although the weight of authority suggests that a blanket policy of strip searches is unconstitutional, the Eleventh Circuit, and more recently, the Ninth Circuit, have held that pretrial detainees could be strip searched even in the absence of reasonable suspicion. See Powell, 541 F.3d at 1310; Bull v. City & County of San Francisco, 595 F.3d 964 (9th Cir. 2010) (en banc). In these circumstances, Settlement at this time is in the Class’ best interest because it affords certain relief.
The reaction of the Class to the Settlement also weighs in favor of final approval. Pursuant to my September 1st Order, the Parties mailed individual notices to more than 19,000 potential Class Members and posted notices in newspapers, on the Internet, and at Lancaster County Prison. (Doc. No. 59 at 21-22.) In response, 2,047 Class Members have submitted claim forms, and nine Class Members have opted out of the Settlement. Only one person objected, although he did not claim to be a Class Member, nor did he raise any concerns respecting the fairness of the Settlement or the allocation of the Settlement funds. (Id.) Accordingly, the Class’ reaction to the Settlement has been overwhelmingly favorable.
The stage of proceedings and the amount of discovery completed also supports approval of the Settlement. It is apparent that the Settlement is the result of good faith, arms-length negotiations. Before negotiations began, Class Counsel took extensive discovery, propounding interrogatories and document requests, and conducting depositions and interviews. (Doc. No. 48 at 4.) The Third Circuit has held that settlements made after discovery typically reflect the true value of the claim. See Bell Atlantic Corp. v. Bolger, 2 F.3d 1304, 1314 (3d Cir. 1993).
10

Case 2:07-cv-03482-PD Document 68 Filed 04/09/10 Page 11 of 20
The Parties also vigorously litigated class certification. The settlement negotiations involved the mediation services of former Chief Magistrate Judge James R. Melinson and took several months. Moreover, Class Counsel and Defense Counsel are familiar with the issues presented, having previously litigated the constitutionality of prison strip search policies. See, e.g., Martinez v. Warner, No. 07-3213 (E.D. Pa. 2007) (David MacMain, counsel for Defendants); Boone v. City of Phila., 668 F. Supp. 2d 693, 712 (E.D. Pa. 2009) (Daniel C. Levin and Christopher G. Hayes, counsel for Plaintiffs).
The risks of being unable to establish liability and damages and maintain the class action through trial – the fourth, fifth, and sixth Girsh factors – appear to support approval of the Settlement. As discussed earlier, a Third Circuit ruling could dramatically affect the liability questions presented. Moreover, the Third Circuit has held that a district court has the authority to decertify a class action. See In re Automotive Refinishing Paint Antitrust Litigation, 617 F. Supp. 2d 336, 344 (E.D. Pa. 2007). In any event, the case could proceed to trial, followed by years of appellate litigation. These factors thus weigh in favor of the Settlement.
Although Lancaster County could likely withstand a greater judgment, this is not certain. See, e.g., Boone, 668 F. Supp. 2d at 712 (“Taking into consideration the current financial situation of the City, however, the plaintiffs do have cause to be genuinely concerned about the ability of the defendant to allocate its resources to a greater judgment.”) In any event, courts in this Circuit have held that this Girsh factor is not especially significant in assessing a proposed settlement. See Meijer, Inc. v. 3M, 2006 WL 2382718, at *16 (E.D. Pa. Aug. 14, 2006) (the determination, standing alone, that a defendant could withstand a greater judgment “does not carry much weight in evaluating the fairness of the Settlement”) (citing Perry v. FleetBoston Fin.
11

Case 2:07-cv-03482-PD Document 68 Filed 04/09/10 Page 12 of 20
Corp., 229 F.R.D. 105, 116 (E.D. Pa. 2005)). The value of the Settlement in light of the Class Members’ damages and the risks of
litigation also weighs in favor of the Settlement. Each Class Member will receive between $50 and $900, an amount comparable to the awards in other strip search cases. See McBean v. City of New York, 233 F.R.D. 377, 388 (S.D.N.Y. 2006). Significantly, the Settlement Agreement will also provide the prospective relief that named Plaintiffs sought here, but likely lacked standing to pursue. See, e.g., Powell v. Barrett, 496 F.3d 1288, 1308 n.27 (11th Cir. 2007). Defendants have agreed to revise their Strip Search Policy and employ a new Strip Search Checklist approved by Class Counsel. See Settlement Agreement § III.A.1. The Parties agree that the revised policy comports with the Fourth Amendment, and Defendants have agreed to retrain their Corrections Officers to ensure compliance. Id. §§ III.A.2-3. This significant prospective relief, coupled with damages for the individual Class Members, confirms that the proposed Settlement is the product of vigorous litigation and arms-length negotiations.
Considering all the benefits obtained for the Class and the difficulties litigation would present, I conclude that the Settlement is reasonable. Accordingly, the Girsh factors support the settlement.
I must also determine the reasonableness of the Settlement’s allocation plan. See In re Ikon Office Solutions, Inc., 194 F.R.D. 166, 184 (E.D. Pa. 2000). “Approval of a plan of allocation of a settlement fund in a class action is ‘governed by the same standards of review applicable to approval of the settlement as a whole: the distribution plan must be fair, reasonable and adequate.’” Id. (quoting In re Computron Software, Inc., 6 F. Supp. 2d 313, 321 (D.N.J. 1998)) “As with other aspects of settlement, the opinion of experienced and informed counsel is
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Case 2:07-cv-03482-PD Document 68 Filed 04/09/10 Page 13 of 20
entitled to considerable weight.” In re American Bank Note Holographics, Inc., 127 F. Supp. 2d 418, 430 (S.D.N.Y. 2001).
Under the Settlement Agreement, Class Members are divided into five Categories. See Settlement Agreement § III.C.1.i. Category I includes Class Members who were not on parole or probation at the time of their admission to Lancaster County Prison and whose Strip Search Checklists are checked or signed on the line next to “This Prisoner has been Searched by Me.” These Class Members will receive no more than $900. Category II includes Class Members who were not on parole or probation, but whose Strip Search Checklists are checked or signed on the line next to “This Prisoner has Not been Searched by Me.” These Class Members will receive no more than $500. Category III includes Class Members who were on probation or parole whose Checklists indicate they were searched. They will receive nor more than $400. Category IV includes Class Members who were on probation or parole whose Settlements indicate they were not searched. They will receive no more than $200. Category V includes Class Members who do not fit into any other Category, but contend they were strip searched upon admission to the prison. They will receive no more than $50.
These Categories appear to correspond to Defendants’ potential defenses against individual claims. Defendants had argued in their Opposition to Plaintiffs’ Motion for Class Certification that Pennsylvania law did not require reasonable suspicion to strip search prisoners on parole. (Doc. No. 35.) Accordingly, because the Parties propose to pay the most to those Class Members with the strongest claims, the allocation plan – like the rest of the Settlement – appears to be fair, reasonable, and adequate.
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Case 2:07-cv-03482-PD Document 68 Filed 04/09/10 Page 14 of 20
IV. ATTORNEYS’ FEES AND OTHER COSTS Class Counsel have requested attorneys’ fees of $750,000 – 29.91 percent of the $2.5
million Settlement Fund. (Doc. No. 61 at 1.) Counsel also requests reimbursement of $35,000 for out-of-pocket expenses, and $22,500 in incentive awards to the named Plaintiffs. (Id.) The Settlement Agreement explicitly allows Class Counsel to petition for these sums. See Settlement Agreement § III.B.3.
Class Counsel who recover a common fund are entitled to a fair and reasonable award of attorneys’ fees from the fund. Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980). Here, Class Counsel calculate their fee award using the percentage-of-recovery method which is favored in common fund cases. See In re General Motors, 55 F.3d at 819. They also use the the lodestar method as a cross-check to ensure that the proposed fee is reasonable. See, e.g., In re Insurance Brokerage Antitrust Litig., 579 F.3d 241 (3d Cir. 2009).
Where, as here, the percentage-of-recovery method is used to determine attorneys’ fees in a common fund case, the Third Circuit requires district courts to consider seven factors for determining the reasonableness of the fee. Gunter v. Ridgewood Energy Corp., 223 F.3d 190 (3d Cir. 2000). These are:
(1) the size of the fund created and the number of persons benefitted; (2) the presence or absence of substantial objections by members of the class to the settlement terms and/or fees requested by counsel; (3) the skill and efficiency of the attorneys involved; (4) the complexity and duration of the litigation; (5) the risk of nonpayment; (6) the amount of time devoted to the case by Plaintiffs’ counsel; and (7) the awards in similar cases. Gunter, 223 F.3d at 195 n.1. All factors weigh in favor of approving the attorneys’ fee petition in
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Case 2:07-cv-03482-PD Document 68 Filed 04/09/10 Page 15 of 20
this case. The size of the fund created and number of persons benefitted favors the fee amount, as
Class Counsel were able to obtain $2.5 million for a potential Class of some 19,000 individuals. The number of substantial objections also weighs in Class Counsels’ favor. Only one
person objected, and he did not raise any concerns respecting the proposed attorneys’ fees or the incentive payments to the named Plaintiffs. (Doc. No. 59 at 22.)
The third factor – the skill and efficiency of the attorneys involved – supports approval of the attorneys’ fee request. As I have discussed, Class Counsel are highly skilled and have obtained significant prospective relief in addition to cash awards.
The fourth and fifth factors – the complexity and duration of the litigation and the risk of nonpayment – also support approval of Class Counsels’ request. As I have discussed, this case involves complicated – and increasingly uncertain – issues of constitutional law. Given the nearly three years Counsel have spent litigating this matter, the fee requested is entirely reasonable.
The sixth factor – the amount of time devoted by counsel – supports the fee amount. Class Counsel document 2,381 hours of contingent work on this litigation, justifying the amount requested in their petition. (Doc. No. 61 at 11.)
The last Gunter factor – the awards granted in similar cases – supports the fee request as well. The nearly 30 percent fee requested by Class Counsel is within the range of requests granted in other strip search cases. See Boone, 668 F. Supp. 2d at 714. Accordingly, under the Gunter factors, attorneys’ fees of slightly less than 30 percent are reasonable.
The Third Circuit instructs district courts to conduct a “cross-check” of a fee award using
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Case 2:07-cv-03482-PD Document 68 Filed 04/09/10 Page 16 of 20
the lodestar method “to insure that plaintiffs’ lawyers are not receiving an excessive fee at their clients’ expense.” Gunter, 223 F.3d at 199. A court determines the lodestar by multiplying the number of hours counsel reasonably worked on a client’s case by a reasonable hourly billing rate for such services in a given geographical area provided by a lawyer of comparable experience. Id. Class Counsel worked 2,381 hours at rates ranging from $407 to $550 an hour. (Doc. No. 61 at 12-13, Ex. 1-4.) Thus, their total lodestar is $1.11 million, significantly higher than the $750,000 they have requested.
Courts overseeing complex class actions have found that a multiplier of one to four of a counsel’s lodestar is fair and reasonable. In re Prudential, 148 F.3d 283, 341 (3d Cir. 1998). Here, Class Counsel’s request is less than a multiplier of one of their lodestar, and therefore confirms the reasonableness of their request. See In re Insurance Brokerage Antitrust Litig., 579 F.3d at 284-85 (“The lodestar multiplier that the District Court calculated was less than one and thus reveals the Class Counsel’s fee request constitutes only a fraction of the work they billed . . . we are satisfied that in the present case the District Court’s lodestar cross-check confirmed the reasonableness of the fee request.”)
Class Counsel have also requested reimbursement of $35,000 in costs, out of a total of $40,867.87 in out-of-pocket litigation expenses. A district court may exercise its equity power to award reimbursement of litigation costs from a common fund. Sprague v. Ticonic, 307 U.S. 161, 166-67 (1939). Class Counsel explain that these expenses were incurred for photocopying, deposition transcripts, experts, filing fees, postage, and computer research. (Doc. No. 61, Ex. 14.) Because these totals are reasonable for a large, complex case spanning several years, Class Counsel’s request is granted.
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Case 2:07-cv-03482-PD Document 68 Filed 04/09/10 Page 17 of 20
Finally, Class Counsel requests $22,500 in incentive awards for the Class
Representatives: $15,000 to named Plaintiff Sajan Kurian and $7,500 to Michael Rhodes. A
district court may award named plaintiffs a modest sum in recognition of their services. See,
e.g., Boone, 668 F. Supp. 2d at 715 (approving $15,000 payment to each Class Representative in
a strip search case, and noting that “these awards, though high, are justified by the benefit
provided to the absent Class Members. The class representatives have accepted the public
exposure of the fact that they have been placed into custody and charged with a crime.”). Kurian
and Rhodes initiated the litigation, were deposed, and participated in conferences and meetings
with Class Counsel. (Doc. No. 61 at 15.) Accordingly, these payments are approved.
In these circumstances, Class Counsel’s requests for fees, costs, and incentive awards –
like the Settlement Agreement as a whole – is approved as reasonable.
AND NOW, this 9th day of April, 2010, upon consideration of the Parties’ Joint Motion
for Approval of Settlement and Class Certification (Doc. No. 59), their Motion for Attorney Fees
and Expenses (Doc. No. 61), and all related filings, it is hereby ORDERED as folows:
1. A Class is CERTIFIED pursuant to Rule 23(e) consisting of:
All persons who have been or will be placed into the custody of the Lancaster County Prison after being detained for misdemeanors, summary offenses, traffic infractions, civil commitments, bench warrants, violations of probation, parol or Accelerated Rehabilitative Disposition, and/or for other similar charges and/or crimes that do not involve the possession or distribution of drugs, possession of weapons, or are violent felonies, and who were or will be strip searched upon their entry into the Lancaster County Prison pursuant to the policy, custom and practice of the Defendants. The Class Period commences on August 22, 2005 and extends to July 28, 2009. Specifically excluded from the Class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees.
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Case 2:07-cv-03482-PD Document 68 Filed 04/09/10 Page 18 of 20
The Class is certified solely for purposes of this settlement.
2. I find that Class Representatives Sajan Kurian and Michael Rhodes will fairly and
adequately protect the interests of the Class. Class Counsel’s request for $22,500 in
incentive awards (Doc. No. 61) for these Class Members is APPROVED.
3. Pursuant to Rule 23(g), the following attorneys are appointed as Class Counsel:
David Rudovsky (I.D. No. 15168) Jonathan H. Feinberg (I.D. No. 88227) KAIRYS, RUDOVSKY, MESSING & FEINBERG LLP The Cast Iron Building 718 Arch Street, Suite 501 Philadelphia, PA 19106 Office: 215-925-4400 Fax: 215-925-5365
Joseph G. Sauder (I.D. No. 82467) Benjamin F. Johns (I.D. No. 201373) CHIMICLES & TIKELLIS LLP One Haverford Centre 361 West Lancaster Avenue Haverford, PA 19041 Telephone: (610) 642-8500 Facsimile: (610) 649-3633
Christopher G. Hayes (I.D. No. 57253) LAW OFFICE OF CHRISTOPHER G. HAYES 225 South Church Street West Chester, PA 19382 610-431-9505 (phone) 610-431-1269 (fax)
Daniel C. Levin (I.D. No. 80013) LEVIN, FISHBEIN, SEDRAN & BERMAN 510 Walnut Street, Ste. 500 Philadelphia, PA 19106 Telephone: 215-592-150
Class Counsel’s request for $750,000 in attorney fees and $35,000 in reimbursement for
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Case 2:07-cv-03482-PD Document 68 Filed 04/09/10 Page 19 of 20
out-of-pocket litigation expenses (Doc. No. 61) is GRANTED. 4. The Class has received notice in the manner approved by the Court in its Order of
September 1, 2009. (Doc. No. 53.) The Court finds that such notices: (1) constitute reasonable and the best practicable notice; (2) constitute notice that is reasonably calculated, under the circumstances, to apprise Class Members of the terms of the Settlement, Class Members’ right to object to the Settlement, and Class Members’ right to appear at the Settlement fairness hearing; (3) constitute due, adequate, and sufficient notice to all persons entitled to receive notice; and (4) meet the requirements of due process and Rule 23 of the Federal Rules of Civil Procedure. 5. I find that arms-length negotiations have taken place in good faith between Class Counsel counsel for Defendants, resulting in the Settlement Agreement filed on July 28, 2009. That Agreement is adopted and made a part of this Order. (Doc. No. 47.) 6. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, and after a duly-noticed final fairness hearing held on March 31, 2009, I will GRANT the Parties Motion for Final Approval of the Proposed Settlement (Doc. No. 59). I find that the Settlement and the Settlement Agreement are, in all respects, fair, reasonable, and adequate, and in the best interests of the Class. The Parties are directed to implement the Settlement according to the terms and provisions of the Settlement Agreement. 7. This action and all claims against Defendants are hereby dismissed with prejudice, but I will retain exclusive and continuing jurisdiction of this matter, all Parties, and Settlement Class Members, to interpret and enforce the terms, conditions, and obligations of the Settlement Agreement. I will also retain jurisdiction to ensure that Defendants comply
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Case 2:07-cv-03482-PD Document 68 Filed 04/09/10 Page 20 of 20 with their revised Strip Search Policy, in accordance with the Settlement Agreement. 8. All Class Members who have not timely filed an opt-out request are barred and enjoined from prosecuting any claim or action related to strip searches against Defendants in any forum, as provided in the Settlement Agreement. 9. The Clerk of Court shall mark this case closed.
AND IT IS SO ORDERED. /s/ Paul S. Diamond _________________________ Paul S. Diamond, J.
20

 
 Case: 2:07-cv-3482 As of: 04/19/2017 05:23 PM EDT 1 of 8
SEALDC,CLOSED,A/R,STANDARD
United States District Court Eastern District of Pennsylvania (Philadelphia) CIVIL DOCKET FOR CASE #: 2:07−cv−03482−PD

KURIAN v. THE COUNTY OF LANCASTER et al Assigned to: HONORABLE PAUL S. DIAMOND Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 08/22/2007 Date Terminated: 04/09/2010 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

SAJAN KURIAN INDIVIDUALLY AND ON BEHALF OF A CLASS OF OTHERS SIMILARLY SITUATED

represented by KIMBERLY M. DONALDSON SMITH CHIMICLES & TIKELLIS LLP 361 W. LANCASTER AVE. HAVERFORD, PA 19041 610−642−8500 Email: kimdonaldson@chimicles.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

BENJAMIN F. JOHNS CHIMICLES & TIKELLIS LLP 361 W. LANCASTER AVE HAVERFORD, PA 19041 610−642−8200 Email: bfj@chimicles.com ATTORNEY TO BE NOTICED

CHRISTOPHER G HAYES LAW OFFICES OF CHRISTOPHER G. HAYES 225 SOUTH CHURCH STREET WEST CHESTER, PA 19382 610−431−9505 Fax: 610−431−1269 Email: chris@chayeslaw.com ATTORNEY TO BE NOTICED

DANIEL C. LEVIN LEVIN SEDRAN & BERMAN 510 WALNUT STREET SUITE 500 PHILADELPHIA, PA 19106 Email: dlevin@lfsblaw.com ATTORNEY TO BE NOTICED

DAVID RUDOVSKY KAIRYS RUDOVSKY MESSING & FEINBERG LLP THE CAST IRON BLDG STE 501 SOUTH 718 ARCH STREET PHILADELPHIA, PA 19106 215−925−4400 Fax: 215−925−5365 Email: drudovsky@krlawphila.com ATTORNEY TO BE NOTICED

JONATHAN H. FEINBERG KAIRYS RUDOVSKY MESSING & FEINBERG LLP THE CAST IRON BLDG STE 501

Case: 2:07-cv-3482 As of: 04/19/2017 05:23 PM EDT 2 of 8

SOUTH 718 ARCH STREET PHILADELPHIA, PA 19106 215−925−4400 Fax: 215−925−5365 Email: jfeinberg@krlawphila.com ATTORNEY TO BE NOTICED

JOSEPH G. SAUDER McCuneWright LLP 1055 Westlake Drive Suite 300 Berwyn, PA 19312 610−200−0580 Email: jgs@mccunewright.com ATTORNEY TO BE NOTICED

Plaintiff MICHAEL RHODES

represented by BENJAMIN F. JOHNS (See above for address) ATTORNEY TO BE NOTICED

DANIEL C. LEVIN (See above for address) ATTORNEY TO BE NOTICED

JOSEPH G. SAUDER (See above for address) ATTORNEY TO BE NOTICED

V. Defendant THE COUNTY OF LANCASTER

represented by DAVID J. MACMAIN THE MACMAIN LAW GROUP LLC 101 LINDENWOOD DR SUITE 160 MALVERN, PA 19355 484−318−7704 Fax: 484−328−3996 Email: dmacmain@macmainlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
BENJAMIN F. JOHNS (See above for address)
MACAVAN A. BAIRD DRINKER BIDDLE & REATH LLP ONE LOGAN SQUARE 18TH & CHERRY STS PHILADELPHIA, PA 19103 215−988−3358 Email: Macavan.Baird@dbr.com ATTORNEY TO BE NOTICED
TIMOTHY JAMES KEPNER WILLIAM J. FERREN & ASSOCIATES 1500 MARKET ST STE 2920 PHILADELPHIA, PA 19102 267−675−3016 Email: tkepner@travelers.com ATTORNEY TO BE NOTICED

Case: 2:07-cv-3482 As of: 04/19/2017 05:23 PM EDT 3 of 8

Defendant THE LANCASTER COUNTY PRISON BOARD
Defendant JOHN DOES 1−20

represented by DAVID J. MACMAIN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BENJAMIN F. JOHNS (See above for address)
MACAVAN A. BAIRD (See above for address) ATTORNEY TO BE NOTICED
TIMOTHY JAMES KEPNER (See above for address) ATTORNEY TO BE NOTICED
represented by BENJAMIN F. JOHNS (See above for address)

V. Respondent JEREMIAH SCHAFER

Date Filed 08/22/2007
08/22/2007
08/22/2007 08/22/2007 08/22/2007 08/22/2007 08/30/2007
08/30/2007
09/06/2007
10/09/2007

# Docket Text
1 COMPLAINT against all defendants ( Filing fee $ 350 receipt number 941671.), filed by SAJAN KURIAN. (Attachments: # 1 CIVIL COVER# 2 CASE MGMT.# 3 DESIGNATION)(ks, ) (Entered: 08/22/2007)
Summons Issued as to THE COUNTY OF LANCASTER, THE LANCASTER COUNTY PRISON BOARD. GIVEN To: Counsel on 8/22/07 (ks, ) (Entered: 08/22/2007)
2 NOTICE of Appearance by JOSEPH G. SAUDER on behalf of SAJAN KURIAN (SAUDER, JOSEPH) (Entered: 08/22/2007)
3 NOTICE of Appearance by BENJAMIN F. JOHNS on behalf of SAJAN KURIAN (JOHNS, BENJAMIN) (Entered: 08/22/2007)
DEMAND for Trial by Jury by SAJAN KURIAN. (ks, ) (Entered: 08/22/2007)
4 Disclosure Statement Form pursuant to FRCP 7.1 by SAJAN KURIAN.(ks, ) (Entered: 08/22/2007)
5 AFFIDAVIT of Service by Chad Spotts re: served Complaint, Summons, and Notice on Defendant the County of Lancaster upon Don LeFever, County Solicitor by in person service on 8/28/07 (JOHNS, BENJAMIN) (Entered: 08/30/2007)
6 AFFIDAVIT of Service by Chad Spotts re: served Complaint, Summons, and Notice on Defendant The Lancaster County Prison Board upon Don LeFever, County Solicitor by in person service on 8/28/07 (JOHNS, BENJAMIN) (Entered: 08/30/2007)
7 NOTICE of Appearance by DAVID J. MACMAIN on behalf of THE COUNTY OF LANCASTER, THE LANCASTER COUNTY PRISON BOARD with Jury Demand and Certificate of Service(MACMAIN, DAVID) (Entered: 09/06/2007)
8 WAIVER OF SERVICE Returned Executed by THE COUNTY OF LANCASTER, THE LANCASTER COUNTY PRISON BOARD. THE COUNTY OF LANCASTER answer due 10/29/2007; THE LANCASTER COUNTY PRISON BOARD answer due 10/29/2007. (MACMAIN, DAVID) (Entered: 10/09/2007)

Case: 2:07-cv-3482 As of: 04/19/2017 05:23 PM EDT 4 of 8

10/24/2007 10/24/2007 10/29/2007 10/29/2007 11/06/2007 11/08/2007
11/13/2007 11/14/2007 11/20/2007 11/20/2007 11/21/2007 11/21/2007 11/26/2007
11/29/2007 12/10/2007 03/28/2008

9 NOTICE of Appearance by JONATHAN H. FEINBERG on behalf of SAJAN KURIAN (FEINBERG, JONATHAN) (Entered: 10/24/2007)
10 NOTICE of Appearance by DAVID RUDOVSKY on behalf of SAJAN KURIAN (RUDOVSKY, DAVID) (Entered: 10/24/2007)
11 NOTICE of Appearance by TIMOTHY JAMES KEPNER on behalf of THE COUNTY OF LANCASTER, THE LANCASTER COUNTY PRISON BOARD (KEPNER, TIMOTHY) (Entered: 10/29/2007)
12 ANSWER to Complaint; Jury Demand and with Affirmative Defenses, Certificate of Service by THE COUNTY OF LANCASTER, THE LANCASTER COUNTY PRISON BOARD.(MACMAIN, DAVID) Modified on 10/30/2007 (nd). (Entered: 10/29/2007)
13 NOTICE of Hearing:RULE 16 SCHEDULING CONFERENCE SET FOR 11/21/2007 09:30 AM IN JUDGE'S CHAMBERS BEFORE HONORABLE PAUL S. DIAMOND.(cj, ) (Entered: 11/06/2007)
14 Request for Plaintiff Sajan Kurian to Appear via Telephone at the November 21, 2007 Preliminary Pretrial Conference re 13 Notice of Hearing filed by SAJAN KURIAN.Request for Plaintiff Sajan Kurian to Appear via Telephone at the November 21, 2007 Preliminary Pretrial Conference.(SAUDER, JOSEPH) Modified on 11/13/2007 (nd, ). (Entered: 11/08/2007)
15 Discovery Plan by SAJAN KURIAN. (Attachments: # 1 Certificate of Service)(JOHNS, BENJAMIN) (Entered: 11/13/2007)
16 NOTICE of Appearance by CHRISTOPHER G HAYES on behalf of SAJAN KURIAN (HAYES, CHRISTOPHER) (Entered: 11/14/2007)
17 MOTION to Certify Class filed by SAJAN KURIAN.MOTION FOR CLASS CERTIFICATION. (Attachments: # 1 Text of Proposed Order)(JOHNS, BENJAMIN) (Entered: 11/20/2007)
18 Memorandum of Law in Support re 17 MOTION to Certify Class filed by SAJAN KURIAN. (Attachments: # 1 Certificate of Service# 2 Exhibit 1# 3 Exhibit 2# 4 Exhibit 3# 5 Exhibit 4# 6 Exhibit 5)(JOHNS, BENJAMIN) (Entered: 11/20/2007)
19 Minute Entry for proceedings held before Judge PAUL S. DIAMOND : Pretrial Conference held on 11/21/07. (mac, ) (Entered: 11/21/2007)
20 NOTICE of Appearance by DANIEL C. LEVIN on behalf of SAJAN KURIAN with Certificate of Service(LEVIN, DANIEL) (Entered: 11/21/2007)
21 ORDER THAT PLAINTIFFS SHALL CONDUCT CLASS DISCOVERY BY 4/10/2008. RENEWED MOTIONS FOR CLASS CERTIFICATION DUE BY 5/1/2008. DEFENDANTS SHALL RESPOND BY MAY 22, 2008. DEFENDANTS MAY COMBINE A RESPONSE TO PLAINTIFFS' PENDING MOTION WITH A RESPONSE TO ANY RENEWED MOTION. ORAL ARGUMENT WILL BE HELD ON THIS MATTER ON JUNE 11, 2008 AT 10:00 A.M. SIGNED BY JUDGE PAUL S. DIAMOND ON 11/21/07. 11/27/07 ENTERED AND COPIES E−MAILED.(mac, ) (Entered: 11/27/2007)
22 NOTICE by SAJAN KURIAN, THE COUNTY OF LANCASTER, THE LANCASTER COUNTY PRISON BOARD OF STIPULATION AND PROPOSED ORDER CONCERNING THE CONFIDENTIALITY OF DOCUMENTS AND MATERIALS (JOHNS, BENJAMIN) (Entered: 11/29/2007)
23 STIPULATION AND ORDER CONCERNING CONFIDENTIALITY OF DOCUMENTS AND MATERIALS AS OUTLINED HEREIN. SIGNED BY HONORABLE PAUL S. DIAMOND ON 12/6/07. 12/10/07 ENTERED AND COPIES E−MAILED.(mac, ) (Entered: 12/10/2007)
24 ORDER THAT THE JOINT REQUEST FOR AN ADDITIONAL 90 DAYS IN WHICH TO COMPLETE CLASS DISCOVERY IS GRANTED. THE COURT'S 11/21/2007 SCHEDULING ORDER IS AMENDED AS FOLLOWS: PLAINTIFF'S CLASS DISCOVERY DUE BY 7/10/2008; PLAINTIFFS SHALL FILE A RENEWED MOTION FOR CLASS CERTIFICATION BY 8/1/2008;

Case: 2:07-cv-3482 As of: 04/19/2017 05:23 PM EDT 5 of 8

05/06/2008 05/13/2008 05/14/2008
05/15/2008 05/21/2008 06/13/2008 07/28/2008
10/14/2008 10/14/2008
11/03/2008

DEFENDANTS SHALL RESPOND BY 8/22/2008; PLAINTIFFS HAVE 10 DAYS TO FILE A REPLY BRIEF ON OR BEFORE 9/1/2008; AN ORAL ARGUMENT WILL BE HELD ON THIS MATTER ON 9/11/2008 AT 9:30 AM. ( DISCOVERY DUE BY 7/10/2008., MOTIONS DUE BY 8/1/2008., RESPONSES DUE BY 8/22/2008.), ( RESPONSES DUE BY 8/22/2008., MOTION HEARING SET FOR 9/11/2008 09:30 AM BEFORE HONORABLE PAUL S. DIAMOND.). SIGNED BY HONORABLE PAUL S. DIAMOND ON 3/27/2008. 3/28/2008 ENTERED AND COPIES E−MAILED AND FAXED.(ap, ) (Entered: 03/28/2008)
25 Letter dated 5/6/2008 from Bernice K. Gallagher Re: Appearance of Dr. Gunn and other witnesses for Continued trial (ap, ) (FILED IN ERROR; RE−FILED IN 07−3042) (Entered: 05/07/2008)
26 STIPULATION REGARDING PLAINTIFF'S REQUEST TO FILE AN AMENDED COMPLAINT by SAJAN KURIAN. (ap, ) (Entered: 05/13/2008)
27 STIPULATION AND ORDER THAT WITHIN 5 BUSINESS DAYS OF THE ENTRY OF THIS ORDER, PLAINTIFFS' COUNSEL SHALL FILE AN AMENDED COMPLAINT; IT IS FURTHER ORDERED THAT DEFENDANTS SHALL ANSWER, MOVE TO DISMISS OR OTHERWISE RESPOND TO PLAINTIFFS' AMENDED COMPLAINT WITHIN 10 DAYS OF SERVICE THEREOF; IT IS FURTHER ORDERED THAT THE COURT'S SCHEDULING ORDER OF MARCH 28, 2008 REMAINS IN PLACE, AND IS UNAFFECTED BY THE INSTANT ORDER. SIGNED BY HONORABLE PAUL S. DIAMOND ON 5/13/2008. 5/14/2008 ENTERED AND COPIES E−MAILED.(ap, ) (Entered: 05/14/2008)
28 AMENDED COMPLAINT against THE COUNTY OF LANCASTER, THE LANCASTER COUNTY PRISON BOARD, JOHN DOES 1−20, filed by MICHAEL RHODES, SAJAN KURIAN. JURY TRIAL DEMANDED(ap, ) (Entered: 05/15/2008)
29 ANSWER to 28 Amended Complaint with Affirmative Defenses and Certificate of Service by THE COUNTY OF LANCASTER, THE LANCASTER COUNTY PRISON BOARD.(MACMAIN, DAVID) Modified on 5/22/2008 (nd). (Entered: 05/21/2008)
30 ORDER THAT THE MOTION TO CERTIFY CLASS IS DENIED WITHOUT PREJUDICE. SIGNED BY HONORABLE PAUL S. DIAMOND ON 6/12/2008.6/13/2008 ENTERED AND COPIES E−MAILED.(ap, ) (Entered: 06/13/2008)
31 ORDER THAT THE REQUEST FOR AN ADDITIONAL 60 DAYS TO COMPLETE CLASS DISCOVERY IS GRANTED, AND THE COURT'S 3/27/08 SCHEDULING ORDER IS AMENDED AS FOLLOWS: PLAINTIFF'S SHALL CONDUCT CLASS DISCOVERY BY 9/22/08. PLAINTIFF'S SHALL FILE A RENEWED MOTION FOR CLASS CERTIFICATION BY 10/14/08 AND AN ORAL ARGUMENT WILL BE HELD ON THIS MATTER ON 11/24/08.SIGNED BY HONORABLE PAUL S. DIAMOND ON 7/25/08. 7/28/08 ENTERED AND COPIES E−MAILED.(ah) (Entered: 07/28/2008)
32 MOTION to Certify Class filed by SAJAN KURIAN, MICHAEL RHODES.RENEWED MOTION FOR CLASS CERTIFICATION.(JOHNS, BENJAMIN) (Entered: 10/14/2008)
33 MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS' RENEWED MOTION FOR CLASS CERTIFICATION filed by SAJAN KURIAN, MICHAEL RHODES. (Attachments: # 1 Text of Proposed Order, # 2 Certificate of Service, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Exhibit 12, # 15 Exhibit 13, # 16 Exhibit 14, # 17 Exhibit 15, # 18 Exhibit 16)(JOHNS, BENJAMIN) Modified on 10/15/2008 (nd). (Entered: 10/14/2008)
34 NOTICE of Appearance by MACAVAN A. BAIRD on behalf of THE COUNTY OF LANCASTER, THE LANCASTER COUNTY PRISON BOARD with Certificate of Service(BAIRD, MACAVAN) (Entered: 11/03/2008)

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11/04/2008 11/05/2008 11/05/2008 11/14/2008 11/14/2008 11/21/2008 11/24/2008 11/24/2008
11/24/2008 12/08/2008
04/01/2009 07/29/2009

35 Memorandum of Law in Opposition re 32 MOTION to Certify Class with Proposed Order and Certificate of Service filed by THE COUNTY OF LANCASTER, THE LANCASTER COUNTY PRISON BOARD. (Attachments: # 1 Text of Proposed Order)(MACMAIN, DAVID) (Entered: 11/04/2008)
36 NOTICE by THE COUNTY OF LANCASTER, THE LANCASTER COUNTY PRISON BOARD re 35 Memorandum with Certificate of Service and Amended Page 18 (MACMAIN, DAVID) (Entered: 11/05/2008)
37 EXHIBITS to Defendants The County of Lancaster and the Lancaster County Prison Board's Memorandum of Law in Opposition to Plaintiffs' Renewed Motion for Class Certification by THE COUNTY OF LANCASTER, THE LANCASTER COUNTY PRISON BOARD. (Filed in hard copy − excess of 50 pages)(ap, ) (Entered: 11/06/2008)
38 RESPONSE in Support re 32 MOTION to Certify Class filed by SAJAN KURIAN, MICHAEL RHODES, CERTIFICATE OF SERVICE. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Certificate of Service)(JOHNS, BENJAMIN) Modified on 11/18/2008 (afm, ). (Entered: 11/14/2008)
39 Plaintiffs' Reply Memorandum of Law in Further Support of Their Renewed Motion for Class Certification by SAJAN KURIAN, MICHAEL RHODES. (FILED UNDER SEAL) JURY DEMAND (ap, ) Modified on 11/14/2008 (ap, ). (Entered: 11/14/2008)
40 AMENDED ANSWER to Complaint 28 Amended Complaint with Affirmative Defenses and Certificate of Service by THE COUNTY OF LANCASTER, THE LANCASTER COUNTY PRISON BOARD. (MACMAIN, DAVID) (Entered: 11/21/2008)
41 Minute Entry for proceedings held before HONORABLE PAUL S. DIAMOND: Pretrial Conference held on 11/24/2008. (ap, ) (Entered: 11/24/2008)
42 ORDER THAT DURING THE WEEK BEGINNING 12/1/2008 DEFENDANTS SHALL PROVIDE PLAINTIFFS WITH A DRAFT CONSENT DECREE; PLAINTIFFS SHALL PROVIDE DEFENDANTS WITH THEIR INITIAL DEMANDS; PARTIES SHALL MEET AND CONFER ON THEIR PROPOSALS DURING THE WEEK BEGINNING 12/8/2008; PARTIES SHALL INFORM THE COURT OF THE STATUS OF NEGOTIATIONS BY 12/12/2008. SIGNED BY HONORABLE PAUL S. DIAMOND ON 11/24/2008. 11/24/2008 ENTERED AND COPIES E−MAILED. (ap, ) (Entered: 11/24/2008)
43 ORDER THAT THE CLERK OF COURT MARK THIS ACTION CLOSED FOR STATISTICAL PURPOSES AND PLACE THE MATTER IN THE CIVIL SUSPENSE FILE.. SIGNED BY HONORABLE PAUL S. DIAMOND ON 11/24/2008. 11/24/2008 ENTERED AND COPIES E−MAILED.(ap, ) (Entered: 11/24/2008)
44 ORDER THAT DEFTS' REQUEST FOR AN EXTENSION OF THE DEADLINES IS GRANTED, ETC. DURING THE WEEK BEGINNING DECEMBER 1, 2008 PLFFS SHALL PROVIDE DEFTS WITH THEIR INITIAL DAMAGES AND COUNSEL FEES. ON DECEMBER 19, 2008 DEFTS SHALL INFORM THE COURT AND PLFFS WHETHER THEY ARE WILLING TO ENGAGE IN SETTLEMENT, ETC. THE PARTIES SHALL MEET AND CONFER ON THEIR PROPOSALS DURING THE WEEK BEGINNING JANUARY 5, 2009. THE PARTIES SHALL INFORM THE COURT ON THE STATUS OF NEGOTIATIONS BY JANUARY 9, 2009.. SIGNED BY HONORABLE PAUL S. DIAMOND ON 12/5/08. 12/9/08 ENTERED AND COPIES MAILED, E−MAILED AND FAXED.(lvj, ) (Entered: 12/09/2008)
45 Letter dated 4/1/2009 from DAVID J. MACMAIN Re: Parties have resolved this case; settlement agreement expected within the month. (ap, ) (Entered: 04/01/2009)
46 MOTION for Settlement filed by SAJAN KURIAN, THE COUNTY OF LANCASTER, THE LANCASTER COUNTY PRISON BOARD, MICHAEL RHODES.PLAINTIFFS AND DEFENDANTS MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT AND PROVISIONAL CLASS CERTIFICATION. (Attachments: # 1 Certificate of Service)(JOHNS, BENJAMIN) (Entered: 07/29/2009)

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07/29/2009 07/29/2009
08/04/2009
08/19/2009
08/19/2009 08/20/2009 08/21/2009 09/01/2009
11/18/2009 12/11/2009 12/11/2009 01/20/2010 01/25/2010 03/02/2010 03/02/2010

47 SETTLEMENT AGREEMENT by SAJAN KURIAN, THE COUNTY OF LANCASTER, THE LANCASTER COUNTY PRISON BOARD, MICHAEL RHODES. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(JOHNS, BENJAMIN) (Entered: 07/29/2009)
48 MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT AND PROVISIONAL CLASS CERTIFICATION RE: MOTION for Settlement filed by SAJAN KURIAN, THE COUNTY OF LANCASTER, THE LANCASTER COUNTY PRISON BOARD, MICHAEL RHODES. (Attachments: # 1 Text of Proposed Order) (JOHNS, BENJAMIN) Modified on 7/30/2009 (nd). (Entered: 07/29/2009)
49 ORDER THAT A HEARING ON THE PARTIES' JOINT MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT IS SCHEDULED FOR 8/20/2009 11:00 AM IN COURTROOM 6B BEFORE HONORABLE PAUL S. DIAMOND.. SIGNED BY HONORABLE PAUL S. DIAMOND ON 8/3/2009. 8/4/2009 ENTERED AND COPIES E−MAILED.(ap, ) (Entered: 08/04/2009)
50 ORDER THAT THE HEARING ON THE PARTIES' JOINT MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT AND PROVISIONAL CLASS CERTIFICATION IS RESCHEDULED TO 8/20/2009 AT 12:30 PM IN COURTROOM 6B. SIGNED BY HONORABLE PAUL S. DIAMOND ON 8/18/2009. 8/19/2009 ENTERED AND COPIES E−MAILED.(ap, ) (Entered: 08/19/2009)
Set/Reset Deadlines as to 46 MOTION for Settlement. MOTION HEARING SET FOR 8/20/2009 12:30 PM IN COURTROOM BEFORE HONORABLE PAUL S. DIAMOND. (ap, ) (Entered: 08/19/2009)
51 MOTION to Amend/Correct Notice filed by SAJAN KURIAN, MICHAEL RHODES.Certificate of Service.(LEVIN, DANIEL) (Entered: 08/20/2009)
52 Minute Entry for proceedings held before HONORABLE PAUL S. DIAMOND: Hearing held on 8/20/2009. Court Reporter: Marion Scarengelli. (ap, ) (Entered: 08/21/2009)
53 ORDER THAT THE PARTIES' JOINT MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT AND PROVISIONAL CLASS CERTIFICATION IS GRANTED AS OUTLINED HEREIN. SIGNED BY HONORABLE PAUL S. DIAMOND ON 9/1/2009. 9/1/2009 ENTERED AND COPIES E−MAILED.(ap, ) (Entered: 09/01/2009)
54 Statement by JEREMIAH SCHAFER. (ap, ) (Entered: 11/18/2009)
55 Letter dated 12/5/2009 from Edwin J. Purtalatin Re: Response to case settlement. (ap, ) Modified on 12/11/2009 (ap, ). (Entered: 12/11/2009)
56 Letter received from Charles E. Newbold Re: Response to case settlement. (ap, ) (Entered: 12/11/2009)
57 Letter to Judge Diamond by SAJAN KURIAN, THE COUNTY OF LANCASTER, THE LANCASTER COUNTY PRISON BOARD, MICHAEL RHODES re: Joint Request to Schedule Final Approval Hearing. (Attachments: # 1 Text of Proposed Order)(JOHNS, BENJAMIN) Modified on 1/22/2010 (fh) (Entered: 01/20/2010)
58 ORDER THAT A HEARING IS SCHEDULED FOR 3/17/2010 04:00 PM IN COURTROOM 6−B BEFORE HONORABLE PAUL S. DIAMOND AS OUTLINED WITHIN. SIGNED BY HONORABLE PAUL S. DIAMOND ON 1/22/10. 1/25/10 ENTERED AND COPIES E−MAILED.(kk, ) (Entered: 01/25/2010)
59 MOTION for Approval of Settlement and Class Certification filed by JOHN DOES 1−20, SAJAN KURIAN, MICHAEL RHODES, THE COUNTY OF LANCASTER, THE LANCASTER COUNTY PRISON BOARD.. (Attachments: # 1 Text of Proposed Order)(JOHNS, BENJAMIN) (Entered: 03/02/2010)
60 Memorandum of Law in Support re 59 MOTION for Approval of Settlement and Class Certification filed by JOHN DOES 1−20, SAJAN KURIAN, MICHAEL RHODES, THE COUNTY OF LANCASTER, THE LANCASTER COUNTY PRISON BOARD. (Attachments: # 1 Exhibit A)(JOHNS, BENJAMIN) (Entered: 03/02/2010)

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03/02/2010 03/02/2010 03/09/2010 03/24/2010 03/31/2010 04/01/2010 04/05/2010 04/09/2010 04/04/2012 07/19/2012

61 MOTION for Attorney Fees and Expenses, and Incentive Awards to the Named Plaintiffs filed by SAJAN KURIAN, MICHAEL RHODES..(JOHNS, BENJAMIN) (Entered: 03/02/2010)
62 Memorandum of Law in Support re 61 MOTION for Attorney Fees and Expenses, and Incentive Awards to the Named Plaintiffs filed by SAJAN KURIAN, MICHAEL RHODES. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(JOHNS, BENJAMIN) (Entered: 03/02/2010)
63 ORDER THAT A MOTION HEARING SET FOR 3/25/2010 04:00 PM IN COURTROOM BEFORE HONORABLE PAUL S. DIAMOND.. SIGNED BY HONORABLE PAUL S. DIAMOND ON 3/8/10. 3/9/10 ENTERED AND COPIES E−MAILED.(dp, ) (Entered: 03/09/2010)
64 ORDER THAT A SETTLEMENT CONFERENCE SET FOR 3/31/2010 01:30 PM IN COURTROOM BEFORE HONORABLE PAUL S. DIAMOND.. SIGNED BY HONORABLE PAUL S. DIAMOND ON 3/23/10. 3/24/10 ENTERED AND COPIES E−MAILED.(dp, ) (Entered: 03/24/2010)
65 STIPULATION and [Proposed] Order Allowing for the Inclusion of Certain Late Claims in the Settlement by SAJAN KURIAN, MICHAEL RHODES. (JOHNS, BENJAMIN) (FILED IN ERROR BY ATTORNEY; COPY FORWARDED TO JUDGE FOR APPROVAL) Modified on 4/1/2010 (nd, ). (Entered: 03/31/2010)
66 Minute Entry for proceedings held before HONORABLE PAUL S. DIAMOND: Omnibus Hearing held on 3/31/2010. Court Reporter: MARION SCARENGELLI. (dp, ) (Entered: 04/01/2010)
67 STIPULATION AND ORDER THAT ALLOWING FOR THE INCLUSION OF CERTAIN LATE CLAIMS IN THE SETTLEMENT, AS OUTLINED HEREIN. SIGNED BY HONORABLE PAUL S. DIAMOND ON 4/5/10. 4/6/10 ENTERED AND COPIES E−MAILED.(dp, ) (Entered: 04/06/2010)
68 ORDER THAT A CLASS IS CERTIFIED PURSUANT TO RULE 23(e), AS OUTLINED HEREIN. THE CLERK SHALL MARK THIS CASE CLOSED.. SIGNED BY HONORABLE PAUL S. DIAMOND ON 4/9/10. 4/12/10 ENTERED AND COPIES E−MAILED.(dp, ) (Entered: 04/12/2010)
69 NOTICE TO COUNSEL RE: LRCP 5.1.5. 04/04/2012. COPIES E−MAILED.(nds) (Entered: 04/04/2012)
Document No. 39 unsealed pursuant to L.R.C.P. 5.1.5.(uh, ) (Entered: 07/19/2012)