IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

 

 

NAKISHA BOONE, et al. : CIVIL ACTION 

:

 v. :

:

CITY OF PHILADELPHIA : NO. 05-1851

ORDER GRANTING FINAL APPROVAL

OF CLASS ACTION SETTLEMENT AND JUDGMENT

This case coming on for hearing before The Honorable

Mary A. McLaughlin, U.S.D.J. on September 29, 2009, pursuant

to this Court’s Order of March 6, 2009, in order for this

Court to conduct a final fairness hearing to determine whether

the proposed Settlement Agreement between the Parties is fair,

reasonable and adequate, and to address Class Counsel’s

application for an award of attorney’s fees and costs; and the

Settlement Class Members being represented by Class Counsel

and Defendant being represented by its attorney; AND THE COURT

having read and considered the Settlement Agreement, the

Notice Plan, and Memorandum of Law submitted by Class Counsel,

having received evidence at the hearing, having heard

arguments from Class Counsel and the Defendant, and having

considered the submissions by Class Members, now makes the

following:

FINDINGS OF FACT

1. This action was commenced on April 21, 2005, as a

class action.
2. After several years of intensive litigation,

including extensive discovery and motion practice, and as a

result of intensive, arm’s length negotiations between Class

Counsel and Defendant, including settlement conferences before

Magistrate Judge Elizabeth T. Hey and former Magistrate Judge

James K. Melinson, the Parties have reached accord with

respect to a Settlement that provides substantial benefits to

Settlement Class Members, in return for a release and

dismissal of the claims at issue in this case against the

Defendant (“Settlement Agreement”). The resulting Settlement

Agreement was preliminarily approved by the Court on March 6,

2009.

3. As part of the Order Granting Preliminary

Approval, this Court approved a proposed Notice Plan and Class

Notice, which provided Settlement Class Members notice of the

proposed Settlement. The Notice Plan provided an opportunity

for Class Members to file objections to the Settlement, and an

opportunity to opt-out of the Settlement.

4. As of the deadline for the filing of objections,

three objections were filed. Given the size of this

Settlement, and the Notice Plan described above, this Court

finds that the comparatively low number of objections is

indicative of the fairness, reasonableness and adequacy of the

Settlement with the Defendant.

5. The settling Parties have filed with the Court an

affidavit from RSM McGladrey, Inc. declaring that the mailing

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of the Court-approved notice, consistent with the Notice Plan,

has been completed.

6. The Court finds that the published notice, mailed

notice and Internet posting constitute the best practicable

notice of the Fairness Hearing, proposed Settlement, Class

Counsel’s application for fees and expenses, and other matters

set forth in the Class Notice and Short Form Notice; and that

such notice constituted valid, due and sufficient notice to

all members of the Settlement Class, and complied fully with

the requirements of Rule 23 of the Federal Rules of Civil

Procedure, the Constitution of the United States, the laws of

Pennsylvania and any other applicable law.

7. Any persons who wished to be excluded from this

action were provided an opportunity to “opt-out” pursuant to

the Notice. All persons who have validly excluded themselves

from the action have no rights under the Settlement Agreement

and shall not be bound by the Settlement Agreement or the

final judgment herein and the names of those persons are set

forth in Exhibit A hereto. 

8. Settlement Class Members are bound by the

Settlement, Settlement Agreement, Release contained within

the Settlement Agreement, and the Final Order and Judgment.

Settlement Class Members do not have a further opportunity to

opt-out of this Action.

9. Any Class Member who did not timely file and serve

an objection in writing to the Settlement Agreement, to the

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entry of Final Order and Judgment, 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

the Order Granting Preliminary Approval of Settlement, is

deemed to have waived any such objection by appeal,

collateral attack, or otherwise.

10. On the basis of all of the issues in this

litigation, and the provisions of the Settlement Agreement,

the Court is of the opinion that the Settlement is a fair,

reasonable and adequate compromise of the claims against the

Defendant in this case, pursuant to Rule 23 of the Federal

Rules of Civil Procedure. There are a number of factors

which the Court has considered in affirming this Settlement,

including:

a. The liability issues in this case have been

vigorously contested.

b. This Settlement has the benefit of providing

relief to Class Members now, without further

litigation, under circumstances where the liability

issues are still vigorously contested among the Parties

to this litigation. This Settlement provides Class

Members with a substantial monetary benefit. 

c. This Settlement is clearly a product of hardfought litigation between the Parties, and not a result

of any collusion on the part of Class Counsel or

Counsel for the Defendant.

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11. Class Counsel submitted to the Court and served on

the Defendant their application for reasonable attorneys’

fees, costs, and expenses consistent with the terms of the

Settlement Agreement. This Court has considered Class

Counsel’s request and hereby grants the request.

12. The claims procedure established under the

Settlement Agreement is fair, a simplified process, and

workable. In any event, the Court will retain jurisdiction

to work out any unanticipated problems.

NOW, THEREFORE, ON THE BASIS OF THE FOREGOING FINDINGS

OF FACT, THE COURT HEREBY MAKES THE FOLLOWING CONCLUSIONS OF

LAW:

13. This Court has jurisdiction over the Parties and

the subject matter of this proceeding.

14. Pursuant to Rule 23 of the Federal Rules of Civil

Procedure, the following Settlement Class is certified for

purposes of final settlement:

Settlement Class:

All persons who were placed into the

custody of the Philadelphia Prison

System after being charged with

misdemeanors; summary offenses; traffic

infractions, civil commitments, or other

minor crimes; or bench warrants and/or

probation violations where the

underlying charge was a misdemeanor,

summary offense or other minor crime;

and who were strip searched in the

absence of reasonable suspicion upon

their entry into the Philadelphia Prison

System pursuant to the policy, custom

and practice of the Philadelphia Prison

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System and the City of Philadelphia. The

class period commences on April 21, 2003

and extends to, and includes, October 9,

2007.

Subclass I:

All persons in the Settlement Class,

EXCEPT for persons who (1) were charged

with certain violence, drug and/or

weapons (hereinafter “VDW”) related

misdemeanor charges at the time of their

admission, or (2) were charged with

bench warrants and/or probation

violations where the underlying charge

was a VDW misdemeanor charge, or (3) had

convictions for felonies and/or VDW

misdemeanor charges predating the date

of their admission.

Subclass II:

All persons in the Settlement Class who

were (1) charged with VDW misdemeanor

charges at the time of their admission,

or (2) were charged with bench warrants

and/or probation violations where the

underlying charge was a VDW misdemeanor

charge, or (3) had convictions for

felonies and/or VDW misdemeanor charges

predating the date of their admission.

15. The Court finds that, for the purpose of this

Settlement, the requirements of Rule 23 of the Federal Rules

of Civil Procedure are satisfied, and that a class action is

an appropriate method for resolving the disputes in this

litigation. All the prerequisites for class certification

under Rule 23 are present. The Class Members are

ascertainable and too numerous to be joined. Questions of

law and fact common to all Class Members predominate over

individual issues and should be determined in one proceeding

with respect to all Class Members. The Class

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Representatives’ claims are typical of those of the Class. 

The Class action mechanism is superior to alternative means

for adjudicating and resolving this action.

16. The Settlement Class Representatives, Nakisha

Boone and George Byrd, are entitled to and are hereby

awarded a payment of $15,000 each, in recognition of the

efforts they undertook in connection with this lawsuit. All

Class Members who have made claims on the settlement are

entitled to receive their pro rata share of the Settlement

fund, as members of Subclass I not to exceed $3,000 or

Subclass II not to exceed $100, after administrative

expenses, attorneys’ fees and expenses, and incentive awards

are deducted from the fund. 

17. Class Counsel are qualified, experienced, and

have aggressively litigated this case, thereby demonstrating

their adequacy as counsel for the Settlement Class. Daniel

C. Levin, Esquire of Levin, Fishbein, Sedran & Berman,

Philadelphia, PA; Charles J. LaDuca, Esquire and Alexandra

Warren, Esquire of Cuneo Gilbert & LaDuca, LLP, Washington,

DC; Elmer Robert Keach, III, Esquire of the Law Offices of

Elmer Robert Keach, III, Amsterdam, New York; and Gary E.

Mason, Esquire and Nicholas A. Migliaccio, Esquire of the

Mason Law Firm, LLP are hereby appointed as counsel for the

Settlement Class.

18. The Court grants final approval of the

Settlement Agreement, as being fair, reasonable and

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adequate, pursuant to Rule 23 of the Federal Rules of Civil

Procedure.The Courts finds that the request for attorneys’

fees is reasonable.

NOW, THEREFORE, ON THE BASIS OF THE FOREGOING

FINDINGS OF FACT AND CONCLUSIONS OF LAW, IT IS HEREBY

ORDERED, ADJUDGED AND DECREED AS FOLLOWS:

1. The Motion for Final Approval of the Proposed

Settlement is GRANTED.

2. The Settlement Class Representatives, Nakisha

Boone and George Byrd, are entitled to and are hereby

awarded a payment of $15,000 each in recognition of the

efforts they undertook in connection with this lawsuit. All

Class Members who have made claims on the Settlement are

entitled to receive their pro rata share of the Settlement

Fund, as members of Subclass I (not to exceed $3,000) or

Subclass II (not to exceed $100), after administrative

expenses, attorneys’ fees and expenses, and incentive awards

are deducted from the fund.

3. The Class Counsels’ petition for attorneys’

fees and expenses is granted. Class Counsel is awarded

fees of $1,770,000.00 and costs of $70,094.24. 

4. RSM McGladrey is awarded an additional

$100,000 for administering the Settlement.

5. This Action and all claims against the settling

Defendant are hereby dismissed with prejudice, but the Court

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shall retain exclusive and continuing jurisdiction of the

Action, all Parties, and Settlement Class Members, to

interpret and enforce the terms, conditions and obligations

of this Settlement Agreement.

6. All Class Members who have not timely filed an

opt-out request are barred and enjoined from commencing

and/or prosecuting any claim or action against the

Defendant. Any Class Member who has not timely filed a

request to exclude themselves shall be enjoined from

initiating and/or proceeding as a class action in any forum.

IT IS SO ORDERED.

Dated: November 3, 2009 BY THE COURT:

/s/Mary A. McLaughlin

MARY A. McLAUGHLIN, J.

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EXHIBIT A

Class Members Who Have Requested

Exclusion From This Settlement

1. Reverend Daceia C. Frazier

P.O. Box 48145

Philadelphia, PA 19144

2. Marvin Johnson

PP# 62152

No Address

3. Glenn Galie

551 King Road

Royersford, PA 19468

4. Mark Parker

ET# 4454

660 State Route #11

Hunlock Creek, PA 18621

5. Donald Stewart

GA-7744, SCI

Graterford, PA 19426

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