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

MEMORANDUM

McLaughlin, J. November 3, 2009

The parties have moved for the certification of a class

and approval of a settlement in this case involving the policy of

the City of Philadelphia to strip-search all pretrial detainees

upon admission to the Philadelphia Prison System (PPS). Class

counsel has also moved for an award of attorneys’ fees and

reimbursement of out-of-pocket expenses. After a hearing held on

September 29, 2009, the Court grants these motions and enters

final judgment and an order of dismissal. 

I. Background 

A. History of the Litigation

Class representative Nakisha Boone brought this class

action on behalf of herself and all others who were stripsearched after being charged with a misdemeanor or other minor

crime. Ms. Boone was arrested for violating a bench warrant with

an underlying charge of endangering the welfare of a child. She
was strip-searched before being placed into detention. She

argued that PPS’s policy of strip-searching all pretrial

detainees upon admission was unconstitutional. The complaint

named the City, the PPS, the Prisons Commissioner, members of the

Prisons’ Board of Trustees and three of the prison’s Deputy

Commissioners as defendants. 

The class was defined in the complaint as

[a]ll persons who have been or will be placed

into the custody of the PPS after being

charged with misdemeanor violations,

violations of probation or parole, traffic

infractions, civil commitments or other minor

crimes and were or will be strip searched

upon entry into PPS pursuant to the policy,

custom and practice of the PPS and the City

of Philadelphia.

Compl. at 7. The class period commenced on April 21, 2003, and

was to extend until the defendants were enjoined from or

otherwise ceased enforcing the policy. Id.

The parties engaged in extensive discovery from July

2005 until November 2005. This initial period of discovery

focused on the PPS’s policy. It included the production of

documents relating to the prison policies, an inspection of the

PPS facility, and depositions of prison officials and staff.

The plaintiff filed a motion for partial summary

judgment on the issue of the constitutionality of the defendants’

blanket strip-search policy on January 23, 2006. The defendants

responded to the plaintiff’s motion a month later and filed their

2
own motion for summary judgment, to which the plaintiff

responded. 

In their motion, the defendants argued in part that the

search policy was justified by the PPS’s need for security and

safety. They maintained that the policy was necessary to prevent

detainees from smuggling contraband into the prison system. See

Def. Mot. for Summary Judgment at 21-23. They also argued that

the search of Ms. Boone was reasonable due to her prior history

of criminal charges, which included a conviction for simple

assault, possession of an instrument of crime, recklessly

endangering another person, and criminal conspiracy. See id. at

32; Parties’ Motion for Class Cert. and Settlement at 4-5. 

Oral argument on the parties’ summary judgment motions

was held before the Court on April 27, 2006. After the hearing,

the Court dismissed with prejudice the individually-named

defendants and the PPS from the case upon stipulation of the

parties. The City remained as the sole defendant. The parties

also stipulated to a discovery and briefing schedule with respect

to class certification. The Court denied both parties’ summary

judgment motions without prejudice and held that the parties

would have the opportunity to renew their motions after the issue

of class certification was resolved. 

In response to the City’s argument that the search of

Ms. Boone was reasonable based upon her criminal history, the

3
plaintiff amended the complaint to add class representative

George Byrd. Mr. Byrd was charged with driving under the

influence when admitted to the prison. He had no previous

history of violent crime. See Mem. in Support of Plaintiff’s

Unopposed Motion to Amend the Class Action Compl. at 2.

The parties conducted additional discovery on the issue

of class certification for almost six months. They interviewed

hundreds of class members to establish that a substantial number

of pretrial detainees would be within the class definition. They

also reviewed hundreds of the prison’s disciplinary records to

determine how many misdemeanor detainees attempted to smuggle

contraband into the PPS facility.

The plaintiffs filed their motion for class

certification on February 16, 2007, and the defendants responded

on April 16, 2007. The plaintiffs also filed a motion for

preliminary injunction on March 23, 2007. 

A hearing on both of the plaintiffs’ motions was held

on June 28, 2009. At the hearing, the City informed the Court

that it was preparing procedures for the use of equipment that

would be used in lieu of strip-searching. 

In view of the City’s proposed change in policy, the

Court referred the matter to Magistrate Judge Elizabeth Hey for

settlement. Negotiations began in July of 2007. The parties met

with Judge Hey eleven times over the course of the year. These

4
negotiations concluded with a mediation held on July 21, 2008,

before retired Magistrate Judge James R. Melinson, in which

settlement was reached. 

After reaching the settlement, the parties memorialized

the terms in a Settlement Agreement, prepared for the

administration of the settlement, and drafted the class notice. 

They executed the proposed Settlement Agreement on February 20,

2009.

B. The Settlement Agreement

The Settlement Agreement divides the Settlement Class

into two subclasses, defined as follows: 

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 stripsearched 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 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

5
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.

Settlement Agreement at 7.

The Settlement Agreement recognized that the City had

changed its policy to stop strip-searching all pretrial detainees

on a blanket basis and to stop strip-searching misdemeanor

detainees in the absence of reasonable suspicion. See id. at 10. 

The City adopted a model policy that uses modern technology such

as metal-detecting chairs and ion scanners to thoroughly search

all pretrial detainees without a strip-search. See Parties’ Mot.

for Class Cert. and Settlement at 3. 

The Settlement Agreement states that the City’s current

written policy has been reviewed by the City of Philadelphia Law

Department for compliance with state and federal law. The City

maintains that the current policy is constitutional. The

Settlement Agreement requires that all correction officers have

access to the policy. Current and new corrections officers have

6
been, and will continue to be, trained on the policy. The

Settlement Agreement also states that the policy will be posted

in the intake area of the PPS. See Settlement Agreement at 10-

11.

The Settlement Agreement creates a fund to compensate

the class members in the amount of $5,900,000. See id. at 8. 

All administrative expenses, including the costs of settlement

administration, website maintenance, notice to class members and

attorneys' fees, costs and incentive awards will be deducted from

the settlement fund prior to determining the amount of

distribution. See id. at 11-12. An amount of the fund, not to

exceed $330,000, was to be dedicated to the settlement

administrator to cover the costs of notice and administration. 

See id. at 11. 

Class counsel agreed that they would not seek more than

30% of the entire Settlement Fund in attorneys’ fees. See id. at

14. The Settlement Agreement also states that an award of

$15,000 will be requested for each of the class representatives.

The Settlement Agreement provides that the total amount

of the fund dedicated to members of Subclass I is $5,170,000, to

be granted pro rata to each class member who submits a timely

claim form, in an amount not to exceed $3,000 per class member. 

The amount dedicated for Subclass II is $400,000, with a cap of

$100 per claimant. See id. at 12. If the final approval of the

7
settlement is appealed and some portion of the Settlement Fund is

not subject to the dispute, the undisputed portion was to be

distributed in accordance with the Settlement Agreement. See id.

at 14.

Notice was to be provided by the direct mailing of

class notice and a claim form to all identifiable individuals in

the Settlement Class. The Settlement Agreement also provides

that notice would be given by television advertisement. The

settlement administrator was also instructed to establish a

website and maintain a toll-free number. Copies of the class

notice and claim form were to be available by request over the

phone, and downloadable copies of the documents would be

available at the website. See id. at 15-16.

The Settlement Agreement provided the method for class

members to submit requests for exclusion in writing. It also

provided the process for objecting to the settlement, including

the reservation of the right to appeal final judgment of the

settlement. See id. at 16-17.

The Settlement was preliminarily approved by this Court

on March 6, 2009. 

8
C. Notice to the Class

The claims administrator attests that notice went out

to 37,159 putative class members on May 1, 2009, by way of

regular mail. See Parties’ Mot. for Class Cert. and Settlement,

Affidavit of RSM McGladrey, Inc., Exhibit C. All mail that was

undeliverable because of inaccurate addresses was investigated

using a locator database to ascertain the correct address and

then re-mailed to the members of the class where possible. 

The administrator also contracted with a website

administrator to create a website that provided information to

the class in both English and Spanish. The administrator also

established a toll-free phone number and handled incoming

telephone calls and written correspondence from prospective class

members. See id.

The administrator provided further notice by way of

publication in the Philadelphia Tribune, Philadelphia Al Dia and

the Philadelphia Daily News on May 4, 2009, and again in the

Philadelphia Daily News on August 17, 2009. Finally, the

administrator provided notice through television during the weeks

of April 27, 2009 and May 4, 2009. See Parties’ Mot. for Class

Cert. and Settlement at 1-2.

9
D. The Response of the Class

The claims administrator received 7,647 claims forms,

5,321 of which represent claimants who appear in the City’s

records, a claims rate of 15%. See id. Exhibit C. Five members 1

of the class opted out. See Parties’ Mot. for Class Cert. and

Settlement at 2. 

The parties report that the individual members of

Subclass I will receive approximately $1,400. Members of

Subclass II will receive approximately $100. See id. 

Due to the volume and response of the class, the

administrator spent an extra $211,220.00 above the original

$330,000 earmarked for class administration costs. The parties

have requested that the Court award an additional $100,000.00 to

the administrator, providing a total of $430,000 in

administrative costs. See id. 

Three objectors submitted written objections to the

proposed settlement. Two of the objectors, Kuwsh Muhammad and

Thomas R. Mundy, object to issues concerning the second subclass. 

See Objection of Kuwsh Muhammad; Objection of Thomas R. Mundy.

Mr. Muhammad is a member of Subclass II because he was arrested

on violent, drug or weapons-related charges. He objects to the

difference in recovery amount between the two subclasses. Mr.

The 2,326 other claims forms are currently marked as 1

ineligible because the individuals who submitted them do not

appear in the City’s records.

10
Mundy is a member of Subclass II because of a previous felony

conviction. He objects to his exclusion from Subclass I based

upon this previous conviction. 

The third objector, Aole Blackman/Wright, objects to

the fees and costs that will be deducted from the fund. See

Objection of Aole Blackman/Wright. None of the objectors

appeared at the fairness hearing.

E. Attorney’s Fees, Expenses, and Class Representative 

Awards 

Class counsel have requested 30% of the Settlement Fund

for attorney’s fees, which amounts to a payment of $1,770,000.00.

See Pl.’s Joint Mot. for Fees and Expenses at 1. Class counsel

also seeks reimbursement for out-of-pocket expenses of

$70,094.24. See Declaration of Daniel C. Levin of October 2,

2009. Finally, class counsel requests a special award of $15,000

for the two named class representatives. See Pl.’s Joint Mot.

for Fees and Expenses at 21-22. 

II. Discussion

The Court decides the following four questions:

A) whether the proposed class can be properly

certified under Federal Rule of Civil Procedure

23;

B) whether notice to the class regarding the

settlement and attorneys’ fees petition was

adequate;

11
C) whether the settlement itself is fair, reasonable

and adequate; and

D) whether class counsels’ petition for attorneys’

fees, out-of-pocket expenses and special awards to

the class representatives should be approved.

As preliminary matter, the Court will discuss the law

relating to the constitutionality of a strip-search policy like

the one at issue here.

The Supreme Court has held that a court must analyze a

prison’s strip-search policy under the Fourth Amendment. See

Bell v. Wolfish, 441 U.S. 520 (1979). In Bell, a federal shortterm custodial facility had a policy to strip-search all pretrial detainees after a contact visit with an outside visitor. 

The Court found that, under the circumstances, the strip-searches

conducted under the policy were not unreasonable under the Fourth

Amendment. See id. at 559. 

In determining the reasonableness of a prison’s search

policy, the Bell Court held that courts must balance the prison’s

significant and legitimate interests in safety and security with

the privacy interests of the individuals. See id. at 559-60. It

presented four factors for a court to consider in that balance:

(1) the scope of the particular intrusion; (2) the manner in

which it is conducted; (3) the justification for initiating it;

and (4) the place in which it is conducted. See id. at 559.

The Court in Bell found that the prison’s policy was

reasonable under this standard because the interest in preventing

12
contraband from entering the prison facility outweighed the

privacy interests of the inmates searched. The categorical

reasonable suspicion that a prisoner might use contact with an

outside visitor to smuggle contraband into the prison justified

the invasiveness of the policy. See id. at 558. 

Bell’s holding was limited to the specific policy in

question, and the Supreme Court left open the question of whether

reasonable suspicion must be established to justify a policy to

strip-search all incoming inmates or pretrial detainees. Since

that time, however, ten Circuit Courts of Appeal and several

district courts have addressed the issue.

Courts in eight circuits have held that a policy to

strip-search all pre-trial detainees is unconstitutional under

Bell. These courts interpret Bell to require that a prison have 2

reasonable suspicion that a particular arrestee is concealing

weapons or other contraband before conducting a strip-search of

that arrestee. Some of these courts have also concluded that

Bell allows such reasonable suspicion to be established

categorically for certain groups of prison detainees, such as

See Roberts v. Rhode Island, 239 F.3d 107 (1st Cir. 2001); 2

Weber v. Dell, 804 F.2d 796 (2d Cir. 1986), cert. denied, 483

U.S. 1020 (1987); Masters v. Crouch, 872 F.2d 1248, 1255 (6th

Cir. 1989), cert. denied, 493 U.S. 977 (1989); Jones v. Edwards,

770 F.2d 739 (8th Cir. 1985); Stewart v. County of Lubbock, 767

F.2d 153 (5th Cir. 1985), cert. denied, 475 U.S. 1066 (1986);

Hill v. Bogans, 735 F.2d 391 (10th Cir. 1984); Mary Beth G. v.

City of Chicago, 723 F.2d 1263 (7th Cir. 1983); Logan v. Shealy,

660 F.2d 1007 (4th Cir. 1981), cert. denied, 455 U.S. 942 (1982). 

13
those charged with felonies or violent or drug-related

misdemeanors.3

One circuit court, however, recently broke with the

majority and overruled its previous decisions on this issue. See

Powell v. Barrett, 541 F.3d 1298 (11th Cir. 2009) (overruling

Wilson v. Jones, 251 F.3d 1340 (11th Cir. 2001)). The court in

Powell held that a blanket strip-search policy for all arrestees

can be constitutional under Bell. It reasoned that the Bell

balancing test allows for the interest of prison security to

outweigh the individual privacy interests of detainees,

regardless of whether there is reasonable suspicion that the

particular arrestee is concealing weapons or contraband. See id.

at 1309-12.

Another circuit is reconsidering its line of cases on

the issue and rehearing a strip-search case en banc. See Bull v. 4

City and County of San Francisco, 539 F.3d 1193 (9th Cir. 2008),

rehearing en banc granted, 558 F.3d 887 (9th Cir. 2009). The

Court of Appeals for the Third Circuit has yet to rule on this

issue.

See, e.g., Weber, 804 F.2d at 802; Masters, 872 F.2d at 3

1255; Mary Beth G., 723 F.2d at 1272.

See Thompson v. City of Los Angeles, 885 F.2d 1439 (9th 4

Cir. 1989); Kennedy v. Los Angeles Police Dept., 901 F.2d 702,

711 (9th Cir. 1989), Giles v. Ackerman, 746 F.2d 614 (9th

Cir.1984), overruled on other grounds by Hodgers-Durgin v. de la

Vina, 199 F.3d 1037 (9th Cir.1999) (en banc). 

14
The plaintiffs in this case, therefore, would have to

establish that the City’s policy was unconstitutional under the

Bell standard. To do so, they must show that Bell requires a

reasonable suspicion to conduct a strip-search of pre-trial

detainees. They must then show that, under the Bell factors, the

policy was unreasonable as applied to all persons arrested for

misdemeanors and minor crimes, including those charged with

violence, drug, or weapons-related crimes and those with a

previous felony or violence, drug, or weapons-related misdemeanor

conviction.

A. Class Certification

A court presented with a joint request for approval of

a class certification and settlement must separate its analysis

of the class certification from its determination that the

settlement is fair. See In re Insurance Brokerage Antitrust

Litigation, 2009 WL 2855855 at *9 (3d Cir. September 8, 2009). 

To certify a class under Rule 23, a court must find that all four

requirements of Rule 23(a) and at least one part of Rule 23(b)

are met. See Baby Neal v. Casey, 43 F.3d 48, 55 (3d Cir. 1994). 

The Settlement Class includes all individuals who were

placed into the custody of PPS after being charged with

misdemeanors or other minor crimes and were strip-searched upon

entry. The class period commences on April 21, 2003 and extends

to, and includes, October 9, 2007. The Settlement Class is then

15
divided into two Subclasses. Subclass I includes all persons in

the Settlement Class except those who (1) were arrested for

violence, drugs or weapons-related misdemeanor charges, (2) were

charged with bench warrants or probation violations where the

underlying charge was a violence, drugs or weapons-related

misdemeanor charge, or (3) had convictions for felonies or

violence, drugs or weapons-related misdemeanors. Subclass II

includes all members of the Settlement Class excluded from

Subclass I.

1. Analysis Under Rule 23(a)

Federal Rule of Civil Procedure Rule 23(a) requires

that four requirements be met in order for a to be certified: 

numerosity, commonality, typicality, and adequate representation. 

See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613 (1997). 

The Court finds that the four requirements of Rule 23(a) are met.

a. The Numerosity Requirement

Rule 23(a)(1) requires a class to be so numerous that

joinder of all members is impracticable. Classes exceeding forty

or more class members are generally held to meet the numerosity

requirement. See Stewart v. Abraham, 275 F.3d 220, 226-227 (3d

Cir. 2001). The Settlement Class consists of over 37,000

individuals. Currently, 5,400 of those individuals have

16
submitted verified claims forms. Because joinder of such a large

class is impracticable, the plaintiffs satisfy the numerosity

requirement.

b. The Commonality Requirement

Rule 23(a)(2) requires that there are questions of law

or fact common to the class. If class members share at least one

question of law or fact in common, factual differences among the

claims of the class members do not defeat certification. In re

Prudential Ins. Co. America Sales Practice Litigation Agent

Actions, 148 F.3d 283, 310 (3d Cir. 1998) (In re Prudential). In

this case, there is a legal issue common to all class members: 

whether the defendant’s blanket policy of strip-searching all

detainees upon admission was constitutional. This satisfies the

Rule 23(a)(2) commonality requirement.

c. The Typicality and Adequacy Requirements

Rule 23(a)(3) and (a)(4) require that the claims or

defenses of the representative parties be typical of the claims

or defenses of the class and that the representative parties will

fairly and adequately protect the interests of the class. The

Court of Appeals for the Third Circuit has noted that these two

inquiries tend to merge because both evaluate the relation of the

claims and the potential conflicts between the class

17
representatives and the class in general. Beck v. Maximus, Inc.,

457 F.3d 291, 296 (3d Cir. 2006). 

The typicality inquiry centers on whether the interests

of the class representatives align with the interests of the

absent class members such that the former is working towards the

benefit of the class as a whole. See In re Prudential, 148 F.3d

at 311.

Two distinct inquiries comprise the adequacy

requirement. See In re Prudential, 148 F.3d at 312. The first

inquiry determines whether any significant antagonistic interests

or conflicts exist between the class representatives and absent

class members. The second inquiry looks to the experience and

expertise of class counsel in representing the class. See id. 

If a court finds that a single class representative

cannot represent the entire class, it may under Rule 23(c)(5)

divide a class into subclasses where appropriate. When class

members have different claims or defenses or have conflicting or

antagonistic interests, subclasses are appropriate. Each

subclass is then to be treated as a class within the rule, and

each must have its own representative. See id. at 312; Amchem,

521 U.S. at 627. 

 In this case, the parties have separated the

settlement class into two subclasses: Subclass I includes all

persons in the Settlement Class except those who (1) were

18
arrested for violence, drugs or weapons-related misdemeanor

charges, (2) were charged with bench warrants or probation

violations where the underlying charge was a violence, drugs or

weapons-related misdemeanor charge, or (3) had convictions for

felonies or violence, drugs or weapons-related misdemeanors;

Subclass II includes all members of the Settlement Class excluded

from Subclass I.

The Court finds that the creation of subclasses is

appropriate here because each of the two subclasses will have to

make a different showing to establish that the City lacked the

reasonable suspicion to strip search the subclass members. For

the members of Subclass I to prevail on their claims, they must

establish both that Bell requires a reasonable suspicion to

conduct a strip search of all pre-trial detainees and that the

City lacked such a reasonable suspicion with regard to them. 

The members of Subclass II, however, will have to make

the additional showing that the City could not strip-search them

categorically based upon the reasonable suspicion that they are

more likely to attempt to smuggle contraband into the prison due

to the nature of the charges against them or their criminal

history. The members of Subclass II therefore would have to show

that reasonable suspicion to strip-search must be established

individually and cannot be found categorically. 

19
The proposed division into these two subclasses is

reflected in the decisions of other courts, in that courts 5

routinely certify classes with definitions excluding individuals

violence, drug, or weapons-related charges. 

6

The class representatives in this case have claims

typical of, and no interests antagonistic to, members of their

respective subclasses. Mr. Byrd who, represents Subclass I, was

charged with a non-violence, drug or weapons-related misdemeanor

and had no previous criminal history. Ms. Boone represents

Subclass II. Although she was arrested for a non-violence, drug

or weapons-related crime, she had a criminal history involving

violent crimes. 

Finally, class counsel in this case has substantial

experience in litigating complex civil rights actions. They have

served as class counsel in at least twenty strip-search class

actions. Class counsel have also vigorously represented the

At least one other district court has created subclasses 5

along similar lines. See Ford v. City of Boston, 154 F.Supp.2D

131, 135 (D. Ma. 2001).

See, e.g., Miracle v. Bullitt County, Ky., 2008 WL 3850477 6

(W.D. Ky. Aug. 15, 2008); Florence v. Bd. of Chosen Freeholders

of County of Burlington, 2008 WL 800970, *6 (D.N.J. March 20,

2008); Johnson v. District of Columbia, 248 F.R.D. 46, 50 (D.D.C.

2008); Bull v. City and County of San Francisco, 539 F.3d 1193,

1195 (9th Cir. 2008); Sutton v. Hopkins County, 2007 WL 119892,

*1 (W.D. Ky. Jan. 11, 2007); Tardiff v. Knox County, 218 F.R.D.

332, 336 (D. Me. 2004); Nilsen v. York County, 219 F.R.D. 19, 25

(D. Me. 2003); McBean v. City of New York, 228 F.R.D. 487, 490

(S.D.N.Y. 2005); Blihovde v. St. Croix County, Wis., 219 F.R.D.

607, 623 (W.D. Wis. 2003).

20
class through four years of litigation, including discovery and

motion practice. They fulfill the adequacy requirement of Rule

23(a).

For these reasons, the Court finds that the four

requirements of Rule 23(a), numerosity, commonality, typicality

and adequacy, are met in this case.

 

2. Analysis Under Rule 23(b)

Once a court determines that the requirements of Rule

23(a) are met, it must consider whether the action is

maintainable under one of the three parts of Rule 23(b). The

parties seek to have this class certified under Rule 23(b)(3). 

Rule 23(b)(3) allows certification only if the

questions of law or fact common to class members predominate over

any questions affecting only individual members and if a class

action is superior to other available methods for fairly and

efficiently adjudicating the controversy. This is commonly

broken out into the so-called “predominance” and “superiority”

requirements. See In re: Ins. Brokerage Antitrust Litigation,

2009 WL 2855855 at *10. 

Rule 23(b)(3) also provides a non-exhaustive list of

factors to aid the court in determining whether a class action is

the best method of adjudication: (1) the class members'

interests in individually controlling the prosecution or defense

21
of separate actions; (2) the extent and nature of any litigation

concerning the controversy already begun by or against class

members; (3) the desirability or undesirability of concentrating

the litigation of the claims in the particular forum; and (4) the

likely difficulties in managing a class action. Although the

fourth factor has been held to be not relevant in a settlementonly class certification, the other requirements of the rule

“demand undiluted, even heightened, attention in the settlement

context.” Amchem, 521 U.S. at 620. 

a. The Predominance Requirement

Under Rule 23(b)(3), a court must determine that common

questions of law or fact predominate over any questions affecting

only individual members. Predominance is found when common

questions represent a significant part of the case and can be

resolved for all members of the class in a single adjudication. 

See 7AA Charles A. Wright, et al., Federal Practice and Procedure

§ 1778 (3d ed. 2005). To establish predominance, the plaintiffs

must show by a preponderance of the evidence that the elements of

their claim can be proven by evidence common to all in their

class. See In re Hydrogen Peroxide Antitrust Litig., 552 F.3d

305, 311-12 (3d Cir. 2008). 

For the members of Subclass I, the question is whether

the City’s policy of strip-searching all pre-trial detainees in

22
the absence of reasonable suspicion violates the Fourth

Amendment. General evidence of the policy and its blanket

application to the subclass members will be required to prove the

subclass’s claim. Evidence of the circumstances of each

individual search would not be necessary to prove this claim. 

This has led many courts to conclude that the common question of

the constitutionality of such a blanket strip-search policy as

applied to members of classes similar to Subclass I meets the

predominance requirement. 

7

Members of Subclass II would need to prove that the

City’s policy was unconstitutional as applied to arrestees

charged with violence, drug or weapons-related crimes or

arrestees with a previous felony or violence, drug or weaponsrelated misdemeanor conviction. The members of this subclass

must not only show that the City’s policy was unconstitutional as

applied to all arrestees, but also that the City was

constitutionally required to establish reasonable suspicion for

each individual arrestee before conducting a search. This common

question of whether individualized reasonable suspicion is

constitutionally required predominates over any individual

questions within this subclass. 

See, e.g., Florence, 2008 WL 800970 at *12; Johnson, 248 7

F.R.D. at 56-57 (D.D.C. 2008); Sutton, 2007 WL 119892, *6-*9;

Tardiff v. Knox County, 365 F.3d 1, 5-7 (1st Cir. 2004);

Blihovde, 219 F.R.D. at 620-22; Maneely v. City of Newburgh, 208

F.R.D. 69, 76-77 (S.D.N.Y. 2001).

23
Within each subclass, then, a common issue predominates

over any individual claims, and the elements of each claim can be

proven with evidence common to all. The predominance requirement

under Rule 23(b)(3) is therefore satisfied.

b. The Superiority Requirement

Under the superiority requirement, the court asks

whether a class action, rather than individual litigation, is the

best method for achieving a fair and efficient adjudication. See

Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d

154 (3d Cir. 2001). 

A class action in this case saves the time, effort and

expense of litigating the claims of as many as 37,000 class

members individually and guarantees uniform treatment of

individual class members within their respective subclasses. The

parties have not identified, and the Court is not aware of, any

other strip-search litigation involving PPS or the City of

Philadelphia. Because it is generally desirable to concentrate

many smaller claims into a single forum, a class action is

appropriate in this case. A class action is the superior method

for adjudicating this particular matter. 

Finding that the requirements of Rule 23(a) and Rule

23(b)(3) are met, the Court hereby certifies the class as

presented by the parties.

24
 

B. Notice

Under Rule 23(c)(2)(B), notice must be given to

potential class members by the best notice practicable under the

circumstances for all classes certified under Rule 23(b)(3). 

This includes individual notice to all potential class members

that can be identified through reasonable effort. Notice must,

in clear, concise and plain language, state: (i) the nature of

the action; (ii) the definition of the class certified; (iii) the

class claims, issues or defenses; (iv) the class member’s right

to enter an appearance by an attorney; (v) the class member’s

right to be excluded from the class; (vi) the time and manner for

requesting exclusion; and (vii) the binding effect of settlement

on class members. See Rule 23(c)(2)(B). A court must determine

that notice was appropriate before evaluating the merits of the

settlement itself. See, e.g., In re Prudential, 148 F.3d at 326-

27.

In this case, the notice given met the requirements of

Rule 23(c)(2)(3). The notice, in all of the forms in which it

was disseminated, described the proposed settlement, its terms,

and the nature of the claim filed on behalf of the class. It

also described the class members’ right to object or to be

excluded from the settlement, including their opportunity to be

25
heard at the fairness hearing, and the binding effect of the

settlement on those who choose not to opt out.

Individual notice forms were mailed to 37,159

identified class members. Those notifications that were returned

as undeliverable were re-sent if another address could be found

using a locator database. Notice was also provided by way of

publication in the Philadelphia Tribune, Philadelphia Al Dia and

the Philadelphia Daily News and through television

advertisements. See Parties’ Mot. for Class Cert. and

Settlement, at 1-2. 

Because individual notices were sent to all identified

class members and because the notice was widely disseminated

through local publications and television broadcasts, the Court

finds that the notice given meets the requirements of Rule

23(c)(2)(B).

C. Approval of the Settlement

In order to approve a class settlement, a court must

find that the settlement is fair, reasonable and adequate and in

the best interests of the class under Rule 23(e). In re General

Motors Corp. Pick-Up Truck Fuel Tank Products Liability

Litigation, 55 F.3d 768, 785 (3d Cir. 1995) (In re General

Motors). When considering a class settlement, the “court plays

26
the important role of protector of the [absent class members’]

interests, in a sort of fiduciary capacity.” Id.

In Girsh v. Jepson, 521 F.2d 153 (3d Cir. 1975), the

Court of Appeals for the Third Circuit set forth the following

nine specific factors that a district court should consider in

determining whether a settlement is fair, reasonable and

adequate: (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; (9)

the range of reasonableness of the settlement fund to a possible

recovery in light of all the attendant risks of litigation. Id.

at 157. 

Applying these factors, the Court is satisfied that the

Settlement is fair, reasonable and adequate to the class members.

1. The Risks of Establishing Liability and Damages

The risks of establishing liability and the risk of

establishing damages will be discussed first because these two

factors require close attention here. The Court concludes that

27
there is a risk of establishing liability in this case, due to

the uncertainty of the law on the constitutionality of blanket

strip-search policies such as the one used by the City. Even if

liability is established, the Court concludes that there is a

risk of establishing damages. The Court further concludes that,

because of the increased risk for the members of Subclass II, the

creation of the subclasses and corresponding difference in

settlement amounts is fair, reasonable and adequate under these

factors.

a. The Constitutionality of the Defendant’s 

Strip-Search Policy 

The status of the case law surrounding the

constitutionality of the use of blanket strip-search policies in

the prison context has become increasingly uncertain. Courts in

several circuits have held that, under Bell, the constitution

requires strip and visual body cavity searches to be justified by

at least a reasonable suspicion that the individual arrestee is

concealing contraband or weapons. These courts have held that it 8

is unconstitutional for a prison to have blanket policies that

circumvent a minimal-threshold of reasonable suspicion for

arrestees charged with misdemeanors and other minor crimes. 

The Court of Appeals for the Eleventh Circuit’s recent

See supra at n. 2. 8

28
decision in Powell rejecting this reading of Bell has created a

split in the circuits on this issue. See Powell, 541 F.3d at

1314. The Court of Appeals for the Ninth Circuit has also

decided to reconsider its line of cases on the issue and re-hear

a strip-search case en banc. See Bull v. City and County of San

Francisco, 539 F.3d 1193 (9th Cir. 2008), rehearing en banc

granted, 558 F.3d 887 (9th Cir. 2009). 

The Court of Appeals for the Third Circuit has yet to

decide this issue. The District Court of New Jersey, however,

recently certified the following question to the Court of Appeals

for interlocutory appeal: “Whether a blanket policy of strip

searching all inmates upon admission to a county correctional

facility is violative of the inmates' constitutional rights?” 

See Florence v. Bd. of Chosen Freeholders of County of

Burlington, 2009 WL 1971328 at *3 (D.N.J. June 30, 2009).

The law concerning the constitutionality of the

defendant’s blanket strip-search policy has therefore become

increasingly uncertain. Although this issue may have appeared to

be more settled at the outset of litigation, the recent decision

in Powell, the decision of the Court of Appeals for the Ninth

Circuit to reconsider its precedent en banc, and the Court of

Appeals for the Third Circuit’s forthcoming consideration of the

issue come together to make the state of the law more uncertain

today. 

29
Even if the plaintiffs were able to establish the

City’s liability, the amount of damages owed to the class members

would present a challenge to the plaintiffs. Calculating the

value of the plaintiffs’ claims will depend upon a number of

variables, including the circumstances and severity of the search

and the effect of the search on the class members. A

consideration of damages also weighs towards settlement.

b. The Increased Risks of Liability for 

the Members of Subclass II 

The Court must also decide whether the disparity in

recovery amounts between the subclasses is fair, reasonable and

adequate. The Court concludes that the limited recovery to

members of Subclass II is fair, reasonable and adequate when

considering the increased risk to the members of Subclass II in

establishing liability.

Courts in at least two circuits have stated that a

violent or drug-related charge alone creates a reasonable

suspicion that would allow prison authorities to strip-search

pretrial detainees like those placed in Subclass II. See

Masters, 872 F.2d at 1255 (“It is objectively reasonable to

conduct a strip search of one charged with a crime of violence

before that person comes into contact with other inmates”); Mary

Beth G., 723 F.2d at 1272 (distinguishing the constitutionality

of strip-searches where there is no reasonable suspicion for

30
pretrial detainees held on “inherently dangerous” crimes from the

unconstitutionality of strip searches of “minor offenders”). 

Under this view, even if a court were to find that a blanket

strip-search policy was unconstitutional as applied to the

members of Subclass I, it could still find that the policy was

constitutional as applied to individuals charged with violence,

drug or weapons-related crimes. These members of Subclass II,

therefore, have more of a risk in establishing liability than the

members of Subclass I.

Class definitions in similar strip-search class actions

often exclude individuals with violence, drug or weapons-related

charges. In this case, these subclass members will still receive 9

some relief, which is a more generous result than similarlysituated individuals in other cases have received. This fact,

coupled with the greater risk in establishing liability, makes

the settlement for these members of Subclass II under the fourth

and fifth Girsh factors fair, adequate and reasonable.

There is similar support for the inclusion of

individuals with preexisting felony or violence, drug or weaponsrelated misdemeanor convictions in Subclass II. At least one

court has explicitly held that reasonable suspicion exists to

See, e.g., Bull, 539 F.3d at 1195; McBean, 228 F.R.D. at 9

490; Tardiff v. Knox County, 365 F.3d at 5 (1st Cir. 2004),

affirming Nilsen v. York County, 219 F.R.D. 19, 19-20 (D. Me.

2003) and Tardiff v. Knox County, 218 F.R.D. 332, 336 (D. Me.

2004); Sutton, 2007 WL 119892 (W.D. Ky. Jan. 11, 2007).

31
strip-search all temporary detainees with prior records of felony

or violence, drug or weapons misdemeanor-misdemeanor convictions. 

See Smith v. Montgomery County, Md., 643 F.Supp. 435, 439 (D. Md.

1989) (“Reasonable suspicion also exists to strip search all

temporary detainees with prior records of convictions or

unresolved arrests for felony offenses, or for misdemeanors

involving weapons or contraband”). Other courts have held that a

detainee's prior record is at least relevant in determining

whether or not reasonable suspicion exists. For similar reasons 10

to those charged with violence, drug or weapons-related crimes,

then, individual class members who are included within this

category also stand an increased risk of not establishing

liability than the members of Subclass I.

2. The Complexity, Expense, and Likely Duration 

of the Litigation 

The first Girsh factor, the complexity, duration, and

expense of the litigation, weighs towards settlement in this

See Giles, 746 F.2d at 617 (“Reasonable suspicion may be 10

based on such factors as the nature of the offense, the

arrestee's appearance and conduct, and the prior arrest record”);

Boyd, 613 F.Supp. at 1525 (finding that reasonable suspicion

“could be based on the nature of the offense, the detainee's

criminal history, the demeanor of the individual, and the results

of any other search ... which the defendants may choose to

conduct”); Ninneman, 612 F.Supp. at 1071; Hunter, 672 F.2d at 671

(noting that the strip-searched parties had never been convicted

of a drug offense).

32
case. At trial, the plaintiffs would face the task of proving

the unconstitutionality of the defendant’s policy, which would be

complex, expensive and, as discussed in more detail above, risky. 

These facts make settlement the best option under the first Girsh

factor. 

3. The Reaction of the Class to the Settlement 

The second factor, reaction of the class, also favors

approval of the settlement. Out of over 37,000 potential class

members, only three have formally objected. A low number of

objectors compared to the number of potential class members

creates a strong presumption in favor of approving the

settlement. See In re Cendant Corp. Litigation, 264 F.3d 201,

234-35 (3d Cir. 2001). Moreover, only five class members chose

to opt out of the class. The fact that so few potential class

members objected to or opted out of the settlement supports a

finding of general acceptance of the settlement in the class.

4. The Stage of the Proceedings and the Amount 

of Discovery Completed 

The third factor, the stage of the proceeding and the

amount of discovery, similarly weighs towards acceptance of the

settlement. Post-discovery settlements are more likely to

reflect the true value of the claim. Bell Atlantic Corp. v.

Bolger, 2 F.3d 1304 (3d Cir. 1993). Discovery has been extensive

33
here, with numerous depositions taken and hundreds of documents

reviewed by the parties. The discovery and other investigations

that the parties have undertaken render them sufficiently

informed to make a determination about the fairness of a

settlement. 

5. The Risks of Maintaining the Class Action 

Through Trial and the Ability of the 

Defendants to Withstand a Greater Judgment

The sixth and seventh Girsh factors, the risk of

maintaining the class action through trial and the ability of the

defendants to withstand a greater judgment, are neutral issues in

this particular case. 

Although there are no factors to indicate a likelihood

that this class could not have been maintained through trial,

there is always some risk of decertification in any class action.

The risk of decertification is therefore present here, but it is

no more substantial than the risk present in any class action. 

Similarly, the defendants in this case, a major city,

should under normal circumstances be able to withstand a greater

judgment. 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.

34
6. The Reasonableness of the Settlement in Light 

of the Best Possible Recovery and the 

Attendant Risks of Litigation 

Finally, the eighth and ninth factors, the

reasonableness of the settlement in light of the best possible

recovery and the attendant risks of litigation, support approval

of the settlement. The reasonableness of a proposed settlement

depends in part upon a comparison of the present value of the

damages the plaintiffs would recover if successful, discounted by

the risks of not prevailing. In re General Motors, 55 F.3d at

806. 

Considering the risks of litigation and the uncertainty

of the law in this area, the disparity between the settlement

amount and a possibly greater recovery amount is reasonable. 

Moreover, the approximately $1400 granted to the members of

Subclass I is commensurate with the amounts received by class

members in settlements of similar actions. The approximately 11

$100 granted to the members of Subclass II is also fair given

that individuals meeting the definition of Subclass II are often

completely excluded from recovery in strip-search cases. Because

See Hicks v. The County of Camden, 05-cv-1857 (D.N.J. June 11

9, 2008) (awarding an estimated $1,025 per claimant); McBean v.

City of New York, 233 F.R.D. 377, 388 (S.D.N.Y. 2006) (awarding

either $750 or $1000 per claimant, depending upon the number of

times the prisoner was searched); Kahler v. County of Rensselaer,

No. 03-cv-1324 (N.D.N.Y. 2004) (awarding $1,000 per claimant) 

Doan v. Watson, 2002 WL 1730917 (S.D. Ind. Dec. 4, 2002)

(awarding $1,000 per claimant). 

35
of the risk that the class members might not recover at all and

because the amounts received are commensurate with, and even

exceed, the amounts awarded in similar class actions, these last

two factors weigh towards granting the settlement.

After applying the Girsh factors, the Court concludes

that the settlement is fair, reasonable and adequate under Rule

23(e). All but two of the Girsh factors weigh in favor of

approving the settlement. Those other two factors are neutral. 

For these reasons, the Court approves the Settlement under Rule

23(e).

D. The Attorneys’ Fee Petition

Class counsel in a class action who recovers a common

fund for the benefit of persons other than himself or his client

is entitled to a fair and reasonable award of attorneys’ fees

from the fund as a whole. Boeing Co. v. Van Gemert, 444 U.S.

472, 478 (1980). Class counsel calculate their fee award using

the percentage-of-recovery method, which is the method favored in

common fund cases. See In re General Motors, 148 F.3d at 333. 

They also use the alternative method of fee calculation, the

lodestar method, as a cross-check in order to ensure that the fee

amount is reasonable. See, e.g., In re Insurance Brokerage

Antitrust Litigation, 2009 WL 2855855 at *31.

36
As a result of these calculations, class counsel seek

an award of attorney’s fees of 30% of the $5.9 million settlement

fund, which amounts to $1,770,000. Class counsel also seek a

reimbursement of out-of-pocket expenses of $70,094.24. They also

request that the Court award an additional $100,000.00 to the

claims administrator. Finally, class counsel request an award to

the class representatives of $15,000 each. 

The Court finds that all of these requests are

reasonable and grants class counsels’ motion.

1. The Reasonableness of the Fees

When the percentage-of-recovery method is used to

determine attorneys’ fees in a common fund case, the Court of

Appeals for the Third Circuit requires the 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. 

37
All factors weigh in favor of approving the attorneys’ fee

petition in this case.

The first Gunter factor, the size of the fund created

and number of persons benefitted, favors the fee amount, as class

counsel were able to obtain a sizable result, $5.9 million, for a

potential class of 37,000 individuals. 

The second factor, the number of substantial

objections, also weighs in class counsels’ favor. Only three

objections have been entered to the settlement generally and just

one to the proposed attorney’s fees and costs. 

The third factor, the skill and efficiency of the

attorneys involved, supports approval of the attorneys’ fee

request. Class counsel are highly skilled in this area and have

conducted at least twenty other strip-search class actions. The

submissions made in this case were thorough and of high quality. 

Finally, class counsel worked effectively and efficiently to

bring this action to settlement. The skill and efficiency

brought to this action by class counsel support the fee request.

The fourth and fifth factors, the complexity and

duration of the litigation and the risk of nonpayment, also

support approval of class counsels’ fee request. As discussed

above, this case involves a complicated issue of constitutional

law, the outcome of which has become increasingly uncertain over

the time of this litigation. Class counsels’ work was performed

38
on a contingent basis, and they have not been reimbursed. Given

the four years spent on this litigation, the fee requested is

reasonable for the time, effort and risk involved.

The sixth factor, the amount of time devoted by

counsel, supports the fee amount. Class counsel documents

2,857.65 hours of contingent work on this litigation, justifying

the amount requested in their petition. This determination is

confirmed by the reasonable outcome of the lodestar cross-check,

as discussed below. 

The seventh Gunter factor, the awards granted in

similar cases, also supports the fee amount. The percentage of

30% requested by class counsel is within the range the

percentages granted in similar cases and class action settlements

generally. A study referenced by another court in this district

analyzed 289 class action settlements ranging from under $1

million to $50 million and determined that the average attorneys’

fees percentage to be 31.71% and the median to be one-third. In

re Rite Aid Corp. Securities Litigation, 146 F.Supp.2d 706, 735

(E.D.Pa. 2001) (affirming a fee amount of 25%). Furthermore, a

30% fee percentage is commensurate with other strip-search class

actions conducted by class counsel.12

See Suggs v. Cumberland County, 1:06-CV-00087 (D.N.J.) 12

(approving a 30% fee percentage); Boiselle v. Mercer County,

3:06-CV-2065 (D.N.J.) (same); Clark v. County of Salem, 07-CV2259 (D.N.J.) (same); Hicks v. County of Camden, 1:05-CV-1854

(D.N.J.) (approving a 27.5% fee percentage).

39
Under the Gunter factors, then, an attorneys’ fee award

of 30% of the fund is reasonable.

The lodestar cross-check analysis further supports the

reasonableness of the attorney’s fees. Under the lodestar

method, the court calculates the proper fee by multiplying the

number of hours spent on the litigation by an appropriate hourly

rate. See In re General Motors, 55 F.3d at 819 n.37. Although

the resulting multiplier need not fall within any pre-defined

range, the Court of Appeals for the Third Circuit has noted that

multiples ranging from one to four are frequently awarded in

common fund cases when the lodestar method is applied. See In re

Prudential, 148 F.3d at 341.

In this case, class counsels’ requested fee produces a

multiplier of 2.3 using the historic rate calculation, a method

by which hours expended by each attorney are grouped into

historical time periods and multiplied by the attorney’s hourly

rate for that time period. A multiple of 2.3 reached under the 13

historic rate calculation is safely within the reasonable

multiplier range and confirms the reasonableness of class

counsels’ fee request.

Courts also use the “current lodestar method,” by which 13

the total hours expended by each attorney are multiplied by that

attorney's hourly rate at the conclusion of the case. See, e.g.,

Missouri v. Jenkins, 491 U.S. 274, 283-84 (1980); New York State

Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1153

(2d Cir. 1983). Class counsel reports that under this method

“the lodestar amount would be higher but the multiplier would be

lower.” Pl.’s Joint Mot. for Fees and Expenses at 20 n.9. 

40
2. Reimbursement of Out-of-Pocket Expenses

Class counsel have requested additional reimbursement

in the amount of $70,094.24 for their out-of-pocket expenses for

the management of the common fund for the benefit of the class

members.

Class counsel provided a breakdown for each firm or

lawyer that separates the out-of-pocket expenses into broad

categories. The categories include amounts spent for postage,

mail and courier services; photocopying; telephone and facsimile;

filing and litigation fees; meals, hotels, and transportation;

publications; research; and assessments. The totals for each

category are reasonable expenses for a large, complex, multi-year

litigation. 

Finally, class counsel has requested that the Court

grant an additional $100,000.00 to the administrator for extra

class administration costs. This request is reasonable and is

granted.

The Court therefore approves class counsels’ request

for an award of out-of-pocket expenses in the amount of

$70,094.24 and the award of an additional $100,000.00 to the

claims administrator.

41
3. Awards to the Class Representatives

Class counsel requests a special award of $15,000 for

each class representative. Other strip-search settlements

provide similar awards to class representatives. 

14

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. They do so for the

benefit of the class, and the Court finds that these awards are

reasonable compensation for the sacrifice of their anonymity. 

V. Conclusion

For the reasons herein stated, the Court grants the

plaintiffs’ and defendant’s Motion for Final Approval of

Settlement and Class Certification. The Court hereby certifies

the class and approves the settlement in this class action as

described in that motion.

The Court also grants class counsels’ Joint Motion for

Fees and Expenses.

An appropriate Order shall issue separately.

See Hicks v. City of Camden, No. 05-CV-1857 (awarding 14

$15,000 to two class representatives); Suggs v. Cumberland

County, 1:06-CV-00087 (D.N.J.) (same); Boiselle v. Mercer County,

3:06-CV-2065 (D.N.J.) (awarding $20,000 to one class

representative); McBean v. City of New York, 233 F.R.D. 377, 391-

92 (S.D.N.Y. 2006) (awarding between $25,000 and $35,000 to class

representatives).

42