ORDER AWARDING ATTORNEY’S FEES AND COSTS.
I. INTRODUCTION
This case is a class action on behalf of various classes of inmates who were in San Bernardino County Jail. This action was filed on May 3, 2005. There are five classes certified by the Court. Plaintiffs filed a class certification motion, which was granted by the Court on October 11, 2006. Subsequently, in the context of the settle
a. Pre-Arraignment Strip Search Class. San Bernardino County Jail arrestees booked on offenses not involving weapons, violence or drugs who were transferred from a local Type 1 jail (a Type 1 jail is a local detention facility used for the detention of persons for not more than 96 hours excluding holidays after booking) to a Type 2 jail (a Type 2 jail is a local detention facility used for the detention of persons pending arraignment, during trial, and upon a sentence or commitment) prior to arraignment and were, at the time of admission to the Type 2 jail, subjected to a strip search or visual body cavity search without reasonable suspicion or probable cause to believe they were in possession of weapons or drugs, pursuant to a blanket policy, practice or custom of Defendants of strip searching all such arrestees. The class period is May 3, 2003— December 11, 2006.
b. US Marshal [aka USM] Strip Search Class. San Bernardino County Jail inmates who were in federal custody and who, pursuant to agreement between the United States and San Bernardino County, were housed in a San Bernardino jail facility, and who, upon being taken from federal to San Bernardino custody, were strip searched by the San Bernardino County Sheriffs Office without reasonable suspicion or probable cause to believe that they were in the possession of weapons or drugs, pursuant to a blanket policy, practice of custom of Defendants of strip searching all such transferees. The class period is May 3, 2003 — December 11, 2006.
c. Transport Strip Search Class. San Bernardino County Jail inmates who were in the custody of another law enforcement agency, and who were transferred to San Bernardino County custody to be arraigned on charges in San Bernardino County, and who, upon being taken into San Bernardino County custody, were strip searched by the San Bernardino County Sheriffs Office without reasonable suspicion or probable cause to believe that they were in the possession of weapons or drugs, pursuant to a blanket policy, practice of custom of Defendants of strip searching all such transferees. The class period is May 3, 2003 — December 11, 2006.
d. Post-Release Strip Search Class. San Bernardino County Jail inmates who appeared in court, and, at the conclusion of their court appearance, were entitled to release and, prior to release, were subjected to a strip search or visual body cavity search without reasonable suspicion or probable cause to believe they were in possession of weapons or drugs, pursuant to a blanket policy, practice or custom of Defendants of strip searching all such inmates. The class period is May 3, 2003 — December 11, 2006.
e. Group Strip Search Class. County jail inmates who are not members of either the Pre-Arraignment, USM, Transfer or Post-Release Strip Search Classes who were subjected to a strip search or visual body cavity search in a group pursuant to the blanket policy, custom or practice of the San Bernardino County Jail of strip searching inmates in a group. The class period is May 3, 2003 — March 7, 2007.
The Plaintiffs filed a motion for partial summary judgment, which was opposed by Defendants. On December 7, 2006, the Court granted Plaintiffs’ motion, finding that 1) the County’s practice of routinely strip searching pre-arraignment arrestees who were placed in a local County facility and then transferred to its main detention centers at either Central Detention Center
Subsequently, the parties entered into mediation before an agreed upon private mediator. After several sessions, the parties agreed to the basic terms of the settlement, which include: 1) an estimated class fund of $25,500,000 (the exact amount of which is $25,648,204; 2) a point system based upon the records of the San Bernardino County Jail to determine how many points are awarded to the Plaintiffs; 3) a special allocation of $200,000 to the seven Named Plaintiffs, to be allocated as agreed to by them and their counsel; 4) a reserve to the class fund of $648,204 that may be used to pay half of any opt-out fees and awards, any remainder of which then goes to the remaining class fund for distribution to class members, and 5) the Plaintiffs’ right to seek an award not to exceed 25% of the class fund, now determine to be $25,648,204. The Court has approved that settlement in a separate order. See Final Order of Approval and Settlement, concurrently filed herewith.
Plaintiffs filed a motion for attorneys’ fees seeking 25% of the fund as a class fund award. For the reasons stated below, the Court awards Plaintiffs’ counsel $6,375,000 (25% of the class fund) as attorneys’ fees, plus $70,564.64 in costs.
II. THE STANDARDS FOR AWARDING CLASS FUND ATTORNEYS’ FEES.
It is well settled in the Ninth Circuit that, “[i]n a common fund case, the district court has discretion to apply either the lodestar method or the percentage-of-the-fund method in calculating a fee award.”
Fischel v. Equitable Life Assurance Soc’y of the U.S.,
The Ninth Circuit has “established 25% of the common fund as the ‘benchmark’ award for attorney fees.” E.g.,
Torrisi v. Tucson Elec. Power Co.,
A. The Complexity Of The Issues, Counsel’s Skill and the Degree of Risk Assumed By Counsel.
Congress recognized the complexity of civil rights cases when the civil rights attorneys’ fee statute (42 U.S.C. § 1988) was passed in 1976.
See
S.Rep.No. 94-1011,
1976 U.S.Code Cong. & Admin. News
at 5908, 5913 (civil rights fees should “be governed by the same standards which prevail in other types of equally complex federal litigation, such as antitrust cases”). The issues involved in this case involve complex issues of constitutional law in an area where considerable deference is given to jail officials, as this Court recognized in the partial summary decision in this case.
See Craft v. County of San Bernardino,
The settlement in this case ultimately encompassed five categories of class members. At the time this lawsuit was filed, the law was not settled in the areas encompassed by the suit, and in some areas the law was very uncertain. All Ninth Circuit decisions to date finding strip searches unconstitutional involved pre-arraignment strip searches in the context of people not being placed in the general population.
See, e.g., Way v. County of Ventura,
The issues presented by this case did not fit into this well established area of the law. The first class certified in the list of classes finally certified in this action (Class “a”, above, Pre-Arraignment Strip Search Class) were not direct pre-arraignment arrestees but pre-arraignment transferees from another jail. In fact, the summary judgment decision in this case regarding the constitutionality of these strip searches entailed a complex and subtle analysis of the factors involved in determining the unconstitutionality of the strip/visual body cavity search policy, and there were no cases directly on point.
See Craft v. County of San Bernardino,
The fifth class finally certified by the Court was the policy of conducting strip/visual body cavity searches in a group. (See Class “e”, above, Group Strip Search Class.) This class was not separately briefed on summary judgment, but was considered on that motion only as it was a factor in the pre-arraignment and post-release searches. While there is ample law on the fact that privacy is a factor in the overall assessment of the constitutionality of a strip search
(see, e.g., Craft v. County of San Bernardino,
As a general proposition, “the case law in this area [jail strip searches] is far from stable.”
McBean v. City of New York,
Declarations filed in support of Plaintiffs’ motion for attorneys’ fees from experienced class and civil rights lawyers noted several particular difficulties in litigation of this kind, including 1) particular challenges and expertise required to establish a policy or custom under
Monell v. Dept. Soc. Serv.,
In addition to the risk of establishing liability, class certification carries risks and requires experienced class counsel. Whether to certify a class rests within the sound discretion of the court.
See, e.g., Staton v. Boeing Co.,
Aside from the complexity of the legal issues, there are other complexities. Data analysis in a case such as this is complex, requiring a high degree of sophistication and background in such analyses. Analysis of the Defendant’s data is the basis of determining class membership and entails writing specialized code to determine who belongs in each class, based on the particular facts and issues of each case. Mediation requires reaching a mutual agreement on analyzing the data, as well as issue involving the structure of the class fund, its administration and the like.
All these considerations are factors in determining both the complexity of the case and the degree of risk involved in the litigation. Even with the body of law in areas clearer than most involved here, substantial uncertainty and risk exists in pursuing any strip search claims against jails and in obtaining class certification, and the quality of the representation makes a large difference. For the reasons stated, plaintiffs’ counsel brought to bear substantial expertise, addressed and obtained favor
Class counsel declined substantial other work to pursue this case. Mr. Litt and Mr. Estuar, who concentrate more or less exclusively on civil rights class actions, handle only about 10-12 cases at a time, for each of which it is anticipated that in the range of 1500-5000 hours or more will be required to see the case to completion. In this case, by the conclusion of the case, well over 2000 hours will have been expended on the case.
B.Counsel’s Experience
Class counsel are highly experienced and highly regarded civil rights lawyers, with extensive class action experience. Mr. Litt is a well known and highly regarded civil rights lawyer specializing in civil rights class actions, especially law enforcement class actions. He has been lead counsel in two other eight figure strip search settlements aside from this one, and is lead counsel in several other pending strip search class actions in California, Washington D.C., Maryland and Georgia. He has several seven figure, and one eight figure, civil rights trial verdicts. With this case, he will have been lead counsel in three of the four largest strip search cases, measured in terms of monetary recovery, in the United States. Mr. Estuar has worked with Mr. Litt for many years and also specializes in complex civil rights litigation, and has worked with him on the strip search cases described above. The other class counsel in this case — Mr. Mann and Mr. Cook — have long histories of working on law enforcement civil rights cases in general, including several law enforcement civil rights class actions. They specialize in police misconduct cases and have handled hundreds of such cases.
C. The Effort Expended By Counsel.
Counsel litigated this case to the eve of trial. This entailed the following efforts by Class Counsel: 1) extensive investigation of the underlying circumstances, including obtaining questionnaires and interviews with many class members; 2) preparation of the complaint; 3) the Rule 26 conference and report; 4) 2 requests for production of documents; 5) extensive analysis of hard copy documents produced 6) 1 set of interrogatories, 7) 14 depositions, 8) a stipulated protective order, 9) a discovery motion, 10) extensive analysis of computerized jail data; 11) successful motions for class certification and partial summary judgment, 12) extensive mediation efforts (including multiple mediation sessions), 13) preparation of complex settlement documents, and 14) handling class administration issues and class inquiries from the Preliminary Approval to the Final Approval of the settlement. In summary, Class Counsel’s efforts were extensive, and involved all that occurs in a case that is litigated up to the eve of trial.
D. The Result Obtained For The Class
This case was hard fought. Only after plaintiffs obtained partial summary judgment on two of the key issues in the ease did defendants change their practices and open settlement discussions. The class members were paupers or low income persons, and unable to pay Class Counsel for their time. The settlement was the result of arm’s length negotiations entered only after plaintiffs obtained class certification and partial summary judgment. The settlement negotiations were conducted with the assistance of an independent mediator. Due exclusively to Class Counsel’s efforts, the class fund was created in the estimated amount of $25,500,000.
According to Class Counsel, this settlement represents the second largest total monetary settlement ever reached for strip searches in the United States. There are two other comparable cases in terms of size. One is Tyson v. City of New York, 97-CV-03762 (S.D.N.Y.), a case settled several years ago for an amount ranging from $19.5 Million to approximately $51 Million, depending on the extent of the claims made. That case, unlike this one, addressed only cases involving settled law, i.e., traditional pre-arraignment strip searches conducted without reasonable suspicion.
In this case, there were five groups ultimately settled, as discussed previously. One involved pre-arraignment strip searches of those transferred from other San Bernardino County jails; this class covered only a few thousand of the approximately 150,000 class members. Unlike the New York case, even the law on this issue was not settled because these were transferees, rather than direct arrestees, as was the case in New York. The other issues in this case involve considerably less settled law than in Tyson.
The second comparable case, also handled by the same counsel as here, is Williams v. Block, supra, Case No. CV 97-03826-CW (C.D.Cal.2001). That case involved a $27 Million settlement, covering two classes — a class of inmates overdetained after they became entitled to release, and a class of inmates strip searched after they became entitled to release. The parties estimated for settlement purposes that the two classes had approximately equal value, thus valuing the strip search class at approximately $13.5 Million. In addition, in the LA ease, the time period covered was longer, the LA County jail is larger, and the number of potential strip search class members was greater than here. See Declaration of Barrett S. Litt. Thus, by contrast, the settlement here was both more substantial and addressed several issues not involved in Williams.
Nor can the results in this case be judged solely by the monetary component of the settlement. Due to the litigation, the County has stopped all of the strip search practices addressed in this settlement. See Preliminary Approval Order, ¶ 14. That is a major accomplishment, independently of the monetary settlement. “Attorneys’ fees [in class action cases] may be awarded even though the benefit conferred is purely non-pecuniary in nature.”
Merola v. Atlantic Richfield Co.,
E. The Reaction Of The Class
Claim forms were mailed to 150,084 class members. There were 20,350 timely claim forms, and 781 late claims. There were 48 timely opt-outs, eight people who timely filed opt-out notices and claims, and up to 13 timely objections. The objections were addressed in the Order of Final Approval and Settlement; two are likely not objections at all, and none raised any substantive issues regarding the fairness of the settlement from a class perspective. This is a highly favorable reaction by the class to the settlement.
Compare, e.g., Hughes v. Microsoft Corp.,
F. Comparison With Counsel’s Lodestar.
A lodestar cross-check is not required in this circuit, and in some cases is not a useful reference point.
See, e.g., Glass v. UBS Financial Services, Inc.,
The Court has conducted a lodestar cross-check. Plaintiffs provided detailed documentation of their time. Plaintiffs established a lodestar of approximately $1.2 Million (including post-approval projected time). They submitted rates ranging from a high of $725 per hour for Mr. Litt (an attorney with 38 years experience) to a low of $275 for 2006 graduates, as well as law clerk rates of $200 per hour and paralegal rates from a low of $110 to a high of $225 per hour. In addition, they submitted documentation showing costs in the case amounted to $70,564.64, the largest compo
Plaintiffs’ counsel are experienced civil rights litigators who are at the top of their field of expertise — civil rights litigation with special expertise in civil rights class actions. Plaintiffs’ counsel’s hourly rates are addressed and supported by numerous declarations filed with this motion. These declarations establish that the hourly rates set are similar to those for attorneys of comparable skill and experience at the rates paid for complex federal litigation, which was Congress’ intent for civil rights cases.
See City of Riverside v. Rivera,
The Court further notes that plaintiffs’ counsel’s time in this case is likely as low as it is due to plaintiffs’ counsel exceptional experience in litigation of this type. Without such expertise, it is likely that the hours would have been significantly higher to achieve the same result. Other counsel, even those experienced in civil rights litigation, would likely have had to expend considerably more time to accomplish the same result.
The plaintiffs’ request in this case for 25% of the class fund would result in a fee of $6,375,000, which is a multiplier of approximately 5.2 times the $1.2 Million lodestar in this case. The Court has concluded that it will award Class Counsel 25% of the class fund, and addresses the reasons for doing so below.
III. THE COURT AWARDS CLASS COUNSEL 25% OF THE CLASS FUND.
Although, as noted previously, it is well settled in the Ninth Circuit that a court has discretion to award either a percentage of the class fund or a lodestar award in a class fund attorney’s fee, the “the primary basis of the fee award remains the percentage method,”
Vizcaino v. Microsoft Corp.,
Silber and Goodrich, supra, advocate that class fund fees should not diminish on a percentage basis, as some courts have done, because that undermines the full alignment between class counsel and the class. This is because, if the percentage of fees go down as the size of the fund goes up, a substantial increase in the size of the fund may be only marginally beneficial to the class counsel while it may be extremely beneficial to the class, with the result being that the economic interests of the class and counsel become mis-aligned. They reviewed two studies of fee awards in common fund cases. One study, done of four districts in 1996 by the Federal Judicial Center, found that most fee awards in common fund class actions were between 20% and 40% of the gross monetary settlement, with little variation between districts. The other study, done by National Economic Research Associates, an economics consulting firm, in 1994, found that attorneys’ fees in these class actions averaged approximately 32% of the recovery, regardless of the case size, and averaged 34.74% when the fees and expenses were added together. Id. at 545-546. Silber and Goodrich conclude with the observation that a 33% fee award is both reasonable, and in line with the general market for contingent fee work. Id. at 546-549.
Several courts have noted the limitations of the lodestar method in class cases.
See e.g., Vizcaino v. Microsoft Corp.,
In this case, plaintiffs are seeking a 25% of the fund award. This 25% reflects the Ninth Circuit’s benchmark in class fund cases.
E.g., Torrisi v. Tucson Elec. Power Co., 8 F.3d
1370, 1376 (9th Cir.1993);
Six Mexican Workers v. Arizona Citrus Growers,
A 25% of the fund award will result in a multiplier of approximately 5.2. While this is a high end multiplier, there is ample authority for such awards resulting in multipliers in this range or higher.
See, e.g., In re Merry-Go-Round Enterprises, Inc.,
In
Bynum v. District of Columbia,
This settlement compares favorably with that one in several respects. The per capita recovery by class members here (based on the total class size) is significantly larger than in Bynum, and the changes to jail administration here to conform to the new policies were funded completely separately from the class fund, unlike in Bynum where the changes were partly funded by the class fund.
This settlement also compares favorably with Williams v. Block, supra, settled for $27 Million total, including a statutory fee of $5.5 Million negotiated in connection with a related state court taxpayer’s suit for injunctive relief. The trial court awarded an additional 20% of the remaining class fund ($21.5 Million) in attorney’s fees, which meant that the total percentage of the $27 Million fund that went to fees was 35.47%, plus expenses, substantially more than what the Court has awarded here.
As in Williams, “Class counsel did an outstanding job and obtained exceptional results, ... substantial benefits were conferred on the class beyond the monetary recovery for the class, in the form of the significant policy changes in the operation of the County Jail, ... class counsel are among the leading civil rights litigators in the state, ... Barry Litt is considered one of the outstanding civil rights litigators in California, with special expertise in class actions, [and] the other attorneys involved in this litigation on behalf of the class are highly regarded, experienced and capable civil rights attorneys.... ”
The 25% figure requested here compares favorably with the general percentage of recovery awarded in cases around the country, where the percentage of the fund award is generally higher.
See
Silber and Goodrich,
supra; In re Rite Aid Corp. Securities Litigation,
In awarding percentages of the class fund, courts frequently take into account the size of the fund. Often, but not always, fees of less than 25% will be awarded in megafund cases (cases of $50 Million or more).
See Vizcaino v. Microsoft Corp.,
This case is neither a megafund case in which fees more commonly will be under the 25% benchmark, or an under $10 Million case in which they are often more than 25%. Thus, 25% of the fund is the appropriate percentage absent some strong reason to make an upward or downward departure. To the extent there are such factors, they would militate in favor of an upward departure. However, the lodestar cross-check indicates that there is no reason for an upward departure in this case.
IV. CONCLUSION.
The Court finds that Plaintiffs’ counsel obtained an excellent result in a complex and risky ease. The size of the fund is large but not in the mega-fund category. The damages class numbers approximately 150,000, over 20,000 claims were filed, and tens or hundreds of thousands of future inmates have benefited from the policy changes brought about by this suit. The wide spread pecuniary and non-pecuniary benefit created supports an attorneys’ fee award which provides counsel with an incentive for undertaking future complex and risky litigation. The Court recognizes the skill and experience brought to bear by class counsel throughout the approximately three years they spent litigating and settling this case, and the economy with which they were able to achieve a noteworthy settlement. Having also considered the time invested in this case by counsel, which resulted in a lodestar of approximately $1,200,000, and the awards in comparable cases, the Court finds that 25% percent of the Settlement Fund results in a fair and reasonable award of attorneys’ fees and costs in this action. The Court further finds that this award is justified by the high caliber of Plaintiffs’ counsels’ work in this case. Although the percentage of recovery represented by the fee in this ease represents a larger than average enhancement above lodestar, it represents an average of below average percentage of the fund award for comparable cases.
Class counsel are awarded an attorney’s fee $6,375,000 (25% of the class fund) as attorney’s fees, plus $70,564.64 in costs.
IT IS SO ORDERED.