own health, safety, or welfare. (Settlement Agreement, para. 5, p.8).
If the population of any facility still exceeds its maximum allowable population twenty-one (21) days from the date on which the maximum allowable population has been exceeded for more than seven (7) consecutive days or for more than twenty (20) out of forty (40) days, a bar on admission of prisoners to such facility or facilities will go into effect. The bar on additional inmates will continue until the number of inmates housed is within the maximum allowable population and new admissions will not cause the maximum allowable population to be exceeded, except that persons charged with, or convicted of, murder, forcible rape, or a crime involving the use of a knife or firearm during the commission of an aggravated assault or robbery, may always be admitted notwithstanding this bar. (Settlement Agreement, para. 6, pp. 8-9).
The City of Philadelphia agrees to pay Twenty Thousand Dollars ($ 20,000) in damages to the named plaintiffs, to be distributed as determined by counsel for plaintiffs with the approval of the court. (The consent orders entered to date have not yet implemented the provisions concerning damages or fees.) The City defendants also agree to pay plaintiffs' costs and attorneys' fees in the amount of Ninety Thousand Dollars ($ 90,000). Plaintiffs will bear their own costs in monitoring the implementation of the agreement. However, if additional proceedings are required to implement or enforce the terms of the consent order and plaintiffs obtain substantial relief from those proceedings, the City defendants will bear plaintiffs' costs and reasonable attorneys' fees. The City defendants and plaintiffs agree to propose an order in the Jackson v. Hendrick litigation that complements the settlement agreement approved by this court. This agreement is not an admission by the City defendants of any fault or liability or of the existence of any unconstitutional conditions in the Philadelphia prison system.
The court retains jurisdiction over the parties and cause of action for five (5) years. After five (5) years, unless the parties reach agreement on the issue of continued jurisdiction or plaintiffs demonstrate at a hearing that continued jurisdiction is necessary to maintain the maximum allowable populations, this court will discontinue jurisdiction. All claims against the City defendants are dismissed with prejudice; all claims against defendants Marks and Jeffes are dismissed without prejudice; the plaintiff class has also agreed to the dismissal of defendant Waldman without prejudice but he objects. Defendants Marks, Jeffes and Waldman are not parties to the settlement agreement.
Because this litigation received so much publicity in the months immediately preceding the settlement hearing, the court determined that due process did not require any additional notice to the class before the equitable relief was approved. While some form of post-settlement notice is mandatory under Fed.R.Civ.P. 23(e) before approval of a class action settlement, see Walsh v. Great Atlantic and Pacific Tea Company, Inc., 726 F.2d 956, 962 (3d Cir. 1983), the trial court has broad discretion to determine the timing and manner of notice, see, e.g., Quigley v. Braniff Airways, Inc., 85 F.R.D. 74, 77 (N.D. Tex. 1979); Fed.R.Civ.P. 23(e); C. Wright, A. Miller and M. Kane, Federal Practice and Procedure § 1797 (2d ed. 1986). The court determined that in order to approve the order providing class-based relief, a non-traditional form of notice was appropriate. Because of the nature of the class and the actual class-based relief sought and obtained, the court considered it unfeasible and unnecessary to send personal notice to City prisoners from 1980 to date, impossible and unnecessary to identify or notify future prisoners and unlikely that notices posted in the Philadelphia prisons would reach class members not reached by the prison class representatives as well as the extensive media publicity. The court considers the notice given by the extensive publicity in the news media the best notice of the class-based relief in the circumstances. See Johnson v. Robinson, 296 F. Supp. 1165 (N.D. Ill. 1967), aff'd, 394 U.S. 847, 23 L. Ed. 2d 30, 89 S. Ct. 1622 (1969); cf. Greenfield v. Villager Industries, Inc., 483 F.2d 824, 833-34 (3d Cir. 1973).
In determining what manner of notice to provide, district courts have traditionally considered inter alia the cost of giving notice, the difficulty of identifying class members, the timing of the notice and the likelihood of notice reaching potential class members. See, e.g., Greenfield, 483 F.2d 824 (timing and effectiveness); Tate v. Werner, 68 F.R.D. 513 (E.D. Pa. 1975) (cost, size, identification, timing); see also In re Beef Industry Antitrust Litigation, 607 F.2d 167 (5th Cir.), cert. denied, 452 U.S. 905, 101 S. Ct. 3029, 69 L. Ed. 2d 405 (1981). Individual notice has not traditionally been accorded in prisoner civil rights actions. See, e.g., Costello v. Wainwright, 489 F. Supp. 1100, 1101 (M.D. Fla. 1980); Tate, 68 F.R.D. at 520-21.
Because of the size of the class, as well as its nature, the cost of identifying its members and giving them individual notice would have been prohibitive.
Unlike many other prisoner class actions, a relatively small percentage of the instant class is currently incarcerated in the Philadelphia prison system. Some members are incarcerated in state and federal facilities around the country; others are no longer incarcerated but may not have returned to their former addresses. The class also includes persons not yet incarcerated but who will be incarcerated in the prisons while the court retains jurisdiction; such persons are impossible to identify with accuracy at present. The settlement terms were sufficiently described in newspaper articles and radio reports to allow any member of the class to state objections either to the court or to plaintiffs' counsel.
Even if greater notice had been provided, persons currently incarcerated would not have been able to attend the hearing. Only written objections or objections conveyed through plaintiffs' counsel, see, e.g., Costello, 489 F. Supp. at 1101, would have been considered.
Because of the nature of the order entered, due process did not demand greater notice. If a consent decree embodies a plan and terms for effectuating it, notice may not be required as a prerequisite to the entry of the decree. See Cunningham v. English, 106 U.S. App. D.C. 92, 269 F.2d 539, 541 (D.C. Cir.), cert. denied, 361 U.S. 897, 4 L. Ed. 2d 152 (1959), as amended by, 361 U.S. 905, 80 S. Ct. 195, 4 L. Ed. 2d 181 (1959): 3B Moore's Federal Practice para. 23.80. Notice was not required of the dismissal without prejudice of defendants Marks and Jeffes because there was no possible prejudice to the rights of any class member against them.
The award of money damages to named class representatives was reserved and, pursuant to the court's Order of January 6, 1987, personal notice was provided to the named class representatives and a Notice to the Class, approved by the court, was published in the Philadelphia Inquirer and the Philadelphia Daily News on Saturday, January 10, 1987 and Monday, January 12, 1987. In addition, the notice to the class with settlement order attached was posted on every cell block bulletin board and in the law libraries of all Philadelphia prisons from January 12, 1987 until at least January 26, 1987. (See Affidavit of Notice to the Class, January 26, 1987). The court finds the notice provided adequate.
II. Approval of Settlement
Federal Rule of Civil Procedure Rule 23(e) requires court approval of a class action settlement:
A class action shall not be dismissed or compromised without the approval of the Court, and notice of the proposed dismissal or compromise shall be given to all members of the class . . . .
Fed.R.Civ.P. 23(e). Approval of a proposed class action settlement is discretionary with the court. Girsh v. Jepson, 521 F.2d 153, 156 (3d Cir. 1975); Ace Heating & Plumbing Company v. Crane Company, 453 F.2d 30, 34 (3d Cir. 1971). Settlement is a course favored by law, Weight Watchers of Philadelphia, Inc. v. Weight Watchers International, Inc., 455 F.2d 770, 773 (2d Cir. 1972); cf. Bank of America National Trust and Savings Association v. Hotel Rittenhouse Associates, 800 F.2d 339, 345 (3d Cir. 1986), but a settlement will be approved only if it is "fair, adequate, and reasonable" to the members of the class, Walsh, 726 F.2d at 965. The settlement must be both substantively reasonable compared to the likely rewards of litigation, Shlensky v. Dorsey, 574 F.2d 131, 147 (3d Cir. 1978), and the result of good faith, arms length negotiations, Weinberger v. Kendrick, 698 F.2d 61, 74 (2d Cir. 1982), cert. denied, 464 U.S. 818, 78 L. Ed. 2d 89, 104 S. Ct. 77 (1983).
Specified factors must be considered prior to decision upon the fair, reasonable, and adequate nature of a proposed class action settlement. See Malchman v. Davis, 706 F.2d 426, 433-34 (2d Cir. 1983) (nine factors); Reed v. General Motors Corp., 703 F.2d 170, 172 (5th Cir. 1983) (six factors); Officers for Justice v. Civil Service Commission, 688 F.2d 615, 625 (9th Cir. 1982), cert. denied, 459 U.S. 1217, 103 S. Ct. 1219, 75 L. Ed. 2d 456 (1983) (eight factors). In Girsh v. Jepson, 521 F.2d 153 (3d Cir. 1975), the Third Circuit Court of Appeals approved the relevancy of the following nine factors in determining the fairness of a settlement:
. . . (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. . . .