Law Project, Robert Meek, Disabilities Law Project, and Scott Burris, Professor of Law, Temple Law School--expended approximately 7,850 attorney hours and 3,020 paralegal hours on this litigation. The breakdown of time and expenses is as follows:
National Prison Project 2,900 hours
American Civil Liberties Foundation (PA) 1,650 hours
David Rudovsky 1,420 hours
Institutional Law Project 1,050 hours
Disabilities Law Project 450 hours
Scott Burris 380 hours
TOTAL ATTORNEY HOURS 7,850 hours
American Civil Liberties Foundation (PA) 1,620 hours
National Prison Project 650 hours
Institutional Law Project 750 hours
TOTAL PARALEGAL HOURS 3,020 hours
The times allocated above were spent in connection with drafting pleadings, motions and memoranda of law, discovery, expert tours of facilities, correspondence, trial preparation and trial. Approximately 500 attorney hours were spent in court (TB injunction hearing and trial on corrections issues). The Court concludes that the above listed hours were reasonably expended on the litigation.
Current billing rates for the attorneys range from $ 200 per hour for Attorneys Burris, Meek, Fathi and Love, to $ 275 per hour for Attorney Presser, to $ 300 per hour for Attorneys Rudovsky and Alexander, to $ 350 per hour for Attorney Bronstein. Paralegal billing rates are $ 75 per hour. The Court finds that these rates correspond to prevailing market rates in the Philadelphia area and are reasonable.
See Blum v. Stenson, 465 U.S. 886, 79 L. Ed. 2d 891, 104 S. Ct. 1541 (1984) (stating that "reasonable fees" in federal civil rights action are to be calculated according to prevailing market rates in relevant community, regardless of whether plaintiff is represented by private or nonprofit counsel).
Multiplying these current billing rates by the hours expended by each attorney, the attorneys' lodestar is $ 2,145,750 and the paralegals' lodestar is $ 226,500. In addition, plaintiffs' counsel incurred out of pocket costs (not including copying, telephone and other office expenses) of $ 432,000 in payments to expert witnesses and $ 20,000 for travel and related costs.
Together, counsel fees and costs total $ 2,824,250. The fact that plaintiffs prevailed through settlement does not extinguish or limit their claim for attorneys' fees because "'nothing in the language of § 1988 conditions the District Court's power to award fees on full litigation of the issues or on a judicial determination that the plaintiff[s'] rights have been violated.'" Ashley, 794 F.2d at 132 (quoting Maher v. Gagne, 448 U.S. 122, 131, 65 L. Ed. 2d 653, 100 S. Ct. 2570 (1980)). Under the circumstances of the case, applying all of the foregoing rules of law, the Court concludes that the $ 1.4 million attorneys' fee agreed upon by the parties, approximately 50% of the total lodestar amount, is extremely reasonable.
3. Stage of the Proceedings
At the time the parties began settlement discussions, discovery had been completed and the Court had conducted almost five weeks of trial on the first of four phases of the case. The parties estimated, and the Court concluded, that completion of the trial of the remaining phases of the case would take 16 to 22 weeks. The fact that discovery had been completed does not necessarily weigh against approving the Settlement Agreement. Although savings are greatest in cases where settlement is reached with little or no costly discovery, it appears to the Court that it was the discovery and the willingness of plaintiffs' counsel to proceed to trial that made settlement possible in this case. Looking forward, it is clear that substantial savings will be attained by settlement because, even without factoring in the effect of a possible appeal, more than four months of trial time will be avoided by a settlement. In light of the savings to the Court and to the parties in avoiding over four months of trial, the Court concludes that the stage of the proceedings favors approval of the Settlement Agreement.
4. Risks of Establishing Liability
Although the Court must weigh the relative strengths and weaknesses of each side to determine the risks of establishing liability, it should "not decide the merits of the case or resolve unsettled legal questions." Carson v. American Brands, Inc., 450 U.S. 79, 88 n.14, 67 L. Ed. 2d 59, 101 S. Ct. 993 (1981). As the Third Circuit has stated:
[A district court] need only evaluate the probable outcome of the litigation and is not required to weigh and decide each contention; further, the probable result at trial must be balanced against the probable costs, in both time and money, of continued litigation.
Bryan, 494 F.2d at 801.
At the time this action was filed, the governing standard announced by the Supreme Court for establishing an Eighth Amendment violation based on conditions of confinement was whether the conditions, alone or in combination, constitute "unnecessary and wanton infliction of pain" and offend "the evolving standards of decency that mark the progress of a maturing society." Rhodes v. Chapman, 452 U.S. 337, 346, 69 L. Ed. 2d 59, 101 S. Ct. 2392 (1981). Less than one year after this suit was instituted, however, the Supreme Court altered the applicable standard by noting that the Rhodes formulation only applied to the objective component of the Eighth Amendment. See Wilson v. Seiter, 501 U.S. 294, 115 L. Ed. 2d 271, 111 S. Ct. 2321 (1991). The Supreme Court held that, in addition to the Rhodes showing, an inmate challenging conditions of confinement must show that the responsible officials acted with "deliberate indifference." See id.
This change in the law undoubtedly made plaintiffs' case substantially more difficult to prove. During the pendency of this case, the DOC was able to design, construct, and staff no fewer than seven institutions, with two more institutions in the planning stage. Furthermore, after institution of suit, the DOC adopted and implemented a TB policy which was described by plaintiffs' expert as an "excellent document." These affirmative efforts by the DOC certainly would have been strong evidence to rebut plaintiffs' charges of deliberate indifference.
In addition, during the pendency of this suit, Congress passed the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796 (1994). One of the provisions of this Act states that "[a] Federal court shall not hold prison on jail crowding unconstitutional under the eighth amendment except to the extent that an individual plaintiff inmate proves that the crowding causes the infliction of cruel and unusual punishment of that inmate." 18 U.S.C. § 3626(a)(1). Relief in a case which meets this standard is limited to removal of the conditions that are causing the cruel and unusual punishment of the plaintiff inmate. See 18 U.S.C. § 3626(a)(2). Although these provisions are not beyond constitutional challenge, this intervening change in the law creates additional problems for plaintiffs in establishing liability.
The Court concludes that, overall, plaintiffs faced formidable hurdles in establishing liability. Accordingly, this factor weighs in favor of approving the Settlement Agreement.
5. Defendants' Ability to Endure Greater Judgment
Because this case sought only declaratory and injunctive relief, the defendants' ability to withstand a greater judgment is at issue only with respect to the cost of complying with the settlement. Thus, the Court must consider whether defendants could have agreed to provide additional concessions in any of the substantive areas of the Settlement Agreement.
The Court concludes that parties were able to reach agreement only after extensive arm's-length negotiations on each of the terms of the Settlement Agreement. The Settlement Agreement confers substantial benefits on the plaintiff class and reflects a substantial commitment by the DOC. On the present state of the record, the Court cannot, and need not, determine whether the DOC could have funded additional benefits. This factor, therefore, favors approval of the Settlement Agreement.
6. Range of Reasonableness of the Settlement Fund
In order to evaluate the fairness of a Settlement Agreement based on the range of reasonableness of the settlement fund, a court must compare the settlement fund offered by defendants to the possible range of judgments. Because this action sought only declaratory and injunctive relief, such an evaluation is impossible. This factor, therefore, is inapposite to the Court's decision whether to approve the settlement.
7. Recommendation of Class Counsel
In determining the fairness of a proposed settlement, the Court should attribute significant weight to the belief of experienced counsel that settlement is in the best interests of the class. See Fisher Bros. v. Phelps Dodge Industries, Inc., 604 F. Supp. 446, 452 (E.D. Pa. 1985). As one court has observed:
Notwithstanding the court's substantial involvement in the suit over the last five years, the parties' counsel are best able to weigh the relative strengths and weaknesses of their arguments. The court is not inclined to substitute its educated estimates of the complexity, expense, and likely duration of this litigation without a sound basis for concluding that the settlement is inadequate.
In re Chicken Antitrust Litig., 560 F. Supp. 943, 962 (N.D. Ga. 1979).
The particular weight attributed to the recommendation of counsel depends on several factors--length of involvement in the case, competence, experience in the particular type of litigation, and amount of discovery completed. See Newberg § 11.47. Usually, however, an evaluation of all the criteria leads courts to conclude that the recommendation of counsel is entitled to great weight following "arm's-length negotiations" by counsel who have "the experience and ability . . . necessary [for] effective representation of the class's interests." Weinberger v. Kendrick, 698 F.2d 61, 74 (2d Cir. 1982); see also Manual for Complex Litigation, Second § 30.41 ("[A] presumption of correctness is said to attach to a class settlement reached in arms-length negotiations between experienced capable counsel after meaningful discovery.").
The Court finds that plaintiffs' counsel are highly experienced litigators in prisoner rights actions. Indeed, it would be hard to imagine a team of plaintiffs' attorneys with more impressive credentials.
Alvin Bronstein has been a lawyer for 43 years and has been the Executive Director of the National Prison Project of the American Civil Liberties Union Foundation since 1972. He has written extensively on the subject of prison litigation and has been involved in many major prisoners' rights cases at the trial and appellate level during the past 23 years. Among the many cases in which he has appeared are: Hudson v. McMillian, 503 U.S. 1, 117 L. Ed. 2d 156, 112 S. Ct. 995 (1992); Block v. Rutherford, 468 U.S. 576, 82 L. Ed. 2d 438, 104 S. Ct. 3227 (1984); Montanye v. Haymes, 427 U.S. 236, 49 L. Ed. 2d 466, 96 S. Ct. 2543 (1976). He is considered a leading national and international expert in prison litigation. See, e.g., Plyler v. Evatt, 902 F.2d 273, 278 (4th Cir. 1990).
David Rudovsky has been the plaintiffs' counsel for over 25 years in Jackson v. Hendrick, a class action challenging conditions in the Philadelphia County Prisons, and one of the first comprehensive conditions of confinement prison lawsuits. His has also litigated numerous individual § 1983 cases for inmates and has lectured on prisoners' rights. Together with Mr. Bronstein, he is co-author of The Rights of Prisoners and is the author of a leading treatise on civil rights litigation, Police Misconduct: Law and Litigation (1993).
Elizabeth Alexander graduated from law school in 1971. She is Associate Director for Litigation of the National Prison Project of the American Civil Liberties Union Foundation. She briefed and argued Farmer v. Brennan, 128 L. Ed. 2d 811, 114 S. Ct. 1970 (1994) and Wilson v. Seiter, 501 U.S. 294, 115 L. Ed. 2d 271, 111 S. Ct. 2321 (1991). Some of her significant prison cases include Casey v. Lewis, No. 93-17169, 43 F.3d 1261, 1994 U.S. App. LEXIS 37082 (9th Cir. Dec. 27, 1994); Knop v. Johnson, 977 F.2d 996 (6th Cir. 1992); and Duran v. Carruthers, 885 F.2d 1485 (10th Cir. 1989). Ms. Alexander was responsible for the medical claims in this case.
Stefan Presser is the Legal Director of the American Civil Liberties Foundation of Pennsylvania. He has litigated the following cases involving prisoners rights and/or institutional reform: Medina v. O'Neill, 589 F. Supp. 1028 (S.D. Tex. 1984) (forcing the closing of the nations's first for-profit prison), Quinlin v. Estella, Civil Action No. H-78-2117 (S.D.Tex. 1978) (securing equal protection for women incarcerated within the Texas Department of Corrections with regard to educational and vocational opportunities), Peterkin v. Jeffes, 855 F.2d 1021 (3d Cir. 1988) (improving conditions of confinement for Pennsylvania death sentenced inmates), and Arbogast v. Owens, Civil Action No. 1-CV-89-1592 (M.D. Pa. 1989) (requiring the Pennsylvania Department of Corrections to unshackle two thousand prisoners in the aftermath of the Camp Hill riot).
Angus Love is the Director of the Pennsylvania Institutional Law Project, a statewide organization that litigates prisoner rights suits. He has litigated numerous prisoner rights cases including Hassine v. Jeffes, 846 F.2d 169 (3d Cir. 1988).
Robert Meek is the managing attorney of the Philadelphia Office of the Disabilities Law Project and an expert in the area of mental health and mental disabilities. He has litigated several cases on the rights of patients at state mental hospitals and has presented several lectures on the rights of mental patients.
Scott Burris is an Associate Professor of Law at Temple University Law School. Previously, he was staff counsel to the American Civil Liberties Union Aids and Civil Liberties Project. He has litigated numerous AIDS related lawsuits including Scoles v. Mercy Health Corp. (rights of HIV-infected surgeon) and Starkey v. Matty (rights of HIV-infected inmates at Delaware County Prison). He is the author of AIDS Law Today: A New Guide for the Public (1993) and Prisons, Law and Public Health: The Case for a Coordinated Response to Epidemic Disease Behind Bars, 47 U. Miami L. Rev. 291 (1992).
David Fathi graduated from law school in 1988. He was a staff lawyer at the National Prison Project of the American Civil Liberties Union Foundation during this litigation. He has assisted on the briefing in a number of Supreme Court cases, including Hudson v. McMillian, 503 U.S. 1, 117 L. Ed. 2d 156, 112 S. Ct. 995 (1992) and Wilson v. Seiter, 501 U.S. 294, 115 L. Ed. 2d 271, 111 S. Ct. 2321 (1991). He was trial counsel in Casey v. Lewis, 773 F. Supp. 1365 (D. Ariz. 1991).
The Settlement Agreement in this case was the result of arm's-length negotiations by highly experienced and able counsel. In light of the extensive negotiations between highly competent and qualified counsel, the Court finds that counsel's recommendation that the Settlement Agreement should be approved is entitled to great weight.
The case was instituted more than four years ago with the goal of addressing conditions at state correctional institutions throughout the Commonwealth of Pennsylvania. After extensive discovery and numerous proceedings in this Court, the parties began settlement negotiations which led to a settlement.
The Settlement Agreement provides substantial benefits to the plaintiff class, some of which have already been received. Because the dismissal under the Agreement is without prejudice, plaintiffs are able to reap the many benefits that will accrue as a result of the settlement and reinstitute suit at any time if they believe constitutional violations remain. On the whole, the Court concludes that the Settlement Agreement is "fair, reasonable and adequate."
The Court takes this opportunity to commend all counsel involved in the case--plaintiffs' counsel, Alvin J. Bronstein, Esquire, Elizabeth R. Alexander, Esquire, and David Fathi, Esquire, American Civil Liberties Union Foundation, The National Prison Project; David Rudovsky, Esquire; Stefan Presser, Esquire, American Civil Liberties Foundation of Pennsylvania; Scott Burris, Esquire, Angus R. Love, Esquire, Institutional Law Project; Robert W. Meek, Esquire, Disabilities Law Project; and defense counsel, Francis R. Filipi and Linda C. Barrett, Senior Deputy Attorneys General; and, R. Douglas Sherman, Denise A. Kuhn and Pia D. Taggart, Deputy Attorneys General--for their singular and outstanding cooperation, dedication and wisdom in overcoming the obstacles to settlement. It is particularly noteworthy that the entire case was settled (with the exception of two matters which were reserved for possible future litigation) without the need for judicial findings on the issues of liability and remedy or a consent decree which, under most circumstances, would have involved the Court in the micromanagement of the state correctional system. That course is certainly preferable to the direct involvement of a federal court in a state executive-branch function. Such a settlement, particularly in a case as complex as this one, represents an outstanding accomplishment by counsel and is of manifest importance to all citizens of the Commonwealth of Pennsylvania.
For all of the foregoing reasons, the Court, pursuant to Federal Rule of Civil Procedure 23(e), approves the Settlement Agreement and finds that adequate notice has been provided to all class members.