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In re Nassau County Strip Search Cases

United States District Court, E.D. New York

April 2, 2014


As Amended April 7, 2014.

Page 486

[Copyrighted Material Omitted]

Page 487

For Plaintiffs: Robert L. Herbst, Esq., Herbst Law PLLC, New York, New York; Iliana Konidaris, Esq., Giskan Solotaroff Anderson & Stewart LLP, New York, New York; Jonathan C. Moore, Esq., Beldock Levine & Hoffman LLP, New York, New York; Matthew D. Brinckerhoff, Esq., Emery Celli Brinckerhoff & Abady LLP, New York, New York; Jeffrey G. Smith, Esq., Wolf Haldenstein Adler Freeman & Herz, LLP, New York, New York.

For Defendants: Liora M. Ben-Sorek, Esq., Nassau County Attorney's Office, Carnell T. Foskey, Acting County Attorney, Mineola, New York.


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HURLEY, Senior District Judge

Pending before the Court is plaintiffs' motion, made pursuant to Federal Rules of Civil Procedure 23(h) and 54(d)(2) for counsel fees in the amount of $5,754,000, plus costs and expenses of $182,030.25, for a total of $5,936,030.25. In addition, plaintiffs seek to recover service awards for those class members who were deposed during pretrial discovery and/or testified at trial.

Defendants oppose plaintiffs' applications, arguing (1) the fees sought are excessive, (2) counsels' time records are inadequate, (3) the proposed hourly rates are

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excessive, (4) service awards are unavailable under New York State law, and (5) that " because plaintiffs' federal claims were dismissed and the only remaining claims are pendent state law claims, the class definition and applicable class period must be redefined." (Defs.' Br. in Opp'n at i (the " TABLE OF CONTENTS )(original all in upper case).)


The plaintiffs' class consists of 17,000 individuals who were strip searched during the class period[1] upon their admission to the Nassau County Correctional Center (" NCCC" ) for misdemeanor or lesser offenses absent reasonable suspicion that they harbored contraband. Some of those individuals were arrested and admitted to the NCCC more than once so that the total of the subject strip searches exceeds the number of class members.

The case has been hotly contested for over thirteen years. The particularly salient portions of its extended history are accurately synopsized by plaintiffs thusly:

These consolidated lawsuits were brought by 10 named plaintiffs and class representatives who were all strip searched upon admission at the Nassau County Correctional Center [" NCCC" or " Jail" ] without reasonable suspicion and without even a reasonable suspicion inquiry. The actions were brought after the undersigned had obtained a decision from another judge of this Court that the blanket strip search policy at the NCCC was unconstitutional. See Shain v. Ellison, 53 F.Supp.2d 564 (E.D.N.Y. 1999). For years thereafter, defendants took the position that Shain was wrongly decided, and vigorously pressed their appeal through the Second Circuit, which several years later affirmed by a divided panel. Shain v. Ellison, 273 F.3d 56 (2d Cir. N.Y. 2001). Defendants' petition for certiorari was denied. Nassau County v. Shain, 537 U.S. 1083, 123 S.Ct. 672, 154 L.Ed.2d 582 (2002).
Meanwhile, plaintiffs here were seeking class certification in the District Court. Ultimately, there were three unsuccessful motions for class certification in the District Court, and two unsuccessful interlocutory appeals to the Second Circuit. After Shain was confirmed on appeal, defendants unequivocally conceded liability[2] to the class as [an arguable] stratagem to avoid class certification and succeeded in obtaining another denial of class certification. Finally, in July 2005, after settling the individual claims of the 10 named plaintiffs for a total of $350,000, plaintiffs had a final judgment appealable as of right. The Second Circuit reversed and ordered class certification on liability and reconsideration of class certification on damages. Augustin v. Jablonsky (In re Nassau County Strip Search Cases), 461 F.3d 219 (2d Cir. 2006).
With the class now certified as to liability, plaintiffs obtained summary judgment on liability in favor of the class and each of its members, again on consent of the defendants without caveat or conditions, reservations or qualifications. Plaintiffs then sought certification on damages. In response to the Court's

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concerns that a common damages issue was lacking, plaintiffs argued and ultimately persuaded the Court that an unconstitutional strip search necessarily entailed an injury to human dignity, and that this injury was common to the class with respect to both causation and some of the resulting damages sustained. Accordingly, in a March 27, 2008 decision, the Court certified the class for damages.

(Pls.' Mem. in Supp. at 5-6.)

After the March 27, 2008 decision, further efforts to settle the case were pursued, additional discovery was conducted, and various motions were made by parties concerning such issues as the rules and procedures to be employed during this apparently unprecedented general, as distinct from special, damages segment of the class action proceeding.

Returning to the history of the case as provided by plaintiffs:

On the eve of trial, the parties agreed to waive a jury, and the trial proceeded before the Court, over 11 trial days. [Proposed f]indings of fact and conclusions of law and post-trial briefing were all completed by April 2010. In a . . . decision on September 22, 2010, the Court issued findings of fact and conclusions of law and awarded class members $500 in human dignity damages for each unlawful strip search he or she sustained. In re Nassau County Strip Search Cases, 742 F.Supp.2d 304 (E.D.N.Y. 2010).
Extensive . . . briefing followed on how to handle the second damages phase of the case, and whether those damages could be handled and resolved on a class-wide basis. On October 19, 2011, the Court determined that it would subsequently enter a judgment decertifying the class for [special damages purposes], leaving it to each class member individually to pursue emotional distress and economic loss damages, by using the summary judgment on liability obtained for the class to commence their own lawsuits for such damages. Augustin v. Jablonsky, 819 F.Supp.2d 153, (E.D.N.Y. Oct. 19, 2011).

(Pls'. Mem. in Supp. at 7.)

Following plaintiffs' current post-trial application for counsel fees and other items of relief being filed, the Supreme Court issued its decision in Florence v. Bd. of Chosen Freeholders of Cnty. of Burlington, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012) which held that the strip searching of a detainee charged with a misdemeanor or lesser offense as part of the standard intake procedure at a correctional facility, even absent reasonable suspicion to believe that he or she harbors contraband, is not violative of the Fourth or Fourteenth Amendment.

Based on the holding and rationale in Florence, defendants moved to (1) vacate their earlier unconditional concession of liability and the resulting Court orders, and (2) dismiss the entire suit, i.e. both the federal and state constitutional claims.

By Memorandum and Order dated July 18, 2013, defendants' Florence-based application was granted to the extent that the portion of the January 16, 2007 Order granting summary judgment as to liability on plaintiffs' § 1983 claim was vacated and the underlying federal claim dismissed. However, their motion was denied as to the cause of action based on Article 1, § 12 of the New York State Constitution. The viability of that claim is not dictated by Florence contrary to the position urged by defendants. See In re Nassau Cnty. Strip Search Cases, 958 F.Supp.2d 339, 354 (E.D.N.Y. 2013).

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It may be that the New York Court of Appeals will at some point be asked by the Second Circuit via a Rule 27.2 certification request to answer questions about such matters as the effect of Florence, if any, upon the legality of the type of strip searches under discussion under Article I, Section 12 of the New York State Constitution. Of course, it is not a foregone conclusion that the position of the State's highest court will mirror that of their counterparts in Washington even though the language of the federal and state constitutional provisions are the same. See generally 31 Carmody-Wait 2d § 173:254 (" Although the language of the Fourth Amendment is identical to words found in the Bill of Rights of the New York State Constitution, judicial interpretation of these words by the United States Supreme Court and the New York Court of Appeals have begun to diverge significantly on important search and seizure issues." )(internal citations omitted). However, the possible need for certification does not warrant abandoning the supplemental jurisdiction exercised by this Court over these many years in view of the advanced stage of the proceeding. See Motorola Credit Corp. v. Uzan, 388 F.3d 39, 56 (2d Cir. 2004).

Given that I have retained jurisdiction, the award of $500 per strip search, inter alia, remains intact.


I. Applicable Legal Principles Concerning Legal Fees in Common Fund Class Actions

As explained by the Second Circuit in Goldberger v. Integrated Res., Inc.:

From time immemorial it has been the rule in this country that litigants are expected to pay their own expenses, including their own attorneys' fees, to prosecute or defend a lawsuit. There is a salient exception to this general rule that applies where an attorney succeeds in creating a common fund from which members of a class are compensated for a common injury inflicted on the class. In that situation, the attorneys whose efforts created the fund are entitled to a reasonable fee -- set by the court -- to be taken from the fund. The rationale for the doctrine is an equitable one: it prevents unjust enrichment of those benefitting from a lawsuit without contributing to its cost. Courts have used two distinct methods to determine what is a reasonable attorneys' fee.
The first is the lodestar, under which the district court scrutinizes the fee petition to ascertain the number of hours reasonably billed to the class and then multiplies that figure by an appropriate hourly rate. Once that initial computation has been made, the district court may, in its discretion, increase the lodestar by applying a multiplier based on " other less objective factors," such as the risk of the litigation and the performance of the attorneys. Id. (internal quotation marks omitted).
The second method is simpler. The court sets some percentage of the recovery as a fee. In determining what percentage to award, courts have looked to the same " less objective" factors that are used to determine the multiplier for the lodestar.

209 F.3d 43, 47 (2d Cir. 2000)(internal citations omitted).

Either approach may be utilized in calculating attorneys' fees, id. at 50,[3] although

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" [t]he trend in this Circuit is toward the percentage method" in that it avoids the " tempt[ation of] lawyers to run up their hours," lessens the need for " district courts to engage in a gimlet-eyed review of line-item fee audits," and " directly aligns the interests of the class and its counsel." Wal-Mart Stores, Inc. v. Visa U.S.A. Inc., 396 F.3d 96, 121 (2d Cir. 2005)(citation and quotation marks omitted).

" It bears emphasis [, however,] that whether calculated pursuant to the lodestar or the percentage method, the fees awarded in common fund cases may not exceed what is 'reasonable' under the circumstances." Goldberger, 209 F.3d at 47. As a guide to assist district courts in making that overriding determination, the Circuit has identified the following factors for consideration: " (1) the time and labor expended by counsel; (2) the magnitude and complexities of the litigation; (3) the risk of the litigation . . .; (4) the quality of representation; (5) the requested fee in relation to the [recovery achieved]; and (6) public policy considerations." Id. at 50 (citation and quotation marks omitted). Henceforth, these factors will be referred to collectively as the " Goldberger factors."

II. Calculation Method Requested by Plaintiffs and Utilized by Court

Plaintiffs request that counsel fees be awarded based on a percentage of the common fund created for the benefit of the class with a lodestar cross-check to assure reasonableness. An appropriate percentage, plaintiffs posit, would be " 50% of the . . . aggregate class damages award." (Pls.' Mem. in Supp. at 3.)

Defendants recognize that plaintiffs' proffered methodology is appropriate as a general matter. (Defs.' Br. in Opp'n at 2 (" On July 18, 2013, . . . this Court . . . dismissed the class Plaintiffs' Federal law claims. . . . By reason thereof, § 1988 is inapplicable and no attorneys' fees may be awarded to Class Counsel under the fee-shifting statute. What remains, then, is an analysis of attorneys' fees under either the 'presumptively reasonable fee' (i.e. modified lodestar) method, or the 'percentage of the fund' method." ).)

The Court will use plaintiffs' suggested method. Since that method implicates both the percentage approach, as well as the lodestar method, albeit only as a cross-check, both warrant further discussion.

III. Additional General Observations About Percentage Method With Lodestar Cross-Check Enhanced by Multiplier

A. Percentage Based on Total Amount Recovered

The percentage method, as already defined, is largely self-explanatory. However, it is important to note that the percentage is applied to the total amount recovered on behalf of the class (i.e. the " common fund" ), not to the lesser sum that in all probability will be claimed by members of the class from that fund. Boeing Co. v. Van Gemert, 444 U.S. 472, 478, 100 S.Ct. 745, 62 L.Ed.2d 676 (1980)(" [T]his Court has recognized consistently that a litigant or a lawyer who recovers a common fund for ...

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