United States District Court, E.D. Arkansas, Eastern Division
DONTEL THOMAS and DALTON JACKSON, on behalf of Themselves and all Others Similarly Situated PLAINTIFFS
NEAL BYRD, in his Official Capacity; JOHN THOMAS, individually and in his official capacity as an employee of City of Helena-West Helena; and SENTENCING OPTIONS SPECIALISTS, INC DEFENDANTS
Marshall Jr. United States District Judge
The Court adopts Magistrate Judge Volpe's recommendation.
The Court resolves the claims objections and late claim as
• Darren Buckner's claim is excluded as untimely. It
was received several months late, and it involved events in
2005, which are outside the scope of this lawsuit.
• Staten and Winfield are added to the class. They both
filed timely written objections saying that they were denied
a first appearance during the class period. The existing
records, which are incomplete and imperfect, don't
disprove their claims.
• Brown, Jackson, and Webster are added to the class.
The Court equitably tolls the objection deadline for them
because they showed up at the claims-exclusion hearing and
objected in person. Webster and Jackson said they were denied
first appearances. Here again, the patchy records don't
disprove these claims. And in Brown's case, the documents
prove he qualifies for the class.
• Harvey is added to the class based on extraordinary
circumstances. He qualifies as a class member, but missed
notice because he had moved; he contacted class counsel on
the last day of the claim period, but had no way to file a
claim by fax or email that day. He took all the right steps
as soon as he reasonably could. And he appeared at the claims
exclusion hearing. In these extraordinary circumstances, the
Court modifies its prior Order, Ns 61 at 2 & 6,
reopens the claims period for Harvey, and includes him in the
settlement class. This step will slightly reduce other class
members' pro rata share, but it's fair in
the compelling circumstances presented.
Court grants, as modified, the joint motion to approve the
settlement agreement, No. 79. With an exception
previously noted, the proposed settlement agreement, No.
52-1, is approved as fair, reasonable, and adequate.
In re Flight Transportation Corp. Securities
Litigation, 730 F.2d 1128, 1135 (8th Cir. 1984). The
settlement fund pays several thousand dollars in compensatory
damages to each approved class member, class counsel's
litigation fees and expenses, and the class
representative's service awards. Only one class member
opted out, and he did so to pursue a similar claim and an
unrelated claim in a lawsuit on his own. All material
circumstances considered, the settlement fund appropriately
covers these amounts. The side agreement, No. 79-2,
is likewise approved. (There is one agreement, not two.
Compare No. 61 at 3.) The side agreement is not self
dealing, it's a fair resolution of the related-litigation
issues unique to Dontel Thomas, Dalton Jackson, Alexander J.
(A.J.) Culler and Lakevis King. (The final claims chart,
Ns 79-1, needs to be updated to show that Culler and
King are in the class.)
exception. The Court remains concerned about the proposed
cypres distribution of any unclaimed funds. No.
52-1 at 14; 61 at ¶ 7. Any remaining funds must be
distributed equally among all class members - as long as
it's cost effective to do so. In re Bankamerica Corp.
Securities Litigation, 775 F.3d 1060, 1064 (8th Cir.
2015). If distribution to class members is impractical, then
the Court must address the fit between the International
Trust for the Humanities and this case. No cy pres
distribution may be made until this is done. Ibid.
Court grants the requested injunctive relief against the City
of Helena-West Helena and Phillips County. No. 52-1 at
11. The Court enjoins the City, the County, and all
their officials, agents, officers, employees, as follows:
The City and County shall comply with the law in providing
timely Arkansas Rule of Criminal Procedure 8 hearings. The
City and the County must comply with the law in conducting
the proper iNo. uiry into individuals' ability to pay and
in appointing adequate representation where appropriate
before jailing individuals for failure to pay monies owed to
the city or the county. The City and County shall not
continue to incarcerate any individual who has not received a
timely post-arrest hearing.
The City and County shall not take by action to collect any
unpaid fines or costs due from Thomas v. Byrd
settlement class members as a result of the underlying
addition to getting a member's share of the settlement
fund, Jackson and Thomas are entitled to a reasonable service
fee for acting as class representatives. Being the public
face for the case cost them time and was a burden in other
ways, as documented in Jackson's hearing testimony and
Thomas's post-hearing affidavit. All material things
considered, though, the amounts requested for their services
are too much. The Court awards Jackson $15, 000 and Thomas
Class counsel deserves to be paid for much good work. The
billing records are somewhat jumbled, but they're good
enough in the circumstances. Class counsel seeks a $75, 000
fee, which is more than one-third of the total common fund.
It's also the maximum that counsel said, at the fairness
hearing, he would seek. Considering the size of the fund, the
class, and the work counsel already did (and was paid for) in
the Covington case on this same issue, $75, 000 is a
little too much. The sometimes-favored "percentage of
the fund" method doesn't fit this case well.
Compare Petrovic v. Amoco Oil Company, 200 F.3d
1140, 1157 (8th Cir. 1999), with Johnston v.
Comerica Mortgage Corporation, 83 F.3d 241,
244-47 (8th Cir. 1996). The lodestar method best captures the
reasonable compensation, in light of all the circumstances,
for class counsel's time and effort. 42 U.S.C. §
1988(b); Blanchard v. Bergeron, 489 U.S. 87, 93
counsel's requested hourly rates are too high. The Court
recently approved certain rates for the same kind of work in
Covington, and will use them here: Luther
Sutter-$300; Lucien Gillham - $250; and Tona Demers - $225.
Using these rates, the time actually spent would produce an
even higher fee than counsel has requested. But the Court
reduces the amount of time awarded - without addressing
specific problems in the billing - because of the groundwork
laid in Covington. Hensley v. Eckerhart, 461 U.S.
424, 433-34 (1983); United Healthcare Corporation v.
American Trade Insurance Company LTD,88 F.3d 563, 574
n.9 (8th Cir. 1996). It was reasonable for Luther Sutter to
spend 150 hours working on the case, for Tona Demers to spend
25 hours, and for Lucien Gillham to spend 25 hours. The ...