by Matt Clarke
On November 29, 2021, the federal court for the Southern District of New York approved the final settlement of a class-action civil rights lawsuit over suspicionless and invasive “strip/body cavity” searches of visitors at New York City Department of Correction (DOC) jails. [See: PLN, Aug. 2018, p.54.]
Under the agreement, a total of 12,500 approved claimants will each receive $1,000. In addition, incentive awards were provided for the named plaintiffs, Dana Grottano, who received $30,000, as well as N.D. and D.M., who received $20,000 each.
The lawsuit was filed in 2015 pursuant to 42 U.S.C. § 1983, blaming the unconstitutionally unreasonable searches on the City of New York and DOC, its then-Commissioner Joseph Ponte, and DOC guards Yolanda Capers and Tomasena Graham, along with 25 other unnamed guards.
Plaintiffs were represented by attorneys Bruce Menken and Scott Simpson of Menken Simpson & Roger; Raymond Audain of the NAACP Legal Defense & Educational Fund; and Oren Giskan of Giskan Solotaroff & Anderson.
Early on, the Court urged the parties to settle the case and hurried Defendants to end the blatantly unconstitutional practice. On June 20, 2019, the parties signed their settlement agreement which included both a $12.5 million settlement fund and an injunction against the improper searches.
But at a hearing on October 30, 2019, the Court expressed frustration that the improper searches were continuing, with Judge Richard M. Berman telling the City’s counsel, “I am not quite understanding why people are still being subjected to what has been determined to be an improper search of a visitor.”
Defendants agreed to speed up the rollout of training on new policies. In addition to the payments and an injunction of the invasive searches, the settlement also requires DOC to train its staff and advertise to the public warnings about its continuing “pat/frisk” search procedure, from which visitors may opt out with a non-contact visit.
The Court also approved DOC’s plan to send notices advising “hundreds of thousands” of potential class members of the settlement in “the largest direct mailing and advertising campaign in Law Department class action history.”
Unfortunately, the initial notices did not require claimants to give a narrative description of their searches. When 45,792 people made claims, it was a number far greater than expected—so many that the class fund would have paid only $273 per claimant, far less than the negotiated amount of $4,166.67 for each of an estimated 3,000 claimants.
Harvard Law Professor William R. Rubenstein, an expert mediator who had spent about 800 pro bono hours helping craft the settlement, then helped draft a Supplemental Claims Notice that was sent to those 45,792 claimants, requiring each to provide a narrative of their search. This yielded about 12,500 approved claimants, each of whom was guaranteed to receive a minimum of $1,000. Eight other claimants opted out of the settlement. None objected.
The Court found the settlement met the requirements for procedural and substantive fairness, and the class, which had previously received preliminary certification, met the requirements of Federal Rule of Civil Procedure 23(b). So the Court gave final approval to the class certification and class settlement as well as the incentive awards for named plaintiffs. See: Grottano v. City of New York, 2021 U.S. Dist. LEXIS 227995 (S.D.N.Y.).
Still pending before the Court is a motion for attorney’s fees for class counsel, which Defendants opposed, suggesting a total of $1,830,941, or about $429,629 less than Plaintiffs’ request. PLN will report the outcome of those negotiations when they are complete. See: Grottano v. City of New York, USDC (S.D.N.Y.), Case No. 1:15-cv-09242.
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Related legal case
Grottano v. City of New York
|Cite||USDC (S.D.N.Y.), Case No. 1:15-cv-09242|