On August 10, 2005, a federal court in New Jersey approved a settlement in Brown v. Esmor
Correctional Services Inc., USDC No. 98-1282 (DNJ). Esmor Correctional Services Inc. (Esmor) later known as Correctional Services Corporation (CSC), agreed to pay the plaintiff-alien class $2.5 million for abuses suffered while detained in an Elizabeth, New Jersey facility Esmor ran for the Immigration and Naturalization Service (INS) from August 1994 through 1995. The plaintiffs were subjected to beatings and abuse by guards at the facility, which was a converted warehouse.

After payment of court-approved attorney fees of $766,667 and $200,000 in expenses, class members filing valid claims by November 10, 2005, will divide the remaining $1,533,333. The amount of each claimant's payment depends, in part, upon the number of class members who filed claims. In 1999, class counsel identified and located approximately 1,180 detainees, but by the summer of 2003 only 456 could be found.

A Plan of Allocation (POA) allocates money to Qualified Claimants according to how long they were detained...and by the nature of the injuries they suffered when they were there. The POA assigns units for each kind of injury. It assigns one unit for each day detention in the unconstitutional conditions. 25 units are assigned for each day of segregation... 30 units are allocated for each incident of a physical beating by an Esmor guard. 20 units are assigned to
each detainee who was injured during the June 17, 1995 riot. A one-time allotment of 15 units is assigned to each detainee who was visited by the Esmor ERT Team who conducted searches at night. 15 units are assigned to each detainee who was subject to a digital body cavity search. Finally, 15 units are assigned to each detainee who was subjected to sexual harassment
including physical touching by an Esmor guard.

The Plan Administrator [i.e., Class Counsel] will evaluate each claim and compute the total number of units to be credited to each claimant and the total number of units of all claimants. To obtain the value of each unit, the total number of units will be divided into the fund to be distributed. To determine the award of each claimant, his or her total number of units will be multiplied by the value of each unit.

In approving the settlement, the court concluded that it is fair, reasonable and adequate under the nine-factor test enumerated in Girsh v. Jepson, 521 F.2d 153, 157 (3d Cir. 1975). In doing so, the court noted that in its [September 9, 2004] opinion resulting Esmor's summary judgment motion the court found that...plaintiffs...presented substantial evidence in support of their claims. But Esmor...denied wrongdoing and liability. It vigorously...defended the action up to the point of settlement and would no doubt continue to do so absent settlement. ...It is not unrealistic to estimate that, at best, many more years would be required to conclude this case, which was already more than nine years old. Even in settlement, Esmor vigorously denied and disclaim[ed] any wrongdoing or liability. However, the settlement came about as CSC was in the process of being bought out by Geo Corp. and as PLN has noted, it appeared that Geo conditioned its buy out of CSC on CSC settling all of its outstanding major lawsuits.

The court also noted that [t]he difficulty of proving liability is compounded by the fact that plaintiffs may have great difficulty in arranging for critical witnesses to be available for trial. Some may have been deported; some may have been transferred within the United States to presently unknown institutions.

There also appears to be a question of Esmor's ability to withstand a greater judgment. It is true that in some single plaintiff claims in prison or detention cases there have been recoveries substantially higher than the individual recoveries that can be anticipated in this case. However, those recoveries typically came after trial. The court was aware of at least one substantial judgment against Esmor/CSC, which was recently acquired by the Geo Corporation, in an unrelated action. During the course of this case Esmor [was] successfully sued for claims arising from abuses of detainees at its other facilities and one significant case in Texas resulted in a jury verdict of more than $38 million...Esmor's insurance carriers...commenced litigation disclaiming coverage in that case.

Esmor maintains insurance for claims arising from this class action in an amount that is greater than $2.5 million provided for in the settlement, but the extensive expense of these consolidated cases has exhausted most of the excess coverage. During settlement negotiations it became apparent that the amount of the settlement is the maximum amount [Esmor's primary insurance] carrier is going to pay. Thus, while perhaps Esmor could pay more now, it is a question whether it would be in a position to pay more after a trial and possible appeals given the existence of other litigation against it and the substantial other liabilities to which it may be subject.

Two other cases were filed concerning abuses at the Elizabeth facility: Joaquin DaSilva v. Esmor Correctional Services, Inc., Civil Action No. 96-3755 (DRD); and Hawa Abdi Jama v. United States INS, Civil Action No. 97-3093(DRD). Once Brown was certified as a class action, on March 10, 1999, the DaSilva and Jama plaintiffs were given the opportunity to object out of the class. Nine of the twenty Jama plaintiffs opted out. Esmor appealed the opt out order for the appeal which was still pending when the settlement was approved. The remaining Jama plaintiffs and all DaSilva plaintiffs became members all the Brown Class.

DaSilva counsel Carmen E. Mendiola, continue to represent the DaSilva plaintiffs in filed objections to the settlement. The court rejected each of those objections, however, noting in quite critical terms that they were filed after the deadline, contain[ed] a number of misstatements, and had no substance.

The nine Jama plaintiffs who opted out of Brown are not affected by the settlement unless the Third Circuit grants Esmor's appeal of the opt out order. The Settlement Agreement contemplates waiting until Esmor's appeal is resolved at which time it will be known whether the Jama plaintiffs are members although Class. Final computation of the value of the units could be determined at that time.

The Brown Class is represented by Ressler & Ressler, 48 Wall St, New York, New York, 10005. See: Brown v. Esmor Correctional Services, Inc., USDC No. 98-1282 (DRD) (D.NJ 8/10/05). The settlement is posted on PLN's website.

Additional Sources:The Associated Press, New Jersey Law Journal

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