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THOMAS v. ALBRIGHT

December 8, 1999

WALTER THOMAS, ET AL., PLAINTIFFS,
v.
MADELINE K. ALBRIGHT, DEFENDANT.



The opinion of the court was delivered by: Sporkin, District Judge.

MEMORANDUM OPINION

This matter is before the Court on Class Counsel's application for preliminary and permanent injunctive relief. Class Counsel seeks to enjoin a lawsuit styled as a malpractice action brought in the Superior Court for the District of Columbia by a group of five former class action plaintiffs.*fn1

The Underlying Class Action

The substantive claims in this case have long since been resolved. In 1986, a group of African-American Foreign Service Officers ("FSOs") sued their employer, the United States Department of State. Plaintiffs alleged discrimination by the State Department in the assignment, promotion, tenuring, performance evaluation, and termination of African American FSOs. The lawsuit sought monetary damages and appropriate injunctive relief.

Following nearly ten years of extensive discovery and negotiations, a proposed settlement was reached by class counsel and the State Department in 1996. The parties agreed that the class should be certified for settlement under Rule 23(b)(2). The State Department agreed to a draft consent decree that required substantial changes in the Department's employment practices, and enjoined the agency from discriminating on the basis of race against African-American FSOs. Additionally, the Department agreed to pay $3.8 million in monetary damages, reinstate four terminated class members, and retroactively promote seventeen class members.

The law firm of Akin, Gump, Strauss, Hauer & Feld, L.L.P., through Warren F. Connelly, Charles L. Warren, and Michael J. Madigan, and others, served as counsel for the putative plaintiff class, and for the class as certified. Joseph M. Sellers and Avis F. Buchanan, of the Washington Lawyers' Committee for Civil Rights & Urban Affairs, also represented the class. This group of attorneys prosecuted the case and engaged the State Department in the settlement negotiations.*fn2 To help effectuate the settlement, class counsel and lawyers for the State Department agreed that the issue of whether any plaintiff could opt-out of the settlement would be a decision left solely for the Court to determine with class counsel taking no position on the issue. Class counsel communicated to the plaintiffs that the consent decree would be silent on the opt-out issue, and that plaintiffs unhappy with the settlement could argue for the right to opt-out of the settlement before the consent decree was entered, at the fairness hearing to be conducted by the Court.*fn3

The fairness hearing was held on three days in July 1996. At the hearing, the Court heard from every class member who requested an opportunity to speak, and from their legal representatives. Plaintiffs Thomas, Latimer, Fields, Neal, and Smoot, along with others represented by Ms. Watson and Ms. Hutchinson, objected to the consent decree on the ground that it failed to provide an adequate remedy for the wrongs alleged in the complaint. Those plaintiffs argued that they were not fairly compensated for their individual injuries. Those plaintiffs also made it clear that if the Court rejected their arguments and approved the settlement, they should have the right to individually pursue their underlying causes of action. In other words, those plaintiffs sought the right to opt-out of the settlement.

On the merits of the compromise, the Court approved the settlement under Rule 23(e). It found the consent decree "as a whole [was] fair, reasonable, and adequate to the class," and "was clearly negotiated at arm's length and [presented] no danger of collusion." Thomas v. Christopher, 169 F.R.D. 224, 239 (D.D.C. 1996), aff'd in part and rev'd in part, Thomas v. Albright, 139 F.3d 227 (D.C.Cir.), cert. denied, ___ U.S. ___, 119 S.Ct. 576, 142 L.Ed.2d 480 (1998). The Court found the settlement to be in the best interests of the class as a whole. While the settlement may not have provided the degree of relief that some individual members sought, the Court approved the settlement based on the benefits it provided to the class generally. The Court specifically found "that class counsel . . . fairly and adequately protected the interests of the class." 169 F.R.D. at 239.

The Court addressed the opt-out issue at length. After hearing each of the individual plaintiffs' objections to the settlement, the Court found that some of the plaintiffs had individual equities that would not be satisfied by the agreement. Accordingly, the Court ordered the right to opt-out be made available to class members who did not believe that the settlement and consent decree provided them with appropriate relief for the injury they sustained. It stated:

  [I]f Defendant is right and those who want to opt out
  do have the strongest cases, what a grave injustice
  would then be done to those parties if the Court were
  to extinguish their individual rights.
    The Court has been impressed with the vehemence with
  which some members of the class have opposed the
  settlement. It is quite clear that those members will
  believe themselves to have been "sold out" if this
  Court refuses to allow opt out of the settlement.

Thomas v. Christopher, 169 P.R.D. at 245.

A group of unsatisfied class members, including the dissident plaintiffs, appealed. On appeal, they argued that the settlement (1) did not effectively address the Department's assignment system, retaliatory acts, or employee records tarnished with discriminatory decisions; (2) did not provide adequate relief in the form of additional or enhanced promotions; (3) was insufficient regarding reinstatement; (4) did not adequately compensate the dissident plaintiffs; and (5) was improperly approved over the objections of the dissident plaintiffs, who were named plaintiffs. Thomas v. Albright, 139 F.3d at 231-33. Additionally, the dissidents argued that class counsel did not adequately protect the individual interests of the dissident plaintiffs when class counsel agreed to take no position on the opt-out issue, and agreed to a "no modifications" clause in the settlement agreement. The Court of Appeals noted succinctly that "the dissidents complain about particular portions of the overall settlement and claim that they are individually entitled to more." Id., 139 F.3d at 233.

Despite the dissidents' arguments, the Court of Appeals affirmed this Court's finding on the fairness of the settlement, and rejected the challenge to the adequacy of legal representation by class counsel. Particularly, the Court of Appeals wrote:

  Finally, the dissidents argue that class counsel did
  not act in the interest of the class when counsel
  agreed to argue that the consent decree was fair and
  not to advocate the right to opt out, and agreed to
  the provision of the consent decree stating that the
  court may not modify the agreement. In our view
  counsel more than adequately represented the class as
  a whole.

Thomas v. Albright, 139 F.3d at 233.

This Court's granting the right to dissenters to opt out of the settlement was reversed. The Court of Appeals held that under intervening law, that option was not available in this case. Id., at 233-36, citing Eubanks v. Billengton, 110 F.3d 87 (D.C.Cir. 1997). This holding did not affect the findings that ...


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