Background
Plaintiffs were former inmates at the Salem County Correctional Facility who alleged they were improperly classified as “at-risk” and subjected to unlawful strip searches in violation of New Jersey law and their civil rights. In 2020, the trial court certified four classes covering distinct theories of liability: warrantless strip searches of non-indictable at-risk detainees (Class 1A); repeated daily strip searches of inmates already in 24/7 lockdown (Class 2); group strip searches conducted in the view of others (Class 3); and in-cell searches conducted on video and observed by unauthorized persons (Class 4). Three of the four named class representatives—Mark Hendricks, Kenneth Fuqua, and Darius Snead—were appointed to lead one or more classes, with Carl Poplar, Stephen Barry, and William Riback serving as co-class counsel.
In November 2020, the parties reached a mediated settlement. Under its terms, Classes 1 and 3 would receive monetary awards ($75 and $300 per member, respectively), each class representative would receive a $7,500 incentive payment, and counsel would apply for $375,000 in fees. Classes 2 and 4 would be decertified and their claims dismissed with prejudice, based on all counsel’s assessment—after extensive documentary, deposition, and expert discovery—that the evidence did not support recovery for those classes. Riback signed the term sheet and the joint stipulation of decertification, but months later changed course and filed objections on behalf of Hendricks, Fuqua, and Snead, who contended the compensation was inadequate and the decertification of Classes 2 and 4 improper. Riback ultimately withdrew as class counsel and continued representing only the objectors.
After extended motion practice—including denied motions to disqualify counsel on both sides and denied interlocutory appeals—the trial court held a fairness hearing in January 2024. The objectors testified they were unaware Riback had originally signed the settlement documents. The trial court applied the nine-factor framework from Girsh v. Jepson, 521 F.2d 153 (3d Cir. 1975), found the settlement fair, reasonable, and adequate under Rule 4:32-2(e), and entered final approval in February 2024.
The Court’s Holding
The Appellate Division affirmed in all respects, finding no abuse of discretion. The panel endorsed the trial court’s Girsh analysis, noting that plaintiffs did not meaningfully contest it and offered no additional evidence to undermine the court’s factual findings. On the decertification of Classes 2 and 4, the court held that decertification was proper because all class counsel—including Riback—had stipulated, after years of discovery, that the evidence did not support recovery for those claims, and because defendants had a pending motion to decertify. The panel further noted that putative members of Classes 2 and 4 retained the right to bring individual claims against defendants.
On the notice question, the court held that no notice of decertification was required for Classes 2 and 4 because those class members had never been notified of the original certification order. Relying on Hervey v. City of Little Rock, 787 F.2d 1223 (8th Cir. 1986), the panel reasoned that decertification notice is only required to reach potential class members who previously received notice of certification and relied on their inclusion—conditions not present here. Any error in the trial court’s statement that the claims administrator had provided such notice was therefore “innocuous.”
The panel also addressed objectors’ contention that a provision barring class counsel from representing opt-out claimants against defendants violated RPC 5.6(b), which prohibits lawyers from agreeing to restrictions on their right to practice as part of a settlement. The court evaluated this claim against the public-policy framework articulated in Cardillo v. Bloomfield 206 Corp., 411 N.J. Super. 574 (App. Div. 2010), and the ABA’s Formal Opinion 93-371, which emphasize that such restrictions impair public access to counsel, risk distorting settlement values, and create conflicts between current and prospective clients. The overall settlement, including the attorney’s fee award, was affirmed as not constituting a “windfall” for counsel given the hours invested and the rates applied.
Key Takeaways
- New Jersey courts apply the nine Girsh factors when evaluating class action settlement fairness, and a trial court’s approval will be reversed only for abuse of discretion—a high bar where the court has carefully analyzed each factor.
- Decertification of a class requires no notice to absent class members who were themselves never notified of the original certification order; those members suffer no prejudice and retain their individual claims.
- A class representative who signs a settlement term sheet and decertification stipulation as co-class counsel faces a significant hurdle in subsequently objecting to those same terms—the trial court may enforce the agreement and disregard the later change of position absent a demonstrated basis for vacatur.
- Attorney’s fees awarded in a class settlement are not per se improper even when they exceed the aggregate class recovery, provided the court finds the hours and rates reasonable and the settlement not designed primarily for counsel’s benefit.
- Restrictions on class counsel’s future representations of opt-out claimants implicate RPC 5.6(b) and must be scrutinized under the Cardillo public-policy framework; a provision found to violate the rule is void and unenforceable.
Why It Matters
This decision reinforces the deference New Jersey appellate courts afford trial courts in managing complex class litigation, particularly in settlements that involve partial decertification. Practitioners will note the court’s pragmatic treatment of the notice issue: where class members were never informed of their certified status, they cannot claim reliance, and decertification without individualized notice does not offend due process. This limits a potential avenue for objectors to derail settlements by demanding costly outreach to classes that were certified but never activated.
The opinion also serves as a cautionary tale for class counsel who negotiate and sign settlement documents only to reverse course when clients grow dissatisfied. Courts will scrutinize such reversals closely and may enforce the original agreement, leaving counsel in the uncomfortable position of litigating against a settlement they helped craft. For defense counsel and county governments facing strip-search class actions under New Jersey’s inmate search statutes, the decision illustrates how extensive pre-settlement discovery—properly documented in a joint stipulation—can support the decertification of legally or factually weak classes without jeopardizing an otherwise fair global resolution.