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Plaintiffs’ lawyers and the New Jersey attorney general’s office are negotiating a global settlement of all racial-profiling complaints by nonwhite drivers at the state and federal level, according to lawyers involved in the talks. The attorneys say the number on the table is in the region of $12 million. “There have been settlement negotiations for some time,” says Lawrence Lustberg, a partner with Newark, N.J.’s Gibbons, Del Deo, Dolan, Griffinger & Vecchione. “We are very hopeful.” Lustberg say he has met in the past two weeks with First Assistant Attorney General Peter Harvey about the settlement terms. Chuck Davis, a spokesman for Harvey and Attorney General David Samson, did not return calls for comment by press time. Neither did the attorney general’s outside counsel, Michael Cole of DeCotiis, FitzPatrick, Gluck & Cole in Teaneck, N.J. Lustberg is on the team of attorneys who represent Felix Morka and Laila Maher, who have alleged in state court that they were pulled over in 1996 on the New Jersey Turnpike and roughed up by a state trooper. Morka v. New Jersey, MID-L-8429-97. Morka, a Nigerian national, is executive director of the Social and Economic Rights Action Center in Maryland. Laila Maher, an Egyptian-American, is a New York poverty lawyer. The Lustberg team is led by Neil Mullin of Smith Mullin in Montclair, N.J. Others include Risa Kaufman, an associate with Lustberg at Gibbons Del Deo, and Ed Barocas, legal director of the American Civil Liberties Union of New Jersey. ACLU-NJ Executive Director Deborah Jacobs also confirms the existence of talks. Mullin declines to comment. A second team is headed by William Buckman, a Moorestown, N.J., solo practitioner, and Alan Yatvin, a partner at Popper & Yatvin in Philadelphia. Their clients are Thomas White and John McKenzie, who filed a federal class action suit in 1998 alleging they were pulled over and searched on the turnpike in 1997 and 1998 solely because of their race. White v. Williams, No. 99-CV-2240. Whether or not the talks succeed, that they are going on at all signals a change in attitude since New Jersey Gov. James McGreevey took office. “I believe there’s a greater willingness to settle this case than there was in the last administration,” says Lustberg. “I think it’s expected, given the current budget situation, [that] they want to stop spending money on defending these cases and just resolve them. I think that the notion here is to ultimately benefit the taxpayers and the victims of racial profiling.” A key issue in the negotiations is that the settlements wrap up both the state and federal cases. In October 2000, New Jersey Superior Court Judge Amy Piro Chambers struck down Mullin’s motion for class action certification in the Morka case. The White case has fared better, having survived a motion to dismiss its class action status. In January, federal Judge Joel Pisano of the District of New Jersey ruled that New Jersey Supreme Court Justice Peter Verniero could be held liable for his conduct as state attorney general. One of the issues being debated is the size and structure of settlement payments. The majority of potential plaintiffs — those who were pulled over, detained briefly or given traffic tickets — would likely see recoveries of a few hundred dollars. A minority of plaintiffs, those beaten up or terrorized by police, would require much larger payments. “It may be as some combination of individual settlements and class settlements, but the notion is to settle all the cases. That’s not 100 percent possible because even in a class context people have the right to opt out,” says Lustberg. Once an agreement on a settlement method is in place, its existence would have to be advertised so motorists could apply for a share of the recovery. That would likely draw hundreds of complaints, genuine and otherwise. One possible idea to cope with that would be to set up a panel of officials to receive complaints, decide who is eligible, assess documentation and listen to witnesses in mini-hearings before making awards out of the settlement. “There’s been a dispute-resolution mechanism that’s been arrived at whereby there would be documents that would be produced and there could be some mini-hearings and so on and so forth,” Lustberg says, “[but] that has not been finalized.” Lustberg and Buckman express caution that as the talks were ongoing, any putative deal could unravel at any moment. Buckman, who in 1995 became the first attorney to persuade a court that racial profiling existed — in State v. Soto, 324 N.J. Super. 66 — was at pains to point out that just because the McGreevey administration was talking does not mean anything would come of it. “I’ve seen expressions of interest before [but] I am somewhat optimistic and I’ve got an open mind.” he says. Lustberg says that while no timetable has been mapped out for the current negotiations, the plan is for it to move along quickly. The ACLU’s Jacobs is more cautious. “If you asked me for a timetable six months ago I might have told you one but it would have been totally wrong. So I’ve learned from that. These things always take longer than one would hope.” If Samson doesn’t achieve a mass settlement, the state could find itself fighting dozens or hundreds of suits for years. “They’re also looking at monumental punitive damages as well as attorneys’ fees,” Buckman says. Wrapping up the racial-profiling issue has been a priority for Samson since he took office. In January, the state ended its prosecution against the troopers who shot at four men on the turnpike in April 1998. They were fined $280 and lost their jobs. Later that month, the New Jersey Turnpike Authority and the state settled a suit brought by Kindra White, a black woman who was attacked by a trooper at a turnpike rest stop in August 1998. White, represented by Johnnie Cochran, Barry Scheck, Peter Neufeld and associate Nick Brustin of Cochran, Neufeld & Scheck in New York, received $800,000. In February 2001, the four men shot by state troopers accepted a settlement of $12.95 million from the Republican administration of that time. Even if the Morka-White settlement pans out, racial-profiling litigation will not end there. On Feb. 6, Judge Maria Marinari Sypek of Mercer County, N.J., allowed State Police Supt. Carson Dunbar to be added as a defendant in a suit by 13 minority state troopers who claim they were the first to blow the whistle on racial profiling and were punished by their superiors because of it. On the Buckman-Yatvin team in the federal case are David Rudovsky of Kairys, Rudovsky, Epstein, Messing & Rau in Philadelphia; Stefan Presser, the legal director of the ACLU of Pennsylvania; Justin Loughry of Loughry and Lindsay in Moorestown; and professor Seth Kreimer of the University of Pennsylvania. On the state’s side, Cole is assisted by Ben Clarke, also of DeCotiis FitzPatrick; John O’Reilly (representing state troopers), a partner at Pitney, Hardin, Kipp & Szuch in Florham Park, N.J.; and Stuart Lederman (representing the New Jersey Turnpike Authority), a partner at Morristown, N.J.’s Riker, Danzig, Scherer, Hyland & Perretti.

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