UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
LV, VSG, RC, AD, NA, AD, YG, and LO,
Plaintiffs,
vs.

Civ. No.:

NEW YORK CITY DEPARTMENT OF EDUCATION; NEW YORK CITY BOARD OF EDUCATION; JOEL KLEIN, in his individual and official capacity as Chancellor of the New York City School District,
Defendants.

COMPLAINT

PRELIMINARY STATEMENT 1. This action seeks to enforce Defendants’ compliance with final decisions and orders of Impartial Hearing Officers (“Impartial Hearing Orders”) entered pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415, et. seq. Defendants’ failure to comply with these Impartial Hearing Orders is in violation of Plaintiffs’ rights under the due process clause of the 14 th Amendment of the U.S. Constitution; the IDEA; 42 U.S.C. § 1983; and Section 200.5 of the Regulations of the New York State Commissioner of Education, 8 N.Y.C.R.R. § 200.5. 2. Plaintiffs also seek a declaratory judgment that Defendants’ failure to comply with the Impartial Hearing Orders is in violation of the due process clause of the 14 th Amendment to the U.S. Constitution; the IDEA; 42 U.S.C. § 1983; and Section 200.5 of the Regulations of the New York State Commissioner of Education, 8 N.Y.C.R.R. § 200.5.

3. The acts and omissions complained of herein are indicative of the systemwide failure of Defendants’ to establish a policy and procedure for the timely and effective enforcement of Impartial Hearing Orders.
JURISDICTION 4. This Court has jurisdiction under 28 U.S.C. § 1331, in that claims are asserted under the laws of the United States; under 28 U.S.C. § 1343(a), in that claims are asserted under laws providing for the protection of civil rights; and under 42 U.S.C. § 1983. This Court has jurisdiction over Plaintiffs’ pendent state law claims pursuant to 28 U.S.C. § 1367. Plaintiffs also seek declaratory relief pursuant to 28 U.S.C. § 2201 and 2202. 5. Venue is proper under 28 U.S.C. § 1391(b). 6. If successful, Plaintiffs are entitled to costs and attorneys fees under 42 U.S.C. § 1988 and 20 U.S.C. §1415.
PARTIES 7. Plaintiff LV is the mother of RV, a child with a disability who resides in New York City. 8. Plaintiff VSG is the mother of KSG, a child with a disability who resides in New York City. 9. Plaintiff RC is the mother of TC, a child with a disability who resides in New York City. 10. Plaintiff AD is the mother of TD, a child with a disability who resides in New York City.
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11. Plaintiff NA is the mother of SA, a child with a disability who resides in New York City.
12. Plaintiff AD is the mother of JD, a child with a disability who resides in New York City.
13. Plaintiff YG is the mother of SG, a child w ith a disability who resides in New York City.
14. Plaintiff LO is the mother of HG, a child with a disability who resides in New York City.
15. Initials are used throughout this Complaint to preserve the confidentiality of the infant plaintiff in conformity wit h the privacy provisions of the IDEA, 20 U.S.C. §1417(c), and the Family Educational and Privacy Rights Act (FERPA), 20 U.S.C. §1232g.
16. Defendant THE NEW YORK CITY BO ARD OF EDUCATION (“the Board of Education” or “the Board”) was or continues to be the offic ial body charged with the responsibility for developing policies with respect to the administration and operation of the public schools in the City of New York, including programs and services for students with disabilities. N.Y. Educ. Law §§ 2590, 2590 - g (McKinney 1980). It is a recipient of federal financial assistance.
17. Defendant THE NEW YORK CITY DE PARTMENT OF EDUCATION (“Department”) is the newly formed official body charged with the responsibility for developing policies with respect to the administration and operation of the public schools in the City of New York, including programs and services for students with disabilities.
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N.Y. Educ. Law §§ 2590, 2590 -g (McKinney 1980). It is a recipient of federal financial assistance.
18. Defendant JOEL KLEIN is the Chancellor of the New York City School District (“the Chancellor”) and as such is entrusted with the specific powers and duties set forth in N.Y. Educ. Law § 2590 -h (McKinney 1930), including the power and duty to control and operate all academic and vocational senior high schools in the city school district.
FACTUAL ALLEGATIONS 19. Plaintiff LV is the mother of RV, a 16 -year-old student classified as emotionally disturbed. RV was born on February 16, 1987. 20. LV initiated a hearing to request prospective f unding for summer school tuition for RV at the Robert Louis Stevenson High School (“Stevenson School”), a non public program that has not been approved by the New York State Education Department to provide education to students with disabilities. A hearin g was held on July 24, 2003. 21. By decision dated August 11, 2003, the Impartial Hearing Officer ordered that LV receive $2,800 for summer school tuition from the Department that she would in turn endorse to the Stevenson School. 22. Defendants did not appeal t he Impartial Hearing Officer's decision within 30 days, and the decision became final as of September 11, 2003. 23. As of the filing of this complaint, Defendants have not provided RV with the $2,800 for RV’s attendance at the Stevenson School summer program a s required by the Impartial Hearing Order.
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24. Plaintiff VSG is the mother of KSG, a 15 -year-old student with Traumatic Brain Injury and Attention Deficit Disorder. KSG was born on May 4, 1988.
25. On April 30, 2003, VSG requested an impartial hearing alleging t hat the placement offered to KSG by Defendants was inappropriate. At the June 16, 2003 hearing, VSG requested that Defendants fund KSG’s attendance at the 2003 summer program at the Stevenson School. A hearing was held on June 16, 2003.
26. By decision dated July 10, 2003, the Impartial Hearing Officer ordered, inter alia, that the Department fund KSG’s attendance at the Stevenson School summer program.
27. Defendants did not appeal the Hearing Officer's decision within 30 days, and the decision became final as of August 10, 2003.
28. As of the filing of this complaint, Defendants have still not provided VSG funding in the amount of $3,400 for KSG’s attendance at the Stevenson School summer program as required by the Impartial Hearing Order.
29. Plaintiff RC is the mother of TC, a 15-year-old student who had exhibited behavioral and academic problems in school and was suspected of having a disability. TC was born on August 1, 1988.
30. RC initiated a hearing and hearings were held on January 16, 17, and 27, 2003.
31. By decision dated February 19, 2003 and corrected February 25, 2003, the Impartial Hearing Officer ordered, inter alia, Defendants to reimburse RC the amount of $200 for a uniform that she purchased for TC to attend The Young Women’s Leadership School.
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32. Defendants did not appeal the Impartial Hearing Officer's decision within 30 days, and the decision became final as of March 28, 2003.
33. As of the filing of this complaint, Defendants have still not provided RC with the $200 as required by the Impartial Hearing Order.
34. Plaintiff AD is the mother of TD, a 17 -year-old student who is classified as emotionally disturbed. TD was born on April 17, 1986.
35. AD initiated hearings, which were held on October 11, 2002 and November 25, 2002, to request, inter alia, payment for tuition for a period of time that TD attended the Stevenson School.
36. By decision dated March 3, 2003, the Impartial Hearing Officer ordered the Department to pay tuition for the period of time that TD spent in the Stevenson School during the 2002-2003 school year.
37. TD attended the Stevenson School from mid -December 2002 to mid-February 2003. The amount of tuition for this period amounts to $6,000.
38. Defendants did not appeal the Impartial Hearing Officer's decision within 30 days, and the decision became final as of April 3, 2003.
39. As of the filing of this complaint, Defendants have not paid tuition in the amount of $6,000 for the period of time that TD attended the Stevenson School as required by the Impartial Hearing Order.
40. Plaintiff NA is the mother of SA, a 15-year-old student who is classified as emotionally disturbed. SA was born on September 2, 1988.
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41. NA initiated a hearing to request, inter alia, reimbursement for a private psycho-educational evaluation performed by Dr. June Rousso on February 28, 2003. The hearing was held on May 30, 2003.
42. By decision dated July 11, 2003, the Impartial Hearing Officer ordered, inter alia, that NA receive reimbursement for the private psycho -educational evaluation.
43. Defendants did not appeal the Impartial Hearing Officer's decision within 30 days, and the decision became final as of August 10, 2003.
44. As of the filing of this complaint, Defendants have not provided payment for the private psycho-educational evaluation in the amount of $400 as required by the Impartia l Hearing Order.
45. Plaintiff AD is the mother of JD, a 12 - year-old student who was classified as speech-impaired in his IEP dated March 15, 2001, the most current at the time of AD’s request for a hearing. JD was born on September 2, 1991.
46. AD requested a he aring seeking, inter alia, payment from the Board for JD’s round trip transportation to a private school and reimbursement for transportation expenses paid to date. A hearing was held on April 26, 2002.
47. By decision dated May 24, 2002, the Impartial Hearin g Officer ordered, inter alia, the Board to reimburse AD for transportation costs they had incurred during the 2001-2002 school year.
48. Defendants did not appeal the Impartial Hearing Officer's decision within 30 days, and the decision became final as of J une 24, 2002.
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49. As of the filing of this complaint, Defendants have not reimbursed AD for transportation costs incurred by the parents in the amount of $1,590 as required by the Impartial Hearing Order.
50. Plaintiff YG is the mother of SG, a 17 -year-old student classified as learning disabled and emotionally disturbed. SG was born on August 12, 1986.
51. YG initiated a hearing requesting, inter alia, reimbursement to Columbia Presbyterian for psychiatric, neuropsychological and neurological examinations. Hearings were conducted on November 5, 2003, November 26, 2003, January 22, 2003, February 28, 2003 and March 14, 2003.
52. By decision dated March 14, 2003, the Impartial Hearing Officer ordered, inter alia, the Department to reimburse Columbia Presbyterian for psychiatric, neuropsychological and neurological examinations for a total cost not to exceed $3600.00.
53. Defendants did not appeal the Impartial Hearing Officer's decision within 30 days, and the decision became final as of April 14, 2003.
54. As of the filing of this complaint, Defendants have not paid Columbia Presbyterian for the psychiatric, neuropsychological and neurological examinations, the cost of which amounted to $2,000, as required by the Impartial Hearing Order.
55. Plaintiff LO is the mother of HG, an 18 -year-old student classified as learning disabled. HG was born on July 7, 1985.
56. LO initiated a hearing requesting, inter alia, an independent psychological evaluation at the Department’s expense. A hearing was conducted on April 16, 2003.
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57. By decision dated April 24, 2003, the Impartial Hearing Officer ordered, inter alia, that HG receive the psychological evaluation at the Department’s expense.
58. Defendants did not appeal the Impartial Hearing Officer's decision within 30 days, and the decision became fin al as of May 23, 2003.
59. As of the filing of this complaint, Defendants have not rendered payment for the psychological evaluation of HG, the cost of which amounted to $400, as required by the Impartial Hearing Order.
60. All the actions and failures to act of D efendants alleged above were made under color of state law.
FURTHER FACTUAL ALLEGATIONS 61. On October 10, 2003, Plaintiffs’ counsel informed Defendants’ General Counsel and Office of Legal Services that Plaintiffs’ counsel were preparing to file an action based on Defendants’ systematic failure to enforce Impartial Hearing Orders, and provided to them a list of the named Plaintiffs and the names of their children. Plaintiffs’ counsel requested immediate resolution and enforcement of the Impartial Hearing Orders. 62. On or about October 14, 2003, Plaintiffs’ counsel again provided to the Department’s General Counsel and Office of Legal Services a list of the names, dates of birth and case numbers of the named Plaintiffs’ children. 63. As of the date of this Complaint, nearly two months after Defendants were provided with this information, the Impartial Hearing Orders at issue herein remain unenforced in clear violation of law.
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64. Plainly, Defendants’ failure to comply with Impartial Hearing Orders is a systemic problem that demonstrates a clear indifference to the rights of Plaintiffs.
65. Defendants clearly lack an effective policy for the timely and efficient enforcement of Impartial Hearing Orders, resulting in the Defendants’ widespread failure to comply with the Impart ial Hearing Orders and a clear deprivation of Plaintiffs’ rights.
CAUSES OF ACTION 66. Defendants have violated the Plaintiffs’ rights under the due process clause of the 14th Amendment to the Constitution of the United States. 67. Defendants’ failure to provid e Plaintiffs with the relief ordered by the Impartial Hearing Officers deprived Plaintiffs of their right to a free appropriate public education under IDEA, 20 U.S.C. § 1400(c) and due process under IDEA, 20 U.S.C. § 1415, and thus deprives them of rights secured by federal law in violation of 42 U.S.C. § 1983. 68. Having won favorable Impartial Hearing Orders, Plaintiffs have no further administrative remedy, and thus exhaustion is futile and not required.
RELIEF WHEREFORE, Plaintiffs request that this Court:
a. Assume jurisdiction of this case; b. Enter a judgment:
i. Ordering Defendants to comply immediately with the provisions of the Impartial Hearing Orders at issue herein;
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Dated:

ii. Retaining jurisdiction of this action for all purposes, including entry of such additional orders as may be necessary or proper;
iii. Requiring Defendants to design, submit to Plaintiffs’ counsel and the Court for approval, and implement an effective plan to ensure that all Impartial Hearing Orders are enforced in a timely and comprehensive ma nner.
b. Issue a declaratory judgment that Defendants have violated Plaintiffs’ rights as set forth;
c. Award to Plaintiffs their costs and attorneys fees; and d. Grant such other and further relief as may be appropriate. December 12, 2003 New York, New York

Respectfully submitted,

___________________________ Elisa F. Hyman (EFH4709) Sonal Y. Patel (SP3101) Attorneys for Plaintiffs Advocates for Children of New York 151 W. 30th Street, 5th Floor New York, New York 10001 (212) 947-9779

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 Case 1:03-cv-09917-LAP-KNF Document 80 Filed 09/19/05 Page 1 of 16

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

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:

LV, et al.,

:

:

Plaintiffs,

:

:

-against-

:

:

:

NEW YORK CITY DEPART MENT OF

:

EDUCATION, et al.,

:

Defendants.

:

:

--------------------------------------------------------------x

03 Civ. 9917 (RJH) (KNF)
MEMORANDUM OPINION AND ORDER

Presently before the Court is plaintiffs’ renewed motion for class certification on

behalf of a putative class of persons who have obtained favorable orders or stipulated

settlements (collectively “orders”), relating to a child’s statutory entitlement to free

appropriate public education as provided by the Individua ls with Disabilities in Education

Act (“IDEA”), 20 U.S.C. § 1400 et seq., but who have failed to obtain or may not obtain

the timely implementation by defendants of the terms of such order or settlement.

Specifically, plaintiffs allege that defendants’ fa ilure to implement policies or practices to

enforce such orders in a timely fashion constitutes a systematic denial of their due

process rights in contravention of 42 U.S.C. § 1983. Plaintiffs seek declaratory and

injunctive relief in attaining system- wide reform in defendants’ provision of free

appropriate public education to disabled students. For the reasons set forth below, the

Court grants plaintiffs’ motion for class certification.

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BACKGROUND A. IDEA’s Statutory Framework
The IDEA seeks to “ensur e that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living.” 20 U.S.C. § 1400(d)(1)(A). In effect, Congress sought to incorporate disabled students into the public education system by requiring school officials and parents of a disabled child to design an Individualized Education Program (“IEP”) for each year of the child’s education. Polera v. Board of Education of the Newburgh Enlarged School District, 288 F.3d 478, 482 (2d Cir. 2002) (stating that the IEP is “the central mechanism by which public schools ensure that their disabled students receive a free appropriate public education.”); 20 U.S.C. §§ 1401(11), 1414(d). Under the statute, the IEP is a written statement that sets forth, inter alia, the child’s present levels of educational performance, measurable annual goals, special education and related services and supplementary aids and services to be provided to the child, and program modifications or support for school personnel, as well as projected dates for the beginning of such services and modifications. See 20 U.S.C. § 1414(d)(1)(A).
Yet the IDEA’s current st atutory scheme also reflects a concern that “parental input into the creation of the IEP would not be sufficient to safeguard a child’s right to a free and appropriate education,” in that Congress also requires states to offer parents and disabled students procedural safeguards to challenge the decisions of local educational agencies. Murphy v. Arlington Central School District Board of Education, 297 F.3d 195, 197 (2d Cir. 2002). In accordance with this mandate, New York law provides a two -
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tier system of administrative review. Id.; N.Y. Educ. Law § 4404 (McKinney 1999). Parents may first challenge the IEP determination through an impartial due process hearing, in which the decision of the presiding impartial hearing officer (“IHO”) is binding on all parties unless appealed to a State Reviewing Officer (“SRO”). N.Y. Educ. Law § 4404(1); see also 8 N.Y.C.R.R. § 200.5(i)(1) (enabling a parent or school district to “initiate a hearing on matters relating to the identification, evaluation or educational placement of a student with a disability, or the provision of a free appropriate public education to a child.”). 1 Upon appeal to the SRO, the SRO is empowered to review and modify “any determination of the impartial hearing officer relating to the determinati on of the nature of a child’s handicapping condition, selection of an appropriate special education program or service and failure to produce such program.” N.Y. Educ. Law § 4404(2); N.Y.C.R.R. 200.5(j)(1) (“Any party aggrieved by the findings of fact and the decisions of an impartial hearing officer … may appeal to a State review officer of the State Education department”).2
B. Procedural Posture of the Action
Plaintiffs filed the initial complaint in this action on December 12, 2003 and subsequently amended the complaint on January 14, 2004. On February 2, 2004, plaintiffs LV, VSG, RC, AD, NA, ADJ, YG, LO, AP, RLB, RD, JYQ and HR moved for
1 New York has created a complex administrative scheme to implement the mandates of the IDEA. Article 89 of the NewYork Education Law (entitled “Children with Handicapping Conditions”), N.Y. Educ. L. §§ 4401-4410-b, sets forth the two-tiered system of administrative review, while the State Education Department’s regulations further detail the nature of the proceedings, the due process rights afforded to both parties and time limitations in rendering a decision for such hearings. See Does v. Mills, No. 04 Civ. 2919 (RWS), 2005 WL900620, at *2 (S.D.N.Y. Apr. 18, 2005). 2 Section 1415(i)(2)(A) of the IDEA further provides that a federal district court may review the findings and decision of the administrative review. 20 U.S.C. § 1415(i)(2)(A). However, a “plaintiff’s failure to exhaust administrative remedies under the IDEA deprives a court of subject matter jurisdiction.” Polera, 288 F.3d at 483 (citing Hope v. Cortines, 69 F.3d 687, 688 (2d Cir. 1995)).
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class certification with HR as a representative plaintiff. On March 15, 2004, defendants cross- moved to dismiss HR’s claims on the basis of standing issues. Shortly thereafter, plaintiffs and proposed intervenors CW, SS, MG, MS, ST, RZ, MC and JP moved to intervene and to amend the first amended complaint on March 26, 2004. The parties executed a stipulation on April 21, 2004, thereby enabling plaintiffs to file a second amended complaint. Defendants then moved to dismiss the claims asserted in the second amended complaint on May 5, 2004.
On September 16, 2004, plaintiffs withdrew their motion for class certifica tion without prejudice and with leave to refile the motion to include claims asserted by CW, SS, MG, MS, ST, RZ, MC and JP, whose motion to intervene had been granted by the Court. Plaintiffs renewed their motion for class certification on October 25, 200 4. Plaintiffs proposed the following class definition:
all persons (1) who have obtained, or will in the future obtain, for the benefit of a child with disability, a favorable order by an IHO against, or stipulation of settlement placed on the record at an impartial due process hearing with, the New York City Department of Education, or who are children with disabilities who are the beneficiaries of such order or stipulation of settlement, and (2) who fail to obtain, or are at risk of failing to obtain, f ull and timely implementation of such order or settlement.
On January 6, 2005, the Court denied from the bench defendants’ cross -motion to dismiss claims asserted by HR, as well as defendants’ motion to dismiss the claims
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asserted by LV, ADJ, MG, RZ, VSG, AD, NA, YG, LO, RD, AP, RLB, ST, MC and JP on the record.
DISCUSSION
Plaintiffs seeking to certify a class pursuant to Rule 23 of the Federal Rules of Civil Procedure bear the burden of establishing the four requirements of Rule 23(a) – numerosity, commonality, typicality and adequacy – as well as showing that the class fits into one of three categories set forth in Rule 23(b). Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 293 (2d Cir. 1999); Boyland v. Wing, No. 92 Civ. 10002 (DGT), 2001 U.S. Dist. LEXIS 7496, at *14 (E.D.N.Y. Apr. 6, 2001) (internal citations omitted); Becher v. Long Island Lighting Co., 164 F.R.D. 144, 148 (E.D.N.Y. 1996). While plaintiffs “are not obliged to make an extensive evidentiary showing in support of their motion,” they are required to set forth, at the very least, “sufficient factual information to enable the Court reasonably to permit the action to continue as a class action under Rule 23.” Boyland, 2001 U.S. Dist. LEXIS 7496, at *14 (internal citations omitted). T he Court shall accept the allegations set forth in the complaint as true, see Sharif by Salahuddin v. New York State Education Department, 127 F.R.D. 84, 87 (S.D.N.Y. 1989), and examine whether the general requirements of Rule 23 are satisfied without delving into the merits of the action. See Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 177 (1974) (“We find nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action.”); Green v. Wolf Corp., 406 F.2d 291, 298 (2d Cir. 1968) (remarking that “Rule 23 now emphasizes the flexibility which a trial court exercises in the management of the action … [in focusing ] the
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attention of the courts on the need to conduct the litigation without undue complication or repetition.”)
A. Rule 23(a) Requirements
1. Numerosity. Rule 23(a)(1) requires that the class be “so numerous that joinder of all members is impracticab le.” Fed. R. Civ. P. 23(a)(1). While plaintiffs need not show the exact size or identity of class members, nor that joinder would be “impossible,” courts should examine considerations such as “judicial economy arising from the avoidance of a multiplicity of actions, geographic dispersion of class members, financial resources of class members, the ability of claimants to institute individual suits, and requests for prospective injunctive relief which would involve future class members.” Robidoux v. Celani, 987 F.2d 931, 936 (2d Cir. 1993).
Defendants have not contested that plaintiffs have satisfied the numerosity requirement in this action. Indeed, plaintiffs have alleged that system-wide defects cripple defendants’ implementation of IHO orders and settlements, potentially affecting hundreds, if not thousands, of disabled children. (Declaration of Randee J. Waldman (“Waldman Decl.”) ¶ 4 (noting that defendants provided plaintiffs with approximately 2,700 written IHO decisions between July 2002 and Septe mber 2004); Declaration of Irene Hwang (“Hwang Decl.”) ¶ 5.) Moreover, plaintiffs have adduced evidence of at least fifty examples in which defendants allegedly failed to timely enforce IHO orders. (Decl. of Matthew Lenaghan (“Lenaghan Decl.”) ¶¶ 7 -34; Waldman Decl. ¶¶ 5, 11.) See Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995) (“numerosity is presumed at a level of 40 members.”) Since the precise number of persons affected is
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within defendants’ control, plaintiffs may reasonably rely on the “reasonable inferences drawn from the available facts” in establishing the impracticability of joining hundreds of potential claims of class members. German v. Federal Home Loan Mortgage Corp., 885 F. Supp. 537, 552-53 (S.D.N.Y. 1995); McNeill v. New York City Housing Authority, 719 F. Supp. 233, 252 (S.D.N.Y. 1989) (remarking that “the lack of knowledge as to the exact number of affected persons is not a bar to maintaining a class action where the defendants alone have access to such data. ”) Accordingly, the Court concludes that plaintiffs have satisfied the numerosity requirement of Rule 23(a)(1).
2. Commonality. Rule 23(a)(2) requires that plaintiffs assert claims that contain “questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). In this instance, plaintiffs have identified two distinct common issues of fact: (1) whether defendants have failed to timely enforce IHO orders obtained by plaintiffs; and (2) whether defendants have failed to adopt policies and proced ures to ensure that IHO orders are enforced in a timely manner. (Pls.’ Mem. in Supp. of Mot. for Class Cert. (“Pls.’ Mem.”) at 17.) Plaintiffs have also articulated a common issue of law – namely, whether defendants have “systematically denied Plaintiffs their right to an adequate due process system under § 1983 by failing to have in place procedures and policies to implement and enforce IHOs’ orders.” (Id. at 17-18.)
Plaintiffs’ proposed class action effectively challenges defendants’ purported practices and policies in failing to timely implement disabled students’ IHO orders on a system-wide basis. Marisol A. by Forbes v. Giuliani, 126 F.3d 372, 376 (2d Cir. 1997) (affirming class certification where plaintiffs alleged that defendants violated a complicated scheme of constitutional, regulatory and statutory provisions designed to
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provide child welfare services by failing to operate and maintain a functioning child welfare system); D.D. v. New York City Board of Education, No. 03 Civ. 2489 (DGT), 2004 U.S. Dist. LEXIS 5189, at *26 (E.D.N.Y. March 30, 2004) (certifying class where plaintiffs focused on the defendants’ alleged failure to provide services listed on their IEPs in a timely manner in violation of the IDEA, ADA, and 42 U.S.C. §§ 1983 and 1988); Louis M. by Velma M. v. Ambach, 113 F.R.D. 133, 136 (N.D.N.Y. 1986) (commonality established where plaintiffs challenged inadequate state appellate review by which disabled students contested their educational placements); Andre H. by Lula H. v. Ambach, 104 F.R.D. 606, 611 (S.D.N.Y. 1985) (commonality established where plaintiffs asserted that defendants failed to develop and implement policies and procedures ensuring that disabled children at juvenile centers would be provided free appropriate public education); Upper Valley Assoc. for Handicapped Citizens v. Mills, 168 F.R.D. 167, 170 (D. Vt. 1996) (commonality satisfied where plaintiffs challenged defendants’ implementation of procedures mandated by the IDEA). Significantly, resolution of such issues of law and fact does not require a determination of the appropriateness of individual IHO orders but simply the procedures for implementation. See Evans v. Evans, 818 F. Supp. 1215, 1219 (N.D. Ind. 1993) (commonality satisfied where defendants allegedly engaged in lengthy delays in implementing IEPs). 3
3 McClendon v. School District of Philadelphia, No. 04 Civ. 1250, 2005 U.S. Dist. LEXIS 3497 (E.D. Pa. Mar. 7, 2005), is not to the contrary. In McClendon, plaintiffs sought to certify a class of parents, on behalf of their disabled children, who relinquished their due process rights in exchange for IEPs which the defendant school district allegedly knew it could not fulfill. Id., 2005 U.S. Dist. LEXIS 3497, at *11. Because the resolution of those issues involved a review of eachstudent’s IEP to determine whether the school district had satisfactorily implemented the IEP, theMcClendon court concluded that any remedy would necessarily arise from each student’s individualized education plan, rather than from a single remedy designed to effect systematic reform. Id., 2005 U.S. Dist. LEXIS 3497, at *12-13.
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Accordingly, the Court concludes that plaintiffs have established the commonality requirement of Rule 23(a)(2).
3. Typicality. Plaintiffs must show that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). While typicality and commonality overlap, see Louis M., 113 F.R.D. at 136, typicality “requires that the claims of the class representatives be typical of those of the class, and is satisfied when each class member’s claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant’s liability.” Marisol A. by Forbes, 126 F.3d at 376 (internal quotations omitted). In other words, the “typicality requirement does not dictate that each named plaintiff claim that he or she has suffered every type of harm alleged by the class.” Ray M. v. New York Board of Education, 884 F. Supp. 696, 706 (E.D.N.Y. 1995).
Plaintiffs contend, and defendants have not contested, that the named plaintiffs will articulate the same legal argument – namely, “that Defendants’ failure to have policies and procedures in place [to implement the IHO orders] resulted in a denial of their rights.” (Pls.’ Mem. at 20). Since the named plaintiffs “in the aggregate, assert all of the claims asserted on behalf of class members,” the Court finds that the typicality requirement is satisfied. Ray M., 884 F. Supp. at 706 (citing Kenavan v. Empire Blue Cross and Blue Shield, No. 91 Civ. 2393 (KMW), 1993 U.S. Dist. 4977, at *4 (S.D.N.Y. Apr. 19, 1993)).
4. Adequacy. Finally, plaintiffs must demonstrate that “the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P.
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23(a). This determination rests on two factors: “(1) the adequacy of the representative
and (2) the adequacy of his counsel.” Andre H., 104 F.R.D. at 612. Defendants
attacked the adequacy of certain class representatives based on their motion to dismiss
plaintiffs’ claims for lack of standing and mootness. Given the Court’s prior ruling
denying the motion to dismiss in all respects, the attack on the adequacy of individual
class representatives must also fail. See Transcript of hearing held on January 6, 2005
at 33-38.4
One issue remains regarding the adequacy of SS as a class representative. SS’s
son, AR, may be a member of a related class in Jose P. v. Ambach, 557 F. Supp. 1230
(D.C.N.Y. 1980). Defendants contend that the doctrine of res judicata operates to bar
SS’s claims, on behalf of AR, because Jose P. already addresses her requested relief—
namely, the provision of private related service providers in the area of occupational
therapy at defendants’ expense. (Defs.’ Mem. in Opp. to Mot. for Class Certification
(“Defs.’ Opp. Mem.” at 6; Declaration of SS in Supp. of Pls.’ Mot. for a Temporary
4 In their motion to dismiss, defendants contended that LV, ADJ, MG, RZ, ST and MC lacked standing because (1) LV, ADJ, MG and RZ received payments on their behalf by the filing of the first pleading in which each was named (Defs.’ Mem. in Supp. of Mot. to Dismiss at 12); and (2) ST and MC failed to demonstrate that any injury they suffered was fairly traceable to defendants’ conduct. I(d. at 17.) However, the Court concluded that defendants’ failure to provide timely due process can itself violate the substantive right to free appropriate public education guaranteed under the IDEA, thereby causing an “injury-in-fact.” Blackman v. District of Columbia, 277 F. Supp. 2d 71, 80 (D.D.C. 2003) (failure to provide timely due process constitutes per se harm to students); Brandon A., ex rel David A. v. Donahue, 2001 WL 920063, at *5 (D.N.H. Aug. 8, 2001) (failure to provide timely impartial hearing process and determination within 45 days violated plaintiff’s substantive rights under IDEA and conferred standing). Similarly, the Court denied defendants’ argument that any claims asserted byVSG, AD, NA, YG, LO, RD, HR, AP and RLB were mooted once they received full payment following thecommencement of this action. (Defs.’ Mem. in Supp. of Mot. to Dismiss at 13.) The Court concluded that defendants’ conduct fell within the “capable of repetition, yet evading review” exception,see Spencer v. Kemna, 523 U.S. 1, 17 (1998), such that there exists a “reasonable expectation” that plaintiffs could be subject to the same conduct again based on (1) plaintiffs’ continued eligibility for educational services under the IDEA; (2) the nature of their disabilities; and (3) allegations that the delaysare due to defendants’ systemic failure to ensure timely enforcement. See Honig v. Doe, 484 U.S. 305, 319-20 (1988); Heldman on behalf of T.H. v. Sobol, 962 F.2d 148, 157 (2d Cir. 1992) (finding that plaintiff’s claims under IDEA were not moot even though child was no longer placed in school because “the threat of future denial of an impartial hearing [was] sufficiently real”).
10

Case 1:03-cv-09917-LAP-KNF Document 80 Filed 09/19/05 Page 11 of 16
Restraining Order ¶ 3.) Plaintiffs respond that the claims asserted in these actions are distinct from one another, such that res judicata is inapp licable. (Pls.’ Reply Mem. at 4.)
The preclusive effect of Jose P. on certain claims asserted now in this action depends on “whether the same transaction or connected series of transactions is at issue, whether the same evidence is needed to support b oth claims, and whether the facts essential to the second were present in the first.” Monahan v. New York City Department of Correction, 214 F.3d 275, 289 (2d Cir. 2000) (internal citations omitted). By definition, the Jose P. class includes:
all handicapped children between the ages of five and twenty-one living in New York City who the Board has notified, pursuant to 8 NYCRR Section 200.5(d), may be handicapped and who have not been evaluated within thirty days or placed within sixty days of such notif ication. (Pls.’ Reply Mem. in Supp. of Mot. for Class Certification (“Pls.’ Reply Mem.”) at 5.) Jose P. involved three related actions that each alleged, in substance, that defendants had not promptly evaluated or placed disabled students in accordance with their statutory duties. Jose P., 557 F. Supp. at 1232-33. During the course of litigating Jose P., both the defendants and the Jose P. court characterized the action as “one to ensure prompt evaluation and placement.” Id. at 1239-40. Significantly, the Jose P. court explicitly excused plaintiffs from exhausting their administrative remedies in determining that it was appropriate to exercise subject matter jurisdiction over the class action. Id. at 1236. Following judgment for the plaintiffs, 5 the parties entered into several postjudgment stipulations regarding the provision of related services, including occupational
5 The parties agreed to almost every term of the judgment, which declared that d“efendants had not made available to the plaintiff class a free appropriate public education in a timely manner, thus violating the
11

Case 1:03-cv-09917-LAP-KNF Document 80 Filed 09/19/05 Page 12 of 16
therapy. (See Declaration of Janice L. Birnbaum (“Birnbaum Decl.”) and attached exhibits.) However, these stipulations focus on ensuring that students will be provided the services designated by their IEPs in a timely fashion without regard to the relief sought here—i.e., the timely provision of services guaranteed by IHO orders through New York’s administrative process. (Birnbaum Decl. ¶ 32.) To be sure, the July 28, 1988 Stipulation requires the City defendants to “create a registry of related services providers to be sent to parents of handicapped children who are not receiving related services in order to facilitate the ability of the parent to obtain these services for his or her child at Board expense.” (Id., Ex. C ¶ 30(h).) Yet nothing in this stipulation indicates that it extends beyond the individual placement process or, more importantly, provides the exclusive remedies regarding any deficiencies in the appellate process by which such placements are to be contested. See Louis M., 113 F.R.D. at 138 (certifying class of disabled children challenging the adequacy of New York’s appellate process by which they could contest their removal from the public school system and construing Jose P. to be limited to the individual placement process). Indeed, informational guides and materials sent by defendants informing parents of their rights clearly indicate that, notwithstanding any relief provided by Jose P., “parents have the right to pursue impartial hearings and seek relief without limitation.” (Pls.’ Reply Mem. at 6; Birnbaum Decl., Ex. A ¶ 22; Declaration of Elisa Hyman (“Hyman Decl.”), Ex E.) Accordingly, the Court concludes that SS’s claims on behalf of AR are not barred by res judicata.
requirements of federal and New York law and regulations, and that defendants had the responsibility to make available on a timely basis such a free appropriate public education with appropriate related services in the least restrictive environment for the children in the class.” Jose P., 557 F. Supp. at 1233.
12

Case 1:03-cv-09917-LAP-KNF Document 80 Filed 09/19/05 Page 13 of 16
Based on the foregoing, the Court finds that each of the named plaintiffs 6 is an adequate class representative in seeking system-wide relief regarding the timely enforcement of their IHO orders. Since defendants have not contested the adequacy of plaintiffs’ counsel—Advocates for Children of New York, Inc. (“Advocates for Children”) and Milbank, Tweed, Hadley and McCloy LLP (“Milbank”). The Court concludes that plaintiffs have satisfied t he adequacy component of Rule 23(a)(4).
B. Rule 23(b). Having met the requirements of Rule 23(a), plaintiffs seek to maintain the class
under Rule 23(b)(2). Defendants do not contest the applicability of Rule 23(b)(2) which provides that class actions are appropriate where:
the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole. Fed. R. Civ. P. 23(b)(2). In this instance, plaintiffs are challenging defendants’ alleged systematic failure to enforce IHO orders in a timely fashion in providing free appropriate public education to class members. The attendant remedy, therefore, is injun ctive relief, such that these claims fall within the scope of Rule 23(b)(2). Andre H., 104 F.R.D. at 612; Louis M., 113 F.3d at 137-38; Marisol A., 126 F.3d at 378.
6 Defendants’ contention that CW’s claim is meritless (Defs. Opp. Mem. at 8) is not sufficient at this stage of the litigation to establish CW’s inadequacy as a class representative. Eisen, 417 U.S. at 177.
13

Case 1:03-cv-09917-LAP-KNF Document 80 Filed 09/19/05 Page 14 of 16
C. Scope of the Class
Defendants nevertheless contend that plaintiffs’ proposed class definition is overly broad and vague. (Defs.’ Opp. Mem. at 10-12.) Specifically, defendants argue that the class should be limited to exclude claims by plaintiffs whose IHO orders were not implemented due to their own inaction or who were otherwise not i njured by lack of implementation. (Id.) To a certain extent, this argument is a reiteration of defendants’ motion to dismiss for lack of standing. As noted above, a failure to timely implement IHO orders may itself establish injury justifying injunctive relief. Blackman, 277 F.Supp.2d at 80. To the extent that defendants are simply arguing that they cannot be liable to class members for a parent’s own inaction, this bespeaks the obvious. Moreover, plaintiffs’ proposed class definition does not cast so broad a net as to include any such claim. By its terms, the class only includes those who may be denied “timely implementation.” The Court is satisfied that this unambiguously refers only to failure by the Department of Education to undertake its obliga tions to implement IHOs.
Defendants also seek to exclude from the class all persons who are also members of the class certified in Jose P. See Def. Opp. Mem. at 11. Certainly, at the most abstract level, the classes in Jose P. and LV are similar to the e xtent that each seeks to ensure the timely provision of free appropriate public education to disabled students. However, both the IDEA and New York’s statutory regime make clear that disabled children are entitled to a multi-tiered system of evaluation, placement and review in protecting their rights to free appropriate public education. Indeed, Congress saw fit to require states to provide expansive due process mechanisms allowing parents to contest inadequate IEPs in an adversarial setting. See Murphy, 297 F.3d at 197. To force plaintiffs to rely solely on
14

Case 1:03-cv-09917-LAP-KNF Document 80 Filed 09/19/05 Page 15 of 16
remedies fashioned with an eye towards improving the initial placement process would be tantamount to eroding the due process mechanisms afforded to parents in the appellate process. That certain plaintiffs may be entitled to the timely implementation of their IEPs under Jose P. does not mean, ipso facto, that they are precluded from demanding the timely implementation of their IHO orders. In light of the prior decisions and stipulations in Jose P., the Court therefore concludes that the “thrust” of the two actions are quite distinct from each other, in that Jose P. addresses the initial placement process while this case addresses the first tier of administrative review. Louis M., 113 F.R.D. at 138; see also Evans, 238 F. Supp. at 218 (certifying class where plaintiffs sought to enjoin the defendant district’s policy of authorizing nonsurgical procedures on them without medical consent despite prior certified class which sought to shut down a particular mental institution and effect broad reform in the district’s care of the mentally retarded).
CONCLUSION
The Court grants plaintiffs’ renewed motion [60] for class certification pursuant to Rule 23(a) and Rule 23(b)(2) and hereby certifies the class as follows:
all persons (1) who have obtained, or will in the future obtain, for the benefit of a child with disability, a favorable order by an IHO against, or stipulation of settlement placed on the record at an impartial due process hearing with, the Ne w York City Department of Education, or who are children with disabilities who are the beneficiaries of such order or stipulation of settlement, and (2) who fail to obtain, or are at risk of failing to obtain, full and timely implementation of such order or settlement.
15

Case 1:03-cv-09917-LAP-KNF Document 80 Filed 09/19/05 Page 16 of 16

 
 JUDGE HOLWELL

l4J 001/011

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK UNITED STATES COURTHOUSE 500 PEARL STREET NEW YORK, NEW YORK 10007-1312

RICHARD J. HOLWELL
UNITED STATES DISTRICT JUDGE
PHONE: (212) 805-0256 FAX: (212) 805-7948

FACSIMILE

Shawn V. Morehead Advocates for Children of New York 151 W. 30th Street New York, NY 10001 Tel: 212-947-9779 Fax: 212-947-9790

Date:

Decelnber 27, 2007

Pages (including cover): 11

Counsel receiving this fax is responsible for faxing or otherwise promptly delivering a copy to aU counsel and unrepresented parties.. Do not copy the Court on such fax or delivery.

holwell-stamlard

12/27/2007 13:12 FAX 212 805 7948

JUDGE IIOLWELL

[4J 002/011

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
LV, RC, AD, NA, ADJ, YG, LO, AP, RLB, RD, and JYW, individually; and VSG, HR, CW, SS, MG, MS, ST, RZ, MC and JP, on behalf of thelllseives and all others similarly situated,
Plaintiffs,

No. 03 Civ. 9917 (RJH)

-against-

NEW YORK CITY DEPARTMENT OF EDUCATION; NEW YORK CITY BOARD OF EDUCATION; JOEL KLEIN, in his individual and official capacity as Chancellor of the New York City School District,

Defendants.

PRELIMINARY ORDER FOR NOTICE AND HEARING IN CONNECTION WITH SETTLEMENT PROCEEDINGS
WHEREAS, on December 11,2007, the parties to the above-entitled action (the "Action") entered into a Stipulation and Agreement of Settlement (the "Settlement" or "Stipulation") which is subject to review under Rule 23 of the Federal Rules of Civil Procedure and which, together with the exhibits to the Stipulation, sets forth the terms and conditions for the proposed settlen1ent of the claims alleged in the Action on the merits and with prejudice; and
WHEREAS, pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure and by Memorandum and Order dated September 15,2005, the Action was certified as a class action on behalf of all persons who have obtained, or will in the future obtain, for the benefit of a child with disability, a favorable order by an impatiial hearing officer against, or stipulation of settlement placed on the record at an ilnpartial due

12/27/2007 13:13 FAX 212 805 7948

JUDGE HOLWELL

[4J 003/011

process hearing with, the New York City Department of Education, or who are children with disability who are the beneficiaries of such order or stipulation of settlement, and (2) who fail to obtain, or at risk of failing to obtain, full and timely hnplementation of such order or settlelnent; and
WHEREAS, the Court having read and considered the Stipulation and the accompanying documents; and the parties to the Stipulation having consented to the entry of this Order, as more fully set forth in the Stipulation; and all capitalized terms used herein having the meanings defined in the Stipulation;
.,1\-
NOW, THEREFORE, IT IS HEREBY ORDERED, this ~ 7 day of V<2c:e......'<>ev- ,2007 that:
1. The Class is now defined as (a) under Rule 23(b)(2), the Injunctive Relief Subclass, defined as the class of all persons who, on or subsequent to the Commencement Date, (i) obtain or obtained a favorable Order by an Impartial Hearing Officer against the DOE or stipulation of settlement placed on the record at an impartial hearing with the DOE and (ii) fail or failed to obtain full and tinlely iInplementation of such Order or settlenlent and (b) under Rule 23 (b)(3), the Compensatory Relief Subclass, defined as the class of all persons who, on or after December 13,2000 and on or before January 31, 2008, (i) have obtained a favorable Order by an Impartial Hearing Officer against the DOE or a stipulation of settlement placed on the record at an impartial hearing with the DOE and (ii) failed to obtain full and tilnely implementation of such Order or settlement.
2. Lead Plaintiffs AD, NA, YO and LO are renl0ved as Lead Plaintiffs but retain any rights they may have as class members.
2

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JUDGE HOLWELL

14l 004/011

3. A hearing (the "Settlement Fairness Hearing") pursuant to Rule 23(e) of the Federal Rules of Civil Procedure is hereby scheduled to be held before the Court on
~II' ~ \ 'i , 2008, at JJL:~ ~.m. for the following purposes:
a) to determine whether the propose.d Settlement is fair, reasonable, and adequate and should be approved by the Court;
b) to detennine whether the Order and Final Judgnlent as provided under the Stipulation should be entered, dismissing the Complaint herein, on the merits and with prejudice, and to determine whether the release by the Class of the Settled Claims, as set forth in the Stipulation, should be provided to the Released Parties;
c) to determine whether the proposed Injunctive Relief and Compensatory Relief in the Stipulation are fair and reasonable and should be approved by the Court;
d) if necessary, to consider Plaintiffs' Counsel's application for an award of attonleys' fees and expenses; and
e) to rule upon such other matters as the Court may deem appropriate. 4. The Court reserves the right to approve the Settlement with or without modification
and with or without h1l1her notice of any kind. The Court further reserves the right to enter its Order and Final Judgment approving the Stipulation and dismissing the Complaint on the merits and with prejudice regardless of whether it has awarded attorneys' fees and expenses.
5. The Court approves the form, substance, and requirements of the Notice of Proposed Settlement of Class Action, Motion for Attorneys' Fees and Settlement Fairness

3

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JUDGE HOLWELL

[4] 005/011

Hearing (the "Settlement Notice") and the Proof of Claim form, mUlexed to the Stipulation as Exhibits F mld I respectively. 6. The Court appoints The Garden City Group, Inc. as the Claims Administrator. 7. The Claims Adlninistrator shall cause the Settlenlent Notice and the Proof of ClaiIn, substantially in the forms annexed to the Stipulation, to be mailed, by first class Inail, postage prepaid, within thirty (30) calendm' days of receipt of the information described in paragraph 8, in English, to all Class Members (and their counsel, if known) who can be identified with reasonable effort. The Claims Administrator shall use its best efforts to ensure that each counsel so identified does not receive multiple Inailings. The Settlement Notice and Proof of Claim shall include a cover letter with the following statement in Urdu, Russian, Spanish, Arabic, Haitian Creole, Bengali, Chinese, and Korean: "If you received an impartial hearing order concerning a special education student that required the New York City Depmiment of Education to take action or make a payment, you may be entitled to payment andlor educational services through a proposed class action settlement. To get a copy of the Settlement Notice in [inseli language], call [insert toll free telephone nunlber]." 8, The Defendants shall, within fourteen (14) calendar days after the entry of this Preliminary Order, provide the Claims Administrator with a CD-ROM containing an electronic file, in fixed length ASCII fOlmat, Microsoft Excel format or in a Microsoft Access database table fOlmat, containing the nmnes and last known addresses of each person and their counsel, to the extent counsel appeared, who requested an impartial hearing that resulted in an Impartial Hearing Officer's order or
4

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JUDGE HOLWELL

I4l 006/011

stipulation of settlement on the record on or after Decenlber 13, 2000 and on or before the date of entry of the Preliminary Order.
9. For orders issued between the date of the entry of the Preliminary Order and January 31, 2008, the Defendants shall provide by February 14,2008 the Claims Administrator with a CD-ROM containing supplemental electronic file, in fixed length ASCII fOlmat, Microsoft Excel format or in a Microsoft Access database table format, containing the names and last known addresses of each person and their counsel, to the extent counsel appeared, who requested an impartial hearing that resulted in an Impartial Hearing Officer's order or stipulation of settlement on the record on or after the date this Prelilninary Order was entered and on or before January 31, 2008. Within ten (10) calendar days of receiving such supplemental electronic file, the Clahns Adnlinistrator shall cause the Settlement Notice and the Proof of Claim including the cover letter referenced in paragraph 7, substantially in the forms annexed hereto, to be mailed, by first class mail, postage prepaid, in English, to all Class Members (and their counsel, ifknown) identified in the supplemental electronic file.
10. In order to effectuate the obligations set forth herein with respect to the Claims Administrator, the DOE is authorized to provide the ClaiIns Administrator with student records information that is protected under the Fatnily Education Rights and Privacy Act, 20 U.S.C. § 1232g; 34 C.F.R. Part 99, such infonnation shall be used only in accordance with this order and shall not otherwise be disclosed by the Clailns Administrator.
11. The Settlelnent Notice atId the Proof of Claim shall be made available in Urdu,
5

12127/2007 13:15 FAX 212 805 7948

JUDGE HOLWELL

[4] 007 lOll

Russian, Spanish, Arabic, Haitian Creole, Bengali, Chinese, and Korean, upon telephone request to the Claims Administrator's toll-free telephone number. 12. Class Members may request a copy of their ilnpartial hearing order or stipulation of settlement on the record by calling the Claims Adlninistrators' toll-free telephone number any time before June 30, 2008. To allow the Claims Administrator to provide these requested documents, the Defendants shall, on or before February 14, 2008 provide the Claims Adlninistrator with a CD-ROM containing, in pdf format, copies of all Impartial Hearing Officers' orders or stipulations of settlement on the record entered on or after December 13,2000 and on or before January 31, 2008. 13. The Court approves the form of Publication Notice of the proposed settlement in substantially the form and content annexed to the Stipulation as Exhibit E and directs that The Garden City Group, at Defendants' expense, shall cause the Publication Notice to be published in The New York Daily News, the Brooklyn Paper, the Staten Island Advance, one Spanish language newspaper, and one Chinese language newspaper within ten days of the Inailing of the Notice pursuant to paragraph 7. Lead Plaintiffs' Counsel shall, at or before the Settlement Fairness Hearing, file with the Court proof of publication of the Publication Notice. 14. The form and content of the Settlement Notice, and the method set forth herein of notifying the Class of the Settlenlent and its tenns and conditions, meet the requirements of Rule 23 of the Federal Rules of Civil Procedure and due process, constitute the best notice practicable under the circumstances, and shall constitute due and sufficient notice to all persons and entities entitled thereto.
6

12/27/2007 13:15 FAX 212 805 7948

JUDGE HOLWELL

I4J 008/011

15. In order to be entitled to Compensatory Relief, in the event the Settlen1ent is effected in accordance with the tenns and conditions set forth in the Stipulation, each Con1pensatory Subclass Member shall take the following actions and be subject to the following conditions: a) A properly executed Proof of Claim, substantially in the form attached to the Stipulation as Exhibit I, lnust be submitted to the Claims Adlninistrator, at the Post Office Box indicated in the Notice, postInarked not later than June 30, 2008. Such deadline lnay be further extended by an order of this Court. Each Proof of Claim shall be deemed to have been submitted when postlnarked if properly addressed and mailed by first class mail, postage prepaid.
b) The Proof of Claim submitted by each Compensatory Relief Subclass Member must satisfy the following conditions: (i) it lnust be properly completed, signed and submitted in a timely manner in accordance with the provisions of the preceding subparagraph, (ii) where required, it lnust be accolnpanied by the required documentation as set forth in the Stipulation, and (iii) the Proof of Clailn must be complete and contain no material deletions or modifications of any of the printed matter contained therein and must be signed under penalty of perjury.
c) As part of the Proof of Claim, each COlnpensatory Subclass Member shall sublnit to the jurisdiction of the C0U11 with respect to the claiIn sublnitted, and shall (subject to effectuation of the Settlelnent) release all Settled Clahns as provided in the Stipulation.
16. Class Melnbers shall be bound by all detenninations and judgments in this Action, whether favorable or unfavorable.
7

12/27/2007 13:16 FAX 212 805 7948

JUDGE I-IOLWELL

l4J 009/011

17. The Court will consider COlnments and/or objections to the Settlement, including the

Injunctive Relief, the COlnpensatory Relief, or the request for attOTIleys' fees and

reilnburselnent of expenses only if such comments or objections and any supporting

papers are filed in writing with the Clerk of the Court, United States District Court,

500 Pearl Street, New York, New York 10007, and copies of all such papers are

served, on or before VV'tv. c..h ~ \

,2008, upon each of the following:

Shawn V. Morehead, Esq., Advocates for Children, 151 West 30th Street, 5th Floor,

New York, NY 10001; and Jeffrey S. Dantowitz, Esq., New York City Lavv

Department, 100 Church Street, New York, NY 10007 on behalf of the Defendants.

18. Attendance at the Settlement Fainless Hearing is not necessary; however, persons

wishing to be heard orally with regard to the approval of the proposed settlement,

including the Injunctive Relief, and Compensatory Relief, and/or the request for

attonleys' fees are required to indicate in a written submission their intention to

appear at the hearing and file such submission with the Clerk of the Court, United

States District Court, 500 Pearl Street, Nevv York, New York 10007, and copies of

all such papers must be served, on or before '{'J\ 0.."'" c..~ d.. \

, 2008, upon

each of the following: Shawn V. Morehead, Esq., Advocates for Children, 151 West

30th Street, 5th Floor, New York, NY 10001; and Jeffrey S. Dantowitz, Esq., New

York City Law Departnlent, 100 Church Street, New York, NY 10007 on behalf of

the Defendants. Persons who intend to COlnment on or object to the proposed

settlement, including the Injunctive Relief, and Conlpensatory Relief, and/or

counsel's application for an award of attolneys' fees and expenses and desire to

present evidence at the Settlement Fairness Hearing lntist include in their written

8

12/27/2007 13:16 FAX 212 805 7948

JUDGE I-IOLWELL

141 010/011

sublnissions the identity of any witnesses they may call to testify and exhibits they intend to introduce into evidence at the Settlement Fairness I-Iearing. Class Members do not need to appear at the hearing or take any other action to indicate their approval. 19. Pending final determination of whether the Settlelnent should be approved, the Lead Plaintiffs, all Class Members, and each of them, and anyone who acts or purports to act on their behalf, shall not institute, COlnmence or prosecute any action which asserts Settled Claims against any Released Party. 20. As provided in the Stipulation, Defendants lnust pay the Claims Administrator the reasonable and customary fees and costs (or such other fees and costs as may have been agreed) associated with giving notice to the Class 21. If any specified condition to the Settlement set forth in the Stipulation is not satisfied and Plaintiffs' Counsel or Defendants' Counsel elect to terminate the Settlement as provided in paragraph 39 of the Stipulation, then, in any such event, the Stipulation, including any amendnlent(s) thereof, shall be null and void, of no further force or effect, and without prejudice to any Party, and may not be introduced as evidence or referred to in any actions or proceedings by any person or entity, and each Party shall be restored to his, her or its respective position as it existed immediately prior to the execution of the StipUlation. In such event, paragraph 40 of the StipUlation shall govenl the rights of the Parties.
22. This Order shall not be construed or used as an admission, concession, or declaration by or against any Defendants of any fault, wrongdoing, breach, or liability. This Order shall not be construed or used as an admission, concession, or declaration by or
9

12/27/2007 13:17 FAX 212 805 7948

JUDGE HOLWELL

I4J 011/011

against Lead Plaintiffs or the Class that their clailns lack merit or that the relief requested in the Action is inappropriate, improper or unavailable, or as a waiver by any Party ofany defenses or claims he, she, or it Inay have.

23. The Court reserves the right to continue the Settlement Fainless Hearing without further written notice.

24. The Court retains exclusive jurisdiction over the Action to consider all further matters arising out of or connected with the Settlement.

Dated:

New York, New York
u ~ be.- d-. 7 ,2007
Q y Honorable Richard Holwell
UNITED STATES DISTRICT JUDGE

10

 
 Case 1:03-cv-09917-LAP-KNF Document 120 Filed 04/10/08 Page 1 of 6

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

LV. RC. AD. NA. ADJ. YG. LO, AP. RLB. RD. and JYW. individually; and VSG, HR, CW. SS. MG, MS, ST. RZ. MC and JP, on behalf of themselves and all others similarly situated.
Plaintiffs.

No. 03 Civ. 9917 (R1H)

-against-
NEW YORK CITY DEPARTMENT OF EDUCATION; NEW YORK CITY BOARD OF EDUCATION; JOEL KLEIN, in his individual and official capacity as Chancellor of the New York City School District.

USDCSDNY DOCUMENT
ELECTRONICALLY FILED
DOC#:
DATE FIL-E-D-:--rr-Ijt-:,:0-:)+j' -=-0gn

Defendants.

ORDER AND FINAL JUDGMENT On the 10th day of April 2008. a hearing having been held before this Court to determine: (I) whether the tenns and conditions of the Stipulation and Agreement of Settlemelll dated as of December Ii. 2007 (the "StIpulation") are fair. reasonable. and adequate for the settlement of all claims asserted by the Class I against the Defendants in the Complaint now pending in this Court under the above caption. including the releases of the Defendants and the Released Parties as provided in the Stipulation. and should be approved; (2) whether judgment should be entered dismissing the Second Amended Complaint on the merits and with prejudice; (3) whether to approve the Injunctive Relief as a fair and reasonable method to ensure Defendants' future compliance with federal, state. and local law: and (4) whether to approve the Compensatory Rei ief as a fair and reasonable method to provide compensatory relief to the members of the

All capitalized (enns used herein having the meanings set forth and defined in the StipUlation.

Case 1:03-cv-09917-LAP-KNF Document 120 Filed 04/10/08 Page 2 of 6
Compensatory Relief Subclass. The Court having considered all matters submitted to it at the hearing and otherwise; and it appearing that a notice of the hearing substantially in the form approved by the Cou11 was mailed to nil Class Members who we:'e identified with reasol1nble effort. as shown by the records compiled by the Claims Administrator. at the respective addresses set f0l1b in such records. and thal the Publication Notice substantially in the form
approved hy the Court was published in The New York Daily News, the Brooklyn Paper. ri,e
Slatell Island Advance. one Spanish language newspaper, and one Chinese language newspaper, pursuam to tbe specifications of the Coun; and the Court having considered and determined the fairness and reasonableness of the award of attorneys' fees and expenses requested,
NOW. SOLELY FOR THE PURPOSES OF THE SETTLEME~T, THE COURT FI"iDS THAT:
A. The Court has jurisdiction over the subject matter of the Action, the Lead Plaintiffs. all Class Members, and the Defendants.
B, The prerequisites for a class action under Federal Rules of Civil Procedure 23(a), (b)(2) and (b)(3) have been satisfied in that: (a) the number of Class Members is so numerous that joinder of all members thereof is impracticable; (b) there are questions of law and fact cornman to the Class; (e) the claims of the Lead Plaintiffs are lypical of the claims of the Class they seek to represent: (d) the Lead Plaintiffs have and will fairly and adequately represent the interests of the Class; (e) the questions of law and fact common to the members of the Class predominate over any questions affecting only individllal memhers of the Class; and (f) a class action is superior to other available methods for the fair and efficient adjudication of the controvep;y.
2

Case 1:03-cv-09917-LAP-KNF Document 120 Filed 04/10/08 Page 3 of 6
C. The Class. as redefined in the Stipulation to include the Compensatory Relief Subclass and the Injunctive Relief Subclass. was properly subject to certification pursuant to Fed, R. Ciy, p, 23 for the purposes of effectuating the Stipulation,
D, Notice of the proposed settlement of this Action was given to all Class Members who could be identified with reasonable effort. The form and method of notifying the Class of the proposed settlement of the action as a cia» action and of the terms and conditions of the proposed settlement met the requirements of Rule of the Federal Rules of Civil Procedure. due process, and any other applicable law, comtituted the best notice practicable onder the ClrCUl11stallces. and constituted due and sufficient notice to all persons and entities entitled thereto,
E, In entering into the Stipulation, no Party has relied on any representations or arguments by any other Pmty regarding any substantive or procedural issue in the Action,
F. The Parties and their COllllSel have complied with the requirements of the Federal Rules of Civil Procedure and all other statutes and mles relating to the prosecution. defense, and settlement of the Action as to all proceedings herein,
NOW, THEREFORE. IT IS HEREBY ORDERED THAT: I, Pursuant to Federal Rule of Civil Procedure 23. the Class is defined to include all members of the Injullctive Relief Subclass and all memhers of the Compensatory Relief Subclass who do not timely opt out pursuant to the terms of the Stipulation and the Court's prior orders, 2, The settlement set forth in the Stipulation (the "Settlement") is approved as fair. reasonable and adequate, and the Class Members and the Parties arc directed to consummate the Settlement in accordance with the terms and provisions of the StipUlation,
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3. This Action. which the Court finds was filed Oil a good faith basis in accordance with Rule II of the Federal Rules of Civil Procedure based upon all publicly available mformation. is hereby dismissed with prejudice and without costs, except as provided in the Stipulatlon. as against the Defendants.
4. Class Members and the successors and assigns of any of them, are hereby permanently barred and enjoined from instituting, commencing or prosecuting the Settled Claims against the Released Parties. The Settled Claims are hereby compromised, settled. released, cllschargcd and dismissed as against the Released Parties on the merits and with prejudice by virtue of the proceedings herein and this Order and Final Judgmcnt. Notwithstanding the provisions of this paragraph, members of the Compensatory Relief Subclass who timely opted out pursuant to the Stipulation and this Court's prior orders may pursue claims for individual relief in appropriate fora and members of the Injunctive Relicf Subclass retain their rights to seek appropriate individual relief in appropriate fora with regard to Orders issued on or after February 1, 2008.
5. The Defendants and the successors and assigns of any of them, are hereby permancntly barred and cnjoined from instituting, commencing or prosecuting the Settled Defendants' Claims. The Settled Defendants' Claims are hereby compromised, settled, released, discharged and dismissed on the merits and with prejudice by virtue of the proceedings herein and this Order and Final Judgment.
6. The Injunctive Reltef is approved as fair and reasonable. and Defendants arc ordcred to comply with the ternt:> of the Injunctive Relief ,,, 'C\ forth in the Stipulalion.
7. The Compensatory Relief is approved as fair and reasonable. and Defendants und the Claims Administrator are directed to administer the Compensatory Relief ill accordance with
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the Stipulation'" terms and provisions. l\cithcr the Parties nor their counsel shall have any liability lor any actions or inactions of the Claim:; Administrator or tile In<.lependent Auditor relating to the administration of the Seltkmcnt.
8. As 'ict fonh in the Stipulation, Plaintiffs' Counsel arc entitled to a reasonable attorneys' fee and reimbursement of expcn,es. The Partics have agreed to extend the timing of the process for attempting to negotiate an awar<.l of attorneys' fees and expenses. In the event the Panics are unable to agree on the amount of attorney,' fees and expenses within 90 days of fhe datc that Plaintiffs' Counsel serves a request for fees on Defendants' Counsel (or any later <.late to which the Parties might agree). Plaintiffs' Counsel may apply to the Court for an award of attomeys' fees and expenses.
9. Exclusive jurisdiction is hereby retained over the Parties and the Class Members for the administration, interpretation. effectuation, or enforcement of the Stipulation and this Order and Final Judgment, and including any application for fees and expenses incurred executing and enforcing the tenns of the Stipulation set forth in paragraphs 4-12, 16J-16.i, 19-20. 34.c, aad 36-42.
10. The Claims Administrator and Independent Auditor shall usc information provided by the DOE containing student records information that is protecte<.lullder the Family Education Rights and Privacy Act, 20 U.S.c. § 1232g; 34 C.F.R. Part 99. only in accordance with this Order und shall not otherwise use or disclose such information.
II. In the event that the Settlement does not become Final, (i) this Order and Final JudglllCnt shall be rendered null and void and shall be vacated tHAne pro tutU_' and (ii) the Action shall proceed as set forth in the Stipulation,
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12, Without further order of the COlIrt, the Pal1ies may agree to reawnable extcnsions of time to carry out any of the provisions of the Stipulation.
13, Thcre is no just reason for delay in the entry of this Order and Final Judgment and immediate entry by the Clerk of the Conn is expressly directed pursuant to Rule 54(b) of the Federal Rules of Civil Procedure,

Dated:

"ew York. New York

c:~ )j\ r \ ~ \--._~-~ Honorable Ri'~hardHolwell .~. - - UNITED STATES DISTRICT JUDGE

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 Case 1:03-cv-09917-LAP-KNF Document 139 Filed 03/31/10 Page 1 of 30

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

LV, et al., -agains

Plaintiffs, t-

NEW YORK CITY DEPARTMENT OF EDUCATION, et al.,
Defendants.

03 Civ. 9917 (RJH)
MEMORANDUM OPINION AND ORDER

Richard J. Holwell, District Judge: Before the Court is plaintiffs’ motion for an award of attorneys’ fees and expenses
incurred in connection with a civil rights class action. The class action resulted in a settlement that this Court approved. Defendants argue that the fees and costs requested are excessive. For the reasons below, the Court awards attorneys’ fees to plaintiffs in the amount of $1,238,403.09 and costs in the amount of $123,964.45.
BACKGROUND The Individuals with Disabilities in Education Act (“IDEA”) seeks to “ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living.” 20 U.S.C. § 1400(d)(1)(A). Among other things, it requires “school officials and parents of a disabled child to design an Individualized Education Program (‘IEP’) for each year of the child's education.” LV v. New

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York City Dept. of Educ., No. 03-9917, 2005 WL 2298173, at *1 (S.D.N.Y. Sept. 20, 2005) (citing 20 U.S.C. §§ 1401(11), 1414(d)). Under the IDEA, states must also “offer parents and disabled students procedural safeguards to challenge the decisions of local educational agencies” with respect to a child’s IEP. Id. at *1 (citing Murphy v. Arlington Central School Dist. Bd. of Educ., 297 F.3d 195, 197 (2d Cir. 2002)). New York’s procedural safeguards entitle parents to a review of their child’s IEP before an impartial hearing officer (“IHO”), as well as an administrative appeal of the IHO’s decision (“IHO order”). See N.Y. Educ. Law § 4404.
In 2003, plaintiffs brought this class action claiming that their rights had been violated by the failure of the New York City Department of Education (“DOE”) to timely implement IHO orders. They were represented by the non-profit organization Advocates for Children of New York (“AFC”) and the law firm Milbank, Tweed, Hadley & McCloy LLP (“Milbank”). The Court granted plaintiffs’ request for class certification. Later it amended the class definition to include an “injunctive relief subclass” and a “compensatory relief subclass.” After protracted discovery and extensive negotiations, the parties agreed to a settlement on December 11, 2007 that provided compensatory and injunctive relief for the two subclasses. Following a fairness hearing on April 10, 2008, the Court approved the Stipulation and Agreement of Settlement (the “Stipulation”) between the class and the defendants. The injunctive relief included a provision for the appointment of an independent auditor to monitor DOE’s success in improving the implementation of IHO orders. On March 26, 2008, the Court appointed Daylight Forensic and Advisory LLC (“Daylight”) to serve as the independent auditor.
The parties agreed in the Stipulation that defendants deserve reasonable attorneys’ fees and reimbursement of their expenses, and they agreed to try to negotiate a fee. (See Henkin Decl. Ex. A ¶¶ 41, 42.) In the event that negotiations proved fruitless, however, the Stipulation
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allowed the plaintiffs to seek an award from this Court. (Id.) After unsuccessful negotiations on this issue, the plaintiffs filed this motion for $1,590,625.25 in attorneys’ fees and $132,705.93 in expenses. They seek $1,072,724.001 for work performed by Milbank and $517.901.25 for work performed by AFC, and $130,133.29 for expenses incurred by Milbank and $2,572.64 for expenses incurred by AFC.
DISCUSSION The parties have agreed that plaintiffs are entitled to reasonable attorneys’ fees and costs. (See Stip. ¶¶ 41, 42.) It is plaintiffs’ burden to establish “with satisfactory evidence—in addition to the attorney’s own affidavits”—why their requested fee is appropriate. Chambless v. Masters, Mates & Pilots Pension Plan, 885 F.2d 1053, 1059 (2d Cir. 1989). The “starting point” for calculating a reasonable attorneys’ fee is “the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Imbeault v. Rick’s Cabaret Int’l Inc., RCI, No. 08-5458, 2009 WL 2482134, at *1 (S.D.N.Y. Aug. 13, 2009) (Lynch, J.) (quoting Hensley v. Eckerhard, 461 U.S. 424, 433 (1983)). The resulting figure is the “presumptively reasonable fee,” Arbor Hill Concerned Citizens Neighborhood Ass’n v. County of Albany, 522 F.3d 182, 183 (2d Cir. 2008), although it evidently “can be further adjusted as circumstances warrant,” McDow v. Rosado, 657 F. Supp. 2d 463, 467 (S.D.N.Y. 2009).2 Here, the defendants challenge plaintiffs’ rates and hours and raise a few other miscellaneous objections.
1 There is a minor discrepancy between Milbank’s numbers and the Court’s. Multiplying Milbank’s requested rates (as found on pages 11 and 15 of the Henkin Declaration) by its hours (as found in Exhibit D of the Henkin Declaration) yields a fee of $1,072,807.00 for Milbank. Milbank requests $1,072,724.00, which is $83.00 lower than that. The Court will apply its reductions to Milbank’s number—the lower amount. 2 This Court has discussed elsewhere the Second Circuit’s recent departure from use of the term “lodestar” in favor of the “presumptively reasonable fee.” See McDow v. Rosado, 657 F. Supp. 2d 463, 467–69 (S.D.N.Y. 2009).
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I. Rates A reasonable hourly rate is the rate a “paying client would be willing to pay.”3 Arbor
Hill, 522 F.3d at 190. In determining the rate, courts should consider, among other things, the
factors enumerated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717–19 (5th Cir. 1974), abrogated on other grounds by Blanchard v. Bergeron, 489 U.S. 87, 92–93 (1989).4
See Arbor Hill, 522 F.3d at 187. They should take into account the reality that “a paying client
wishes to spend the least amount possible to litigate the case in an effective manner.” Kahlil v.
Original Old Homestead Restaurant, Inc., 657 F. Supp. 2d 470, 475 (S.D.N.Y. 2009). Courts
may also rely on their “own knowledge of comparable rates charged by lawyers in the district.”
Robinson v. City of New York, No. 05-9545, 2009 WL 3109846, at *4 (S.D.N.Y. Sept. 29, 2009)
(Lynch, J.) (internal quotation marks and citation omitted). “[C]urrent rates, rather than
historical rates, should be applied in order to compensate for the delay in payment . . . .” LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 764 (2d Cir. 1998).5 Those rates, however, should
still take into consideration “the varying level of experience of the lawyers over the course of the
litigation.” Davis v. New York City Hous. Authority, Nos. 90-628, 92-4873, 2002 WL 31748586,
3 It bears noting that this metric is inherently inexact, and particularly so when applied to class actions, where each class member’s stake is relatively small and would never be thought to justify the rates or hours class counsel actually receive for their services. 4 The Johnson factors are: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the attorney’s customary hourly rate; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved in the case and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Johnson, 488 F.2d at 717–19. 5 Plaintiffs ask that the rates the Court awards “be increased by 5% on January 1 of each year while the Stipulation is in effect.” (Johnson Decl. ¶ 28.) The Court declines that invitation. Plaintiffs will of course be entitled to reasonable fees, at current rates, for work they perform in connection with this litigation in the future. But while as a general matter “billing rates continue to increase over time,” Wise v. Kelly, 620 F. Supp. 2d 435, 448 (S.D.N.Y. 2008), it would be a mistake to think rates will increase each year in the way plaintiffs assume. Market forces work in sometimes unpredictable ways. See, e.g., Nathan Koppel & Ashby Jones, “Billable Hour” Under Attack, Wall St. J., Aug. 24, 2009, at A1 (describing recent pressure from in-house counsel for large firms to shift to alternative fee arrangements).
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at *2 (S.D.N.Y. Dec. 6, 2002); Marisol A. v. Giuliani, 111 F. Supp. 2d 381, 387 n.2 (S.D.N.Y. 2000) (“Each attorney should receive fees based on the average of his or her level of experience over the course of the litigation, as opposed to their current level of experience.”).6
The reasonable hourly rate is determined “by reference to prevailing rates in the community for similar services by lawyers of reasonably comparable skill, expertise, and reputation.” McDonald ex rel Prendergast v. Pension Plan of the NYSA-ILA Pension, 450 F.3d 91, 97 n.6 (2d Cir. 2006) (citations and alterations omitted). The Second Circuit has said that “[t]o define markets simply by geography is too simplistic. Sometimes, legal markets may be defined by practice area.” Arbor Hill, 522 F.3d at 192. Even according to that principle, however, determining the relevant market for the legal services provided in this case is far from simple. To be sure, this was a civil rights lawsuit, which counsels in favor of awarding rates of the sort lawyers generally garner in that substantive area of practice. But civil rights lawyers, like lawyers in other areas of practice, do not all perform similar services and are not all of comparable skill, expertise, and reputation. Milbank and AFC represented a class of plaintiffs in a class action alleging systemic violations of state and federal statutes and federal constitutional
6 Without citation to any authority, plaintiffs suggest that this rule may not have survived Arbor Hill and that their lawyers should be entitled to current rates at current levels of experience, even if they only worked on this case as much less experienced lawyers. The Court sees no reason the rule would have died with Arbor Hill; nor do plaintiffs supply one. As the court put it in Davis v. New York City Housing Authority, “an attorney who starts a litigation as a first-year associate and continues with that litigation over the course of a decade, should not then be entitled to be billed out as a tenth-year associate (or lower-level partner) for the entire span of the litigation.” Davis v. New York City Hous. Authority, Nos. 90-628, 92-4873, 2002 WL 31748586, at *2 n.4 (S.D.N.Y. Dec. 6, 2002). Plaintiffs also argue that defendants’ method should not be used because “[d]efendants do not explain who they think is deserving of lower rates, why, or how such rates would be determined.” (Pltfs.’ Reply 10 n.49.) To the contrary, defendants state—presumably based on the records that plaintiffs provided to them—each attorney’s level (or levels) of experience when working on this case. (See Defs.’ Br. 21–23.) Plaintiffs do not dispute the veracity of that information. The Court will simply use the average of each attorney’s experience levels while working on the case. Where a lawyer worked on the case as a first-, second-, and third-year associate, for example, his or her level of experience will be deemed that of a second-year.
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law.7 The matter was factually and logistically challenging to say the least. It involved a substantial amount of discovery, particularly because DOE had no centralized system for documenting its implementation of IHO orders. (See Defs.’ Br. 20.) It required plaintiffs’ lawyers to collect, organize, and analyze a very large number of documents to assess how well DOE had implemented IHO orders. And it occasioned the use of statistical analysis, because during discovery defendants proposed using statistical sampling to retrieve certain representative documents without having to produce them all. In short, viewed on the spectrum of civil rights cases, this case was much more complex than the ordinary single-plaintiff lawsuit.
As the particular challenges of this litigation underscore, there are at least two overlapping markets here—one for the provision of complex class action legal services, the other for the provision of civil rights legal services. In measuring the reasonableness of plaintiffs’ hourly rates, it would be a mistake to seek guidance from one of these markets to the exclusion of the other. Accordingly, the Court finds it appropriate to look to rates courts in this district have awarded in similarly complex civil rights cases, remembering that lawyers with the skills and resources necessary to litigate this case generally command higher rates. Cf. Arbor Hill, 522 F.3d at 184 (in determining reasonable hourly rates, district court may consider, among other things, “the complexity and difficulty of the case, the available expertise and capacity of the client's other counsel (if any), [and] the resources required to prosecute the case effectively”). With these observations in mind, the Court turns to the alleged deficiencies in Milbank’s and AFC’s requested rates.
7 The action was brought pursuant to the due process clause of the Fourteenth Amendment; IDEA; 42 U.S.C. § 1983; Section 504 of the Rehabilitation Act of 1972, 29 U.S.C. § 794; and New York State Education Law §§ 4401, et seq.
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A. Milbank Lawyers Defendants contend that Milbank’s fees should be reduced because none of its attorneys
working on this case has professed to have any experience in civil rights or education law. (Defs.’ Br. 6.) Even if that is true, however, experience in the substantive field of law is only one way to assess lawyers’ skill and expertise. A class action like this one requires a large number of skills, many of them unrelated to intimate knowledge of the relevant law. See Simmonds v. New York City Dept. of Corrections, No. 06-5298, 2008 WL 4303474, at *4 (S.D.N.Y. Sept. 16, 2008) (although putative civil rights plaintiffs might be unwilling to pay a large law firm its usual rates, they might well pay a reduced rate to take advance of the firm’s “expertise in federal litigation and trial practice”). On this point Robinson v. City of New York, No. 05-9545, 2009 WL 3109846 (S.D.N.Y. Sept. 29, 2009), is instructive. There, Judge Lynch found that employment discrimination lawyers’ experience was “wholly transferable and relevant” to a civil rights case. Id at *5. The case involved no “difficult or novel issues in employment law, but rather was proved through an assiduous review of numerous records”; the skills required were “investigative and trial-oriented, not conceptual or based in expertise in substantive law.” Id. So too here, where the case’s particular complexity stemmed more from “logistical and factual” concerns, id., than from difficult legal issues. See Wise v. Kelly, 620 F. Supp. 2d 435, 446 (S.D.N.Y. 2008) (stating that the large law firm Skadden, Arps, Slate, Meagher and Flom LLP, litigating a civil rights case pro bono, was entitled to higher rates than a small civil rights firm by virtue of its “skills and experience”).
The defendants also object to Milbank’s use of the rates other large Manhattan firms charge their paying clients in calculating its own rates for this case.8 Milbank argues that these
8 Defendants separately argue that Milbank’s fees should be reduced to account for the fact it represented plaintiffs pro bono. (Defs.’ Br. 12–14.) But although Arbor Hill said that “whether [an] attorney was initially acting pro
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rates are of some relevance to show what a paying client would pay for large-firm services of the
sort they provided in this litigation—that is, representation of clients in a complex class action.
(Pltfs.’ Reply 12 n.59.) This is one guidepost for the Court in assessing rates in a class action
like this one, but it should not be untethered entirely from the civil rights litigation market. See
Arbor Hill, 522 F.3d at 184 n.2 (quoting Cohen v. W. Haven Bd. of Police Comm’rs, 638 F.2d
496, 506 (2d Cir. 1980) (“The fees that would be charged for similar work by attorneys of like
skill in the area [is] the starting point for determination of a reasonable fee award.”)); Morris v.
Eversley, 343 F. Supp. 2d 234, 247 (S.D.N.Y. 2004) (Chin, J.) (“Although one could debate
whether substantially higher rates are warranted for a corporate lawyer with the same number of
years experience as a civil rights lawyer, the fact is the markets and billing considerations are
different.”). Though the services Milbank provided in this action are in many ways comparable
to the services plaintiffs’ lawyers provide in litigating securities class actions, the Court must
also take into account the particularities of the civil rights litigation market. See Heng Chan v.
Sung Yue Tung Corp., No. 03-6048, 2007 WL 1373118, at *3 (S.D.N.Y. May 8, 2007) (“[A]
discount in fees is appropriate insofar as the market rate for civil rights litigation services is
lower than the market rate for services provided to high-profile corporate clients.”). Milbank
bono” is a factor courts should take into account in determining what a paying client would pay, Arbor Hill, 522 F.3d at 184, it also emphasized that attorneys representing clients pro bono are “not excluded from the usual approach to determining attorneys’ fees” and that a reasonable fee “does not depend on whether the attorney works at a private law firm or a public interest organization.” Id. at 184 n.2. Put differently, law firms working on a case pro bono are likely to be doing so in a market for legal services with lower rates, and courts should take that fact into account in deciding what the market is. See Simmonds, 2008 WL 4303474, at *3 (“Arbor Hill merely directs the district courts to examine all of the case-specific factors relevant to evaluating the market rate for comparable legal services.”). Reiter v. MTA New York City Transit Authority, 457 F.3d 224, 233 (2d Cir. 2006) (“courts ‘must avoid . . . decreasing reasonable fees because the attorneys conducted the litigation more as an act of pro bono publico than as an effort at securing a large monetary return’”) (quoting Blum v. Stenson, 465 U.S. 886, 895 (1984)). But, as the court in Heng Chan said, in a passage the defendants quote, “the fact that an attorney is willing to take a case pro bono is not itself a basis for reducing fees.” (Defs.’ Br. 13 (quoting Heng Chan v. Sung Yue Tung Corp., No. 036048, 2007 WL 1373118, at *3 (S.D.N.Y. May 8, 2007)).) In the same vein, that one of Milbank’s lawyers garnered an award for his pro bono service (see Defs.’ Br. 14) is not in itself a basis for reducing fees. The fact that the market for pro bono litigation services is different from that for private litigation services is important, but Milbank has already accounted for it by discounting its rates. (See Pltfs.’ Br. 18.)
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candidly recognizes this distinction and has itself proposed a rate structure that is markedly below that charged to its normal fee-paying clients.
Defendants, however, contend that Milbank’s rates are still too high, and that rates charged in other civil rights cases are the only useful points of comparison regardless of their level of complexity or the kinds of skills and resources required to litigate them.9 As defendants have recognized, this was a “complex class action”10 (Henkin Decl. Ex. 2 at 2), and Milbank was able to supply “superior resources,” “larger staff,” and “experience with class actions” (Defs.’ Br. 6). The need for such resources and experience reflects the difficulty of this case relative to many other civil rights cases defendants cite in their brief. Compare Yea Kim v. 167 Nail Plaza, Inc., No. 05-8560, 2009 WL 77876 (S.D.N.Y. Jan. 12, 2009) (“procedurally simple” case), and Reiter v. Metro. Transportation Authority, No. 01-2762, 2007 WL 2775144 (S.D.N.Y. Sept. 25, 2007) (case brought by single plaintiff, only one of whose claims survived summary judgment) (Gorenstein, M.J.), with Adorno v. Port Authority of New York and New Jersey, --- F. Supp. 2d ---, 2010 WL 582045, at *4 (S.D.N.Y. Feb. 19, 2010) (Chin, J.) (awarding lead partner $550 per hour where the “case was a complex and difficult one, involving alleged discrimination and retaliation in the Port Authority Police Department, and a high level of skill was required”), and Wise, 620 F. Supp. 2d at 445 (awarding partner $425 per hour in a putative class action because the “case has been considerably more difficult and complex than the average civil rights case. . . . [It] has always been a putative class—with a Morell claim—challenging city-wide enforcement practices”). Complex cases may require more resources and different skills than civil rights
9 Defendants rely, for example, on Yea Kim v. 167 Nail Plaza, Inc., No. 05-8560, 2009 WL 77876 (S.D.N.Y. Jan. 12, 2009), which the court described as “procedurally simple in comparison with many wage or employment cases.” Id. at *1. 10 Now defendants attempt to frame the case as presenting a “rather straightforward” issue. But they admit that a considerable amount of discovery was involved in the case. (Defs.’ Br. 20.) Contrary to defendants’ contention, the amount of time to prosecute a case, and in particular the sheer resources required to do so, may be taken into account in setting hourly rates. See Arbor Hill, 522 F.3d at 190 (“In determining what rate a paying client would be willing to pay, the district court should consider, among others, the Johnson factors . . . .”).
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lawyers working in solo practice, small firms, or non-profit organizations can feasibly supply. (See Johnson Decl. ¶ 15 (“It is unlikely that a small firm or sole practitioner could have provided AFC with the support it needed to litigate this case on behalf of Plaintiffs and the Class.”).) These kinds of services must be factored into the rate. See Heng Chan, 2007 WL 1373118, at *3 (“it is appropriate to award a relatively high hourly rate that reflects the institutional resources that made it possible for the attorneys to take on the case”); cf. Kahlil, 657 F. Supp. 2d at 476 (“[T]he fact that the wage and hour issues in this case were not particularly complex or unusual supports application of the unexceptional rate of $400 per hour for a senior lawyer with 25 years’ experience.”).11 Similarly, courts may look to rates charged by firms that are “similarly situated, including the rates of firms that are comparably sized,” Simmonds, 2008 WL 4303474, at *2 (internal quotation marks and citation omitted), although large firms’ higher overhead should not be a basis for automatically increasing the rate, McDonald, 450 F.3d at 97 n.6.12
Here, considering all the factors, the Court concludes that Milbank’s proposed rates should be subject to a further discount. The firm deserves credit for discounting those rates to reflect that civil rights lawyers charge less and that it has litigated this case pro bono; still, some of its discounted rates are notably higher than other rates courts have set for complex civil rights actions in this district. Plaintiffs cite Vilkhu v. City of New York, No. 06-2095, 2009 WL 1851019 (E.D.N.Y. June 26, 2009) for the proposition that in “non-class action cases, courts in [the Southern] [D]istrict have awarded fees of up to $600 per hour for partner time, $350 for senior associates, and $250-300 for junior and mid-level associates.” (See Pltfs.’ Br. 19.) But the rates they request for Milbank are substantially higher, between $640 and $650 an hour for
11 In Heng Chan, a Fair Labor Standards Act (“FLSA”) action brought by eleven restaurant workers against their employer, the court found that the action’s “size and complexity” justified a fee that was “quite high” compared to the market of Manhattan civil rights litigators. 2007 WL 1373118, at *3. 12 Defendants concede that “it is clear that the size of the firm is a valid consideration in setting the hourly rate,” and that “courts typically award lower fees to smaller firms than those awarded to larger firms.” (Defs.’ Br. 10.)
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partners, and up to $425 an hour for associates. Although some disparity may be justified because this is a class action and other cases cited were not, several of the “non-class action cases” to which Milbank refers were quite complicated in their own right. In Heng Chan, for example, the court awarded $450 an hour to lead counsel in an FLSA non-class action that was “unusually difficult and complex, the resources required to prosecute it immense.” 2007 WL 1373118, at *2. The case “involve[ed] a host of witnesses and parties, numerous boxes of documents, and depositions and investigations conducted in four languages.” Id. at *3.
A consideration of the totality of the circumstances leads the Court to reduce certain of Milbank’s rates, but to a lesser degree than defendants propose in their brief (Defs.’ Br. 21–23). Milbank requests that its two partners who worked on the case, Joseph Genova and Douglas Henkin, be billed at $640 and $650 per hour, respectively. (Henkin Decl. ¶ 27.) Henkin has more than sixteen years of experience as a litigator and is experienced in trying securities and complex commercial disputes. (Id. ¶ 31.) He served as supervising partner during the discovery, pre-trial, and settlement stages of this case. (Id.) Genova has been a lawyer for 33 years and a Milbank litigation partner since 1986. (Id. ¶ 32.) Along with Henkin, he served as supervising partner during the “initial stages” of this case. (Id.) Both partners request rates higher than the highest rate quoted in plaintiffs’ papers, $600 per hour. See Rozell v. Ross-Holst, 576 F. Supp. 2d 527, 546 (S.D.N.Y. 2008) (Francis, M.J.). The award in Rozell cuts in both directions: on one hand, that case was “relatively straightforward” and “did not involve multiple parties, class allegations, unique claims, or other characteristics that would tend to require counsel to charge premium rates in order to take the case on,” whereas this action did. Id. On the other, the court in Rozell awarded $600 to two attorneys each of whom had several decades of civil rights law experience; Genova and Henkin, while seasoned litigators, have less experience in this area of
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the law and overall. But defendants’ requests—$400 per hour for Genova, and $350 per hour for Henkin (Defs.’ Br. 21)—are low in light of the difficulty of this matter and low when compared to rates awarded to senior lawyers in recent complex civil rights cases in this district. See Vilkhu, 2009 WL 1851019, at *6, *9 (awarding $525 to a 1990 law school graduate with considerable civil rights experience); Robinson, 2009 WL 3109846, at *4-*5 (awarding rates as high as $500 and $450); Adorno, 2010 WL 582045, at *4 (awarding $550 to an “experienced civil rights lawyer[]” and $500 to a seasoned litigator without civil rights experience who had not appeared before the court in the case); Wise, 620 F. Supp. 2d at 447 (awarding $425 for lead counsel in an action “considerably more difficult and complex than the average civil rights case”); Rahman v. The Smith & Wollensky Restaurant Group, Inc., No. 06-6198, 2009 US. Dist. LEXIS 3510, at *4 (S.D.N.Y. Jan. 7, 2009) (Francis, M.J.) (in employment class action, awarding $535 per hour to lawyer with thirty years of employment law experience); Heng Chan, 2007 WL 1373118, at *2*3 (awarding $450 to lead counsel in “unusually difficult and complex” case); cf. Imbeault, 2009 WL 2482134, at *4 (awarding $400 to litigator with 13 years’ experience for work in a straightforward, less complex wage-and-hour case). Given these two senior lawyers’ considerable experience, the value of their firm’s resources, and the complexity of this lawsuit,13 the Court finds that $600 is a reasonable rate for both.
Milbank requests that Jeffrey Nagel, a former associate and 1994 law school graduate, be awarded a rate of $425. (Henkin Decl. ¶¶ 27, 35.) Nagel’s work on this case included coordinating discovery and drafting submissions to opposing counsel and the Court. (Id. ¶ 35.) Although plaintiffs do not specify which years he worked on the case, he was certainly a senior associate at the time (according to defendants, a “ninth and tenth year associate”). The Court
13 Plaintiffs proposed that, in light of his greater experience litigating class actions, Henkin receive $650 per hour compared to $640 for Genova. (Pltfs.’ Reply 13.) In the Court’s view, this cuts too fine.
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finds that, given Nagel’s seniority and substantive contributions, he is entitled to the rate of $375, which is consistent with rates recently awarded to comparably experienced lawyers in this district. See Vilkhu, 2009 WL 1851019, at *4, *6, *9 (describing associate rates as ranging from $200 to $350 in the Southern District, and awarding a 2001 law school graduate $400 per hour and 1997 law school graduates $450 per hour); Rozell, 576 F. Supp. 2d at 546 (awarding $350 to senior associates); Heng Chan, 2007 WL 1373118, at *4 (awarding $300 to current sixth-year associate for work performed during the previous few years); Torres v. City of New York, No. 07-3473, 2008 WL 419306, at *1 (S.D.N.Y. Feb. 14, 2008) (“The rate of $350 is not unreasonable for a lawyer of ten years’ experience.”); Simmonds, 2008 WL 4303474, at *5 (awarding $325 to 1998 law school graduate); Rahman, 2008 WL 1899938, at *4 ($350 for attorney with ten years’ experience); cf. Imbeault, 2009 WL 2482134, at *4 ($325 to eighth-year associate in straightforward wage-and-hour case).
Milbank requests a rate of $350 for several other associates: Nicole Capuano Ball, Maanit Zemel, and Matthew Gagnon, who graduated from law school in 2003; Grace Gilligan and Patricia Quilizapa, who graduated in 2004; and Paul Torres, Joshua Del Castillo, and Rachel Penski, who graduated in 2005. Plaintiffs do not contest that Ball, Gilligan, Penski, and Quilizapa performed all their work on the case as, first-, second- or third-year associates. (See Defs.’ Br. 22–23.) As a junior associate who worked on all stages of the pre-trial proceedings, and who took a deposition and assisted in taking six others, Penski is entitled to the reasonable rate of $275. See Vilkhu, 2009 WL 1851019, at *6, *9 (awarding $275 to junior associate at a well-regarded civil rights firm); Rozell, 576 F. Supp. 2d at 546 (awarding $250 to junior associates in mid-size firm specializing in civil rights employment law); Simmonds, 2008 WL 4303474, at *5 (awarding $250 to 2003 and 2004 law school graduates). As for Ball, Gilligan,
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and Quilizapa, plaintiffs provide no information about their work on the case beyond their class year. Though the Court is confident these lawyers worked ably on the case, they were less involved than Penski was (she billed close to 600 hours on the matter) and took on less responsibility (she took a deposition herself, among other things). Accordingly, Ball, Gilligan, and Quilizapa are entitled to the reasonable rate of $ 250. Torres, Del Castillo, and Zemel worked on the case only as first-years (Defs.’ Br. 22–23) and in recognition of their inexperience are awarded the lower rate of $225. See Adorno, 2010 WL 582045, at *5 (awarding $200 to 2008 law school graduate who was a “first-year lawyer during the bulk of this case”); Torres, 2008 WL 419306, at *2 (stating that “courts have awarded amounts ranging from $125 to $200 per hour for attorneys with less than three years’ experience”); Heng Chan, 2007 WL 1373118, at *4 ($200 for work a junior associate performed after admission to the bar). Gagnon played a much more extensive role in the case, working on it from his first through fifth years as an associate. (Defs.’ Br. 22.) He took two depositions, assisting in taking many others, and drafted a number of submissions to the Court and to opposing counsel. (Henkin Decl. ¶ 34.) Gagnon’s work entitles him to a rate of $300, which is in line with what junior and mid-level associates have received for their work in complex civil rights cases in this district. Vilkhu, 2009 WL 1851019, at *6, *9 (awarding $400 to 2001 law school graduate); Adorno, 2010 WL 582045, at *5 ($200 to junior associate).
Finally, Milbank requests that Andrew Hood and Jonathan Petts be awarded the rate of $250. (Henkin Decl. ¶ 27.) The lower rate reflects Hood’s and Petts’s inexperience; Hood graduated from law school in 2006, Petts in 2007. Neither performed any work on the case after admission to the bar, according to the defendants, and plaintiffs do not argue to the contrary. (Defs.’ Br. 22.) Accordingly, these two lawyers will be awarded the rate of $100 per hour for
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their work. See Heng Chan, 2007 WL 1373118, at *4 (awarding $100 hour for work performed pre-admission to the bar); Torres, 2008 WL 419306, at *2 (same).14
B. AFC Lawyers While defendants acknowledge that AFC “as an institution” was experienced in
education law and in particular the IDEA (Defs.’ Br. 6), they want the Court to reduce AFC’s rates because plaintiffs have not explained how much experience each AFC attorney had in these practice areas. (Id. 9.) They observe that some AFC attorneys “worked in large, corporate law firms or practiced in other areas prior to joining AFC.” (Id.) But as the Court has said, extensive knowledge of the relevant law is only one branch of experience; there are many others. See discussion supra Part I.A; cf. Torres, 2008 WL 419306, at *1 (finding that a lawyer’s experience in criminal law was “certainly transferable” to civil litigation for the purpose of determining her reasonable hourly rate). AFC attorneys’ prior experience in commercial litigation is easily transferable to civil rights litigation. Moreover, having examined the biographies of these attorneys, the Court notes that the AFC lawyers who worked at large firms before coming to AFC were practicing civil rights litigation on a pro bono basis while at those firms. (See Johnson Decl. ¶¶ 31, 32.) Finally, plaintiffs have now submitted additional information about the significant experience of certain AFC attorneys, including Hyman, Morehead, Waldman, and Hechtman, in education and civil rights law. (See Reply Johnson Decl. ¶¶ 6–10.) Defendants’ arguments on this point are therefore unpersuasive.
14 Defendants argue briefly that some of the work performed by Milbank attorneys—in particular, Del Castillo, Gagnon, Hood, Penski, Petts, Quilizapa, and Torres—was so simple it should be billed at paralegal rates. They cite tasks like “reviewing and coding orders, quality assurance of data entry and training regarding data entry.” (Defs.’ Br. 19.) But defendants provide no authority for billing such work at paralegal rates, and the Court’s experience is that these tasks require legal judgment that lawyers are particularly equipped to provide. That these tasks are less complex than other types of legal work is what makes them well-suited for junior associates, whose billable rates reflect their comparative inexperience.
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Defendants also contend that AFC’s requested rates are higher than is justified for an organization of its size. (Defs.’ Br. 10–11.) Plaintiffs respond that AFC set its rates by “look[ing] to the rates of other nonprofit organizations as well as small private legal practices.” (Pltfs.’ Reply 19; Shore Decl. ¶ 5.)15 But it is plaintiffs’ burden to offer evidence to the Court “in addition to the attorney’s own affidavits” why its requested fee is appropriate. Chambless, 885 F.2d at 1059; see Imbeault, 2009 WL 2482134, at *3 (plaintiffs’ counsel submitted affidavit from partner of well-regarded civil rights firm that supported their requested rates). Here, plaintiffs have supplied only an affidavit to the effect that AFC checked with other organizations to be sure its rates were consistent with theirs. (Shore Decl. ¶ 5.) That affidavit does not cite any concrete rates charged by another organization. The Court, then, will rely on the decisional law and its own experience in assessing the reasonableness of AFC’s requested rates. See Farbotko v. Clinton County of New York, 433 F.3d 204, 209 (2d Cir. 2005) (courts may take “judicial notice of the rates awarded in prior cases and [rely on their] own familiarity with the rates prevailing in the district”).
Many of the rates AFC requests are reasonable. It requests a rate of $375 for Elisa Hyman, a former executive director at AFC who graduated from law school in 1991 and has substantial experience as lead counsel in federal class action lawsuits. (Johnson Decl. ¶ 29; Reply Johnson Decl. ¶ 7.) Hyman made significant contributions to this case; she filed the complaint, drafted and argued several substantive motions, took three depositions and secondchaired others, and oversaw strategy. (Johnson Decl. ¶ 33.) Given her extensive experience and the value she added to this litigation, Hyman’s requested rate is entirely in line with recently
15 Quoting Arbor Hill, plaintiffs claim that AFC would have been justified in requesting the same rates Milbank did. (Pltfs.’ Reply 19 n.73 (quoting Arbor Hill, 522 F.3d at 184 n.2 (stating that the decision does not exclude “attorneys from non-profit organizations or attorneys from private law firms engaged in pro bono work . . . from the usual approach to determining attorneys’ fees”).) But that does not explain why AFC should be treated as a large law firm rather than a firm more comparable to it in size.
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awarded rates in this district. See Vilkhu, 2009 WL 1851019, at *6, *9 (awarding $400 to 2001 law school graduate and $450 to 1997 law school graduates); Rozell, 576 F. Supp. 2d at 546 ($350 for senior associates); Heng Chan, 2007 WL 1373118, at *4 ($400 was reasonable rate for lawyer with fifteen years’ legal experience and significant experience in complex civil rights litigation). The requested rate of $350 is reasonable for Matthew Lenaghan, a 1999 law school graduate and long-time member of AFC who drafted supporting documents relating to plaintiffs’ submissions and assisted with depositions. The same is true for Sarah Hechtman, a 1993 law school graduate with several years of experience in federal class action civil rights lawsuits. (Johnson Decl. ¶ 36.) She will be awarded her requested rate of $350. Miranda Johnson, a 2006 law school graduate, has worked on two other federal class action lawsuits while at AFC and worked throughout the settlement portion of this matter. (Id. ¶ 37.) She is entitled to her requested rate of $275. See Vilkhu, 2009 WL 1851019, at *6, *9 (awarding $275 to junior associate at a well-regarded civil rights firm); Rozell, 576 F. Supp. 2d at 546 ($250 to junior associates in mid-size firm specializing in civil rights). The plaintiffs request the rate of $225 for Maggie Moroff (law school class of 1990); defendants propose that she be awarded a rate of $50 because all she did was “return[] telephone calls.” (Defs.’ Br. 23.) As plaintiffs describe it, Moroff’s work entailed responding to class member inquiries regarding settlement and compensatory relief—work that likely required a lawyer’s skills. (Johnson Decl. ¶ 17.) In recognition of the lesser complexity of this task, they ask for a reduced rate despite the fact that Moroff has been an admitted lawyer for 19 years. The court believes Moroff’s usual rates have already been sufficiently discounted, and will award her a rate of $225. Plaintiffs also request $175 for Alice Rosenthal and Marcia Del Rios, both 2007 law school graduates. (Id. ¶ 29.) Both attorneys’ work on the case occurred just after they were admitted to the bar and entailed
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“responding to class member inquiries.” (Johnson Decl. ¶¶ 46, 47.) Although defendants argue that the work consisted mainly of telephone calls and thus should be discounted, these telephone calls “advise[d] claimants on more complex issues” that paralegals were less equipped to discuss. (Reply Johnson Decl. ¶ 13.) The Court believes that $175 is appropriate in light of recent decisions in this district. See Adorno, 2010 WL 582045, at *5; Torres, 2008 WL 419306, at *2 (stating that “courts have awarded amounts ranging from $125 to $200 per hour for attorneys with less than three years’ experience”); Heng Chan, 2007 WL 1373118, at *4 ($200 for work a first-year associate performed after admission to the bar).
The plaintiffs are also reasonable in proposing a rate of $225 for Robyn Grodner (law school class of 1999), Chris Tan (2000), Jennifer Pringle (2000), Gisela Alvarez (2001), Jana Kosberg (2001), and Erika Palmer (2004). Defendants contend that all the work billed by Grodner, Tan, Pringle, Alvarez, Kosberg, and Palmer, along with some of the work billed by Randee Waldman, should be at paralegal rates because it involved the “review and ‘coding’ of impartial hearing orders.” (Defs.’ Br. 17–18.) While this work is undoubtedly less complex than other work that lawyers often perform, it entails the use of legal judgment and, in the Court’s experience, is often suited for associates, who can perform the work faster and with less supervision than paralegals. Here, moreover, the plaintiffs have requested lower rates for Grodner, Tan, Pringle, Alvarez, Kosberg, and Palmer, in recognition of the lesser complexity of their work. Thus the Court finds that paralegal rates are not warranted and $225 is appropriate.
The other rates plaintiffs request for AFC attorneys, however, require some reduction. Plaintiffs seek a rate of $375 for Rebecca Shore, who graduated from law school in 1999, and since joining AFC in late 2008 has “overseen Plaintiffs’ monitoring and enforcement” of the injunctive relief defendants stipulated to. (Johnson Decl. ¶ 31.) Shore has the same level of
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experience as a senior associate at a large firm—indeed, that was her position before joining AFC just over a year ago—and so her rate will be adjusted to $350, in keeping with rates similarly experienced lawyers have received. Rozell, 576 F. Supp. 2d at 546 (awarding $350 to senior associates); Heng Chan, 2007 WL 1373118, at *4 (300 for sixth-year associate); Torres, 2008 WL 419306, at *1 (“The rate of $350 is not unreasonable for a lawyer of ten years’ experience.”); Simmonds, 2008 WL 4303474, at *5 ($325 to 1998 law school graduate); Rahman, 2008 WL 1899938, at *4 ($350 to attorney with eleven years’ experience). Shawn Morehead, whose requested rate is $375, has excellent experience in federal class action civil rights litigation but has only been a practicing lawyer since 2000. (Johnson Decl. ¶¶ 29, 32.) She worked on this case mainly in 2005, 2006, and 2007, as a mid-level associate. (Defs.’ Br. 23.) Accordingly, her rate will be reduced to $325. Heng Chan, 2007 WL 1373118, at *4 ($300 to sixth-year associate). Randee Waldman will be awarded the same rate; although she graduated from law school earlier than Morehead, in 1997, she worked on this case mainly in 2004, as a mid-level associate. (Johnson Decl. ¶ 29; Defs.’ Br. 23.)
C. Paralegals and Support Staff Plaintiffs request a rate of $150 per hour for Milbank’s paralegal and managing
attorneys’ office staff, and $240 an hour for the head of its managing attorneys’ office. (Pltfs.’ Reply 15–16.) Plaintiffs also request $125 for AFC paralegals’ work, and $50 for AFCL paralegals’ work that was secretarial in nature. (Id. at 16.) Defendants seek to have these rates reduced. First, they argue that work performed by Milbank’s managing attorneys’ office should be rejected entirely. (Defs.’ Br. 14.) That office performed tasks like serving, filing, and docketing papers (id.), which are “normally subsumed into an attorney’s overhead expenses” and “not generally considered recoverable.” Bridges v. Eastman Kodak Co., No. 91-7985, 1996 WL
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47304, at *7 (S.D.N.Y. Feb. 6, 1996); see Marisol A., 111 F. Supp. 2d at 390–91 (“time spent serving and filing papers . . . is not usually considered recoverable”). Accordingly, plaintiffs’ hours will be reduced by the time spent on these tasks, which yields a reduction of $11,569.50.16 Second, defendants contend that the rates requested for Milbank and AFC paralegals are excessive. But $150 is within the range of rates recently awarded for such work. See Adorno, 2010 WL 582045, at *4-*5 (awarding rate of $150); Vilkhu, 2009 WL 1851019, at *9 (awarding $125); Heng Chan, 2007 WL 1373118, at *5 (awarding fees from $50 to $150 per hour for paralegal services). If plaintiffs had provided no information about the paralegals’ levels of experience, an award at the lower end of the range might be appropriate. See Robinson, 2009 WL 3109846, at *5 (a rate at the low end of the range, $100, is justified if plaintiffs failed to provide information about paralegals’ experience); Torres, 2008 WL 419306, at *2 (with “no evidence regarding the skills, qualifications, or experience of the paralegal,” “compensation must be made near the lower end of the market range”). Here, however, plaintiffs have provided biographical information about each of AFC’s paralegals and have stated that each Milbank paralegal has a four-year college degree. (Johnson Decl. ¶¶ 52–59; Henkin Decl. ¶ 38; Genova Decl. ¶ 3.) This information, together with the prevailing rates of paralegals in the community, suffices to establish the reasonableness of the rates requested.
D. Billing Work at Paralegal Rates Recognizing that some of the work Milbank partner Genova performed in this litigation
was essentially paralegal work, plaintiffs have proposed that much of his time be billed at paralegal rates. (Henkin Decl. 11 n.10.) Claiming that many of Genova’s entries for work billed at paralegal rates are indistinguishable from entries for work billed at normal rates (see Danowitz
16 This includes work performed by Marion Turner (10.25 hours), Icsom Jones (8.8 hours), and Thomas Bivona (36.30 hours). (Danowitz Decl. Ex. A.)
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Decl. Exs. B and C), defendants want even more of Genova’s time to be billed at those reduced rates. (Defs.’ Br. 17.) This argument is overblown, but defendants are right that some tasks for which plaintiffs request Genova’s higher rate include “QC’ing” (i.e., performing quality control on) IHO orders and “work[ing] on database issues”—tasks that are elsewhere charged at paralegal rates. After reviewing the disputed entries, the Court finds that 25 percent of Genova’s hours for which normal rates are requested should billed at paralegal rates.17
II. Hours The second prong of the presumptively reasonable fee is the number of hours reasonably
expended on the action. Arbor Hill, 522 F.3d at 189–90. This is defined as the hours actually expended less “excessive, redundant, or otherwise unnecessary time.” Hensley, 461 U.S. at 434. To this end, plaintiffs’ counsel should submit contemporaneous time records that “specify, for each [timekeeper], the date, the hours expended, and the nature of the work done.” New York State Ass’n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983). It is not necessary to report “the exact number of minutes spent on each activity.” McDow, 657 F. Supp. 2d at 467. Here, plaintiffs kept such records and have submitted their daynotes to the Court.18 With the qualifications given below, these records generally contain enough specificity to enable the Court to determine their reasonableness. Defendants raise three objections to the hours submitted: (1) they are excessive because of overstaffing and duplicative work; (2) block billing and vague time entries preclude them, and the Court, from properly assessing entries’ reasonableness; and (3) travel time should be discounted by 50 percent, as is customary in this district.
17 Twenty-five percent of Genova’s hours for which normal rates are sought comes to 63.06 hours. 18 Certain secretarial work is not contained in the daynotes. Although secretaries do keep contemporaneous records of their work, they do not submit daynotes as attorneys and paralegals do. (Henkin Decl. ¶ 48.)
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A. Overstaffing and Duplicative Work District courts have “ample discretion” in “assessing the extent of staffing and
background research appropriate for a given case.” New York State Ass’n for Retarded Children, Inc., 711 F.2d at 1146 (quoting Seigal v. Merrick, 619 F.2d 160, 164 (2d Cir. 1980)). While “[t]he use of multiple attorneys . . . is not unreasonable per se,” Simmonds, 2008 WL 4303474, at *6 (quoting Williamsburg Fair Housing Comm. v. Ross-Rodney Hous., 599 F. Supp. 509, 518 (S.D.N.Y. 1984)), courts should reduce the hours actually expended to account for “duplicative or repetitive work.” Simmonds, 2008 WL 4303474, at *6. Here, given AFC and Milbank’s arrangement as co-counsel both intimately involved in the case, duplication of effort was inevitable, if unintentional. Defendants observe that during this litigation, plaintiffs used 29 attorneys, including two Milbank partners, and 19 non-legal staff. (Defs.’ Br. 26.) The staffing was certainly large, though not unjustified for a class action that involved a large number of documents and lasted several years. But the staffing led to certain inefficiencies, as, for example, that three or more plaintiffs’ attorneys often attended depositions. (Defs.’ Br. 27.) The duplication is also in evidence in the time plaintiffs’ attorneys spent in team meetings and conferences together conferring about strategy. (See id.) Milbank has already factored potential inefficiencies into its hours, cutting 359.05 hours of time for which Milbank lawyers actually billed, and writing off 209 hours of work performed by Milbank attorneys and paralegals who billed less than 20 hours on the case through June 30, 2008. (Pltfs.’ Br. 12; Henkin Decl. ¶ 24.) Milbank has also chosen to bill 132.75 hours of Genova’s time at paralegal rates despite the fact he is a seasoned Milbank litigator, because his work was similar to that later performed by paralegals in the case. (Pltfs.’ Br. 12.) Plaintiffs’ use of billing judgment recommends against another large deduction here; the Court will simply reduce plaintiffs’ hours across the board by
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an additional five percent. See Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 173 (2d Cir. 1998) (“In reducing the number of hours claimed, a court may, in its discretion, apply an across-the-board percentage reduction ‘as a practical means of trimming fat from a fee application.’”) (quoting New York Ass’n. for Retarded Children, 711 F.2d at 1146); Kahlil, 657 F. Supp. 2d at 476 (“It is well established that across-the-board reductions are appropriate when ‘billings records are voluminous’ and numerous billings entries are in dispute.”).
The defendants also object to unspecified “excessive billing” in Gagnon’s time entries and contend that the number of hours Milbank billed for deposition-related tasks (496, or 27.56 hours per deposition) was excessive. (Defs.’ Br. 27.) “Without specific references to disputed entries to guide it, this Court declines to review the voluminous record to determine which nonattorney time entries are vague, excessive, or unrelated to the litigation.” Vilkhu, 2009 WL 1851019, at *15.19 In addition, the amount of time spent preparing for depositions is unremarkable in a case where depositions routinely lasted a day and careful preparation was required.
B. Block Billing and Time Entries Block-billing, the practice “of aggregating multiple tasks into one billing entry,” is “not
prohibited.” Wise, 620 F. Supp. 2d at 450 (quoting Molefi v. Oppenheimer Trust, No. 03-5631, 2007 WL 538547, at *7 (E.D.N.Y. 2007)). Still, block-billing can make it “exceedingly difficult for courts to assess the reasonableness of the hours billed.” Id. In such circumstances courts have found it appropriate to cut hours across the board by some percentage. See Sea Spray Holdings, Ltd. v. Pali Fin. Group, Inc., 277 F. Supp. 2d 323, 325–26 (S.D.N.Y. 2003); Kirsch v.
19 Defendants cite Rozell, 576 F. Supp. 2d 527, as an example of a case where the court reduced excessive hours billed for team conferences, but there the defendants identified the amount of time they felt was excessive. Id. at 541. Here, defendants do not; they merely attach as an exhibit almost all of Gagnon’s daynotes, without any indication of which ones they find problematic. (See Danowitz Decl. Ex. E.)
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Fleet Street, Ltd., 148 F.3d 149, 173 (2d Cir. 1998) (a court may reduce a fee award because of “vagueness, inconsistencies, and other deficiencies in the billing records.”). Here, defendants ask for a reduction in hours because of what they see as pervasive block-billing and vague entries in plaintiffs’ daynotes. (Defs.’ Br. 28–30.) Although they do not itemize these problematic entries, based on the Court’s independent perusal of the daynotes, defendants’ contentions are partly justified. Many of AFC’s entries are stated in the sparest of terms—“meeting w/cocounsel,” “conference w/ c-counsel,” and so on. (See Johnson Decl. Ex. C.) These kinds of entries omit information about the subject matter of the work and have justified reductions in hours in the past. See Kirsch, 148 F.3d at 172 (upholding reduction for entries such as “letter to court,” “staff conference,” and “work on motion”); Spalluto v. Trump Int’l Hotel & Tower, No. 04-7497, 2008 WL 4525372, at *8 (S.D.N.Y. Oct. 2, 2008) (reducing hours for vague entries like “phone call(s) with client,” “prepare correspondence to co-counsel,” “prepare correspondence to client,” “conference with client,” and “prepare letter to court”); Soler v. G & U, Inc., 658 F. Supp. 1093, 1098–99 (S.D.N.Y. 1987) (reducing hours for time entries like “outline,” “writing,” “research,” “travel & research,” and “fee application”). These deficiencies justify an across-theboard cut of 12 percent in AFC’s20 hours. See Kirsch, 148 F.3d at 172–73 (upholding 20 percent reduction in billed time for vague entries, among other things); Spalluto, 2008 WL 4525372, at *9 (reducing hours by 15 percent for block billing and vague entries). As for the plaintiffs’ block-billing, the Court for the most part does not find it unreasonable, with one exception: plaintiffs’ block-billing of travel time. That issue is addressed below.
20 The Court does not reduce Milbank’s hours on this basis because its daynotes entries were generally specific as to the subject matter of the task performed.
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C. Travel Time Courts in this Circuit regularly reduce attorneys’ fees by 50 percent for travel time. See
Wilder v. Bernstein, 975 F. Supp. 276, 283–84 (S.D.N.Y. 1997); Lilly v. County of Orange, 910 F. Supp. 945, 951 (S.D.N.Y. 1996). Here, defendants challenge certain of plaintiffs’ entries that seek to bill travel time at full rates. The Court agrees that these amounts should be reduced by 50 percent. This includes travel time that is included in block-billed entries. See Robinson, 2009 WL 3109846, at *6 (“it is not appropriate to lump travel time together with fully compensable time”). For block-billed entries, the Court will allocate one hour to travel time. One hour is reasonable in light of the circumstances. (See Pltfs.’ Reply 6 (“The time to travel from AFC’s office to the courthouse, Milbank’s offices, and Defendants’ offices is approximately 30 minutes each way.”); Reply Johnson Decl. ¶ 15.) Calculating AFC attorneys’ time in this way, according to the attorneys’ awarded rates, yields a reduction of $1,812.50.21 Calculating Milbank attorneys’ time in the same way yields a reduction of $9,213.75.22
III. Fees Incurred in Connection with This Application Plaintiffs request fees in connection with the preparation of their fee application. The law
is clear that prevailing plaintiffs—which, here, defendants acknowledge that plaintiffs are (Defs.’ Br. 33)—are entitled to such fees. See Baird v. Boies, Schiller & Flexner LLP, 219 F. Supp. 2d 510, 525 (S.D.N.Y. 2002); Colbert v. Furumoto Realty, Inc., 144 F. Supp. 2d 251, 262 (S.D.N.Y. 2001) (“A prevailing party is entitled to reimbursement for the time expended in the preparation of the fee application.”); Natural Res. Def. Council, Inc. v. Fox, 129 F. Supp. 2d 666, 675 (S.D.N.Y. 2001) (“[T]he fee application is a necessary part of the award of attorney’s fees.”
21 This includes 4.7 hours of travel time for Morehead; 4.9 for Hyman; 21 for Waldman; 10 for Hechtman; and 11.7 for Johnson. (See Reply Johnson Decl. Ex. A.) 22 Ball, Henkin, and Penski block-billed travel time with other tasks. The Court finds it appropriate to allocate one of Ball’s hours to travel, two of Henkin’s, and 4.5 of Penski’s. (See Dantowitz Decl. Ex. F.)
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(internal quotation marks and citation omitted)). Nevertheless, defendants assert that if the Court reduces plaintiffs’ total requested fee, it should also deny plaintiffs’ fees relating to the application. Defendants’ rationale is that plaintiffs proposed unreasonable rates during negotiations and, unless they have to pay for this fee application, future plaintiffs will have no incentive to negotiate in good faith prior to applying to a court for fees. That is not the law, and, even if it were, defendants’ argument suffers from a logical flaw. The assumption that plaintiffs’ fee requests were unreasonable, but that defendants’ were not, does not follow from the Court’s award of a reduced fee—particularly here, where many of defendants’ own requests have been denied. Because plaintiffs prevailed, they are entitled to fees on their application. See Mugavero v. Arms Acres, Inc., No. 03-5724, 2010 WL 451045, at *11 & n.12 (S.D.N.Y. Feb. 9, 2010) (awarding application fees to plaintiff even though the total fee award was less than plaintiff had requested).
IV. Presumptively Reasonable Fee Multiplying the reasonable hourly rates for plaintiffs’ lawyers by the reasonable hours
expended yields a presumptively reasonable fee of $1,238,403.09. No adjustments are required, although a few words should be said about the degree of plaintiffs’ success. Defendants argue in passing that that success has been overstated (they do not go so far as to say it was in fact limited). To the extent defendants mean to request a reduction in the fee award for plaintiffs’ relative lack of success, the Court denies that request. According to plaintiffs, as of May 2009, the independent auditor had approved 213 vouchers for educational services for class claimants. (Johnson Decl. ¶ 9; Pltfs.’ Br. 4.) The vouchers were variable in amount; the majority of claimants were given $8,000 vouchers, some were given $15,000 vouchers, and a few were given vouchers for amounts less than that. (Johnson Decl. ¶ 9.) The vouchers approved so far
26

Case 1:03-cv-09917-LAP-KNF Document 139 Filed 03/31/10 Page 27 of 30
total $2,106,000. (Id.) An additional $52,146.60 in reimbursements to parents has been approved. (Id.) Defendants note, however, that the claims received so far comprise less than 2.5 percent of the entire class. (Defs.’ Br. 20.) Presumably this results partly from the nature of the case, which concerned educational issues relating to minors and stretching back to 2000. Many children may have grown up, changed school systems, or moved since then. (See Pltfs.’ Reply 8.) In any event, the injunctive relief plaintiffs secured cannot be underestimated. See Morris v. Eversley, 343 F. Supp. 2d 234, 246–47 (S.D.N.Y. 2004) (Chin, J.) (stating that “the degree of monetary success (or lack thereof) is only one factor to be considered. Courts must also consider whether the plaintiff has achieved some other measure of success” and refusing to reduce attorneys’ fees based on “limited monetary value” of recovery, where a “significant victory” with “non-monetary value” was obtained). As plaintiffs observe, the relief here includes a streamlined ability to enforce orders that have not been timely implemented. In the 2008–2009 year alone, the independent auditor identified 585 unimplemented orders and directed DOE to send non-implementation notices relating to those orders. (Pltfs.’ Reply 7–8.) For these reasons, the Court finds that no adjustment is warranted and the reasonable adjusted fee is $1,276,537.75.
V. Costs A court will generally award “those reasonable out-of-pocket expenses incurred by
attorneys and ordinarily charged to their clients.” LeBlanc-Sternberg, 143 F.3d at 763. Defendants object to the costs plaintiffs have submitted for reimbursement because the records supporting them seem excessive and are too vague. (Defs.’ Br. 34.) In general the Court does not find these charges excessive. The charges that defendants highlight—a photocopy charge on April 30, 2004 of $2,775.80 and one on June 15, 2005 of $3,707.60, for example—are reasonable in light of the sheer number of documents necessary to the case. Because this lawsuit
27

Case 1:03-cv-09917-LAP-KNF Document 139 Filed 03/31/10 Page 28 of 30
concerned whether DOE was timely implementing IHO orders, defendants, who did not maintain a central repository of documents relating to orders, produced during discovery “about 7,292 Orders, varying in length from a page or two to tens of pages, in no particular order.” (Genova Decl. 3.) Such a production generated the need for significant paper. (Id. 5.) As for the charge of vagueness, plaintiffs’ records specify the date of each expense, the lawyer responsible for incurring it, a succinct description of the expense (such as “airfreight,” photocopies,” or “printing”), the amount, and the category. (See Henkin Decl. Ex. G.) Plaintiffs’ costs should still be reduced slightly, however, because Milbank’s records are unspecific about, for example, “what[] documents were copied,” Lucky Brand Dungarees, Inc. v. Ally Apparel Resources, LLC, No. , 2009 WL 466136, at * 6 (S.D.N.Y. Feb. 25, 2009) (Dolinger, M.J.), why certain secretaries worked overtime on some days, and what messengers delivered. See United States for Use and Benefit of Evergreen Pipeline Const. Co. v. Merritt-Meridian Const. Corp., 95 F.3d 153, 173 (2d Cir. 1996) (denying recovery for lack of documentation of what was copied and the numbers of copies made). The Court will reduce Milbank’s costs by five percent on this basis. Defendants also rightly note that meals and hand deliveries are not compensable. See Lucky Brand Dungarees, Inc. v. Ally Apparel Resources, LLC, No. 05-6757, 2009 WL 466136, at * 6 (S.D.N.Y. Feb. 25, 2009) (Dolinger, M.J.) (“meals that are not required by out-of-town travel are not compensable”); Rozell, 576 F. Supp. 2d at 547 (same); V-Formation, Inc. v. Benetton Group SpA, No. 01-610, 2003 U.S. Dist. LEXIS 10223, at *6 (S.D.N.Y. June 15, 2003) (collecting Southern District cases “show[ing] that courts have generally disallowed recovery of costs for delivery expenses”). Meal expenses ($1,811.65) and messenger deliveries ($423.17) will be reduced from plaintiffs’ award.
28

Case 1:03-cv-09917-LAP-KNF Document 139 Filed 03/31/10 Page 29 of 30
The Court denies defendants’ request that secretarial costs and computerized research costs be excluded from plaintiffs’ award. Plaintiffs have averred that they ordinarily charge such costs to clients (see Henkin Decl. ¶ 41) and there is authority in this Circuit that both kinds of costs are recoverable. Marisol A., 111 F. Supp. 2d at 390 (“the work performed in furtherance of organizing the countless number of documents in this case and maintaining a litigation-related database is fully compensable”); Insinga v. Cooperatieve Centrale Raiffeisen Boerenleenbank B.A., 478 F. Supp. 2d 508, 512–13 (S.D.N.Y. 2007) (“The Second Circuit has made clear . . . that ‘charges for such online research may properly be included in a fee award.’”) (quoting Arbor Hill Concerned Citizens Neighborhood Ass’n v. County of Albany, 369 F.3d 91, 98 (2d Cir. 2004), superseded and amended on other grounds by 522 F.3d 182 (2d. Cir. 2008)).
One remaining dispute must be addressed. During discovery, the defendants proposed to use statistical sampling as an alternative to fully producing all the documents relating to their implementation of IHO orders in the regions within DOE. (Henkin Decl. 6.) In response, plaintiffs hired an expert on statistical sampling to review and respond to defendants’ sampling proposal. (Id. 7; Pltfs.’ Reply 18.) Defendants acknowledge that the Court rejected their proposal, but argue that plaintiffs should not be able to recover costs for this expert because the Court also rejected their counter-proposal. (Defs.’ Br. 35.) A “court should not disallow fees for every motion that a prevailing party did not win,” however, and lawyers may be compensated “for advancing plausible though ultimately unsuccessful arguments.” Rozell, 576 F. Supp. 2d at 538. The Court finds that expert costs were justified in this circumstance and declines to reduce plaintiffs’ award on that ground.
29

Case 1:03-cv-09917-LAP-KNF Document 139 Filed 03/31/10 Page 30 of 30

 
 Case 1:03-cv-09917-LAP-KNF Document 196 Filed 09/30/12 Page 1 of 1

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
-------x LV, et al.,

03 Civ. 9917 (LAP)

Plaintiffs,

Order

-against-
NEW YORK CITY DEPARTMENT OF EDUCATION, et al.,
Defendants. -----------x

USDCSDNY
DOCUMENT
ELECfRONICALLY FILED DOC#: ____~__~--
, DATE FILED: '1 /30 /I~

LORETTA A. PRESKA, Chief United States strict Judge:

Plaintif I motion for an award of attorneys' fees and

costs [dkt. no. 178] is GRANTED to the extent discussed at the

Court's August 20, 2012, telephone conference and as set forth

in the parties' forthcoming stipulation.

SO ORDERED.

Dated:

New York, New York
September 30, 2012

LORETTA A. PRESKA Chief U.S. District Judge

 
 Case: 1:03-cv-9917 As of: 04/24/2014 08:45 PM EDT 1 of 26
CLOSED, CASREF, ECF
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:03−cv−09917−LAP−KNF

LV et al v. New York City Department of Education et al Assigned to: Judge Loretta A. Preska Referred to: Magistrate Judge Kevin Nathaniel Fox Related Case: 1:07−cv−08323−RJH Cause: 42:1983 Prisoner Civil Rights
Plaintiff

Date Filed: 12/12/2003 Date Terminated: 04/10/2008 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

LV

represented by Elisa F. Hyman

Friedman &Moses LLP

233 Broadway, Suite 901

New York, NY 10279

(212)−732−5800

Fax: (212)−608−3280

Email: elisahyman@gmail.com

LEAD ATTORNEY

Jeffrey Lance Nagel Gibbons P.C. (NY) One Pennsylvania Plaza, 37th Floor New York, NY 10119 (212)−613−2061 Fax: (212)−554−9661 Email: jnagel@gibbonslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph S. Genova Milbank, Tweed, Hadley etc. 1 Chase Manhattan Plaza New York, NY 10005 212/530−5000 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Randee J. Waldman 151 West 30th Street 5th Floor New York, NY 10001 (212) 947−9779 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rebecca Caren Shore Advocates for Children of New York, Inc, (NYC) 151 West 30th Street, 5th Flr. New York, NY 10001 (212) 822−9574 Fax: (212) 947−9790 Email: rshore@advocatesforchildren.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sonal Patel Advocates for Children of New York, Inc, (NYC) 151 West 30th Street, 5th Flr. New York, NY 10001

Case: 1:03-cv-9917 As of: 04/24/2014 08:45 PM EDT 2 of 26

(212)−822−9541 Fax: (212)−947−9790 Email: spatel@advocatesforchildren.org LEAD ATTORNEY

Cynthia Margaret Godsoe Advocates for Children of New York, Inc, (NYC) 151 West 30th Street, 5th Flr. New York, NY 10001 (212) 947−9779 Fax: (212) 947−9790 Email: cgodsoe@advocatesforchildren.org ATTORNEY TO BE NOTICED

Jeffrey Scott Dantowitz Office of Corporation Counsel NYC 100 Church Street New York, NY 10007 212−788−0939 Fax: 212−788−8877 Email: jdantowi@law.nyc.gov ATTORNEY TO BE NOTICED

Rachel Penski Fissell Milbank, Tweed, Hadley &McCloy LLP 601 South Figueroa St. Los Angeles, CA 90017 (212)−530−5661 Fax: (212)−822−5661 Email: rpenski@milbank.com ATTORNEY TO BE NOTICED

Shawn V. Morehead Aftra Health &Retirement Funds 261 Madison Avenue New York, NY 10016 (212) 336−2000 Email: sjmorehead@yahoo.com ATTORNEY TO BE NOTICED

Plaintiff VSG

represented by Elisa F. Hyman (See above for address) LEAD ATTORNEY

Jeffrey Lance Nagel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph S. Genova (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Randee J. Waldman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sonal Patel (See above for address) LEAD ATTORNEY

Case: 1:03-cv-9917 As of: 04/24/2014 08:45 PM EDT 3 of 26

Plaintiff RC
Plaintiff AD

Cynthia Margaret Godsoe (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Scott Dantowitz (See above for address) ATTORNEY TO BE NOTICED
Rachel Penski Fissell (See above for address) ATTORNEY TO BE NOTICED
Shawn V. Morehead (See above for address) ATTORNEY TO BE NOTICED
represented by Elisa F. Hyman (See above for address) LEAD ATTORNEY
Jeffrey Lance Nagel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph S. Genova (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randee J. Waldman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sonal Patel (See above for address) LEAD ATTORNEY
Cynthia Margaret Godsoe (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Scott Dantowitz (See above for address) ATTORNEY TO BE NOTICED
Rachel Penski Fissell (See above for address) ATTORNEY TO BE NOTICED
Shawn V. Morehead (See above for address) ATTORNEY TO BE NOTICED
represented by Elisa F. Hyman (See above for address) LEAD ATTORNEY
Jeffrey Lance Nagel (See above for address)

Case: 1:03-cv-9917 As of: 04/24/2014 08:45 PM EDT 4 of 26

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph S. Genova (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Randee J. Waldman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sonal Patel (See above for address) LEAD ATTORNEY

Cynthia Margaret Godsoe (See above for address) ATTORNEY TO BE NOTICED

Jeffrey Scott Dantowitz (See above for address) ATTORNEY TO BE NOTICED

Rachel Penski Fissell (See above for address) ATTORNEY TO BE NOTICED

Plaintiff NA

represented by Elisa F. Hyman (See above for address) LEAD ATTORNEY

Jeffrey Lance Nagel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph S. Genova (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Randee J. Waldman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sonal Patel (See above for address) LEAD ATTORNEY

Cynthia Margaret Godsoe (See above for address) ATTORNEY TO BE NOTICED

Rachel Penski Fissell (See above for address) ATTORNEY TO BE NOTICED

Plaintiff YG

represented by Elisa F. Hyman (See above for address)

Case: 1:03-cv-9917 As of: 04/24/2014 08:45 PM EDT 5 of 26

LEAD ATTORNEY

Jeffrey Lance Nagel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph S. Genova (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Randee J. Waldman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sonal Patel (See above for address) LEAD ATTORNEY

Cynthia Margaret Godsoe (See above for address) ATTORNEY TO BE NOTICED

Rachel Penski Fissell (See above for address) ATTORNEY TO BE NOTICED

Plaintiff LO

represented by Elisa F. Hyman (See above for address) LEAD ATTORNEY

Jeffrey Lance Nagel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph S. Genova (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Randee J. Waldman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sonal Patel (See above for address) LEAD ATTORNEY

Cynthia Margaret Godsoe (See above for address) ATTORNEY TO BE NOTICED

Rachel Penski Fissell (See above for address) ATTORNEY TO BE NOTICED

V. Defendant

Case: 1:03-cv-9917 As of: 04/24/2014 08:45 PM EDT 6 of 26

New York City Department of Education

represented by Jeffrey Scott Dantowitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant New York City Board of Education

represented by Jeffrey Scott Dantowitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Joel Klein in his individual and official capacity as Chancellor of the New York City School District TERMINATED: 01/24/2011

represented by Emily Sweet NYC Law Department, Office of the Corporation Counsel (NYC) 100 Church Street New York, NY 10007 (212) 788−1171 Fax: (212) 788−8877 Email: esweet@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey Scott Dantowitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Dennis M. Walcott in his individual and official capacity as Chancellor of the New York City School District

Date Filed 12/12/2003
12/12/2003 12/12/2003 01/07/2004
01/07/2004
01/14/2004 01/14/2004

# Docket Text
1 COMPLAINT against Joel Klein, New York City Board of Education, New York City Department of Education. (Filing Fee $ 150.00, Receipt Number 494291)Document filed by AD, LO, LV, NA, RC, VSG, YG.(cd, ) (Entered: 12/23/2003)
SUMMONS ISSUED as to Joel Klein, New York City Board of Education, New York City Department of Education. (cd, ) (Entered: 12/23/2003)
CASE REFERRED TO Judge John G. Koeltl as possibly similar to 1:03−cv−8519. (cd, ) (Entered: 12/23/2003)
2 ENDORSED LETTER addressed to Judge John G. Koeltl from Emily Sweet dated 1/5/04. Application granted. Defendants' time to respond to the Complaint is extended to 1/22/04. (Signed by Judge John G. Koeltl on 1/5/04) (sac, ) (Entered: 01/16/2004)
Set Answer Due Date purs. to 2 Endorsed Letter as to Joel Klein answer due on 1/22/2004; New York City Board of Education answer due on 1/22/2004; New York City Department of Education answer due on 1/22/2004. (sac, ) (Entered: 01/16/2004)
CASE DECLINED AS NOT SIMILAR. Case referred as similar to 1:03−cv−8519 and declined by Judge John G. Koeltl and returned to wheel for assignment. (gf, ) (Entered: 01/20/2004)
3 NOTICE OF CASE ASSIGNMENT to Judge Richard J. Holwell. Judge Unassigned no longer assigned to the case. (gf, ) (Entered: 01/20/2004)

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01/14/2004 01/14/2004
01/14/2004 01/29/2004
01/29/2004 01/29/2004 02/05/2004
02/05/2004 02/05/2004 02/05/2004 02/05/2004 02/05/2004 02/05/2004 02/10/2004 02/19/2004

Magistrate Judge Kevin N. Fox is so designated. (gf, ) (Entered: 01/20/2004)
4 FIRST AMENDED COMPLAINT amending 1 Complaint against Joel Klein, New York City Board of Education, New York City Department of Education.Document filed by AD, LO, LV, NA, RC, VSG, YG. Related document: 1 Complaint filed by AD, LV, VSG, RC, NA, YG, LO.(tp, ) Modified on 1/20/2004 (tp, ). (Entered: 01/20/2004)
Set Answer Due Date re: 4 Amended Complaint, as to Joel Klein answer due on 1/26/2004; New York City Board of Education answer due on 1/26/2004; New York City Department of Education answer due on 1/26/2004. (tp, ) (Entered: 01/20/2004)
5 CERTIFICATE OF SERVICE of MEMO ENDORSED LETTER DATED JANUARY 28, 2004 served on ELISA AYMAN, ESQ. and SONAL PATEL, ESQ. on 1/28/04. Service was made by FAX. Document filed by Joel Klein, New York City Board of Education, New York City Department of Education. (rw, ) (Entered: 02/04/2004)
6 ENDORSED LETTER addressed to Judge Holwell from Emily Sweet dated 1/28/2004 re: Defendants request that the time for the defendants to answer the complaint be extended to 2/9/2004. The application is granted.. (Signed by Judge Richard J. Holwell on 1/28/2004) (jsa, ) (Entered: 02/04/2004)
Set Answer Due Date purs. to 6 Endorsed Letter, as to Joel Klein answer due on 2/9/2004; New York City Board of Education answer due on 2/9/2004; New York City Department of Education answer due on 2/9/2004. (jsa, ) (Entered: 02/04/2004)
7 MOTION to Certify Class of all persons who, now and in the future, obtain a favorable order or stip of settlement through an impartial due process hearing relating to a childs idenification, evaluation, educational placement or the provision of a free appropriate public education.. (NDB). Document filed by AD, LO, LV, NA, RC, VSG, YG. Return Date set for 3/4/2004 before Richard J. Holwell. (pa, ) (Entered: 02/10/2004)
8 DECLARATION of Matthew Lenaghan in Support re: 7 MOTION to Certify Class.(NDB). Document filed by AD, LO, LV, NA, RC, VSG, YG. (pa, ) (Entered: 02/10/2004)
9 DECLARATION of Kim Sweet in Support re: 7 MOTION to Certify Class..(NDB) Document filed by AD, LO, LV, NA, RC, VSG, YG. (pa, ) (Entered: 02/10/2004)
10 DECLARATION of Michael D. Hampden in Support re: 7 MOTION to Certify Class.(NDB). Document filed by AD, LO, LV, NA, RC, VSG, YG. (pa, ) (Entered: 02/10/2004)
11 DECLARATION of Irene Hwang in Support re: 7 MOTION to Certify Class.(NDB). Document filed by AD, LO, LV, NA, RC, VSG, YG. (pa, ) (Entered: 02/10/2004)
12 DECLARATION of Elisa Hyman in Support re: 7 MOTION to Certify Class.(NDB). Document filed by AD, LO, LV, NA, RC, VSG, YG. (pa, ) (Entered: 02/10/2004)
13 MEMORANDUM OF LAW in Support re: 7 MOTION to Certify Class. (NDB). Document filed by AD, LO, LV, NA, RC, VSG, YG. (pa, ) (Entered: 02/10/2004)
14 ANSWER to Amended Complaint with JURY DEMAND. Document filed by Joel Klein, New York City Board of Education, New York City Department of Education. Related document: 4 Amended Complaint, filed by AD, LV, VSG, RC, NA, YG, LO.(gmo, ) (Entered: 02/11/2004)
15 ORDER RE SCHEDULING AND INITIAL PRETRIAL CONFERENCE:... If such a consent order is not filed within the time provided,... Initial Conference set for 3/26/2004 02:00 PM before Richard J. Holwell. (Signed by Judge Richard J. Holwell on 2/17/2004) (jsa, ) (Entered: 02/23/2004)

Case: 1:03-cv-9917 As of: 04/24/2014 08:45 PM EDT 8 of 26

02/19/2004 02/23/2004
02/23/2004 03/05/2004
03/05/2004
03/09/2004
03/09/2004 03/18/2004 03/18/2004 03/24/2004
03/26/2004
03/26/2004 03/26/2004 03/26/2004 03/30/2004 03/31/2004
03/31/2004

Set Deadlines/Hearings: Initial Conference set for 3/26/2004 02:00 PM before Richard J. Holwell. (jsa, ) (Entered: 02/23/2004)
16 ENDORSED LETTER addressed to Judge Holwell from Emily Sweet dated 2/20/2004 re: extension of time to file response to plaintiff's motion for class certification. The request is granted. Defendant's time to respond is extended to 3/3/2004. (Signed by Judge Richard J. Holwell on 2/20/2004) (jsa, ) (Entered: 02/24/2004)
Set/Reset Deadlines: Responses due by 3/3/2004 (jsa, ) (Entered: 02/24/2004)
17 MEMORANDUM OF LAW in Opposition re: 7 MOTION to Certify Class and IN SUPPORT OF DEFENDANT'S CROSS−MOTION TO DISMISS THE CLAIMS ASSERTED BY HR. Document filed by Joel Klein, New York City Board of Education, New York City Department of Education. (laq, ) (Entered: 03/09/2004)
18 CROSS−MOTION, for an Order, pursuant to FRCP 12(c), dismissing the claims asserted in this action by plaintiff HR on the ground that plaintiff HR lacks standing. Declaration of John Cahalin along with Exhibits are attached. Document filed by Joel Klein, New York City Board of Education, New York City Department of Education. (tp, ) (Entered: 03/11/2004)
19 ENDORSED LETTER addressed to Judge Holwell from Emily Sweet dated 3/3/2004 re: extension of time until 3/5/2004 to respond to plaintiff's motion for class certification. The application is granted. (Signed by Judge Richard J. Holwell on 3/8/2004) (jsa, ) (Entered: 03/11/2004)
Set Deadlines/Hearings: Responses due by 3/5/2004 (jsa, ) (Entered: 03/11/2004)
20 MEMORANDUM OF LAW in Opposition To Defendants' Motion To Dismiss And In Further Support Of Plaintiffs' Motion For Class Certification. Document filed by AD, LO, LV, NA, RC, VSG, YG. (jmi, ) (Entered: 03/22/2004)
21 DECLARATION of Sonal Y. Patel, ESQ. in Opposition To Defendants' Motion To Dismiss And In Further Support Of Plaintiffs' Motion For Class Certification. Document filed by AD, LO, LV, NA, RC, VSG, YG. (jmi, ) (Entered: 03/22/2004)
22 ENDORSED LETTER addressed to Judge Holwell from Emily Sweet dated 03/23/04 re: Granting counsel's request for a one−day extension of time for the parties to submit their joint scheduling report; (Signed by Judge Richard J. Holwell on 3/23/04) (djc, ) (Entered: 03/26/2004)
23 NOTICE OF MOTION to Intervene..permitting CW. SS. MG. ST. RZ. JP. and MC to intervene in this action and granting pltffs motion to amend the first amended complt..(nite dep. box) Document filed by AD, LO, LV, NA, RC, VSG, YG. (pa, ) (Entered: 03/29/2004)
24 MEMORANDUM OF LAW in Support re: 23 MOTION to Intervene..(nite dep. box) Document filed by AD, LO, LV, NA, RC, VSG, YG. (pa, ) (Entered: 03/29/2004)
25 MEMORANDUM OF LAW in Support of a TRO and Preliminary Injunction on behalf of CW, SS and RLB (nite dep. box). Document filed by AD, LO, LV, NA, RC, VSG, YG. (pa, ) (Entered: 03/29/2004)
26 DECLARATION of Sonal Y. Patel in Support re: 23 MOTION to Intervene..(nite dep. box) Document filed by AD, LO, LV, NA, RC, VSG, YG. (pa, ) (Entered: 03/29/2004)
Minute Entry for proceedings held before Judge Richard J. Holwell : Telephone Conference held on 3/30/2004. (pl, ) (Entered: 04/06/2004)
MEMORANDUM TO THE DOCKET CLERK: both parties appeared in the Court of USDJ Holwell. For case summary and oral argument. The Court reserves decision and a hearing is scheduled for 4/14/04 at 10:30 a.m. (db, ) (Entered: 04/05/2004)
Set Deadlines/Hearings: Oral Argument set for 4/14/2004 10:30 AM before Richard J. Holwell. (db, ) (Entered: 04/05/2004)

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04/01/2004
04/01/2004 04/01/2004
04/01/2004 04/03/2004 04/06/2004 04/06/2004 04/14/2004
04/15/2004
04/19/2004 04/21/2004
04/22/2004 04/22/2004 04/26/2004 05/05/2004 05/05/2004 05/05/2004

27 AMENDED MEMORANDUM OF LAW in Opposition to Plaintiffs' Applicatin for a Temporary Restraining Order and Preliminary Injunction on Behalf of CW, SS and RLB.. Document filed by Joel Klein, New York City Board of Education, New York City Department of Education. (djc, ) (Entered: 04/05/2004)
28 DECLARATION of Linda Wernikoff in Oppositionto Plaintiff's Motion for a TRO. Document filed by Joel Klein, New York City Board of Education, New York City Department of Education. (djc, ) (Entered: 04/05/2004)
29 DECLARATION of Emily Sweet in Opposition to Plaintiffs' Motion for a Temporary Restraining order. Document filed by Joel Klein, New York City Board of Education, New York City Department of Education. (djc, ) (Entered: 04/05/2004)
30 DECLARATION of Janice L. Birnbaum of personal facts.. Document filed by New York City Department of Education. (djc, ) (Entered: 04/05/2004)
32 DECLARATION of CW in Support of motion for a temporary restraining order and preliminary injunction. Document filed by CW. (yv, ) (Entered: 04/08/2004)
31 MEMORANDUM TO THE DOCKET CLERK: that a telephone conference was held on 3/30/04 before Judge Richard J. Howell. (pl, ) (Entered: 04/06/2004)
33 Letter addressed to Judge Richard J. Holwell from Randee Waldman, Esq. dated 4/2/04 re: plaintiff letter brief in support of motion for TRO. Document filed by AD, LO, LV, NA, RC, VSG, YG.(kw, ) (Entered: 04/08/2004)
35 ENDORSED LETTER addressed to Judge Richard J. Holwell from Elisa Hyman, Esq. dated 4/12/04. Granting parties' request that the hearing for preliminary injunction scheduled for 4/14/04 be adjourned for two weeks. (Signed by Judge Richard J. Holwell on 4/12/04) (kw, ) (Entered: 04/16/2004)
34 CERTIFICATE OF SERVICE of Order adjourning the preliminary injunction hearing served on New York City Department of Education,New York City Board of Education and Chancellor Joel Klein on 4/14/04. Service was made by facsimile. Document filed by AD, LO, LV, NA, RC, VSG, YG. (yv, ) (Entered: 04/16/2004)
36 ORDER;that a conference will be held on the issue of plaintiff?s request for expedited discovery on Thursday, 4/22/04, @2:30 p.m. in Courtroom 17B. (Signed by Judge Richard J. Holwell on 4/16/04) (pl, ) (Entered: 04/21/2004)
37 STIPULATION AND ORDER that dfts do not oppose plaintiffs' application for leave to file and serve their second amended complaint which was annexed as an exhibit to plaintiffs' and proposed intervenors' motion to intervene and amend the complaint; dfts reserve all defenses to the second amended complaint and their rights to move against the second amended complaint. (Signed by Judge Richard J. Holwell on 4/19/04) (dle, ) (Entered: 04/21/2004)
39 MEMORANDUM TO THE DOCKET CLERK: Conference held. Both parties to exchange discovery material and inform the Court of any motions that arise. Next PTC set for 5/4/04 at 2:00 p.m. (yv, ) (Entered: 04/26/2004)
Set/Reset Hearings: Pretrial Conference set for 5/4/2004 at 02:00 PM before Richard J. Holwell. (yv, ) (Entered: 04/26/2004)
38 TRANSCRIPT of proceedings held on 3/31/2004 before Judge Richard J. Holwell.(jmi, ) (Entered: 04/26/2004)
40 DECLARATION of Sally Mckay in Support re: 18 MOTION to Dismiss.. Document filed by Joel Klein, New York City Board of Education, New York City Department of Education. (jmi, ) (Entered: 05/06/2004)
41 MOTION to Dismiss. Document filed by Joel Klein, New York City Board of Education, New York City Department of Education. Return Date set for 5/27/2004 09:30 AM. (jmi, ) (Entered: 05/06/2004)
42 DECLARATION of John Cahalin in Support re: 41 MOTION to Dismiss.. Document filed by Joel Klein, New York City Board of Education, New York City Department of Education. (jmi, ) (Entered: 05/06/2004)

Case: 1:03-cv-9917 As of: 04/24/2014 08:45 PM EDT 10 of 26

05/05/2004
05/06/2004
05/06/2004 05/07/2004 05/07/2004 05/07/2004
05/13/2004 05/13/2004
05/17/2004 05/20/2004 05/20/2004 05/27/2004 06/07/2004 06/07/2004 06/14/2004 06/23/2004 06/25/2004

43 DEFENDANTS' MEMORANDUM OF LAW in Support Of Their Partial Motion To Dismiss The Second Amended Complaint. Document filed by Joel Klein, New York City Board of Education, New York City Department of Education. (jmi, ) (Entered: 05/06/2004)
44 ENDORSED LETTER addressed to Judge Richard Holwell from Emily sweet dated 5/4/04 re: granting dfts request for a brief extension of the scheduled conference; the conference is hereby adjourned to Friday, 5/7/04 @3:30 p.m.. (Signed by Judge Richard J. Holwell on 54/04) (pl, ) (Entered: 05/10/2004)
Set/Reset Scheduling Order Deadlines: Pretrial Conference reset for 5/7/2004 03:30 PM before Richard J. Holwell. (pl, ) (Entered: 05/10/2004)
Minute Entry for proceedings held before Judge Richard J. Holwell : Status Conference held on 5/7/2004. (kw, ) (Entered: 05/11/2004)
Set Deadlines/Hearings: Pretrial Conference set for 5/27/2004 03:30 PM before Richard J. Holwell. (kw, ) (Entered: 05/11/2004)
MEMORANDUM TO THE DOCKET CLERK: for proceedings held before Judge Richard J. Holwell : Status Conference held on 5/7/2004. Discovery in progress on section of students in test locations. At next conference defendants to report to the Court on their findings. Next PTC set for 5/27/04 at 3:30 p.m. (kw, ) (Entered: 05/11/2004)
45 ORDER; that the Second Amended Complaint shall be and hereby is deemed served as of 4/15/04 and filed as of 4/16/04. (Signed by Judge Richard J. Holwell on 5/12/04) (pl, ) (Entered: 05/14/2004)
46 SECOND AMENDED COMPLAINT amending 4 Amended Complaint, against Joel Klein, New York City Board of Education, New York City Department of Education.Document filed by AD, LO, LV, NA, RC, VSG, YG. Related document: 4 Amended Complaint, filed by AD, LV, VSG, RC, NA, YG, LO.(jco, ) (Entered: 05/19/2004)
48 MEMORANDUM OF LAW in Opposition re: 41 MOTION to Dismiss.. Document filed by LV. (jmi, ) (Entered: 05/21/2004)
47 DECLARATION of Matthew Lenaghan, Esq in Opposition re: 41 MOTION to Dismiss.. Document filed by LV. (jmi, ) (Entered: 05/21/2004)
49 DECLARATION of Karen Smith in Opposition re: 41 MOTION to Dismiss.. Document filed by LV. (jmi, ) (Entered: 05/21/2004)
Minute Entry for proceedings held before Judge Richard J. Holwell : Status Conference held on 5/27/2004. Discovery issues discussed. Next PTC set for 6/23/04 at 2:30 p.m. (jco, ) (Entered: 06/02/2004)
50 SUPPLEMENTAL DECLARATION of John Cahalin in Support re: 41 MOTION to Dismiss.. Document filed by Joel Klein, New York City Board of Education, New York City Department of Education. (dle, ) (Entered: 06/07/2004)
51 REPLY MEMORANDUM OF LAW in Support re: 41 MOTION to Dismiss.. Document filed by Joel Klein, New York City Board of Education, New York City Department of Education. (dle, ) (Entered: 06/07/2004)
52 NOTICE of Appearance by Joseph S. Genova, Jeffrey Lance Nagel on behalf of AD, LO, LV, NA, RC, VSG, YG (jp, ) (Entered: 06/15/2004)
Minute Entry for proceedings held before Judge Richard J. Holwell : Status Conference held on 6/23/2004. Pretrial Conference set for 7/21/2004 at 2:00 PM before Richard J. Holwell. (sac, ) (Entered: 06/25/2004)
53 ORDER; a conference shall be held before Judge Holwell on July 21, 2004, at 2:00 p.m. at which the parties will advise the Court on the status of settlement discussions and discovery. (Signed by Judge Richard J. Holwell on 06/23/04) (djc, ) (Entered: 06/30/2004)

Case: 1:03-cv-9917 As of: 04/24/2014 08:45 PM EDT 11 of 26

07/12/2004 07/21/2004 07/21/2004 08/11/2004 09/10/2004 09/16/2004
09/28/2004 09/30/2004 10/08/2004 10/22/2004
10/22/2004 10/25/2004

54 ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for General Pretrial (includes scheduling, discovery, non−dispositive pretrial motions, and settlement). Referred to Magistrate Judge Kevin Nathaniel Fox. (Signed by Judge Richard J. Holwell on 6/23/04) (ae, ) (Entered: 07/13/2004)
55 MEMORANDUM TO THE DOCKET CLERK: Status conference held on 7/21/2004. (jp, ) (Entered: 07/22/2004)
Minute Entry for proceedings held before Judge Richard J. Holwell : Status Conference held on 7/21/2004. (jp, ) (Entered: 07/22/2004)
Minute Entry for proceedings held before Judge Richard J. Holwell : Interim Pretrial Conference held on 8/11/2004. Settlement discussions ongoing. Next Pretrial Conference set for 9/10/2004 12:00 PM before Richard J. Holwell. (ja, ) (Entered: 08/12/2004)
Minute Entry for proceedings held before Judge Richard J. Holwell : Interim Pretrial Conference held on 9/10/2004. Parties are in settlement discussions; The parties will report on discussions on next conference. Next PTC set for 9/28/04 at 2:30 p.m. (jco, ) (Entered: 09/13/2004)
56 ORDER The parties shall take the following actions as directed by the Court at a 09/10/24 pretrial conference; Parties shall report to the court on 09/28/04 at 2:30 p.m regarding the status of settlement discussions. Withdrawing without prejudice re: 7 MOTION to Certify Class ; and shall re−file to include the claims of proposed intervenors CW, SS, MG MS, ST, RZ, JP and MC, whose motion to intervene is granted. The parties shall confer and propose to the Court on 09/28/04 a schedule for the expeditious completion of any necessary discovery and briefing of a re−filed motion for class certification. docmt filed by AD, LV, VSG, RC, NA, YG, LO (Signed by Judge Richard J. Holwell on 09/14/04); copies faxed by chambers (djc, ) (Entered: 09/20/2004)
Minute Entry for proceedings held before Judge Richard J. Holwell : Status Conference held on 9/28/2004. Settlement discussion ongoing; briefing schedule on plaintiff's class action motion set; parties to submit revised case management schedule. O/A hearing set for 12/7/04 at 5:00 p.m. (jco, ) (Entered: 10/04/2004)
57 SCHEDULING ORDER:Plaintiff's opening brief for the motion for clas certification shall be served and filed by 10/22/2004. Dft's Responses due by 11/17/2004. Replies due by 11/24/2004. Additional discovery deadlines are as set forth in this Order. (Signed by Judge Richard J. Holwell on 9/28/04); Copies Faxed By Chambers (pl, ) (Entered: 10/07/2004)
58 ENDORSED LETTER addressed to Judge Richard J. Holwell from Sarah Hechtman dated 10/5/04 re: the parties request an etension of time until Tuesday, 10/19 to jointly submit a proposed case management schedule. Application granted. (Signed by Judge Richard J. Holwell on Sarah Hechtman) Copies Faxed By Chambers.(sac, ) (Entered: 10/13/2004)
59 ENDORSED LETTER addressed to Judge Holwell from Emily Sweet dated 10/19/2004 re: plaintiff's motion papers for class certification to be served by 10/22/2004 ; 11/17/2004 defendants opposition papers to be served 11/24/2004 plaintiff's reply papers to be served; December Hearing date to be set: 4/30/2005 plaintiff to identify experts, 5/31/2005 defendants to identify experts 7/15/2005 notices to admit be served 11/30/2005 dispositive motions to be served 1/2006 pretrial motions to be served ; January/February 2006 trial. So ordered. (Signed by Judge Richard J. Holwell on 10/22/2004) Copy faxerd to plaintiff's counsel by chambers.(jsa, ) (Entered: 10/26/2004)
Set Deadlines/Hearings: Admissions due by 7/15/2005. Expert Witness List due by 5/31/2005. Dispositive Motions due by 11/30/2005. Ready for Trial by 1/2/2006. (jsa, ) (Entered: 10/26/2004)
60 MOTION to Certify Class of all persons who have obtained, or will in the future obtain, for the benefit of a child with a disability, a favorable order by an IHO against, or stipulation of settlement placed on the record at an impartial due process hearing with, the NYC Dept. of Education, or who are children with disabilities

Case: 1:03-cv-9917 As of: 04/24/2014 08:45 PM EDT 12 of 26

10/25/2004 11/18/2004 11/24/2004
11/24/2004 12/10/2004
12/10/2004 12/13/2004 12/13/2004 01/10/2005
01/26/2005 01/28/2005
02/05/2005 03/07/2005
03/28/2005

who are the beneficiaries of such an order or stipulation of settlement and who fail to obtain, or who are at rick of failing to obtain, full and timely implementation of such order or settlement. DECLARATIONS OF Randee J. Waldman, Jeffrey L. Nagel, Matthew Lenaghan and Elisa Hyman attached. Document filed by AD, LO, LV, NA, RC, VSG, YG. (ps, ) (Entered: 10/27/2004)
61 MEMORANDUM OF LAW in Support of Plaintiffs' re: 60 MOTION to Certify Class. Document filed by AD, LO, LV, NA, RC, VSG, YG. (ps, ) (Entered: 10/27/2004)
62 MEMORANDUM OF LAW in Opposition re: 60 MOTION to Certify Class. Declaration of Service Included. Document filed by New York City Department of Education. (Sweet, Emily) (Entered: 11/18/2004)
63 ENDORSED LETTER addressed to Judge Richard H. Holwell from Sarah Hechtman dated 11/19/04 re: request that plaintiff's reply brief be extended to 12/10/04. Application GRANTED. The hearing is adjourned to 1/7/05 at 2:00 p.m. (Signed by Judge Richard J. Holwell on 11/22/04) Copies Faxed by Chambers.(db, ) (Entered: 11/30/2004)
Set/Reset Deadlines as to 60 MOTION to Certify Class. Replies due by 12/10/2004. Motion Hearing set for 1/7/2005 at 02:00 PM before Richard J. Holwell. (db, ) (Entered: 11/30/2004)
64 ORDER that the pretrial conference scheduled for 1/7/05 at 11:00 a.m. is rescheduled to 1/7/05 at 4:00 p.m. in the courtroom of the Honorable Richard J. Holwell, Courtroom 17B, 500 Pearl Street. (Signed by Judge Richard J. Holwell on 12/2/04) Copies faxed by chambers.(dle, ) Modified on 12/14/2004 (kg, ). (Entered: 12/13/2004)
Set/Reset Hearings: Pretrial Conference set for 1/7/2005 04:00 PM before Richard J. Holwell. (dle, ) (Entered: 12/13/2004)
65 REPLY MEMORANDUM OF LAW in Support of re: 60 MOTION to Certify Class. Document filed by AD, LO, LV, NA, RC, VSG, YG. (kw, ) (Entered: 12/15/2004)
66 Declaration of Elisa Hyman, Esq. in Support re: 60 MOTION to Certify Class. Document filed by AD, LO, LV, NA, RC, VSG, YG. (kw, ) (Entered: 12/15/2004)
67 ORDER denying 41 Motion to Dismiss, denying 18 Motion to Dismiss for the reasons stated on the record on 1/6/05. Parties are directed to submit a jointly proposed, revised case management schedule by 1/21/05.. (Signed by Judge Richard J. Holwell on 1/7/05) Copies faxed by chambers.(dle, ) (Entered: 01/13/2005)
68 TRANSCRIPT of proceedings held on 1/6/05 before Judge Richard J. Holwell.(Martin, Leslie) (Entered: 01/26/2005)
70 ENDORSED LETTER addressed to Judge Richard Holwell from Sarah B. Hechtman dated 1/20/05 re: granting the parties jointly − proposed schedule; deadline for completion of fact discovery, including interrogatories, requests for production of documents and depositions of fact witness; dispositive motions to be served by 2/28/06; pretrial motions to be served by April 2006. Additional deadlines are as set forth in this endorsed letter. (Signed by Judge Richard J. Holwell on 1/20/05); (Copies faxed by chambers). (pl, ) (Entered: 02/08/2005)
69 TRANSCRIPT of proceedings held on 1/6/05 before Judge Richard J. Holwell. (kj, ) (Entered: 02/05/2005)
Minute Entry for proceedings held before Judge Richard J. Holwell : Telephone Conference held on 3/7/2005. Defendant to submit proposed schedule for production of documents relating to implementation of orders by 3/14/05. Plaintiff's response, if any due by 3/16/05. Next Tele. conf. set for 3/17/05 at 11:00 a.m. Holwell, J. USDJ (ll, ) (Entered: 03/15/2005)
Minute Entry for proceedings held before Judge Richard J. Holwell : Telephone Conference held on 3/28/2005. Parties to submit letters to the Court on sampling

Case: 1:03-cv-9917 As of: 04/24/2014 08:45 PM EDT 13 of 26

04/11/2005 05/03/2005
05/03/2005 06/06/2005
06/06/2005 06/08/2005 06/16/2005 06/17/2005 06/22/2005 06/29/2005 08/11/2005 08/11/2005 08/16/2005 08/22/2005

proposal. (cd, ) (Entered: 04/18/2005)
71 LETTER addressed to Judge Richard Holwell from Elisa Hyman dated 4/6/05 re: in response to defendants' 4/1/05 submission. Document filed by AD, NA, YG, LO, LV, VSG, RC.(kw, ) (Entered: 04/21/2005)
72 ORDER dfts are directed to submit a written proposal to provide documents responsive to plaintiffs' document requests on the basis of a randomly selected sample as further set forth in this order; the proposal shall be submitted to the court and served upon opposing counsel by 5/13/05; plaintiffs shall submit and serve written comments or a counterproposal regarding dfts' sampling methodology and proposed production schedule by 5/23/05; parties shall confer during the week of 5/23/05 as furhter set forth in this order; in the event that the parties are unable to agree upon sampling methodology; the parties shall submit separate proposals to the court by 6/6/05; dfts' objections to interrogatory no. 2 are denied; a pretrial conference shall be held on 6/15/05 at 4:00 p.m. (Signed by Judge Richard J. Holwell on 5/2/05) (dle, ) (Entered: 05/04/2005)
Set/Reset Hearings: Pretrial Conference set for 6/15/2005 04:00 PM before Richard J. Holwell. (dle, ) (Entered: 05/04/2005)
73 ENDORSED LETTER addressed to Judge Richard J. Holwell from Jeffrey S. Dantowitz dated 6/3/05 re: Application GRANTED. The conference scheduled for 6/15/05 is adjourned to 7/12/05 at 4:30 p.m. (Signed by Judge Richard J. Holwell on 6/3/05) Copies Mailed by Chambers.(db, ) Modified on 6/7/2005 (db, ). (Entered: 06/07/2005)
Set/Reset Hearings: Pretrial Conference set for 7/12/2005 04:30 PM before Richard J. Holwell. (db, ) (Entered: 06/07/2005)
74 ORDER: defendants' letter application to be relieved of their obligation under paragraph 5 of the Court's 5/2/05 Order is denied. (Signed by Judge Richard J. Holwell on 6/7/05) Copies Mailed FAXED By Chambers.(kw, ) (Entered: 06/10/2005)
75 FILING ERROR − ELECTRONIC FILING FOR NON−ECF CASE − NOTICE of Appearance by Cynthia Margaret Godsoe on behalf of all plaintiffs (Godsoe, Cynthia) Modified on 6/17/2005 (gf, ). (Entered: 06/16/2005)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − NON−ECF CASE ERROR. Note to Attorney Cynthia Godsoe to MANUALLY RE−FILE Document Notice of Appearance, Document No. 75. This case is not ECF. (gf, ) (Entered: 06/17/2005)
76 NOTICE of Appearance by Cynthia Margaret Godsoe on behalf of AD, NA, YG, LO, LV, VSG, RC (mde, ) (Entered: 06/28/2005)
Minute Entry for proceedings held before Judge Richard J. Holwell : Status Conference held on 6/29/2005. Discovery issues discussed; settlement discussed; next ptc set for 8/11/05 at 12:30 pm. (dle, ) (Entered: 07/05/2005)
MEMORANDUM TO THE DOCKET CLERK: Status conference held before Judge Richard J. Holwell. Discovery issues discussed. Next pretrial conference set for 9/21/05 at 4:00 p.m. (yv, ) (Entered: 08/15/2005)
Set Deadlines/Hearings: Pretrial Conference set for 9/21/2005 at 04:00 PM before Richard J. Holwell. (yv, ) (Entered: 08/15/2005)
77 ORDER Pretrial Conference set for 9/21/2005 04:00 PM before Richard J. Holwell in courtroom 17B, 500 Pearl Street. (Signed by Judge Richard J. Holwell on 8/11/05) (jco, ) (Entered: 08/17/2005)
78 ORDER. Defendants are directed to produce the Access Database by 9/2/05. Defendants are further directed to produce all documents relating to orders directing payment under the control of the BCA, subject to as further set forth in this Order. The parties shall submit a jointly proposed confidentiality order by 9/2/05. The parties shall set forth the agreed upon provisions, and provide alternate language for those provisions not subject to agreement (Signed by Judge Richard J.

Case: 1:03-cv-9917 As of: 04/24/2014 08:45 PM EDT 14 of 26

09/12/2005 09/19/2005
09/22/2005 09/22/2005 09/30/2005 10/11/2005 10/13/2005
10/18/2005 10/18/2005 10/31/2005 11/03/2005 11/07/2005

Holwell on 8/19/05) Copy faxed by Chambers.(yv, ) (Entered: 08/23/2005)
79 PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material.... (Signed by Judge Richard J. Holwell on 9/8/2005) Copies Mailed By Chambers.(lb, ) (Entered: 09/13/2005)
80 MEMORANDUM AND OPINION re: 60 MOTION to Certify Class filed by AD, LV, VSG, RC, NA, YG, LO. The Court grants plaintiffs' renewed motion 60 for class certification pursuant to Rule 23(a) and Rule 23(b)(2) and hereby certifies the case as set forth in this Order. The Court further appoints Advocates for Children and Milbank as class counsel pursuant to Rule 23(g)(1)(A). So Ordered. (Signed by Judge Richard J. Holwell on 9/15/05) (jco, ) Modified on 9/20/2005 (jco, ). (Entered: 09/20/2005)
81 ENDORSED LETTER addressed to Judge Richard Holwell from Shawn V. Morehead dated 9/20/05 re: Counsel writes to request that the Court reschedule the conference to 9/29/05or 10/3/05. Conference rescheduled for Thursday, October 6 at 4:30 p.m. So Ordered. (Signed by Judge Richard J. Holwell on 9/20/05) (jco, ) (Entered: 09/23/2005)
Set Deadlines/Hearings: Pretrial Conference set for 10/6/2005 04:30 PM before Judge Richard J. Holwell. (jco, ) (Entered: 09/23/2005)
82 ORDER: A Telephonic Pretrial Conference shall be held on 10/6/2005 at 12:00 PM. The plaintiff shall initiate the call to Chambers of the Honorable Richard J. Holwell. The Chambers telephone number is (212)805−0256. (Signed by Judge Richard J. Holwell on 9/29/2005) (lb, ) (Entered: 10/03/2005)
Minute Entry for proceedings held before Judge Richard J. Holwell : Telephone Conference held on 10/11/2005. The Court resolved dispute on FERPA letter; the discovery dispute schedule as follows: plaintiffs letter due 10/13/05 at 5:00 p.m. Defendants reply due 10/17/05. PTC set for10/21/05 at 1:30 p.m. (db, ) (Entered: 10/14/2005)
83 ORDER: Plaintiffs will submit a letter to the Court on the parties discovery disputes by 10/13/05 at 5:00 p.m. Defendants will submit a response by 10/17/05 at 5:00 p.m. The parties will appear for a conference on Friday 10/21/05 at 1:30 p.m. in Courtroom of the Honorable Richard J. Hilwell, Courtroom 17B, 500 Pearl Street, New York, New York 10007. (Signed by Judge Richard J. Holwell on 10/11/05) (js, ) (Entered: 10/14/2005)
84 ENDORSED LETTER addressed to Judge Richard Holwell from Elisa Hyman dated 10/13/2005 re: to request a one day extension of time to submit a letter to Your Honor, asdirected by Your Honor's order October 11, 2005..ENDORSEMENT: Application Granted. (Signed by Judge Richard J. Holwell on 10/14/2005) (jmi, ) (Entered: 10/19/2005)
85 ENDORSED LETTER: addressed to Judge Richard J. Holwell from Jeffrey S. Dantowitz dated 10/14/2005 re: defendants are requesting that the conference be adjourned until 10/24/2005. ENDORSEMENT: Application granted. Next PTC 10/24/2005 at 12:00pm. (Signed by Judge Richard J. Holwell on 10/17/2005) Copies Faxed By Chambers(lb, ) (Entered: 10/19/2005)
86 ORDER: The parties are directed to appear for a pretrial conference on 10/31/05, at 3:00 p.m., in the Courtroom of the Honorable Richard J. Holwell, Courtroom 17B, 500 Pearl Street, New York, New York 10007. (Signed by Judge Richard J. Holwell on 10/25/05) (js, ) (Entered: 10/31/2005)
Minute Entry for proceedings held before Judge Richard J. Holwell : Status Conference held on 11/3/2005. Plaintiffs are directed to advise the Court by 11/14/05 as to the date on which they will submit a counter−porposed regarding a sampling methodology. (jco, ) (Entered: 11/08/2005)
87 ORDER; plaintiffs were directed to advise the Court by 11/14/05 as to the date on which they will submit a counter−proposal regarding a sampling methodology. (Signed by Judge Richard J. Holwell on 11/3/05) (kco, ) (Entered: 11/07/2005)

Case: 1:03-cv-9917 As of: 04/24/2014 08:45 PM EDT 15 of 26

11/17/2005
01/19/2006
02/21/2006
04/04/2006
05/09/2006 06/22/2006 08/24/2006 09/27/2006 10/04/2006
10/04/2006 10/05/2006 10/06/2006 10/10/2006 11/01/2006

88 ENDORSED LETTER: addressed to Judge Richard Holwell from Shawn V. Morehead dated 11/14/05 re: Requesting an additional ten business days to inform the Court of when plaintiffs will submit a counterproposal concerning sampling in the above entitled action. Defendants consent to this extension. ENDORSEMENT: Application GRANTED. (Signed by Judge Richard J. Holwell on 11/15/05) (js, ) (Entered: 11/18/2005)
89 ENDORSED LETTER addressed to Judge Richard J. Holwell from Shawn V. Morehead dated 1/12/06 re: a request for a four week extension to complete a counterproposal. ENDORSEMENT: Extension is granted to 2/13/2006. SO ORDERED. (Signed by Judge Richard J. Holwell on 1/18/06) (kco, ) (Entered: 01/20/2006)
90 ENDORSED LETTER addressed to Judge Richard J. Holwell from Shawn V. Morehead dated 2/10/2006 re: to request a six−week adjournment of all deadlines in this matter, including the Monday, February 13,2006 deadline for submission of Plaintiffs' sampling proposal. Defendants do not oppose this request.ENDORSEMENT: Application Granted. Sampling proposal to be submitted by 3/31/2006 (Signed by Judge Richard J. Holwell on 2/16/2006) (jmi, ) (Entered: 02/21/2006)
91 ENDORSED LETTER addressed to Judge Richard J. Holwell from Shawn V. Morehead dated 3/30/2006 re: to request an extension of time. Some final materials from our expert. Extension until Friday, April 21,2006. Defnedants consent to this request. ENDORSEMENT: Application Granted. So Ordered. (Signed by Judge Richard J. Holwell on 3/30/2006) (jmi, ) (Entered: 04/04/2006)
92 ORDER: The parties will appear for A conference on Thursday, June 22, 2006 at 2:00 p.m. in the Courtroom of the Hon. Richard J. Holwell, Courtroom 17B, 500 Pearl Street, New York, New York 10007. (Signed by Judge Richard J. Holwell on 5/8/06) (js, ) (Entered: 05/09/2006)
Minute Entry for proceedings held before Judge Richard J. Holwell : Status Conference held on 6/22/2006. Case issues discussed; Next PTC set for 8/16/06 at 3:00 pm. (jmi, ) (Entered: 07/07/2006)
93 ENDORSED LETTER addressed to Judge Richard Holwell from Shawn V. Morehead dated 8/14/06. ENDORSEMENT: Conference adjourned to 9/13/06 at 3:00 p.m. (Signed by Judge Richard J. Holwell on 8/22/06) (js, ) (Entered: 08/24/2006)
94 SCHEDULING ORDER: A telephonic conference regarding the status of this matter shall be held on 10/3/2006 at 4:30 PM before Judge Richard J. Holwell. (Signed by Judge Richard J. Holwell on 9/26/06) (kco, ) (Entered: 09/28/2006)
97 ENDORSED LETTER addressed to Judge Richard J. Holwell from Jeffrey S. Dantowitz dated 9/29/2006 re: a request that the conference be rescheduled. ENDORSEMENT: Conference adjourned to 10/3/2006 at 12:00 noon. SO ORDERED. (Signed by Judge Richard J. Holwell on 9/29/06) (kco, ) (Entered: 10/06/2006)
Set Hearings: Telephone Conference is set for 10/3/2006 at 12:00 PM before Judge Richard J. Holwell. (kco, ) (Entered: 10/06/2006)
95 TRANSCRIPT of proceedings held on 9/13/06 before Judge Richard J. Holwell. (jw, ) (Entered: 10/05/2006)
96 TRANSCRIPT of proceedings held on 9/13/06 before Judge Richard J. Holwell. (jw, ) (Entered: 10/06/2006)
98 SCHEDULING ORDER: A conference will be held on 10/11/2006 at 11:00 a.m. Courtroom 17B, 500 Pearl Street, New York, New York 10007. (Signed by Judge Richard J. Holwell on 10/3/2006) Copies Faxed By Chambers.(lb, ) (Entered: 10/12/2006)
99 ORDER;... resolution of discovery matters...; On or before 11/76/06, Defendants will submit to the Court a letter that sets forth the status of the production described in Paragraph 2, including the cost and number of person hours spent. A telephonic

Case: 1:03-cv-9917 As of: 04/24/2014 08:45 PM EDT 16 of 26

11/01/2006 12/20/2006 12/22/2006
01/31/2007
01/31/2007 04/20/2007 05/07/2007
05/07/2007

status conference is schedued with the Court at 9:30 a.m. on November 8, 2006.....; See document for further discovery deadlines....; (Signed by Judge Richard J. Holwell on 10/30/06) (djc, ) (Entered: 11/02/2006)
Set Deadlines/Hearings: Status Conference set for 11/8/2006 09:30 AM before Judge Richard J. Holwell. (djc, ) (Entered: 11/02/2006)
100 ENDORSED LETTER addressed to Judge Richard J. Holwell from Jeffrey S. Dantowitz dated 12/13/06 re: a request for an informal conference with the Court to address a discovery dispute concerning the deposition of Carmen Farina. ENDORSEMENT: Application denied. The deposition of Ms. Farina should proceed at a date mutually agreeable to the witness and the parties. If no agreement is reached as to timing, the Court will set the date. SO ORDERED. (Signed by Judge Richard J. Holwell on 12/19/06) (kco, ) (Entered: 12/20/2006)
101 ENDORSED LETTER addressed to Judge Richard J. Holwell from Shawn V. Morehead dated 12/19/2006 re: to we ask that the Court postpone the January 12,2007 conference until January 26, 2007 and order Defendants to produce these documents no later than January 24, 2007. Status Conference set for 1/26/2007 09:30 AM before Judge Richard J. Holwell. ENDORSEMENT: Application granted in part. Defendants shall provide responding document relating to (e) the 24 orders for which a limited production has already been made and (b)10 additional order selected by agreement. The status conference is adjourned to 1/26/07 at 9:30 a.m. SO ORDERED. (Signed by Judge Richard J. Holwell on 12/21/2006) (jmi, ) (Entered: 12/22/2006)
102 ORDER; 1. Defendants shall begin production immediately of all documents concerning implementation of orders found in the central files of Region 9. Production shall not be delayed by defendants' ongoing analysis of the documents (other than a determination of responsiveness or privilege) or the search of documents in other locations. 2. Defendants shall submit a letter report on the status of production on 3/2/07. 3. After conferring w/ defendants, plaintiffs shall file a response on 3/7/07. 4. A telephone conference shall be held at 9:00 a.m. on 3/9/07. (Signed by Judge Richard J. Holwell on 1/29/07) (ae) (Entered: 02/01/2007)
Set Deadlines/Hearings: Telephone Conference set for 3/9/2007 09:00 AM before Judge Richard J. Holwell. (ae) (Entered: 02/01/2007)
Minute Entry for proceedings held before Judge Richard J. Holwell : Status Conference held on 4/20/2007. The Court set a bench trial for Region 9 only on 11/5/2007, upon conclusion of the bench trial the Court will issue a judgment with respect to Region 9. The parties are directed to submit a joint proposed scheduling order to ensure that documentary and expert discovery, motions in limine, and will be ready for trial on 11/5. (jp) (Entered: 05/02/2007)
103 ENDORSED LETTER addressed to Judge Richard J. Holwell from Jeffrey S. Dantowitz dated 4/30/2007 re: to defendants respectfully request that he Court either (i) impose a moratorium on further proceedings until a date certain, and direct the parties to engage in settlement discussions to be concluded by that date, or (ii) adopt the position suggested by defendants in their letter of April 9, 2007(i.e., complaint Region 9 and then proceeding to Region 5, as selected by defendants). ENDORSEMENT: Application granted. The parties are urged to engage in meaningful settlement negotiations; however, the trial date stands. SO ORDERED. (Signed by Judge Richard J. Holwell on 5/3/2007) (jmi) (Entered: 05/08/2007)
104 ENDORSED LETTER addressed to Judge Richard J. Holwell from Shawn Morehead dated 4/27/07 re: counsel for the parties request the following schedule: dfts will answer the second amended complaint dated 4/15/04 by 5/18/07; dfts will produce documents on a rolling basis; plaintiffs will serve requests for admission on a rolling basis, but no later than 8/3/07; parties will identify experts for issues on which they bear the burden of proof by 7/20/07; FRCP 26 expert disclosures shall be due 8/10/07; dfts FRCP 26 expert disclosures shall be due 8/31/07; parties shall complete fact depositions by 9/7/07; parties shall complete expert deposiitions by 9/21/07; parties shall submit a joint pretrial order to the court by 10/5/07; all other pretrial submissions will be filed by 10/15/07. So Ordered. (Signed by Judge

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05/07/2007 05/14/2007 05/17/2007 05/21/2007 05/31/2007
10/25/2007 10/25/2007 11/02/2007
12/11/2007 12/11/2007
12/28/2007

Richard J. Holwell on 5/3/07) (dle) (Entered: 05/08/2007)
Set/Reset Deadlines: Deposition due by 9/21/2007.,Pretrial Order due by 10/5/2007. (dle) (Entered: 05/08/2007)
105 TRANSCRIPT of proceedings held on 4/20/07 before Judge Richard J. Holwell. (tro) (Entered: 05/14/2007)
106 TRANSCRIPT of proceedings held on 4/20/07 before Judge Richard J. Holwell. (tro) (Entered: 05/17/2007)
107 ANSWER to Second Amended Complaint. Document filed by New York City Department of Education, New York City Board of Education.(jmi) (Entered: 05/23/2007)
108 ENDORSED LETTER addressed to Judge Richard Holwell from Douglas W. Henkin dated 5/25/2007 re: Parties jointly request that the Court adjourn the trial date no more than six weeks from the current 11/5/2007 date and that all other dates set forth in the parties joint letter of 4/27/2007 be adjouned six weeks. Endorsement: Trial is hereby adjourned four weeks to 12/3/207 and all other dates set forth in the parties' joint letter of 4/27/2007 are adjourned four weeks. No further adjournments shall be granted. (Signed by Judge Richard J. Holwell on 5/29/2007) (jar) (Entered: 06/04/2007)
Minute Entry for proceedings held before Judge David Hittner : Status Conference held on 10/25/2007; settlement nearly final. Tele/conf set for 11/20/07 at 3:00 pm. Trial date set for 1/14/08 at 10:00 am. (cd) (Entered: 11/01/2007)
Set Deadlines/Hearings: Telephone Conference set for 11/20/2007 at 03:00 PM before Judge Richard J. Holwell. (cd) (Entered: 11/01/2007)
110 ORDER: A telephonic pretrial conference set for 11/20/2007 at 03:00 PM before Judge Richard J. Holwell. The plaintiff shall initiate the call to Chambers of the Honorable Richard J. Holwell. The Chambers telephone number is (212) 805−0256. (Signed by Judge Richard J. Holwell on 10/29/2007) Copies Faxed by Chambers.(mbe) (Entered: 11/05/2007)
111 JOINT MOTION for Preliminary Approval of Settlement, MOTION FOR Approval of Notice, and Amendment of Class Definition. Document filed by AD, LV, VSG, RC.(djc) (Entered: 12/13/2007)
112 MEMORANDUM OF LAW in Support re: 111 MOTION for Preliminary Injunction. MOTION to Approve of SETTLEMENT, APPROVAL OF NOTICE, AND AMENDMENT OF CLASS DEFINITION. Document filed by AD, NA, YG, LO, New York City Department of Education, New York City Board of Education, Joel Klein, LV, VSG, RC. (djc) (Entered: 12/13/2007)
113 PRELIMINARY ORDER FOR NOTICE AND HEARING IN CONNECTION WITH SETTLEMENT PROCEEDINGS: The class is now defined as further set forth herein. Lead Plaintiffs AD, NA, YG and LO are removed as Lead Plaintiffs but retain any rights they may have as class members. A hearing pursuant to Rule 23(e) of the FRCP is hereby scheduled to be held before the Court on 4/4/08 at 10:00 a.m. The Court appoints The Garden City Group, Inc. as the Claims Administrator. For orders issued between the date of the entry of the Preliminary Order and January 31, 2008, the Defendants shall provide by 2/14/08 the Claims Administrator with a CD−ROM as further set forth in this order. The Court will consider comments and/or objections to the Settlement, including the Injunctive Relief, the Compensatory Relief, or the request for attorneys' fees and reimbursement of expenses only if such comments or objections and any supporting papers are filed in writing with the Clerk of the Court and copies of all such papers are served, on or before 3/21/08 on Shawn Morehead and Jeffrey Dantowitz on behalf of defendants. Attendance at the Settlement Fairness Hearing is not necessary, however, persons wishing to be heard orally with regard to the approval of the proposed settlement including the Injunctive Relief, and Compensatory Relief and/or the request for attorneys' fees are required to indicate in a written submission their intention to appear at the hearing and file such submission with the Clerk of the Court and copies of all such papers must be serve,

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03/26/2008
03/26/2008 03/26/2008 04/04/2008 04/04/2008 04/04/2008 04/04/2008 04/10/2008
04/10/2008 06/18/2008 02/12/2009 02/12/2009

on or before 3/21/08 upon Shawn Morehead and Jeffrey S. Dantowitz on behalf of the Defendants. (Signed by Judge Richard J. Holwell on 12/27/07) Copies sent by chambers. (dle) Modified on 1/4/2008 (dle). (Entered: 01/04/2008)
114 ORDER: The Court was impressed by the professionalism, experience, and independence of both proposed auditors. In the Court's view, DFs proprietary case management system and its experience in similar engagements will enable it to perform the functions required of the independent Auditor fairly, efficiently, and comprehensively. So Ordered (Signed by Judge Richard J. Holwell on 3/26/08) (js) (Entered: 03/26/2008)
115 ORDER: As of today, the above−captioned case is hereby designated an ECF case. (Signed by Judge Richard J. Holwell on 3/26/08) (js) (Entered: 03/26/2008)
Case Designated ECF. (js) (Entered: 03/26/2008)
116 MOTION to Approve the Settlement. Document filed by LV, VSG, RC.(Morehead, Shawn) (Entered: 04/04/2008)
117 MEMORANDUM OF LAW in Support re: 116 MOTION to Approve the Settlement.. Document filed by LV, VSG, RC. (Morehead, Shawn) (Entered: 04/04/2008)
118 DECLARATION of Shawn V. Morehead in Support re: 116 MOTION to Approve the Settlement.. Document filed by LV, VSG, RC. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Morehead, Shawn) (Entered: 04/04/2008)
119 DECLARATION of Jose C. Fraga in Support re: 116 MOTION to Approve the Settlement.. Document filed by NA, VSG, RC. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Morehead, Shawn) (Entered: 04/04/2008)
120 ORDER AND FINAL JUDGMENT: It is hereby ordered that the settlement set forth in the stipulation is approved as fair, reasonable and adequate, and the Class Members and the parties are directed to consummate the settlement in accordance with the terms and provisions of the Stipulation. This action is hereby dismissed with prejudice and without costs except as provided in the Stipulation as against the defendants. The injunctive relief is approved as fair and reasonable, and defendants are ordered to comply with the terms of the injunctive relief as set forth in the stipulation. The compensatory relief is approved as fair and reasonable, and defendants and the claims administrator are directed to administer the compensatory relief in accordance with the stipulation's terms and provisions. Plaintiffs are entitled to reasonable attorneys fees and reimbursement of expenses. In the event that the settlement does not become final, this order and final judgment shall be rendered null and void and shall be vacated and the action shall proceed as set forth in the stipulation. (Signed by Judge Richard J. Holwell on 4/10/2008) (jpo) (Entered: 04/10/2008)
121 JUDGMENT in favor of AD, LO, LV, NA, RC, VSG, YG against New York City Board of Education, New York City Department of Education, Joel Klein settling action. (Signed by Judge Richard J. Holwell on 4/10/08) (Attachments: # 1 notice of right to appeal)(ml) (Entered: 04/11/2008)
122 TRANSCRIPT of proceedings held on 4/10/08 before Judge Richard J. Holwell. (ama) (Entered: 06/18/2008)
123 FILING ERROR − ELECTRONIC FILING FOR NON−ECF DOCUMENT (LETTER) − MOTION to Substitute Attorney. Old Attorney: Shawn Morehead, New Attorney: Rebecca Shore. Document filed by AD, NA, YG, LO, LV, VSG, RC.(Morehead, Shawn) Modified on 2/13/2009 (jar). (Entered: 02/12/2009)
***NOTE TO ATTORNEY THAT THE ATTEMPTED FILING OF Document No. 123 HAS BEEN REJECTED. Note to Attorney Shawn Morehead : THE CLERK'S OFFICE DOES NOT ACCEPT LETTERS FOR FILING, either through ECF or otherwise, except where the judge has ordered that a particular letter be docketed. Letters may be sent directly to a judge. (jar) (Entered: 02/13/2009)

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02/25/2009 03/06/2009 06/26/2009 06/26/2009 06/26/2009 06/26/2009
06/26/2009
06/26/2009 06/29/2009
07/28/2009

124 NOTICE OF APPEARANCE by Rebecca Caren Shore on behalf of LV (Shore, Rebecca) (Entered: 02/25/2009)
125 NOTICE of Substitution of Attorney. Old Attorney: Shawn V. Morehead, New Attorney: Rebecca Shore, Address: Advocates for Children of New York, 151 West 30th Street, 5th Floor, New York, New York, 10001, (212) 822−9574. Document filed by AD, NA, YG, LO, LV, VSG, RC. (Morehead, Shawn) (Entered: 03/06/2009)
126 MOTION for Attorney Fees and Costs. Document filed by AD, NA, YG, LO, LV, VSG, RC.(Penski, Rachel) (Entered: 06/26/2009)
127 MEMORANDUM OF LAW in Support re: 126 MOTION for Attorney Fees and Costs.. Document filed by AD, NA, YG, LO, LV, VSG, RC. (Penski, Rachel) (Entered: 06/26/2009)
128 DECLARATION of Rebecca Shore in Support re: 126 MOTION for Attorney Fees and Costs.. Document filed by AD, NA, YG, LO, LV, VSG, RC. (Penski, Rachel) (Entered: 06/26/2009)
129 AFFIDAVIT of Miranda Johnson in Support re: 126 MOTION for Attorney Fees and Costs.. Document filed by AD, NA, YG, LO, LV, VSG, RC. (Attachments: # 1 Exhibit Johnson Decl. Ex. A. Part 1, # 2 Exhibit Johnson Decl. Ex. 1 Part 2 of 2, # 3 Exhibit Johnson Decl. Ex. B, # 4 Exhibit Johnson Decl. Exhibit C−Part 1, # 5 Exhibit Johnson Decl. Exhibit C−Part 2, # 6 Exhibit Johnson Decl. Exhibit C−Part 3, # 7 Exhibit Johnson Decl. Exhibit C−Part 4, # 8 Exhibit Johnson Decl. Exhibit C−Part 5, # 9 Exhibit Johnson Decl. Exhibit C−Part 6, # 10 Exhibit Johnson Decl. Exhibit C−Part 7, # 11 Exhibit Johnson Decl. Exhibit C−Part 8, # 12 Exhibit Johnson Decl. Exhibit D, # 13 Exhibit Johnson Decl. Exhibit E, # 14 Exhibit Johnson Decl. Exhibit F, # 15 Exhibit Johnson Decl. Exhibit G, # 16 Exhibit Johnson Decl. Exhibit H)(Penski, Rachel) (Entered: 06/26/2009)
130 DECLARATION of Douglas W. Henkin in Support re: 126 MOTION for Attorney Fees and Costs.. Document filed by AD, NA, YG, LO, LV, VSG, RC. (Attachments: # 1 Exhibit Henkin Decl. Ex. A, # 2 Exhibit Henkin Decl. Ex. B−Part 1, # 3 Exhibit Henkin Decl. Ex. B−Part 2, # 4 Exhibit Henkin Decl. Ex. B−Part 3, # 5 Exhibit Henkin Decl. Ex. B−Part 4, # 6 Exhibit Henkin Decl. Ex. B−Part 5, # 7 Exhibit Henkin Decl. Ex. B−Part 6, # 8 Exhibit Henkin Decl. Ex. B−Part 7, # 9 Exhibit Henkin Decl. Ex. B−Part 8, # 10 Exhibit Henkin Decl. Ex. B−Part 9, # 11 Exhibit Henkin Decl. Ex. B−Part 10, # 12 Exhibit Henkin Decl. Ex. B−Part 11, # 13 Exhibit Henkin Decl. Ex. B−Part 12, # 14 Exhibit Henkin Decl. Ex. B−Part 13, # 15 Exhibit Henkin Decl. Ex. B−Part 14, # 16 Exhibit Henkin Decl. Ex. B−Part 15, # 17 Exhibit Henkin Decl. Ex. C, # 18 Exhibit Henkin Decl. Ex. D, # 19 Exhibit Henkin Decl. Ex. E, # 20 Exhibit Henkin Decl. Ex. F, # 21 Exhibit Henkin Decl. Ex. G)(Penski, Rachel) (Entered: 06/26/2009)
Motion Not Referred: re: 126 MOTION for Attorney Fees and Costs. Filed by VSG, NA, YG, LO, RC, LV, AD. (rw) (Entered: 03/24/2010)
131 CERTIFICATE OF SERVICE of (1) Notice of Motion for an Award of Attorneys Fees and Costs; (2) Memorandum of Law in Support of Plaintiffs Application for an Award of Attorneys Fees and Costs; (3) Declaration of Miranda Johnson, dated June 26, 2009; (4) Declaration of Rebecca Shore, dated June 24, 2009; (5) Declaration of Douglas W. Henkin, dated June 26, 2009 served on Defendant on June 26, 2009. Service was made by Federal Express. Document filed by AD, NA, YG, LO, LV, VSG, RC. (Penski, Rachel) (Entered: 06/29/2009)
132 ENDORSED LETTER addressed to Judge Richard Holwell from Jeffrey S. Dantowitz dated 7/15/2009 re: Requesting that defendants' opposition papers will be served by July 31 and plaintiffs' reply papers will be served by August 21, with the return date of the motion adjourned to August 27, 2009. The parties agree that defendants may be permitted to submit an opposition brief of up to 40 pages in length and that plaintiffs may be permitted to submit a reply brief of up to 20 pages in length. ENDORSEMENT: SO ORDERED. (Signed by Judge Richard J. Holwell on 7/23/2009) (jpo) (Entered: 07/28/2009)

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07/31/2009 07/31/2009 08/21/2009 08/21/2009 08/21/2009 08/21/2009 03/31/2010
06/29/2010 10/06/2010 10/13/2010 10/14/2010 10/21/2010

133 DECLARATION of Jeffrey S. Dantowitz in Opposition re: 126 MOTION for Attorney Fees and Costs.. Document filed by New York City Department of Education, New York City Board of Education, Joel Klein. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Dantowitz, Jeffrey) (Entered: 07/31/2009)
134 MEMORANDUM OF LAW in Opposition re: 126 MOTION for Attorney Fees and Costs.. Document filed by New York City Department of Education, New York City Board of Education, Joel Klein. (Dantowitz, Jeffrey) (Entered: 07/31/2009)
135 REPLY MEMORANDUM OF LAW in Support re: 126 MOTION for Attorney Fees and Costs.. Document filed by AD, NA, YG, LO, LV, VSG, RC. (Penski, Rachel) (Entered: 08/21/2009)
136 DECLARATION of Miranda Johnson in Support re: 126 MOTION for Attorney Fees and Costs.. Document filed by AD, NA, YG, LO, LV, VSG, RC. (Attachments: # 1 Exhibit Summary of AFC Attorney Travel Time at 50 per cent, # 2 Exhibit Hop Stop Travel Instructions, # 3 Exhibit Summary of AFC Attorney Travel Time, # 4 Exhibit Travel time for AFC Paralegals and Support Staff)(Penski, Rachel) (Entered: 08/21/2009)
137 DECLARATION of Rebecca Shore in Support re: 126 MOTION for Attorney Fees and Costs.. Document filed by AD, NA, YG, LO, LV, VSG, RC. (Attachments: # 1 Exhibit Page from Paul Weiss website, # 2 Exhibit Page from Paul Weiss website, # 3 Exhibit December/January 2006 Volunteers for Legal Service newsletter)(Penski, Rachel) (Entered: 08/21/2009)
138 DECLARATION of Joseph S. Genova in Support re: 126 MOTION for Attorney Fees and Costs.. Document filed by AD, NA, YG, LO, LV, VSG, RC. (Attachments: # 1 Exhibit Defendants' January 4, 2008 letter to the Court)(Penski, Rachel) (Entered: 08/21/2009)
139 MEMORANDUM OPINION AND ORDER: #98784 For the reasons stated above, the Court grants plaintiffs motion for attorneys' fees 126 in the amount of $1,238,403.09 ($847,184.38 for the work performed by Milbank and $391,218.71 for the work performed by AFC) and costs in the amount of $123,964.45 ($121,391.81 for expenses incurred by Milbank and $2,572.64 for expenses incurred by AFC). (Signed by Judge Richard J. Holwell on 3/31/2010) (jpo) Modified on 4/2/2010 (ajc). (Entered: 04/01/2010)
140 ORDER ASSIGNING DAYLIGHT'S DUTIES AND OBLIGATIONS TO ITS SUCCESSOR COMPANY NAVIGANT CONSULTING, INC, the Court orders the assignment of the Agreement and the responsibilities of the Independent Auditor outlined in the Stipulation from Daylight to Navigant pursuant to the 5/14/10 agreement assigning Daylight's duties to its successor company, Navigant. (Signed by Judge Richard J. Holwell on 6/24/10) (cd) (Entered: 06/29/2010)
141 ORDER. Pretrial Conference reset for 10/28/2010 at 10:30 AM in Courtroom 17B, 500 Pearl Street, New York, NY 10007 before Judge Richard J. Holwell. (Signed by Judge Richard J. Holwell on 9/30/10) (djc) (Entered: 10/06/2010)
142 ENDORSED LETTER addressed to Judge Richard J. Holwell from Rachel Penski dated 10/7/2010 re: Requesting an adjournment of a motion that Plaintiffs plan to file pending the conference scheduled for October 28, 2010 with the Court on said motion. ENDORSEMENT: So Ordered. (Signed by Judge Richard J. Holwell on 10/12/2010) (jpo) (Entered: 10/13/2010)
143 SCHEDULING ORDER: The Court will hold a conference on 10/28/10 at 10:30 am to discuss the motion Plaintiffs and the Class intend to file regarding defendants' failure to meet certain benchmarks under the parties' Stipulation and Agreement of Settlement of 12/11/07. (Status Conference set for 10/28/2010 at 10:30 AM before Judge Richard J. Holwell). (Signed by Judge Richard J. Holwell on 10/13/10) (djc) Modified on 10/14/2010 (djc). (Entered: 10/14/2010)
***DELETED DOCUMENT. Deleted document number 144 Endorsed Letter. The document was incorrectly filed in this case. (js) (Entered: 10/21/2010)

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10/21/2010
11/05/2010 11/05/2010 11/05/2010 11/05/2010
11/05/2010 11/05/2010 11/19/2010 12/30/2010 12/30/2010 01/03/2011 01/13/2011 01/13/2011

144 ENDORSED LETTER: addressed to Judge Richard J. Holwell from Rachel Penski dated 10/7/2010 re: Counsel writes on behalf of both parties in the above captioned action to request an adjournment of a motion that Plaintiffs plan to file pending the conference scheduled for October 29, 2010 with the Court on said motion. ENDORSEMENT: Next PTC 10/29/2010 at 11:30 a.m. So Ordered. (Signed by Judge Richard J. Holwell on 10/18/2010) (js) (Entered: 10/21/2010)
145 MOTION for Appointment of Special Master and Compensatory Relief. Document filed by AD, LO, LV, NA, RC, VSG, YG. (Attachments: # 1 Text of Proposed Order Appointing a Special Master and Compensatory Relief)(Penski, Rachel) (Entered: 11/05/2010)
146 MEMORANDUM OF LAW in Support re: 145 MOTION for Appointment of Special Master and Compensatory Relief.. Document filed by AD, LO, LV, NA, RC, VSG, YG. (Attachments: # 1 Supplement Part 2 of Memorandum of Law, # 2 Supplement Part 3 of Memorandum of Law)(Penski, Rachel) (Entered: 11/05/2010)
147 DECLARATION of Rebecca Shore in Support re: 145 MOTION for Appointment of Special Master and Compensatory Relief.. Document filed by AD, LO, LV, NA, RC, VSG, YG. (Attachments: # 1 Exhibit A)(Penski, Rachel) (Entered: 11/05/2010)
148 DECLARATION of Rachel F. Penski in Support re: 145 MOTION for Appointment of Special Master and Compensatory Relief.. Document filed by AD, LO, LV, NA, RC, VSG, YG. (Attachments: # 1 Exhibit A, # 2 Exhibit B − Part 1 of 4, # 3 Exhibit B − Part 2 of 4, # 4 Exhibit B − Part 3 of 4, # 5 Exhibit B − Part 4 of 4, # 6 Exhibit C, # 7 Exhibit D, # 8 Exhibit E, # 9 Exhibit F, # 10 Exhibit G, # 11 Exhibit H, # 12 Exhibit I, # 13 Exhibit J − Part 1 of 2, # 14 Exhibit J − Part 2 of 2, # 15 Exhibit K, # 16 Exhibit L, # 17 Exhibit M, # 18 Exhibit N, # 19 Exhibit O, # 20 Exhibit P, # 21 Exhibit Q − Part 1 of 2, # 22 Exhibit Q − Part 2 of 2, # 23 Exhibit R, # 24 Exhibit S, # 25 Exhibit T, # 26 Exhibit U, # 27 Exhibit V, # 28 Exhibit W, # 29 Exhibit X, # 30 Exhibit Y, # 31 Exhibit Z, # 32 Exhibit AA, # 33 Exhibit BB, # 34 Exhibit CC)(Penski, Rachel) (Entered: 11/05/2010)
149 CERTIFICATE OF SERVICE. Document filed by AD, LO, LV, NA, RC, VSG, YG. (Penski, Rachel) (Entered: 11/05/2010)
150 SEALED DOCUMENT placed in vault.(cb) (Entered: 11/08/2010)
151 ORDER Motion by plaintiff, not to exceed 35 pages, due by 11/5/2010. Responses due by 1/5/2011, Replies due by 2/4/2011. Conference set for 3/10/2011 at 10:00 AM before Judge Richard J. Holwell.) (Signed by Judge Richard J. Holwell on 11/8/10) (cd) (Entered: 11/19/2010)
152 FILING ERROR − ELECTRONIC FILING FOR NON−ECF DOCUMENT(LETTER) − MOTION for Extension of Time to File and to File Excess Pages. Document filed by Joel Klein, New York City Board of Education, New York City Department of Education.(Dantowitz, Jeffrey) Modified on 1/3/2011 (ka). (Entered: 12/30/2010)
153 RESPONSE in Opposition re: 152 MOTION for Extension of Time to File and to File Excess Pages.. Document filed by AD, LO, LV, NA, RC, VSG, YG. (Henkin, Douglas) (Entered: 12/30/2010)
***NOTE TO ATTORNEY THAT THE ATTEMPTED FILING OF Document No. 152 HAS BEEN REJECTED. Note to Attorney Jeffrey Scott Dantowitz : THE CLERK'S OFFICE DOES NOT ACCEPT LETTERS FOR FILING, either through ECF or otherwise, except where the judge has ordered that a particular letter be docketed. Letters may be sent directly to a judge. (ka) (Entered: 01/03/2011)
154 ORDER: In light of the Court's delay in entering this order, the Court expects that the parties will agree amongst themselves to a brief extension of the deadline for claimants to use their vouchers. (Signed by Judge Richard J. Holwell on 1/12/2011) (jpo) (Entered: 01/13/2011)
155 ENDORSED LETTER addressed to Judge Richard Holwell from Jeffrey S. Dantowitz dated 12/30/2010 re: Requesting that the current briefing schedule be

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01/24/2011 01/24/2011 01/24/2011
01/24/2011 01/24/2011 01/25/2011
02/07/2011 02/17/2011

amended so that opposition papers would be due on January 24, 2011 and reply papers would be due February 23, 2011, and that the conference currently scheduled for March 10, 2011 be adjourned to a date in late March or April, that is convenient for the Court. ENDORSEMENT: The briefing schedule is modified as requested. No further extensions. The oral argument is adjourned until April 7, 2011 at 10:30 am. (Signed by Judge Richard J. Holwell on 1/11/2011) (jpo) (Entered: 01/13/2011)
156 ENDORSED LETTER addressed to Judge Richard J. Holwell from Rachel Penski Fissell dated 1/20/2011 re: Counsel writes to request that the Court amend the caption pursuant to F.R.C.P. 25(d) and substitute Ms. Black for Mr. Klein. ENDORSEMENT: So Ordered. (Signed by Judge Richard J. Holwell on 1/21/2011) (jfe) (Entered: 01/24/2011)
157 FILING ERROR − DEFICIENT DOCKET ENTRY − (SEE DOCUMENT #162) − DECLARATION of Judy Nathan in Opposition re: 145 MOTION for Appointment of Special Master and Compensatory Relief.. Document filed by Joel Klein, New York City Board of Education, New York City Department of Education. (Attachments: # 1 Exhibit Feb, 11, 2009 memorandum, # 2 Exhibit Navigant analysis, # 3 Exhibit Notice of Intent to Appeal, # 4 Exhibit Dec. 23, 2008 memorandum, # 5 Exhibit July 13, 2009 memorandum)(Dantowitz, Jeffrey) Modified on 2/8/2011 (lb). (Entered: 01/24/2011)
158 AFFIDAVIT of Stacey Reeves in Opposition re: 145 MOTION for Appointment of Special Master and Compensatory Relief.. Document filed by Joel Klein, New York City Board of Education, New York City Department of Education. (Attachments: # 1 Exhibit information sheet, # 2 Exhibit Transmittal sheet, # 3 Exhibit Second letter, # 4 Exhibit March 11, 2009 memorandum, # 5 Exhibit july 13, 2009 memorandum, # 6 Exhibit Third letter, # 7 Exhibit Dec. 23, 2008 memorandum, # 8 Exhibit sample page of Navigant's analysis, # 9 Exhibit Aug. 18, 2010 email, # 10 Exhibit eport re: Paymnt Action Items)(Dantowitz, Jeffrey) (Entered: 01/24/2011)
159 AFFIDAVIT of Veronica Conforme in Opposition re: 145 MOTION for Appointment of Special Master and Compensatory Relief.. Document filed by Joel Klein, New York City Board of Education, New York City Department of Education. (Attachments: # 1 Exhibit Sigall resume)(Dantowitz, Jeffrey) (Entered: 01/24/2011)
160 MEMORANDUM OF LAW in Opposition re: 145 MOTION for Appointment of Special Master and Compensatory Relief.. Document filed by Joel Klein, New York City Board of Education, New York City Department of Education. (Dantowitz, Jeffrey) (Entered: 01/24/2011)
161 AFFIDAVIT of Stacey Reeves (corrected) in Opposition re: 145 MOTION for Appointment of Special Master and Compensatory Relief.. Document filed by Joel Klein, New York City Board of Education, New York City Department of Education. (Attachments: # 1 Exhibit Information sheet, # 2 Exhibit Transmittal sheet, # 3 Exhibit Second letter, # 4 Exhibit March 11, 2009 memorandum, # 5 Exhibit July 13, 2009 memorandum, # 6 Exhibit Third letter, # 7 Exhibit Dec, 23, 2008 memorandum, # 8 Exhibit Sample page of Navigant's analysis, # 9 Exhibit Aug. 18, 2008 email, # 10 Exhibit DAITS report re Payment Action Items)(Dantowitz, Jeffrey) (Entered: 01/25/2011)
162 DECLARATION of Judy Nathan in Opposition re: 145 MOTION for Appointment of Special Master and Compensatory Relief.. Document filed by Cathleen P. Black, New York City Board of Education, New York City Department of Education. (Attachments: # 1 Exhibit February 11, 2009 memorandum, # 2 Exhibit Navigant analysis, # 3 Exhibit Notice of Intent, # 4 Exhibit December 23, 2008 memorandum, # 5 Exhibit July 13, 2009 memorandum)(Dantowitz, Jeffrey) (Entered: 02/07/2011)
163 ENDORSED LETTER addressed to Judge Richard J. Holwell from Rachel Penski Fissell dated 2/16/2011 re: Counsel respectfully request permission to file a reply brief up to 28 pages long as plaintiffs' reply memorandum of law in further support of plaintiffs' motion for appointment of a Special Master and Compensatory Relief. ENDORSEMENT: So Ordered. (Signed by Judge Richard J. Holwell on

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02/23/2011 02/23/2011
02/23/2011
02/23/2011
02/23/2011
02/23/2011 03/14/2011 03/14/2011 03/14/2011 04/08/2011
05/20/2011 06/21/2011 06/30/2011 06/30/2011

2/15/2011) (jfe) (Entered: 02/17/2011)
164 REPLY MEMORANDUM OF LAW in Support re: 145 MOTION for Appointment of Special Master and Compensatory Relief.. Document filed by AD, LO, LV, NA, RC, VSG, YG. (Penski, Rachel) (Entered: 02/23/2011)
165 DECLARATION of James Reilly in Support re: 145 MOTION for Appointment of Special Master and Compensatory Relief.. Document filed by AD, LO, LV, NA, RC, VSG, YG. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E)(Penski, Rachel) (Entered: 02/23/2011)
166 DECLARATION of Rebecca Shore in Support re: 145 MOTION for Appointment of Special Master and Compensatory Relief.. Document filed by AD, LO, LV, NA, RC, VSG, YG. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E, # 6 Exhibit Exhibit F)(Penski, Rachel) (Entered: 02/23/2011)
167 DECLARATION of Allison Guttu in Support re: 145 MOTION for Appointment of Special Master and Compensatory Relief.. Document filed by AD, LO, LV, NA, RC, VSG, YG. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E)(Penski, Rachel) (Entered: 02/23/2011)
168 CERTIFICATE OF SERVICE of (1) Reply Memorandum of Law in Further Support of Plaintiffs' Motion for Appointment of Special Master and Compensatory Relief; (2) Declaration of James Reilly, dated February 23, 2011; (3) Reply Declaration of Rebecca Shore, dated February 18, 2011; (4) Declaration of Allison Guttu, dated February 18, 2011 served on Jeffrey Dantowitz on February 23, 2011. Service was made by Federal Express. Document filed by AD, LO, LV, NA, RC, VSG, YG. (Penski, Rachel) (Entered: 02/23/2011)
169 SEALED DOCUMENT placed in vault.(mps) (Entered: 02/24/2011)
170 NOTICE OF APPEARANCE by Rachel Faye Penski on behalf of AD, LO, LV, NA, RC, VSG, YG (Penski, Rachel) (Entered: 03/14/2011)
171 NOTICE OF APPEARANCE by Rachel Faye Penski on behalf of AD, LO, LV, NA, RC, VSG, YG (Penski, Rachel) (Entered: 03/14/2011)
172 NOTICE OF APPEARANCE by Rachel Faye Penski on behalf of AD, LO, LV, NA, RC, VSG, YG (Penski, Rachel) (Entered: 03/14/2011)
173 ORDER: The Court will hear oral argument regarding the pending motion to appoint a special master on 5/12/2011 at 10:30 a.m. The Court is in receipt of the parties' letters regarding the format of the proceedings. The parties may present any evidence, including live testimony, that they believe will assist the Court in reaching a decision. In the event that the parties wish to present testimony from any witness who has not previously been made available through the discovery process, this witness must be made available for deposition prior to the hearing. Set Deadlines/Hearing as to 145 MOTION for Appointment of Special Master and Compensatory Relief: (Motion Hearing set for 5/12/2011 at 10:30 AM before Judge Richard J. Holwell.) (Signed by Judge Richard J. Holwell on 4/7/2011) (tro) (Entered: 04/08/2011)
174 SEALED DOCUMENT placed in vault.(nm) (Entered: 05/20/2011)
175 ORDER: The Court will have an informal Conference set for 6/30/2011 at 01:30 PM before Judge Richard J. Holwell. (Signed by Judge Richard J. Holwell on 6/21/2011) (rdz) (Entered: 06/21/2011)
Minute Entry for proceedings held before Judge Richard J. Holwell: Oral Argument held on 6/30/2011 The Court reviewed the structure of the school system with all parties. Next PTC set for 08/09/11 at 10:00 am. (pl) (Entered: 07/19/2011)
Set/Reset Scheduling Order Deadlines: Pretrial Conference set for 8/9/2011 at 10:00 AM before Judge Richard J. Holwell. (pl) (Entered: 07/19/2011)

Case: 1:03-cv-9917 As of: 04/24/2014 08:45 PM EDT 24 of 26

07/22/2011
09/01/2011 09/01/2011 09/01/2011 09/01/2011
09/01/2011 09/01/2011
09/07/2011 09/22/2011 09/22/2011 09/30/2011

176 ENDORSED LETTER addressed to Judge Richard J. Howell from Jeffrey S. Dantowitz dated 7/7/11 re: Counsel for defendant writes that the members of DOE's Implementation Unit will be available to meet with you anytime convenient to the Court during the week of July 25, 2011, except for July 26 (after 3pm) and July 29, 2011. ENDORSEMENT: The above conference shall be held on 8/9/11 at 11:00 a.m. So Ordered., ( Status Conference set for 8/9/2011 at 11:00 AM before Judge Richard J. Holwell.) (Signed by Judge Richard J. Holwell on 7/19/11) (pl) Modified on 7/22/2011 (pl). (Entered: 07/22/2011)
177 SEALED DOCUMENT placed in vault.(mps) (Entered: 09/01/2011)
178 MOTION for Attorney Fees and Costs. Document filed by AD, LO, LV, NA, RC, VSG, YG.(Fissell, Rachel) (Entered: 09/01/2011)
179 MEMORANDUM OF LAW in Support re: 178 MOTION for Attorney Fees and Costs.. Document filed by AD, LO, LV, NA, RC, VSG, YG. (Fissell, Rachel) (Entered: 09/01/2011)
180 DECLARATION of Rachel Penski Fissell in Support re: 178 MOTION for Attorney Fees and Costs.. Document filed by AD, LO, LV, NA, RC, VSG, YG. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit E−1, # 7 Exhibit F, # 8 Exhibit F−1, # 9 Exhibit G, # 10 Exhibit G−1, # 11 Exhibit H, # 12 Exhibit I, # 13 Exhibit J, # 14 Exhibit K, # 15 Exhibit L, # 16 Exhibit M, # 17 Exhibit N, # 18 Exhibit O)(Fissell, Rachel) (Entered: 09/01/2011)
181 DECLARATION of Rebecca Shore in Support re: 178 MOTION for Attorney Fees and Costs.. Document filed by AD, LO, LV, NA, RC, VSG, YG. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Fissell, Rachel) (Entered: 09/01/2011)
182 CERTIFICATE OF SERVICE of Notice of Motion for an Award of Attorneys' Fees and Costs; Memorandum of Law in Support of Plaintiffs' Second Application for an Award of Attorneys' Fees and Costs; Declaration of Rachel Penski Fissell in Support of Plaintiffs' Second Application for an Award of Attorneys' Fees and Costs, and exhibits thereto; Declaration of Rebecca Shore in Support of Plaintiffs' Second Application for an Award of Attorneys' Fees and Costs, and exhibits thereto served on Jeffrey Dantowitz on 9/1/2011. Service was accepted by Communications &Docketing Services − Service Window Desk, room 4−313l. Document filed by AD, LO, LV, NA, RC, VSG, YG. (Fissell, Rachel) (Entered: 09/01/2011)
183 ENDORSED LETTER addressed to Judge Richard J. Holwell from Rachel Penski Fissell dated 8/25/2011 re: Counsel for the Plaintiffs writes to request that this Court order that Mr. Walcott be substituted for Ms. Black and that the caption of the case be modified accordingly. ENDORSEMENT: Application granted. (Signed by Judge Richard J. Holwell on 9/6/2011) (ab) (Entered: 09/07/2011)
184 DECLARATION of Jeffrey S. Dantowitz in Opposition re: 178 MOTION for Attorney Fees and Costs.. Document filed by New York City Board of Education, New York City Department of Education, Dennis M. Walcott. (Dantowitz, Jeffrey) (Entered: 09/22/2011)
185 MEMORANDUM OF LAW in Opposition re: 178 MOTION for Attorney Fees and Costs.. Document filed by New York City Board of Education, New York City Department of Education, Dennis M. Walcott. (Dantowitz, Jeffrey) (Entered: 09/22/2011)
186 ORDER: denying 145 Motion. A final informal conference to review the work of the DOE's Implementation Unit will be held on October 28,2011 at 2:00 PM. Plaintiffs' motion for the appointment of a special master was filed on November 5, 2010. The Court is not prepared to appoint a special master at least until it determines the likely success of the DOE's initiative. Consequently, the Court denies plaintiffs' pending motion 145 without prejudice to renew following the conclusion of the October 28 conference. Additional relief as set forth in this Order. (Signed by Judge Richard J. Holwell on 9/30/2011) (pl) (Entered: 10/03/2011)

Case: 1:03-cv-9917 As of: 04/24/2014 08:45 PM EDT 25 of 26

09/30/2011 10/06/2011
10/06/2011 10/06/2011 10/06/2011 10/06/2011
11/04/2011 11/29/2011 04/25/2012 05/03/2012 08/03/2012
08/20/2012 09/30/2012

Set/Reset Hearings: Status Conference set for 10/28/2011 at 02:00 PM before Judge Richard J. Holwell. (pl) (Entered: 10/03/2011)
187 ENDORSED LETTER addressed to Judge Richard J Holwell from Jeffrey Dantowitz dated 9/13/2011 re: Request to extend time to file opposition and reply papers as follows. ENDORSEMENT: So Ordered. Set Deadlines/Hearing as to 178 MOTION for Attorney Fees and Costs. (Response due by 9/22/2011, Reply due by 10/6/2011.) (Signed by Judge Richard J. Holwell on 10/4/2011) (cd) (Entered: 10/06/2011)
188 REPLY MEMORANDUM OF LAW in Support re: 178 MOTION for Attorney Fees and Costs.. Document filed by AD, LO, LV, NA, RC, VSG, YG. (Fissell, Rachel) (Entered: 10/06/2011)
189 DECLARATION of James Reilly in Support re: 178 MOTION for Attorney Fees and Costs.. Document filed by AD, LO, LV, NA, RC, VSG, YG. (Attachments: # 1 Exhibit Class Notice, # 2 Exhibit Apr. 8, 2004 Defendants' Letter to Court, # 3 Exhibit Excerpt of May 12, 2011 Hearing Transcript)(Fissell, Rachel) (Entered: 10/06/2011)
190 DECLARATION of Rebecca Shore in Support re: 178 MOTION for Attorney Fees and Costs.. Document filed by AD, LO, LV, NA, RC, VSG, YG. (Fissell, Rachel) (Entered: 10/06/2011)
191 CERTIFICATE OF SERVICE of (1) Reply Memorandum of Law in Further Support of Plaintiffs Second Application for an Award of Attorneys Fees and Costs; (2) Declaration of James Reilly in Further Support of Plaintiffs Second Application for an Award of Attorneys Fees and Costs, dated October 6, 2011, with accompanying exhibits; and (3) Reply Declaration of Rebecca Shore in Further Support of Plaintiffs Second Application for an Award of Attorneys Fees and Costs, dated October 6, 2011 served on Jeffrey Dantowitz, Esq. on October 6, 2011. Service was made by ECF. Document filed by AD, LO, LV, NA, RC, VSG, YG. (Fissell, Rachel) (Entered: 10/06/2011)
192 ORDER. The parties are directed to meet and confer in person, and in a spirit ofcooperation, at a mutually convenient time prior to the November 10 conference, to discuss the defendants' November 3 submission and the issues raised in their recent submissions to the Court. (Signed by Judge Richard J. Holwell on 11/4/2011) (rjm) (Entered: 11/04/2011)
193 ORDER: Status Conference set for 1/26/2012 at 10:30 AM before Judge Richard J. Holwell. (Signed by Judge Richard J. Holwell on 11/26/2011) (ft) (Entered: 11/29/2011)
194 NOTICE OF CASE REASSIGNMENT to Judge Loretta A. Preska. Judge Richard J. Holwell is no longer assigned to the case. (pgu) (Entered: 04/25/2012)
Received returned mail re: 194 Notice of Case Assignment/Reassignment. Mail was addressed to Ava Gordon at 24784 Outer Dr., Melvindale, MI 48122 and was returned for the following reason(s): Unable to find. (ft) (Entered: 05/03/2012)
195 ORDER: The parties are directed to appear by telephone for a conference to be held August 20, 2012 at 2:00 p.m. regarding Plaintiffs' Second Application for an Award of Attorneys' Fees and Costs. The parties are directed to arrange themselves on a single conference line or dial−in and call in to chambers together on that date at that time. (Signed by Judge Loretta A. Preska on 8/3/2012) (js) (Entered: 08/03/2012)
Minute Entry for proceedings held before Judge Loretta A. Preska: Telephone Conference held on 8/20/2012. (djc) (Entered: 08/28/2012)
196 ORDER: granting 178 Motion for Attorney Fees. Plaintiffs' motion for an award of attorneys' fees and costs [dkt. no. 178] is GRANTED to the extent discussed at the Court's August 20, 2012, telephone conference and as set forth in the parties' forthcoming stipulation. (Signed by Judge Loretta A. Preska on 9/30/2012) (djc) (Entered: 10/01/2012)

Case: 1:03-cv-9917 As of: 04/24/2014 08:45 PM EDT 26 of 26

10/24/2012

197 NOTICE of that defendants no longer appear in this matter by and through Assistant Corporation Counsel Emily Sweet. Document filed by New York City Board of Education, New York City Department of Education, Dennis M. Walcott. (Sweet, Emily) (Entered: 10/24/2012)

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

LV, RC, AD, NA, ADJ, YG, LO, AP, RLB, RD, and JYW, individually; and VSG, HR, CW, SS, MG, MS, ST, RZ, MC and JP, on behalf of themselves and all others similarly situated,
Plaintiffs,

Civ. No.: 03-9917

vs.

SECOND AMENDED

COMPLAINT

NEW YORK CITY DEPARTMENT OF EDUCATION; NEW YORK CITY BOARD OF EDUCATION; JOEL KLEIN, in his individual and official capacity as Chancellor of the New York City School District,
Defendants.

PRELIMINARY STATEMENT 1. This class action action is brought by individual Plaintiffs LV, RC, AD, NA, ADJ, YG, LO, AP, RLB, RD, and JYW (“Indivi dual Plaintiffs”) and Plaintiffs VSG, HR, CW, SS, MG, MS, ST, RZ, MC and JP, on behalf of themselves and all others similarly situated (“Class Representatives”), seeking to enforce Defendants’ compliance with decisions, determinations, orders and statements of agreement and orders of Impartial Hearing Officers (“Impartial Hearing Orders”) entered pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415, et. seq. Defendants’ failure to comply with these Impartial Hearing Orders is in violation of Plaintiffs’ rights under the due process clause of the 14th Amendment of the U.S. Constitution; the IDEA; 42 U.S.C. § 1983; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Section 504”);

and New York State Education Law §§ 4401 et. seq., and the regulations promulgated thereunder.
2. The acts and omissions complained of herein are indicative of the systemwide failure of Defendants to establish a policy and procedure for the timely and effective enforcement of Impartial Hear ing Orders.
3. Plaintiffs and putative class members seek to enforce Impartial Hearing Orders issued on their behalf and to obtain an order directing the Defendants to develop an impartial due process compliance system to ensure that disabled children and their parents are not denied their right to a hearing system and a free appropriate public education.
JURISDICTION 4. This Court has jurisdiction under 28 U.S.C. § 1331, in that claims are asserted under the laws of the United States; under 28 U.S.C. § 1343(a ), in that claims are asserted under laws providing for the protection of civil rights; and under 42 U.S.C. § 1983. This Court has jurisdiction over Plaintiffs’ pendent state law claims pursuant to 28 U.S.C. § 1367. Plaintiffs also seek declaratory relief pursuant to 28 U.S.C. § 2201 and 2202. 5. Venue is proper under 28 U.S.C. § 1391(b). 6. If successful, Plaintiffs are entitled to costs and attorneys fees under 42 U.S.C. § 1988 and 20 U.S.C. §1415.
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PARTIES 7. Plaintiff LV is the mother of RV, a child with a disability who resides in New York City. 8. Plaintiff VSG is the mother of KSG, a child with a disability who resides in New York City. 9. Plaintiff RC is the mother of TC, a child with a disability who resides in New York City. 10. Plaintiff AD is the mother of TD, a child with a disability who resides in New York City. 11. Plaintiff NA is the mother of SA, a child with a disability who resides in New York City. 12. Plaintiff ADJ is the mother of JDJ, a child with a disability who resides in New York City. 13. Plaintiff YG is the mother of SG, a child with a disability who resides in New York City. 14. Plaintiff LO is the mother of HG, a child with a disability who resides in New York City. 15. Plaintiff AP is the mother of MP, a child with a disability who resides in New York City. 16. Plaintiff RLB is the mother of RB, a child with a disability who resides in New York City.
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17. Plaintiff RD is the mother of AD, a child with a disability who resides in New York City.
18. Plaintiff JYW is the mother of HL, a child with a disability who res ides in New York City.
19. Plaintiff HR is the mother of SR, a child with a disability who resides in New York City.
20. Plaintiff CW is the mother of LW, a child with a disability who resides in New York City.
21. Plaintiff SS is the mother of AR, a child with a di sability who resides in New York City.
22. Plaintiff MG is the mother of AG, a child with a disability who resides in New York City.
23. Plaintiff MS is the mother of JF, a child with a disability who resides in New York City.
24. Plaintiff ST is the mother of PTD, a child with a disability who resides in New York City.
25. Plaintiff RZ is the mother of FZ, a child with a disability who resides in New York City.
26. Plaintiff JP is the mother of DM, a child with a disability who resides in New York City.
27. Plaintiff MC is the mo ther of JC, a child with a disability who resides in New York City.
4

28. Initials are used throughout this Amended Complaint to preserve the confidentiality of the infant plaintiff in conformity with the privacy provisions of the IDEA, 20 U.S.C. §1417(c), and t he Family Educational and Privacy Rights Act (FERPA), 20 U.S.C. §1232g.
29. Upon information and belief, Defendant THE NEW YORK CITY DEPARTMENT OF EDUCATION (“Department”) is the newly formed official body charged with the responsibility for developing policie s with respect to the administration and operation of the public schools in the City of New York, including programs and services for students with disabilities. N.Y. Educ. Law §§ 2590, 2590-g (McKinney 1980). It is a recipient of federal financial assis tance.
30. Defendant THE NEW YORK CITY BO ARD OF EDUCATION (“the Board of Education” or “the Board”) was or continues to be the official body charged with the responsibility for developing policies with respect to the administration and operation of the public schools in the City of New York, including programs and services for students with disabilities. N.Y. Educ. Law §§ 2590, 2590 - g (McKinney 1980). It is a recipient of federal financial assistance.
31. Defendant JOEL KLEIN is the Chancellor of the New York C ity School District (“the Chancellor”) and as such is entrusted with the specific powers and duties set forth in N.Y. Educ. Law § 2590 -h (McKinney 1930), including the power and duty to control and operate all academic and vocational senior high schools in the city school district.
5

LEGAL FRAMEWORK 32. The IDEA, 20 U.S.C. 1401 et. seq., is a comprehensive scheme passed by Congress to rectify grave deficiencies in the educational opportunities afforded students with disabilities, and to "assure that all children with disabilities have available to them a free appropriate public education which emphasizes special education and related services designed to meet their unique needs, [and] to assure that the rights of children with disabilities and their parents or guardians are protected." § 1400(d)(1)(A) and (B). 33. Upon information and belief, Defendants are recipients of funding under the IDEA, 20 U.S.C. § 1400-1487, and, as such have the responsibility to “establish and maintain procedures . . . to ensure that ch ildren with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of free appropriate education.” 20 U.S.C. § 1415(a). 34. One of the most important procedural safeguard provided to parents under the IDEA is the opportunity for an impartial due process hearing to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child. 20 U.S.C. §§ 1415(b)(6), 1415(f). The hearing shall be conducted by the State educational agency or by the local educational agency, as determined by State law or by the State educational agency. 20 U.S.C. § 1415(f) . 35. New York State law authorizes a n aggrieved parent to file for a hearing with the Board of Education, which is then responsible for assigning a hearing officer, scheduling a hearing and providing a location for the hearing. See N.Y. EDUC LAW § 4404(1) (McKinney 1999); N.Y. COMP. CODES R. & REGS. TIT. 8 §200.5 (2000). A
6

parent must wait up to 45 days to receive a decision. N.Y. COMP. CODES R. & REGS. TIT. 8 § 200.5 (2002). After a decision is issued, an aggrieved parent or district has 30 days in which to appeal to the State Review Officer. See N.Y. EDUC. LAW § 4404 (2) (McKinney 1999); N.Y. COMP. CODES R. & REG TIT 8 § 200.5(j) (2002).
36. A decision rendered in a hearing is final, unless either party elects to appeal. 20 U.S.C. § 1415(i).
37. The IDEA permits disabled children to vindicate their educatio nal rights through other statutes, including 42 U.S.C. § 1983. See 20 U.S.C. §1415(l)
FACTUAL ALLEGATIONS OF THE INDIVIDUAL PLAINTIFFS 38. Plaintiff LV is the mother of RV, a 16 -year-old student classified as emotionally disturbed. RV was born on February 1 6, 1987. 39. LV initiated an impartial due process hearing to request prospective funding for summer school tuition for RV at the Robert Louis Stevenson High School (“Stevenson School”), a non-public program that has not been approved by the New York State Education Department to provide education to students with disabilities. A hearing was held on July 24, 2003. 40. By decision dated August 11, 2003, the Impartial Hearing Officer ordered that LV receive $2,800 for summer school tuition from Defendants that she w ould in turn endorse to the Stevenson School. 41. Defendants did not appeal the Impartial Hearing Officer's decision within 30 days, and the decision became final as of September 11, 2003.
7

42. Defendant did not provided RV with the $2,800 for RV’s attendance at the Stevenson School summer program, as required by the Impartial Hearing Order, until after Plaintiffs filed this action.
43. Plaintiff RC is the mother of TC, a 15 -year-old student who had exhibited behavioral and academic problems in school and was suspecte d of having a disability. TC was born on August 1, 1988.
44. RC initiated a hearing and hearings were held on January 16, 17, and 27, 2003.
45. By decision dated February 19, 2003 and corrected February 25, 2003, the Impartial Hearing Officer ordered, inter alia, Defendants to reimburse RC the amount of $200 for a uniform that she purchased for TC to attend The Young Women’s Leadership School.
46. Defendants did not appeal the Impartial Hearing Officer's decision within 30 days, and the decision became final as o f March 28, 2003.
47. As of the date of this Second Amended Complaint, Defendants have still not provided RC with the $200 as required by the Impartial Hearing Order.
48. Plaintiff AD is the mother of TD, a 17 -year-old student who is classified as emotionally disturbed. TD was born on April 17, 1986.
49. AD initiated hearings, which were held on October 11, 2002 and November 25, 2002, to request, inter alia, payment for tuition for the period of time that TD attended the Stevenson School.
8

50. By decision dated March 3, 2003, the Impartial Hearing Officer ordered Defendants to pay tuition for the period of time that TD spent in the Stevenson School during the 2002-2003 school year.
51. TD attended the Stevenson School from mid -December 2002 to mid-February 2003. The amount of tuition for this period amounts to $6,000.
52. Defendants did not appeal the Impartial Hearing Officer's decision within 30 days, and the decision became final as of April 3, 2003.
53. Defendants did not pay the ordered tuition in the amount of $6,000 for th e period of time that TD attended the Stevenson School, as required by the Impartial Hearing Order, until after Plaintiffs filed the First Amended Complaint in this action, and almost 14 months after the initial hearing on this matter.
54. Plaintiff NA is the mother of SA, a 15-year-old student who is classified as emotionally disturbed. SA was born on September 2, 1988.
55. NA initiated a hearing to request, inter alia, reimbursement for a private psycho-educational evaluation performed by Dr. June Rousso on Fe bruary 28, 2003. The hearing was held on May 30, 2003.
56. By decision dated July 11, 2003, the Impartial Hearing Officer ordered, inter alia, that NA receive reimbursement for the private psycho -educational evaluation.
57. Defendants did not appeal the Impartial Hearing Officer's decision within 30 days, and the decision became final as of August 10, 2003.
58. Defendants did not provided payment for the private psycho -educational evaluation in the amount of $400, as required by the Impartial Hearing Order, until af ter the filing of the Motion for Class Certification in this action.
9

59. Plaintiff ADJ is the mother of JDJ, a 12 -year-old student who was classified as speech- impaired in his IEP dated March 15, 2001, the most current at the time of AD’s request for a hearing. JD was born on September 2, 1991.
60. ADJ requested a hearing seeking, inter alia, payment from the Board for JDJ’s round trip transportation to a private school and reimbursement for transportation expenses paid to date. A hearing was held on April 26, 20 02.
61. By decision dated May 24, 2002, the Impartial Hearing Officer ordered, inter alia, the Board to reimburse ADJ for transportation costs they had incurred during the 2001-2002 school year.
62. Defendants did not appeal the Impartial Hearing Officer's decis ion within 30 days, and the decision became final as of June 24, 2002.
63. Defendants did not reimbursed ADJ for transportation costs incurred in the amount of $1,590, as required by the Impartial Hearing Order, until after Plaintiffs filed the First Amended Complaint in this action.
64. Plaintiff YG is the mother of SG, a 17 -year-old student classified as learning disabled and emotionally disturbed. SG was born on August 12, 1986.
65. YG initiated a hearing requesting, inter alia, reimbursement to Columbia Presbyterian for psychiatric, neuropsychological and neurological examinations. Hearings were conducted on November 5, 2003, November 26, 2003, January 22, 2003, February 28, 2003 and March 14, 2003.
66. By decision dated March 14, 2003, the Impartial Hearing Officer ordered, inter alia, Defendants to reimburse Columbia Presbyterian for psychiatric, neuropsychological and neurological examinations for a total cost not to exceed $3,600.
10

67. Defendants did not appeal the Impartial Hearing Officer's decision within 30 days, and the decision became final as of April 14, 2003.
68. Defendants have had proof of the total cost of these evaluations at the amount of $2,000 since February 19, 2003.
69. After the filing of the initial Complaint, Defendants’ counsel requested that Plaintiffs’ counsel provide documentation that was neither ordered by the Impartial Hearing Officer, nor agreed to on the record, as a prerequisite for Defendants’ obligation to comply with the Impartial Hearing Order and render payment. Nonetheless, in an effort to expedite Defendants’ compliance with the order, Plaintiffs’ counsel sent Defendants’ counsel the requested documents on December 30, 2003, the same day as Defendants’ request.
70. Defendants did not render the ordered payment as required by the Impart ial Hearing Officer until January 2004, after Plaintiffs filed this action, and approximately one year after Defendants were made aware and provided proof of the exact costs of services to be reimbursed.
71. Plaintiff LO is the mother of HG, an 18 -year-old student classified as learning disabled. HG was born on July 7, 1985.
72. LO initiated a hearing requesting, inter alia, an independent psychological evaluation at Defendants’ expense. A hearing was conducted on April 16, 2003.
73. By decision dated April 24, 2003, the Impartial Hearing Officer ordered, inter alia, that HG receive the psychological evaluation at the Defendants’ expense.
74. Defendants did not appeal the Impartial Hearing Officer's decision within 30 days, and the decision became final as of May 23, 20 03.
11

75. After the filing of the initial Complaint, Defendants’ counsel requested that Plaintiffs’ counsel provide documentation that was neither ordered by the Impartial Hearing Officer, nor agreed to on the record, as a prerequisite for Defendants’ obligation to comply with the Impartial Hearing Order and render payment. Nonetheless, in an effort to expedite Defendants’ compliance with the order, Plaintiffs’ counsel sent Defendants’ counsel the requested document on December 30, 2003, the same day as Defendants’ request.
76. Defendants did not render the ordered payment for the psychological evaluation of HG, the cost of which amounted to $400, as required by the Impartial Hearing Order, until February 2004, and after the filing of the Motion for Class Certification in this action.
77. Plaintiff AP is the mother of MP, a 14 -year-old student classified as speech impaired. MP was born on November 29, 1989.
78. On September 15, 2003, AP requested an impartial hearing alleging that the Defendants had failed to provide MP wi th an appropriate placement, or in fact, any placement at all in spite of AP’s specific requests that they do so. AP requested prospective funding for tuition for the 2003 -2004 school year for MP at the Cooke Center for Learning and Development at St. Raymond’s High School (“the Cooke Center”), a non-public program that has not been approved by the New York State Education Department to provide education to students with disabilities. A hearing was held on October 10, 2003.
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79. By decision dated November 7, 2003, the Impartial Hearing Officer ordered Defendants to fund MP’s tuition for the 2003 -2004 school year at the Cooke Center and provide transportation for MP to and from the school.
80. Defendants did not appeal the Hearing Officer's decision within 30 day s, and the decision became final as of December 7, 2003.
81. As of the date of this Second Amended Complaint, Defendants have still not provided AP tuition in the amount of $31,500 for MP’s attendance at the Cooke Center as ordered by the Impartial Hearing O rder.
82. Plaintiff RLB is the mother of RB, an 11 -year-old student classified as learning-disabled. RB was born on May 17, 1992.
83. RLB initiated a hearing requesting, inter alia, an assistive technology evaluation, reimbursement for the cost of a Central Audi tory Processing Deficit evaluation paid for by RLB, and implementation of speech and language therapy incorporating the Fast For Word program. A hearing was held on June 16, 2003.
84. As reflected in the decision dated June 25, 2003, the parties agreed at th e hearing that, inter alia, Defendants would reimburse RLB for expenses incurred by her in obtaining the Central Auditory Processing Deficit evaluation – proof of which was submitted at the hearing and reflected in the decision -- no later than 15 days after the date of the decision; provide an assistive technology evaluation no later than 30 days after the date of the decision; and provide speech and language therapy incorporating the Fast For Word program beginning 30 days after the date of the decision.
85. Defendants did not appeal the Impartial Hearing Officer's decision within 30 days, and the decision became final as of June 17, 2003.
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86. Defendants failed to reimburse RLB for expenses incurred in obtaining the Central Auditory Processing Deficit evaluation within 15 days after the date of the decision. Defendants failed to provide an assistive technology evaluation within 30 days of date of the decision. Defendants failed to provide speech and language therapy incorporating the Fast For Word program beginning 30 days after the date of the decision.
87. During the month following the order, Plaintiff’s attorney made several attempts to secure the assistive technology evaluation. On July 23, 2003, Defendants informed Plaintiffs’ counsel that they were unable to p rovide the assistive technology evaluations because they lacked sufficient personnel. Defendants remained unable to provided the assistive technology evaluation until February 6, 2004, seven months past the date contemplated in the order.
88. Plaintiff’s counsel actively pursued execution of the order granting reimbursement of the Central Auditory Processing Deficit evaluation, placing numerous unreturned phone calls to Defendants.
89. In February of 2004, eight months after the issuance of the order, Defendants contacted RLB informing her that despite the order granting the reimbursement, she would need to submit an original receipt, a notarized affidavit and W -9 form. On March 17, 2004, RLB submitted a W-9 form.
90. As of the date of this Second Amended Complain t, approximately 9 months after the June 25, 2003 Impartial Hearing Order was issued, Defendants have still not reimbursed RLB for expenses incurred in obtaining the Central Auditory Processing
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Deficit evaluation and have still failed to provide speech and language therapy incorporating the Fast For Word program, as required by the Impartial Hearing Order.
91. Plaintiff RD is the mother of AD, a 13 -year-old student classified as speechimpaired. AD was born on May 12, 1990.
92. RD initiated a hearing requesting re imbursement for placement of AD at Sylvan Learning Center and prospective payment for the Sylvan Center until AD reaches grade level reading skills. Hearings were conducted on January 13, 2003 and February 4, 2003.
93. By decision dated March 4, 2003, the Impartial Hearing Officer directed Defendants to reimburse RD for the cost of services received at the Sylvan Learning Center from March 2002 and continuing through May 2003, in the amount of two hours per week at $59.00 per hour upon proper proof of payment submitted to Defendants by the parent. On March 31, 2003, RD, though her attorney, submitted proof of payment to Defendants in the amount of $6,068.
94. Defendants did not appeal the Impartial Hearing Officer's decision within 30 days, and the decision became final as of April 4, 2003.
95. Defendants finally reimbursed RD for the cost of services received at the Sylvan Learning Center in the amount of $6,068, as required by the Impartial Hearing Order, on February 17, 2004, almost one year after they were order ed to do so, and after the filing of the Motion for Class Certification in this action.
96. Plaintiff JYW is the mother of HL, a 13 -year-old student classified as mentally- retarded. HL was born on July 8, 1990.
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97. JYW initiated a hearing requesting immediate im plementation of HL’s Individualized Education Plan (“IEP”), namely bilingual instruction for the current school year, compensatory education for failure to deliver IEP services for the prior two years, and all communication to the parent from the school translated into the parent’s native language, Mandarin. A hearing was held on September 29, 2003.
98. By decision dated December 3, 2003, the Impartial Hearing Officer ordered that HL’s IEP be implemented immediately, and if Defendants could not comply, then the parent shall be entitled to find an alternate placement or services at Defendants’ expense; that HL be provided 72 hours of compensatory education in speech/language; and that all communications from the district to JYW be translated into her native language.
99. Defendants did not appeal the Impartial Hearing Officer's decision within 30 days, and the decision became final as of January 3, 2004.
100. As of the date of this Second Amended Complaint, Defendants have not provided HL with any of the 72 hours of c ompensatory education in speech and language therapy and have not translated communications from the district to JYW into her native language, as required by the Impartial Hearing Order.
101. All the actions and failures to act of Defendants alleged above were made under color of state law.
102. All Plaintiffs and their children suffered harm as a result of Defendants’ conduct.
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FACTUAL ALLEGATIONS OF PLAINTIFFS VSG, HR, CW, SS, MG, MS, ST, RZ, JP AND MC 103. Plaintiff VSG is the mother of KSG, a 15 -year-old student with Traumatic Brain Injury and Attention Deficit Disorder. KSG was born on May 4, 1988. 104. On April 30, 2003, VSG requested an impartial hearing alleging that the placement offered to KSG by Defendants was inappropriate. At the June 16, 2003 hearing, VSG requested that Defendants fund KSG’s attendance at the 2003 summer program at the Stevenson School. A hearing was held on June 16, 2003. 105. By decision dated July 10, 2003, the Impartial Hearing Officer ordered, inter alia, that Defendants fund KSG’s attendan ce at the Stevenson School summer program. 106. Defendants did not appeal the Hearing Officer's decision within 30 days, and the decision became final as of August 10, 2003. 107. On or about January 8, 2004, approximately 6 months after the decision was issued, and weeks after the initial Complaint in this action was filed, VSG received payment in the amount of $3,000 for KSG’s attendance at the Stevenson School summer program, as required by the Impartial Hearing Order. 108. Plaintiff HR is the mother of SR, a 10 - year-old student classified as speech-impaired. SR was born on September 7, 1993. 109. HR initiated a hearing and requested prospective funding for tuition and transportation for the 2003-2004 school year for SR at the Sterling School, a non-public program that has not been approved by the New York State Education Department to
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provide education to students with disabilities. A hearing was held on September 23, 2003.
110. By decision dated September 29, 2003, the Impartial Hearing Officer ordered Defendants to pay the cost of SR’s tuition at the Sterling School for the 2003 2004 school year. It was further ordered that Defendants provide transportation for SR to and from the school for the 2003 -2004 school year and that the transportation was to be provided by car service if the DOE could not provide bus service.
111. Defendants did not appeal the Impartial Hearing Officer's decision within 30 days, and the decision became final as of October 29, 2003.
112. Defendants failed to provide SR with transportation for many weeks following the rendering of the Impartial Hearing Order, delaying SR’s attendance at the Sterling School significantly.
113. On December 31, 2003, Plaintiffs’ counsel received by fax a memorandum from Stacey Brock to John Cahalin of the Department’s Bureau of Contract Aid. The memorandum states that “the Department is obligated to prospectively fund” tuition costs for SR’s attendance at The Sterling School and “Transportation to and from the school by either bus or car service from October 9, 2003, through June 30 , 2004.”
114. Although no further documentation was required by the Hearing Officer’s Order, on January 15, 2004, Plaintiffs’ paralegal submitted to the Bureau of Contract Aid all of the following documents requested by Defendants for payment: an affidavit fr om the school, the contract between the school and the parent, the attendance up to that date, a copy of the OLS memorandum, and the parent’s W -9 form.
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115. On February 18, 2004, approximately five months after Defendants had been ordered to pay, Plaintiffs’ co unsel received notification from the parent that she had received a check for the sum of $19,387.50, the pro -rated cost of tuition at The Sterling School, as required by the Impartial Hearing Order. This payment was received after Plaintiff HR filed her M otion for Class Certification in this action.
116. CW is the parent of LW, an 8 - year-old child with a disability. LW was born on October 10, 1995. LW is currently classified a multiply disabled and his Individualized Education Program (IEP) indicates he is Me ntally Retarded, Speech Delayed, Other Health Impaired and has Pervasive Developmental Delay, Hirschsprung’s diseases, and Treacheotomy Central Hypoventilation Syndrome.
117. LW’s last agreed- upon IEP, dated April 29, 2003, recommends a 12:1:1 class with related services, adaptive physical education, occupational therapy (OT), speech therapy, and Physical Therapy (PT). He also receives a nurse on the bus and at school and use of a ventilator. He is in need of a barrier - free school, because of his physical condition and the need for the ventilator to accompany him at all times. LW’s IEP dated April 29, 2003 IEP also mandated special transportation, in a mini-bus with a lift, seat for a nurse and air conditioning.
118. After attempts by Plaintiffs’ counsel to negotiate with Defendants’ counsel to resolve the problems with LW’s program without litigation, CW filed a hearing, through counsel, under the IDEA and Section 504 of the Rehabilitation Act contesting the denial of a free appropriate public education for the 20 03-2004 school year.
119. In particular, LW had not received bussing for the first two months of the school year, had not received occupational therapy or adaptive physical education at all
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for this year, and had been repeatedly stuck in the elevator at schoo l when it broke. In addition, during the weeks the elevator was not working, LW’s ventilator was locked in the closet, instead of being in his classroom. Moreover, LW’s classroom was moved to a much smaller and inadequate room, which used to be the resou rce room, and general education students were placed in his old classroom.
120. A hearing was held on February 2, 2004, during which time there was an agreement on the record concerning a number of matters, including but not limited to the fact that LW should be immediately receiving his IEP - mandated services of occupational therapy and adaptive physical education. Plaintiffs’ counsel advised Defendants’ counsel of this hearing.
121. The hearing officer ordered a number of different items as relief on the record. The order included the following relief: Defendants must provide an occupational therapist at LW’s school to start providing services by February 9, 2004. Defendants must provide 40 sessions of compensatory occupational therapy; Defendants must pay for private educational, occupational, physical, speech and assistive technology evaluations; for the upcoming school year, Defendants must continue the specialized transportation for LW and put that transportation on his IEP. This includes an air conditioned minibus with a seat for a nurse and a nurse; Defendants must not lock up LW’s ventilator and should ensure that it is with him all times.
122. The hearing officer also issued three orders at the conclusion of the hearing on issues that were not stipulated to b y Defendants. Defendants were ordered to pay for a private psychological evaluation to be conducted, keep the elevator in the
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school in good repair and in service, and provide adaptive physical education by a qualified provider by February 9, 2004.
123. Plaintiffs’ counsel advised Defendants’ counsel of this hearing and the order, but attempts to resolve the matter between the parties were unsuccessful.
124. On March 5, 2004, the hearing officer issued a Statement of Agreement and Interim Order, which memorialized the agreement between the parties and issued another order concerning the relief set forth above. On March 5, 2004, the hearing officer also issued an order on behalf of CW concerning two additional issues raised at the hearing. First, she ordered that the CSE to change LW’s program to a twelve month program. Second, the hearing officer ordered that “[i]mmediately, but in no event later than five days after the date on which the order is issued, [LW] shall be moved to a classroom that meets the minimum s pace requirements to provide him with an appropriate education, which is at least 770 square feet, the minimum size required by New York State Education Department policy for a 12:1:1 class. The classroom shall have all of the features that the regulations education classroom contains, including: a library, a carpeted reading area, a computer, and a bathroom in close proximity to [LW], with a full changing table or area; and . . .[i]n all other respects, the classroom and class population to which LW is mo ved must meet his individual educational requirements.”
125. After this order was issued, Plaintiffs’ counsel informed Defendants’ counsel that they must implement the order.
126. On February 19, 2004, Plaintiffs’ counsel indicated to Defendants’ counsel that they would be required to seek relief in court if LW was not provided his services and the order was not enforced. As of this date, LW’s order has not been
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followed and he is still not receiving occupation therapy or assistive physical education. His classroom is still in the resource room. In addition, LW’s IEP - mandated nursing service has stopped.
127. SS is the parent of AR, a ten- year-old child with a disability, who is classified as autistic and recommended for placement in a special class full time. He is also recommended for speech and language therapy, counseling and occupational therapy. SS requested a hearing because AR had not been receiving the speech and occupational therapy mandated by his IEP. SS received a Statement of Agreement and Order dated July 18, 2002 stating that AR had not received any speech or occupational therapy past 3 years, and ordering Defendants to provide compensatory speech and occupational therapy for 2002-2003 year and Related Service Authorizations for these services.
128. SS then requested and attended another hearing in March 2003 because, although AR began to receive some speech therapy, AR was not receiving occupational therapy. Another Statement of Agreement & Order, dated May 14, 2003, was issued ordering Defendants to aga in provide compensatory occupational therapy, and once again, a Related Service Authorization.
129. Defendants have failed to provide AR with any IEP - mandated occupational or speech therapy for the 2003 -2004 school year as ordered. Thus, both the July 2002 and May 2003 orders have not been enforced.
130. MG is the parent of AG, a student with a disability. MG filed for an impartial hearing on October 2, 2003. The hearing was held on November 12, 2003. On
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December 11, 2003, a decision was issued on her behalf, or dering Defendants to pay tuition for AG for the 2003 -2004 school year in the amount of $31,500.
131. Defendants were ordered to make payments directly to the Cooke Center for Learning and Development (the “Cooke Center’) by no later than January 15, 2004. Defendants failed to render any of the tuition payment by January 15, 2004.
132. To obtain admission to the Cooke Center, MG signed an Enrollment Contract that included a provision acknowledging that the Cooke Center reserves the right to cancel the contract “a t any time before or during the Academic Year if a lack of enrollment or financial support for placement of [AG] becomes apparent.”
133. MG received a check for only half of the tuition payment in the amount of $15,750 in early March 2004. On March 4, 2004, P laintiffs’ counsel notified Defendants’ counsel that the order had not been fully implemented. As of the date hereof, Defendants have still failed to fully comply with this order and make the remaining payment. Thus, MG is still at risk of the Cooke Cent er terminating her admission.
134. MS is the parent of JF, a student with a disability. MS filed for an impartial hearing on October 29, 2003. The hearing was held on November 10 and 19, 2003. On December 16, 2003, a decision was issued on her behalf, orderin g Defendants to reimbursement to MS for all costs related to enrollment and tuition for tutoring services at Sylvan Learning Center (“Sylvan”) already received, issue a Nickerson letter dated November 19, 2003, with an expiration date six months from the d ate, authorizing MS to place JF in an approved private school; Related Service Authorizations for private speech and counseling services dated November 19, 2003..
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135. MS had taken out a private loan in the amount of $9,166 on May 17, 2002 to fund her son’s tutoring at Sylvan, which will not start services and simply wait for an order to be paid. MS took out a second loan in the amount of $8,650 on April 9, 2003 to continue funding tutoring. At the hearing held on November 19, 2003, the Defendants were ordered to reimburse MS all costs relating to enrollment and tuition at Sylvan upon proof of payment.
136. On February 2, 2004, Plaintiffs’ paralegal sent proof of attendance and payment in the form of a Sylvan attendance statement, a Sylvan payment history, a Sylvan refund account statement and detailed payment history statement from Sallie Mae Financial Corporation to Defendants. On February 18, 2004, after discussion with Defendants’ Bureau of Contract Aid that they needed further proof of payment, Plaintiffs’ paralegal sent copies of the Sallie Mae Loan Application filed by the parent to Defendants.
137. On March 13, 2004, MS received a check in the amount of the principal loan balance of $14,733.34. She used this to pay off the loan, but still has an out of pocket loss of $2,468, which is the amount of the principal that she paid out -of-pocket that is not accounted for in the $14,733.34 and the interest that has accrued on the loan.
138. Further, the decision ordered the Defendants to issue an RSA on November 19, 2003 to provide speech and language therapy for JF. The RSA was not given final authorization until February 17, 2004. Upon information and belief, because of Defendants’ failure to comply with the order and issue the RSA in the time ordered by the hearing officer, the speech therapist told MS that she would cease providing JF with
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any ordered services immediately unless she received final authorization to provide these services in the form of an RSA.
139. ST is the parent of PTD, a child with a disability. ST filed a hearing on March 11, 2002 to obtain prospective funding for tuition in a private school. The hearing was scheduled for April 17, 2002. On May 17, 2002, the hearing officer issued an order granting ST prospective tuition funding for the Smith School in the amount of $26,000 and $4500 for the 2002 summer program. The hearing officer ordered that “in no event shall payment by the Board of Education to the Smith School for PTD be made more than 45 days after the student commences the summer 2002 program and later than January 2003, for the fall, 2002, semester and June, 2003, for the spring 2003, semester.” As of this date, no payment has been made. Upon information and belief, the Smith School has threatened to bring suit against ST for payment.
140. RZ is the parent of FZ, a student with a disability. RZ filed for an impartial hearing on September 18, 2003. A hearing was held on October 24, 2003. On January 8, 2004, an amended order was issued reflecting a settlement agreement entered into by RZ and Defendants on the record, whereby Defendants agreed to pay FZ’s tuition at the Clarke NYC Auditory/Oral Center (“Clarke Center”) for the 2003-2004 school year and related transportation.
141. The cost of tuition at the Clarke Center is $21,500 for a 12 - month program. This amount was introduced as evidence at the hearing through oral testimony by the Director of the Clarke Center, and is reflected in the transcript of the hearing.
142. Defendants have not paid FZ’s tuition at the Clarke Center as required by the Impartial Hearing Officer. On March 8, 2004, Plaintiffs’ counsel notified
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Defendants’ counsel that the order had not been fully implemented. To date, Defendants have failed to comply with the order.
143. JP is the parent of DM, a student with a disability. JP filed fo r an impartial hearing on October 2, 2003. A hearing was held on October 23, 2003. On November 21, 2003, a decision was issued on her behalf, ordering Defendants to immediately pay the cost of private placement at the Sterling School, in the amount of $23 ,500 with an RSA or $26,500 if the school provides speech therapy, provide round -trip transportation to and from school for DM, and to immediately reimburse JP for transportation costs she has incurred and will incur until Defendants provide transportation for DM. At the hearing JP testified that she spends $50-$70 per day on transporting DM to school.
144. The cost of tuition at the Sterling School in the amount of $23,500 and transportation reimbursement costs in the amount of $50 -75 day are reflected in the order issued in this case.
145. On December 15, 2004, Plaintiffs’ paralegal sent proof of payment for the transportation services as well as supplemental documentation requested by Defendants for prospective tuition payment to the school, including receipts a nd invoices of transportation payment, attendance records, the school contract and affidavit of tuition, and a W9 form signed by the parent. The Enrollment Contract signed by the parent and the Sterling School states the “Non-payment of tuition can result in dismissal.”
146. On February 20, 2004, Plaintiffs’ paralegal sent Defendants additional documentation for reimbursement for transportation expenses incurred by JP as of that date.
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147. On March 13, 2004, after the filing of the Motion for Class Certification in this action, JP received a check in the amount of $975 for partial reimbursement of transportation expenses. Upon information and belief, this payment did not cover the additional $750, or any of the costs JP has incurred since February 20, 2004, and continues to incur, as required by the Impartial Hearing Order.
148. Defendants did not provided transportation for DM until March 23, 2004 and JP continued to pay $75 per week for a private car service to send DM to school until that time. Defendants have also neither provided JP, the Sterling School or Plaintiffs’ counsel with the tuition payment of $23,500 or the additional transportation expenses incurred by JP.
149. On March 3, 2004, Plaintiffs’ counsel notified Defendants’ counsel that the order relating to DM had not been fully implemented. On March 12, 2004, Defendants’ counsel notified Plaintiffs’ counsel that Defendants would not pay the ordered tuition because the proof of attendance submitted by Plaintiffs’ counsel on December 15, 2004 was not on the official letterhead of the school, and Defendants are thus refusing to comply with the order, despite the fact that no such requirement was imposed by the Impartial Hearing Officer.
150. MC is the parent of JC, a student with a disability. MC filed for an impartial hearing on September 30, 2003 and an amended request on October 14, 2003. A hearing was held on November 4, 2003, at which testimony was presented. Another hearing was held on November 18, 2003, because it was discovered that the tape of the electronically- recorded testimony that was offered on November 4, 2003, had been lost, causing further delay. As a result, witness testimony was presented a second time on
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November 18, 2003. On December 5, 2003, a decision was issued on MC’s behalf, ordering Defendants to pay tuition for JC for the Xaverian High School Reach Program, a state-approved private school, for the 2003 -2004 school year directly to Xaverian High School (the “Xaverian School”).
151. The cost of tuition at the Xaverian School in the amount of $23,000 is reflected in the order issued in this case.
152. Defendants have failed to make the ordered tuition payment to the Xaverian School. On March 4, 2004, Plaintiffs’ counsel notified Defendants’ counsel that the order had not been fully implemented . Furthermore, to date, almost four months after the date of the order, Defendants have failed to fully comply with this order and make the tuition payment.
CLASS ACTION ALLEGATIONS 153. The claims for relief of Plaintiffs VSG, HR, CW, SS, MG, MS, ST, RZ, MC and JP (“Class Representatives”) are brought on their own behalf and on behalf of all those similarly situated pursuant to Rules 23(a) and 23(b) of the Federal Rules of Civil Procedure. Defendants have acted or refused to act on grounds generally applicab le to the Class Representatives and class members, making appropriate relief as to the class as a whole. 154. The class is comprised of all persons who, now and in the future, obtain a favorable order or stipulation of settlement through an impartial due proces s hearing relating to a child's identification, evaluation, educational placement or the provision of a free appropriate public education pursuant to Section 615(b)(6) of the IDEA and implementing regulations, and who fail to obtain full and timely impleme ntation of the
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Impartial Hearing Order or settlement in accordance with Section 615 of the IDEA, 20 U.S.C. § 1415, et seq.
155. The class is so numerous that joinder of all members is impracticable. Upon information and belief, there are more than 5,300 heari ngs held in New York City and due to Defendants’ failure to adopt a process for effective and timely implementation of orders there are significant delays or complete failure to implement almost every order.
156. Upon information and belief in the 2002 -2003 school year, there were approximately 1050 Impartial Hearing Orders issued.
157. Furthermore, joinder is impracticable because large numbers of class members are without adequate economic resources to retain counsel. Requiring hundreds of class members to litigate their rights before this Court would impose a significant economic burden on the educational and judicial systems, as well as a substantial injustice upon children and parents too poor to obtain competent representation.
158. There are questions of law and fa ct in common between Class Representatives and the members of the class they seek to represent, including whether Defendants failed to timely and comprehensively implement Impartial Hearing Orders and whether Defendants’ failure to provide the relief set f orth in an Impartial Hearing Order constitutes a violation of Plaintiffs’ civil rights and/or procedural safeguards, as set forth in the IDEA.
159. The claims of Class Representatives are similar to those of the class they seek to represent. For example, Class Representatives, like the other members of the class, maintain that Defendants have violated the law by failing to enforce Impartial
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Hearing Orders or settlements made on the record. Accordingly, the claims of the Class Representatives are typical of those of the class.
160. All Individual Plaintiffs and Class Representatives have suffered harm because of Defendants’ failure to timely enforce orders.
161. All Individual Plaintiffs and Class Representatives are parents of children who are eligible for special educat ion services and are likely utilize the special education impartial hearing process in the future.
162. Class Representatives will adequately represent and protect the interests of the class. Counsel for the Class Representatives are experienced in federal cla ss action litigation and will vigorously pursue this action in the interest of the class.
FURTHER FACTUAL ALLEGATIONS 163. Defendants’ failure to comply with Impartial Hearing Orders is a systemic problem that demonstrates a clear indifference to the rights of Plaintiffs. 164. Upon information and belief, throughout New York City, Impartial Hearing Orders and settlements are not being enforced and implementation is not occurring in a timely, effective and comprehensive manner. 165. Defendants clearly lack an effective policy and procedures to effectuate the timely and efficient enforcement of Impartial Hearing Orders, resulting in the Defendants’ widespread failure to comply with the Impartial Hearing Orders and a clear deprivation of the rights of the Individual Plaintiffs and Class Representatives. 166. Defendants have not developed or maintained a system to ensure that all Impartial Hearing Orders are enforced in a timely and comprehensive manner and to
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ensure that Defendants and their agents and employees are held accountable for complying with these orders and other federal, state and local laws that protect the rights of parents and students with disabilities.
167. Defendants do not have a system for tracking and monitoring impartial hearing orders for the purposes of ensur ing timely enforcement.
168. Defendants do not have centralized or regional staff members with sufficient authority and resources to make sure orders are followed.
169. Defendants failed to train, supervise and monitor persons responsible for ensuring enforcement and implementation of Impartial Hearing Orders in a timely and comprehensive manner, even though Defendants had knowledge of circumstances reflecting the facts set forth above, and that training, supervision and monitoring would increase the likelihood of timely and full implementation of Impartial Hearing Orders.
170. Furthermore, Defendants’ systematic failure to promptly comply with Impartial Hearing Orders in cases involving tuition for students whose families are unable to front the cost of tuition themselves discourages private schools with appropriate programs from admitting students who are otherwise entitled to prospective funding for private school placement by law.
171. Defendants have repeatedly been made aware of Impartial Hearing Orders that have been issued but not enforced, in violation of the rights of the In dividual Plaintiffs and Class Representatives.
172. On October 10, 2003, Plaintiffs’ counsel informed Defendants’ General Counsel and Office of Legal Services that Plaintiffs’ counsel were preparing t o file an action based on Defendants’ systematic failure to implement Impartial Hearing Orders,
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and provided to them a list of certain Plaintiffs and the names of their children, including Plaintiffs LV, VSG, RC, AD, NA, ADJ, YG and LO. Plaintiffs’ counse l requested immediate resolution and enforcement of the Impartial Hearing Orders.
173. On or about October 14, 2003, Plaintiffs’ counsel again provided to the Department’s General Counsel and Office of Legal Services the same list of names, including dates of birth and case numbers of the Plaintiffs’ children.
174. As of the date of the filing of the initial Complaint on December 12, 2003, nearly two months after Defendants were provided with this information, the Impartial Hearing Orders of Plaintiffs LV, VSG and Y G continued to remain unenforced in clear violation of law. The order of Plaintiffs AD and ADJ were not enforced until after Plaintiffs filed the First Amended Complaint in this action on January 13, 2004. The orders of Plaintiffs NA, YG and LO were not enforced until after the filing of the Motion for Class Certification in this action on February 4, 2004. The order of Plaintiff RC has still not been enforced as of this date.
175. On October 29, 2003, Plaintiffs’ counsel provided to the Department’s Office of Legal Services the name, date of birth and case number of Plaintiff RLB’s son, RB. On the same day, Plaintiffs’ counsel faxed to the Department’s Office of Legal Services a copy of the hearing order issued in RB’s case. Plaintiffs’ counsel requested immediate resolution and enforcement of this Impartial Hearing Order.
176. As of the date of this Second Amended Complaint, nearly five months after Defendants were provided with this information, this Impartial Hearing Order has not been fully unenforced in clea r violation of law.
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177. On February 19, 2004, Plaintiffs’ counsel notified Defendants’ counsel that CW was not receiving services as per the order of the hearing officer and then again, after March 5, 2004, Plaintiffs’ notified Defendants of the written order . To date, CW’s order has not been enforced.
178. On March 3, 2004, Plaintiffs’ counsel informed Defendants’ counsel that the orders of Plaintiffs MS, JP and ST had not been enforced and provided to Defendants’ counsel with the name, date of birth and case numb er of the children of Plaintiffs MS, JP and ST.
179. On March 4, 2004, Plaintiffs’ counsel informed Defendants’ counsel that the orders of Plaintiffs MC and MG had not been enforced and provided to Defendants’ counsel with the name, date of birth and case numbe r of the children of Plaintiffs MC and MG.
180. On March 8, 2004, Plaintiffs’ counsel informed Defendants’ counsel that the order of Plaintiff RZ not been enforced and provided to Defendants’ counsel with the name, date of birth and case number of Plaintiff RZ’ s child.
181. On March 25, 2004, Plaintiffs’ counsel informed Defendants’ counsel that the orders obtained by SS had not been enforced and provided to Defendants’ counsel with the name, date of birth and case number of Plaintiff SS’s child, AR.
182. In many of the c ases at issue herein, Impartial Hearing Officers heard testimony about the non-public schools and provision of other services in question and found the testimony sufficient to order Defendants to provide payment for the services sought by Plaintiffs. In spite of the direct order to Defendants to provide payment, Defendants subsequently request various documents that are not ordered by the Hearing
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Officer before processing payment, thus adding further undue delay to the enforcement of the Impartial Hearing Orders.
183. Defendants’ actions constitute a policy, custom and practice of illegally failing to enforce Impartial Hearing Orders in a timely, effective and comprehensive manner.
184. Defendants have denied students with disabilities and their parents the right to substantive and procedural protections of federal and state law.
185. Defendants’ failure to enforce orders results in children not receiving their special education and related services and can even result in a child being excluded from school.
CAUSES OF ACTION 186. Defendants have violated the rights of the I ndividual Plaintiffs, Class Representatives and class members under the due process clause of the 14 th Amendment to the Constitution of the United States. 187. Defendants’ failure to provide the Individual Plaintiffs, Class Representatives and class members with the relief ordered by the Impartial Hearing Officers deprived them of their right to a free appropriate public education under IDEA, 20 U.S.C. § 1400(c) and due process under IDEA, 20 U.S.C. § 1415, and the regulations promulgated thereunder, and thus deprives them of rights secured by federal law in violation of 42 U.S.C. § 1983. 188. Defendants’ failure to provide the Individual Plaintiffs, Class Representatives and class members with the relief ordered by the Impartial Hearing Officers deprived them of their rights under Section 504.
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189. Defendants’ failure to provide the Individual Plaintiffs, Class Representatives and class members with the relief ordered by the Impartial Hearing Officers deprived them of their rights under Section 504 and thus deprives them of rights secured by federal law in violation of 42 U.S.C. § 1983.
190. Defendants have violated the rights of the Individual Plaintiffs, Class Representatives and class members under New York State Education Law § §4401, 4404 and 4410 and Section 200.5 of the Regulations of the New York State Commissioner of Education, 8 N.Y.C.R.R. § 200.5.
191. Having won favorable Impartial Hearing Orders, the Individual Plaintiffs, Class Representatives and class members have no fu rther administrative remedy, and thus exhaustion is futile and not required.
RELIEF WHEREFORE, Plaintiffs request that this Court:
a. Certify a class; b. Issue a preliminary injunction:
i. Ordering Defendants to immediately comply with and implement the provisio ns of the Impartial Hearing Orders of the Plaintiffs and putative class members;
ii. Ordering Defendants to identify all class members and immediately comply with and implement the provisions of the Impartial Hearing Orders of class members;
c. Enter a judgment:
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i. Requiring Defendants to timely implement all Impartial Hearing Orders issued on behalf of Plaintiffs and Putative Class members;
ii. Requiring Defendants to design, submit to Plaintiffs’ counsel and the Court for approval, and implement an effective plan to e nsure that all Impartial Hearing Orders are enforced in a timely and comprehensive manner. This plan should include: (a) the policies and procedures Defendants will implement to ensure Defendants come into full compliance with the Court’s Order and effect uate timely implementation of orders; (b) the persons directly accountable, respectively, ensuring the successful implementation of each provision of the plan; (c) the additional resources that will be allocated and disbursed to bring Defendants into full compliance with the Court’s Order; and (d) milestones and target dates used to hold Defendants accountable to this Court; (e) notices to parents who obtain orders sufficient to inform them of their rights to timely enforcement; (f) procedures for addressi ng emergency situations.
iii. Ordering Defendants to submit monthly compliance reports to the Court, with copies to Plaintiffs’ counsel;
iv. Ordering compensatory education and other equitable relief for Plaintiffs and Putative Class members; and
v. Retaining jurisdic tion of this action for all purposes, including entry of such additional orders as may be necessary or proper;
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c. Appoint a special master or independent monitor to oversee and monitor Defendants’ implementation of the requirements of the Court’s Order;
d. Issue a declaratory judgment that Defendants have violated Plaintiffs’ rights as set forth;
e. Award to Plaintiffs their costs and attorneys fees; and f. Grant such other and further relief as may be appropriate.

Dated: April 15, 2004 New York, New York

Respectfully submitted,
___________________________ Elisa F. Hyman (EFH4709) Randee J. Waldman (RW4736) Sonal Y. Patel (SP3101) Attorneys for Plaintiffs Advocates for Children of New York 151 W. 30th Street, 5th Floor New York, New York 10001 (212) 947-9779

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