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UNITED STATES DISTRICT COXmT EASTERN DISTRICT OF NEW YORK >
JOHN DOE #1, a minor by his parent and natural guardian PARENT #1; JOHN DOE #2, a minor by his parent and MEMORANDUM & ORDER natural guardian PARENT #2; JOHN DOE #3, a minor by his parent and natural guardian PARENT #3; JANE DOE 16-CV-1684(NGG)(RLM) #4,a minor by her parent and natural guardian PARENT #4; JANE DOE #5, a minor by her legal guardian GRANDPARENT #5; JANE DOE #6 a minor by her legal guardian GRANDPARENT #5; JOHN DOE #7, a minor by his parent and natural guardian PARENT #7; JANE DOE #8,a minor by her parent and natural guardian PARENT #8; JOHN DOE #9,a minor by his parents and natural guardians PARENT#9A and PARENT #9B;JANE DOE #10,a minor by her parent and natural guardian PARENT #10; JANE DOE #11, a minor by her parent and natural guardian PARENT #11; JANE DOE #12, a minor by her parent and natural guardian PARENT #12;JOHN DOE #13,a minor by his parent and natural guardian PARENT #13; JANE DOE #14, a minor by her parent and natural guardian PARENT #14; JANE DOE #15, a minor by her parent and natural guardian PARENT #15; JOHN DOE #16, a minor by his parent and natural guardian PARENT #16;JOHN DOE #17, a minor by his parents and natural guardians PARENT #17A and PARENT #17B;JOHN DOE #18,a minor by his parents and natural guardians PARENT #18A and PARENT #18B; JOHN DOE #19, a minor by his parent and natural guardian PARENT #19; JANE DOE #20, a minor by her parent and natural guardian PARENT #20;JOHN DOE #21,a minor by his parent and natural guardian PARENT #21; JOHN DOE #22, a minor by his parent and natural guardian PARENT #22; and JOHN DOE #23, a minor by his parent and natural guardian PARENT #23, on behalf of all persons similarly situated.
Plaintiffs, -against-
NEW YORK CITY DEPARTMENT OF EDUCATION,
Defendant.
NICHOLAS G. GARAUFIS,United States District Judge.
Twenty-three New York City("NYC")public-school students (the "Plaintiffs") challenge
the alleged failure ofthe NYC Department ofEducation(the "DOE")to prevent or adequately
redress bullying in public schools. (See 2d Am. CompL("SAC")(Dkt. 20).) Plaintiffs allege
that, although the DOE has issued regulations intended to address violence and other forms of
bullying in schools(including both student-on-student and staff-on-student abuse), schools
routinely fail to comply with these regulations. (Id. ^ 149.) Plaintiffs contend that this alleged
failure violates the procedural due process, substantive due process, and equal protection
guarantees ofthe Fourteenth Amendment,as well as the Individuals with Disabilities in
Education Act("IDEA"), Article XL ofthe New York State Constitution, and Section 7803 ofthe
New York Civil Practice Law and Rules. (Id. 967-77.)
The parties have reached a proposed settlement, which the court preliminarily approved
on May 18, 2018. (Am.Proposed Settlement("APS")(Dkt. 85-1.) Before the court are two
motions:(1)a motion to intervene for the limited purpose of objecting to a proposed settlement
by non-party Legal Aid Society("LAS"); and(2)Plaintiffs' motion for final approval ofthe
proposed settlement agreement. (LAS Mot. to Intervene(Dkt. 94); Pis. Mot. for Final Approval
("Pis. Mot.")(Dkt. 106).) LAS seeks intervention as a matter ofright pursuant to Federal Rule
of Civil Procedure 24(a); or, as an alternative, permissive intervention under Rule 24(b). LAS
additionally requests that, in the event that its motion to intervene is denied,the court grant LAS
amicns miriae status and consider its objections to the proposed settlement on that basis. (LAS
Mem.in Supp. of Mot. to Intervene("LAS Mem.")(Dkt. 95)at 19.) LAS filed its objections to
the proposed settlement along with its motion to intervene. (LAS Objs. to the APS("LAS
Objs.")(Dkt. 96-1).) The DOE opposes LAS's motion to intervene.^ rSee DOE Mem.in Opp'n
to LAS Mot. to Intervene and Objections("DOE Mem.")(Dkt. 99).) The court held a fairness
hearing on June 26,2018, at which it heard statements regarding the motion to intervene and the
merits ofthe proposed settlement.
Having considered all written submissions and the statements at the fairness hearing,
LAS's motion to intervene is DENIED,but the court grants LAS amicus curiae status and
considers its objections on that basis. Additionally, Plaintiffs' motion for final approval ofthe
settlemenf^Agreement is GRANTED and the amended proposed settlement is APPROVED. I. BACKGROUND
A. Plaintiffs' Alleged Harm
According to Plaintiffs, violence is endemic in NYC public schools, particularly those
serving disproportionately poor and minority communities. (SAC UK 2-6.) In particular.
Plaintiffs allege that they have been harmed by student-on-student bullying(which includes
violence, taunting, and other forms of social exclusion), staff-on-student violence (including
corporal punishment), and staff-on-student verbal abuse. This results j&om the DOE's alleged
failure to implement a comprehensive system to report, investigate, and remediate these
problems. (E.g.. id. at 1-17.)
Plaintiffs state that their parents were often unable to report incidents because DOE staff
ignored them or were otherwise repeatedly unavailable. fSee. e.g.. id. K 154 (alleging that a
principal failed to respond to a parent who made multiple attempts to report a bullying incident).)
Plaintiffs further allege that, even when parents were able to schedule meetings with DOE staff
to report allegations, DOE staff would often cancel those meetings or fail to document the
'Plaintife have not taken a position on whether LAS's motion to intervene should be granted. 3
parents' allegations. (See, e.g.. id. ^ 250(alleging that a student reported an incident to a school
dean who did not document the incident or prepare any reports); id ^ 581-583 (alleging that a
principal cancelled a meeting with a parent and did not respond to requests to reschedule).)
Plaintiffs also allege that DOE staff regularly failed to investigate complaints. When
Plaintiffs would follow up with DOE staff about the complaints, the latter refused to provide
updates or documentation regarding the incidents. (See, e.g.. id.^ 240(alleging that a principal
refused to provide a parent with an incident report, claiming the parent was not entitled to it); id
^ 752(alleging that an assistant principal refused to inform a parent ofinvestigative or remedial
steps taken by the DOE,other than to claim that he "took care of it").)
Plaintiffs further allege that DOE staff did not adequately redress substantiated reports.
Plaintiffs point to a number ofexamples inadequate responses,including: "blam[ing] the victim",
see id.^ 498; telling parents that it was impossible for the school to address the problem,s^ id f 728;taking actions that were detrimental to the victim's education, such as removing them
from the class in which the bullying took place,^id ^ 220; and failing to take adequate
disciplinary measures against the alleged bullies and abusive st^members,s^ id. ^ 859.
Furthermore, Plaintiffs allege that when some parents requested that their children be transferred
to another DOE school,DOE staff refused, sometimes providing false information regarding
transfer procedures. (See, e.g.. id H 368 (alleging that a principal falsely told a parent that a
police report was required for a transfer).)
B. The DOE's Existing Procedures
As the Plaintiffs explain,the DOE is subject to a number oflaws that require it to take
action to prevent and correct bullying and teacher-on-student violence. At the federal level, the
No Child Left Behind Act requires school systems to permit students to leave unsafe schools.
(Id H 57.) The United States Department of Education has also issued guidance advising that
schools are responsible for responding to harassment(id. T[ 58)and that bullying can deprive
disabled students ofthe free and adequate public education to which they are entitled under the
Individuals with Disabilities Education Act("IDEA")(id 1137). At the state level, in 2010,the
New York state legislature passed the Dignity for All Students Act("DASA"),N.Y. Educ. Law
§§ 10-18, which aims to prohibit bullying and harassment and requires school districts to, among
other things,(1)adopt codes ofconduct and comprehensive compliance systems for identifying
and correcting bullying and harassment;(2)investigate all reported acts ofin-school violence;
and(3)prevent retaliation against those who report bullying and harassment. (Id H 69-81.)
The DOE has implemented DASA through a series of Chancellor's Regulations.
According to Plaintiffs, five ofthese regulations are not self-executing and are widely ignored by
DOE schools and staff. (Id HH 95, 108, 115.) The first is Regulation A-832, which prohibits
bullying and harassment and establishes a mandatory reporting system for incidents of bullying.
(Id H 83.) Among other things, DOE staff who witness an incident of discrimination,
harassment, intimidation, or bullying must verbally report the incident to their principal or
principal's designee within one day and file a written report within two days. Qd ^ 86.) All
complaints of bullying must be entered into an online database (the "Online Occurrence
Reporting System" or "OORS")within 24 hours. Qd) Within five days, the principal or
designee must undertake an investigation ofthe reported incident, including by iuterviewing the
alleged victim and bully, as well as any witnesses; asking the alleged bully for a written
statement; advising the parents ofthe alleged victim and bully ofthe allegations and whether
those allegations are substantiated; take appropriate action; and follow up to ensure that the
bullying has stopped. (Id 87-91.) Principals must also train their staff on DASA compliance.
041193.)
Second, Regulation A-420 prohibits the use ofcorporal punishment by DOE staff. (Id
96-108.) Staff are authorized to use force in a narrow set of circumstances, including for self-
defense and the defense of others, or to remove or restrain a disorderly student. (Id. K 98.)
Regulation A-420 also establishes a reporting regime similar to that ofRegulation A-832. (Id.
1199-108.)
Third, Regulation A-421 concerns "verbal abuse" of students by teachers and other DOE
personnel. (Id,H 109-115.) Like A-832 and A-420,this regulation requires the prompt
reporting ofany incident of"verbal abuse," including language about or toward students that
belittles, embarrasses, or subjects them to ridicule, or worse. (Id 1110.)
Fourth, Regulation A-449 addresses "safety transfers," by which a parent may choose to
transfer a student to a different school ifthe student is a victim of a violent criminal offense on
school property or if it is determined that the student's presence at the school is unsafe for him or
her. 0411116-126.)
Fifth, Regulation A-450 addresses "involuntary transfers." (Id H 127-135.) If a
student's behavioral or academic record is unsatisfactory, a school may "explore" with a parent
the possibility of a transfer to another setting, which may take place only ifthe parent consents,
the Borough Director of Student Suspensions approves the transfer, and the principal complies
with the prescribed procedures, including by holding an initial hearing and obtaining a final
decision from the Borough Director. (Id 1129.)
C. Proposed Settlement Agreement
On March 14, 2018,the parties reached an initial proposed settlement. (Proposed
Settlement(Dkt. 70-1).) They amended the proposed settlement on May 7, 2018,to preserve
claims raised by other proposed intervenors in this litigation. (APS.)
Plaintiffs claim that the amended proposed settlement addresses each ofthe issues they
have identified:(1)parents' inability to file complaints(and the DOE's inability to properly
document and track complaints);(2)the DOE's failure to investigate complaints; and(3)the
DOE's failure to remediate substantiated cases. (Pis. Mem.in Supp. of Mot. For Final Approval
of Settlement("Pis. Final Approval Mem.")(Dkt. 106-1) at 4.) The settlement also provides
means by which Plaintiffs can monitor and enforce the DOE's compliance with the settlement.
(APS nil 68-71.)
1. Filing. Documenting, and Trackinf? Cnmnlaints
To improve the ability of parents to file and track their complaints, the DOE agrees to
propose revisions to Chancellor's Regulation A-832. These revisions would introduce an
electronic reporting system to allow parents to report bullying electronically and to leam when
their complaints have been substantiated or resolved. (APS HH 33-35; see also id HH 43-48
(describing requirements for reporting and tracking systems).) This system will be available in
multiple languages, generate a confirmation ofreceipt and a tracking number for each complaint,
and provide parents with a Notice of Determination once the investigation is resolved. (Id H
43(b),(d)(i)-(iii).) Ifa parent does not receive a Notice ofDetermination within ten school days
offiling a complaint,the reporting system will generate an email providing the parent with the
contact information for DOE staff whom they can contact. (Id H 43(d)(iv).) The DOE will also
provide parents with additional information about how to file complaints. (Id H 38.)
To improve its own processes for documenting and tracking complaints,the DOE will
direct every "[sjchool staff member who witnesses, knows about, or obtains notice or
to promptly report...the alleged act to the principal [or the principal's liaison] within one
school day" or face disciplinary measures. (Id H 39.) Principals will be required to submit
complaints of bullying to an electronic database and inform parents of bullying complaints filed
by other parties. (Id ^ 40.) The DOE will also communicate the settlement's requirements to
principals and superintendents within the first ten days ofeach school year, and mandate that
schools include anti-buUying techniques in its annual training sessions for teachers and staff. (Id
37(a), 67.) Principals will then communicate the settlement's requirements to all teachers and
staff by October 31 of every school year. Qd K 37(c).)
2. Investigating Complaints
Under the terms ofthe settlement,the DOE will direct principals to complete
investigations of all bullying complaints within ten school days, except when there are
"Extenuating Circumstances"(which DOE staff must document).^ (Id ^ 40.) Additionally,
principals will be required to document more investigation-related information than before; for
example,they must obtain written statements fi"om the alleged victim, accused offender, and any
witnesses "where feasible." (Id K 40(C).)
To assist schools in investigating complaints, the DOE will also designate a "Central
Team" and an "Escalation Staff." The Central Team will, among other things, generate monthly
reports regarding whether schools are complying with certain provisions, analyze trends across
the city, and provide targeted support to schools that need additional help. (Id 156.) The
Escalation Staff will coordinate the completion of bullying investigations in certain situations
(e.g., if a victim alleges that she was retaliated against for making a complaint or ifthe school
fails to make a determination within ten days in the absence of extenuating circumstances). (Id
^ 60.) Once it assumes responsibility for completing an investigation, the Escalation Staff may
^ According to the settlement agreement, extenuating circumstances"may include, but are not limited to, unavailability of witnesses, significant interruptions to the regular school schedule, such as school testing dates or building evacuation/lockdown, or instances when tbe Accused Student does not attend the same School as the AUeged Victim." (APS II12.)
8
perform the investigation itself or refer the investigation to appropriate non-school-based DOE
personnel. Qd 162.)
3. Remediating Substantiated Cases
The settlement requires principals to provide support^ to victims of"Material Incidents,'"^ and to develop, implement, and document individualized support plans ("ISPs")for victims of
multiple Material Incidents in the same school year. Furthermore,the DOE agrees to approve
any school-transfer request made by a parent whose child was the victim of a Material Incident,
except in situations where the bully is another student who (for whatever reason) will no longer
attend the victim's school. (Id H 64.) The DOE will also approve any request to transfer out of a
school made by a parent on the grounds ofcorporal punishment or staff-on-student verbal abuse
if it is determined that the student will no longer be safe at the school. (Id % 65.)
4. Monitoring and Enforcing the Settlement
According to the settlement, the DOE will provide Plaintiffs' counsel with semiannual
reports for three years following the launch ofthe anticipated electronic reporting system. (Id ^
68.) These reports will contain extensive data about the prevalence of bullying complaints and
every school's response. (Id 69-70.) Plaintiffs' counsel will be able to review these reports
and deliver objections in writing to the DOE. (Id atf 71.) Within five business days ofthe
DOE's receipt of any such objections. Plaintiffs and the DOE shall meet and confer to discuss
modifications to the DOE's procedures and policies for addressing bullying complaints. (Id)
'Such support may include, but is not limited to, the following: referring the victim(s)to a guidance counselor, school social worker, or psychologist; developing an individualized support plan ("ISP"); assigning a mentor or coach; counseling; and for victims with a disability, referral to the victim's individualized education plan("lEP") team. (Id. If 40(f).) A "Material Incident" is a "substantiated [b]ullying [c]omplamt which the [s]chool] or [the] DOE finds to be a violation ofChancellor's Regulation A-832." (SAC 16.)
The settlement also provides that, while the court retainsjurisdiction to enforce this
settlement, the class members will not "impose [or] seek to have imposed,in this or in any other
litigation, any additional systematic obligations upon [the] DOE... except as a remedy" in
connection with a motion to enforce the settlement. Plaintiffs will only move to enforce the
settlement if either the DOE fails to implement it or the Plaintiffs can demonstrate the DOE's
"systematic failure" to comply with certain provisions ofthe settlement.^ (Id 72-73.) The court's retention ofjurisdiction to enforce the settlement will last between four and six years.
04175.)
D. Notice of Proposed Settlement, LAS's Motion to Intervene, and Fairness Hearing
Following the court's provisional certification ofthe Class and preliminary approval of
the settlement agreement, the DOE and Plaintiffs' counsel timely posted the Notice ofProposed
Settlement of Class Action on their respective websites xmtil the conclusion ofthe June 26, 2018,
fairness hearing. (See Decl. ofEvan Schnittman("Schnittman Deck")(Dkt. 93)^ 3; Decl. of
Jim Walden(Dkt. 105)H 3.) Additionally,the DOE posted the notice in DOE Suspension
Hearing Offices and Family Welcome Centers until the end ofthe fairness hearing, and caused it
to be published once in the New York Dailv News and El Diario. (See Schnittman Decl.^ 4.)
On June 5,2018, LAS informed the court ofits desire to intervene for the limited purpose
of objecting to the proposed settlement. (See LAS June 5, 2018,Letter(Dkt. 90).) On June 14,
2018,LAS filed a motion to intervene along with a supporting memorandum and proposed
objections to the settlement. (LAS Mot. to Intervene; LAS Mem.; Affirm OfDawne Mitchell
^ The settlement explains in detail how Plaintiffs can demonstrate "systemic failure." (APS ^ 72(a)(ii)-(iii).) Additionally, ifthe alleged systemic failure concerns only one school district, the DOE may be able to use a safe harbor by which it may retrain staff regarding their anti-bullying obligations and preclude Plaintiffs from bringing an enforcement action. (Id ^ 73(b).)
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("Mitchell Aff.")(Dkt. 96); LAS Objs.) LAS indicated that it was not seeking to delay the
court's fairness hearing, but merely wanted the court to consider its objections in determining
whether the terms ofthe settlement are fair, reasonable, and adequate. (See LAS Letter at 6-7;
Mitchell Aff.f 36.)
The court held a fairness hearing on June 26,2018. Plaintiffs reported that there were no
objections to the proposed settlement other than those ofLAS,and that the settlement was the
product of arms-length negotiations conducted over the course of more than a year. (June 26,
2018, Fairness Hr'g Tr.(Dkt. No. pending) 3:22-24, 4:9-5:4.) Counsel for both Plaintiffs and the
DOE also argued that LAS's objections to the settlement lack merit. (Id,8:13-9:11,12:14-14:2.)
Additionally, counsel for LAS appeared at the hearing to discuss LAS's objections. (Id,20:13-
31:9.)
At the end ofthe hearing, the court provided an opportunity for any member ofthe class
to speak as to the class settlement, and set a deadline of July 3, 2018, for written submissions by class members. (Id,at 35:4-24; 37:19-21.) Plaintiffs submitted two letters from parents of class
members on July 3,2018. One indicated support for the settlement. (Letter from Carol Willson
(Dkt. 105-1).) The other—^written by the parent of a student accused of bullying—expressed
concern that the settlement only helps bullying victims and does not provide resources or
supports for students accused of bullying. (Letter from Vicki Brown("Brown Letter")(Dkt.
105-2).)
n. INTERVENTION FOR THE LIMITED PURPOSE OF OBJECTING TO THE PROPOSED SETTLEMENT
LAS moves to intervene for the limited purpose of objecting to the proposed settlement
as ofright pursuant to Rule 24(a) or, alternatively, by permission ofthe court pursuant to Rule
24(b). The DOE argues that LAS's motion should be denied because LAS lacks standing to
11
object to the settlement and additionally does not meet Rule 24's requirements for intervention.
(DOE Mem.at 4-10.) For the following reasons, the court agrees with the DOE and DENIES
LAS's motion.
A. Standing to Object to a Proposed Class-Action Settlement
1. Legal Standard
'TSIonparties to a settlement generally do not have standing to object to a settlement of a
class action." Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed
Care. L.L.C.. 504 F.3d 229,244(2d Cir. 2007)(citations and internal quotation marks omitted).
However,"courts universally recognize an exception to [this rule]: [nonparties] who are able to
demonstrate 'plain legal prejudice' from the settlement to which they would like to object have
standing to do so." 4 Herbert B. Newberg & Alba Conte, Newberg on Class Actions § 13:24
(5th ed. 2018); see also Bhatia v. Piedrahita. 756 F.3d211,218-219(2d Cir. 2014). "A
settlement which does not prevent the later assertion of a non-settling party's claims ... does not
cause the non-settling party [plain] legal prejudice." Bhatia, 756 F.3d at 219. "That level [of
prejudice] exists only in those rare circumstances when,for example,the settlement
agreement formallv strips a non-settling party ofa legal claim or cause of action, such as a cross-
claim for contribution or indemnification, invalidates a non-settling party's contract rights, or the
right to present relevant evidence at a trial." Id. at 218. The objector has the burden of
demonstrating its standing. 4 Newberg & Conte, supra, at § 13:22.
2. Application
Because it is undisputed that LAS is not a class member and does not represent any class
members for the purpose of objecting to the settlement, whether LAS has standing depends on
whether it has demonstrated that it will suffer "plain legal prejudice" as a result ofthe settlement.
LAS has not done this.
12
LAS argues that it has standing because the immunity granted to DOE in the proposed
settlement would prevent LAS from bringing systemic, bullying-related claims against the DOB
on behalfof class-members for between four and six years. However,the right to assert these
types of claims does not belong to LAS; it belongs to the class members who would be the
plaintiffs in any such lawsuit. LAS is not a class member and—although it has represented class
members in other cases,^LAS Reply(Dkt. 103)at 4-5—does not claim to be counsel of
record for any class members in this litigation. Therefore,"it does not have an affected interest
in the class [members'] claims against [the DOE]to be able to assert its objections." Cent.
States. 504 F.3d at 244.
LAS's reliance on Nnebe v. Daus.644 F.3d 147,156-68(2d Cir. 2011), is misplaced. In
that case, the New York Taxi Workers Alliance("NYTWA")—^the organization whose standing
was at issue—^had suffered independent economic injury due to the defendant's actions. Id at
157-58. This economic injury was the basis for the Second Circuit's decision that the NYTWA
had standing. Id Here, LAS does not claim to have suffered any economic injury; instead, it
asserts an interest in "ensuring that any settlement ofthis action either address the underlying
allegations of wrongdoing by DOE in a meaningful way, or leave DOE open to future impact
litigation." (LAS Reply at 4). This is akin to an "abstract concern with a subject that could be
affected by an adjudication," which "does not substitute for the concrete injury required" for a
party to have standing. Raein v. Hairv Macklowe Real Estate.6 F.3d 898,905(2d Cir. 1993)
(quoting Simon v. Eastern Kv. Welfare Rights Ore.. 426 U.S. 26,40(1976)).
An organization can have standiag to sue on behalf ofits members. Sj^ In re Holocaust
Victim Assets Litigation. 225 F.3d 191,196(2d Cir. 2000). But LAS does not claim that any of
the students affected by the proposed settlement are "members" ofLAS—^they have merely been
13
clients of LAS in other proceedings related to bullying incidents. (LAS Reply at 5.) LAS has
not cited, and the court is not aware of, any case law indicating that such a relationship can be
the basis of standing. Thus,the court finds that LAS does not have standing under Rule 23 to
object to this settlement, which renders moot its motion to intervene for the limited purpose of
objecting to the settlement.
Additionally, LAS has not met the requirements for intervention as ofright for the
following reasons.
B. Intervention as of Right
1. Legal Standard
Intervention as a matter ofright under Rule 24(a)(2)is granted when the movant"(1)
timely file[s] an application,(2)show[s] an interest in the action,(3)demonstrate[s] that the
interest may be impaired by the disposition ofthe action, and (4)show[s] that the interest is not
protected adequately by the parties to the action." Brerman v. N.Y.C. Bd. of Educ., 260 F.3d
123,128-129(2d Cir. 2001)(citation and quotation marks omitted). The court must deny the
motion for intervention if any one ofthe four requirements is not met. United States v. Pitnev
Bowes. Inc.. 25 F.3d 66, 70(2d Cir. 1994). The moving party bears the burden of demonstrating
that it meets the requirements. S^id
2. Application
a) Timeliness
While the timeliness requirement "defies precise deiSnition," courts generally consider
"(1) how long the applicant had notice ofthe interest before it made the motion to intervene;(2)
prejudice to existing parties resulting from any delay;(3)prejudice to the applicant ifthe motion
is denied; and(4)any unusual circumstances militating for or against a finding oftimeliness."
Pitnev Bowes.Inc.. 25 F.3d at 70.
14
With regard to the first factor, LAS's "interest" in this action—^to the extent that it has
one—^is in ensuring that any settlement between Plaintiffs and the DOE addresses the iinderl3dng
allegations of wrongdoing and maintaining its ability to bring systemic litigation on behalf of
school-aged children. (LAS Mem. at 13.) LAS contends it did not have notice ofthis interest
until March 14, 2018, when the proposed settlement jdrst became public. CSee LAS Mem. at 15-
18.) DOE asserts that LAS had notice of its interest at an earlier date, either April 6,2016(when
the lawsuit was commenced), or January 4,2017(when publicly filed entries on the court's
docket show that the parties were reporting to the court on the status oftheir negotiations).
(DOE Mem. at 8-10.)
The court finds that March 14,2018 is when LAS first had notice of its interest because
LAS seeks to intervene onlv to object to the terms ofthe proposed settlement, not to participate
in the litigation generally. (See LAS Reply at 6.) LAS further claims that it was unaware ofthe
aspects ofthe settlement to which it now objects—specifically,the DOE's alleged lack of
substantive programming and its four to six year protection from systemic, bullymg-related
litigation—^until after the agreement became pubhc on March 14,2018. (See id. at 8.)
LAS filed its motion to intervene three months after it became aware ofthe proposed
settlement. To explam this delay, LAS has shown that it spent the interim time studying the
settlement and receiving input from other child advocacy and legal services organizations. (See
Mitchell Aff. 36.) The court accepts that, considering the complexity ofthe settlement, this
three-month delay was reasonable. Cf Pitnev Bowes.25 F.3d at 71 (noting that courts have
permitted parties to intervene when the lapse oftime between notice ofthe suit and the
application for intervention had been "much longer than" eight months); Werbungs Und
Cnmmerz Union Austalt v. Collectors Guild. Ltd.. 782 F. Supp. 870, 874(S.D.N.Y. 1991)
15
(holding that an intervention application was timely when filed almost two years after the
intervenor received notice).
The second and third factors also support a finding oftimeliness. LAS's three-month
delay in filing its motion to intervene did not prejudice the existing parties because LAS filed its
objections to the proposed settlement before the June 15,2018, deadline for objections. (See
LAS Objs.; Notice ofProposed Settlement(Dkt. 88-1)(indicating that the deadline for
objections was June 15, 2018).) LAS,however, would suffer prejudice (although not the type of
prejudice required to have standing to object,^in&a^ if its motion was denied because the
proposed settlement would prohibit LAS from bringing litigation against the DOE relating to the
claims in the Second Amended Complaint for the next four to six years. Finally, there are no
unusual factors militating for or against a finding oftimeliness.
For the preceding reasons,the court finds that LAS's motion was timely.
b) Interest in the Action
A movant must be able to show "an 'interest m the proceeding' that is 'direct, substantial,
and legally protectable.'" Laroe Estates. Inc. v. Town of Chester. 828 F.3d 60,69(2d Cir. 2016)
(quoting Wash. Elec. Coop.. Inc. v. Mass. Mun. Wholesale Elec. Co., 922 F.2d 92,97(2d Cir.
1990)), vacated on other grounds, 137 S. Ct. 1645 (2017). "An interest that is remote from the
subject matter ofthe proceeding, or that is contingent upon the occurrence ofa sequence of
events before it becomes colorable, will not satisfy the rule." Wash. Elec.. 922 F.2d at 97.
LAS's case for intervention as a matter of right fails at this second requirement. LAS
seeks to protect its interest in "ensuring that any settlement in this action addresses the
underlying allegations of wrongdoing by DOE" and protecting its ability to "effectuat[e] system-
wide change through impact Utigation." (LAS Mem. at 13.) Just as this interest does not provide
LAS with standing to object to the settlement,s^ infra, it cannot allow LAS to intervene. The 16
right to assert bullying-related claims against the DOE belongs to the class members,not to LAS.
Tellingly, LAS has not cited a single case, and the court is not aware of any, in which a federal
court held that the ability of a legal services provider to bring impact litigation was an "interest"
for the purposes of Rule 24(a). (See LAS Mem. at 13.)
Because LAS's claim of intervention as of right fails at this second requirement,the court
need not consider the third and fourth requirements. S^ Pitnev Bowes,25 F.3d at 70(indicating
that a court must deny a motion for intervention as ofright if any one ofthe four requirements is
not met). Thus,the court DENIES LAS's motion for intervention as ofright.
C. Permissive Intervention
As an alternative, LAS requests permissive intervention under Rule 24(b). For the
following reasons, the court denies this request.
1. Legal Standard
Under Rule 24(b),"[o]n timely motion, the court may permit anyone to intervene
who ... has a claim or defense that shares with the main action a common question oflaw or
fact." Fed. R. Civ. P. 24(b)(1)(B). "Generally, a district court has broad discretion to grant or
deny a request for permissive intervention." ACORN(The N.Y. Ass'n of Cmtv. Orgs. for
Reform Now)v. County of Nassau. 270 F.R.D. 123,125(E.D.N.Y. 2010). In exercising its
discretion, the court must consider whether the intervention will unduly delay or prejudice the
adjudication ofthe rights ofthe original parties." Citizens Against Casino Gambling in Erie Ctv.
V. Hogen.417 F. App'x 49,50(2d Cir. 2011)(summary order)(citations and internal quotation
marks omitted)(citing H.L. Havden Co. ofN.Y. v. Siemens Med. Svs.. Inc.. 797 F.2d 85, 89(2d
Cir. 1986)). Additional relevant factors include:
The nature and extent ofthe intervenors' interests, the degree to which those interests are adequately represented by other parties, and whether parties seeking intervention will
17
significantly contribute to full development ofthe underlying factual issues in the suit and to the just and equitable adjudication ofthe legal questions presented.
Id. Essentially,"[a]n application for permissive intervention requires the court to consider
'substantially the same factors' as does an application for intervention as ofright." United States
V. CitvofNewYork. No. 07-CV-2067(NGG),2007 WL 2581911, at *6(E.D.N.Y. Sept. 6,
2007)(quoting In re Rank ofN.Y. Derivatives Litig., 320 F.3d 291,300 n.5(2d Cir. 2003)).
2. Application
LAS claims that it should be granted permission to intervene for generally the same
reasons that it claims entitlement to intervention as a matter ofright. (LAS Mot. at 18-19.) LAS
also claims that, given its experience advocating for children who are victimized by or accused
of bullying, its intervention will significantly contribute to the full development ofthe underlying
factual issues in the suit and to the just and equitable adjudication ofthe legal questions
presented. (Id. at 19.)
Because LAS lacks standing to object to the proposed settlement, granting it permission
to intervene for the limited purpose of objecting would be unavailing. Accordingly, exercising
its broad discretion under Rule 24(b),the court DENIES LAS's motion to intervene.
m. LEAVE TO PARTICIPATE AS AMICUS CURIAE
Alternatively, LAS requests that the court grant it amicus curiae status and consider its
objections on that basis. "There is no governing standard, rule or statute prescribing the
procedure for obtaining leave to file an amicus briefin the district court." Auto. Club ofN.Y..
Inc. V. Port Auth. of N.Y. & N.J.. No. ll-CV-6746(RJH),2011 WL 5865296, at *1 (S.D.N.Y.
Nov.22,2011)(alterations adopted)(citations and internal quotation marks omitted). "The usual
rationale for amicus curiae submissions is that they are of aid to the court and offer insights not
available firom the parties." Id "[T]he extent to which, if at all, an amicus should be permitted
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to participate lies solely within the discretion ofthe court." United States v. Gotti. 755 F. Supp.
1157,1158 (E.D.N.Y. 1991).
Treating LAS's filing as an amicns ciin'ae submission does not cause any delay, and thus
does not prejudice the existing parties. LAS has already jdled its objections, which it now asks
the court to consider in its determination of whether to grant final approval ofthe settlement.
Accordingly, the court GRANTS LAS's request that it be granted amicus curiae status, and the
court will consider LAS's objections in deterrnining whether the proposed settlement is fair,
reasonable, and adequate.
IV. DISCUSSION OF THE SETTLEMENT AGREEMENT
A. Adequacy of Notice
"The standard for the adequacy of a settlement notice in a class action under either the
Due Process Clause or the Federal Rules is measured by reasonableness." Wal-Mart Stores. Inc.
V. Visa U.S.A.. Inc., 396 F.Sd 96,113-14(2d Cir. 2005). Notice is reasonable if it "fairly
apprise[s] the prospective members ofthe class ofthe terms ofthe proposed settlement and of
the options that are open to them in connection with the proceeding." Id. at 114(quoting
Weinberger v. Kendrick. 698 F.2d 61,70(2d Cir. 1982)). "Notice need not be perfect, but need
be only the best notice practicable xmder the circumstances, and each and every class member
need not receive actual notice as class counsel acted reasonably in choosing the means likely to
inform potential class members." In re Merrill Lvnch Tvco Research Sees. Litig.. 249 F.R.D.
124,133(S.D.N.Y. 2008)(citing Weigner v. Citv ofNew York. 852 F.2d 646,649(2d Cir.
1988)).
The court finds that notice was adequate, both in its content and in its dissemination. The
notice summarized the terms ofthe settlement accurately and in clear language. It provided
simple instructions about how to submit written comments regarding the proposed settlement and
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how to object at the fairness hearing. The parties posted the notice on their respective websites,
in DOE Suspension Hearing Offices and Family Welcome Centers, and in the New York Daily
News and El Diario—a method of distributing the notice that was "likely to inform potential
class members." Id. Accordingly,the court finds that the parties have complied with Rule
23(e)'s notice requirements.
B. Approval of the Settlement
Rule 23(e) provides that "the court may approve [a proposed settlement] only after a
hearing and on finding that it is fair, reasonable, and adequate," Fed. R. Civ. P. 23(e)(2). "When
a settlement is negotiated prior to class certification, as is the case here, it is subject to a higher
degree of scrutiny in assessing its fairness." D'Amato v. Deutsche Bank,236 F.3d 78,85(2d
Cir. 2001). In these circumstances, a court must examine both the negotiation process and the
settlement's substantive terms to determine its fairness. Id
1. Procedural Fairness: The Negotiation Process
In assessing the procedural fairness ofthe settlement,the courts look to whether the
agreement was the product of"arms-length negotiations and whether the plaintiffs' counsel have
possessed the experience and ability, and have engaged in the discovery, necessary to effective
representation ofthe class's interests." Id (quoting Weinberger,698 F.2d at 74).
The settlement negotiations appear to have been extensive and deliberate. The agreement
was reached after nearly 18 months of negotiations and numerous in-person meetings,
conference calls, and exchanges of draft settlement stipulations. (Pis. Final Approval Mem. at
12.) Plaintiffs report that the negotiations were "hard-fought," so much so that at one point
Plaintiffs' counsel unilaterally filed a letter to Magistrate Judge Mann to request a conference
with the court to resolve problems that had arisen. (See Pis. Oct. 31,2017 Letter(Dkt. 44).)
Furthermore, Plaintiffs have been represented by capable coimsel who are experienced in class
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actions, complex civil litigation, and civil rights litigation. CSee Pis. Mem.in Supp. of Mot. For
Prelim. Approval of Settlement(Dkt. 72-2) at 14.) Although the parties did not engage in formal
discovery in this action. Plaintiffs' counsel represent that they nonetheless conducted a thorough
investigation by meeting with many class members,reviewing available DOE documentation
and publicly-available data supporting the systemic nature of its clients' claims, and consulting
with a child psychologist to help understand the impact of unresolved bullying on children. fSee
Pis. Final Approval Mem. at 11-12.) In Hght ofthese factors, the court is satisfied that the
settlement was procedurally fair.
2. Substantive Fairness: Fairness. Reasonableness, and Adequacv
To grant final approval of a proposed settlement, the court must find that its terms are
"fair, reasonable, and adequate." In Citv of Detroit v. Grinnell Corp.,the Second Circuit
developed nine factors to consider in making this determination:
(1)the complexity, expense and likely duration ofthe litigation; (2)the reaction ofthe class to the settlement; (3)the stage ofthe proceedings and the amount of discovery completed; (4)the risks of establishing liability; (5)the risks of establishing damages; (6)the risks of maintaining the class action through the trial; (7)the ability ofthe defendants to withstand a greaterjudgment; (8)the range ofreasonableness ofthe settlement fund in light ofthe best possible recovery;[and] (9)the range ofreasonableness ofthe settlement fund to a possible recovery in light of all the attendant risks of litigation.
495 F.2d 448,463(2d Cir. 1974)(citations omittedl. abrogated on other grounds bv Goldberger
V. Integrated Res. Inc., 209 F.3d 43(2d Ch. 2000). "A court need not find that every factor
militates in favor of a finding offairness; rather, a court considers the totality ofthese factors in
light ofthe particular circumstances." In re Merrill Lvnch. 249 F.R.D. at 143 (alterations
adopted)(internal quotation marks and citations omitted).
21
a) Complexity, Expense, and Likely Duration ofthe Litigation
The SAC raises complex factual and legal issues, including (but not limited to)the
DOE's alleged systemic failure to prevent and redress bullying and whether unmitigated acts of
bullying (and other forms of abuse) substantially interfere with Plaintiffs' right to a public
education. Plaintiffs claim that ifthis case went to trial, they would retain experts in education
policy and child psychology, which could result in an expensive "battle ofthe experts" at trial.
fSee Pis. Final Approval Mem.at 14.) Moreover,litigation would only further delay the reliefto
class members in a suit that has now been pending for over two years. See In re Austrian &
German Bank Holocaust Litig.. 80 F. Supp. 2d 164,174(S.D.N.Y. 2000)("Most class actions
are inherently complex and settlement avoids the costs, delays, and multitude of other problems
associated with them.") Accordingly, this factor weighs in favor of approving the settlement.
b) Reaction ofthe Class to the Settlement
"If only a small number of objections are received, that fact can be viewed as indicative
ofthe adequacy ofthe settlement." Wal-Mart Stores. Inc.. 396 F.3d at 118 (citation and
quotation marks omitted). The court only received one objection from a class member. CSee
Brown Letter.) Such a small number militates in favor of approval.
c) Stage ofProceedings and Amount ofDiscovery Completed
This factor concerns whetiher there is "some evidentiary foundation in support ofthe
proposed settlement." Plunomer v. Chem.Bank,668 F.2d 654,659(2d Cir. 1982). "If all
discovery has been completed and the case is ready to go to trial, the court obviously has
sufficient evidence to determine the adequacy of settlement." Wal-Mart Stores. Inc.. 396 F.3d at
118 (citation and quotation marks omitted). That said,"the absence offormal discovery has not
always prevented consideration ofthe settlement." Chatelain v. Prudential-Bache Sec.. Inc., 805
F. Supp. 209,213(S.D.N.Y. 1992).
22
As discussed above, while the parties did not engage in formal discovery in this case.
Plaintiffs' coimsel represent that they nonetheless conducted a thorough investigation into their
clients' claims. They met with many class members,reviewed numerous relevant documents,
and consulted with a child psychologist regarding the impact of unresolved bullying on children.
CSee Pis. Final Approval Mem.at 11-12.) The SAC also contains detailed allegations that could
only have been the product ofa searching inquiry. (See SAC.) Based on this record,the court
finds that "counsel had sufficient information to act intelligently on behalf ofthe class,"
Chatelain. 805 P. Supp. at 213,and that this factor weighs in favor of approval.
d) Risks ofClass Prevailing (Establishing Liability, Establishing Damages, Maintaining the Class through Trial)
The court considers together the fourth, fifth, and sixth factors—risks of establishing
liability, risks of establishing damages, and risks of maintaining the class action through trial—as
they all relate to the risks Plaintiffs would face in taking this to trial. Wal-Mart Stores. Inc.,
396 F.3d at 118-19(considering these factors collectively); Padro v. Astrue. No. 1 l-CV-1788
(CBA),2013 WL 5719076, at *6(E.D.N.Y. Oct. 18, 2013)(same). "On these issues, a court
should assess the risks of litigation against the certainty ofrecovery under the proposed
settlement." United States v. New York. No. 13-CV-4165(NGG),2014 WL 1028982, at *7
(E.D.N.Y. Mar. 17, 2014)(citations and quotation marks omitted).
Plaintiffs' chances of establishing liability are difficult to assess. As discussed above,
this case presents complex factual and legal issues, including the DOE's alleged systemic failure
to prevent and redress bullying and whether unmitigated acts of bullying(and other forms of
abuse)substantially interfere with Plaintiffs' right to a public education. Plaintiffs aver that, to
succeed at trial, they would likely require substantial documentary evidence and testimony from
23
students and experts, which can be costly and difficult to obtain, (Pis. Final Approval Mem. at
19). Continuing litigation would also delay relieffor the Class.
In contrast, the proposed settlement can be implemented before the next school year, thus
providing relief to the Class almost immediately. Ingles v. Toro.438 F. Supp. 2d 203,214
(S.D.N.Y.2006)(indicating that the immediacy with which a settlement can be implemented is
relevant to the analysis of continuing-litigation risks). Plaintiffs contend that the remedies
available at the end oflitigation might not be much better than what they would receive from this
settlement. (Pis. Final Approval Mem.at 20.) Accordingly,this factor mihtates in favor of
approval.
e) Range ofReasonableness ofthe Settlement in Light ofthe Best Possible Recovery and Attendant Risks ofLitigation
"The seventh rGrinnelH factor, the ability ofthe defendants to withstand a greater
judgment, does not apply here because Plaintiffs seek only declaratory and injunctive relief."
See New York. 2014 WL 1028982, at *8. Although there is no "settlement fund" in this case,
the court considers the eighth and ninth factors together as a determination ofthe reasonableness
ofthe proposed settlement in light ofthe best possible recovery and risks oflitigation. Id. In
this inquiry, a court may compare the proposed settlement to the relief sought by the plaintiffs.
There are some discrepancies between the relief Plaintiffs sought in their SAC and what
is provided for by the proposed settlement agreement. For example,the SAC includes requests
that the DOE review all previous, unresolved reports of school violence by class members and
that the court appoint an independent monitor to audit the DOE's progress. (SAC at 177-78.)
Overall, though,the reliefin the proposed settlement is comparable to what Plaintiffs sought in
the SAC. Some ofthe reforms contemplated in the SAC are very similar to ones included in the
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proposed settlement. For example,the SAC included a request that the DOE "regularly review
and update training programs for teachers and staff regarding anti-bullying techniques. (Id at
178.) Similarly, the proposed settlement mandates that the DOB will require schools to include
anti-bullying techniques in its annual training sessions for teachers and staff. (APS 37(a),
67.) Thus,this factor weighs in favor ofapproving the settlement.
3. Objections
There were only two objections to the proposed settlement: one from a class member,and
one from LAS. CSee Brown Letter; LAS Objs.) The court addresses them here.
LAS objects to the proposed settlement on three grounds. First, the settlement allegedly
fails to address the root causes of bullying by focusing only on reporting and investigating
bullying incidents rather than substantive programming, and only providing support for victims
and not students accused of bullying. (See LAS Objs. at 2, 6-16.) The only objection from a
class member also expressed concern that the settlement only helps bullying victims and does not
provide resources for students accused of bullying. (See Brown Letter.) As the Plaintiffs point
out, however,the proposed settlement is tailored to remedy the problems alleged in the SAC—
i.e.. that the DOE violates the rights of victim students with its practice of violating state laws
and policies regarding the reporting, investigatmg, and remediating of bullying, corporal
punishment, and verbal abuse. (Pis. Final Approval Mem.at 16.) This lawsuit was not intended
to address the root causes of bullying or to obtain support for students accused of bullying. (See
id.) The court will not reject the settlement for failing to address issues that are outside the scope
ofthe underlying litigation.
LAS's second complaint about the settlement is that it is duplicative ofthe DOE's current
obligations, and thus it is a "bad deal" for the class members. (See LAS Objs. at 2,16-18.) For
example, LAS points to the DOE's pre-settlement public announcement that it will launch an 25
electronic reporting system—^like the one provided for in the proposed settlement—^by 2019. (Id
at 18.) In fact, the DOE voluntarily implemented this reform at Plaintiffs' suggestion during
settlement negotiations as a measure of good faith. Such a gesture does not reduce the fairness
ofthe proposed settlement.
LAS also contends that existing regulations provide adequate protections in the area of
school transfers for bullying victims. The proposed settlement goes further than existing
regulations, however, by requiring the DOE to approve transfer requests for any victim of a
Material Incident(subject to some exceptions). (See APS H 64.) Even LAS appears to
acknowledge that, under existing regulations, the approval ofschool transfer requests is merely
discretionary. (See LAS Objection at 17(highlighting regulations that "permit[]" and "create
more flexibility m granting" transfers).)
Additionally, LAS points out that the proposed settlement includes some obligations that
are already required by Chancellor's regulations. (See LAS Objs. at 16-18.) This is true;
however, once the settlement is approved,these obligations will become enforceable in federal
court, rather than being internal DOE regulations that can be unilaterally rescinded and are
unenforceable in federal court. (See DOE Mem. at 17-18.)
LAS's final complaint is that the settlement prejudices the Class by unreasonably
shielding the DOE from systemic, bullying-related litigation for at least the next four years. (See
LAS Objs. at 18.) In LAS's view, this release of claims "wdl prohibit needed reforms,
particularly with regard to implementation of an effective program to reduce bullying behavior."
(Id.) As an example of how the settlement might prohibit needed reforms, LAS alleges that the
proposed settlement fails to address the disparate impact of bullying on black and Hispanic
students. (Id.) However, as the DOE points out,the settlement does provide for a Central Team
26
tasked with providing targeted intervention to schools that have disproportionate rates of
bullying incidents. rSee DOE Mem. at 18-19.) Additionally, the proposed settlement preserves
class members'^ claims for individual(as opposed to systemic) relief. (APS H 32(listing claims
that are reserved by the proposed settlement).) The proposed settlement may not be perfect, but
without a more specific identification ofthe types of bullying-related lawsuits that LAS plans to
pursue in the future, the court cannot say that the settlement's release of claims is unreasonable.
Thus,LAS's objections do not persuade the court that the settlement is unfair, unreasonable, or
inadequate.
C. Attorney's Fees
In a class-action settlement, the court assesses the reasonableness of attorney's fees in
light ofthe time and effort expended, the complexity ofthe case, the quality ofrepresentation,
and public policy considerations. Wal-Mart Stores. Inc.. 396 F.Sd at 121 (citing Goldberger,
209 F.3d at 50).
The APS does not specify the amount offees for which the DOE will reimburse
Plaintiffs. Instead, it stipulates that Plaintiffs are entitled to "reasonable fees" both from the
lawsuit itself(as ifPlaintiffs were the prevailing parties under applicable law) and for time spent
enforcing and executing the stipulation. (APS 84-85.) The APS also provides that Plaintiffs'
counsel will regularly submit reimbursement requests to DOE's counsel over the course ofthe
settlement. (Id) Ifthe parties cannot reach agreement within ninety days of a request by
Plaintiffs, the parties will proceed at the court's direction. ffd.I Plaintiffs may not seek
® The settlement provides that the 23 named class representatives may bring claims for individual damages relief, but not individual injunctive or declaratory relief. (APS ^ 32(a)-(b).) All other class members will be permitted to bring any claims for individual relief that would otherwise be available under law. (Td.l
27
attorneys' fees, however,for any work in connection with any enforcement motion unless such a
motion is granted in whole or in part. (Id ^ 85.)
As Plaintiffs have not yet made any requests for fees, the court can only evaluate the
APS's process for administering attorneys' fees, not the reasonableness ofthe fees themselves.
It is reasonable that Plaintiffs would receive fees as though they are the prevailing parties under
applicable law and for time spent executing and enforcing the settlement. In the future, the court
will assess the reasonableness ofPlaintiffs' requests as they arise.
V. CONCLUSION
For the foregoing reasons, the court DENIES LAS's Motion to Intervene (Dkt. 94), but
GRANTS it flminns curiae status and has considered its objections on that basis. In addition,the
court finds the proposed settlement to be fair, reasonable, and adequate, and the settlement's
provisions regarding attorney's fees to be reasonable. Accordingly,the court GRANTS
Plaintiffs' Motion for Final Approval ofthe Settlement(Dkt. 106).
SO ORDERED. s/Nicholas G. Garaufis
Dated: Brooklyn, New York ^CHOLAS G. GARAUFIS^ July3^,2018 United States District Judge
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