Frequently Asked Questions (FAQ) - NJ 45 Day Class Action Settlement

This lawsuit, C.P., et al. v. New Jersey Department of Education, et al., Case No. 1:19-cv-12807-ESK-MJS, known as the “C.P. Class Action,” was filed May 22, 2019. Ten families (Plaintiffs) sued the New Jersey Department of Education (NJDOE) for violating the “45 Day Rule” over a period of more than 14 years and sought to stop the violations. The 45 Day Rule is a guarantee of the Individuals with Disabilities Education Act (IDEA) that when the family of a child with a disability files a request for a special education due process hearing, a final decision will be issued within 45 days of when the dispute is transmitted to an Administrative Law Judge (ALJ) for hearing. 34 C.F.R. 300.515. The only exception to that timeline is if a party requests a brief adjournment. The lawsuit alleged that ALJs were systematically failing to decide cases within 45 days and usually many months or more than a year beyond the 45 day deadline. The lawsuit sought an injunction to require NJDOE to comply with the 45 Day Rule.

NJDOE denies any wrongdoing or liability arising out of any of the facts or conduct alleged in the lawsuit and believes that it has valid defenses to the allegations. The Court has not decided that NJDOE did anything wrong, and the Settlement does not mean it broke the law. Both the Plaintiffs and NJDOE believe that the Settlement is fair, adequate, and reasonable and that it is in the best interests of the Class Members.

This case is currently pending in the U.S. District Court for the District of New Jersey (Camden). The New Jersey Department of Education and the New Jersey Commissioner of Education are called the Defendants.

WHY IS THIS A CLASS ACTION?

In a class action, it is alleged that there are many people who have similar claims, too many to name everyone. Instead, all of these people – named and unnamed – are identified as a “Class” or “Class Members”. One or more people called “Class Representatives” (in this case, the 10 named Plaintiff families and their children) sue on behalf of people who have similar claims, the “Class” or “Class Members.” One court resolves the issues for all Class Members, except for those who exclude themselves from the Class.

When the C.P. Class Action was filed, it was believed that the violations of the 45 Day Rule had occurred in thousands of cases impacting many more families than the lawsuit’s named Plaintiffs. This ‘class action’ was filed on behalf of all of those families and children with disabilities that were harmed by violation of the 45 Day Rule in the State of New Jersey.

WHO ARE CLASS MEMBERS (WHO IS AFFECTED BY THIS CASE)?

The case had two classes certified, a “B2 Class” and a “B3 Class”

B2 Class definition: All persons who, pursuant to the IDEA, have filed or will file during the time the Court retains jurisdiction, a due process petition with NJDOE and whose cases are pending in the New Jersey Office of Administrative Law (NJOAL). [This case does not include individuals who filed for mediation whose case was never transmitted for a due process hearing, even if the mediation was conducted by an Administrative Law Judge – the 45-Day timeline only applies to due process hearing requests.]

B3 Class definition: All persons who, pursuant to IDEA, filed due process petitions with NJDOE on or after May 23, 2016, who, after their due process petition was transmitted to the NJOAL, did not receive a decision within the timeline defined in 34 C.F.R. § 300.515(a),(c) and the violation occurred prior to April 11, 2024, the date of approval of the Original Consent Order.

WHY WAS THIS CASE SETTLED?

Both sides agreed to the Settlement to avoid the cost and risk of further litigation and trial. If the case went to trial, either side of the lawsuit could lose, so settlement is the best solution for all involved. The Settlement does not mean that any law was broken. NJDOE denies all of the legal claims in this case. The Class Representatives and the lawyers representing them think the Settlement is best for all Class Members.

WHAT IS THE PROPOSED SETTLEMENT?

NJDOE has committed to having cases decided within 45 days on a compliance schedule going forward. After 18 months (1 and 1/2 years), NJDOE is required to be within 95% compliance. A monitor will be appointed by the Court to track the data of all due process cases filed with NJDOE. Class Counsel will also have access to this data and work with the monitor to ensure NJDOE is meeting deadlines and, if necessary, enforce the Settlement in Court. The 10 families that brought the suit (also known as “Named Plaintiffs”) will receive $5,000 each for their participation in discovery and trial preparation. Otherwise, there are no financial awards to other members of the Class. In addition, for class members who were harmed by a violation of the 45 Day Rule before the date the Settlement is approved by the Court, the “B3 Class Members,” the Settlement provides you with an extra two (2) years to bring an individual suit against NJDOE for appropriate relief. This is known as an extension of the ‘Statute of Limitations’. The Settlement does not decide if you are entitled to any awards, such as compensatory education, money, or attorney’s fees, for such lawsuits.

WHY WAS NOTICE ISSUED TO CLASS MEMBERS?

A Court authorized the notice because Class Members have a right to know about the proposed Settlement in this class action lawsuit, and about all of their options, before the Court decides whether to give “final approval” to the Settlement. The notice explains the lawsuit, the Settlement, and the legal rights of Class Members.

AM I A CLASS MEMBER?

You are a member of the Class if:

* You filed an IDEA special education due process petition on or after May 23, 2016
* The case did not settle within the first 30 days after filing and was transmitted to an ALJ at the OAL
* A final decision was not issued within 45 days after the case was sent to the OAL, excluding any time for specific adjournments requested by a party (you or the school district)

If all of these apply to you, then you are a member of the Class.

You are a member of the Class even if you don’t have an open case at this time, as well as people who do have an open case.

If you are still not sure if you are in the Class and included in the Settlement, please contact Class Counsel by sending an email to info@nj45dayclassaction.com.

WHO IS A “NAMED PLAINTIFF” AND HOW IS THAT DIFFERENT FROM BEING A CLASS MEMBER?

The “Named Plaintiffs” are the 10 families who were named in the Complaint filed in federal court. The full name of the case is:

C.P., individually and on behalf of F.P., a minor child; D.O. individually and on behalf of M.O., a minor child; S.B.C., individually and on behalf of C.C., a minor child; A.S., individually and on behalf of A.A.S., a minor child; M.S., individually and on behalf of her minor child, H.S.; Y.H.S., individually and on behalf of his minor child, C.H.S.; E.M. on behalf of her minor child, C.M.; M.M., individually and on behalf of K.M.; L.G., individually and on behalf of her minor child, T.M.; E.P., individually and on behalf of her minor child, Ea.P.; and on behalf of ALL OTHERS SIMILARLY SITUATED
v.
NEW JERSEY DEPARTMENT OF EDUCATION and ANGELICA ALLEN-McMILLAN, Acting Commissioner of Education, in her official capacity.

The Named Plaintiffs brought this lawsuit on their own behalf and on half of “All Others Similarly Situated.” “All Others Similarly Situated” means the two Classes identified in the settlement agreement. If you received the notice of this litigation then you are a member of one or both Classes, but you are not a “Named Plaintiff” if are not one of the families in the caption who have participated in the case from the beginning.

WHY DO ONLY THE NAMED PLAINTIFFS RECEIVE THE $5,000 INCENTIVE PAYMENT?

The Named Plaintiffs volunteered to do a significant amount of work to be Class representatives. They had to respond to written discovery requests, be prepared for and attend depositions, and participate in trial preparation, because the case did not settle until the eve of trial. The $5,000 incentive payment is not compensation for the delays they experienced when they had their due process cases. The incentive payment is an acknowledgment of the work they performed in connection with this lawsuit.

DO I BENEFIT FROM THE SETTLEMENT?

You may benefit from the Settlement in two ways. First, if you have an open request for a due process hearing, or if you file a request for a due process hearing in the future during the period of time the Court retains jurisdiction of this Class Action, you may benefit from the State’s agreement to resolve cases in compliance with the 45 Day Rule and the efforts of NJDOE, the Monitor and Class Counsel to ensure that that systemic violations of the 45 Day Rule are corrected during the 18-month implementation period of the Settlement.

Second, if you filed a request for a due process hearing anytime after May 23, 2016, and after your case was transmitted to the NJOAL you did not receive a decision within 45 days of when it was transmitted, and this occurred prior to the date that the Settlement is approved by the Court, you have an extra two (2) years to bring an individual suit against NJDOE for appropriate relief.

The Settlement does not change the right of any person who in the future is harmed by a violation of the 45 Day Rule to bring an individual action for appropriate relief within two years of the violation.

WHY DOESN’T THE SETTLEMENT PROVIDE MONEY OR COMPENSATORY EDUCATION TO INDIVIDUAL STUDENTS WHO WERE HARMED BY 45 DAY RULE VIOLATIONS?

This case was not a damages class action and never sought damages or compensatory education on behalf of individual students. The focus of this case was to get relief going forward to fix a system that is completely broken. NJDOE must immediately hire a Compliance Monitor to assist with bringing the due process system into compliance with the 45 day rule. If NJDOE does not comply within 18 months, it risks being held in contempt and even greater federal court oversight. This is significant relief.

For individual students, the case sought court declarations that would have allowed their families to bring their claims, even if NJDOE could argue that it was too late to assert a claim. IDEA requires that a person assert claims within two years. The relief for individual families is an agreement that all families will have extra time – two (2) years from the date the settlement is approved – to file a claim against NJDOE for losses caused by violations of the 45 day rule. The settlement agreement does not waive the right to relief for any individual claims and gives every class member extra time to pursue those claims.

CAN I PURSUE A CLAIM FOR INDIVIDUAL RELIEF IF I SETTLED WITH MY SCHOOL DISTRICT? HOW DO I PURSUE A CLAIM FOR INDIVIDUAL RELIEF?

Your settlement with your school district should not affect your right to sue NJDOE for 45 day rule violations.

The class action did not seek and does not provide individual damages or compensatory education relief. The relief for the 23(b)(3) class is to extend the ‘statute of limitations’ (deadline to file) for an individual lawsuit against NJDOE for violation of the 45 day rule. Whether you have a claim for individual relief worth pursuing will depend on the unique circumstances of your case. To determine if you have a claim based on a 45 day rule violation, you should consult with an attorney. You could consult with the attorney who handled your special education matter, because he/she/they will know the facts of your case. If that is not an option, this list includes special education attorneys:https://www.yellowpagesforkids.com/help/nj.htm. You can also find a list of attorneys by going to this page, and clicking at the bottom “I have read the disclaimer and wish to proceed to search” and then searching for attorneys in New Jersey: https://www.copaa.org/page/Direct. This is not an endorsement of these particular directories. You may find other directories that could be helpful. You can also ask friends or acquaintances for personal recommendations. You might find these guidelines for choosing an attorney helpful: https://www.copaa.org/page/GuidelinesAtt.

DO I HAVE TO DO ANYTHING TO BE PART OF THE CLASS ACTION?

If you received the notice, you are a member of either the 23(b)(2) class (people who have due process cases right now), the 23(b)(3) class (people who had due process cases in the past), or both classes. You do not have to do anything.

DO I GIVE UP ANYTHING IN THE SETTLEMENT?

You are not giving up anything in the Settlement. You are entitled to these benefits automatically as a Class Member. You are not waiving any right to bring a lawsuit against NJDOE.

CAN I EXCLUDE MYSELF FROM THE SETTLEMENT?

Prior to February 27, 2024, members of the B3 Class could opt out of the settlement. Members of the B2 Class (those with current cases) cannot opt out because the case seeks relief that brings NJDOE into compliance for all members of the Class.

CAN I OBJECT TO THE SETTLEMENT?

Prior to February 27, 2024, you could object to the settlement.

WHAT IS THE DIFFERENCE BETWEEN EXCLUDING MYSELF AND OBJECTING?

Objecting is simply telling the Court that you don’t like something about the Settlement. You can object only if you stay in the Class. If you stay in the Class, you will be legally bound by all orders and judgments of the Court. Excluding yourself (“opting out”) is telling the Court that you don’t want to be part of the Class. If you opt out, you have no basis to object because the case no longer affects you. You cannot both opt out of and object to the Settlement. If a person attempts to do both, the Court will treat the submissions as an opt-out.

WHAT IS THE FAIRNESS HEARING?

The Court held a “Fairness Hearing” to decide whether to approve the Settlement. The Court decided, after hearing witnesses and evidence, whether the Settlement was fair to all Class Members.

The Court held the Fairness Hearing in this case on April 11, 2024 at 10:00 a.m. Eastern, at the U.S. District Court for the District of New Jersey, Courtroom 3D, 400 Cooper Street, Camden, New Jersey 08102. At this hearing, the Court will determined that the Settlement is fair, reasonable, and adequate and issued its opinion in on the record, available here.

DO I HAVE A LAWYER REPRESENTING ME?

Yes. Class Counsel are the six (6) law firms appointed by the Court to represent the Class. By appointing these firms as Class Counsel, the Court found that they meet the requirements under the law to represent Class Members because they have experience in special education disputes, class actions, or both. The six law firms appointed as Class Counsel are: Education Law Center; Reisman Gran Zuba LLP; Law Office of David R. Giles; Law Office of Denise Lanchantin Dwyer LLC; Thurston Law Offices LLC; and Wasserman Little LLC. They have a Steering Committee who makes the decisions by majority vote for the Class Counsel, and they must always act in the best interests of the Class.

You will not be charged for these lawyers. If you want to be represented by another lawyer, you may hire one to appear in Court for you at your own expense.

HOW WILL THE COSTS AND FEES OF THIS LAWSUIT AND SETTLEMENT BE PAID?

The costs and fees of the lawsuit will be paid by NJDOE. IDEA is called a ‘fee-shifting’ law, which means that the prevailing parties have the fees and costs paid by the other side. NJDOE has agreed to pay for the costs and fees up to the final approval of the Settlement by the Court. Then for implementation of the benefits, NJDOE will pay for the costs and fees of the Class going forward after review for reasonableness.

WHAT HAPPENS IF I DO NOTHING?

If you are a Class Member and do nothing, you will still receive the benefits from this Settlement. You will not be able to exclude yourself or opt out of the Settlement.

HOW CAN I GET MORE INFORMATION?

This notice summarizes the proposed Settlement. More details are in the Settlement Agreement. You can download some of the Court Documents (including the Notice) here or contact Class Counsel.

PLEASE DO NOT TELEPHONE THE DEFENDANT, THE COURT, OR THE COURT CLERK’S OFFICE TO INQUIRE ABOUT THIS SETTLEMENT OR YOUR RIGHTS.