Document Type

Article

Publication Date

12-8-2009

Abstract

This is an appeal from a judgment entered in the United States District Court for the Southern District of New York (Duffy, J.) approving a settlement agreement in a class action certified pursuant to Federal Rule of Civil Procedure 23(b)(2). In the action, class plaintiffs challenged policies adopted by the New York City Administration for Children's Services ("ACS") relating to the removal of children from their homes in cases of abuse and neglect. Named as defendants are the City of New York ("City"), then-mayor of the City Rudolph Giuliani, and ACS Commissioner Nicholas Scoppetta (collectively, "defendants"). At a fairness hearing held by the District Court, plaintiff-appellant Conchita Jones ("Jones") and non-party appellant Wilbur McReynolds ("McReynolds") objected to the proposed settlement agreement.[1] The District Court determined, 794*794 inter alia, that Jones had opted out of the class, and the court entered judgment on February 26, 2007, approving the settlement agreement, which provided for declaratory and injunctive relief to the class as a whole.

Jones and McReynolds, both acting pro se, filed a timely notice of appeal of the February 26, 2007 judgment. On August 3, 2007, this Court granted Jones' motion to proceed in forma pauperis and for appointment of counsel to brief "among any other issues, whether Appellant Conchita Jones opted out of the settlement agreement." This Court appointed pro bono counsel on March 31, 2008.

On appeal, Jones claims that the District Court erred in finding that she had opted out of the class settlement and in removing her as a class representative on the basis of that finding. Jones also asserts that the District Court accordingly failed to consider her objections to the class settlement. McReynolds claims that the notice of the settlement hearing was insufficient to alert potential class members; that the settlement was not fair, adequate, or reasonable; that there is no compensatory relief provided in the class settlement; and that the settlement contains an ambiguous provision in the release of class claims. For the following reasons, we conclude that the District Court erred in finding that Jones had opted out and, consequently, in removing her as class representative, but nevertheless we hold that the error was harmless. With respect to the agreement, we hold that it was fair, adequate, and reasonable, although the text of the release provision does not comport with the undisputed intent of the parties. We therefore affirm the order approving the settlement but remand for the District Court to direct the parties to modify the release provision accordingly.

Comments

588 F.3d 790 (2009)

Wilbur McREYNOLDS, Eddie Jones, Non-Party-Appellants, Conchita Jones, Plaintiff-Appellant, v. Joslin RICHARDS-CANTAVE, On behalf of himself and all others similarly situated, Khatira Hikmah, On behalf of herself and all others similarly situated, Khaliah Martin, On behalf of herself and all others similarly situated, Amanda Sherman, On behalf of herself and all others similarly situated, Theresa Logan, On behalf of herself and all others similarly situated, People United for Children, Inc., On behalf of themselves and all others similarly situated, Agatha Sibley, On behalf of herself and all others similarly situated, Cherry Mcclamy, On behalf of herself and all others similarly situated, Lesley Margerite Adams-Simien, Denise Johnson Burgess, Plaintiffs-Appellees, Lucille Delapenha, On behalf of herself and all others similarly situated, Candia Richards-Cantave, On behalf of herself and all others similarly situated, Jose Pena, Plaintiffs, The City of New York, Michael Bloomberg,[*] Mayor of the City of New York, Administration for Children's SERVICES, John B. Mattingly,[**] In his official capacity as Commissioner of the Administration for Children's Services, Defendants-Appellees.

Docket Nos. 07-2042-cv(L), 07-2084-cv(CON), 07-2636cv(CON).

United States Court of Appeals, Second Circuit.

Argued: June 18, 2009.

Decided: December 8, 2009.

New York Law School location: File #3811, Box 154

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