C.P. v. NEW JERSEY DEPARTMENT OF EDUCATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

C.P., individually and on Civil Action No. 19-12807

behalf of F.P., a minor

child; D.O. individually

and on behalf of M.O., a OPINION

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,

Plaintiffs,

V.

NEW JERSEY DEPARTMENT OF

EDUCATION and ANGELICA ALLEN-

McMILLAN, Acting Commissioner

of Education, in her official

capacity,

Defendants.

CATHERINE MERINO REISMAN

REISMAN CAROLLA GRAN & ZUBA LLP

19 CHESTNUT STREET

HADDONFIELD, NJ 08033-1810

ROBERT CRAIG THURSTON

THURSTON LAW OFFICES LLC

100 SPRINGDALE ROAD A3

PMB 287

CHERRY HILL, NJ 08003

JOHN DOUGLAS RUE

LISA MARIE QUARTAROLO

JOHN RUE & ASSOCIATES

694 ROUTE 15 SOUTH

SUITE 206

LAKE HOPATCONG, NJ 07849

DONALD A. SOUTAR

KRISTA LYNN HALEY

SARAN QIANA EDWARDS

JOHN RUE AND ASSOCIATES

37 MAIN STREET

SPARTA, NJ 07871

JEFFREY IAN WASSERMAN

WASSERMAN LEGAL LLC

30B VREELAND ROAD - SUITE 120

FLORHAM PARK, NJ 07932

THOMAS JOSEPH O’LEARY

DAVID DANA CRAMER

HECTOR DANIEL RUIZ

WALSH PIZZI O’REILLY FALANGA LLP

THREE GATEWAY CENTER

100 MULBERRY STREET - 15TH FLOOR

NEWARK, NJ 07102

DAVID R. GILES

34 RYNDA ROAD

SOUTH ORANGE, NJ 07079

DENISE LANCHANTIN DWYER

LAW OFFICE OF DENISE LANCHANTIN DWYER LLC

5 DUXBURY CT

PRINCETON JUNCTION, NJ 08550-2137

Counsel for Plaintiffs.

ERIN IRENE HERLIHY

COLIN KLIKA

CAROLYN G. LABIN

DAVID LEE KALISKY

STATE OF NEW JERSEY

OFFICE OF THE ATTORNEY GENERAL

25 MARKET STREET

P.O. BOX 112

TRENTON, NJ 08625

Counsel for Defendants.

LAURIE LEE FICHERA

STATE OF NEW JERSEY, DIVISION OF LAW

HUGHES JUSTIC COMPLEX

25 MARKET STREET

PO BOX 112

TRENTON, NJ 08625-0112

Counsel for OAL

JENNIFER N. ROSEN VALVERDE

EDUCATION LAW CENTER

RUTGERS UNIVERSITY SCHOOL OF LAW

123 WASHINGTON STREET

NEWARK, NJ 07102

Counsel for Amici Curiae SPAN Parent Advocacy Network;

Advocates for Children of New Jersey; Council of Parent

Attorneys and Advocates; Disability Rights New Jersey;

Educational Law Center; NJ Special Education Practitioners;

Volunteer Lawyers for Justice; Esther Canty-Barnes, Esq.;

and Jennifer N. Rosen Valverde, Esq.

HILLMAN, District Judge

This action asserted on behalf of a class centers on the

New Jersey Department of Education’s (“NJDOE”) system for

processing and issuing decisions on due process petitions filed

by children with disabilities and their families under the

Individuals with Disabilities Educations Act (“IDEA”), 20 U.S.C.

§ 1400, et seq. Presently pending before the Court are

Plaintiffs’ motions to certify classes under Rule 23(b)(2) and

Rule 23(b)(3) by way of Rule 23(c)(4) as well as to appoint

class counsel both classes. (ECF 240, 241). For the reasons

expressed below, the Court will grant both motions in their

entireties.

Background

The Court has previously outlined the factual and

procedural background of this case in greater detail in its May

22, 2020 Opinion and its November 24, 2020 Opinion, (ECF 98,

140), and assumes the parties’ understanding of this background.

Accordingly, it will not repeat those details except as

necessary to set the stage for its instant Opinion.

This matter involves allegations that New Jersey’s dispute

resolution system for special education matters violates the

IDEA on a systematic basis. (See ECF 98). The second amended

complaint brings claims under the IDEA and 42 U.S.C. § 1983

related to Defendants’ alleged endemic failure to decide due

process petitions within the 45-day timeframe guaranteed by the

IDEA. (See ECF 76). It asks the Court to remedy the alleged

violations by providing injunctive and declaratory relief.

(Id.) Since the Court issued its November 24, 2020 Opinion, the

parties have been earnestly engaged in discovery. After a

contentious discovery period, discovery closed in November 2021.1

Plaintiffs, a putative class of disabled minor children and

their parents, now move to certify two classes for relief under

their second amended complaint. (ECF 76). These motions are

their second attempt at class certification in this matter.

(See ECF 140).

Plaintiffs’ motion for certification of a class under Rule

23(b)(2) seeks to certify a class:

(a) declaring NJDOE to currently be in violation of federal

law, both the IDEA and its corresponding regulations,

governing timelines for disposition of due process

hearing requests;

(b) prospectively enjoining defendants:

i. from continuing to violate the 45 Day Rule, by

requiring that all pending and newly filed actions

be completed within 45 days of the end of the

resolution period, after deducting the days related

to specific extensions of time or adjournments

requested by either party or by consent; and

ii. from promulgating or implementing any new

policies, procedures, or guidelines relevant to

special education due process hearings absent

further order of the Court.

(c) requiring NJDOE to submit to the Court a plan to

remediate the current backlog in the OAL within a

specific timeframe, for the Court’s approval or

modification, after the Class has been given an

opportunity to be heard and/or to object. (ECF 240-1 at

2-3).

1 The Court allowed a period of further discovery in March 2022

which concluded in May 2022. (See ECF 343, 350, 370).

The proposed class also asks that the Court appoint a special

Master to develop a remediation plan with NJDOE. (Id.) The

Rule 23(b)(2) class as contemplated by Plaintiffs would

include:

All persons who, pursuant to the IDEA, filed Due Process

Petitions with NJDOE on or after February 1, 2005, who,

after their Due Process Petition was transmitted to the

OAL, did not receive a decision within 45 days thereafter,

excluding the time associated with any specific

adjournments made at the request of either party. These

allegations specifically are intended to include those who

settled or abandoned their claims prior to the expiration

of the 45 day timeline. (Id. at 7).

Plaintiffs also seek to certify an issues class under Rule

23(b)(3) by way of Rule 23(c)(4). This class contemplates

relief granted in the form of the Court answering certain legal

and factual questions that Plaintiffs contend affect the entire

putative class. These questions include:

(a) How long has NJDOE been systemically violating the 45 Day

Rule; and

(b) Whether NJDOE’s misrepresentations amounted to wrongful

concealment, thus satisfying the first prong of the

fraudulent concealment doctrine for purposes of tolling

the statute of limitations; and

(c) Whether New Jersey’s “entire controversy” doctrine would

preclude the commencement of subsequent individual

actions against NJDOE, seeking substantive equitable

relief not sought on behalf of class members in this

action, such as (i) compensatory education, (ii)

reimbursement of tuition or the cost of specific

services, or (iii) reimbursement of attorneys’ fees,

where the right to those remedies have been waived

against the Local Educational Agency (LEA) as a result of

NJDOE’s broken dispute resolution system. (241-1 at 2-3).

The proposed class definition is completely coextensive with the

definition proposed for the Rule 23(b)(2) class.

Defendants oppose the certification of either class. (ECF

312). They attack Plaintiffs’ motions for class certification

on ascertainability grounds, that Plaintiffs cannot meet the

Rule 23(b) requirements, and the Rule 23(c)(4) requirements.

(Id.) Plaintiffs filed reply briefs in further support of their

motions, addressing each of the arguments in Defendants’

opposition. (ECF 318, 319). As will be explained below, the

Court will grant both of Plaintiffs’ motions in their

entireties.

Discussion

I. Subject Matter Jurisdiction

Plaintiffs’ claims arise under the IDEA and § 1983.

Because this matter arises under federal statutory law, this

Court exercises subject matter jurisdiction pursuant to 28

U.S.C. § 1331.

II. Motion for Class Certification under Rule 23(b)(2)

Federal Rule of Civil Procedure 23(b)(2) allows plaintiffs

to seek to certify a class where “the party opposing the class

has acted or refused to act on grounds that apply generally to

the class, so that final injunctive relief or corresponding

declaratory relief is appropriate respecting the class as a

whole[.]” Fed. R. Civ. P. 23(b)(2). As a prerequisite to meet

this standard, a putative class must also satisfy Rule 23(a),

which requires a showing of numerosity, commonality, typicality,

and adequacy of representation. Fed. R. Civ. P. 23(a).

Rule 23(b)(2) is the vehicle to certify a class where

plaintiffs are seeking injunctive relief. In re Thalomid &

Revlimid Antitrust Litig., 2018 WL 6573118, at *24 (D.N.J. Oct.

30, 2018) (“‘Subsection (b)(2) class actions are ‘limited to

those class actions seeking primarily injunctive or

corresponding declaratory relief.’”) (quoting Barnes v. Am.

Tobacco Co., 161 F.3d 127, 142 (3d Cir. 1998)). Critical to a

certification of a Rule 23(b)(2) class is that the Court must

find that the class is not primarily seeking monetary relief.

Hohider v. United Parcel Serv., Inc., 574 F.3d 169, 198 (3d Cir.

2009) (“The advisory committee's 1966 note to Rule 23(b)(2)

specifies that ‘[t]he subdivision does not extend to cases in

which the appropriate final relief relates exclusively or

predominantly to money damages.’”). Indeed, “[w]hile 23(b)(2)

class actions have no predominance or superiority requirements,

it is well established that the class claims must be cohesive.”

Barnes, 161 F.3d at 143.

The Court will begin its analysis with the requirements

under Rule 23(a).

a. The requirements of Rule 23(a)

i. Numerosity

Rule 23(a)(1) requires that the proposed class be “so

numerous that joinder of all members is impracticable.” Fed. R.

Civ. P. 23(a)(1). In the Third Circuit, there is no minimum

number of plaintiffs to maintain a suit as a class action, and a

plaintiff can generally satisfy the numerosity requirement by

establishing that the potential number of plaintiffs exceeds

forty (40). Mielo v. Steak 'n Shake Operations, Inc., 897 F.3d

467, 485 (3d Cir. 2018).

Here, Plaintiffs do not point to a specific number of

putative class members to support their argument that they meet

the numerosity requirement. Rather, in addition to other

indirect evidence, they rely on the number of due process

petitions, requests for mediation, and requests for emergent

relief as well as the number of transmittals of cases from NJDOE

to OAL from 2010 through 2020. (See ECF 240-1 at 12-13). The

data that they provide shows thousands of filings in each

category. (Id.) However, that alone does not directly

establish whether there are enough class members to meet the

numerosity requirement.

Plaintiffs make clear that the putative class includes “all

New Jersey persons who filed a due process petition with NJDOE

on or after February 1, 2005 and who did not receive a decision

with 45 days of the conclusion of the resolution period”,

putting aside adjournments requested by the parties, or who

“settled or abandoned their claims prior to the expiration of

the 45-day timeline.” (Id. at 12, 7). To be sure, the data

Plaintiffs have provided does not directly show how many of

those thousands of petitions were not resolved within 45 days

after the end of the resolution period or the reason or reasons

why.

The Court is required to make a “factual determination,

based on the preponderance of the evidence, that Rule 23's

requirements have been met.” Marcus v. BMW of N. Am., LLC, 687

F.3d 583, 596 (3d Cir. 2012). The Court is not permitted to

merely speculate that the putative class is numerous. Id. That

said, a plaintiff moving for class certification is not required

to identify the exact number or identities of the class members.

Id. If a plaintiff can show through circumstantial evidence

specific to the problems or parties such that the court may make

a sound factual finding, the court may rely on common sense to

forgo precise calculations and exact numbers. Id.

Defendants argue that numerosity is not satisfied because

Plaintiffs’ charts of petitions filed with NJDOE do not

specifically show how many cases were not handled within 45

days. (ECF 312 at 25). They contend that per In re: Hydrogen

Peroxide Antitrust Litig., 552 F.3d 305, 318 (3d Cir.2008), it

is not enough for Plaintiffs to say that they “intend” to meet

the numerosity requirement. (ECF 312 at 26).

But that is not what Plaintiffs are doing here. As Marcus

made clear, circumstantial evidence of numerosity may suffice in

the absence of direct evidence. Marcus, 687 F.3d at 596. While

the evidence proffered by Plaintiffs does not lend itself to a

clear calculation of precisely how many class members there are,

the totality of the circumstantial evidence put forth by

Plaintiffs satisfies the Court that it can make a factual

finding that numerosity is satisfied.

In arriving at this conclusion, the Court is mindful of the

directive that the Third Circuit set forth in Marcus not to

cross the “line separating inference and speculation.” Id. at

597. Put differently, the Court cannot guess as to numerosity

but may rely on “sufficient circumstantial evidence specific to

the products, problems, parties, and geographic areas actually

covered by the class definition to allow a district court to

make a factual finding.” Id. at 596.

Numerosity is not as simple as pointing to a concrete

number of class members here where NJDOE and OAL simply do not

keep records of adjournments and the reasons they occur in

particular matters. Indeed, Plaintiffs have proffered evidence

that OAL has no internal mechanism or case management system to

track which cases that go beyond the 45-day timeline do so

because of permissible extensions sought by the parties. (See

ECF 243-4 at 112, Tr. 57:3-11 (deposition of OAL’s Rule 30(b)(6)

witness)).

The most concrete evidence proffered by Plaintiffs in

support of numerosity is the number of due process petitions

transferred to OAL from 2010 through 2020 which number in the

high hundreds for each year. (ECF 240-1 at 12-13). To stop the

numerosity analysis here and conclude from the sheer number of

transmittals that numerosity must be satisfied would run afoul

the Third Circuit’s holding in Hayes v. Wal-Mart Stores, Inc.,

725 F.3d 349, 358 (3d Cir. 2013), where the Third Circuit held

that “where a putative class is some subset of a larger pool,

the trial court may not infer numerosity from the number in the

larger pool alone.”

For purposes of explaining how this case differs from

Hayes, some background of the Third Circuit’s reasoning bears

discussion. In Hayes, the plaintiffs were a putative class of

individuals who purchased items marked “as-is” at Sam’s Club, a

retailer owned an operated by Wal-Mart. Id. at 352. When an

item was purchased “as-is”, the cashier had to perform a price

override to apply the new price. Id. However, the price

override functionality did not allow the cashier to indicate why

the override was performed. Id. Price overrides can be

performed for reasons other than the purchase of an “as-is”

item. Id. Under store policy, individuals who purchased “as-

is” products were not supposed to be able to purchase service

plans for those products because the service plans would not

cover those products. Id. The proposed class in Hayes covered

individuals who purchased “as-is” products and who were sold

service plans.2 Id. at 353.

As evidence of numerosity, the plaintiffs proffered

evidence of 3,500 price overrides conducted in conjunction with

the sale of a service plan. Id. The problem was that there was

no way to tell the reason for the price override. Id. at 352.

The district court certified the class reasoning that “if even

5% of those price overrides were for as-is items that were

ineligible for Service Plan protection, the class would be

sufficiently numerous.” Id. at 353.

The Third Circuit held that this reasoning, even if it was

a good bet, was too speculative to make because the bare number

2 Excluded from the proposed class were those people who received

refunds for the service plans or who actually received coverage

under the service plan. Id. at 353.

of the larger pool was the only evidence as to numerosity

proffered by the plaintiffs. Id. at 357-58. (“The only

concrete numerical evidence presented to the court was that New

Jersey Sam's Clubs had on record 3,500 transactions that

included both a price-override and the sale of a Service Plan. .

. Within that range, we can only speculate as to the number of

class members.”).

If the only evidence offered by Plaintiffs here were the

number of transmittals sent to OAL over the years, this case

would fall squarely within the ambit of Hayes and this Court

would have to deny class certification on the basis of

numerosity. However, Plaintiffs offer more in the way of

“circumstantial evidence specific to the products, problems,

parties, and geographic areas actually covered by the class

definition” such that the Court is satisfied that an inference

that numerosity is satisfied is not speculative. Marcus, 687

F.3d at 596-97.

First, Plaintiffs proffer the testimony of the Chief

Administrative Law Judge at New Jersey’s Office of

Administrative Law (“OAL”), Ellen Bass, where she admitted that

“some of our cases take too long to be decided and in that

respect, we’re not complying with the spirit [of the law].” (See

ECF 243-4 at 123, Tr. 102:14-16 (deposition of OAL’s Rule

30(b)(6) witness)). Further, Plaintiffs cite to a 2014 white

paper put out by OAL in which OAL stated in the context of

complying with the 45-day rule that “[m]eeting this requirement

has long been a challenge” and that part of the problem stemmed

from “the availability of a limited pool of [Administrative Law

Judges] ALJs[.]” (ECF 88-2 at 30). That report noted, for

instance, that in February 2014, 176 special education cases

before OAL were carried over from 2013. (Id. at 32).

The report also noted that in 2013 of the approximately 788

special education filings transmitted to OAL and only 65.62% of

cases were resolved in 90 days or less. (Id. at 31-32). In the

white paper, the ALJ did not attribute the delay to adjournments

requested by the parties but rather to hearing days not being

fully used and the difficulty in scheduling experts in addition

to the limited number of ALJs. (Id.) In other words, OAL

attributed the number of old cases to its management of the

dispute resolution system.

Plaintiffs also proffer more recent evidence. In 2017,

then-Chief ALJ Laura Sanders sent a letter to stakeholders in

the education law field describing the issue as “the shortage of

Administrative Law Judges, which has sorely impacted the OAL's

ability to move cases.” (ECF 88-3 at 42). A 2018 report by the

New Jersey Special Education Practitioners to the Governor

indicated that the average time between transmittal of a case to

OAL and a final decision was 212 days.3 (ECF 88-3 at 53).

Finally, they proffer the 2019 findings of the U.S. Department

of Education (“USDOE”) on NJDOE’s dispute resolution system that

concluded that “the State does not have procedures for ensuring

that decisions in due process hearings are issued within the 45-

day timeline or within allowable extensions[.]”4 (ECF 243-4 at

3 The parties do not address whether this report should be

considered inadmissible hearsay. This Court notes, though, that

this district has held that a district court could consider

hearsay at the class certification stage. In re Front Loading

Washing Mach. Class Action Litig., No. CIV.A. 08-51 FSH, 2013 WL

3466821, at *10 (D.N.J. July 10, 2013) (“The Federal Rules of

Evidence are not stringently applied during class certification

and courts may consider evidence that might later be ruled

inadmissible at trial. . . In addition, at the class

certification stage, courts often examine pleadings as well as

affidavits, containing hearsay.”). The Third Circuit recently

declined to opine on this issue. Allen v. Ollie's Bargain

Outlet, Inc., 37 F.4th 890, 899 (3d Cir. 2022) (“We decline to

decide this question.”).

4 The Court holds that this report by USDOE is properly

admissible under the hearsay exception for factual findings from

a legally authorized investigation pursuant to Federal Rule of

Evidence 803(8)(A)(iii). Clark v. Clabaugh, 20 F.3d 1290, 1294

(3d Cir. 1994) (“We note further that Federal Rule of Evidence

[808(8)(A)(iii)] explicitly excepts public records and reports

‘resulting from an investigation made pursuant to authority

granted by law,’ from exclusion under the hearsay rule, because

official reports contain inherent indicia of trustworthiness.”);

Dunn v. Premier Cap., Inc., 2013 WL 3466826, at *3 (D.N.J. July

9, 2013) (“The letters from the Department of Education and the

New Jersey Higher Education Student Assistance Authority are

admissible under the public records exception. As Dunn argues,

officials at the two agencies wrote both letters after an

investigation and in accordance with the guidelines of the U.S.

Department of Education.”) There is nothing in the record to

32).

The Court finds that all of this circumstantial evidence

taken together takes making a numerosity finding out of the

realm of speculation and into the realm of appropriate

inference. The Court finds that the number of transmittals to

OAL, plus the admissions by OAL personnel that delays were due

to understaffing of ALJs, plus the reports by the special

education practitioners and USDOE constitute the kind of

evidence “specific to the products, problems, parties, and

geographic areas” that allow this Court to make a factual

finding that numerosity is satisfied. See Marcus, 687 F.3d at

596.

To require more would be to require Plaintiffs to actually

produce a concrete number of class members and Marcus and Hayes5

suggest that the report lacks trustworthiness. Further, under

Federal Rule of Evidence 403, the Court finds that the probative

value of the report is not outweighed by the risk of unfair

prejudice. First, the report is probative of the very issue at

the heart of this litigation, whether NJDOE complied with the

45-day rule. Second, the risk of unfair prejudice, confusing

the issues, or waste of resources is low given that the contents

of the report are linked very closely to the actual factual

investigation that USDOE conducted and that that investigation

substantially overlaps with the issues now before the Court.

5 The Court also notes as an aside that in Hayes, the Third

Circuit seemed to weigh the fact that Wal-Mart was not required

to keep records of price overrides for “as-is” purchases as

counseling against a numerosity finding. Hayes, 725 F.3d at

357. It is arguable that the same cannot be said for NJDOE

which is required to have procedural safeguards for parties to

clearly held that a putative class need not go so far to carry

its numerosity burden.6 Hayes, 725 F.3d at 357 (“‘Rule

23(a)(1) does not require a plaintiff to offer direct evidence

of the exact number and identities of the class members.’”)

(quoting Marcus, 687 F.3d at 596-97).

ii. Commonality

Rule 23(a)(2) requires Plaintiffs to demonstrate that

“there are questions of law or fact common to the class.” Fed.

R. Civ. P. 23(a)(2). The commonality requirement “is not a high

bar.” Chiang v. Veneman, 385 F.3d 256, 265 (3d Cir. 2004)

(abrogated on other grounds). Commonality requires the

plaintiff to demonstrate that the class members “have suffered

the same injury.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338,

349-50 (2011) (citation omitted). “What matters to class

certification is not the raising of common ‘questions’ - even in

due process hearings under the IDEA. See 20 U.S.C. § 1415(f).

6 Finally, as discussed below in the Court’s analysis of

ascertainability, one major component of the allegations in this

action is that NJDOE and OAL systematically fail to properly

track adjournments across all of their cases. Viewed in this

light, any of the thousands of petitions that went through the

flawed dispute resolution system were tainted by systemic

failures such that parties to those cases would be class

members. The Court does not pin its numerosity analysis on this

basis given the apparent nuance between numerosity and

ascertainability as developed in the Third Circuit’s

jurisprudence. Compare Hayes, 725 F.3d at 357, with Hargrove v.

Sleepy's LLC, 974 F.3d 467, 482 (3d Cir. 2020).

droves - but, rather the capacity of a classwide proceeding to

generate common answers apt to drive the resolution of the

litigation. Dissimilarities within the proposed class are what

have the potential to impede the generation of common answers.”

Id. (citation and alterations omitted).

The Court finds that the commonality requirement has been

met here. Specifically, the proposed class raises the common

factual question of whether the NJDOE systematically violated

the 45-day rule and the legal question of whether the 45-day

rule is to be strictly applied such that delays beyond 45 days

in resolving matters where extensions were not requested jointly

by the parties violates federal law. (See ECF 76). Like in

Chiang, the claims at issue here implicate a “uniform course of

conduct common to all class members subject to common proof in a

single trial.” Chiang, 385 F.3d at 266.

Defendants try to defeat commonality by arguing “there is

no common proof available to demonstrate that each individual

class plaintiff suffered a procedural violation of the 45-day

rule without an individual fact-inquiry.” (ECF 312 at 28).

This assertion is in blatant contradiction to the record. There

are many instances in the record through the parties’ summary

judgment motions of individuals who worked for NJDOE or OAL

acknowledging consistent failures to track case timelines.

(See, e.g., ECF 243-4 at 268, Tr. 71:18- 72:2 (deposition of

Dominic Rota)). Therefore, the Court finds that Plaintiffs have

met the commonality requirement.7

iii. Typicality

Rule 23(a)(3) requires that the class representatives’

claims be “typical of the claims ... of the class.” Fed. R. Civ.

P. 23(a)(3). This “ensures the interests of the class and the

class representatives are aligned so that the latter will work

to benefit the entire class through the pursuit of their own

goals.” In re National Football League Players Concussion

Injury Litigation, 821 F.3d 410, 427–28 (3d Cir. 2016)

(quotation and citations omitted). “A named plaintiff's claims

are typical where each class member's claims arise from the same

course of events and each class member makes similar legal

arguments to prove the defendant's liability.” Atis v. Freedom

Mortg. Corp., 2016 WL 7440465, at *7 (D.N.J. Dec. 27, 2016).

7 Defendants relatedly argue that Plaintiffs are asking the Court

for an advisory opinion on the applicability of the 45-day rule

because Plaintiffs only put forward “hypothetical facts.” (ECF

312 at 32-33). They cite to Gonzalez v. Corning, 885 F.3d 186,

193 (3d Cir. 2018), as amended (Apr. 4, 2018), where the Third

Circuit said that if parties’ interests were not sufficiently

adverse, it would effectively be asking for an advisory opinion.

In Gonzalez, the Third Circuit concluded that the question

presented by the plaintiffs would result in an advisory opinion

where the defendant said they were not going to dispute the

issue. Id. That is not the case here where violation of the

45-day rule is actively disputed.

The Third Circuit has set a “low threshold” for typicality, and

“[e]ven relatively pronounced factual differences will generally

not preclude a finding of typicality where there is a strong

similarity of legal theories or where the claim arises from the

same practice or course of conduct.” Id. at 428 (citations

omitted).

Typicality is satisfied here. All of the class

representatives have allegedly been damaged by NJDOE’s and OAL’s

failure to decide due process cases within the 45-day rule. The

fact that there might be some nominal factual differences in the

cases of the class representatives as compared to the cases of

the putative class members does not destroy typicality. The

Court believes that the claims of the proposed class

representatives are typical enough of the putative class that it

is assured that the representatives will work to benefit the

class as a whole by pursuing their own goals. In re National

Football League Players Concussion Injury Litigation, 821 F.3d

at 427–28.

Defendants’ argument to the contrary is a nonstarter.

Principally, they argue that the claims are not typical, because

there is no evidence in the record that all class members

experienced any improper delays. (ECF 312 at 37-38). The Court

rejects this argument. Plaintiffs allege that Defendants’

consistent failure to put in place mechanisms to comply with the

45 day rule was so pervasive that it tainted the entire dispute

resolution process. Thus, typicality is satisfied.

iv. Adequacy of Representation

Rule 23(a)(4) requires class representatives to “fairly and

adequately protect the interests of the class.” Fed. R. Civ. P.

23(a)(4). This requirement “tests the qualifications of class

counsel and the class representatives,” and it “also aims to

root out conflicts of interest within the class to ensure that

all class members are fairly represented in the negotiations.”

In re National Football League Players Concussion Injury

Litigation, 821 F.3d at 428. “A party challenging the class'

representation has the burden to prove that the representation

is not adequate.” Wilson v. Cty. of Gloucester, 256 F.R.D. 479,

487 (D.N.J. 2009) (internal citation omitted).

Here, there is nothing in the record to suggest that

neither class members nor proposed counsel would not provide

adequate representation. It appears that the proposed class

representatives have litigation goals that sufficiently overlap

with those of the putative class members such that adequacy is

met.8 In re Nat'l Football League Players Concussion Inj.

8 The named plaintiffs are C.P. on behalf of (“o.b.o.”) F.P.,

A.S. o.b.o. A.A.S., D.O. o.b.o. M.O., E.M. o.b.o. C.M., E.P.

o.b.o. Ea.P., L.G. o.b.o. T.M. (Roe), M.M. o.b.o. K.M., M.S.

Litig., 821 F.3d at 431 (quoting Dewey v. Volkswagen

Aktiengesellschaft, 681 F.3d 170, 183 (3d Cir.2012)) (“The

‘linchpin of the adequacy requirement is the alignment of

interests and incentives between the representative plaintiffs

and the rest of the class.’”). Defendants claim that the named

plaintiffs are not adequate because they have not shown that

they are sufficiently likely to be harmed again or that they

have live, viable controversies. (ECF 312 at 39-42).

Defendants are grasping at straws.

Plaintiffs specifically contend that the named plaintiffs

are likely to file due process petitions again. (See ECF 318 at

10); Cty. of Riverside v. McLaughlin, 500 U.S. 44, 52 (1991)

(holding that transitory claims are not defeated by mootness);

Cty. of Butler v. Governor of Pennsylvania, 8 F.4th 226, 231 (3d

Cir. 2021), cert. denied sub nom. Butler Cty., Pennsylvania v.

Wolf, No. 21-698, 2022 WL 89363 (U.S. Jan. 10, 2022)

(acknowledging the exception to the mootness doctrine for

violations that are capable of repetition yet evading review).

Providing needed educational services is a dynamic process

requiring constant monitoring and reevaluation. on at least a

o.b.o. H.S. (Doe), S.B.C. o.b.o. C.C., and Y.H.S. o.b.o. C.H.

All of the named plaintiffs had due process petitions

transferred to OAL and allege that they experienced delays

longer than 45 days in the resolution of their cases due to

NJDOE’s broken dispute resolution system. (ECF 241-1 at 6-17).

yearly basis. This case and related litigation in this Court

demonstrate that rarely is a disabled child’s Individualized

Educational Plan (“IEP”) a “one and done.” This goes to the

heart of the Plaintiff’s class claims. The failure of the State

to render decisions in a timely fashion precludes the annual,

and sometimes more frequent, reassessments of the efficacy of a

particular IEP. This is a classic case of harm that may easily

reoccur and even become exacerbated over time. Defendants’

argument fails on the adequacy of the named plaintiffs.

The same can be said for the proposed class counsel.

Defendants principally attack proposed class counsel on the

basis that they were counsel for some of the named plaintiffs in

their due process petitions. (ECF 312 at 63-64). They have not

cited any law or any other compelling reason why this would

constitute a conflict. Proposed class counsel appear to have

sufficient experience and overlapping unconflicted interests to

adequately represent the putative class. Therefore, the Court

finds that the adequacy requirement has been satisfied.

b. Analysis of the Requirements under Rule 23(b)(2)

Plaintiffs here seek certification of a class to determine

whether NJDOE is in violation of “the IDEA and its corresponding

regulations, governing timelines for disposition of due process

hearing requests[.]” (ECF 240-1 at 2). The relief that they

seek for this class involves enjoining Defendants from violating

the 45-day rule, enjoining Defendants from promulgating or

implementing any new policies or procedures regarding due

process hearings without approval from the Court and requiring

NJDOE to submit a plan to the Court regarding how it will

remediate its current backlog of cases pending in OAL. (Id.)

To start, the remedies that Plaintiffs seek here are all

injunctive or declaratory in nature. That kind of relief is

specifically contemplated by Rule 23(b)(2). Wilson, 256 F.R.D.

at 491 (noting that classes certified under Rule 23(b)(2) are

suited for handling equitable relief).

Cases where plaintiffs have sought to compel change

institution-wide policies and practices, such as is the case

here, are the touchstone cases for Rule 23(b)(2) certification.

See Barnes v. Am. Tobacco Co., 161 F.3d 127, 142 (3d Cir. 1998)

(“The (b)(2) class serves most frequently as the vehicle for

civil rights actions and other institutional reform cases that

receive class action treatment.”) (internal quotation marks

omitted). Here, there is a large group of putative class

members that could uniquely be served by Rule 23(b)(2)’s ability

to obtain for them sweeping reform of NJDOE’s special education

dispute system. See id. (“Indeed, (b)(2) was designed

specifically for civil rights cases seeking broad declaratory or

injunctive relief for a numerous and often unascertainable or

amorphous class of persons.”) (internal quotation marks

omitted).

The Court also finds that the class is cohesive enough such

that certification under Rule 23(b)(2) is appropriate. Despite

Defendants’ arguments to the contrary, the Court does not see

“disparate factual circumstances” that warrant refusal to

certify the Rule 23(b)(2) class. See Barnes, 161 F.3d at 143.

The Court here is not faced with varying individual issues for

the class members. As it considers the claim of whether NJDOE’s

dispute resolution system violates the IDEA, it will be able to

order a uniformly applicable remedy if warranted. This makes

the instant matter a textbook example of the kind of case to

appropriate for Rule 23(b)(2) certification. See In re Thalomid

& Revlimid Antitrust Litig., 2018 WL 6573118 at *24.

Finally, and also critically, Plaintiffs are not asking for

monetary damages, which is the usual stumbling block to

certifying a Rule 23(b)(2) class. Hohider, 574 F.3d at 198;

M.A. ex rel. E.S. v. Newark Pub. Sch., 2009 WL 4799291, at *16

(D.N.J. Dec. 7, 2009)(noting that even though it determined that

compensatory damages were not able to be pursued under a

23(b)(2) class, that fact does “not preclude the Court from

concluding, as it has, that the portion of the action seeking a

declaration that Defendants violated the IDEA and an order

compelling them to take certain remedial actions may and,

indeed, should proceed on a class-wide basis under Rule

23(b)(2)”).

One issue yet to be addressed is whether any dispositive

order issued by this Court after it certified a Rule 23(b)(2)

class would have preclusive effect on individual damage claims.

This is a key issue to be considered when considering certifying

a Rule 23(b)(2) class. In re Thalomid & Revlimid Antitrust

Litig., 2018 WL 6573118 at *25 (noting that the potential

preclusive effective any injunction granted for the class could

have on subsequent individual actions for damages should be

considered when analyzing a motion for class certification under

Rule 23(b)(2)). The Third Circuit has not spoken conclusively

about whether a 23(b)(2) action automatically bars later actions

for damages.

That said, the Circuits that have opined on the matter have

found it appropriate to at least say that a judgment in a

23(b)(2) class action does not per se bar later actions on

damages. See Hiser v. Franklin, 94 F.3d 1287, 1291 (9th Cir.

1996)(“Moreover, the general rule is that a class action suit

seeking only declaratory and injunctive relief does not bar

subsequent individual damage claims by class members, even if

based on the same events.”); Gooch v. Life Invs. Ins. Co. of

Am., 672 F.3d 402, 429 (6th Cir. 2012) (“In sum, certifying

declaratory relief under Rule 23(b)(2) is permissible even when

the declaratory relief serves as a predicate for later monetary

relief, which would be certified under Rule 23(b)(3).”) The

Court is persuaded by this legal authority that a judgment on

the Rule 23(b)(2) class’s claims would not necessarily

extinguish the rights of individual class members to later

pursue separate damages actions.9

Of course, the Court does not have the power to declare the

res judicata effects of a decision not yet rendered. That is

ultimately a decision for the Court that is presented with such

a subsequent action. In re Skelaxin (Metaxalone) Antitrust

Litig., 299 F.R.D. 555, 578 (E.D. Tenn. 2014)(A court “cannot

guarantee a subsequent court will recognize this reservation,

given that no court can determine the preclusive effect of its

judgment in a separate, subsequent action.”); In re Vitamin C

Antitrust Litig., 279 F.R.D. 90, 115 (E.D.N.Y. 2012) (“Although

I find that the indirect purchasers' damages claims should not

9 Though this issue has not been squarely addressed, the Third

Circuit has expressed openness to the concept that there may be

situations where subsequent actions based on the same

controversy might be appropriate. See Venuto v. Witco Corp.,

117 F.3d 754, 758–59 (3rd Cir.1997) (allowing a separate action

where the district court had expressly reserved the right for

there to be a separate action).

be barred in subsequent suits, it is necessary to discuss the

oft-cited notion that “the court conducting the action cannot

predetermine the res judicata effect of the judgment.”)

Because it is satisfied that the factors relevant to

certification have been met and that the certification of this

class will not per se preclude future damages actions, the Court

will grant Plaintiffs’ motion to certify the Rule 23(b)(2)

class.

III. Motion for Class Certification Under Rule 23(b)(3)

Plaintiffs also seek certification of an “issues class”

pursuant to Rule 23(b)(3) and 23(c)(4). (ECF 241-1 at 2).

Under Rule 23(b)(3), in addition to meeting the factors under

23(a), the proposed class must satisfy the requirements of

predominance and superiority. Wilson v. Cty. of Gloucester, 256

F.R.D. 479, 485 (D.N.J. 2009) (“‘The twin requirements of Rule

23(b)(3) are known as predominance and superiority.’”) (quoting

In re: Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 310 (3d

Cir.2008)). “The reasoning behind the predominance and

superiority requirements is so that certifying a class would

achieve economies of time, effort, and expense, and promote ...

uniformity of decision as to persons similarly situated, without

sacrificing procedural fairness or bringing about other

undesirable results.” Bennett v. Corr. Med. Servs., Inc., 2008

WL 2064202, at *15 (D.N.J. May 14, 2008) (internal quotation

marks omitted). The Court must also find that “the class is

‘currently and readily ascertainable based on objective

criteria.’” Buck v. Am. Gen. Life Ins. Co., 2021 WL 733809, at

*10 (D.N.J. Feb. 25, 2021) (quoting Marcus v. BMW of North

America, LLC, 687 F.3d 583, 593 (3d Cir. 2012)).

An issues class under Rule 23(c)(4) is a vehicle by which

a court may certify a class for certain issues. To be viable,

an issues class must: satisfy Rule 23(a)’s requirements, conform

with one of the Rule 23(b) categories, and otherwise be

appropriate to be certified as an issues class. Russell v.

Educ. Comm'n for Foreign Med. Graduates, 15 F.4th 259, 270 (3d

Cir. 2021). The Third Circuit has held that the kinds of

classes that may be certified under 23(c)(4) classes may be

issues related to overall liability, particular elements of a

claim, or issues that would substantially advance litigation.

Id. at 270 (“We therefore hold that district courts

may certify ‘particular issues’ for class treatment even if

those issues, once resolved, do not resolve a defendant's

liability, provided that such certification substantially

facilitates the resolution of the civil dispute, preserves the

parties’ procedural and substantive rights and responsibilities,

and respects the constitutional and statutory rights of all

class member and defendants.”).

In Russell, the Third Circuit enumerated nine key factors

that a district court should analyze when considering certifying

a 23(c)(4) class. These include:

1. the type of claim(s) and issue(s) in question;

2. the overall complexity of the case;

3. the efficiencies to be gained by granting partial

certification in light of realistic procedural alternatives;

4. the substantive law underlying the claim(s), including any

choice-of-law questions it may present and whether the

substantive law separates the issue(s) from other issues

concerning liability or remedy;

5. the impact partial certification will have on the

constitutional and statutory rights of both the class members

and the defendant(s);

6. the potential preclusive effect or lack thereof that

resolution of the proposed issue class will have;

7. the repercussions certification of an issue(s) class will

have on the effectiveness and fairness of resolution of

remaining issues;

8. the impact individual proceedings may have upon one

another, including whether remedies are indivisible such that

granting or not granting relief to any claimant as a practical

matter determines the claims of others;

9. and the kind of evidence presented on the issue(s)

certified and potentially presented on the remaining issues,

including the risk subsequent triers of fact will need to

reexamine evidence and findings from resolution of the common

issue(s).

Id. at 268.

a. 23(a) Analysis

The Court finds that the 23(a) factors have been met here

for much the same reasons that it found they were satisfied for

the 23(b)(2) class. For avoidance of any doubt, however, the

Court will add here further exposition on each element as they

pertain to this motion. First, for numerosity, Plaintiffs offer

the same evidence as they did for the 23(b)(2) motion. (ECF

241-1 at 21-22). For the same reasons that numerosity was

satisfied for the 23(b)(2) class, it is satisfied here.

The analysis of the commonality requirement is slightly

different here as the legal and factual questions raised by the

23(b)(3) class are slightly different from those raised by the

23(b)(2) class. Specifically, Plaintiffs seek to use this class

as a vehicle to answer the questions of how long NJDOE has been

violating the 45-day rule, whether NJDOE’s misrepresentations

amounted to wrongful concealment, and whether New Jersey’s

entire controversy doctrine precludes certain later individual

actions against NJDOE. (ECF 241-1 at 2-3). These factual and

legal issues, like those at issue in the certification motion

for the Rule 23(b)(2) class, revolve around “the same injury[,]”

that the Court can resolve in one consolidated trial. Dukes,

564 U.S. at 349-50. Therefore, the Court finds that commonality

has been satisfied.

The analysis of typicality takes much the same path as the

analysis set forth previously. The questions relevant to this

issues class are the same the proposed class representatives

assert on behalf of the putative class members. This soundly

meets the typicality requirement and satisfied the Court that

“the interests of the class and the class representatives are

aligned so that the latter will work to benefit the entire class

through the pursuit of their own goals.” In re National

Football League Players Concussion Injury Litigation, 821 F.3d

at 427–28.

Finally, with respect to the adequacy of representation,

just as is the case with the Rule 23(b)(2) class, the Court

finds that both class counsel and the class representatives are

well-qualified to represent the class. Id. at 428. As was the

case above, despite the hand-waving of Defendants, there does

not appear to be any credible evidence of conflicts between the

representatives and class members such that class members would

not be fairly represented in negotiations. Id. The record

shows that proposed class counsel has been vigorously pursuing

this action and have extensive and directly relevant experience

in this specialized field of law, thereby making their

appointment appropriate. (See ECF 240-1 at 30-40).

b. Analysis of Rule 23(b)(3)

i. Predominance

“Predominance ‘tests whether proposed classes are

sufficiently cohesive to warrant adjudication by representation,

a standard ‘far more demanding’ than the commonality requirement

of Rule 23(a), ‘requiring more than a common claim[.]’” In re

Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 310–11 (3d

Cir. 2008), as amended (Jan. 16, 2009) (internal citations

omitted) (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591,

623-24 (1997) and Newton v. Merrill Lynch, Pierce, Fenner &

Smith, Inc., 259 F.3d 154, 187 (3d Cir.2001)). In determining

whether common questions predominate, courts have focused on the

claims of liability alleged against defendants. See Bogosian v.

Gulf Oil Corp., 561 F.2d 434, 456 (3d Cir. 1977). Predominance

“tests whether proposed classes are sufficiently cohesive to

warrant adjudication by representation.” In re NFL Players

Concussion Injury Litig., 821 F.3d at 434 (citation omitted).

As long as common questions predominate, “the presence of

individual questions does not per se rule out a finding of

predominance.” In re Prudential Ins. Co. Am. Sales Prac. Litig.

Agent Actions, 148 F.3d 283, 315 (3d Cir. 1998).

The Court finds that predominance has been satisfied here.

The issues for which Plaintiffs seek certification relate to:

(1) how long NJDOE has been violating the 45-day rule, (2)

whether NJDOE made fraudulent misrepresentations, (3) and

whether the entire controversy doctrine per se bars later

individual damages actions. Each of these issues would not

require “individualized review” in order to dispose of them.

See Buck v. Am. Gen. Life Ins. Co., 2021 WL 733809, at *11

(D.N.J. Feb. 25, 2021).

The first question deals with policies and procedures of

NJDOE across the board that would have permeated all of the

class members cases. The second, much like the first, deals

with class-wide issues, as the representations that NJDOE

allegedly made were in a widely disseminated publication. (ECF

241-1 at 3). The third issue, on the scope of New Jersey’s

entire controversy doctrine, deals essentially with a question

of law, something that will not require consideration of the

individual circumstances of the class members. At most, the

question asks if by virtue of participating in this suit, class

members cannot later bring individualized damages claims, a

question of law not fact. Thus, the Court is satisfied that

predominance has been met.

ii. Superiority

The superiority requirement involves a court making the

determination that “a class action is superior to other

available methods for fairly and efficiently adjudicating the

controversy[.]” Fed. R. Civ. P. 23(b)(3). This district has

noted that the superiority requirement is very much a check on

manageability of the proposed class action and that it does not

“present many different standards” that would make a single

action unwieldy. Buck, 2018 WL 5669173 at *10.

In considering superiority, the Court must focus on other

methods of adjudication that are actually available for class

members to vindicate their claims. “The Court examines ‘(1) the

interest of individual members of the class in controlling the

prosecution of the action, (2) the extent of litigation

commenced elsewhere by class members, (3) the desirability of

concentrating claims in a given forum, and (4) the management

difficulties likely to be encountered in pursuing the class

action.’” Ridley v. MRS BPO, LLC, 2019 WL 6888532, at *10

(D.N.J. Dec. 18, 2019) (quoting Danvers Motor Co. v. Ford Motor

Co., 543 F.3d 141, 149-50 (3d Cir. 2008)).

The Court finds that a class action is a superior method to

resolve the issues that Plaintiffs present for the 23(b)(3)

issues class. First, the Court finds that with respect to the

issues raised for certification here, the interest of individual

members in controlling the prosecution of those questions would

be minimal to nonexistent. The questions presented for

certification here, namely, the amount of time NJDOE has been

violating the 45-day rule, whether NJDOE made fraudulent

misrepresentations, and whether the entire controversy doctrine

would bar future individual damages actions, are ones that will

not turn on the particulars of any individual class member’s

case.

In fact, it would be challenging if not impossible for any

individual class member to muster the litigation resources to

have any of these questions answered. With respect to the first

question, in particular, it is not clear that any one class

member would have standing to seek an answer for time periods

where they were not the party allegedly injured by NJDOE’s

conduct.

For the second factor, regarding litigation commenced

elsewhere, it is certainly true that some putative class members

have commenced individual actions based on the same alleged

conduct by NJDOE. However, the Court does not find that that

should be a bar to finding superiority here. Answers on these

questions for the 23(b)(3) class would actually streamline those

actions resolving a claim likely central to those cases.

Similarly for factor three, the Court finds that there is a high

desirability to concentrate claims in this forum. Such

consolidation would ensure consistency in the resolution of the

questions for all of the class members and significantly

streamline litigation on issues in this case that would likely

arise in individual actions.

Finally, the Court is not concerned about management

difficulties that may arise as a result of certifying this

class. As stated earlier, the three questions before the Court

deal with factual and legal questions that would apply broadly

across the class.10 Moreover, the Court is preparing to try this

matter once certain procedural issues, including the instant

motions, are resolved. And as noted, the broad-based and

prospective injunctive relief sought means the Court can resolve

the asserted claims without directly implicating or impacting

claims of individualized damages. After weighing all of these

factors, the Court is satisfied that superiority exists here.

iii. Ascertainability

To meet the ascertainability requirement, “the class must

be currently and readily ascertainable based on objective

criteria.” Marcus, 687 F.3d 583, 593 (3d Cir. 2012). A court

should not consider a class to be ascertainable if identifying

10 Defendants cite to Newton v. Merrill Lynch, Pierce, Fenner &

Smith, Inc., 259 F.3d 154, 191 (3d Cir. 2001), as amended (Oct.

16, 2001) for the proposition that the class is not superior

because they have the right to raise individualized defenses.

(ECF 312 at 52). Newton is inapposite as it was a securities

fraud case dealing with millions of trades and a request for

money damages, which is not sought here.

the class members would result in multiple, complicated

factfinding adventures. Id. (“If class members are impossible

to identify without extensive and individualized fact-finding or

‘mini-trials,’ then a class action is inappropriate.”). This

requirement satisfies the objectives of alleviating

administrative burdens and making sure that class members are

provided with adequate notice. Buck, 2021 WL 733809 at *15

(“First, it eliminates serious administrative burdens that are

incongruous with the efficiencies expected in a class action by

insisting on the easy identification of class members. Second,

it protects absent class members by facilitating the best notice

practicable under Rule 23(c)(2) in a Rule 23(b)(3) action.”)

(internal quotation marks and citations omitted).

To demonstrate ascertainability, the Third Circuit requires

a plaintiff to show: (1) the class is defined with reference to

objective criteria, and (2) there is a reliable and

administratively feasible mechanism for determining whether

putative class members fall within the class definition. Grubb

v. Green Tree Servicing, LLC, 2017 WL 3191521, at *16 (D.N.J.

July 27, 2017) (citing Byrd v. Aaron's Inc., 784 F.3d 154, 163

(3d Cir. 2015)). A plaintiff need not identify every class

member at the class certification stage but must simply show

that “class members can be identified.” Id. (quoting Byrd, 784

F.3d at 163).

The Court finds that the class is ascertainable because

there should be objective records in Defendants’ possession that

could readily identify class members. See Grandalski v. Quest

Diagnostics Inc., 767 F.3d 175, 185 n.5 (3d Cir. 2014). The

proposed class includes:

“All persons who, pursuant to the IDEA, filed Due Process

Petitions with NJDOE on or after February 1, 2005, and who,

after their Due Process Petition was transmitted to the

OAL, did not receive a decision within 45 days thereafter,

excluding the time associated with any specific

adjournments made at the request of either party. These

allegations specifically are intended to include those who

settled or abandoned their claims prior to the expiration

of the 45 Day timeline.” (ECF 241-1 at 4).

NJDOE and OAL should have administrative systems in place

that would allow them to readily identify potential class

members.11 Indeed, the 30(b)(6) representative of NJDOE

testified that there are mechanisms in place to track the number

of due process petitions that come in. (ECF 243-4 at 76-78, Tr.

143:12- 148:14) (deposition of NJDOE’s Rule 30(b)(6) witness)).

(noting the number of petitions that have come in during the

past ten years).

11 Defendants’ argument that the class definition encompasses the

school districts (ECF 312 at 19) conflicts with a plain reading

of the class definition which specifically encompasses

“persons.” There is nothing in the IDEA that would suggest that

the Court should read that word differently. 20 U.S.C. § 1401.

The Court notes that NJDOE’s 30(b)(6) representative also

noted that it does not provide receive data on who requested the

adjournments, (ECF 243-4 at 83, Tr. 172:16-22), and that a key

NJDOE employee noted that NJDOE on its own does not have a way

to track adjournments when a case is transferred to OAL, ECF

243-4 at 268, Tr. 71:18- 72:2 (deposition of Dominic Rota)).

The Court does not view this fact as defeating ascertainability,

since one major component of the allegations in this action is

that NJDOE and OAL systematically fail to properly track

adjournments across all of their cases. The data that OAL has

already testified is available satisfies the Court that class

members covered by this action, those whose cases were affected

by the mismanagement of the dispute resolution timing system,

can be identified.

Even if it turns out that some class members may never be

identified because recordkeeping is so poor, it would not be

fair to hold it against the potential class members who are

readily reachable and therefore ascertainable. Hargrove v.

Sleepy's LLC, 974 F.3d 467, 482 (3d Cir. 2020) (“[W]here [a

defendant’s] lack of records makes it more difficult to

ascertain members of an otherwise objectively verifiable class,

the employees who make up that class will not be made to bear

the cost of the employer's faulty record keeping.”).

It would truly to be ironic to deny Plaintiffs the superior

method of class certification in a dispute of this kind because

Defendant’s disregard of federal law was so complete and

pervasive, their record keeping so poor, that they feel

emboldened to argue Plaintiffs cannot prove their case.

Therefore, the Court is satisfied that the class is sufficiently

ascertainable.

c. The Nine Rule 23(c)(4) factors.

The Court now considers the nine factors set forth in

Russell. The first factor asks the Court to consider the type

of claims and issues in question. While there is not much gloss

in the case law on how to weigh this factor, the Court finds

that it counsels in favor of certifying the issues class. As

already suggested in the rest of the Court’s opinion, the issues

proposed for certification here would apply to the class as a

whole. Factors two and three, on the complexity of the case and

the efficiencies to be gained by partial certification, also

counsel in favor of granting certification. Given the complex

issues of law and fact that apply to all of the class members,

it would be most prudent to marshal them in one action for

determination.

Factor four deals with the substantive law underlying the

claims and considerations such as choice-of-law issues. The

claims here are governed by federal law, further underscoring

the appropriateness of this forum to dispose of them. In

addition, even though the resolution of these questions may not

resolve certain issues such as individual damages, the Court

believes that it would materially advance this litigation to

answer the questions presented for consideration under the

23(b)(3) class.

The Court has already implicitly touched on factors five

through nine when it discussed the preclusion concerns in its

section on certification under 23(b)(2). The Court believes

that its analysis above equally applies here. As noted above,

the Court certainly cannot guarantee what a future court might

decide regarding preclusion issues.12 In re Skelaxin

(Metaxalone) Antitrust Litig., 299 F.R.D. at 578. The Court

here is specifically certifying the class with the understanding

that it would be efficient to resolve certain issues in the

class action forum and leave damages issues to individual

actions. See In re Vitamin C Antitrust Litig., 279 F.R.D. at

115; Hiser, 94 F.3d at 1291. While this certainly does not

12 Defendants relatedly argue that a decision by this Court on

the entire controversy doctrine would violate their due process

rights. (ECF 312 at 61). They do not, however, cite any law

for this proposition. Though the Court appreciates that the

entire controversy doctrine is a weighty issue, Defendants have

not raised sufficient arguments for it to be an impediment for

class certification.

guarantee what a subsequent court might do, it appears to be the

only viable way forward to conclusively resolve the issues in

this case once and for all. Therefore, the Court finds that

certification of the issues class is appropriate.

IV. Appointment of Class Counsel under Rule 23(g)

Appointment of proposed class counsel is also appropriate

here. Rules 23(a)(4) and 23(g) require a court to assess the

adequacy of proposed class counsel. The Court has already

touched on this issue in its analysis of Rule 23(a)(4) and will

now proceed to analyze Rule 23(g). This court must consider the

following: (1) the work counsel has done in identifying or

investigating potential claims in the action; (2) counsel's

experience in handling class actions, other complex litigation,

and claims of the type asserted in the action; (3) counsel's

knowledge of the applicable law; and (4) the resources counsel

will commit to representing the class. Fed. R. Civ. P.

23(g)(1)(A); Beneli v. Bca Fin. Servs., 324 F.R.D. 89, 95

(D.N.J. 2018) (citing Nafar v. Hollywood Tanning Sys., Inc., No.

06-cv-3826, 2008 WL 3821776, *7 (D.N.J. Aug. 12, 2008)).

a. Counsels’ Work in Identifying Claims

John Rue & Associates, LLC (“JR&A”), along with

collaborating counsel, Walsh Pizzi O’Reilly Falanga LLP, Reisman

Carolla Gran & Zuba LLP, Law Offices of David R. Giles, Law

Office of Denise Lachantin Dwyer LLC, Wasserman Legal LLC, and

Thurston Law Office, LLC, all have put in significant work

already in prosecuting this action. This matter has been

ongoing for several years and during that time proposed class

counsel has undertaken to manage motion practice and discovery

in this case in a professional manner consistent with the

interests of the class. Plaintiffs state that proposed class

counsel has been investigating the claims at issues here since

2017. (ECF 240-1 at 26). The Court has not seen anything over

the pendency of this action or the briefing on this motion to

suggest that their investigatory work and litigation has been

inadequate. In fact, the Court has the opposite impression.

b. Counsel’s Experience in Handling Complex Litigations

and Class Actions

Counsel also appears to have the experience appropriate for

it to handle this class action. JR&A attests that special

education law and the law surrounding the IDEA constitute the

primary area of its practice. (Id. at 28). In addition, the

lead attorney at JR&A has previously worked on multiple complex

class action litigations. (Id. at 29). Collaborating counsel

also has a wealth of experience in complex litigations and

special education law. Therefore, counsels’ expertise in a

highly specialized area of law coupled with counsel with

extensive experience in highly complex class action litigation

strongly militates in favor of their appointment as class

counsel.

c. Counsel’s Knowledge of the Applicable Law

JR&A has been working on matter related to special

education law in New Jersey since 2014 as its primary area of

practice. (Id. at 28). In addition, every single one of the

firms of collaborating counsel has worked on matters with a

nexus to special education law in the past. (Id. at 31-38).

Accordingly, this factor is satisfied.

d. The Resources Counsel Will Commit to Representing the

Class

Proposed class counsel has set aside sufficient resources

in order to adequately represent the proposed classes. While

class counsel has stated that they are handling this matter on a

pro bono basis and that they do not have some “war chest” set

aside to litigate the action, they have the resources needed to

prosecute this action available to them. (Id. at 39-40). Most

persuasive to the Court is the fact that proposed class counsel

has already managed this matter through its discovery phase and

by all indications is diligently preparing the matter for trial.

In light of the stage this litigation has already reached,

JR&A’s representation that it and collaborating counsel have

reached an agreement to ensure that the case is managed

effectively through the procedural steps that remain, including

now a looming trial date, satisfies the Court that the proposed

class counsel have the resources needed to advance the interests

of the proposed classes through conclusion.

In light of the foregoing, the Court will appoint proposed

counsel as class counsel to represent the Rule 23(b)(2) and Rule

23(b)(3) classes.

Conclusion

For the reasons expressed above, the Court will grant the

motions for class certification as to both the Rule 23(b)(2)

class (ECF 240) and the Rule 23(b)(3) issues class (ECF 241).

The Court will also appoint the proposed class counsel as

counsel for both classes under Rule 23(g). (ECF 240, 241).

The Court also orders that the parties shall have thirty

days to meet and confer on a form of notice, the method of

dissemination of that notice, and the database of potential

class members to whom the notice will be distributed pursuant to

Rule 23(c)(2). Plaintiffs shall provide the Court with a status

update at the expiration of the thirty-day period, if not

earlier, by letter filed on the docket.

An appropriate Order will be entered.

Date: August 19, 2022 s/ Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.