BRYAN C et al v. LAMBREW et al
Filing
120
ORDER ON JOINT 118 Motion for Preliminary Approval of Class Action Settlement, Certification of Settlement Class, and Approval of Form and Manner of Class Notice By JUDGE NANCY TORRESEN. (Attachments: # 1 Notice of Proposed Class Action Settlement) (jwr)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
BRYAN C., et al.,
Plaintiffs,
v.
SARA GAGNÉ-HOLMES in her
official capacity as Acting
Commissioner of the Maine
Department of Health and Human
Services, and BOBBI JOHNSON in
her official capacity as Director of the
Maine Office of Child and Family
Services, 1
Defendants.
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) Docket No. 1:21-cv-00005-NT
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ORDER ON JOINT MOTION FOR PRELIMINARY APPROVAL OF CLASS
ACTION SETTLEMENT, CERTIFICATION OF SETTLEMENT CLASS, AND
APPROVAL OF FORM AND MANNER OF CLASS NOTICE
Before me is the parties’ joint motion (ECF No. 118) seeking preliminary
approval of the class action settlement agreement, provisional certification of the
class, appointment of class counsel, and approval of the class notice and notice plan.
For the reasons stated below, the motion is GRANTED.
BACKGROUND
This case concerns the State of Maine’s administration of psychotropic
medication to children in its foster care system. Second Am. Compl. for Injunctive
1
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Sara Gagné-Holmes is
substituted for Jeanne M. Lambrew in her official capacity as the Acting Commissioner of the Maine
Department of Health and Human Services, and Bobbi Johnson is substituted for Todd A. Landry in
her official capacity as the Director of the Maine Office of Child and Family Services.
and Declaratory Relief and Req. for Class Action (“Second Am. Compl.”) ¶ 1 (ECF
No. 45). In March of 2019, attorneys with Children’s Rights, a national non-profit
organization advocating for children in state systems, began an investigation of
Maine’s practices in this area. Joint Mot. for Prelim. Approval of Class Action
Settlement, Certification of Settlement Class, and Approval of Form and Manner of
Class Notice (“Joint Mot.”) 1 & n.1 (ECF No. 118); Joint Mot. Ex. 3 (“Nardi Decl.”)
¶¶ 1, 4 (ECF No. 118-3). Among other things, the investigation included conducting
extensive factual research on Maine’s child welfare and mental health agencies and
systems; identifying, investigating, and pursuing potential legal claims; researching
relevant First Circuit law; and speaking with dozens of knowledgeable people
throughout Maine, such as current and former youth in foster care. Nardi Decl. ¶ 4.
On January 6, 2021, Bryan C., Henry B., Trent W., Grayson M., Kendall P.,
and Neville H. (together, the “Named Plaintiffs”), through their adult Next Friends,
filed a class action lawsuit against Jeanne M. Lambrew in her official capacity as
Commissioner of the Maine Department of Health and Human Services (“DHHS”)
and Todd A. Landry in his official capacity as Director of the Maine Office of Child
and Family Services (“OCFS”). Compl. for Injunctive and Declaratory Relief and Req.
for Class Action (ECF No. 1). The Named Plaintiffs brought the complaint on behalf
of a putative class of “all children who are or will be in DHHS foster care custody and
who are or will be prescribed or administered one or more psychotropic medication[s]
while in state care” (the “Class”). Second Am. Compl. ¶ 160. The Named Plaintiffs
allege that three of the State’s most pronounced and harmful oversight failures are:
2
(1) inadequate maintenance and timely dissemination of medical records; (2)
inadequate informed consent procedures; and (3) an inadequate system to ensure that
outlier prescriptions of psychotropic drugs to foster care children are flagged for
secondary review. Second Am. Compl. ¶ 5. To address these failures, the Named
Plaintiffs seek declaratory and injunctive relief for violations of the Class members’
substantive and procedural due process rights under the Fourteenth Amendment, as
well as violations of the Adoption Assistance and Child Welfare Act, 42 U.S.C. §§ 621
et seq., 670 et seq.; Second Am. Compl. ¶¶ 280–98.
After I denied the Defendants’ motion to dismiss on October 4, 2021, Order on
Defs.’ Mot. to Dismiss (ECF No. 43), the parties proceeded to discovery, Joint Mot. 2.
The discovery process included taking depositions, gathering facts, working with
experts, exchanging dozens of requests for production and interrogatories, and
preparing, reviewing, and exchanging 37,000 pages of discovery material, including
the Named Plaintiffs’ case files. Nardi Decl. ¶ 6; Joint Mot. 2.
During the discovery process in early 2022, the parties started discussing
settlement, and Magistrate Judge Nivison agreed to assist them in settlement
discussions. Nardi Decl. ¶ 7; see Order Setting Settlement Conference (ECF No. 67). 2
In preparation for the first settlement conference, the parties exchanged terms sheets
and prepared detailed statements for Judge Nivison. Nardi Decl. ¶ 7. The parties
2
The parties assert that they “jointly selected the Honorable Judge John C. Nivison as the
mediator in February of 2022.” Second Am. Compl. Ex. 1 (“Agreement”) 3 (ECF No. 118-1). That
statement is misleading. A number of judicial officers in the District of Maine volunteer to assist
parties in resolving cases by holding judicial settlement conferences. See Local Rule 83.11(c). Parties
do not have the right to “select” a specific judge.
3
engaged in negotiations through Judge Nivison on April 11, 2022, June 1, 2022, and
July 7, 2022 (ECF Nos. 72, 80, 87). On July 13, 2022, the parties entered into a stay
of discovery (ECF No. 88). The parties met for settlement discussions with Judge
Nivison seven more times over the next year (ECF Nos. 94, 99, 103, 106, 108, 112,
114). In between meetings, the parties had many direct discussions and utilized
subject-matter consultants with knowledge of psychotropic medication oversight and
secondary review. Nardi Decl. ¶ 8. The Next Friends participated in sessions,
reviewed drafts, and provided feedback. Nardi Decl. ¶ 8.
On March 1, 2024, the parties executed a settlement agreement that
contemplates resolving the pending claims, with the Court retaining jurisdiction to
enforce the terms of the agreement. Second Am. Compl. Ex. 1 (“Agreement”)
§§ IV.1.B, 4.B (ECF No. 118-1). Although both parties believe they could win the case,
both sides recognize the risks, burdens, and uncertainties of litigation. Joint Mot. 4.
The Agreement purports to tackle the three main issues with the State’s
prescribing of psychotropic medication to children in foster care by:
1. Establishing procedures for the timely preparation and dissemination of a
Portable Health Record for each child in DHHS custody. The Portable Health
Record will move with the child from placement to placement and will be
routinely updated with medical, mental, and behavioral health information.
This information will be gathered through improved collection and
appointment procedures and will be incorporated into the child’s case plan.
Agreement III.1.
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2. Creating a process for informed consent by designated adults and children ages
fourteen or older that covers all classes of psychotropic medication. This
includes a grievance mechanism; education and training for staff and Resource
Parents 3; procedures for emergencies; and a detailed informed consent form.
Agreement III.2.
3. Creating a psychiatric Clinical Review Team to perform both prospective
reviews of certain recommendations for psychotropic medications for youth in
foster care and retrospective reviews of files for children prescribed
psychotropic medications that meet certain triggers. Agreement III.3.
To ensure that these changes are implemented, the Agreement sets Performance
Criteria, establishes a timeline for implementation and enforcement, and provides
for a third-party Implementation Reviewer to monitor the Defendants’ progress.
Agreement IV.2–3.
The parties also agreed to a communication to all class members about the
proposed settlement. Joint Suppl. Br. to Joint Mot. Ex. 2 (“Notice”) (ECF No. 119-2).
This four-page Notice explains who it is addressed to, why it is important, what the
class action is about, and the terms of the Agreement. Notice 2–3. In addition to
providing the time and place of the fairness hearing, the Notice explains what will
happen at that hearing, including that I will hear evidence and argument to decide if
the settlement should be finally approved. Notice 2, 4. The Notice also explains to
3
A “Resource Parent” is someone providing foster care to children in the State’s custody.
Agreement § I.14.
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Class members how to submit comments or objections to the Agreement and how to
request to speak at the fairness hearing. Notice 4. The Notice further provides a link
to the Agreement, a number to call for a copy of the Agreement, and the email and
mailing addresses for class counsel, who will be available to answer questions. Notice
4–5.
The Notice comes with an addendum setting out the plan for sending it to the
Class. The Defendants will post a copy of the Notice on their websites and will
transmit a copy to placement providers, parents, Guardians ad Litem for Class
members, and Class members in independent or transitional living placements.
Notice 7. The Defendants also will send copies to locations that Class members and
their legal representatives would be likely to see them, such as congregate care
placements, group homes, residential counseling centers, residential treatment
centers, and child-placing agencies that the Defendants use. Notice 7.
The Named Plaintiffs are represented by Children’s Rights and Bernstein,
Shur, Sawyer & Nelson, P.A. (“Bernstein Shur”), a private law firm. Joint Mot. 16.
After additional settlement discussions with Judge Nivison, the parties agreed on
March 22, 2024 that the Defendants would reimburse Plaintiffs’ Counsel $675,000
for their attorney’s fees, costs, and expenses in this matter. Joint Suppl. Br. to Joint
Mot. (“Joint Suppl. Br.”) 1–2 (ECF No. 119); Joint Suppl. Br. Ex. 3 (“Suppl. Nardi
Decl.”) (ECF No. 119-3). The Notice explains this sum to the prospective Class. See
Notice 3.
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On March 1, 2024, the parties filed a joint motion seeking preliminary approval
of the settlement, provisional certification of the Class, appointment of class counsel,
and approval of the proposed Notice and notice plan. See Joint Mot. On April 4, 2024,
the parties filed a joint brief regarding their attorney’s fees, costs, and expenses. See
Joint Suppl. Br.
DISCUSSION
I deal first with the parties’ request for preliminary approval of their proposed
settlement, then proceed to class certification and appointment of class counsel, and
finally address the issue of notice.
I.
The Settlement Agreement
A.
Legal Standard
Federal Rule of Civil Procedure 23(e) provides the procedural framework when
the parties to a putative class action have reached a proposed settlement. Anderson
v. Team Prior, Inc., 2:19-cv-00452-NT, 2021 WL 3852720, at *4 (D. Me. Aug. 27, 2021);
Michaud v. Monroe Muffler Brake, Inc., No. 2:12-cv-00353-NT, 2015 WL 1206490, at
*8 (D. Me. Mar. 17, 2015). Before notice can be sent to the putative class, the parties
must demonstrate that the court “will likely be able to . . . approve the proposal under
Rule 23(e)(2).” Fed. R. Civ. P. 23(e)(1)(B)(i). Rule 23(e)(2), which governs whether a
settlement is finally approvable, requires a finding, after hearing, that the proposal
is:
fair, reasonable, and adequate, after considering whether:
(A) the class representatives and class counsel have adequately
represented the class;
(B) the proposal was negotiated at arm’s length;
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(C) the relief provided for the class is adequate, taking into account:
(i) the costs, risks, and delay of trial and appeal;
(ii) the effectiveness of any proposed method of distributing relief
to the class, including the method of processing class-member
claims;
(iii) the terms of any proposed award of attorney’s fees, including
timing of payment; and
(iv) any agreement required to be identified under Rule 23(e)(3);
and
(D) the proposal treats class members equitably relative to each other.
Fed. R. Civ. P. 23(e)(2).
The preliminary approval contemplated by Rule 23(e)(1)(B)(i) may be given
where it results from the parties’ “serious, informed, and non-collusive negotiations”;
“there are no grounds to doubt its fairness and no other obvious deficiencies” such as
unduly preferential treatment of certain class members or excessive compensation
for attorneys; and “the settlement appears to fall within the range of possible
approval.” Anderson, 2021 WL 3852720, at *5 (internal citations and quotation marks
omitted). If the parties negotiated at arm’s length and conducted sufficient discovery,
the Court presumes the settlement is reasonable. In re Pharm. Indus. Average
Wholesale Price Litig., 588 F.3d 24, 32–33 (1st Cir. 2009); Anderson, 2021 WL
3852720, at *7.
B.
Application
At this preliminary, pre-fairness hearing stage, I find that the parties have
demonstrated that the Agreement likely “fall[s] within the range of possible final
approval.” Michaud, 2015 WL 1206490, at *9 (quoting Trombley v. Bank of Am. Corp.,
No. 08–cv–456–JD, 2011 WL 3740488, at *4 (D.R.I. Aug. 24, 2011)).
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First, as addressed more fully below, the class representatives and class
counsel have adequately represented the class. Fed. R. Civ. P. 23(e)(2)(A).
Second, over the course of sixteen months, the parties engaged in ten judicial
settlement conferences with Judge Nivison while simultaneously engaging in
discovery and seeking the input of outside experts and consultants. The Agreement
is a product of these extensive arm’s-length negotiations. Fed. R. Civ. P. 23(e)(2)(B).
Third, the relief provided for the class is likely adequate. Fed. R. Civ. P.
23(e)(2)(C). The Agreement addresses the three main problems alleged in the
Complaint: inadequate maintenance and timely dissemination of medical records; the
lack of a meaningful informed consent process; and the need for a secondary review
system to screen outlier and high-risk prescriptions. The Agreement does so by
creating new practices for collecting and disseminating medical information,
obtaining informed consent from caretakers and older youth, and prospectively and
retrospectively reviewing outlier prescriptions.
The parties acknowledge that there would be notable risks, costs, and delays
for both sides if this case were to go to trial. Fed. R. Civ. P. 23(e)(2)(C)(i). As I noted
in my Order on the Defendants’ Motion to Dismiss, the standard for substantive due
process claims in the foster care context is unsettled. See Order on Defs.’ Mot. to
Dismiss 26–27. If the parties were to forgo settlement, there would likely be
additional delays and costs related to completing discovery, class certification,
summary judgment, expert challenges, and, ultimately, trial. See Joint Mot. 8. The
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Agreement avoids these risks by offering systemic reforms that will provide relief for
all Class members within the timeframe in the Agreement.
The proposed method of providing relief seems effective. Fed. R. Civ. P.
23(e)(2)(C)(ii). The Agreement requires systemic changes, meaning all children in
foster care who are prescribed psychotropic drugs will benefit from the new practices
and policies. The Agreement thus appears to effectively provide relief while treating
class members equitably relative to each other. Fed. R. Civ. P. 23(e)(2)(C)(ii), (e)(2)(D).
Finally, the proposed award of $675,000 in attorney’s fees, also negotiated at
arm’s length, appears reasonable at this preliminary stage. 4 Fed. R. Civ. P.
23(e)(2)(C)(iii). Counsel for the Named Plaintiffs investigated this matter for over a
year before they even filed suit. Over the past two years, they were required to litigate
the Defendants’ motion to dismiss, engaged in extensive discovery, and participated
in extended settlement talks. Joint Mot. 8. Further, the attorney’s fees award appears
reasonable in comparison to similar cases. See M.B. v. Tidball, No. 2:17-cv-4102-NKL,
2020 WL 1666159, at *2, 20 (W.D. Mo. Apr. 3, 2020), aff’d sub nom. M.B. by
Eggemeyer v. Tidball, 18 F.4th 565 (8th Cir. 2021) (awarding $3,253,651.25 in fees
and $132,907.56 in expenses where case settled two years after complaint was filed
One method for awarding fees in class actions is the “lodestar” method, under which class
counsel’s fee is calculated based on the time spent on the matter, the attorneys’ hourly rates, and any
multipliers or discounts for special circumstances. Michaud v. Monroe Muffler Brake, Inc., No. 2:12cv-00353-NT, 2015 WL 1206490, at *8 (D. Me. Mar. 17, 2015). The parties represent that the
negotiated amount is a significant reduction of the over $1 million class counsel could have sought
under the lodestar analysis. Joint Suppl. Br. to Joint Mot. 5 (ECF No. 119); Joint Suppl. Br. to Joint
Mot. Ex. 3, at 2 (ECF No. 119-3). Class counsel should be prepared to discuss the lodestar analysis
with appropriate accompanying documentation prior to the final fairness hearing or the filing of any
motion for attorney’s fees.
4
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in a similar class action involving the use of psychotropics in foster care); M.B. v.
Howard, 555 F. Supp. 3d 1047, 1092 (D. Kan. 2021) (awarding $2,225,306.64 in fees
and $72,305.15 in expenses where case settled 18 months after the complaint was
filed in a foster care reform class action concerning mental health oversight).
The parties have met their burden of demonstrating that I will likely be able
to approve the Agreement under the Rule 23(e)(2) factors. 5
II.
Class Certification
Next, the parties seek provisional certification of the class. Joint Mot. 9.
A.
Legal Standard
Pursuant to Rule 23 of the Federal Rules of Civil Procedure, parties requesting
class certification must demonstrate that:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the
claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the
interests of the class.
Fed. R. Civ. P. 23(a). “If the conditions are satisfied, a court may certify a class action
if the action is of a type identified in section (b) of the Rule.” Miller v. Carrington
Mortg. Servs., LLC, No. 2:19-cv-00016-JDL, 2020 WL 2898837, at *1 (D. Me. June 3,
2020). One of those types of actions is where “the party opposing the class has acted
or refused to act on grounds that apply generally to the class, so that final injunctive
One concern that I have with the Agreement is that it requires the Court to retain jurisdiction
for as long as the Agreement is in effect. See Agreement IV.1.B.a (anticipating a five-year term subject
to extension). The parties should be prepared at the hearing on final approval to address my concern
with this Court retaining jurisdiction for an unlimited amount of time.
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relief or corresponding declaratory relief is appropriate respecting the class as a
whole.” Fed. R. Civ. P. 23(b)(2).
B.
Application
1.
Numerosity
The class must be “so numerous that joinder of all members is impracticable.”
Fed. R. Civ. P. 23(a)(1). “ ‘Impracticability’ does not mean ‘impossibility,’ but only the
difficulty or inconvenience of joining all members of the class.” Michaud, 2015 WL
1206490, at *2 (quoting Advert. Specialty Nat’l Ass’n v. Fed. Trade Comm’n, 238 F.2d
108, 119 (1st Cir. 1956)). “[C]ourts in this circuit have generally found that a class of
40 or more individuals satisfies numerosity.” Venegas v. Global Aircraft Servs., 159
F. Supp. 3d 93, 98 (D. Me. 2016).
Here, as of December of 2023, DHHS had legal custody of approximately 2,500
children, about 500 of whom had been prescribed one or more psychotropic
medication. When future foster children are factored in, the number of Class
members is even higher. Joint Mot. 12. The numerosity requirement has been met.
2.
Commonality
Rule 23(a)(2) requires that “there are questions of law or fact common to the
class.” Fed. R. Civ. P. 23(a)(2). Class members’ claims must be capable of
“generat[ing] common answers apt to drive the resolution of the litigation.” Wal-Mart
Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (internal quotation marks and citation
omitted). “Those common answers typically come in the form of ‘a particular and
sufficiently well-defined set of allegedly illegal policies or practices’ that work similar
harm on the class plaintiffs.” Parent/Pro. Advoc. League v. City of Springfield, 934
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F.3d 13, 28 (1st Cir. 2019) (quoting Parsons v. Ryan, 754 F.3d 657, 679 (9th Cir.
2014)).
In this case, the Named Plaintiffs challenged the Defendants’ system-wide
policies and practices concerning the monitoring and oversight of the administration
of psychotropic medications to Class members. Considering that each member of the
Class is, has been, or will be in foster care in Maine, they are equally subject to the
policies applicable to the foster care system. Joint Mot. 12. The Class members also
share the legal questions of whether DHHS’s policies and practices violate their
constitutional and statutory rights, which can be answered on a class-wide basis. See
M.B. v. Corsi, 327 F.R.D. 271, 278–80 (W.D. Mo. 2018) (certifying class in a similar
case about reforming the use of psychotropics in Missouri’s foster care system). The
commonality requirement has been met.
3.
Typicality
Rule 23(a)(3) requires that “the claims or defenses of the representative parties
[must be] typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3).
“Typicality is satisfied when the named plaintiff[s’] ‘injuries arise from the same
events or course of conduct as do the injuries of the class and when the plaintiff[s’]
claims and those of the class are based on the same legal theory.” Anderson v. Team
Prior, Inc., No. 2:19-cv-00452-NT, 2022 WL 1156056, at *3 (D. Me. Apr. 19, 2022)
(quoting Glynn v. Me. Oxy-Acetylene Supply Co., No. 2:19-cv-00176-NT, 2020 WL
6528072, at *2 (D. Me. Nov. 5, 2020)).
Here, like the rest of the Class, the Named Plaintiffs are youth in Maine’s
foster care system prescribed psychotropic medications. Second Am. Compl. ¶¶ 11–
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151, 160. The Named Plaintiffs’ injuries arise from the Defendants’ policies and
procedures regarding the administration of psychotropics to youth in foster care, so
the Named Plaintiffs’ and the wider Class’s claims are based on the same legal
theories, and the Named Plaintiffs are typical of the Class.
4.
Adequacy
The fourth requirement is that “the representative parties will fairly and
adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). The Supreme
Court has explained that this requirement “serves to uncover conflicts of interest
between named parties and the class they seek to represent,” and “factors in
competency and conflicts of class counsel.” Amchem Prods., Inc. v. Windsor, 521 U.S.
591, 625, 626 n.20 (1997). “Only conflicts that are fundamental to the suit and that
go to the heart of the litigation prevent a plaintiff from meeting the Rule 23(a)(4)
adequacy requirement.” Matamoros v. Starbucks Corp., 699 F.3d 129, 138 (1st Cir.
2012) (internal quotation marks and citations omitted).
The Named Plaintiffs’ interest in addressing current deficiencies in Maine’s
psychotropic medication program for foster care youth aligns neatly with the interest
of the Class at large. There is also no evidence of class counsel’s lack of competency
or conflicts of interest, “such as differences in the type of relief sought, a theory of law
or fact that benefits some class members, but harms others, or a scenario where some
class members benefit from the defendant’s conduct.” Michaud, 2015 WL 1206490, at
*4; see also M.B. v. Corsi, 327 F.R.D. at 282. The adequacy requirement has been
satisfied.
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5.
Rule 23(b) Requirement
As discussed above, a class must also satisfy one of the requirements of Rule
23(b). The parties represent that the Class here satisfies Rule 23(b)(2). The subsection
provides that certification is appropriate if “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). Classes certified under Rule 23(b)(2) are often “the
vehicle for civil rights actions and other institutional reform cases,” such as cases
alleging deficiencies in government-administered programs. Hawkins ex rel. Hawkins
v. Comm’r of N.H. Dep’t of Health & Human Servs., No. Civ. 99-143-JD, 2004 WL
166722, at *4 (D.N.H. Jan. 23, 2004) (internal quotations and citation omitted); see
M.B. v. Corsi, 327 F.R.D. at 282.
The Named Plaintiffs allege that the Defendants acted or refused to act on
grounds that apply to the Class generally by implementing policies and practices
regarding the prescribing of psychotropic medications to Class members. The Named
Plaintiffs seek declaratory and injunctive relief rather than monetary damages, as
contemplated by Rule 23(b)(2). Rule 23(b)(2) is satisfied. See M.B. v. Corsi, 327 F.R.D.
at 282; Hawkins, 2004 WL 166722, at *4 (granting the parties’ joint motion and
certifying Rule 23(b)(2) class consisting of children who alleged that the New
Hampshire Department of Health and Human Services failed to provide dental
services).
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III.
Class Counsel
A.
Legal Standard
“Pursuant to Federal Rule of Civil Procedure 23(g), the Court must appoint
counsel who will ‘fairly and adequately represent the interest of the class.’ ” Conant
v. FMC Corp., 2:19-cv-00296-JDL, 2020 WL 1482634, at *3 (D. Me. Mar. 27, 2020)
(quoting Fed. R. Civ. P. 23(g)(4)), R. & R. adopted 2020 WL 2145318. The Rule
requires me to consider:
(i) the work counsel has done in identifying or investigating potential
claims in the action;
(ii) counsel’s experience in handling class actions, other complex
litigation, and the types of claims asserted in the action;
(iii) counsel’s knowledge of the applicable law; and
(iv) the resources that counsel will commit to representing the class.
Fed. R. Civ. P. 23(g)(1)(A).
B.
Application
As this case’s history and the declarations of Attorneys Nardi and Woodcock
show, proposed counsel meet Rule 23(g)’s standards. Proposed counsel investigated
and researched this case for over a year prior to filing the initial complaint. Nardi
Decl. ¶ 4. They have extensive class action experience both in this Court and
nationally, and they have represented youth in the child welfare system in similar
cases. Nardi Decl. ¶¶ 2–3, 5, 11–12; Woodcock Decl. ¶¶ 2, 7. Proposed counsel have
also demonstrated knowledge of the applicable law during the litigation of the
Defendants’ motion to dismiss. Finally, Children’s Rights and Bernstein Shur
represent that they have dedicated considerable resources to the case and will
continue to do so. In addition, in this and other cases, counsel have consistently
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demonstrated that they are highly skilled and knowledgeable practitioners. Nardi
Decl. ¶ 10; Woodcock Decl. ¶¶ 6–7. Because the record reflects that counsel have and
will continue to fairly and adequately represent the class, I find it appropriate to
appoint Children’s Rights and Bernstein Shur as class counsel in this case.
IV.
Notice
For a class certified under Rule 23(b)(2), I may “direct appropriate notice to the
class” “in a reasonable manner.” Fed. R. Civ. P. 23(c)(2)(a), (e)(1)(B). I must find that
the notice “is reasonably calculated to reach the class members and inform them of
the existence of and the opportunity to object to the settlement.” Nilsen v. York Cnty.,
382 F. Supp. 2d 206, 210 (D. Me. 2005).
I have reviewed the Notice and find that it is clear, concise, and states in plain
language the certified class definition, what the class action is about, what the
Agreement does, and how to be heard on the matter and contact class counsel. The
parties plan to disseminate the Notice online, send copies directly to Class members
and their guardians, and post copies in locations that Class members and their legal
representatives would be likely to see them. The Notice also explains the agreed-upon
attorney’s fees. Other courts have approved similar notice plans in foster care class
actions. See M.B. v. Tidball, No. 2:17-cv-04102, ECF Nos. 280, 282, at 4–6 (W.D. Mo.
July 15, 2019); M.B. v. Howard, No. 2:18-cv-02617, ECF No. 140, at 5–8 (D. Kan.
Sept. 9, 2020). Accordingly, the Notice satisfies Rule 23 and due process
requirements. See id.; Michaud, 2015 WL 1206490, at *10; In re New Motor Vehicles
Canadian Export Antitrust Litig., 270 F.R.D. 30, 35–36 (D. Me. 2010).
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CONCLUSION
For the reasons stated above, the Court GRANTS the parties’ joint motion
(ECF No. 118). The Agreement is preliminarily approved, the settlement class is
provisionally certified for settlement purposes only, the proposed class notice of
settlement attached to this order is approved, and Children’s Rights and Bernstein
Shur are appointed as class counsel. The Clerk is directed to schedule a final approval
hearing.
SO ORDERED.
/s/ Nancy Torresen
United States District Judge
Dated this 3rd day of July, 2024.
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