J.T. v. de Blasio

Background

The court addressed Mr. Albert’s response to an earlier order requiring him to explain issues concerning the representation of families in the case. Counsel for some school districts had reported that Mr. Albert appeared to be requesting impartial due process hearings for families that had not retained him for that purpose.

Mr. Albert stated that the Brain Injury Rights Group (BIRG), his law firm, had started the action without charging fees to the proposed plaintiffs. He argued that no retainer agreement was required under New York’s rule governing written fee agreements. He also reported that about 300 parents had signed agreements with BIRG and that the firm had filed 199 impartial hearing proceedings between June 1 and September 14, 2020, on behalf of proposed class members.

The agreements described representation concerning the parents’ and children’s federal and state civil-rights and special-education rights, damages, and BIRG’s effort to obtain nationwide class-action status. The court emphasized that the agreements did not specifically mention an impartial due process hearing or clearly state that BIRG was being retained to challenge an individual child’s educational plan.

Motion to File Under Seal

The court denied BIRG’s motion to file the agreements and the list of hearings entirely under seal. It directed that the children’s names, the parents’ full names, and the parents’ email addresses be redacted from publicly filed versions. The court stated that the substantive terms of the agreements were not confidential and did not justify sealing the documents. Unredacted originals could remain under seal, but the nonidentifying portions had to be filed publicly.

Order to Show Cause

The court found the agreements’ authorization language deeply troubling. It concluded that reasonable parents would not understand the reference to representation before agencies and courts, in connection with a nationwide class action, as authorizing BIRG to start individual due process proceedings concerning their children’s educational plans.

The court noted that individual challenges to an educational plan can be lost if they are not properly filed. It said the materials did not show that BIRG had reviewed the underlying educational plans, discussed the children’s disabilities and possible challenges with the parents, investigated how the plans were developed, and obtained specific authorization before filing each challenge. The court stated that an attorney who filed such a hearing request without taking those steps would be committing malpractice.

The court directed BIRG, before relying on the hearings already filed, to confirm with the parents that BIRG was authorized to act and to provide signed additions to the retainer agreements specifically authorizing BIRG to request and handle those hearings. The court also urged Mr. Albert to revise the firm’s agreements so that their scope of representation would be understandable and would expressly address impartial due process hearings.

Motion for Leave to Amend

Mr. Albert sought permission to amend the complaint to add some named plaintiffs, remove others, and expand the complaint’s allegations under the Racketeer Influenced and Corrupt Organizations Act. The court denied the motion without prejudice.

The court explained that the City of New York had already moved to dismiss the complaint and that the motion addressed the existing complaint. The court intended to decide that motion before allowing amendments because the City’s arguments raised serious issues that the proposed amendments would not resolve, and the decision could make further amendment unnecessary in whole or in part.

The court also had not yet ruled on BIRG’s responses to other orders requiring explanations. Those rulings could eliminate or require substantial changes to parts of the complaint. The court therefore sought to avoid repeated amendments. It further stated that, under its individual rules, the civil RICO statement was treated as part of the complaint and would be considered when deciding the motion to dismiss.

Disposition

In J.T. v. de Blasio, Judge Colleen McMahon denied the motion to file under seal and denied leave to amend the complaint without prejudice. The order did not decide the City’s pending motion to dismiss or the underlying claims.