Cravath and A Better Childhood Win Class Certification for Children in NYC Foster Care, Advancing Longstanding Litigation

On August 23, 2024, the U.S. District Court for the Southern District of New York ruled that 19 children in a longstanding lawsuit could proceed as a class representing all children in the New York City foster care system, an important milestone for plaintiffs represented by Cravath on a pro bono basis alongside co‑counsel at A Better Childhood (“ABC”). Judge Kimba Wood issued the decision after the Second Circuit Court of Appeals reversed a prior ruling denying class certification in September 2023.

Cravath and ABC originally filed the class action lawsuit for injunctive relief on behalf of 19 named plaintiff children in the custody of New York City’s Administration for Children’s Services (“ACS”), seeking to remedy the ongoing violation of the children’s rights under the Due Process Clause as well as various state and federal statutory provisions. The suit alleged that these violations cause children in foster care harm to their health, safety and well being, including long stays in foster care without a permanent home or family. After extensive discovery uncovering the systemic nature of these harmful practices, the plaintiff children moved for class certification under Federal Rule of Civil Procedure 23(b)(2). In 2021, the district court denied the motion, determining that both commonality and typicality were lacking.

On interlocutory appeal, the children argued that their common injury is the unreasonable risk of harm every child faces because of ACS’s practices; not, as the district court understood it, the unique outcomes each child received once that risk materialized. The Second Circuit agreed with the children, holding in its September 2023 decision that “whether an agency has a practice of departing from its stated policy in a manner that exhibits deliberate indifference to a known risk or specific duty may be a common question that can be answered on a class‑wide basis.” The panel further held that the district court erroneously “did not address the particular evidence relating to each of the proposed common practices” and that “the flaws in the district court’s commonality analysis also permeated its typicality assessment.”

Judge Wood’s latest August 2024 ruling allows the lawsuit to proceed as a class action based on the criteria issued by the Second Circuit. More information on the Second Circuit decision is available here.

The Cravath team includes partners Antony L. Ryan and Justin C. Clarke, of counsel Nicole M. Peles and associates Scott B. Cohen and Robert A. DeNunzio.

The case is Elisa W. et al. v. The City of New York et al., No. 15‑cv‑5273 (S.D.N.Y.).