The opinion of the court was delivered by: JED RAKOFF, District Judge
Plaintiffs move to "reform" the Settlement Agreement to include
the position of "Assistant Conductor" among the positions covered
by the Agreement. Defendant Metro-North Commuter Railroad Company
("Metro-North") opposes, arguing that since the
heavily-negotiated Settlement Agreement expressly lists 53
positions that are covered by the Agreement, and Assistant
Conductor is not among them, there is no basis for its addition
now. In particular, Section X.(B)(1)(a) of the Settlement
Agreement accords coverage to any class member "occupying one of
the positions identified by the Second Circuit in its decision at
191 F.3d 283 (2d Cir. 1999), as set forth more clearly in Exhibit
F hereto," and Exhibit F, in turn, lists "Conductor" but not
"Assistant Conductor." Since, concededly, these are two different
positions, it follows, Metro-North argues, that the Settlement
Agreement unambiguously excludes Assistant Conductor from
Reformation of contract, however, is not a matter of resolving
an ambiguity in a contract but rather of supplying what the
parties clearly intended to include but inadvertently omitted.
See e.g. Loewenson v. London Mkt. Co., 351 F.3d 58, 61 (2d
Cir. 2003). "Reformation is not granted for the purpose of
alleviating a hard or oppressive bargain, but rather to restate
the intended terms of an agreement when the writing that
memorializes that agreement is at variance with the intent of
both parties." George Becker Management Corp. v. Acme Quilting
Co., Inc., 413 N.Y.S.2d 135, 139 (N.Y. 1978).
Here, the following facts are undisputed. During the course of
discovery, plaintiffs employed a statistical expert, Dr. Harriet
Zellner, who analyzed discipline rates in the different
departments at Metro-North and identified certain positions for
which there were higher discipline rates for African-Americans
than for Caucasians. However, Dr. Zellner drew her statistics
from a database provided by Metro-North that, unbeknownst to her,
combined certain positions under single titles. Nonetheless, it
was that list of 48 positions that, as noted, was not only
referred to by the Court of Appeals in its decision in Caridad
v. Metro-North Commuter Railroad, 191 F.3d 283, 289 (2d Cir.
1999), but, in turn, was adopted by reference in section
X.(B)(1)(a) of the Settlement Agreement.
However, while the Settlement Agreement was still being
drafted, one of defendant's counsel, Katharine Parker, Esq.,
called plaintiffs' lead counsel, Alan Fuchsberg, Esq., to inform
him that Dr. Zellner's list of 48 positions did not fully conform
to Metro-North's own description of the positions, in that, in
several instances, it combined two positions under one title. Ms.
Parker suggested, and Mr. Fuchsberg agreed, that the matter be
clarified by attaching an Exhibit F that more perfectly described
the positions. Affidavit of Alan Fuchsberg ("Fuchsberg Aff."),
dated May 2, 2004, at 4; Affidavit of Katharine Parker ("Parker
Aff."), dated May 10, 2004, at ¶ 4. That is why the final wording
of Section X.(B)(1)(a), after referring to Caridad, adds the
phrase "as set forth more clearly in Exhibit F hereto," and why
Exhibit F lists 53 positions.
It now appears, however, that counsel for both sides overlooked
the fact that one of the titles under which Dr. Zellner
inadvertently combined data from two positions was "Conductor,"
which, it turns out, included data from both the Conductor and
the Assistant Conductor positions. Affirmation of Alan L.
Fuchsberg, dated March 22, 2004, at Exh. H (Email from Dr.
Harriet Zellner). Although this was an oversight, it is
undisputed that the parties' intent was to recategorize Dr.
Zellner's list of "48 positions" to include all positions to
which her data for those 48 positions related. Since Assistant
Conductor was in fact one such position, the data from which was
included by Dr. Zellner in her category entitled "Conductor," it
is plain that the parties effectively agreed to include the
position of Assistant Conductor within the scope of the
Accordingly, the Court hereby grants plaintiffs' motion and
reforms Exhibit F to the Settlement Agreement to add the position
of Assistant Conductor.
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