UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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MARK NUNEZ, et al.,
Plaintiffs,
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CITY OF NEW YORK, et al.,
Defendants.
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11 Civ. 5845 (LTS)(JCF)
UNITED STATES OF AMERICA,
Plaintiff-Intervenor,
- against -
CITY OF NEW YORK and NEW YORK CITY
DEPARTMENT OF CORRECTION,
Defendants.
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PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY
APPROVAL OF CONSENT JUDGMENT, APPROVAL OF CLASS NOTICE, AND
REVISION TO DEFINITION OF CERTIFIED CLASS
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TABLE OF CONTENTS
BACKGROUND .............................................................................................................................2
SUMMARY OF CONSENT JUDGMENT .....................................................................................5
ARGUMENT .................................................................................................................................14
I. THE COURT SHOULD GRANT PRELIMINARY APPROVAL OF THE
CONSENT JUDGMENT.......................................................................................14
A. The Consent Judgment is Fair, Adequate, and Reasonable. ..................... 15
1. The Consent Judgment Negotiation Process Was Fair. .................15
2. The Consent Judgment is Substantively Fair. ................................17
B. The Consent Judgment Complies with the PLRA. ................................... 22
II. THE COURT SHOULD APPROVE THE PROPOSED CLASS NOTICE. ........23
III. THE COURT SHOULD EXPAND THE DEFINITION OF THE
CERTIFIED CLASS AS AGREED TO IN THE CONSENT
JUDGMENT. .........................................................................................................25
CONCLUSION ..............................................................................................................................26
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TABLE OF AUTHORITIES
Page(s)
CASES
Benjamin v. Fraser,
156 F. Supp. 2d 333 (S.D.N.Y. 2001), aff’d in part,
vacated and remanded in part on other grounds, 343 F.3d 35 (2d Cir. 2003) ........................22
Chatelain v. Prudential-Bache Sec.,
805 F. Supp. 209 (S.D.N.Y. 1992)...........................................................................................21
City of Detroit v. Grinnell Corp.,
495 F.2d 448 (2d Cir. 1974), abrogated on other grounds, Goldberger v. Integrated
Resources, Inc., 209 F.3d 43 (2d Cir. 2000) ......................................................................14, 17
D’Amato v. Deutsche Bank,
236 F.3d 78 (2d Cir. 2001)................................................................................................. 14-16
Fisher v. Koehler et al.,
No. 83 Civ. 2128 (LAP) (S.D.N.Y.) ........................................................................................25
In re Austrian & German Bank Holocaust Litig.,
80 F. Supp. 2d 164 (S.D.N.Y. 2000),
aff’d sub nom. D’Amato v. Deutsche Bank, 236 F.3d 78 (2d Cir. 2001) ........................... 17-18
In re Global Crossing Sec. & ERISA Litig.,
225 F.R.D. 436 (S.D.N.Y. 2004) .............................................................................................20
In re Merrill Lynch Tyco Research Sec. Litig.,
249 F.R.D. 124 (S.D.N.Y. 2008) .......................................................................................17, 23
In re NASDAQ Mkt.-Makers Antitrust Litig.,
176 F.R.D. 99 (S.D.N.Y. 1997) ...............................................................................................15
In re PaineWebber Ltd. P’ships Litig.,
171 F.R.D. 104 (S.D.N.Y.), aff’d, 117 F.3d 721 (2d Cir. 1997) ..............................................21
In re Traffic Exec. Association-Eastern R.Rs.,
627 F.2d 631 (2d Cir. 1980).....................................................................................................15
Ingles v. Toro,
438 F. Supp. 2d 203 (S.D.N.Y. 2006) .............................................................................. passim
Shapiro v. JPMorgan Chase & Co.,
No. 11 CIV. 7961 (CM), 2014 WL 1224666 (S.D.N.Y. Mar. 24, 2014) ................................17
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Sheppard v. Phoenix,
91 Civ. 4141 (RPP), 1998 WL 397846 (S.D.N.Y July 16, 1998)............................................16
Wal-Mart Stores, Inc. v. Visa U.S.A. Inc.,
396 F.3d 96 (2d Cir. 2005).................................................................................................14, 23
Weil v. Long Island Sav. Bank.,
188 F.Supp. 2d 258 (E.D.N.Y. 2002) ......................................................................................19
Weinberger v. Kendrick,
698 F.2d 61 (2d Cir. 1982).......................................................................................................20
STATUTES AND RULES
18 U.S.C. § 3626(a) .................................................................................................................15, 22
18 U.S.C. § 3626(c) .................................................................................................................15, 22
28 U.S.C. § 1715(d) .......................................................................................................................25
42 U.S.C. § 1997 ..............................................................................................................................4
42 U.S.C. § 14141 ............................................................................................................................4
Fed. R. Civ. P. 23(a) ........................................................................................................................2
Fed. R. Civ. P. 23(b)(1)(A) ..............................................................................................................2
Fed. R. Civ. P. 23(b)(2)....................................................................................................................2
Fed. R. Civ. P. 23(e)(1) ..................................................................................................................23
Fed. R. Civ. P. 23(e)(2) ..................................................................................................................14
OTHER AUTHORITIES
Newberg on Class Actions § 11.25 (4th ed. 2002) .........................................................................14
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Rodney Brye, Shameik Smallwood, Travis Woods, and Oscar Sanders, as the class
representatives of the certified class in this action, through class counsel, Ropes & Gray LLP
(“R&G”), Emery Celli Brinckerhoff & Abady LLP (“ECBA”), and The Legal Aid Society
Prisoners’ Rights Project (“LAS”) (collectively, “Plaintiffs’ Class Counsel”), together with the
United States of America, through its counsel, the United States Attorney’s Office for the
Southern District of New York (“USAO”) (Plaintiffs’ Class Counsel and the USAO, collectively,
“Plaintiffs’ Counsel”), respectfully submit this Memorandum.
After vigorous litigation of the class claims in this action (including motion practice,
production of millions of pages of documents, and dozens of depositions), and after many
months of arm’s-length and intensive negotiations to settle those claims (involving counsel,
senior Department of Correction personnel including the Commissioner, and expert consultants),
the parties have succeeded in reaching a comprehensive and detailed Consent Judgment (the
“Consent Judgment”) designed to remedy the alleged unconstitutional practices in the New York
City jails. A copy of the Consent Judgment is annexed as Exhibit A to the accompanying
Declaration of Anna Friedberg, dated July 1, 2015 (“Friedberg Dec.”).
This Motion asks that the Court: (1) preliminarily approve the proposed Consent
Judgment executed by the parties (Friedberg Dec. Exhibit A), (2) approve the content and
method of distribution of the notice to the class (Friedberg Dec., Exhibit B; see proposed Order
annexed as Exhibit C thereto), (3) set dates for the process leading up to and including the
Fairness Hearing, and (4) revise the definition of the certified class as agreed to by the parties in
the proposed Consent Judgment. The proposed Order contains provisions regarding preliminary
approval of the Consent Judgment, the content of the proposed class notice and method of
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distribution, the Fairness Hearing process, and the revised class definition. Defendant The City
of New York (“City”) consents to the relief sought in this Motion.
BACKGROUND
On August 18, 2011, Plaintiff Mark Nunez filed the original complaint in this action
against the New York City Department of Correction (the “Department”). He alleged
unjustifiable use of unnecessary and excessive force by the Department and certain Department
staff members in violation of the United States Constitution. ECF No. 2, Aug. 18, 2011. On
May 24, 2012, Mr. Nunez, along with seven other individual Plaintiffs and three proposed class
representatives, filed an amended complaint against the City and a number of Department
personnel who were sued individually and/or in their official capacities. ECF No. 14, May 24,
2012. In very brief summary, the amended complaint alleged that the City was, and long had
been, engaged in a pattern and practice of using unnecessary and excessive force against inmates
in the City jails, in violation of their rights under the Constitution of the United States and the
Constitution of the State of New York. The amended complaint sought injunctive and
declaratory relief on behalf of a proposed class of current and future inmates of the jails not
already subject to court orders governing the use of force, and damages for the individual
plaintiffs. A second amended complaint was filed on September 4, 2012, which added an
additional class representative (those four class representatives, and those eight individual
plaintiffs, collectively, the “Named Plaintiffs”). ECF No. 34, Sept. 4, 2012.
On January 7, 2013, the Court entered a stipulated Order, pursuant to Federal Rules of
Civil Procedure 23(a), 23(b)(1)(A) and 23(b)(2), certifying a class (the “Plaintiff Class”) of: “all
present and future inmates confined in jails operated by the Department, except for the Eric M.
Taylor Center and the Elmhurst and Bellevue Prison Wards.” ECF No. 61, Jan. 7, 2013. That
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Order also appointed Rodney Brye, Shameik Smallwood, Travis Woods, and Oscar Sanders as
representatives of the Plaintiff Class (the “Class Representatives”), and appointed R&G, ECBA,
and LAS as Plaintiffs’ Class Counsel. That Order further required submission of a proposed
notice to the Plaintiff Class and a plan for distributing that notice. The parties submitted, and on
February 28, 2013 the Court approved, an agreed-upon notice and method of dissemination.
ECF No. 78, Feb. 19, 2013. Such notice subsequently was given to the Plaintiff Class.1
Very significant discovery was taken related to the class claims, both prior to and after
the Court certified the Plaintiff Class. The City produced over two million pages of documents
(in electronic and hard copy form), including Department policies and procedures governing the
use of force, use of force reports for thousands of incidents, training materials, and records
relating to use of force investigations. See Friedberg Dec. ¶ 5. Plaintiffs’ Class Counsel took 57
depositions, including depositions of current and former correction officers, captains, deputy
wardens, wardens, and a deputy commissioner, as well as witnesses from outside the
Department. See id. ¶ 6. As the Court is aware, the discovery process was hotly contested and
involved a number of disputes, several of which required resolution by the Court. See id. ¶ 7.
Plaintiffs’ Class Counsel retained eminent expert consultants to assist them in connection
with the class claims. See id. ¶ 8. Those experts toured the jails, reviewed discovery, and
consulted frequently with Plaintiffs’ Class Counsel. See id. In June 2014, Plaintiffs’ Class
Counsel (assisted by their expert consultants) and counsel for the City commenced settlement
negotiations. At counsel’s request, the Court thereafter stayed all class-related deadlines. See id.
¶ 9. On September 22, 2014, Plaintiffs’ Class Counsel and counsel for the City executed a
1 As discussed infra, for purposes of the Consent Judgment, Plaintiffs’ Class Counsel and the City have agreed to
expand the definition of the Plaintiff Class to include present and future inmates confined in the Eric M. Taylor
Center.
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Memorandum of Understanding, which outlined in general terms some provisions of a potential
settlement and noted others for further discussion. See id. ¶ 11.
In 2012, the USAO commenced an investigation into the treatment of young male
inmates, between the ages of 16 and 18 (“Young Inmates”), pursuant to the Civil Rights of
Institutionalized Persons Act (“CRIPA”), 42 U.S.C. § 1997, and the Violent Crime Control and
Law Enforcement Act of 1994, 42 U.S.C. § 14141. As part of its comprehensive investigation,
the USAO and its expert consultant reviewed hundreds of thousands of pages of Department
records, analyzed a sample of approximately 200 use of force incidents involving Young
Inmates, conducted tours of the facilities that housed Young Inmates, and interviewed staff,
inmates, and other witnesses. On August 4, 2014, the USAO and the Department of Justice
issued a 79-page findings letter under CRIPA, which concluded that Young Inmates were being
subjected to unconstitutional conditions of confinement. In particular, the findings letter asserted
that the City had engaged in a pattern and practice of: (a) subjecting Young Inmates to excessive
and unnecessary use of force; (b) failing to adequately protect Young Inmates from violence
inflicted by other inmates; and (c) placing Young Inmates in punitive segregation at an alarming
rate and for excessive periods of time. After multiple meetings with the City concerning the
findings letter and its recommended remedial measures, the USAO determined that it was
necessary to intervene in this action. On December 18, 2014, the United States, through the
USAO, filed an unopposed motion to intervene as a plaintiff in this action, which was granted by
the Court on December 23, 2014. ECF No. 181, Dec. 23, 2014.
After the United States intervened, the parties continued to engage in extensive
settlement negotiations. See Friedberg Dec. ¶ 13. Literally scores of in-person and telephonic
settlement sessions were held over the course of several months. The settlement discussions
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involved direct participation not only by counsel, but also by key Department officials (including
Commissioner Joseph Ponte) and the expert consultants retained by Plaintiffs’ Class Counsel and
the USAO. See id. The parties provided the Court with periodic updates on the status of the
settlement discussions by letter and at Court conferences. Detailed drafts of the operative
provisions of a proposed agreement were exchanged, vigorously debated and negotiated, and
ultimately finalized. See id. By letter dated June 22, 2015, the parties advised the Court that
they had reached agreement on the terms of the Consent Judgment (ECF. No. 203, June 22,
2015), which has since been executed by all parties. See Friedberg Dec. ¶ 14.
SUMMARY OF CONSENT JUDGMENT
The parties have agreed to a Court-enforceable Consent Judgment that will provide
substantial relief to the Plaintiff Class. It will be subject to the Court’s continuing jurisdiction
and oversight, and provides for a Court-appointed, independent monitor (the “Monitor”). The
parties have selected Steve J. Martin to serve as the Monitor. He will be responsible for
assessing compliance with each provision of the Consent Judgment and submitting periodic
reports to the Court. He will have broad access to the Department’s records, facilities, and staff,
and may hire or consult with other qualified staff as is reasonably necessary to fulfill his duties.
In addition, after each reporting period for the duration of the Consent Judgment, the Department
will provide Mr. Martin and Plaintiffs’ Counsel with compliance reports that will contain
extensive information and data related to implementation of different provisions of the Consent
Judgment.
Built into the Consent Judgment are a wide range of reforms intended to dismantle the
decades-long culture of violence in the City jails, and create an environment that protects both
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inmates and correction officers alike. The Consent Judgment includes the following specific
requirements:2
Development of a New Use of Force Policy: The Department will develop, adopt, and
implement a comprehensive, new use of force policy that will be subject to the Monitor’s review
and approval. The new policy will set forth explicit prohibitions regarding the use of certain
categories of force, and provide correction officers with clear direction on when and how force
may be used. See Consent Judgment § IV, “Use of Force Policy” ¶¶ 1-3.
Robust Requirements for Reporting Use of Force: Correction officers will be required
to provide timely and detailed reports on every use of force incident, and will be required to
independently prepare these reports. Any collusion in the preparation of use of force reports will
result in disciplinary action. See Consent Judgment § V, “Use of Force Reporting and Tracking”
¶¶ 1-9.
Complete and Timely Investigations of Use of Force Incidents: The Department will
conduct thorough, timely, and objective investigations into use of force incidents to determine
whether staff engaged in the excessive or unnecessary use of force or otherwise violated the use
of force policy. The Consent Judgment sets forth criteria that these investigations must satisfy,
and requires the Department’s investigators to prepare complete and detailed reports
summarizing their findings, the basis for their findings, and any recommended disciplinary
actions or remedial measures. See Consent Judgment § VII, “Use of Force Investigations”
¶¶ 1-14.
Increased Accountability: The Department will take all necessary steps to impose
appropriate and meaningful discipline, up to and including termination, when correction officers
2 The summary that follows enumerates most but not all areas of reform. The actual Consent Judgment contains
much more detail on these areas and includes other requirements.
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engage in the excessive or unnecessary use of force or otherwise violate the use of force policy.
To ensure that correction officers are consistently held accountable for misconduct, the
Department will develop and implement disciplinary guidelines that will include the range of
penalties to be sought for different categories of violations. The Consent Judgment requires the
Department to seek to terminate correction officers found to have engaged in certain categories
of egregious misconduct, absent exceptional circumstances. The Department will prosecute
disciplinary actions as expeditiously as possible, and shall be staffed sufficiently to do so. See
Consent Judgment § VIII, “Staff Discipline and Accountability” ¶¶ 1-5.
Development of an Early Warning System: The Department will develop a system,
subject to the Monitor’s review and approval, to identify as soon as possible correction officers
whose conduct may warrant corrective actions. The system will track and use performance data
to help the Department identify staff members who are at risk of engaging in serious misconduct
absent appropriate intervention or services by the Department. See Consent Judgment § X, “Risk
Management” ¶ 1.
Creation of New Use of Force Auditor Position: The Department will designate an
individual to serve as an auditor of use of force incidents (the “Use of Force Auditor”) who will
report directly to the Commissioner or a designated Deputy Commissioner. The Use of Force
Auditor will be responsible for analyzing all data relating to use of force incidents and
identifying trends and patterns. The Use of Force Auditor will prepare quarterly reports setting
forth the Auditor’s findings and recommendations to the Commissioner on how to reduce the
number of use of force incidents and the severity of injuries resulting from these incidents. See
Consent Judgment § X, “Risk Management” ¶ 3.
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Comprehensive Video Surveillance of Jails: By February 28, 2018, the Department
will install sufficient additional wall-mounted video surveillance cameras throughout the jails to
ensure complete camera coverage (with certain narrow exceptions such as the interior of shower
areas and toilet areas). The Department will install a total of at least 7,800 additional cameras on
a rolling basis. At least 25% must be installed by July 1, 2016, at least 50% by February 1, 2017,
and at least 75% by July 1, 2017. The Department will seek to prioritize the installation in
facilities with the most significant levels of violence. In addition, the Department will preserve
video capturing a use of force incident or inmate-on-inmate violence for a period of four years as
a general practice. See Consent Judgment § IX, “Video Surveillance” ¶¶ 1, 4.
Implementation of a Pilot Program for Body-Worn Cameras: The Department will
institute a pilot program involving the use of body-worn cameras by certain correction officers.
After one year, the Department, in consultation with the Monitor, will evaluate the effectiveness
and feasibility of using these cameras and determine whether the Department should continue or
expand their use. See Consent Judgment § IX, “Video Surveillance” ¶¶ 2(a)-(c).
Requirements for Use of Handheld Video Cameras: The Department will develop,
adopt, and implement policies and procedures mandating that staff use handheld video cameras
to record, among other things, responses to use of force incidents, cell extractions, and most
living quarter searches, except when safety or security concerns require an immediate response
that would preclude waiting for the recording requirement. The policies will require that the
recordings be continuous and that any break in the recording be explained. See Consent
Judgment § IX, “Video Surveillance” ¶ 2(d).
Enhanced Computerized Tracking Systems: The Department will track in a reliable,
accurate, and computerized manner extensive data on all use of force incidents, use of force
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investigations, and staff disciplinary actions. The Department will utilize these systems to
determine if there are ways to enhance the quality of inmate supervision or oversight of
correction officers, and to identify patterns in the use of force that need to be addressed. By the
end of 2016, the Department will develop a new case management system to track such data
centrally. See Consent Judgment § V, “Use of Force Reporting and Tracking” ¶¶ 14-21.
Improved Staff Recruitment and Selection: The Department will develop a
comprehensive staff recruitment program to attract well-qualified applicants, and will employ an
objective process to select and hire staff. The Department also will conduct appropriate
background investigations before hiring individuals that will include consideration of specified
factors, such as possible gang affiliations and the applicant’s relationships with current inmates.
See Consent Judgment § XI, “Staff Recruitment and Selection” ¶¶ 1-3.
Enhanced Screening of Supervisors and Special Unit Staff: Prior to promoting any
correction officer to the position of Captain or higher or assigning an officer to certain special
units (e.g., punitive segregation and mental health housing areas), the Department will undertake
a review of the officer’s prior involvement in use of force incidents to verify that this does not
raise concerns about the officer’s qualifications. The Department may not promote any officer
who has been found guilty, or pleaded guilty, more than once within the preceding five-year
period to various delineated disciplinary charges relating to the use of force, absent exceptional
circumstances. See Consent Judgment § XII, “Screening and Assignment of Staff” ¶¶ 1-2.
Review of Assignment of Disciplined Staff: The Department will review the
assignment of correction staff who have been found guilty or pleaded guilty more than once
during the preceding five-year period to various delineated disciplinary charges relating to the
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use of force to determine whether such staff need to be reassigned. See Consent Judgment § XII,
“Screening and Assignment of Staff” ¶ 7.
Additional Staff Training: The Department will develop a number of new pre-service
and in-service training programs, as well as strengthen and improve existing training programs,
addressing a variety of subject matters, including the new use of force policy, crisis intervention
and conflict resolution, defensive tactics, cell extractions, and procedures, skills, and techniques
for investigating use of force incidents. The Consent Judgment specifies the minimum length of
these trainings, and sets deadlines by which staff must complete them. New training programs
and materials will be subject to the review and approval of the Monitor. See Consent Judgment
§ XIII, “Training” ¶¶ 1-8.
Anonymous Reporting System: In consultation with the Monitor, the Department will
establish a centralized system that will allow correction staff to anonymously report use of force
policy violations. See Consent Judgment § VI, “Anonymous Reporting System” ¶ 1.
Notifications to the United States Attorney’s Office: The Department will promptly
notify the USAO of any use of force incident where correction staff conduct appears to be
criminal in nature. See Consent Judgment § XIX, “Reporting Requirements and Parties’ Right of
Access” ¶ 6.
In addition, the Consent Judgment includes numerous provisions specifically addressing
Young Inmates, who were the focus of the Complaint-in-Intervention filed by the USAO. The
Consent Judgment, among other things, requires the following reforms for Young Inmates:
Safety and Supervision of Young Inmates: The Department will supervise Young
Inmates in a manner that protects them from an unreasonable risk of harm. As set forth in
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Section XV (“Safety and Supervision of Inmates Under the Age of 19”) of the Consent
Judgment, the Department shall:
o Cap inmate-to-staff ratios and living unit sizes for housing units used for inmates under
the age of 18, as well as housing units used for high and medium classification 18-year-
old inmates.
o Conduct daily inspections of Young Inmate housing areas to ensure that the conditions
are reasonably safe and secure.
o Develop, in consultation with the Monitor, an age-appropriate classification system for
inmates under the age of 18.
o Develop and maintain a sufficient level of programming for Young Inmates, especially in
the evenings, on weekends, and during the summer, to minimize idleness and the
potential for inmate-on-inmate violence. This programming shall be consistent with best
practices in United States correctional systems.
o Promptly transfer Young Inmates who express concerns for their safety to secure
alternative housing pending an investigation and evaluation of the risk to the inmate’s
safety.
o Adopt and implement a new approach to supervising and managing Young Inmates,
commonly referred to as the “Direct Supervision Model.” This model emphasizes
frequent and informal communications between staff and inmates, and early staff
intervention to avoid potential inmate-on-inmate conflicts or crisis situations. All staff
assigned to Young Inmate housing areas will receive at least 32 hours of training on this
new inmate management model.
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o Implement a system that seeks to consistently assign the same correction officers and
supervisors to the same housing units.
o Timely report and thoroughly investigate all allegations of sexual assault involving
Young Inmates.
o Train correction officers regularly assigned to the Young Inmate housing areas in conflict
resolution and crisis intervention skills specific to managing Young Inmates, techniques
to prevent and/or de-escalate inmate-on-inmate altercations, and ways to manage Young
Inmates with mental illnesses and/or suicidal tendencies.
See Consent Judgment § XV, “Safety and Supervision of Inmates Under the Age of 19” ¶¶ 1-18.
Restrictions on Use of Punitive Segregation for Young Inmates: The Consent
Judgment includes several restrictions on the use of punitive segregation for Young Inmates,
including the following:
o The Department will not place any inmate under the age of 18 in punitive segregation. In
consultation with the Monitor, the Department will develop alternative systems, policies,
and procedures to discipline inmates under the age of 18 who commit infractions, and to
reward and incentivize positive behaviors. See Consent Judgment § XVI, “Inmate
Discipline” ¶¶ 2-4.
o With respect to 18-year-olds, the Department will develop a continuum of alternatives to
punitive segregation for inmate infractions, subject to the Monitor’s review and approval.
The Department will not use punitive segregation for any 18-year-old inmate with a
serious mental illness and will place 18-year-old inmates in punitive segregation only
after a mental health care professional determines that the confinement does not present a
substantial risk of serious harm to the inmate. On a daily basis, the Department will
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monitor the medical and mental health status of any 18-year-old in punitive segregation.
See id. ¶¶ 5-8.
Review of Young Inmate Disciplinary Process: The Department will retain an outside
consultant to conduct an independent review of its infractions processes and procedures. The
consultant will issue a report with findings and recommendations, which the Department shall
implement unless doing so would be unduly burdensome. See id. ¶ 11.
Alternative Housing Site for Inmates Under the Age of 18: The Department and the
Mayor’s Office of Criminal Justice, in consultation with the Monitor, will make best efforts to
identify an alternative site not on Rikers Island to house inmates under the age of 18. That site
will be readily accessible by public transportation to facilitate visitation between inmates and
family members, and have the capacity to be designed and/or modified to provide a safe and
secure environment, access to adequate recreational facilities and programming, the capacity to
house inmates in small units, and a physical layout that facilitates implementation of the Direct
Supervision Model. See Consent Judgment § XVII, “Housing Plan for Inmates Under the Age of
18” ¶ 1.
This Consent Judgment will be in effect until the Court finds that the City has
demonstrated through a preponderance of the evidence that it has achieved and maintained
substantial compliance with the Consent Judgment for 24 months. See Consent Judgment § XXI,
“Compliance, Termination, and Construction” ¶ 5. The reforms mandated by this Consent
Judgment and delineated above are designed to comprehensively address systemic deficiencies
that have plagued the City jails for years. Taken together, they represent the parties’ collective
views as to the measures necessary and appropriate to protect the constitutional rights of inmates.
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ARGUMENT
I. THE COURT SHOULD GRANT PRELIMINARY APPROVAL OF THE
CONSENT JUDGMENT.
Fed. R. Civ. P. 23(e)(2) provides that where, as here, the proposed settlement of a class
action will bind the class members, the Court “may approve it only after a hearing and on finding
that it is fair, reasonable, and adequate.” There is a “strong judicial policy in favor of
settlements, particularly in the class action context.” Wal-Mart Stores, Inc. v. Visa U.S.A. Inc.,
396 F.3d 96, 116 (2d Cir. 2005). A settlement should be approved “if it is fair, adequate,
reasonable, and not a product of collusion.” Id. (citation and internal quotation marks omitted).
That entails an assessment of “both the settlement’s terms and the negotiation process leading to
settlement.” Id. (citing D’Amato v. Deutsche Bank, 236 F.3d 78, 85 (2d Cir. 2001)).
Procedural fairness exists where the settlement “resulted from arm’s-length negotiations
and…plaintiffs’ counsel … possessed the experience and ability, and … engaged in the
discovery, necessary to effective representation of the class’s interests.” D’Amato, 236 F.3d at 85
(internal quotation marks omitted). Substantive fairness exists where the settlement’s terms are
fair, adequate, and reasonable according to the nine factors set forth in City of Detroit v. Grinnell
Corp., 495 F.2d 448, 463 (2d Cir. 1974), abrogated on other grounds, Goldberger v. Integrated
Resources, Inc., 209 F.3d 43 (2d Cir. 2000). Because the Consent Judgment involves only
injunctive relief, the Court need not assess the last three Grinnell factors. Ingles v. Toro, 438 F.
Supp. 2d 203, 211 (S.D.N.Y. 2006). A “presumption of fairness, adequacy, and reasonableness
may attach to a class settlement reached in arm’s-length negotiations between experienced,
capable counsel after meaningful discovery.” Id. (quoting Wal-Mart, 396 F.3d at 116).
Because only preliminary approval is involved here, the Court need make only an “initial
evaluation” of the fairness of the proposed settlement. Newberg on Class Actions § 11.25 (4th
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ed. 2002), and need only find that there is “probable cause to submit the [settlement] proposal to
class members and hold a full-scale hearing as to its fairness.” In re Traffic Exec. Association-
Eastern R.Rs., 627 F.2d 631, 634 (2d Cir. 1980) (internal citation omitted). When the proposed
settlement is “the product of serious, informed, non-collusive negotiations, has no obvious
deficiencies, does not improperly grant preferential treatment to class representatives or
segments of the class and falls within the range of possible approval, preliminary approval
[should be] granted.” In re NASDAQ Mkt.-Makers Antitrust Litig., 176 F.R.D. 99, 102 (S.D.N.Y.
1997).
Because the Consent Judgment involves prospective relief regarding prison conditions,
the Court must also find that it complies with the Prison Litigation Reform Act (“PLRA”), which
requires that the “relief is narrowly drawn, extends no further than necessary to correct the
violation of the Federal right, and is the least intrusive means necessary to correct the violation
of the Federal right.” 18 U.S.C. § 3626(a) & (c). Although such findings may be properly
deferred until the time of final approval, as discussed further below, the Consent Judgment meets
the PLRA standard.
A. The Consent Judgment is Fair, Adequate, and Reasonable.
As explained below, the Consent Judgment is both procedurally and substantively fair.
1. The Consent Judgment Negotiation Process Was Fair.
As noted, procedural fairness exists if the settlement “resulted from arm’s-length
negotiations and … plaintiffs’ counsel …possessed the experience and ability, and …engaged in
the discovery, necessary to effective representation of the class’s interests.” D’Amato, 236 F.3d
at 85 (internal quotation marks omitted). This settlement easily meets that test.
The Consent Judgment was reached after extensive discovery, which required the Court’s
ongoing supervision and intervention. The City ultimately produced more than two million
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pages of documents and electronic records. See Friedberg Dec. ¶ 5. Plaintiffs’ Class Counsel
created a database that organized that voluminous production, and used it to prepare for and take
57 depositions, including depositions of many current and former Department personnel –
correction officers, captains, wardens, deputy wardens, and a deputy commissioner – as well as a
Deputy Executive Director of the New York City Board of Correction and an Assistant
Commissioner for the Bureau of Correctional Health, among others. See id. ¶ 6. Plaintiffs’
Class Counsel were prepared to take, and would have taken had class discovery not been stayed,
depositions of the highest ranking policy-makers in the Department. See id. In addition, prior to
intervening in this action, the USAO conducted an exhaustive CRIPA investigation into the
treatment of Young Inmates, as detailed above. Plaintiffs’ Counsel, and their expert consultants,
relied heavily on the information obtained through discovery and the CRIPA investigation to
propose and negotiate the terms of the Consent Judgment.
The negotiations were lengthy, vigorous, and arm’s-length. They were conducted over
the course of several months by experienced and capable attorneys from R&G, ECBA, LAS, the
USAO, and the City.3 In addition, senior Department personnel, including Commissioner Ponte,
as well as Plaintiffs’ expert consultants, were directly and extensively involved in the
negotiations, which further ensures that the requirements of the Consent Judgment are practical
3 It is a matter of public record that the Prisoners’ Rights Project of LAS has a detailed knowledge of the jails,
having represented inmates in the jails for over 30 years and served as counsel in numerous excessive force class
actions against the City. ECBA counsel likewise have litigated many individual actions on behalf of jail inmates,
and together with LAS prosecuted the most recent class action concerning use of force in the jails. See Ingles, 438
F. Supp. 2d at 213. The R&G attorneys prosecuting this action on behalf of the Plaintiff Class have taken the lead
on many of the discovery-related aspects of this case, and have developed deep knowledge of the facts. Plaintiffs’
Class Counsel’s expert consultant Steve J. Martin – who will be appointed the Monitor under the Consent Judgment
if approved by the Court – was an expert and a jointly-chosen monitor in Sheppard v. Phoenix, 91 Civ. 4141 (RPP),
1998 WL 397846 (S.D.N.Y July 16, 1998) (excessive force class action addressing Rikers’ Central Punitive
Segregation Unit), and is a nationally-recognized expert on correctional facilities. The USAO retained another
corrections expert, Jeffrey Schwartz, who was also involved in the negotiation of the Consent Judgment.
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and designed to effectively address the goals of reducing violence in the jails and ensuring the
safety and well-being of inmates. See id ¶ 16.
In sum, there can be no doubt that the process leading to the Consent Judgment was
procedurally fair.
2. The Consent Judgment is Substantively Fair.
There similarly can be no doubt that the Consent Judgment is substantively fair. As
noted, in making that determination in a case seeking injunctive relief, courts looks to the first
six Grinnell factors:
(1) the complexity, expense, and likely duration of litigation;
(2) the reaction of the class to the settlement;
(3) the stage of the proceedings and the amount of discovery completed;
(4) the risks of establishing liability;
(5) the risks of establishing damages;4 and
(6) the risks of maintaining the class action through trial.
See 495 F.2d at 463; see also Ingles, 438 F. Supp. 2d at 211. “A court need not find that every
factor militates in favor of a finding of fairness; rather, a court consider[s] the totality of these
factors in light of the particular circumstances.” In re Merrill Lynch Tyco Research Sec. Litig.,
249 F.R.D. 124, 134 (S.D.N.Y. 2008) (internal quotation marks omitted).
(a) Complexity, Expense, and Likely Duration of Litigation
“This [Grinnell] factor captures the probable costs, in both time and money, of continued
litigation.” Shapiro v. JPMorgan Chase & Co., No. 11 CIV. 7961 (CM), 2014 WL 1224666, at
*8 (S.D.N.Y. Mar. 24, 2014). “Most class actions are inherently complex and settlement avoids
4 When examining injunctive rather than monetary relief, this factor is examined “in light of establishing remedies
instead of damages.” Ingles, 438 F. Supp. 2d at 211.
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the costs, delays and multitude of other problems associated with them.” In re Austrian &
German Bank Holocaust Litig., 80 F. Supp. 2d 164, 174 (S.D.N.Y. 2000), aff’d sub nom.
D’Amato v. Deutsche Bank, 236 F.3d 78 (2d Cir. 2001). This case exemplifies that truism.
Were this class action to have continued, it would have involved more fact witness
depositions (party and non-party), several discovery-related motions (involving such contentious
issues as confidentiality designations by the City, the scope of discovery produced by the City,
the number of witnesses to be deposed, and the resolution of complex privilege issues), expert
analyses, reports, and depositions, possible summary judgment motions, and extensive
preparation for trial. See Friedberg Dec. ¶ 17.
A trial of this case would have been a lengthy and contentious affair, consuming more
time and resources, and presenting complex issues for the Court to resolve. It would have
involved the presentation of evidence concerning each of the 12 Named Plaintiffs’ individual
excessive force claims, both to establish their individual claims as well as the Plaintiff Class’s
pattern and practice claims. The trial also would have involved the presentation of evidence
concerning use of force incidents against other inmates, and expert testimony. Given the scope
of the system-wide claims, Plaintiffs likely would have needed several weeks to present their
case at trial. Defendants would have countered with their own fact and expert witnesses.
Furthermore, similar to Ingles, because this case includes the Named Plaintiffs’ individual
damages claims as well as the Plaintiff Class’s injunctive and declaratory relief claims, “the trial
would have involved both damages claims tried to a jury as well as equitable claims tried to the
Court. Issues would have arisen as to what evidence would be presented to the jury and what
evidence would be presented only to the Court.” Ingles, 438 F. Supp. 2d at 212. And any trial
result doubtless would be the subject of post-trial motions, and then appeal by the losing side.
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See id. (“no matter what the outcome, the losing side would have undoubtedly appealed, further
extending the duration of the case”).
All of the above would take time – during which conditions in the jails would not be
remedied – and would result in economic tolls on parties, counsel, and witnesses, as well as
consumption of the Court’s limited resources.
In stark contrast to that protracted and costly scenario, the Consent Judgment provides an
expeditious and comprehensive solution to the problems that led to the filing of this class action.
This factor strongly favors approval of the Consent Judgment.
(b) Reaction of the Class to the Settlement
Though notice of the Consent Judgment obviously has not yet been distributed to the
Plaintiff Class, Plaintiffs’ Class Counsel are confident that it will be well-received by them. At
present, this factor is neutral.
(c) Stage of the Proceedings and the Amount of Discovery
Completed
This factor strongly favors approval of the Consent Judgment. As discussed earlier,
extensive discovery had been conducted over the span of many months, and both sides could
make “an educated evaluation of the relative strengths and weaknesses of the parties’ cases” such
that “the parties are in a position to make informed settlement judgments.” Weil v. Long Island
Sav. Bank., 188 F.Supp. 2d 258, 263-64 (E.D.N.Y. 2002). The United States also conducted an
extensive investigation before issuing its findings letter, and the information gathered during that
investigation further informed the Plaintiffs as they negotiated the Consent Judgment.
(d) Risks of Continuing Litigation
Plaintiffs’ Counsel submit that it makes most sense for the Court to consider together the
fourth factor (the risks of establishing liability), the fifth factor (the risks of obtaining injunctive
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relief)5, and the sixth factor (the risks of maintaining the class action through trial), because each
of them concerns the risks inherent in not settling now and proceeding to trial.
“[The fourth] factor does not require the Court to adjudicate the disputed issues or decide
unsettled questions; rather, the Court need only assess the risks of litigation against the certainty
of recovery under the proposed settlement.” In re Global Crossing Sec. & ERISA Litig., 225
F.R.D. 436, 459 (S.D.N.Y. 2004); see also Weinberger v. Kendrick, 698 F.2d 61, 74 (2d Cir.
1982) (although the trial judge must “apprise himself of all facts necessary for an intelligent and
objective opinion of the probabilities of ultimate success . . . all cannot really mean all [as it
cannot be said that] in order to avoid trial, the judge must in effect conduct one”) (internal
citations omitted). Though Plaintiffs’ Counsel are highly confident that they would prevail at
trial, all litigation is inherently uncertain. See Ingles, 438 F. Supp. 2d at 213 (noting that “while
plaintiffs had amassed a substantial body of evidence to prove their claims, establishing liability
was by no means certain”). The Consent Judgment eliminates all risk of loss, and greatly
benefits the Plaintiff Class by assuring that needed reforms will start to be implemented in the
short term, rather than in years after a trial and appeals.
As for the fifth factor, even if liability were to be proven at trial, and upheld on the
inevitable appeal, it would be challenging for the Court to direct, in a contested context,
equitable remedies that would be as detailed and comprehensive as the relief included in the 63-
page Consent Judgment. As described above, the settlement requires a tightly interwoven,
carefully constructed set of specifically targeted reforms to redress the claims raised in the
second amended class action complaint and the Complaint-in-Intervention. The Consent
Judgment reflects a hard-fought negotiated remedy that commits the City and the Department to
5 As previously noted, here the fifth factor really is the risk that the Plaintiff Class would be unable to demonstrate
its entitlement to the requested relief.
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establish – starting forthwith after final approval by the Court – new systems, practices,
procedures, and policies designed to bring systemic changes to the jails. Moreover, the
likelihood of real reform and compliance is arguably greater when defendants voluntarily agree
to implement changes through a consent decree than when relief is imposed upon them by a
court after an intensely contested and protracted trial. The fact that the City and the Department
have agreed to these sweeping changes strongly supports approval of the Consent Judgment. See
Ingles, 438 F. Supp. 2d at 214 (noting that the “City has agreed to specific, concrete, and
meaningful measures that will require, inter alia, the expenditure of millions of dollars . . . . It is
difficult to imagine that the Court would have imposed, following trial, significantly more
extensive and detailed relief.”).
As for the sixth factor, the risk that a class will be decertified during litigation also
weighs in favor of approving a settlement. See Chatelain v. Prudential-Bache Sec., 805 F. Supp.
209, 214 (S.D.N.Y. 1992). Here, Paragraph 6 of the Court’s Order certifying the Plaintiff Class
provided that the City could move to decertify (or vacate the Order) after the close of fact and
expert discovery, and after conferring with Plaintiffs’ Class Counsel. The Consent Judgment
eliminates that risk.
Where, as here, a settlement has been reached after an arm’s-length negotiation, “great
weight is accorded to the recommendations of counsel, who are most closely acquainted with the
facts of the underlying litigation.” In re PaineWebber Ltd. P’ships Litig., 171 F.R.D. 104, 125
(S.D.N.Y.), aff’d, 117 F.3d 721 (2d Cir. 1997). Plaintiffs’ Counsel, who are intimately familiar
with the case, unanimously are of the view that the Consent Judgment reflects a very good
outcome for the Plaintiff Class and should be approved. See Friedberg Dec. ¶ 15.
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In sum, consideration of these related factors strongly favors preliminary approval of the
Consent Judgment.
B. The Consent Judgment Complies with the PLRA.
In Ingles, the one aspect of the settlement that “troubled” the court was the fact that it was
not a “consent decree” under the PLRA, and thus any claimed violation could be “addressed only
by bringing a new action for breach of contract in state court or by reinstating this action.”
438 F. Supp. 2d at 214. The court there nonetheless approved the settlement agreement.
However, in this case, that “troubling” issue is not present, because the Consent Judgment is a
“consent decree” under the PLRA, and thus is enforceable by this Court. This is another reason
why the Consent Judgment should be approved.
The PLRA requires the Court to find (at the final approval stage) that the Consent
Judgment is “narrowly drawn, extends no further than necessary to correct the violation of the
Federal right, and is the least intrusive means necessary to correct the violation of the Federal
right.” 18 U.S.C. § 3626(a) and (c). In making that assessment, “[t]he court shall give
substantial weight to any adverse impact on public safety or the operation of a criminal justice
system caused by the relief.” 18 U.S.C. § 3626(a).
Here, the parties vigorously negotiated the Consent Judgment, and agreed upon all of its
terms. Agreements between the parties are “strong evidence,” if not dispositive, that provisions
reflected in those agreements comply with the needs-narrowness-intrusiveness requirement of
the PLRA. Benjamin v. Fraser, 156 F. Supp. 2d 333, 344 (S.D.N.Y. 2001) (citation and internal
quotation marks omitted), aff’d in part, vacated and remanded in part on other grounds, 343
F.3d 35 (2d Cir. 2003). In this case, Commissioner Ponte himself was extensively involved in
hammering out many of the terms, counseled by experienced members of the City’s Law
Department. See Friedberg Dec. ¶¶ 10, 13, 16. The adversarial nature of the lengthy settlement
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negotiations, with the direct involvement of the highest-ranking Department policy-makers,
helped ensure that the relief was designed in such a manner as to meet the PLRA standard.
Moreover, the City has expressly agreed that the proposed relief is narrowly drawn,
extends no further than is necessary to correct the alleged violations of federal rights, is the least
intrusive means necessary to correct these violations, and will not have an adverse impact on
public safety or the operation of the criminal justice system. See Consent Judgment § XXII,
“Stipulation Pursuant to the Prison Litigation Reform Act” ¶ 1.
II. THE COURT SHOULD APPROVE THE PROPOSED CLASS NOTICE.
In addition to the requirement that the Court give the Consent Judgment preliminary
approval, under Rule 23 the Court must “direct notice in a reasonable manner to all class
members who would be bound by the proposal.” Fed. R. Civ. P. 23(e)(1). The standard for the
adequacy of settlement notice in a class action is that of reasonableness. See Wal-Mart, 396 F.3d
at 113-14. As for method of distribution, “[n]otice need not be perfect, but need be only the best
notice practicable under the circumstances, and each and every class member need not receive
actual notice, so long as class counsel acted reasonably in choosing the means likely to inform
potential class members.” In re Merrill Lynch Tyco Research Sec. Litig., 249 F.R.D. at 133. As
for content, notice is adequate if the average class member can understand it. See Wal-Mart, 396
F.3d at 114.
The proposed distribution method and content of the proposed notice meet these
requirements. They are based on the distribution method and content used for the notice of
pendency of class action that the Court approved by its Order of February 28, 2013. In addition,
the City has agreed to the proposed distribution method and the content of the notice.
The proposed method of distribution easily meets the test of reasonableness. As set forth
in Paragraph 4 of the proposed Order (Friedberg Dec. Exhibit C): (i) no later than 10 days after
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the entry of an Order granting preliminary approval of the Consent Judgment, the Department
shall post copies of the notice in English and in Spanish in areas of the law libraries, housing
areas, and receiving rooms of each jail where it is reasonably calculated to be seen by inmates in
the area, and such copies shall remain posted until the day after valid objections to the Consent
Judgment must be postmarked; and (ii) the Department shall deliver on two consecutive
Saturdays (the second and third Saturdays after preliminary approval has been granted), a copy
of the notice in English and in Spanish to every member of the Plaintiff Class who, at the time of
the distribution, is confined in a unit or housing area in which he or she is held in a cell twenty-
three (23) hours per day, including but not limited to all punitive segregation units and all
contagious disease units. This method of providing notice will likely inform Plaintiff Class
members of the settlement and is adequate.
In addition, the content of the notice (a copy of which, in English and Spanish, is found at
Friedberg Dec. Exhibit B) is easily understandable by the average member of the Plaintiff Class.
In plain language, the notice explains: (i) the nature of this class action and the class claims
asserted; (ii) who is in the Plaintiff Class; (iii) the relief the pleadings sought; (iv) a summary of
the most significant terms of the Consent Judgment and how to get a copy of the Consent
Judgment; (iv) the reasons why Plaintiffs’ Class Counsel recommend the Consent Judgment,
including the substantial benefits it will bring to the Plaintiff Class; (v) the nature of the class
claims that will be released by the Plaintiff Class members if the Consent Judgment is approved;
(vi) the Plaintiff Class members’ right to object to all or part of the Consent Judgment and how
to object; (vii) the Fairness Hearing, including information about its purpose and when it will
occur; and (viii) how to contact Plaintiffs’ Class Counsel with any questions or to get a copy of
the Consent Judgment. The proposed Order includes a proposed date for the postmark deadline
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for any objections (September 4, 2014), and a proposed deadline for the parties’ counsel to file
responses to any timely objections (October 2, 2014).6
Plaintiffs’ Class Counsel respectfully request that the Court approve the content of the
proposed class notice and order it to be distributed in the manner set out in the proposed Order.
III. THE COURT SHOULD EXPAND THE DEFINITION OF THE CERTIFIED
CLASS AS AGREED TO IN THE CONSENT JUDGMENT.
For purposes of the Consent Judgment, Plaintiffs’ Class Counsel and counsel for the City
have agreed to expand the Plaintiff Class to include all present and future inmates confined in the
Eric M. Taylor Center. See Consent Judgment, § II “Jurisdiction, Venue, and Revised Class
Definition” ¶ 2. As a result, the class would be defined as “all present and future inmates
confined in jails operated by the Department, except for the Elmhurst and Bellevue Prison
Wards.” See id. The previously certified class had excluded inmates housed in the Eric M.
Taylor Center because they are subject to relief contained in another outstanding court order
resolving a prior class action against the Department, Fisher v. Koehler et al., No. 83 Civ. 2128
(LAP) (S.D.N.Y.). Counsel in Fisher have agreed to terminate the provisions of that order to the
extent they overlap with the subject matter of this Consent Judgment, subject to the approval of
the Court in Fisher (which will be sought promptly) and provided that the Court in this action
certifies the proposed revised class and approves the Consent Judgment. Plaintiffs’ Class
Counsel and counsel for the City respectfully request that the Court certify the proposed revised
class.
6 Under the Class Action Fairness Act, 28 U.S.C. § 1715(b), the Consent Judgment and other materials must be
served on the appropriate New York State and Federal officials within ten days of the filing of the proposed
settlement and, under 28 U.S.C. § 1715(d), final approval of the Consent Judgment cannot be granted until 90 days
after such notice is given. Such notice will be served promptly if the Court grants preliminary approval.
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CONCLUSION
For the reasons set forth above, the parties respectfully request that the Court: (i) grant
preliminary approval of the Consent Judgment annexed as Exhibit A to the Friedberg
Declaration; (ii) direct that notice of the Consent Judgment be given in the form annexed as
Exhibit B to the Friedberg Declaration and in the manner provided in the proposed Order
annexed as Exhibit C to the Friedberg Declaration; and (iii) revise the definition of the certified
class as set forth in the Consent Judgment and the proposed Order.
Dated: New York, New York
July 1, 2015
Respectfully submitted,
FOR THE PLAINTIFF CLASS:
ROPES & GRAY LLP
By: /s/ William I. Sussman
WILLIAM I. SUSSMAN
CHRISTOPHER P. CONNIFF
ANNA E. FRIEDBERG
CHRISTINA G. BUCCI
1211 Avenue of the Americas
New York, New York, 10036
Telephone: (212) 569-9000
Email: William.Sussman@ropesgray.com
Christopher.Conniff@ropesgray.com
Anna.Friedberg@ropesgray.com
Christina.Bucci@ropesgray.com
All other signatories listed, and on whose behalf
the filing is submitted, consent to its filing.
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THE LEGAL AID SOCIETY
By: /s/ Mary Lynne Werlwas
JONATHAN S. CHASAN
MARY LYNNE WERLWAS
199 Water Street, 6th Floor
New York, New York, 10038
Telephone: (212) 577-3530
Email: jchasan@legal-aid.org
mlwerlwas@legal-aid.org
EMERY CELLI BRINCKERHOFF & ABADY LLP
By: /s/ Jonathan S. Abady
JONATHAN S. ABADY
600 Fifth Avenue, 10th Floor
New York, New York, 10020
Telephone: (212) 763-5000
Email: jabady@ecbalaw.com
FOR THE UNITED STATES:
PREET BHARARA
United States Attorney for the
Southern District of New York
By: /s/ Jeffrey K. Powell
JEFFREY K. POWELL
EMILY E. DAUGHTRY
LARA K. ESHKENAZI
Assistant United States Attorneys
86 Chambers Street, 3rd Floor
New York, NY 10007
Telephone: (212) 637-2706/2777/2758
Email: Jeffrey.Powell@usdoj.gov
Emily.Daughtry@usdoj.gov
Lara.Eshkenazi@usdoj.gov
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