meant for him that all parties who are set to argue today are in the room so i will turn to the first case jane doe versus the city of new york and  class was pleaded and in the argument before the district court before the district court will we amended the class definition to the one i mentioned ok so it's now it's now established that that's the class the guest your hon class at the time the complaint was filed and as a result under settled standing rules by the supreme court she continues to have standing to assert that claim and defend the denial of class certification the city points to a single file in the opening she had personal plans but they slowly saw it damages jane doe one never disavowed her class indeed the footnote from which everything the city asserts rests is her petition to appeal from the class certification denial conduct that unambiguously demonstrates that she wasn't disavowing her class claim she was continuing to enforce it and attempt to get the class certification denial reversed there is no fair way to say that she ever disavowed her class player class claim count one was taken away from her in effect because with the denial of certification and the fact that at that point jane doe one was no longer detained  terms of injunctions that are being sought that is to say the individual claim that he she no longer have that she did not assert and no longer has having been released from riker's is a claim for an injunction that certain things be done for her personal benefit while the class claim is a claim for an injunction for things that should be done for the benefit of all women prisoners herself included is a member of the class is you know i know it's not about the scope of the relief it's beings i i must say i am at a loss to understand what is the difference between the individual claim that moment we would no longer have standing on their individual b pursue those points we did also understand that because jane doe one remained in rikers at the time that we filed the complaint that she would have standing as a class representative to represent the class so as a pleading matter from the beginning the class claimed only sought injunctive relief and personal claims only sought them so as a pleading matter they would be there was not not a mets in any event i'm just puzzled as to i understand that if she had not sought class benefits and had not filed a q tip class action she would at some point lose her standing to a certain individual claim a claim on her own behalf for injunctive relief i'm just not understanding what the differences in terms of the relief that's being sought it's the same relief either way right yes the same  if we're entitled to it it's it's situational reform and it would affect everybody in the same way who is in rikers island that's absolutely correct we were two for studious we we saw an error and wanted to clarify that error was also manifested in our opening briefs before the district court it was just an area counsel and the time remaining which is short could you discuss the other two reasons that the charge relied on in turning down a class there's something else is there a case that you can cite where a class representative was found not to be typical because the clients representative injunction class had a claim for substantial damages when i don't think that's enough by itself and that's why i think the second part is critical it's touched on by judge hellerstein but but i think we should elaborate at greater length on the specifics here he touches on it that that special appendix nine saying the evidence will be different touches on it again it's special the next forty one saying proving mono at this specific point in time is going to be very different from proving it for the over dynamic period of time for a large population and those are both the seeds of what i'm what i'm trying to explain here so what we have is a two and a half year gap and we the the city applied for a grant in two thousand and twelve to achieve to move towards compliance we have a new commissioner in twenty fourteen we have a retention of a consultant to advise on in late two thousand and fourteen all of this is before the complaint is ever filed all of this happens between the time period which will be pertinent to change those damages claims and the time period that would be pertinent the injunctive claim here and i just i think the finest point to put on it is farmer v brennan which is a case that the plaintiffs cite a case about i e institutional junk the belief says the core of it is contemporary violations of a nature likely to continue into the future that's got to be the focus of the of the proof on the claim for injunctive relief and that is starkly different a point the plaintiffs have never acknowledge let alone addressed starkly different from the proof that will be relevant to the damages claims of jane doe one and and to one one additional point on that even notice even the point of notice the d o j report the d o j report the plaintiffs say repeatedly in their complaint as  evidence of the widespread suppose it and l n widespread nature of sexual abuse at this facility that report is issued in two thousand and thirteen that that report comes after the times your not sure i understand why this is about the class rather than just about the appropriateness of injunctive relief supposed jane doe was not seeking class certification and were still incarcerated this was a prison with long term prisoners rather than detention facility and she brought a claim for damages and an injunction wouldn't the issues be exactly the same then that is you'd be saying well maybe we've got one set of arguments as to why she's not entitled to damages based on the way things were then we've got another argument that she shouldn't get an injunction because even if she did it wasn't titled you have a damages claim we've cleaned up our act things are different now there's no reason to give an injunction would say i agree that the arguments wouldn't be coterminous on those two forms of relief but they wouldn't diverges powerful as sharply as they do here and and it was why it because you're still saying the same thing it would be the same issue really the very foundation of the mono proof is going to have to be twenty twelve an earlier on the day i'm just playing that's the that's the relevant period i would couldn't cite an example for the for the broad proposition you said earlier a plain about proposition the judge home seen with judge hellerstein i don't i don't know that that's clear and i think if you read the transcript in full i did i understood fair enough and perhaps we'll never see eye to eye on this point my understanding of his analysis is very much grounded in the particulars of the case for him and its appropriateness and man if you believe he is a class action rather than making broad pronouncements on these on these points but the flip side is important to look at there is no example the plaintiffs have cited of a case like this eagle that's the best case that's the case they brought out before judge hellerstein that's the case they come back to in their briefing here in eagle you had multiple class representatives alleging excessive force only a month or two months for the briefing on last certification you had named represented still in the facility at the time of the placer vacation ruling and judge chin  the it isn't then about the damages it's about the fact that her experiences out dated it wouldn't matter whether she had a damage claim at all in the sense that if she was trying to say this is the conditions or these are the things i'm complaining about and those things no longer exist then you would have basically the same argument in part but i do think the damages claim is relevant and it goes to the point the point toler see made about how is this going to proceed going forward that a plaintiff who is seeking significant damage is well positioned to litigate forcefully in vigorously that claim and but but not necessarily and this is the heart of the ruling well positioned to litigate this class could claim that's going to be future president or least contemporary as as farmer says and looking forward and and the flip the last piece of it is is this question which which  she was imminently to be sentenced she left eight days after the complaint was filed we're talking about at best at best a peppercorn of standing on the injunctive claim and when you lay that in the indian over all that it isn't that if she were he she would search certainly you know you saying it's not typical because there's this future aspect then you've cleaned up things since she was in the in process before that complaint was ever filed so what we have is a tree a grand applied for and received by the city we have a the retention of a consultant those key thing to on the specific question of for your compliance both tween the time of the allegation of relevant damage in the phone and the plane immediately after the complaint we have the report a report issued by the consultant we have an announcement in the facility of of unannounced rounding policy department wide beginning in of twenty fifteen we have the new year's consent decree spelling out a schedule for installation of cameras unannounced rounding in cameras both points that the complaint returns to multiple times of what it thinks that should be done in this facility so what we have really and two starkly different cases fundamentally and judge hellerstein reasonably rule that this sole representative was not the right one to represent this class and there is a lot of flexibility in the class action devi i think your original request was that we should direct the class be certified which it seems to me if it's the city's argument is correct we shouldn't so don't we have to consider his argument whether it's what judge or not i'm not saying to consider not to consider there are going ok some let's let's you rejected well let them let's talk about that why it should be rejected rather than whether judge howard dean bought it or didn't buy it or relied on it or didn't go on and rejected on multiple number one the facts as you heard them are largely not in the record and were not presented to judge hellerstein particularly facts that they're now asserting were true wired for the following of the complaint but they presented to this court was a consent to agree which judge hellerstein properly rejected is not relevant the second cerned excessive force not sexual abuse a set of rules that had just been adopted and a set of rules that to do stay have not been adopted they have been propose all of those go to the merits because either those rules have satisfied the problem in which case it's a class wide conclusion nothing more is needed or they haven't satisfied the problem in which case there needs to be a remedy in either event it's still appropriate for class certification just like in a securities contest last causation and materiality are not relevant to class certification because they to provide a class wide answer either the institution requires reform or it does not all class members are treated the same second this notion that this case is going to be some kind of archeological expedition that we're going to look in the past and ignore the present is just doe one has stand again we believe she does what's being tried to the current conditions in rikers island in the rosen singer center she is representing the class who are currently can vine we're go try a case based upon the discovery that took place which ends in two weeks that's the discovery cut off we're not going to try a case as the facts exist a year from now or six months from now if these proposed rules are adopted if we prevail judge  hellerstein which who will have jurisdiction to issue a decree will presumably certainly take into account what the institution is then doing as to discovery let me interrupt for a minute what has been the scope of discovery as i was just going forward on the damages claiming that the injunctive relief had been removed and so can you describe what's been happening we have taken the discovery that we would take if we are going to try the class but we will not be taking any additional discovery in the event that the court certifies the past which is what we hope the court does either way and that's also part of the issue we're going to have the same trial we're going to be putting on evidence about how the institution was run how it continues to be run how to continue to be evidence of rape and sexual abuse by correctional officers of women confined to this institution none of these rules for example change the fact the alarming fact that men guard the women on invitation and what with this  an expert there is bad policy it doesn't require a lot of logic to understand that further we think state law read mandates that women guard women unless there is and less if it's a male that there's a woman supervisor it just obviously diminishes the possibility of what happened here in addition judge lynch it's not enough for the city to come forward even if they were part of the record improperly before the dischord to list  a series of we're adding cameras we're doing this we're doing that that's not what laidlaw says is necessary in order for them to show movement they have to show that there is no it's a it that the quotation i think is something that they have to show and it's absolutely clear that the alleged rockall behavior could not reasonably be expected to recur would you agree with this much at least as far as the trial in order to find a mono liability on the part of the city for the individual damage claim the plaintiff would have to persuade the fact finder that at the time she was great the conditions demonstrated a policy and practice of the city that contributed to that outcome while in order to get drunk to relieve the point of would have to establish that at the present time and the there there are conditions that need remedy and that the fact finder could conceivably find differently in either direction that's correct my only bubbles i'm not sure if it's why that matters you know but i understand why you are asking the question but i'm not sure if it's the city's burden to show that the conditions have changed or it's our burden to show that the conditions as of the time being tried are them well that might come up if there was  a if the evidence was in ecuador is but in most cases it's not you know but but the burden of proof is a separate issue i'm saying that the the ultimate fact finding we got this was the burden of proof on it would be of those two different a jury might come out differently because of differences and it is conceivable but it's not conceivable that we'll have a trial that assumes some a vent in the future of what new policy might be adopted and we're supposed to take discovery and try that we're going to try something concrete and what we're going to try is the conditions in the jail and there continue to be reports even as we speak of women being raped in the rose i'm seeing your center and some of the amicus briefs that were submitted to the court document that this is a systemic ongoing problem in the city council to make this says that it is growing not improving we think that this is going to central civil rights class action seeking to seeking institutional reform if this plaintiffs who suffered allegedly suffered significant injury is not entitled to be a class representative who could possibly represent thank you both lively argument for reserve decision