Case 1:15-cv-06733-CLP Document 1 Filed 11/23/15 Page 1 of 16 PageID #: 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------------------------X ROY PARKER, on behalf of himself and all others similarly situated,
Plaintiff,

Case No. 15-6733
COMPLAINT JURY TRIAL DEMANDED

-v-

CITY OF NEW YORK,

Defendant. -------------------------------------------------------X

1. This action seeks remedies for the City of New York’s (“City”) longstanding unconstitutional policy of placing substantial numbers of pretrial detainees in solitary confinement without any due process and for no legitimate purpose. For many years, the City placed New York City Department of Correction (“NYCDOC”) detainees in solitary confinement for no reason other than the fact that at some time in the past, a detainee was found to have violated a disciplinary rule but was released from NYCDOC custody before the person had served the entirety of the disciplinary sentence. If the detainee were returned to NYCDOC custody, the City would by explicit policy then require that the detainee serve the remainder of his “old” solitary confinement time (hereafter “Old Time Policy”).
2. The City had no constitutional or legal authority for imposing the Old Time Policy. The City provided no access to a hearing or other process at which the City could establish that placement in solitary confinement was necessary to ensure the safe and secure operations of the NYCDOC. The only possible ground for the City’s insistence that a detainee serve Old Time was that the City sought to impose punishment on the detainee. But the City has no constitutional authority to impose punishment, particularly on pretrial detainees held in

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NYCDOC facilities. Pretrial detainees may not be punished until the government has secured a formal adjudication of guilt in accordance with due process of law. In addition, pretrial detainees may not be deprived of their liberty without adequate process.
3. Roy Parker, held by NYCDOC on Rikers Island as a pretrial detainee, was forced to endure more than 100 days of solitary confinement based on the City’s unconstitutional Old Time Policy. Mr. Parker brings this action on his own behalf and on behalf of all other similarly situated detainees, all of whom were subjected to the City’s blanket and unlawful segregation policy. Mr. Parker seeks damages and all other appropriate relief for the City’s violation of his rights under the Fourteenth Amendment’s procedural and substantive due process clauses. He also seeks damages and appropriate relief for the class he seeks to represent.
4. The use of solitary confinement in this arbitrary and capricious manner needlessly caused severe pain and suffering to Mr. Parker and other detainees. Solitary confinement is one of the most severe forms of punishment that can be inflicted on human beings. Healthy persons will suffer expected harms when placed in solitary confinement. In solitary confinement, detainees languish alone in extreme isolation for at least 23 hours per day, 7 days per week. They are housed in cramped cells that deny them meaningful physical movement and the normal human interactions necessary for a person’s well-being.
5. In NYCDOC facilities, solitary confinement is known as Punitive Segregation. For more than a decade, the City had a written policy that authorized NYCDOC officials to place and keep pretrial detainees in Punitive Segregation to serve the balance of Punitive Segregation days incurred during a prior detention (“Old Time Policy”). Until September 16, 2015, this policy, Directive 6500R-B, stated in relevant part:
If an inmate is released on bail or on his/her own recognizance, is discharged, or is transferred to the custody of another jurisdiction or
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agency before he/she finishes serving his/her Punitive Segregation sentence . . . the transfer will interrupt the sentence being served and the interruption will continue until the inmate returns to the jurisdiction of the Department, at which time he/she may be required to serve the balance owed . . . . See Inmate Disciplinary Due Process, Directive 6500R-B § III.D.5. 6. The Old Time Policy contrasted sharply with the disciplinary proceedings that the City uses to determine whether and for how long to place in Punitive Segregation detainees charged with an infraction. NYCDOC provides such detainees with a hearing, advance written notice of such hearing, the opportunity to defend themselves, including the opportunity to establish facts concerning what, if any, penalty is appropriate during that detention, and a written statement by a fact-finder. 7. In contrast, pretrial detainees who are released and then return to City custody with remaining Old Time received none of these protections before they are placed in Punitive Segregation. The Old Time Policy authorized City employees to place and keep pretrial detainees in Punitive Segregation without any process, much less adequate process, on the ground that such Old Time is a “sentence” that was “interrupt[ed],” and for which process is not due. This policy, as implemented by the City, deprived pretrial detainees of liberty without due process, in violation of their procedural due process rights. 8. The City’s Old Time Policy also violated substantive due process by punishing pretrial detainees before the government secured a formal adjudication of guilt in accordance with due process of law. The policy, as implemented by the City, punished pretrial detainees for conduct from a previous detention, even if far removed in time and circumstance. The City did not consider whether placing such pretrial detainees in Punitive Segregation was reasonably related to maintaining security and order in the detention facility. Instead, the City relied solely
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on the mistaken belief that Punitive Segregation is a “sentence” to be “continue[d)” under Directive 6500R-B. Pursuant to the City’s policy and practice, NYCDOC placed detainees in Punitive Segregation to serve Old Time regardless of whether such a detainee posed a threat to safety and security in the facility; whether such a detainee had ever been confined in general population after incurring Old Time; the disposition of any criminal charges for conduct for which such a detainee received Old Time; the disciplinary record of such a detainee relative to that of detainees in the general population; the security risk such a detainee posed relative to detainees in the general population; the passage of time since such a detainee received Punitive Segregation days; the passage of time since such a detainee was discharged from City custody; and the availability of adequate alternatives to Punitive Segregation. The City’s Old Time policy and practice was arbitrary, unrelated to the effective management of safety and security in the facility, and not reasonably related to any legitimate interest in maintaining order in City facilities. As such, it violated the constitutional rights of Plaintiff and numerous additional pretrial detainees.
JURISDICTION AND VENUE 9. This action arises under 42 U.S.C. §§ 1983 and 1988 and the Fourteenth Amendment to the United States Constitution. 10. The jurisdiction of this Court is predicated on 28 U.S.C. §§ 1331, 1343, 2201, and 2202. 11. Venue is appropriate in this Court pursuant to 28 U.S.C. § 1391(b) because the acts complained of occurred in the Eastern District of New York.
JURY DEMAND 12. Plaintiff demands trial by jury in this action.
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PARTIES 13. Plaintiff Roy Parker is a pretrial detainee who was confined for more than 100 days in punitive segregation at NYCDOC detention facilities as a consequence of the City’s Old Time Policy. 14. Defendant the City of New York is a municipal corporation which, through the NYCDOC, operates a number of detention facilities for pretrial detainees. The City is responsible for promulgating and implementing policies with respect to the use of solitary confinement by the NYCDOC, and also is responsible for the appointment, training, supervision, and conduct of all NYCDOC personnel. The City has for several years promulgated policy authorizing NYCDOC staff to place detainees in solitary confinement to serve “old” bing time.
STATEMENT OF FACTS 15. The City operates ten jails, four houses of detention, court pens in each of the five boroughs, and two hospital prison wards. 16. The average daily population of NYCDOC facilities is 11,400 individuals, and between 2012 and 2015 NYCDOC held approximately 80,000 individuals in detention each year. 17. The vast majority of detainees in NYCDOC facilities are pretrial detainees, awaiting trial because they cannot pay bail. 18. Punitive Segregation is the City’s version of solitary confinement and extreme isolation and the conditions described below are applicable to all of the relevant time period that the Old Time Policy was in effect. 19. Solitary confinement is one of the most severe forms of punishment that can be inflicted on human beings.
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20. In Punitive Segregation, pretrial detainees are confined to a single-occupancy cell for at least 23 hours per day, 7 days per week, socially isolating them from others.
21. Punitive Segregation cells are small and cramped, about 8’ by 10’, denying individuals held within them a meaningful opportunity for physical movement.
22. In Punitive Segregation, pretrial detainees receive their food through a slot in their cell’s steel door, and detainees must eat their meals alone.
23. Normal human conversations are not possible in Punitive Segregation. 24. Detainees in Punitive Segregation cannot communicate with other inmates unless they scream through their cell’s steel doors. 25. Detainees held in Punitive Segregation, have severely limited ability to interact with family and friends outside of Rikers Island. For example, while pretrial detainees in general population are allowed one personal phone call per day, detainees in Punitive Segregation are allowed only one personal phone call per week, for a maximum of six minutes. 26. Pretrial detainees in Punitive Segregation are prohibited from work assignments and rarely, if ever, have access to programming or vocational activities. 27. Pretrial detainees are supposed to receive one hour of “recreation” per day, in which they are transferred in shackles to small, barren cages empty of any equipment that would facilitate exercise. 28. As a direct result of NYCDOC policy and practice, about 90% of the time, detainees in punitive segregation are denied even this limited time outside of their solitary confinement cell.
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29. Pretrial detainees in Punitive Segregation also have limited access to appropriate and timely health care. Mental health care often is superficial and conducted with the inmate locked in the cell and told to yell through the door to the clinician outside.
30. It is expected that healthy persons will suffer harm when placed in solitary confinement.
31. Solitary confinement such as NYCDOC imposes through Punitive Segregation causes severe trauma, even after short periods of confinement.
32. Harms caused by solitary confinement include headaches, dizziness, heart palpitations, increased pulse, loss of appetite, digestive failures, hypersensitivity to noise and light, an inability to maintain concentration, depression, anxiety, and suicidal ideation
33. Solitary confinement continues to cause harms even after a detainee is released, increasing the difficulty for individuals who have been detained in jail to function productively in their communities.
34. During the relevant time period, NYCDOC Directive 6500R-B established a procedure for inmate disciplinary infractions, including advance written notice of the charges at least 24 hours before a hearing; the opportunity to appear at a hearing, to call witnesses, and to present rebuttal evidence; and a written statement by the fact-finder.
35. The purpose of the hearings were to allow the adjudicator to “weigh the evidence presented at the hearing and reach a decision” as to the inmate’s guilt or innocence and “the appropriate disposition or penalty, if any, to be imposed.” Directive 6500R-B, § III.C.33.
36. Until September 16, 2015, for pretrial detainees who left the City’s custody with a balance of Punitive Segregation time, Directive 6500R-B, § III.D.5. provided that:
If an inmate is released on bail or on his/her own recognizance, is discharged, or is transferred to the custody of another jurisdiction or
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agency before he/she finishes serving his/her Punitive Segregation sentence, and/or before he/she makes restitution in accordance with a penalty imposed as a result of a disciplinary hearing, the transfer will interrupt the sentence being served and the interruption will continue until the inmate returns to the jurisdiction of the Department, at which time he/she may be required to serve the balance owed and/or finish making restitution. 37. Directive 6500R-B thus authorized City employees to enforce the Old Time Policy, without regard to whether placing the detainee in Punitive Segregation was necessary to vindicate any legitimate penological or security interest. 38. Pretrial detainees may not be subjected to conditions which are intended to serve or have the effect of punishment. 39. Pretrial detainees may not be subjected to conditions of confinement that have no reasonable connection to a legitimate governmental objective. 40. Before applying the Old Time Policy to pretrial detainees, however, the City never considered whether placement of a detainee in Punitive Segregation was connected in any way to maintaining security and order in the detention facility. 41. Instead, pursuant to the Old Time Policy, the City reflexively placed detainees in punitive Segregation without evaluating the reasonableness of the restraints, the need for confinement in Punitive Segregation, or the availability of adequate alternatives. 42. The City’s policy and practice of placing detainees in Punitive Segregation to serve Old Time was arbitrary, unrelated to the effective management of safety and security in the facility, and not reasonably related to any legitimate interest in maintaining order in DOC facilities.
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43. The City applied its Old Time Policy for the purpose of punishment and in direct contravention of detainees’ right to be free from punishment before the government has secured a formal adjudication of guilt in accordance with due process of law.
44. The Old Time Policy was explicitly treated as a punishment in the following ways, without limitation: (a) assignment to Punitive Segregation was based on the City finding a detainee “guilty” of an infraction; (b) the conditions in Punitive Segregation, described above, imposed an affirmative restraint on liberty; (c) Punitive Segregation has been historically regarded as punishment; (d) many infractions that result in application of the Old Time Policy are duplicative of criminal laws; (e) the City linked Punitive Segregation to the promotion of retribution and deterrence, by calibrating the number of days in Punitive Segregation for each infraction as if the pretrial detainee had been convicted of a crime, and by treating Old Time like a sentence imposed after a jury trial on a criminal charge.
45. The Old Time Policy lacked any rational purpose other than punishment, and even if there were such a purpose, such confinement in Punitive Segregation was excessive in relation to such alternative purpose and not reasonably related to a legitimate governmental objective.
46. Pursuant to the City’s Old Time Policy, when pretrial detainees were placed in Punitive Segregation to serve Old Time, the City refused to provide the following: the opportunity to appear at a hearing concerning the appropriate disposition or penalty under the circumstances; advanced written notice of such a hearing; the opportunity to call witnesses and present rebuttal evidence; and a written statement by the fact­finder as to the evidence relied on and the reason for the action in violation of the Fourteenth Amendment’s procedural due process protections.
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47. Under Directive 6500R-B, the City considered the placement of a pretrial detainee in Punitive Segregation to serve Old Time to be an “interrupt[ion]” of a “sentence,” for which they did not need to provide pretrial detainees with Adequate Process.
48. Pretrial detainees have a liberty interest in not being placed in Punitive Segregation, arising both from the Fourteenth Amendment itself, by reason of guarantees implicit in the word “liberty,” and from an expectation or interest created by state and city laws or policies.
49. The Old Time Policy deprived pretrial detainees of their liberty interest in not being placed in Punitive Segregation, without adequate process.
50. Roy Parker was detained at Rikers Island in as a pretrial detainee. During this detention, he received 120 days in Punitive Segregation and served approximately 10 days in Punitive Segregation. Mr. Parker was released from City custody in or about the same month he arrived. Mr. Parker was later arrested on new charges and detained in City custody. Mr. Parker was placed in Punitive Segregation at Rikers Island to serve his Old Time. He served more than 100 days of Old Time. Upon information and belief, Mr. Parker served this Old Time beginning in February 2014.
51. Mr. Parker did not receive advance written notice, a hearing, the opportunity to defend himself, the opportunity to establish facts concerning what an appropriate disposition or penalty should be, or a written statement by a fact-finder before he was placed in Punitive Segregation to serve Old Time.
52. The placement of Mr. Parker in Punitive Segregation to serve Old Time without adequate process was authorized by the City’s Old Time Policy.
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53. In Punitive Segregation, Mr. Parker was confined to his cell twenty-three hours per day except for an occasional hour of recreation. He was isolated and allowed almost no social interaction with others. As a result of his extreme isolation, Parker suffered severe mental and emotional harm.
54. During his confinement in Punitive Segregation to serve Old Time, Mr. Parker was subjected to onerous and punitive conditions of confinement that are not imposed upon detainees held in general population. For example, he was not provided with adequate medical and mental health care while in Punitive Segregation.
55. Pursuant to the City’s Old Time Policy, the NYCDOC did not evaluate the reasonableness of Mr. Parker’s confinement in Punitive Segregation or the availability of adequate alternatives in light of the Mr. Parker’s circumstances and the circumstances of the facility.
56. Because of his confinement in Punitive Segregation on Old Time, Mr. Parker has suffered mental, emotional, and psychological harm, in addition to loss of liberty.
57. For years, the City has known that solitary confinement, implemented in City facilities as Punitive Segregation, causes serious and permanent harm to inmates and constitutes punishment.
58. New York City’s Department of Health and Mental Hygiene concluded in 2014 that between 2010 and 2012 acts of self-harm were strongly associated with assignment of inmates to solitary confinement.
59. Between 2010 and 2012, NYCDOC Detainees placed in solitary confinement were approximately 6.9 times as likely to commit acts of self-harm, after controlling for other relevant variables, and 6.3 times as likely to commit potentially fatal self-harm.
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CLASS ALLEGATIONS 60. With respect to his claims for damages, Plaintiff Roy Parker bring this action on his own behalf and, pursuant to Federal Rules of Civil Procedure 23(a), 23(b)(l), and 23(b)(3), on behalf of:
all persons who have been pretrial detainees in the City’s custody held in Punitive Segregation to serve Old Time, in violation of the Fourteenth Amendment’s substantive and procedural due process protections. 61. The class is so numerous that joinder of all members is impracticable. Over the past three years, hundreds of detainees in NYCDOC custody have served Old Time. Pursuant to the City’s Old Time Policy, none of these detainees received adequate process before confinement in Punitive Segregation. All class members have been detained in the City’s custody, and most are economically disadvantaged, making individual lawsuits impracticable. Judicial economy weighs in favor of avoiding multiple actions challenging the same policy and practice, particularly where individual suits could lead to potentially inconsistent results. 62. The class members are identifiable using records maintained by the City in the ordinary course of business. 63. During the relevant time period, the City promulgated and implemented Directive 6500R-B, which is a specific policy applicable to all class members herein. The City was aware of and allowed to continue a policy and practice in which pretrial detainees were placed and held in Punitive Segregation, without due process, to serve Old Time. The City has abridged class members’ Fourteenth Amendment right to be free from punitive measures that may not constitutionally be imposed before a determination of guilt. The City also has abridged those members’ Fourteenth Amendment right to procedural protections before being deprived of liberty.
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64. Common questions of law and fact exist for all class members herein and predominate over any questions solely affecting individual members thereof.
65. Among the questions of law and fact common to members of the class are: a. whether the City’s policy and practice of holding pretrial detainees in Punitive Segregation to serve Old Time violated the Fourteenth Amendment; b. whether confinement of pretrial detainees in Punitive Segregation to serve Old Time was specifically for the purpose of punishment and/or had the effect of imposing punishment; c. whether confinement of pretrial detainees in Punitive Segregation to serve Old Time was reasonably related to a legitimate governmental objective; d. whether pretrial detainees had a liberty interest in avoiding confinement in Punitive Segregation to serve Old Time; and e. what process pretrial detainees were due before confinement in Punitive Segregation.
66. The City is expected to raise common defenses to the claims of all class members herein, including denying that their policies and practices violate the Constitution.
67. Plaintiff’s claims are typical of those of all class members herein, as his claims arise from the same policies and practices, and Plaintiff’s claims are based on the same legal theories as those of all class members herein. The cause of Plaintiff’s injuries is the same as the cause of the injuries suffered by all class members herein, namely the City’s policies and practices.
68. Maintaining this action as a class action is superior to other available methods because individual damages claims are not likely to be feasible.
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69. Plaintiff is capable of fairly and adequately protecting the interests of all class members herein because Plaintiff does not have any antagonistic interests thereto. Counsel experienced in civil rights litigation, prisoners’ rights litigation, complex litigation, and class actions represent Plaintiff.
FIRST CLAIM FOR RELIEF 42 U.S.C.§ 1983 - Fourteenth Amendment
(Substantive Due Process) 70. Plaintiff repeats and realleges the foregoing paragraphs as if the same were fully set forth at length herein. 71. By its policies and practices described herein, the City authorized the confinement of plaintiff and class members in Punitive Segregation to serve Old Time, violating the Due Process Clause of the Fourteenth Amendment. As a result of these unconstitutional policies and practices, Plaintiff and class members have suffered and continue to suffer physical, psychological, mental, and/or emotional injuries, as well as loss of liberty. 72. The City’s policies and practices described herein were intended to punish and/or had the effect of punishing plaintiff and class members in violation of their Fourteenth Amendment right to be free from punishment as pretrial detainees. 73. By confining plaintiff and class members in Punitive Segregation to serve Old Time under harsh conditions and isolation that were not reasonably related to any legitimate interest in maintaining order in the facility, the City punished plaintiff and the class in violation of their Fourteenth Amendment right to be free from punishment as pretrial detainees.
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SECOND CLAIM FOR RELIEF 42 U.S.C. § 1983 - Fourteenth Amendment
(Procedural Due Process) 74. Plaintiff repeats and realleges the foregoing paragraphs as if the same were fully set forth at length herein. 75. By its policies and practices described herein, the City authorized the confinement of plaintiff and class members in Punitive Segregation to serve Old Time without adequate process, violating the Due Process Clause of the Fourteenth Amendment. As a result of these unconstitutional policies and practices, Plaintiff and class members have suffered and continue to suffer physical, psychological, mental, and/or emotional injuries, as well as loss of liberty. 76. Plaintiff and the class have a liberty interest in avoiding Punitive Segregation. This liberty interest arises from both the Due Process Clause of the Fourteenth Amendment, by reason of guarantees implicit in the word “liberty,” and from an expectation and interest created by state and city laws or policies. 77. By placing plaintiff and the class in Punitive Segregation to serve Old Time without regard for the appropriateness of such confinement and without adequate process, the City violated Plaintiff’s and the class members’ due process rights.
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PRAYER FOR RELIEF
WHEREFORE, Plaintiff requests that the Court grant the following relief:
a. Declare that the suit is maintainable as a class action pursuant to Federal Rules of Civil Procedure 23(a), (b)(1), and (b)(3);
b. Award compensatory damages in an amount to be determined for all physical, psychological, mental, and emotional injuries, as well as loss of liberty, sustained by Plaintiff and the class as a result of the policies and practices alleged herein;
c. Award reasonable attorneys’ fees, together with the costs of this action; and d. Grant such other further relief as the Court may deem appropriate. Dated: November 23, 2015 New York, New York
Respectfully submitted,
/s/ Alexander Reinert_____ Alexander Reinert (AR 1740) 55 Fifth Avenue, Room 1005 New York, NY 10003 (212) 790-0403 areinert@yu.edu
Eric Hecker (EH 0989) Daniel Mullkoff (DM 4602) CUTI HECKER WANG LLP 305 Broadway, Sixth Floor New York, NY 10007 (212) 620-2600 ehecker@chwllp.com dmullkoff@chwllp.com
Attorneys for Plaintiffs
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------X ROY PARKER, RAJAB ASEP, CHRISTOPHER CHANDLER, JAMAL COLEMAN, ALLANA DIXON, CHAUNCEY MIRANDA, and CESAR RIVERA, on behalf of themselves and all others similarly situated,
Plaintiff,

Case No. 15-6733 (JBW) (CLP)
FIRST AMENDED COMPLAINT JURY TRIAL DEMANDED

-v-

CITY OF NEW YORK,

Defendant. -------------------------------------------------------X

1. This action seeks remedies for the City of New York’s (“City”) longstanding unconstitutional policy of placing substantial numbers of pretrial detainees in solitary confinement without any due process and for no legitimate purpose. For many years, the City placed New York City Department of Correction (“NYCDOC”) detainees in solitary confinement for no reason other than the fact that at some time in the past, a detainee was found to have violated a disciplinary rule but was released from NYCDOC custody before the person had served the entirety of the disciplinary sentence. If the detainee were returned to NYCDOC custody, the City would by explicit policy then require that the detainee serve the remainder of his “old” solitary confinement time (hereafter “Old Time Policy”).
2. The City had no constitutional or legal authority for imposing the Old Time Policy. The City provided no access to a hearing or other process at which the City could establish that placement in solitary confinement was necessary to ensure the safe and secure operations of the NYCDOC. The only possible ground for the City’s insistence that a detainee

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serve Old Time was that the City sought to impose punishment on the detainee. But the City has no constitutional authority to impose punishment, particularly on pretrial detainees held in NYCDOC facilities. Pretrial detainees may not be punished until the government has secured a formal adjudication of guilt in accordance with due process of law. In addition, pretrial detainees may not be deprived of their liberty without adequate process.
3. Plaintiffs Roy Parker, Rajab Asep, Christopher Chandler, Jamal Coleman, Allana Dixon, Chauncey Miranda, and Cesar Rivera, held by NYCDOC on Rikers Island as pretrial detainees, were forced to endure isolating conditions in solitary confinement based on the City’s unconstitutional Old Time Policy. Plaintiffs bring this action on their own behalf and on behalf of all other similarly situated detainees, all of whom were subjected to the City’s blanket and unlawful segregation policy. Plaintiffs seek damages and all other appropriate relief for the City’s violation of their rights under the Fourteenth Amendment’s procedural and substantive due process clauses. They also seek damages and appropriate relief for the class they seek to represent.
4. The use of solitary confinement in this arbitrary and capricious manner needlessly caused severe pain and suffering to Plaintiffs and other detainees. Solitary confinement is one of the most severe forms of punishment that can be inflicted on human beings. Healthy persons will suffer expected harms when placed in solitary confinement. In solitary confinement, detainees languish alone in extreme isolation for at least 23 hours per day, 7 days per week. They are housed in cramped cells that deny them meaningful physical movement and the normal human interactions necessary for a person’s well-being.
5. In NYCDOC facilities, solitary confinement is known as Punitive Segregation. For more than a decade, the City had a written policy that authorized NYCDOC officials to place
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and keep pretrial detainees in Punitive Segregation to serve the balance of Punitive Segregation days incurred during a prior detention (“Old Time Policy”). Until September 16, 2015, this policy, Directive 6500R-B, stated in relevant part:
If an inmate is released on bail or on his/her own recognizance, is discharged, or is transferred to the custody of another jurisdiction or agency before he/she finishes serving his/her Punitive Segregation sentence . . . the transfer will interrupt the sentence being served and the interruption will continue until the inmate returns to the jurisdiction of the Department, at which time he/she may be required to serve the balance owed . . . . See Inmate Disciplinary Due Process, Directive 6500R-B § III.D.5. 6. The Old Time Policy contrasted sharply with the disciplinary proceedings that the City uses to determine whether and for how long to place in Punitive Segregation detainees charged with an infraction. NYCDOC provides such detainees with a hearing, advance written notice of such hearing, the opportunity to defend themselves, including the opportunity to establish facts concerning what, if any, penalty is appropriate during that detention, and a written statement by a fact-finder. 7. In contrast, pretrial detainees who are released and then return to City custody with remaining Old Time received none of these protections before they are placed in Punitive Segregation. The Old Time Policy authorized City employees to place and keep pretrial detainees in Punitive Segregation without any process, much less adequate process, on the ground that such Old Time is a “sentence” that was “interrupt[ed],” and for which process is not due. This policy, as implemented by the City, deprived pretrial detainees of liberty without due process, in violation of their procedural due process rights. 8. The City’s Old Time Policy also violated substantive due process by punishing pretrial detainees before the government secured a formal adjudication of guilt in accordance
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with due process of law. The policy, as implemented by the City, punished pretrial detainees for conduct from a previous detention, even if far removed in time and circumstance. The City did not consider whether placing such pretrial detainees in Punitive Segregation was reasonably related to maintaining security and order in the detention facility. Instead, the City relied solely on the mistaken belief that Punitive Segregation is a “sentence” to be “continue[d)” under Directive 6500R-B. Pursuant to the City’s policy and practice, NYCDOC placed detainees in Punitive Segregation to serve Old Time regardless of whether such a detainee posed a threat to safety and security in the facility; whether such a detainee had ever been confined in general population after incurring Old Time; the disposition of any criminal charges for conduct for which such a detainee received Old Time; the disciplinary record of such a detainee relative to that of detainees in the general population; the security risk such a detainee posed relative to detainees in the general population; the passage of time since such a detainee received Punitive Segregation days; the passage of time since such a detainee was discharged from City custody; and the availability of adequate alternatives to Punitive Segregation. The City’s Old Time policy and practice was arbitrary, unrelated to the effective management of safety and security in the facility, and not reasonably related to any legitimate interest in maintaining order in City facilities. As such, it violated the constitutional rights of Plaintiffs and numerous additional pretrial detainees.
JURISDICTION AND VENUE 9. This action arises under 42 U.S.C. §§ 1983 and 1988 and the Fourteenth Amendment to the United States Constitution. 10. The jurisdiction of this Court is predicated on 28 U.S.C. §§ 1331, 1343, 2201, and 2202.
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11. Venue is appropriate in this Court pursuant to 28 U.S.C. § 1391(b) because the acts complained of occurred in the Eastern District of New York.
JURY DEMAND 12. Plaintiffs demand trial by jury in this action.
PARTIES 13. Plaintiff Roy Parker was a pretrial detainee confined for more than 100 days in punitive segregation at NYCDOC detention facilities as a consequence of the City’s Old Time Policy. 14. Plaintiff Rajab Asep was a pretrial detainee confined for 3 days in punitive segregation at NYCDOC detention facilities as a consequence of the City’s Old Time Policy. 15. Plaintiff Jamal Coleman was a pretrial detainee confined for more than 20 days in punitive segregation at NYCDOC detention facilities as a consequence of the City’s Old Time Policy. 16. Plaintiff Allana Dixon was a pretrial detainee confined for more than 20 days in punitive segregation at NYCDOC detention facilities as a consequence of the City’s Old Time Policy. 17. Plaintiff Christopher Chandler was a pretrial detainee confined for more than 100 days in punitive segregation at NYCDOC detention facilities as a consequence of the City’s Old Time Policy. 18. Plaintiff Chauncey Miranda was a pretrial detainee confined for more than 10 days in punitive segregation at NYCDOC detention facilities as a consequence of the City’s Old Time Policy.
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19. Plaintiff Cesar Rivera was a pretrial detainee confined for more than 30 days in punitive segregation at NYCDOC detention facilities as a consequence of the City’s Old Time Policy.
20. Defendant the City of New York is a municipal corporation which, through the NYCDOC, operates a number of detention facilities for pretrial detainees. The City is responsible for promulgating and implementing policies with respect to the use of solitary confinement by the NYCDOC, and also is responsible for the appointment, training, supervision, and conduct of all NYCDOC personnel. The City has for several years promulgated policy authorizing NYCDOC staff to place detainees in solitary confinement to serve “old” bing time.
STATEMENT OF FACTS 21. The City operates ten jails, four houses of detention, court pens in each of the five boroughs, and two hospital prison wards. 22. The average daily population of NYCDOC facilities is 11,400 individuals, and between 2012 and 2015 NYCDOC held approximately 80,000 individuals in detention each year. 23. The vast majority of detainees in NYCDOC facilities are pretrial detainees, awaiting trial because they cannot pay bail. 24. Punitive Segregation is the City’s version of solitary confinement and extreme isolation and the conditions described below are applicable to all of the relevant time period that the Old Time Policy was in effect. 25. Solitary confinement is one of the most severe forms of punishment that can be inflicted on human beings. 26. In Punitive Segregation, pretrial detainees are confined to a single-occupancy cell for at least 23 hours per day, 7 days per week, socially isolating them from others.
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27. Punitive Segregation cells are small and cramped, about 8’ by 10’, denying individuals held within them a meaningful opportunity for physical movement.
28. In Punitive Segregation, pretrial detainees receive their food through a slot in their cell’s steel door, and detainees must eat their meals alone.
29. Normal human conversations are not possible in Punitive Segregation. 30. Detainees in Punitive Segregation cannot communicate with other inmates unless they scream through their cell’s steel doors. 31. Detainees held in Punitive Segregation, have severely limited ability to interact with family and friends outside of Rikers Island. For example, while pretrial detainees in general population are allowed one personal phone call per day, detainees in Punitive Segregation are allowed only one personal phone call per week, for a maximum of six minutes. 32. Pretrial detainees in Punitive Segregation are prohibited from work assignments and rarely, if ever, have access to programming or vocational activities. 33. Pretrial detainees are supposed to receive one hour of “recreation” per day, in which they are transferred in shackles to small, barren cages empty of any equipment that would facilitate exercise. 34. As a direct result of NYCDOC policy and practice, about 90% of the time, detainees in punitive segregation are denied even this limited time outside of their solitary confinement cell. 35. Pretrial detainees in Punitive Segregation also have limited access to appropriate and timely health care. Mental health care often is superficial and conducted with the inmate locked in the cell and told to yell through the door to the clinician outside.
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36. It is expected that healthy persons will suffer harm when placed in solitary confinement.
37. Solitary confinement such as NYCDOC imposes through Punitive Segregation causes severe trauma, even after short periods of confinement.
38. Harms caused by solitary confinement include headaches, dizziness, heart palpitations, increased pulse, loss of appetite, digestive failures, hypersensitivity to noise and light, an inability to maintain concentration, depression, anxiety, and suicidal ideation
39. Solitary confinement continues to cause harms even after a detainee is released, increasing the difficulty for individuals who have been detained in jail to function productively in their communities.
40. During the relevant time period, NYCDOC Directive 6500R-B established a procedure for inmate disciplinary infractions, including advance written notice of the charges at least 24 hours before a hearing; the opportunity to appear at a hearing, to call witnesses, and to present rebuttal evidence; and a written statement by the fact-finder.
41. The purpose of the hearings were to allow the adjudicator to “weigh the evidence presented at the hearing and reach a decision” as to the inmate’s guilt or innocence and “the appropriate disposition or penalty, if any, to be imposed.” Directive 6500R-B, § III.C.33.
42. Until September 16, 2015, for pretrial detainees who left the City’s custody with a balance of Punitive Segregation time, Directive 6500R-B, § III.D.5. provided that:
If an inmate is released on bail or on his/her own recognizance, is discharged, or is transferred to the custody of another jurisdiction or agency before he/she finishes serving his/her Punitive Segregation sentence, and/or before he/she makes restitution in accordance with a penalty imposed as a result of a disciplinary hearing, the transfer will interrupt the sentence being served and the interruption will continue until the inmate returns to the jurisdiction of the Department, at which
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time he/she may be required to serve the balance owed and/or finish making restitution. 43. Directive 6500R-B thus authorized City employees to enforce the Old Time Policy, without regard to whether placing the detainee in Punitive Segregation was necessary to vindicate any legitimate penological or security interest. 44. Pretrial detainees may not be subjected to conditions which are intended to serve or have the effect of punishment. 45. Pretrial detainees may not be subjected to conditions of confinement that have no reasonable connection to a legitimate governmental objective. 46. Before applying the Old Time Policy to pretrial detainees, however, the City never considered whether placement of a detainee in Punitive Segregation was connected in any way to maintaining security and order in the detention facility. 47. Instead, pursuant to the Old Time Policy, the City reflexively placed detainees in punitive Segregation without evaluating the reasonableness of the restraints, the need for confinement in Punitive Segregation, or the availability of adequate alternatives. 48. The City’s policy and practice of placing detainees in Punitive Segregation to serve Old Time was arbitrary, unrelated to the effective management of safety and security in the facility, and not reasonably related to any legitimate interest in maintaining order in DOC facilities. 49. The City applied its Old Time Policy for the purpose of punishment and in direct contravention of detainees’ right to be free from punishment before the government has secured a formal adjudication of guilt in accordance with due process of law. 50. The Old Time Policy was explicitly treated as a punishment in the following ways, without limitation: (a) assignment to Punitive Segregation was based on the City finding a
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detainee “guilty” of an infraction; (b) the conditions in Punitive Segregation, described above, imposed an affirmative restraint on liberty; (c) Punitive Segregation has been historically regarded as punishment; (d) many infractions that result in application of the Old Time Policy are duplicative of criminal laws; (e) the City linked Punitive Segregation to the promotion of retribution and deterrence, by calibrating the number of days in Punitive Segregation for each infraction as if the pretrial detainee had been convicted of a crime, and by treating Old Time like a sentence imposed after a jury trial on a criminal charge.
51. The Old Time Policy lacked any rational purpose other than punishment, and even if there were such a purpose, such confinement in Punitive Segregation was excessive in relation to such alternative purpose and not reasonably related to a legitimate governmental objective.
52. Pursuant to the City’s Old Time Policy, when pretrial detainees were placed in Punitive Segregation to serve Old Time, the City refused to provide the following: the opportunity to appear at a hearing concerning the appropriate disposition or penalty under the circumstances; advanced written notice of such a hearing; the opportunity to call witnesses and present rebuttal evidence; and a written statement by the fact­finder as to the evidence relied on and the reason for the action in violation of the Fourteenth Amendment’s procedural due process protections.
53. Under Directive 6500R-B, the City considered the placement of a pretrial detainee in Punitive Segregation to serve Old Time to be an “interrupt[ion]” of a “sentence,” for which they did not need to provide pretrial detainees with Adequate Process.
54. Pretrial detainees have a liberty interest in not being placed in Punitive Segregation, arising both from the Fourteenth Amendment itself, by reason of guarantees
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implicit in the word “liberty,” and from an expectation or interest created by state and city laws or policies.
55. The Old Time Policy deprived pretrial detainees of their liberty interest in not being placed in Punitive Segregation, without adequate process.
56. Plaintiff Roy Parker was detained at Rikers Island as a pretrial detainee. During this detention, he received 120 days in Punitive Segregation and served approximately 10 days in Punitive Segregation. Mr. Parker was released from City custody in or about the same month he arrived. Mr. Parker was later arrested on new charges and detained in City custody. Mr. Parker was placed in Punitive Segregation at Rikers Island to serve his Old Time. He served more than 100 days of Old Time. Upon information and belief, Mr. Parker served this Old Time beginning in February 2014.
57. Every other Plaintiff was subjected to the City’s Old Time Policy in a similar manner.
58. Beginning in August 2013, while a pretrial detainee, Plaintiff Rajab Asep was confined for 3 days in punitive segregation at Rikers Island as a consequence of the City’s Old Time Policy.
59. Between March and September 2013, while a pretrial detainee, Plaintiff Christopher Chandler was confined for 180 days in punitive segregation at Rikers Island as a consequence of the City’s Old Time Policy.
60. Between January 2013 and August 2015, plaintiff Jamal Coleman served at least 20 days in punitive segregation, while a pretrial detainee at Rikers Island, as a consequence of the City’s Old Time Policy.
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61. Between March 2013 and July 2014, plaintiff Allana Dixon served at least 20 days in punitive segregation, while a pretrial detainee at Rikers Island, as a consequence of the City’s Old Time Policy.
62. Beginning in August 2014, while a pretrial detainee, Plaintiff Chauncey Miranda was confined for more than 10 days in punitive segregation at Rikers Island as a consequence of the City’s Old Time Policy.
63. Beginning in August 2014, while a pretrial detainee, Plaintiff Cesar Rivera was confined for more than 30 days in punitive segregation at Rikers Island as a consequence of the City’s Old Time Policy.
64. Plaintiffs did not receive advance written notice, a hearing, the opportunity to defend themselves, the opportunity to establish facts concerning what an appropriate disposition or penalty should be, or a written statement by a fact-finder before they were placed in Punitive Segregation to serve Old Time.
65. The placement of Plaintiffs in Punitive Segregation to serve Old Time without adequate process was authorized by the City’s Old Time Policy.
66. In Punitive Segregation, each Plaintiff was confined to his cell twenty-three hours per day except for an occasional hour of recreation. They were isolated and allowed almost no social interaction with others. As a result of their extreme isolation, Plaintiffs suffered severe mental and emotional harm.
67. During their confinement in Punitive Segregation to serve Old Time, Plaintiffs were subjected to onerous and punitive conditions of confinement that are not imposed upon detainees held in general population. For example, Mr. Parker and many other members of the
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class were not provided with adequate medical and mental health care while in Punitive Segregation.
68. Pursuant to the City’s Old Time Policy, the NYCDOC did not evaluate the reasonableness of Plaintiffs’ confinement in Punitive Segregation or the availability of adequate alternatives in light of the Plaintiffs’ circumstances and the circumstances of the facility.
69. Because of their confinement in Punitive Segregation on Old Time, Plaintiffs have suffered mental, emotional, and psychological harm, in addition to loss of liberty.
70. For years, the City has known that solitary confinement, implemented in City facilities as Punitive Segregation, causes serious and permanent harm to inmates and constitutes punishment.
71. New York City’s Department of Health and Mental Hygiene concluded in 2014 that between 2010 and 2012 acts of self-harm were strongly associated with assignment of inmates to solitary confinement.
72. Between 2010 and 2012, NYCDOC Detainees placed in solitary confinement were approximately 6.9 times as likely to commit acts of self-harm, after controlling for other relevant variables, and 6.3 times as likely to commit potentially fatal self-harm.
CLASS ALLEGATIONS 73. With respect to their claims for damages, Plaintiffs bring this action on their own behalf and, pursuant to Federal Rules of Civil Procedure 23(a), 23(b)(l), and 23(b)(3), on behalf of:
all persons who have been pretrial detainees in the City’s custody held in Punitive Segregation to serve Old Time, in violation of the Fourteenth Amendment’s substantive and procedural due process protections.
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74. The class is so numerous that joinder of all members is impracticable. Over the past three years, hundreds of detainees in NYCDOC custody have served Old Time. Pursuant to the City’s Old Time Policy, none of these detainees received adequate process before confinement in Punitive Segregation. All class members have been detained in the City’s custody, and most are economically disadvantaged, making individual lawsuits impracticable. Judicial economy weighs in favor of avoiding multiple actions challenging the same policy and practice, particularly where individual suits could lead to potentially inconsistent results.
75. The class members are identifiable using records maintained by the City in the ordinary course of business.
76. During the relevant time period, the City promulgated and implemented Directive 6500R-B, which is a specific policy applicable to all class members herein. The City was aware of and allowed to continue a policy and practice in which pretrial detainees were placed and held in Punitive Segregation, without due process, to serve Old Time. The City has abridged class members’ Fourteenth Amendment right to be free from punitive measures that may not constitutionally be imposed before a determination of guilt. The City also has abridged those members’ Fourteenth Amendment right to procedural protections before being deprived of liberty.
77. Common questions of law and fact exist for all class members herein and predominate over any questions solely affecting individual members thereof.
78. Among the questions of law and fact common to members of the class are: a. whether the City’s policy and practice of holding pretrial detainees in Punitive Segregation to serve Old Time violated the Fourteenth Amendment;
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b. whether confinement of pretrial detainees in Punitive Segregation to serve Old Time was specifically for the purpose of punishment and/or had the effect of imposing punishment;
c. whether confinement of pretrial detainees in Punitive Segregation to serve Old Time was reasonably related to a legitimate governmental objective;
d. whether pretrial detainees had a liberty interest in avoiding confinement in Punitive Segregation to serve Old Time; and
e. what process pretrial detainees were due before confinement in Punitive Segregation.
79. The City is expected to raise common defenses to the claims of all class members herein, including denying that their policies and practices violate the Constitution.
80. Plaintiffs’ claims are typical of those of all class members herein, as their claims arise from the same policies and practices, and Plaintiffs’ claims are based on the same legal theories as those of all class members herein. The cause of Plaintiffs’ injuries are the same as the cause of the injuries suffered by all class members herein, namely the City’s policies and practices.
81. Maintaining this action as a class action is superior to other available methods because individual damages claims are not likely to be feasible.
82. Plaintiffs are capable of fairly and adequately protecting the interests of all class members herein because Plaintiffs do not have any antagonistic interests thereto. Counsel experienced in civil rights litigation, prisoners’ rights litigation, complex litigation, and class actions represent Plaintiffs.
FIRST CLAIM FOR RELIEF 42 U.S.C.§ 1983 - Fourteenth Amendment
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(Substantive Due Process) 83. Plaintiffs repeat and reallege the foregoing paragraphs as if the same were fully set forth at length herein. 84. By its policies and practices described herein, the City authorized the confinement of Plaintiffs and class members in Punitive Segregation to serve Old Time, violating the Due Process Clause of the Fourteenth Amendment. As a result of these unconstitutional policies and practices, Plaintiffs and class members have suffered and continue to suffer physical, psychological, mental, and/or emotional injuries, as well as loss of liberty. 85. The City’s policies and practices described herein were intended to punish and/or had the effect of punishing plaintiff and class members in violation of their Fourteenth Amendment right to be free from punishment as pretrial detainees. 86. By confining Plaintiffs and class members in Punitive Segregation to serve Old Time under harsh conditions and isolation that were not reasonably related to any legitimate interest in maintaining order in the facility, the City punished Plaintiffs and the class in violation of their Fourteenth Amendment right to be free from punishment as pretrial detainees.
SECOND CLAIM FOR RELIEF 42 U.S.C. § 1983 - Fourteenth Amendment
(Procedural Due Process) 87. Plaintiffs repeat and reallege the foregoing paragraphs as if the same were fully set forth at length herein. 88. By its policies and practices described herein, the City authorized the confinement of Plaintiffs and class members in Punitive Segregation to serve Old Time without adequate process, violating the Due Process Clause of the Fourteenth Amendment. As a result of these
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unconstitutional policies and practices, Plaintiffs and class members have suffered and continue to suffer physical, psychological, mental, and/or emotional injuries, as well as loss of liberty.
89. Plaintiffs and the class have a liberty interest in avoiding Punitive Segregation. This liberty interest arises from both the Due Process Clause of the Fourteenth Amendment, by reason of guarantees implicit in the word “liberty,” and from an expectation and interest created by state and city laws or policies.
90. By placing Plaintiffs and the class in Punitive Segregation to serve Old Time without regard for the appropriateness of such confinement and without adequate process, the City violated Plaintiffs’ and the class members’ due process rights.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs request that the Court grant the following relief:
a. Declare that the suit is maintainable as a class action pursuant to Federal Rules of Civil Procedure 23(a), (b)(1), and (b)(3);
b. Award compensatory damages in an amount to be determined for all physical, psychological, mental, and emotional injuries, as well as loss of liberty, sustained by Plaintiffs and the class as a result of the policies and practices alleged herein;
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c. Award reasonable attorneys’ fees, together with the costs of this action; and d. Grant such other further relief as the Court may deem appropriate. Dated: ***** New York, New York
Respectfully submitted,
/s/ Alexander Reinert_____ Alexander Reinert (AR 1740) 55 Fifth Avenue, Room 1005 New York, NY 10003 (212) 790-0403 areinert@yu.edu Eric Hecker (EH 0989) Daniel Mullkoff (DM 4602) CUTI HECKER WANG LLP 305 Broadway, Sixth Floor New York, NY 10007 (212) 620-2600 ehecker@chwllp.com dmullkoff@chwllp.com Attorneys for Plaintiffs
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 Case 1:15-cv-06733-CLP Document 58 Filed 12/11/17 Page 1 of 26 PageID #: 295

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------------------------------X ROY PARKER et al. on behalf of themselves and all others similarly situated,

- against -

Plaintiffs,

MEMORANDUM AND ORDER 15 CV 6733 (CLP)

CITY OF NEW YORK,

Defendant. -------------------------------------------------------------X POLLAK, United States Magistrate Judge:

On November 23, 2015, Roy Parker, on behalf of himself and all others similarly

situated, filed a class action Complaint against the City of New York, claiming that the New

York City Department of Corrections (“NYCDOC”) had violated the Constitution by holding

pretrial detainees in solitary confinement or punitive segregation (“PSEG”) without providing

them with due process and for no legitimate purpose. Presently before this Court is the

plaintiffs’ motion for preliminary approval of the Class Action Settlement, Conditional

Certification of the Settlement Class, and appointment of plaintiffs’ counsel as Class Counsel.

For the reasons set forth below, the Court grants plaintiffs’ application in its entirety.

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FACTUAL AND PROCEDURAL BACKGROUND A. Factual Allegations Following the filing of the Complaint on November 23, 2015, the City filed an Answer on April 21, 2016. The plaintiff’s First Amended Complaint was thereafter filed on November 12, 2016, adding Rajab Asep, Christopher Chandler, Jamal Coleman, Allana Dixon, Chauncey Miranda, and Cesar Rivera as named plaintiffs. Plaintiffs allege that for many years, NYCDOC pretrial detainees had been placed in PSEG for no reason except for the fact that the detainee had previously been found to have violated a disciplinary rule while incarcerated on another occasion, but had been released from custody prior to serving the entirety of the disciplinary sentence. Plaintiffs allege that if the detainee were later returned to NYCDOC custody, the City would require the detainee to serve the remainder of his “old” solitary confinement time. Plaintiffs allege that this explicit policy of the City, referred to as the “Old Time Policy,” violated plaintiffs’ constitutional rights because defendant never provided these detainees with a hearing or any other process. The Old Time Policy was set forth in a NYCDOC directive and described as follows:
If an inmate is released on bail or on his/her own recognizance, is discharged, or is transferred to the custody of another jurisdiction or agency before he/she finishes serving his/her Punitive Segregation sentence . . . the transfer will interrupt the sentence being served and the interruption will continue until the inmate returns to the jurisdiction of the Department, at which time he/she may be required to serve the balance owed[.] (Reinert Decl.1 ¶ 4 (quoting from Inmate Disciplinary Due Process, Directive 6500R-B, III.D.5, attached as Ex. A)).
1Citations to “Reinert Decl.” refer to the Declaration of Alexander A. Reinert, Esq., dated August 23, 2017.
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While the City claimed that placement in PSEG was necessary to ensure the safe operation of the detention facility, plaintiffs allege that it was simply to punish pretrial detainees who may not be punished until a formal adjudication of guilt has been made in accordance with due process. In seeking compensatory damages for the time spent in PSEG as a result of the Old Time Policy, plaintiffs allege that the defendant’s policy violates the substantive and procedural due process rights of pretrial detainees.2
B. Discovery and Settlement Discussions The Court has supervised discovery in this case and engaged in numerous settlement discussions with the parties over an 18 month period, culminating in the execution of the settlement Stipulation on August 11, 2017. (Reinert Decl. ¶¶ 6, 13). Plaintiffs’ counsel obtained and reviewed documents reflecting the history of the Old Time Policy, as well as the disciplinary and PSEG records of individual class members. (Id. ¶10). In addition to reviewing over 3,000 pages of documents, plaintiffs’ counsel interviewed current and former NYCDOC detainees, and conducted the Rule 30(b)(6) deposition of the NYCDOC officer responsible for administering the Old Time Policy. (Id.) Counsel asserts that they spent significant time and effort reviewing these records, preparing spreadsheets, and computing the time spent by the class members in solitary confinement due to the Old Time Policy. (Id.) The parties participated in approximately 15 settlement conferences with the undersigned Magistrate Judge, and engaged in detailed and protracted arms’ length negotiations which ultimately resulted in the settlement currently before this Court. According to the parties, 2The Old Time Policy was discontinued as of September 16, 2015. See Bryant v. City of New York, No. 14 CV 8672, 2016 WL 3766390 (S.D.N.Y. July 8, 2016). Thus, plaintiffs’ claim for damages is based only on past time spent in PSEG prior to the change in policy.
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negotiating the terms of the Stipulation itself required approximately six months, and intervention and assistance by this Court in resolving various disputes. The legal issue of whether the Old Time Policy violated the substantive and procedural due process rights of the pretrial detainees was subject to serious dispute on both sides, with no controlling legal decision, creating uncertainty as to the outcome of the case for both parties. Thus, the settlement was hard fought, with four main issues being the focus of negotiations: 1) the overall amount of damages for the class, measured on a per diem basis; 2) the identification of class members; 3) the determination of compensation for each individual class member; and 4) the notice and claims process.
C. The Terms of the Proposed Settlement The parties have submitted for the Court’s review the written settlement Stipulation (Reinert Decl., Ex. 1). According to the terms of the Stipulation, the Class is defined as the named plaintiffs and all people who were confined in PSEG while a pretrial detainee based on the Old Time Policy at any time between November 23, 2012 and September 16, 2015 (the “Class”). Class members will receive minimum compensation of $175 per day spent in PSEG while a pretrial detainee, as a result of the Old Time Policy. (Stip. ¶ 57). Class members who were diagnosed as having a serious mental illness or who were under the age of 18 when they served PSEG time due to the Old Time Policy will receive $200 per day spent in PSEG. (Id. ¶¶ 55-56). These per diem amounts are comparable to settlements and judgments in other actions of this type. (See Reinert Decl. ¶ 17 (citing cases)). Having reviewed the cases cited by both parties and discussed the issue on many occasions, the Court agrees that the per diem
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amounts agreed upon here are commensurate with, and possibly better than, amounts received in other similar cases.
Based on the discovery conducted during the litigation, the parties have identified approximately 470 class members (see Stip., Ex. B), and thus, on average, the class members will receive approximately $10,500, with an anticipated total maximum amount paid of $4,963,175. (Stip. ¶ 59). Unlike some settlements, in which the defendant makes a fixed payment into a common fund marked for distribution to the class, the Stipulation provides for direct payments to each class member by the defendant based on claims forms submitted to the Claims Administrator. (See id. ¶ 118). Moreover, unlike some class settlements where the plaintiffs’ counsel takes a percentage of the total fund regardless of how many class members participate, here, the class members who participate in the settlement will receive the full value of their claims. Plaintiffs’ counsel here have agreed to seek fees in a separate motion brought before this Court with no prior agreement with the defendant. (Id. ¶¶ 70-72).
The Stipulation further provides for modest service awards to the named plaintiffs of no more than $500 per person. (Id. ¶ 121). Plaintiffs’ counsel will move for approval of those individual awards at the time the Class moves for final approval of the settlement. (See id.)
The parties have designated Garden City Group, Inc. as the proposed Claims Administrator. (Id. ¶ 75). Defendant has agreed to pay all of the costs and expenses associated with the claims administration process, including the Claims Administrator’s fees and costs associated with the notice process and with the payment process. (Id. ¶ 74).
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D. Notice and Claims Process Given that this is a Rule 23 opt-out class,3 in which members seeking compensation must filed a claim to participate, the plaintiffs have made a diligent effort to determine those class members who remain in City or State custody, and estimate that half of the class members are still in custody and easily reached. Sending them notice and providing answers to their questions is of less concern than those class members who are no longer in custody and who may be difficult to reach because of the possibility that they may have changed addresses since the last address reflected in defendant’s records. The procedure for locating and notifying these class members is as follows: 1) using last known addresses and information provided by the City, the first attempt will be to send notice to that last known address; 2) if the notice and correspondence is returned, the Fund administrator will perform a skip trace to find the correct address; and 3) if that is unsuccessful, class counsel will undertake their own reasonable efforts to locate any missing class member. (Stip. ¶¶ 81-83). If fewer that 75% of class members respond to the class notice – either by filing a claim or opting out – the time for responding to the notice will be extended by 60 days. (Id. ¶¶ 93, 98). This extension is designed to give class counsel the opportunity to reach out to the class members and assist in their filing claims or answer their questions. (Reinert Decl. ¶ 24). The parties have agreed to work together to create a “Last Known Address List” which will include last known addresses for each class member. Upon preliminary approval of the
3In the Amended Complaint, plaintiffs alleged that the action qualified for treatment as a class under both Rule 23(b)(1) and Rule 23(b)(3). (See Am. Compl. ¶¶ 73-82, Nov. 12, 2016, ECF No. 92). Plaintiffs’ briefs in support of the Stipulation focus only on certification under Rule 23(b)(3). Since the Court concludes that the case is properly maintained as a class action under Rule 23(b)(3), the Court does not address certification under the standard provided in Rule 23(b)(1).
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settlement, the Claims Administrator will generate draft notices in both English and Spanish to be mailed to the Class members. (Stip., Ex. C). No later than 30 days after approval, defendant will present the notice form for each Class member for review by Class Counsel. (Id. ¶ 81). In addition, within 45 days of preliminary approval, defendant will post a notice in NYCDOC facilities, and New York City Department of Probation facilities, in places where individuals are likely to see them, and the Claims Administrator will establish a website, email address, and tollfree telephone number for Class Members to contact with questions about the process. (Id. 85).
Plaintiffs move for preliminary approval of the settlement, arguing that the settlement is fair for all of the reasons set forth in City of Detroit v. Grinnell Corp., 495 F. 2d 448, 463 (2d Cir. 1974), abrogated on other grounds, Goldberg v. Integrated Rest., Inc., 209 F.3d 43 (2d Cir. 2000). Plaintiffs also seek conditional certification of the proposed Class under Rule 23.
DISCUSSION A. Approval of the Settlement To grant preliminary approval of a class settlement under Rule 23(e), the Court must determine that the proposed settlement is “fair, adequate, and reasonable, and not the product of collusion.” Joel A. v. Giuliani, 218 F.3d 132, 138 (2d Cir. 2000) (citations omitted); see Fed. R. Civ. P. 23(e). Judicial policy favors the settlement and compromise of class actions. Wal-Mart Stores, Inc. v. Visa U.S.A. Inc., 396 F.3d 96, 116-17 (2d Cir. 2005); see also In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 535 (3d Cir. 2004). Whether a settlement is fair is a determination within the sound discretion of the court. Levitt v. Rodgers, 257 F. App’x 450, 453 (2d Cir. 2007) (citing In re Ivan F. Boesky Sec. Litig., 948 F.2d 1358, 1368 (2d Cir. 1991)). Generally, approval of a class action settlement involves a two-step process. First, the
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court preliminarily approves the proposed settlement by evaluating the written submissions and informal presentation of the settling parties and the negotiating process leading to the settlement, Wal-Mart Stores, Inc. v. Visa U.S.A. Inc., 396 F.3d at 116. Second, the court holds a fairness hearing to “determine whether the settlement’s terms are fair, adequate, and reasonable[.]” Capsolas v. Pasta Res., Inc., No. 10 CV 5595, 2012 WL 4760910, at *4 (E.D.N.Y. Oct. 5, 2012). In evaluating a proposed settlement in order to grant preliminary approval, the court need only find that there is “probable cause” to submit the settlement to the class members and to hold a fairness hearing. Hernandez v. Merrill Lynch & Co., No. 11 CV 8471, 2012 WL 5862749, at *1 (S.D.N.Y. Nov. 15, 2012) (quoting In re Traffic Exec. Ass’n E. R.Rs., 627 F.2d 631, 634 (2d Cir. 1980)).
In City of Detroit v. Grinnell Corp., the Second Circuit enumerated nine factors to guide courts in evaluating the substantive fairness of a proposed settlement:
(1) the complexity, expense and likely duration of the 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; (6) the risks of maintaining the class action through the trial; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the Settlement Fund in light of the best possible recovery; and (9) the range of reasonableness of the Settlement Fund to a possible recovery in light of all the attendant risks of litigation[.] 495 F.2d 448, 463 (2d Cir. 1974) (internal citations omitted), abrogated on other grounds, Goldberger v. Integrated Res., Inc., 209 F.3d 43 (2d Cir. 2000); see also D’Amato v. Deutsche Bank, 236 F.3d 78, 86 (2d Cir. 2001); Garcia v. Pancho Villa’s of Huntington Village, No. 09 CV 486, 2012 WL 5305694, at *4 (E.D.N.Y. Oct. 4, 2012). The court must also determine if the settlement was “achieved through arms-length
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negotiations by counsel with the experience and ability to effectively represent the class’s interests.” Becher v. Long Island Lighting Co., 64 F. Supp. 2d 174, 178 (E.D.N.Y. 1999) (citing Weinberger v. Kendrick, 698 F.2d 61, 73 (2d Cir. 1982)); see also D’Amato v. Deutsche Bank, 236 F.3d at 85 (noting that the district court must “determine a settlement’s fairness by examining the negotiating process leading up to the settlement as well as the settlement’s substantive terms”); In re Nissan Radiator/Transmission Cooler Litig., No. 10 CV 7493, 2013 WL 4080946, at *4 (S.D.N.Y. May 30, 2013). In reviewing a proposed settlement, the court has the “‘fiduciary responsibility of ensuring that the settlement is . . . not a product of collusion, and that the class members’ interests [were] represented adequately.’” Clement v. Am. Honda Fin. Corp., 176 F.R.D. 15, 29 (D. Conn. 1997) (internal citation omitted) (quoting In re Warner Commc’ns Secs. Litig., 798 F.2d 35, 37 (2d Cir. 1986)).
Although the Court is not required to make a finding of fairness as to the underlying settlement at this time, the Grinnell factors are instructive in determining whether to grant preliminary approval of the settlement. See Torres v. Gristede’s Operating Corp., Nos. 04 CV 3316, 08 CV 8531, 08 CV 9627, 2010 WL 2572937, at *2 (S.D.N.Y. June 1, 2010) (noting that “[p]reliminary approval of a Settlement Agreement requires only an initial evaluation of the fairness of the proposed settlement on the basis of written submissions and an informal presentation by the settling parties”) (internal quotation marks and citations omitted).
1. Analysis of Procedural Fairness The parties represent that the proposed settlement was entered into only after plaintiffs’ counsel conducted a thorough investigation, obtained extensive discovery, and analyzed the proper measure of damages and the likelihood of class certification. Counsel conducted
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interviews with the named plaintiffs and other pretrial detainees, obtained and reviewed over 3,000 pages of documents pertaining to the claims, and conducted a 30(b)(6) deposition of the defendant’s employee responsible for implementing the Old Time Policy. (See Reinert Decl. ¶ 10). Moreover, the parties engaged in arms-length settlement negotiations, and attended over 15 sessions with this Court in an effort to reach a settlement in principle. (See id. ¶ 13). Following the May 31, 2017 meeting, the parties continued to negotiate the terms of the settlement, which are now memorialized in the Stipulation. (See Minute Entry, May 31, 2017, ECF No. 46).
Given the presumption of fairness when a class settlement has been reached after “arm’s-length negotiations between experienced, capable counsel after meaningful discovery,” see Wal-Mart Stores, Inc. v. Visa U.S.A. Inc., 396 F.3d at 116, the Court finds that the process of reaching the proposed settlement in this case was procedurally fair.
2. Analysis of Substantive Fairness a) Complexity, Expense, and Likely Duration of the Litigation
Turning to the Grinnell factors, the parties seek to avoid the expense and delay that would result from continuing litigation. (Pls.’ Mem. at 9). Plaintiffs note that continued litigation would require extensive additional discovery, including multiple depositions of defendant’s employees, the named plaintiffs, various class members, and NYCDOC representatives, in addition to more document discovery related to the development of and justification for the Old Time Policy. (Id. at 10). Plaintiffs further note that there would likely be extensive motion practice, including a motion for summary judgment involving complex constitutional issues and application of the Prison Litigation Reform Act. (Id.) A trial in this
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matter would be fact-intensive and long. (Id.) Any judgment would clearly be appealed, further delaying resolution. (Id.)
Accordingly, the parties believe that this settlement allows for resolution of the claims, providing significant monetary relief to the Class members “in a prompt and efficient manner.” (Id.) Thus, the first Grinnell factor of avoiding potential protracted litigation favors settlement.
b) Reaction of Class to Settlement The reaction of the Class to the settlement may only be evaluated after notice of the proposed settlement has been sent to the Class and the time for objections has passed. In this case, notice of the proposed settlement has not yet been distributed to the Class. (Id.) Thus, this factor is neutral.
c) Stage of Proceedings and Amount of Discovery Completed The parties believe they have completed a sufficient amount of discovery to evaluate the case and to conclude that the settlement is warranted. (Pls.’ Mem. at 11). Plaintiffs have interviewed current and former NYCDOC detainees and obtained numerous records, sufficient to allow them to understand the Old Time Policy and the impact of this Policy on the detainees. (Id. at 11-12). The parties have engaged in months of litigation and negotiations, and attended numerous conferences with this Court. As such, the Court finds that they are well-equipped to evaluate the strengths and weaknesses of the case. (Id.) When discovery has been extensive, and counsel has sufficient information to appreciate the merits of the case, then settlement is favored. Tiro v. Public House Investments, LLC, No. 11 CV 7679, 2013 WL 4830949, at *7 (S.D.N.Y. Sept. 10, 2013); In re Warfarin Sodium Antitrust Litig., 391 F.3d at 537. Given the
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extent of discovery conducted in this case and the time spent between the parties negotiating the settlement, the Court finds that this factor favors approval of the proposed settlement.
d) Establishing Liability and Damages and Maintaining the Action Through Trial The risk of establishing liability also favors settling this dispute. Although plaintiffs believe their case is strong (see Pls.’ Mem. at 12), establishing liability and continuing litigation through trial in a complex class action such as this inherently involves risk and uncertainty. (Id.) A trial on the merits would involve resolution of liability issues that have never been litigated to conclusion in this context and would likely involve an appeals process, both of which pose a risk of uncertainty with respect to outcome and duration. (Id.) Accordingly, the proposed settlement seeks to alleviate these risks. In light of the foregoing, considering the risks of appeal and the prolonged nature of the litigation, the Court finds that this factor favors approval of the proposed settlement.
e) Maintaining the Class Through Trial Plaintiffs acknowledges that there is a risk associated with obtaining and maintaining class certification through trial. (Id. at 13). If plaintiffs were to move for class certification, defendants would likely oppose the motion and/or move for decertification at the end of trial or on appeal. (Id. at 13-14). This process would require additional discovery and extensive briefing by both parties and inherently involves risk, expense, and delay. Since the proposed settlement would eliminate the aforementioned risk, expense, and delay, the Court finds that this factor favors approval.
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f) Ability of Defendant to Withstand A Greater Judgment The parties acknowledge that defendant, as a municipality, “may be able to withstand a greater judgment.” (Id. at 14). However, the parties contend that this alone should not preclude the Court from finding that the settlement is fair. (Id.); see Frank v. Eastman Kodak Co., 228 F.R.D. 174, 186 (W.D.N.Y. 2005); In re Austrian & German Bank Holocaust Litig., 80 F. Supp. 2d 164, 178 (S.D.N.Y. 2000), aff’d sub nom. D’Amato v. Deutsche Bank, 236 F.3d 78. Accordingly, the Court finds that this factor is neutral and does not prevent approval of the proposed settlement.
g) Range of Reasonableness of Settlement Fund The settlement represents substantial value given the risks of litigation in this case. (Id.) Although plaintiffs could possibly recover a greater amount at trial, plaintiffs recognize the inherent risks of trial. (Pls.’ Mem. at 14). Plaintiffs contend that the settlement reached here falls within the “range of reasonableness” in that it provides “more than ‘a fraction of the potential recovery.’” (Id. at 14-15). Although it is possible that a jury might, after trial, award plaintiffs more than $175 per day, plaintiffs believe that in weighing the risks and benefits of proceeding, the “settlement amount is more than reasonable. (Id. at 15). “It is well-settled law that a cash settlement amounting to only a fraction of the potential recovery will not per se render the settlement inadequate or unfair.” Johnson v. Brennan, No. 10 CV 4712, 2011 WL 4357376, at *11 (S.D.N.Y. Sept. 16, 2011) (quoting Officers for Justice v. Civil Serv. Comm’n, 688 F.2d 615, 628 (9th Cir. 1982)). When the proposed settlement provides a meaningful benefit to the class when considered against the obstacles to proving plaintiff’s claims with respect to damages in particular, the agreement is reasonable. See In re MetLife
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Demutualization Litig., 689 F. Supp. 2d 297, 340 (E.D.N.Y. 2010).
On the basis of the foregoing discussion of the Grinnell factors, the Court finds that the
total award, including the deductions for administrative costs and individual awards to the
named plaintiffs, is fair and reasonable.
B. Rule 23 Class Certification
1) The Requirements of Rule 23(e)
Rule 23(a) of the Federal Rules of Civil Procedure governs class certification and
provides the following:
One or more members of a class may sue or be sued as representative parties on behalf of all members only if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.
Fed. R. Civ. P. 23(a).
In Wal-Mart Stores, Inc. v. Dukes, the Supreme Court discussed the requirements of Rule
23, stating the following:
Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule. . . . We recognized in Falcon that “sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question,” and that certification is proper only if “the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.” [General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 160–61 (1982)]. Frequently that “rigorous analysis” will entail some overlap with the merits of the plaintiff's underlying claim. That cannot be helped.
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564 U.S. 338, 350–51 (2011) (citations omitted). Following the decision in Wal-Mart Stores, Inc. v. Dukes, the Second Circuit determined that “[t]he party seeking certification must establish [Rule 23's] requirements by a preponderance of the evidence.” Pennsylvania Pub. Sch. Emps.’ Ret. Sys. v. Morgan Stanley & Co., Inc., 772 F.3d 111, 119 (2d Cir. 2014) (citing Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 196, 202 (2d Cir. 2008)). A district court must conduct a “rigorous analysis” that may “overlap with the merits of the plaintiff’s underlying claims.” Jacob v. Duane Reade, Inc., 602 F. App’x 3, 5 (2d Cir. 2015) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. at 350–51). The court must “receive enough evidence, by affidavits, documents, or testimony, to be satisfied that each Rule 23 requirement has been met.” In re Initial Pub. Offerings Sec. Litig., 471 F.3d 24, 33 (2d Cir. 2006); see also Kurtz v. Kimberly-Clark Corp., No. 14 CV 1142, 2017 WL 1155398, at *34 (E.D.N.Y. Mar. 27, 2017).
In this case, plaintiffs argue that the settlement class meets all of the requirements for class certification and defendant does not oppose certification. (Pls.’ Mem. at 16; Stip. ¶ 65). See County of Suffolk v. Long Island Lighting Co., 710 F. Supp. 1422, 1424 (E.D.N.Y. 1989), aff’d in part, rev’d in part on other grounds, 907 F.2d 1295 (2d Cir. 1990).
a) Numerosity Plaintiffs contend that the Proposed Subclasses satisfy the numerosity requirement of Rule 23(a). (Pls.’ Mem. at 17). As the Second Circuit has noted, “numerosity is presumed at a level of 40 members.” Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir.), cert denied, 115 U.S. 2277 (1995); see also Alleyne v. Time Moving & Storage Inc., 264
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F.R.D. 41, 48 (E.D.N.Y. 2010). Plaintiffs note that here there are approximately 470 identified class members, clearly satisfying the numerosity requirement. (Reinert Decl. ¶ 16).
b) Commonality Plaintiffs claim that the proposed Class satisfies the commonality requirement. (Pls.’ Mem. at 17-18). “Commonality requires the plaintiff to demonstrate that the class members ‘have suffered the same injury.’ This does not mean merely that they have all suffered a violation of the same provision of the law.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. at 349–50 (citing General Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 (1982)). The common question “must be of such a nature that it is capable of classwide resolution – which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. at 350. See also Marisol A. v. Guiliani, 126 F.3d 372, 377 (2d Cir. 1997) (holding that the “commonality requirement is met if plaintiffs’ grievances share a common question of law or of fact”). Moreover, “[i]t is well-established that ‘the need for an individualized determination of damages suffered by each class member generally does not defeat the requirement.’” Rivera v. Harvest Bakery Inc., 312 F.R.D. at 269. d. at 271 (quoting Whitehorn v. Wolfgang’s Steakhouse, Inc., 275 F.R.D. 193, 199 (S.D.N.Y. 2011)); see also Ramirez v. Riverbay Corp., 39 F. Supp. 3d 354, 364 (S.D.N.Y. 2014) (quoting Espinoza v. 953 Assocs. LLC, 280 F.R.D. 113, 127 (S.D.N.Y. 2011)) (explaining that “it is axiomatic that ‘the commonality requirement may be met when individual circumstances of class members differ,’ as long as class members’ ‘injuries derive from a unitary course of conduct’”). Plaintiffs claim that the proposed Class satisfies the commonality requirement because there are several common factual and legal issues that apply to all Class members, including
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whether the Old Time Policy was imposed for or had the effect of imposing punishment, whether the policy had a legitimate governmental purpose, whether the pretrial detainees had a liberty interest in avoiding solitary confinement, and what process was due to the detainees before the policy was imposed upon them. (Pls.’ Mem. at 18). These common legal questions and the related operative facts clearly satisfy the commonality requirement of Rule 23. See, e.g., Butler v. Suffolk County, 289 F.R.D. 80, 98 (E.D.N.Y. 2013).
Accordingly, the Court finds that plaintiffs have established commonality for the proposed Class.
c) Typicality Plaintiffs claim that the named plaintiffs’ claims are typical of the putative class members’ claims. (Pls.’ Mem. at 18-19). Rule 23(a)(3) requires that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). Typicality has been found when “each class member’s claim arises from the same course of events and each class member makes similar legal arguments to prove the defendant’s liability.” In re Flag Telecom Holdings, Ltd. Sec. Litig., 574 F.3d 29, 35 (2d Cir. 2009) (quoting Robidoux v. Celani, 987 F.2d 931, 936 (2d Cir. 1993)). Typicality is “usually met irrespective of varying fact patterns which underlie individual claims” so long as the claims of the class representative are typical of the class members’ claims. Bourlas v. Davis Law Assocs., 237 F.R.D. 345, 351 (E.D.N.Y. 2006) (quoting D’Alauro v. GC Servs. Ltd. P’ship, 168 F.R.D. 451, 456–57 (E.D.N.Y. 1996)). Plaintiffs claim that the named plaintiffs and Class members all served time in PSEG as pretrial detainees and all suffered the same due process violations. (Pls.’ Mem. at 19). The fact
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that they may have spent differing amounts of time does not mean that their claims are not typical of those of the class.
d) Adequacy of Representation Plaintiffs claim that the named plaintiffs and their counsel will adequately represent the Classes. (Pls.’ Mem. at 19). In order to satisfy Rule 23(a)(4), which requires the interests of the class to be adequately represented, the Second Circuit has established a two-pronged test. First, there must be a showing that class counsel is “qualified, experienced and able to conduct the litigation.” In re Flag Telecom Holdings, Ltd. Sec. Litig., 574 F.3d at 35 (quoting Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 60 (2d Cir. 2000)). Second, the named plaintiffs’ interests may not be “antagonistic to the interest of other members of the class.” Id. (quoting Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d at 60); see also Hill v. City of New York, 136 F. Supp. 3d 304, 356 (E.D.N.Y. 2016). The focus of the inquiry is uncovering “conflicts of interest between named parties and the class they seek to represent.” In re Flag Telecom Holdings, Ltd. Sec. Litig., 574 F.3d at 35 (quoting Amchen Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997)). The conflict “must be fundamental” to defeat a motion for class certification. Id. (quoting In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 145 (2d Cir. 2001)). Further, to satisfy the adequacy requirement, the named plaintiffs must “possess the same interests and suffer the same injuries as the class members.” In re Literary Works in Elec. Databases Copyright Litig., 654 F.3d 242, 249 (2d Cir. 2011) (quoting Amchen Prods., Inc. v. Windsor, 521 U.S. at 625–26). Plaintiffs claim that neither the named plaintiffs nor counsel have any “interests that are antagonistic to or at odds with the class members’ interests.” (Pls.’ Mem. at 19; see id. at 20).
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Plaintiffs also claim that counsel is “qualified, experienced and able to conduct the litigation.” (Id. at 20 (citing cases in which Mr. Reinert has been approved as class counsel); see also Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d at 60.
It is clear to this Court that plaintiffs and counsel are adequate to represent the Class, and that counsel has demonstrated the necessary commitment to the Class through their efforts at prosecuting the case to settlement. See Shahriar v. Smith & Wollensky Rest. Grp., Inc., 659 F.3d at 253.
Accordingly, the Court finds that plaintiffs have satisfied the adequacy requirement of Rule 23(a)(4).
e) Ascertainability In addition to the requirements of Rule 23(a), “the Second Circuit has also recognized the ‘implied requirement of ascertainability.’” Hughes v. Ester C Co., 317 F.R.D. 333, 343 (E.D.N.Y. 2016) (quoting In re Avon Anti-Aging Skincare Creams & Prods. Mktg. & Sales Practices Litig., No. 13 CV 150, 2015 WL 5730022, at *2 (S.D.N.Y. Sept. 30, 2015)); see also In re Initial Pub. Offerings Sec. Litig., 471 F.3d at 30 (discussing “[t]he implied requirement of ascertainability”). “The ascertainability requirement, as defined in this Circuit, asks district courts to consider whether a proposed class is defined using objective criteria that establish a membership with definite boundaries. . . . In other words, a class should not be maintained without a clear sense of who is suing about what.” In re Petrobras Secs., 862 F.3d 250, 269 (2d Cir. 2017). Here, the parties have identified a list of 470 potential claimants. Accordingly, there is no question that membership in the Class is ascertainable.
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2) The Requirements of Rule 23(b) In addition to satisfying the prerequisites of Rule 23(a), “the district court must be satisfied that certification is appropriate under Rule 23(b).” Roach v. T.L. Cannon Corp., 778 F.3d 401, 405 (2d Cir. 2015) (citing Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432 (2013)). Certification may be granted under Rule 23(b)(3) if both “questions of law or facts common to class members predominate over any questions affecting only individual members” and “a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Id. (quoting Fed. R. Civ. P. 23(b)(3)). Plaintiffs claim that the proposed Class meets the requirements of Rule 23(b)(3). (See Pls.’ Mem. at 21–24; see also supra note 3).
a) Predominance Under Rule 23(b)(3), when “one or more of the central issues in the action are common to the class and can be said to predominate, the action may be considered proper [] even though other important matters will have to be tried separately, such as damages or some affirmative defenses peculiar to some individual class members.” Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. at 1045 (citing 7A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1778 (3d ed. 2005)). However, common issues, such as liability, may be certified even where other issues, such as damages, “do not lend themselves to classwide proof.” Id. (citing In re Nassau Cty. Strip Search Cases, 461 F.3d at 227). Indeed, to the extent that individual defenses “‘may affect different class members differently,’ their existence ‘does not compel a finding that individual issues predominate over common ones.’” Id. (quoting In re Nassau Cty. Strip Search Cases, 461
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F.3d at 225). “In short, the question for certifying a Rule 23(b)(3) class is whether ‘resolution of some of the legal or factual questions that qualify each class member’s case as a genuine controversy can be achieved through generalized proof’ and whether ‘these particular issues are more substantial than the issues subject only to individualized proof.’” Id. at 139 (quoting In re U.S. Foodservice Inc. Pricing Litig., 729 F.3d 108, 118 (2d Cir. 2013)).
Plaintiffs argue that the central issue of the constitutionality of the Old Time Policy predominates over any factual or legal variations among class members. (Pls.’ Mem. at 21 (citing Betances v. Fischer, 304 F.R.D. 416, 429 (S.D.N.Y. 2015)). See also In re Nassau Cty Strip Search Cases, 461 F.3d 219, 228 (2d Cir. 2006)(holding that “when plaintiffs are allegedly aggrieved by a single policy of defendants, . . . the case presents the type of situation for which the class action device is suited since many nearly identical litigations can be adjudicated in unison”).
Accordingly, the Court finds that plaintiffs have satisfied the predominance requirement of Rule 23(b)(3).
b) Class Action as Superior Method of Resolution Additionally, to satisfy Rule 23(b)(3), plaintiffs must demonstrate that “a class action would achieve economies of time, effort, and expense, and promote uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results.” Brown v. Kelly, 609 F.3d 467, 483 (2d Cir. 2010) (citation and internal quotation marks omitted). The Rule requires the Court to consider:
[(1)] the class members’ interests in individually controlling the prosecution or defense of separate actions; [(2)] the extent and nature of any litigation concerning the controversy already begun
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by or against class members; [(3)] the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and [(4)] the likely difficulties in managing a class action. Fed. R. Civ. P. 23(b)(3); see also Pagan v. Abbott Labs., Inc., 287 F.R.D. 139, 147 (E.D.N.Y. 2012). “Courts routinely hold that a class action is superior where, as here, potential class members are aggrieved by the same policies, [and] the damages suffered are small relative to the expense and burden of individual litigation.” Cazares v. AVA Rest. Corp., No. 15 CV 477, 2017 WL 1229727, at *8 (E.D.N.Y. Mar. 31, 2017) (quoting Fonseca v. Dircksen & Talleyrand Inc., No. 13 CV 5124, 2015 WL 5813382, at *6 (S.D.N.Y. Sept. 28, 2015)). Here, the proposed Class members likely lack the means to prosecute individual actions and employing the class method will achieve economies of scale and avoid the waste of judicial resources and the possibility of inconsistent findings. (See Pls.’ Mem. at 22). The Court agrees with plaintiffs that the Rule 23(b)(3) factors weigh heavily in favor of finding that a class action is a superior method of resolving the class members’ claims.
3) Conclusion In light of the foregoing, the Court finds that plaintiffs have satisfied the requirements of Rule 23(a) and Rule 23(b)(3) as to the Settlement Class. Therefore, pursuant to the parties’ Stipulation, the Court conditionally certifies a settlement class as defined in Paragraph 4 of the Stipulation, consisting of all people who, while pretrial detainees at any time between November 23, 2012 and September 16, 2015, were confined in PSEG in a NYCDOC facility pursuant to the Old Time Practice a/k/a the “Historical Time Practice.” (See Stip. ¶¶ 2-4).
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C. Appointment of Class Counsel The Court also grants plaintiffs’ motion to appoint plaintiffs’ counsel as Class Counsel. In evaluating the adequacy of Class Counsel, Rule 23(g) requires the Court to consider: (1) the work done by counsel in investigating the potential claims in the case; (2) counsel’s experience in handling similar class actions and other complicated litigation; (3) counsel’s knowledge of the applicable law; and (4) the resources counsel will expend to represent the class. Fed. R. Civ. P. 23(g). In this case, plaintiffs’ attorneys have had extensive experience litigating prisoners’ rights cases and thus they are well-versed in the applicable law. (Reinert Decl. ¶¶ 29-37). Moreover, plaintiffs’ counsel have performed substantial work in this litigation, identifying, investigating, prosecuting, and settling the claims on behalf of the affected individuals. (Id.) As previously discussed, the Court also has considered whether, under Rule 23(a)(4), the representative plaintiffs “will fairly and adequately protect the interests of the class,” and have no “interests antagonistic to the interests of other class members.” Denney v. Deutsche Bank AG, 443 F.3d 253, 268 (2d Cir. 2006). There is no evidence here that the named plaintiffs have any antagonistic interests or that there would be anything that would hinder their ability to act as class representatives. Accordingly, the Court finds that the named plaintiffs are adequate class representatives and that proposed Class Counsel satisfy the criteria of Rule 23(g). Thus, the Court appoints plaintiffs’ counsel to represent the class members in this matter.
D. Adequacy of Notice and Distribution Process Pursuant to the Federal Rules of Civil Procedure, when the parties propose a settlement, the “court must direct notice [of the settlement] in a reasonable manner to all class members who
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would be bound by the proposal.” Fed. R. Civ. P. 23(e)(1). Under Rule 23(e)(1), the “‘[c]ourt has virtually complete discretion as to the manner of giving notice to class members.’” In re MetLife Demutualization Litig., 689 F. Supp. 2d at 345 (quoting Handschu v. Special Servs. Div., 787 F.2d 828, 833 (2d Cir. 1986)). In addition to notice of a proposed settlement, the Rule also either requires or permits courts to provide notice of the class proposed to be certified, depending on the type of class action proceeding. See Fed. R. Civ. P. 23(c)(2). In a Rule 23(b)(3) class action such as this, the court “must direct . . . the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B). The Rule further provides that notice to such classes must “concisely and clearly state . . . (i) the nature of the action; (ii) the definition of the class certified; (iii) the class claims, issues, or defenses; (iv) that a class member may enter an appearance through an attorney if the member so desires; (v) that the court will exclude from the class any member who requests exclusion; (vi) the time and manner for requesting exclusion; and (vii) the binding effect of a class judgment on members under Rule 23(c)(3).” Fed. R. Civ. P. 23(c)(2)(B).
In Eisen v. Carlisle & Jacquelin, the Supreme Court held that individual notice, as opposed to general published notice, is required by Rule 23(c)(2) for class members who are identifiable through reasonable effort. 417 U.S. at 173-76 (holding that “individual notice to identifiable class members is not a discretionary consideration” but rather, is an “unambiguous requirement of Rule 23”); Becher v. Long Island Lighting Co., 64 F. Supp. 2d at 177. Notice is adequate if it “‘fairly apprise[s] the prospective members of the class of the terms of the proposed settlement and of the options that are open to them in connection with the proceedings.’” Wal-Mart Stores, Inc. v. Visa U.S.A. Inc., 396 F.3d at 114 (quoting Weinberger
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v. Kenrick, 698 F.2d at 70). Here, the proposed Notice of Class Action Settlement provides the following
information: (1) an explanation of the nature of the action; (2) a description of the class certified; (3) the claims, issues and defenses; (4) that a class member may appear through a separate attorney if he desires; (5) that any member who wishes may be excluded by the court; (6) the time and manner for requesting exclusion; and (7) the binding effect of a class judgment on members of a Rule 23(b)(3) class. (See Proposed Notice, Ex. C to Stip.). The proposed notice also describes the allocation of fees and provides information regarding the final approval hearing. In addition to mailing, the notice will be posted at various locations, and the Claims Administrator will take reasonable steps to ascertain the proper addresses for each class member. (See Pls.’ Mem. at 24).
The Court finds the proposed Notice and this means of notification to be sufficient. The proposed Notice itself is sufficiently detailed so as to inform the class members of their rights and obligations, and the method of notice is practical and likely effective in reaching the affected individuals. See Weinberger v. Kendrick, 698 F.2d at 72 (stating that mailing individual notices to class members at their last known addresses was a sufficient means of notification under the circumstances). As such, the Court approves the Proposed Notice, provided that it include contact information for Class Counsel, specifically, an address, phone number, and e-mail address for Class Counsel. The Proposed Notice shall also include the telephone number and website address provided for in the Stipulation.
The Court has also reviewed the proposed Claims Form (Stip., Ex. E) and Opt-Out Form (Stip., Ex. G). The Court finds that the proposed forms effectively advise class members of their rights and options and, in conjunction with the Proposed Notice, vindicate the purpose of Rule 23(c)(2)(B). The Court therefore approves the proposed Claim Form and Opt-Out Form.
25

Case 1:15-cv-06733-CLP Document 58 Filed 12/11/17 Page 26 of 26 PageID #: 320

CONCLUSION
Having considered the parties' submissions,the Court grants the plaintiffs' motionsfor preliminary approval ofthe class settlement,for conditional class certification,and for the appointment ofplaintiffs' counsel as Class Counsel. Counselfor the parties are directed to submit proposed datesfor the fairness hearing to the Court as soon as possible after entry ofthis
Order for inclusion on the notice to class members.
The parties shall make acopy ofthis Memorandum and Order available on the website
described in the Stipulation.
The Clerk is directed to send copies ofthis Memorandum and Order to the parties either electronically through the Electronic Case Filing(ECF)system or by mail.

SO ORDERED.
Dated: Brooklyn,New York
December 11,2017

/s/ Cheryl L. Pollak
Cheryl Pollak
United^tates Magistrate Judge
Eastern District ofNew York

26

 
 Case: 1:15-cv-6733 As of: 05/16/2018 09:55 AM EDT 1 of 9
ACO
U.S. District Court Eastern District of New York (Brooklyn) CIVIL DOCKET FOR CASE #: 1:15−cv−06733−CLP

Parker v. City of New York Assigned to: Magistrate Judge Cheryl L. Pollak Cause: 42:1983 Civil Rights Act
Plaintiff Roy Parker

Date Filed: 11/23/2015 Jury Demand: Plaintiff Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question
represented by Alexander A. Reinert c/o Benjamin N. Cardozo School of Law 55 Fifth Avenue Room 938 New York, NY 10003 212−790−0403 Fax: 212−790−0805 Email: areinert@yu.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Erik Mullkoff Cuti Hecker Wang LLP 305 Broadway Suite 607 New York, NY 10007 212−620−2606 Fax: 212−620−2616 Email: dmullkoff@chwllp.com ATTORNEY TO BE NOTICED

Eric Jason Hecker Cuti Hecker Wang LLP 305 Broadway Suite 607 New York, NY 10007 212 620−2600 Fax: 212−620−2612 Email: ehecker@chwllp.com ATTORNEY TO BE NOTICED

Plaintiff Rajab Asep

represented by Alexander A. Reinert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Erik Mullkoff (See above for address) ATTORNEY TO BE NOTICED

Eric Jason Hecker (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Christopher Chandler

represented by Alexander A. Reinert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:15-cv-6733 As of: 05/16/2018 09:55 AM EDT 2 of 9

Daniel Erik Mullkoff (See above for address) ATTORNEY TO BE NOTICED

Eric Jason Hecker (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jamal Coleman

represented by Alexander A. Reinert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Erik Mullkoff (See above for address) ATTORNEY TO BE NOTICED

Eric Jason Hecker (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Allana Dixon

represented by Alexander A. Reinert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Erik Mullkoff (See above for address) ATTORNEY TO BE NOTICED

Eric Jason Hecker (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Chauncey Miranda

represented by Alexander A. Reinert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Erik Mullkoff (See above for address) ATTORNEY TO BE NOTICED

Eric Jason Hecker (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Cesar Rivera on behalf of themselves and all others similarly situated

represented by Alexander A. Reinert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Erik Mullkoff (See above for address) ATTORNEY TO BE NOTICED

Eric Jason Hecker (See above for address)

Case: 1:15-cv-6733 As of: 05/16/2018 09:55 AM EDT 3 of 9 ATTORNEY TO BE NOTICED

V. Defendant City of New York
Objector Ryan Jhagroo DIN # 17−R−1739 Watertown Correctional Facility 23147 Swan Road P.O. Box 168 Watertown, NY 13601−0168 Objector Allen Proctor 349−18−01439 A.M.K.C. 1818 Hazen Street East Elmhurst, NY 11370

represented by Martin John Bowe The City of New York Law Department 100 Church Street New York, NY 10007 212−356−0894 Fax: 212−356−3790 Email: mbowe@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ryan Budhu New York City Law Department 100 Church Street Room 6−119 New York, NY 10016 212−356−4014 Fax: 212−356−4009 ATTORNEY TO BE NOTICED

Date Filed 11/23/2015
11/23/2015
11/23/2015 11/24/2015

# Docket Text
1 COMPLAINT Roy Parker against City of New York filing fee $ 400, receipt number 0207−8192389 Was the Disclosure Statement on Civil Cover Sheet completed −NO,, filed by Roy Parker. (Attachments: # 1 Civil Cover Sheet, # 2 Proposed Summons) (Reinert, Alexander) (Entered: 11/23/2015)
Case assigned to Judge Jack B. Weinstein and Magistrate Judge Cheryl L. Pollak. Please download and review the Individual Practices of the assigned Judges, located on our website. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. (Bowens, Priscilla) (Entered: 11/24/2015)
2 Summons Issued as to City of New York. (Bowens, Priscilla) (Entered: 11/24/2015)
3 In accordance with Rule 73 of the Federal Rules of Civil Procedure and Local Rule 73.1, the parties are notified that if all parties consent a United States magistrate judge of this court is available to conduct all proceedings in this civil action including a (jury or nonjury) trial and to order the entry of a final judgment. Attached to the Notice is a blank copy of the consent form that should be filled out, signed and filed electronically only if all parties wish to consent. The form may also be accessed at the following link:http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO085.pdf. You may

Case: 1:15-cv-6733 As of: 05/16/2018 09:55 AM EDT 4 of 9

11/24/2015 12/03/2015 12/03/2015 02/02/2016 02/05/2016
02/19/2016 02/19/2016 02/19/2016 02/22/2016 02/22/2016 02/29/2016
02/29/2016 04/21/2016 05/11/2016 05/13/2016 05/17/2016
06/27/2016

withhold your consent without adverse substantive consequences. Do NOT return or file the consent unless all parties have signed the consent. (Bowens, Priscilla) (Entered: 11/24/2015)
4 This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made, if any. (Bowens, Priscilla) (Entered: 11/24/2015)
5 NOTICE of Appearance by Eric Jason Hecker on behalf of Roy Parker (aty to be noticed) (Hecker, Eric) (Entered: 12/03/2015)
6 NOTICE of Appearance by Daniel Erik Mullkoff on behalf of Roy Parker (aty to be noticed) (Mullkoff, Daniel) (Entered: 12/03/2015)
7 SUMMONS Returned Executed by Roy Parker. City of New York served on 2/2/2016, answer due 2/23/2016. (Hecker, Eric) (Entered: 02/02/2016)
8 COURT ORDER ON CASE FILING re 1 Complaint. Magistrate Judge Pollak is directed to treat this case under Local Rule 72.2 and is respectfully requested to expedite. My case manager is to set a conference before me as soon as possible after appearance. Plaintiff and a knowledgeable person for the defendant shall appear at the conference. Ordered by Judge Jack B. Weinstein on 2/3/2016. (Barrett, C) (Entered: 02/05/2016)
9 NOTICE of Appearance by Martin John Bowe on behalf of City of New York (aty to be noticed). (Barrett, C) (Entered: 02/19/2016)
10 Letter MOTION for Extension of Time to File Answer re 1 Complaint /Request for Related Case Designation by City of New York. (Attachments: # 1 Copy of Letter Submitted to Judge Stein) (Barrett, C) (Entered: 02/19/2016)
11 RESPONSE in Opposition re 10 Letter MOTION for Extension of Time to File Answer re 1 Complaint, /Request for Judicial Determination That Parker is Related to Bryant, filed by Roy Parker. (Reinert, Alexander) (Entered: 02/19/2016)
12 REPLY in Support of Request that Parker be deemed related to Bryant filed by City of New York. (Attachments: # 1 Exhibit) (Bowe, Martin) (Entered: 02/22/2016)
13 Letter to Judge Stein copied to Judge Weinstein by City of New York (Bowe, Martin) (Entered: 02/22/2016)
14 ORDER denying Motion for Transfer to the Southern District and granting 10 Motion for Extension of Time to Answer re 1 Complaint. A 60−day enlargement of defendant's time to answer is granted. Ordered by Judge Jack B. Weinstein on 2/25/2016. (Barrett, C) (Entered: 02/29/2016)
15 SCHEDULING ORDER: An Initial Conference set for 5/17/2016 @ 10:30 AM before Magistrate Judge Cheryl L. Pollak. So Ordered by Magistrate Judge Cheryl L. Pollak on 2/29/2016. (Caggiano, Diana) (Entered: 02/29/2016)
16 ANSWER to 1 Complaint, by City of New York. (Bowe, Martin) (Entered: 04/21/2016)
17 STATUS REPORT Regarding the Parties' Rule 26(f) Conference by Roy Parker (Reinert, Alexander) (Entered: 05/11/2016)
ELECTRONIC ORDER re 17 Request denied. Conference to proceed on 5/17/16 @ 10:30 AM by telephone. So Ordered by Magistrate Judge Cheryl L. Pollak on 5/13/2016. (Caggiano, Diana) (Entered: 05/13/2016)
18 MINUTE ENTRY for Initial Conference proceeding held before MJ Pollak on 5/17/2016. Parties to meet and confer on list: 30(b)(6) depositions to be completed in 3 weeks. Demand to be issued in 30 days. Settlement Conference set for 6/29/2016 @ 4:00 PM. (Caggiano, Diana) (Entered: 05/17/2016)
19 MOTION to Adjourn Conference by City of New York. (Bowe, Martin) (Entered: 06/27/2016)

Case: 1:15-cv-6733 As of: 05/16/2018 09:55 AM EDT 5 of 9

06/27/2016 07/18/2016 07/21/2016 07/21/2016 07/22/2016 07/25/2016 08/01/2016 08/02/2016 08/02/2016 08/18/2016
09/01/2016
11/12/2016 11/15/2016 12/02/2016

ELECTRONIC ORDER granting 19 Motion to Adjourn Conference. Settlement Conference adjourned to 7/18/2016 @ 2:00 PM. So Ordered by Magistrate Judge Cheryl L. Pollak on 6/27/2016. (Caggiano, Diana) (Entered: 06/27/2016)
20 MINUTE ENTRY for Settlement Conference proceeding held before MJ Pollak on 7/18/16. Defendants are Ordered to provide proposed rates by July 25. Parties are to confer on (1) notice; (2) fees; (3) remainder/reversion options. Settlement conference set for September 1, 2016 at 9:00 a.m. (Chandran, Ashok) (Entered: 07/18/2016)
21 Letter requesting one−week extension to present counter offer by City of New York (Bowe, Martin) (Entered: 07/21/2016)
22 Letter Regarding Defendant's Request for One−Week Extension to Present Counter−Offer by Roy Parker (Reinert, Alexander) (Entered: 07/21/2016)
23 NOTICE of Appearance by Ryan Budhu on behalf of City of New York (aty to be noticed) (Budhu, Ryan) (Entered: 07/22/2016)
24 ENDORSED LETTER ORDER re 21 Request granted. So Ordered by Magistrate Judge Cheryl L. Pollak on 7/25/2016. (Caggiano, Diana) (Entered: 07/25/2016)
25 Letter by City of New York (Attachments: # 1 Proposed Order Unsealing) (Bowe, Martin) (Entered: 08/01/2016)
26 Letter Regarding Defendant's August 1, 2016 Letter by Roy Parker (Reinert, Alexander) (Entered: 08/02/2016)
27 Letter by City of New York (Bowe, Martin) (Entered: 08/02/2016)
28 UNSEALING ORDER re 25 − 27 : IT IS ORDERED that the New York City Department of Corrections is directed to unseal and provide to defendants counsel any Inmate New History Inquiry (QHIN) screen entry reading No Public Record so that docket, indictment and conviction/sentencing information becomes visible; and to release the dates of birth for the putative class members; and IT IS FURTHER ORDERED that the N.Y.C. Health + Hospitals is directed to release to defendants counsel information indicating which putative class members in this case had a mental health designation (M designation), and whether any such inmates were housed in the Mental Health Assignment Unit for Infracted Inmates during the relevant period. To the extent defendant is requesting a stay of either the settlement process or the case, the request for a stay is denied. If the defendants are unable to provide a response to plaintiffs' suggested per diem rate in accordance with the schedule previously set by the Court, the Court grants them an extension of time. However, both sides are ORDERED to be fully prepared to discuss the terms of a settlement during the 9/1/16 settlement conference. So Ordered by Magistrate Judge Cheryl L. Pollak on 8/18/2016. (Rao, Sony) (Entered: 08/18/2016)
29 MINUTE ENTRY for Settlement Conference proceeding held before MJ Pollak on 9/1/2016. Settlement discussions prove unlikely to success at this time. Mandatory disclosures due 9/16/16. Parties to exchange document requests and interrogatories by 9/30/16 − responses 10/31/16. Plaintiff to provide draft proposed Amended Complaint; if defendant believe a motion is necessary, parties are to agree on a briefing schedule. Settlement Conference set for 11/15/2016 @ 11:30 AM. (Caggiano, Diana) (Entered: 09/01/2016)
30 AMENDED COMPLAINT (filed on consent) against City of New York, filed by Roy Parker, Christopher Chandler, Cesar Rivera, Chauncey Miranda, Rajab Asep, Allana Dixon, Jamal Coleman. (Attachments: # 1 Letter) (Reinert, Alexander) Modified on 11/17/2016 (Barrett, C). (Entered: 11/12/2016)
31 MINUTE ENTRY for Settlement Conference proceeding held before MJ Pollak on 11/15/2016. Settlement discussions continue. Settlement Conference set for 12/2/2016 @ 3:30 PM. (Caggiano, Diana) (Entered: 11/15/2016)
32 Minute Entry for Settlement Conference proceeding held before Magistrate Judge Cheryl L. Pollak on 12/2/2016. Settlement discussions continue. The next settlement conference is scheduled for 12/5/2016 at 2:00 P.M. (Rao, Sony) (Entered: 12/02/2016)

Case: 1:15-cv-6733 As of: 05/16/2018 09:55 AM EDT 6 of 9

12/05/2016
12/12/2016 12/27/2016
12/30/2016 12/30/2016 01/05/2017 01/19/2017
03/01/2017
03/21/2017 03/22/2017 03/29/2017 04/20/2017 04/20/2017 05/01/2017 05/11/2017 05/12/2017

33 MINUTE ENTRY for Settlement Conference proceeding held before MJ Pollak on 12/5/2016. Defendant to submit status letter by 12/9/16. If no settlement, answer due 12/13/16; plaintiff to file class certification motion by 12/23/16; defendant's response due 1/13/17; reply 1/27/17. (Caggiano, Diana) (Entered: 12/05/2016)
34 MINUTE ENTRY for Telephone Conference proceeding before MJ Pollak on 12/12/16. Parties to meet and confer by 12/23. Settlement conference set for January 6, 2017 at 4:00 p.m. (Singer, Jacob) (Entered: 12/12/2016)
ELECTRONIC ORDER: In an ex−parte letter submitted to the Court on December 23, 2016, plaintiffs asked this Court to order someone from the Comptroller's office with settlement authority to be present during the settlement conference scheduled for 1/6/2017. Defendants are directed to respond to this request with objections, if any, by 12/30/2016. So Ordered by Magistrate Judge Cheryl L. Pollak on 12/27/2016. (Rao, Sony) (Entered: 12/27/2016)
35 MOTION to Adjourn Conference from Jan. 6th to Jan 4th at 3:30 PM by City of New York. (Bowe, Martin) (Entered: 12/30/2016)
ELECTRONIC ORDER granting 35 : The settlement conference previously set for 1/6/17 has been rescheduled to January 4, 2017 at 3:30 p.m. So Ordered by Magistrate Judge Cheryl L. Pollak on 12/30/2016. (Rao, Sony) (Entered: 12/30/2016)
36 MINUTE ENTRY for Settlement Conference proceeding held before MJ Pollak on 1/4/2017. Settlement discussions continue. Settlement Conference set for 1/19/2017 @ 4:30 PM. (Caggiano, Diana) (Entered: 01/05/2017)
37 MINUTE ENTRY for Settlement Conference proceeding before MJ Pollak on 1/19/17. Plaintiffs to draft settlement agreement and notice by 2/3. Defendant to respond by 2/17. Parties to confer on issues by 2/24. Status Conference set for March 1, 2017 at 3:00 p.m. (Singer, Jacob) (Entered: 01/19/2017)
38 MINUTE ENTRY for Status Conference proceeding held before MJ Pollak on 3/1/2017. Plaintiff to provide response to draft by 3/2/17. Defendant to respond by 3/9/17. Settlement Conference set for 3/24/2017 @ 2:30 PM. (Caggiano, Diana) (Entered: 03/01/2017)
39 MOTION to Adjourn Conference by City of New York. (Bowe, Martin) (Entered: 03/21/2017)
ELECTRONIC ORDER granting 39 ; The settlement conference previously set for 3/24/17 has been adjourned to 3/29/2017 at 9:30 AM. So Ordered by Magistrate Judge Cheryl L. Pollak on 3/22/2017. (Rao, Sony) (Entered: 03/22/2017)
40 MINUTE ENTRY for a Settlement Conference proceeding held before MJ Pollak on 3/29/2017. Settlement discussions continue. Settlement Conference set for 4/21/2017 @ 9:00 AM. (Caggiano, Diana) (Entered: 03/29/2017)
41 MOTION to Adjourn Conference by City of New York. (Bowe, Martin) (Entered: 04/20/2017)
ELECTRONIC ORDER granting 41 : The settlement conference previously set for 4/21/2017 is hereby adjourned to May 1, 2017 at 3 p.m. So Ordered by Magistrate Judge Cheryl L. Pollak on 4/20/2017. (Rao, Sony) (Entered: 04/20/2017)
42 MINUTE ENTRY for Settlement Conference proceedings before MJ Pollak on 5/1/17. Settlement discussions continue. Settlement Conference set for May 11, 2017 at 9:30 a.m. (Singer, Jacob) (Entered: 05/01/2017)
43 MINUTE ENTRY for Settlement Conference proceeding held before MJ Pollak on 5/11/2017. Settlement discussions continue. Status Report due by 5/22/2017. (Caggiano, Diana) (Entered: 05/11/2017)
44 ORDER, the New York City Department of Correction is directed to unseal any known social security numbers and last known addresses for the identified putative settlement class members and to provide that information to counsel for the City. So Ordered by Magistrate Judge Cheryl L. Pollak on 5/11/2017. (Lee, Tiffeny) (Entered: 05/12/2017)

Case: 1:15-cv-6733 As of: 05/16/2018 09:55 AM EDT 7 of 9

05/23/2017 05/23/2017 05/31/2017 06/12/2017 06/19/2017 06/20/2017 06/29/2017 07/06/2017 07/06/2017 08/15/2017 08/15/2017 08/17/2017 08/17/2017
08/23/2017
08/23/2017

45 Joint MOTION to Adjourn Conference and to Provide Status Report on Settlement Discussions by Rajab Asep, Christopher Chandler, Jamal Coleman, Allana Dixon, Chauncey Miranda, Roy Parker, Cesar Rivera. (Reinert, Alexander) (Entered: 05/23/2017)
ELECTRONIC ORDER granting 45 Settlement Conference is set for 5/31/2017 @ 11:30 AM before Magistrate Judge Cheryl L. Pollak. So Ordered by Magistrate Judge Cheryl L. Pollak on 5/23/2017. (Caggiano, Diana) (Entered: 05/23/2017)
46 MINUTE ENTRY for Settlement Conference proceeding held before MJ Pollak on 5/31/2017. Parties drafting settlement papers. Status Conference set for 6/21/2017 @ 9:30 AM. (Caggiano, Diana) (Entered: 05/31/2017)
47 Letter Regarding Referral to Magistrate Judge by Rajab Asep, Christopher Chandler, Jamal Coleman, Allana Dixon, Chauncey Miranda, Roy Parker, Cesar Rivera (Reinert, Alexander) (Entered: 06/12/2017)
48 MOTION to Adjourn Conference by City of New York. (Bowe, Martin) (Entered: 06/19/2017)
ELECTRONIC ORDER granting 48 : The status conference previously set for 6/21/2017 is hereby rescheduled to 6/29/2017 at 9:30 a.m. So Ordered by Magistrate Judge Cheryl L. Pollak on 6/20/2017. (Rao, Sony) (Entered: 06/20/2017)
49 MINUTE ENTRY for Status Conference proceeding held before MJ Pollak on 6/29/2017. Parties are to work out remaining issues and submit memo to Court. (Rao, Sony) (Entered: 06/29/2017)
50 MOTION to Unseal Document , MOTION for Protective Order by Rajab Asep, Christopher Chandler, Jamal Coleman, Allana Dixon, Chauncey Miranda, Roy Parker, Cesar Rivera. (Attachments: # 1 Proposed Order, # 2 Exhibit) (Reinert, Alexander) (Entered: 07/06/2017)
51 ORDER granting 50 Motion to Unseal Document; granting 50 Motion for Protective Order. So Ordered by Magistrate Judge Cheryl L. Pollak on 7/6/2017. (Caggiano, Diana) (Entered: 07/06/2017)
52 CONSENT to Jurisdiction by US Magistrate Judge by Rajab Asep, Christopher Chandler, Jamal Coleman, Allana Dixon, Chauncey Miranda, Roy Parker, Cesar Rivera. (Reinert, Alexander) (Entered: 08/15/2017)
53 Consent MOTION for Leave to Electronically File Document under Seal by Rajab Asep, Christopher Chandler, Jamal Coleman, Allana Dixon, Chauncey Miranda, Roy Parker, Cesar Rivera. (Reinert, Alexander) (Entered: 08/15/2017)
Case no longer referred to Magistrate Judge Cheryl L. Pollak. (Barrett, C) (Entered: 08/23/2017)
54 CONSENT to Jurisdiction by US Magistrate Judge. Case reassigned to Magistrate Judge Cheryl L. Pollak for all further proceedings. Judge Jack B. Weinstein no longer assigned to case. Please download and review the Individual Practices of the assigned Judge, located on our website. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. (Barrett, C) (Entered: 08/23/2017)
ELECTRONIC ORDER granting 53 Motion for Leave to Electronically File Document under Seal. Counsel is directed to file the original document under seal as a separate entry. Instructions on filing sealed documents on ECF are located at www.nyed.uscourts.gov. The parties' letter dated August 15, 2017, 53 , was itself filed under seal, but appears not to contain sensitive or prejudicial information. The parties are directed to advise the Court of their position on whether 53 should remain under seal. So Ordered by Magistrate Judge Cheryl L. Pollak on 8/23/2017. (Blase, Brendan) (Entered: 08/23/2017)
55 Consent MOTION for Leave to Electronically File Document under Seal by Rajab Asep, Christopher Chandler, Jamal Coleman, Allana Dixon, Chauncey Miranda, Roy Parker, Cesar Rivera. (Attachments: # 1 Exhibit B to stipulation of settlement) (Reinert, Alexander) (Entered: 08/23/2017)

Case: 1:15-cv-6733 As of: 05/16/2018 09:55 AM EDT 8 of 9

08/23/2017
08/29/2017 08/29/2017 12/06/2017 12/11/2017
12/15/2017 12/18/2017 12/18/2017 01/06/2018 01/08/2018 02/12/2018 02/12/2018 03/19/2018 03/19/2018 03/26/2018 03/29/2018

56 MOTION to Certify Class Conditionally for Settlement, Preliminary Approval of Class Action Settlement, Appointment of Plaintiffs' Counsel as Class Counsel, and Appointment of Settlement Administrator by Rajab Asep, Christopher Chandler, Jamal Coleman, Allana Dixon, Chauncey Miranda, Roy Parker, Cesar Rivera. (Attachments: # 1 Declaration, # 2 Exhibit 1 to Declaration of Alexander A. Reinert (Stipulation), # 3 Memorandum in Support) (Reinert, Alexander) (Entered: 08/23/2017)
ORDER granting 55 Motion for Leave to Electronically File Document under Seal. So Ordered by Magistrate Judge Cheryl L. Pollak on 8/29/2017. (Blase, Brendan) (Entered: 08/29/2017)
ELECTRONIC ORDER re 53 : In light of the parties' letter dated August 23, 2017, the Court orders that 53 be unsealed. So Ordered by Magistrate Judge Cheryl L. Pollak on 8/29/2017. (Blase, Brendan) (Entered: 08/29/2017)
57 Letter Advising Court of Recent Decision by United States Court of Appeals for the Second Circuit by Rajab Asep, Christopher Chandler, Jamal Coleman, Allana Dixon, Chauncey Miranda, Roy Parker, Cesar Rivera (Reinert, Alexander) (Entered: 12/06/2017)
58 MEMORANDUM AND ORDER granting 56 Motion to Conditionally Certify Class for Settlement. As explained in the attached Memorandum and Order, the Court grants plaintiffs' motions for preliminary approval of the class settlement, for conditional class certification, and for the appointment of plaintiffs' counsel as Class Counsel. The parties are ORDERED to submit proposed dates for the fairness hearing to the Court as soon as possible, so the Court may select a date to be included on the notice to class members. The parties shall make a copy of the attached Memorandum and Order available on the class website described in the Stipulation. So Ordered by Magistrate Judge Cheryl L. Pollak on 12/11/2017. (Blase, Brendan) (Entered: 12/11/2017)
59 Letter Proposing Date for Fairness Hearing by Rajab Asep, Christopher Chandler, Jamal Coleman, Allana Dixon, Chauncey Miranda, Roy Parker, Cesar Rivera (Reinert, Alexander) (Entered: 12/15/2017)
ELECTRONIC NOTICE OF HEARING: The Court adopts the date proposed by the parties in 59 their letter. Fairness Hearing set for 9/10/2018 at 10:00 AM in Courtroom 13B South before Magistrate Judge Cheryl L. Pollak. (Blase, Brendan) (Entered: 12/18/2017)
ELECTRONIC SCHEDULING ORDER: The parties shall file a Status Report by 2/12/2018. So Ordered by Magistrate Judge Cheryl L. Pollak on 12/18/2017. (Blase, Brendan) (Entered: 12/18/2017)
60 MOTION to Unseal Document Last Known Addresses at NYC Department of Probation by City of New York. (Attachments: # 1 Proposed Order Unsealing) (Bowe, Martin) (Entered: 01/06/2018)
61 ORDER granting 60 Motion to Unseal Document. So Ordered by Magistrate Judge Cheryl L. Pollak on 1/8/2018. (Caggiano, Diana) (Entered: 01/08/2018)
62 STATUS REPORT by Rajab Asep, Christopher Chandler, Jamal Coleman, Allana Dixon, Chauncey Miranda, Roy Parker, Cesar Rivera (Reinert, Alexander) (Entered: 02/12/2018)
63 ENDORSED STATUS REPORT ORDER re 62 . The parties are directed to submit another Status Report by 3/30/2018. So Ordered by Magistrate Judge Cheryl L. Pollak on 2/12/2018. (Blase, Brendan) (Entered: 02/12/2018)
64 Objection to Class Action Settlement filed by Ryan Jhagroo. (Barrett, C) (Entered: 03/20/2018)
65 NOTICE of "Facts to Objection," filed by Ryan Jhagroo. (Galeano, Sonia) (Entered: 03/23/2018)
66 Objection to Class Action Settlement filed by Allen Proctor. (Lee, Tiffeny) (Entered: 03/26/2018)
67 STATUS REPORT by Rajab Asep, Christopher Chandler, Jamal Coleman, Allana Dixon, Chauncey Miranda, Roy Parker, Cesar Rivera (Reinert, Alexander) (Entered:

Case: 1:15-cv-6733 As of: 05/16/2018 09:55 AM EDT 9 of 9

05/04/2018 05/10/2018

03/29/2018)
68 Letter/Objection to Class Settlement from Shamel Rodriguez. Received in Chambers of Magistrate Judge Cheryl L. Pollak on 5/4/2018. (Blase, Brendan) (Entered: 05/04/2018)
69 Letter dated 5/2/18 from Craig Degale to USMJ Pollak, seeking to inquire whether Mr. Degale is a "member of this suite in order to rectify all matters and be granted his funds." Mr. Degale informs the Court that his release date is 8/2/18 and does not have a place of residency. Mr. Degale also states that upon his release he will inform the Court of a shelter address, where the monies may be sent. Mr. Degale further states that he "mailed the W−9 form four days before the deadline." (Galeano, Sonia) (Entered: 05/14/2018)

 
 Case 1:15-cv-06733-CLP Document 56-2 Filed 08/23/17 Page 1 of 102 PageID #: 162
EXHIBIT 1

Case 1:15-cv-06733-CLP Document 56-2 Filed 08/23/17 Page 2 of 102 PageID #: 163

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ----------------------------------------------------x

ROY PARKER; RAJAB ASEP, CHRISTOPHER CHANDLER, JAMAL COLEMAN; ALLANA DIXON; CHAUNCEY MIRANDA; and CESAR RIVERA, on behalf of themselves and all others similarly situated,

15 Civ. 06733 (JBW) (CPL)

Plaintiffs,

-against-

THE CITY OF NEW YORK,

Defendant. ----------------------------------------------------x

STIPULATION

This Stipulation (the “Stipulation”) is made and entered into on this 11th day of August,

2017 between the City of New York (the “City”) and Plaintiffs Roy Parker, Rajab Asep,

Christopher Chandler, Jamal Coleman, Allana Dixon, Chauncey Miranda, and Cesar Rivera

(collectively, the “Class Representatives”). The City and the Class Representatives shall be

referred to herein collectively as the “Parties.”

WHEREAS, this action was commenced on or about November 23, 2015; and

WHEREAS, the Class Representatives filed an Amended Complaint on or about

November 12, 2016; and

WHEREAS, the parties engaged in limited pre-answer settlement discovery including a

Rule 30(b)(6) deposition and the exchange of documentary support relevant to the methodology

for the assemblage of the Class List (defined below); and

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WHEREAS, the Parties seek to avoid additional protracted and expensive litigation and therefore agree to the entry of this Stipulation to resolve all issues that were raised in this action by the Class Representatives, both individually and as class representatives; and
WHEREAS, Defendant denies any and all liability arising out of the allegations set forth in the Complaint;

NOW, THEREFORE, with the agreement of all Par-ties, it is herehy ORDERED,

ADruDGED, AND DECREED as follows:

DEFINITIONS
1. "Punitive Segregation" (also referred to as "PSEG") shall mean the segregation of

an inmate from the general population pursuant to a disciplinary sanction imposed after a

hearing, including without limitationplacement in the Central PSEG Unit ("CPSU"), or the

Mental Health Unit for Infracted Inmates ("MHAUI").
2. The "Historical Time Practice" shall mean the former practice of the New York

City Department of Correction ("NYCDOC"), implemented pursuant to NYCDOC Directive

6500R-B (attached hereto as Exhibit A), that when a detainee housed in a NYCDOC facility was

found to have violated a disciplinary rule, and where such detainee was sentenced to placement

in PSEG for a period of time as a result of such disciplinary violation, and where such detainee

was released from such NYCDOC facility prior to completing such PSEG sentence, and where

such person subsequently was readmitted to a NYCDOC facility, such detainee could be placed

in PSEG to finish the sentence imposed for the disciplinary violation committed during the prior

detention.
3.

"Historical Time" shall mean the time spent by a pretrial detainee in PSEG

pursuant to the Historical Time Practice.

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4. The "Settlement Class" shall mean all people who, while pretrial detainees at any
time between November 23,2012 and September 16,2015, were confined in PSEG in a NYCDOC facility pursuant to the Historical Time Practice. The Settlement Class shall not include (i) inmates who were, when they seled Historical Time, in NYCDOC custody due to an alleged or adjudicated parole violation or (ii) New York State Department of Corrections and Community Supervision prisoners (or convicted prisoners from other jurisdictions) who were, when they served Historical Time, in NYCDOC custody temporarily for purposes of coutt appearances or pursuant to warants or as of the date of conviction by verdict or plea or (iii) any person serving a sentence of incarceration.
5. A "Class Member" shall mean any person who is a member of the Settlement
Class who does not file a timely Opt-Out Form as provided in Paragraph 90 of this Stipulation.
6. An "Eligible Class Member" shall mean (a) any Class Member who submits a
Claim Form in compliance with this Stipulation, who submits a signed Substitute W-9 Form, and who either submits anotarized Claim Form or satisfies the identification requirement set forth in Paragraphs 62-64 of this Stipulation, and whose claim is not otherwise barred for the reasons set forth herein, or (b) any Class Member who files a meritorious Challenge in compliance with Paragraphs 86 through 89 of this Stipulation.
7. An "Adolescent Class Member" shall mean any Class Member who was under the
age of eighteen years old when he or she was confined in PSEG in a NYCDOC facility pursuant to the Historical Time Practice.
8. A "SMI Class Member" shall mean any Class Member who was classified by the
City's designee as having a serious mental illness ("SMI") prior to being confined or during his br her confinement in PSEG in a NYCDOC facility pursuant to the Historical Time Practice.
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9. "Preliminary District Court Approval" shall mean an order issued by the Court,
prior to holding a fairness hearing or granting final approval of this Stipulation, conditionally certifying the Settlement Class and granting preliminary approval of this Stipulation.
10. "Final District Court Approval" shall mean an order issued by the Courl after the
Claim Form Deadline, and after the Court has been informed of the percentage of Class Members who have submitted Claim Forms, and following a faimess hearing, finally certifying the Settlement Class, granting final approval of this Stipulation, adjudging the terms hereof to be fair, reasonable, and adequate.
11. The "Anticipated Maximum Total Payment" shall be the amount of money
necessary to pay each Adolescent Class Member two hundred dollars ($200.00) for each day he or she was confined in PSEG in a NYCDOC facility pursuant to the Historical Time Practice; to pay each SMI Class Member two hundred dollars ($200.00) for each day he or she was confined in PSEG in a NYCDOC facility pursuant to the Historical Time Practice; and to pay each Class Member who is not an Adolescent Class Member or a SMI Class Member one hundred and seventy-five dollars ($175.00) for each day he or she was confined in PSEG in a NYCDOC facility pursuant to the Historical Time Practice.
12. The "Class List" shall mean the list attached hereto as Exhibit B. 13. The "Class List Challenge Procedure" shall mean the procedure set forth in
Paragraphs 86 through 89 of this stipulation.
14. A "Challenge" shall mean a challenge submitted by a Class Member or person not
included on the Class List who claims to be a Class Member pursuant to the Class List Challenge Procedure.
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15. The "Amended Class List" shall mean the list that shall be generated after all
Challenges submitted through the Class List Challenge Procedure have been resolved showing
each Class Member's Tentative Individual Payment Amount or, if such amount has been
modified by the result of any Challenge, such Class Member's Modified Tentative Individual Payment Amount.
L6. The "Actual Maximum Total Payment" shall mean the aggregate amount that the
City would be obligated to pay, after all Challenges submitted through the Class List Challenge Procedure have been resolved and the Amended Class List has been generated, if all Class Members timely submit Claim Forms.
17. The "Tentative Individual Payment Amount" shall be the amount of money that
the Parties tentatively expect the City to pay to each individual Class Member as shown
tentatively on the Class List if such Class Member later submits a timely Claim Form.
18. The "Modified Tentative Individual Payment Amount" shall be a Class Member's
Tentative Individual Payment Amount as modified by the result of any Challenge.
19. The "Final Individual Payment Amount" shall be the amount of money that the if City shall pay to each individual Class Member as shown finally on the Amended Class List
such Class Member timely submits a Claim Form, submits a signed Substitute W-9 Form, and either submits anotarizedClaim Form or satisfies the identification requirement set forth in Paragraphs 62-64 of this Stipulation.
20. The "Last Known Address" of a Class Member shall mean the mailing address
that the Parties believe to be his or her current mailing address, or, if his or her current address is unknown, the last known mailing address for such Class Member.
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21. The "Last Known Address List" shall be the list of Last Known Addresses for
every Class Member that the Parties shall develop and that the Parties and the Administrator shall update from time to time pursuant to Paragraphs 77 through 78 of this Stipulation.
22. The'Notice Form" shall mean a document substantially in the form of the
document attached hereto as Exhibit C, or in such other form that may be approved by the Courl in the Preliminary District Court Approval, that shall be mailed to each Class Member as set forth on the Amended Class List summarizing the terms and conditions of this Stipulation, providing such Class Member with individualized notice of the amount of compensation he or she may receive under this Stipulation by calculating of the relevant number of days multiplied by the relevant per diem, and notifying such Class Member (a) that in order to be eligible to receive a Final Individual Payment Amount, (i) he or she must timely submit a Claim Form (as well as a Challenge Form if he or she believes he or she is entitled to greater compensation due to a greater number of days than set forth on their individualized Notice Form), (ii) he or she must either submit anotaized Claim Form or comply with the identification requirement set forth in Paragraphs 62-64 of this Stipulation, and (iii) he or she must submit a signed Substitute W-9 Form; and (b) that any payment made hereunder is subject to reduction for any outstanding
New York child support or Medicare liens, if any. The Notice Form shall contain instructions
about how any of the aforementioned document(s) may be submitted to the Administrator by email.
23. The "Notice Summary" shall mean a document substantially in the form of the
document attached hereto as Exhibit D, or in such other form that may be approved by the Court in the Preliminary District Court Approval.
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24. The'Notice Date" shall mean forty-five (45) days after Preliminary District Court
Approval.
25. The "Claim Fom" shall mean a document substantially in the form of the
document attached hereto as Exhibit E, or in such other form that may be approved by the Court in the Preliminary District Court Approval, that each Class Member must timely submit in order to be eligible to receive a Final Individual Payment Amount.
26. The Substitute W-9 Form shall mean the document attached hereto as Exhibit F. 27. The "Opt-Out Form" shall mean the document attached hereto as Exhibit G. 28. The "Initial Opt-Out Deadline" shall mean sixty (60) days from the Notice Date
(except as provided in Paragraph 94 of this Stipulation).
29. The "Final Opt-Out Deadline" shall mean sixty (60) days after the Initial Opt-Out
Deadline if fewer than seventy-five percent (75%) of Class Members identified on the Class List submit Claim Forms or Opt-Out Forms prior to the Initial Claim Form Deadline.
30. The "Challenge Deadline" shall mean sixty (60) days from the Notice Date. 31. The "Initial Claim Form Deadline" shall mean sixty (60) days from the Notice
Date.
32. The "Claim Form Deadline Warning" shall mean the document attached hereto as
Exhibit H.
33. The "Identification Warning Letter" shall mean the document attached hereto as
Exhibit I.
34. The "W-9 Form Warning Letter" shall mean the document attached hereto as
Exhibii J.
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35. The "W-9 Form and Identification Warning Letter" shall mean the document
attached hereto as Exhibit K.
36. The "Final Claim Form Deadline" shall mean sixty (60) days after the Initial
Claim Form Submission Deadline if fewer than seventy-five percent (75%) of Class Members identified on the Class List submit Claim Forms prior to the Initial Claim Form Deadline.
37, An "Objection" shall mean any ohjection made pursuant to F.R.C.P. 23(e)(5) to
any aspect of this Stipulation or the Preliminary District Court Approval.
38. An "Objector" shall mean a person who files an Objection. 39. The "Initial Objection Deadline" shall mean sixty (60) days from the Notice Date, 40. The "Final Objection Deadline" shall mean sixty (60) days after the Initial
Objection Deadline if fewer than seventy-five percent (75%) of Class Members identified on the Class List submit Claim Forms or Opt-Out Forms prior to the Initial Claim Form Deadline.
41. The "Administrator" shall mean the entity retained to disseminate the Notice
Form, process the Opt-Out Forms and Claim Forms, and otherwise administer this settlement according to the terms and procedures set forth in this Stipulation.
42. The "Administrator Order" shall mean the proposed order attached hereto as
Exhibit L, which Class Counsel shall ask the Court to enter together with Preliminary Approval.
43. The "Fairness Hearing" shall mean the hearing held by the Court pursuant to
F.R.C.P. 23(e)(2), which shall occur after the Claim Form Deadline.
44. The "Effective Date for Payment" shall mean the date when the City's obligation
to pay the Eligible Class Members becomes effective (with individual checks being generated pursuant to the processes set forth below). The Effective Date for Payment shall be one day after the date upon which each of the following has occurred: (1) entry of Final District Court
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Approval; and (2) the time for appeal of the Final District Court Approval by an Objector expires, or if an appeal from the Final District Coutt Approval, or any portion thereof, is taken by an Objector, the appeal by such Objector of the Final District Court Approval is resolved. For
the avoidance of doubt , any appeal by Class Counsel or the City relating to attorneys' fees or
costs shall not delay the Effective Date for Payment beyond one day after the entry of Final District Court Approval,
45. "Released Claims" shall mean any and all past or present claims or causes of
action (including any suits, petitions, demands or other claims in law, equity, or arbitration), and any and all allegations of liability or damages, of whatever kind, nature, or description, direct or indirect, in law, equity, or arbitration, absolute or contingent, whether class or individual in nature, including both known claims and Unknown Claims, asserted or unasserted, for monetary and non-monetary relief (including without limitation attomeys' fees, costs or disbursements incurred by the Class Representatives and/or the Settlement Class and/or any Class Member in connection with or related to this action), that were or could have been assefted by the Class Representatives andlor any Class Member against the Released Parties based upon or arising out of the same transactions, series of connected transactions, occuffences or nucleus of operative facts that form the basis of the claims that were asserted in this action, including any and all claims asserted in the original and subsequently amended complaints filed in this action. The Released Claims do not include or cover any actions or omissions occurring after the date Preliminary Approval is granted, nor do the Released Claims include or cover any claims stemming from any certified class action, other than this action, in which a Class Representative or Class Member in this action already is a member of such class.
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46. "Released Parties" means the City of New York and of its parents, subsidiaries,
affiliates predecessors, successors and/or assigns and in the case ofall such entities, their
respective past and present representatives, officers, directors, attorneys, agents, employees, privies and insurers.
47. "Unknown Claims" shall mean any and all Released Claims about which any
Class Representative or Class Member does not know or does not suspect to exist in their favor
at the time of the release of the Released Parties, which if known by them might have affected their decision(s) with respect to the settlement provided for in this Stipulation. With respect to any and all Released Claims, the Parties stipulate and agree that upon the end of the claims
period, the Class Representatives and Class Members shall waive any and all provisions, rights,
and benefits conferred by any law of any state or territory of the United States or principle of
coilrmon law with respect to Unknown Claim. The Parties acknowledge, and all Class Members by operation of law shall be deemed to have acknowledged, that the inclusion of "Unknown Claims" in the definition of Released Claims was bargained for and was a material element of the settlement provided for in this Stipulation. For the avoidance of doubt, Unknown Claims do not include any claims that are not within the definition of Released Claims.
48. "Class Counsel" shall mean Alexander A. Reinert, Esq. and Cuti Hecker Wang
LLP, collectively. MUTUAL FULL COOPERATION
49. The Parties agree that they shall fully cooperate with each other and make good
faith efforts to effectuate and implement all terms and conditions of this Stipulation.
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RELEASES
50. Upon the Effective Date for Payment, in consideration for the agreements by the
Parties and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, all Class Representative and Class Members, on behalf of themselves, their heirs, executors, administrators, predecessors, successors, and assigns shall hereby release, remise, and forever discharge the Released Parties (as defined above) from each and every Released Claim, and shall forever be barred and enjoined from initiating, continuing, filing, or othetwise prosecuting any Released Claim against any of the Released Parties. Unless a Class Member opts out of the Settlement pursuant to Paragraph 90 of this Stipulation, this Release shall apply whether or not such Class Member has executed and delivered a Claim Form or otherwise actively participated in the Settlement.
5l. Every Class Member shall be deemed to have knowingly and voluntarily waived,
released, discharged, and dismissed the Released Claims, with full knowledge of any and all rights they may have, and they hereby assume the risk of any mistake in fact in connection with the true facts involved, or with regard to any facts which are now unknown to them.
52. The Parties and Class Members acknowledge that the covenants and promises
made by the City herein constitute adequate consideration in exchange for the Released Claims.
53. For the avoidance of doubt, nothing in this Stipulation shall be construed (i) to bar
any claims by Class Representative or Class Members based on or arising out of events occurring after the date Preliminary Approval is granted or (ii) any claims by Class Representatives or Class Members based on or arising out of claims in any certified class action, other than this action, in which the Class Representative or Class Member already is a member of such class.
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CALCULATION OF PAYMENTS TO CLASS MEMBERS
54. The City shall pay each Eligible Class Member as follows, on a per diem basis,
for each day such Class Member was confined in PSEG in a NYCDOC facility pursuant to the Historical Time Practice. In calculating the number of such days, both the day that a Class Member was first confined in PSEG and the day that a Class Member was last confined in PSEG shall each count as a day of confinement in PSEG. In addition, the number of days of Historical Time served by each Class Member shall be calculated as follows: if a Class Member was serving a disciplinary sentence that included both Historical Time and a sentence to PSEG that was not Historical Time, such Class Member served his or her Historical Time days first.
55. For Adolescent Class Members, the City shall pay each Eligible Class Member
two hundred dollars ($200.00) for each day he or she was confined in PSEG in a NYCDOC facility pursuant to the Historical Time Practice.
56. For SMI Class Member, the City shall pay each Eligible Class Member two
hundred dollars ($200.00) for each day he or she was confined in PSEG in a NYCDOC facility pursuant to the Historical Time Practice.
57. For Class Members who are not Adolescent Class Members or a SMI Class
Members, the City shall pay each Eligible Class Member one hundred and seventy-five dollars ($175.00) for each day he or she was confined in PSEG in a NYCDOC facility pursuant to the Historical Time Practice.
58. The City represents that the Class List accurately shows, to the best of the City's
knowledge, (i) the identity of every Class Member; (ii) whether such member is an Adolescent Class Member and/or a SMI Class Member; and (iii) the number of days each Class Member was confined in PSEG in a NYCDOC facility pursuant to the Historical Time Practice.
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59. Based on the information set forth in the Class List, the amount of the Anticipated
Maximum Total Payment is $4,963,175.
60. To the extent that any person not shown on the Class List believes that he or she
is a Class Member, andlor to the extent that any Class Member who has not been listed on the Class List as a Adolescent Class Member or a SMI Class Member believes that he or she is a Adolescent Class Member and/or a SMI Class Member, and/or to the extent that any Class Member believes that he or she was confined in PSEG in a NYCDOC facility pursuant to the Historical Time Practice for a number of days that exceeds the number of days shown on the Class List, such person may avail himself or herself of the Class List Challenge Procedure set forth in Paragraphs 86 through 89 of this Stipulation.
61. As soon as practicable after all Challenges submitted through the Class List
Challenge Procedure have been resolved following the Challenge Deadline, the Parties shall generate the Amended Class List.
IDENTIFICATION REOUIREMENT
62. In order to be entitled to collect his or her Final Individual Payment Amount, a
Class Member shall first establish his or her identity either (a) by submitting anotarized, Claim Form or (b) bV providing the Administrator with (i) any available electric, gas, water, telephone, cable, or other utility bills in such Class Member's name; (ii) a lease in such Class Member's
name; (iii) a driver's license or other government-issued identification; (iv) a passport or visa; (v)
a green card or other identification issued by the Immigration and Naturalization Service or the United States Immigration and Customs Enforcement; or (vi) other documentation that reliably establishes such Class Member's identity.
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63. For any Claim Form submitted without being notarized, promptly after receiving
such Class Member's identification document(s), the Administrator shall provide copies of such document(s) to Corporation Counsel for the City of New York and Class Counsel. If the City believes that such document(s) is/are insufficient to establish such Class Member's identity, the City shall so inform Class Counsel in writing within ten (10) business days of the Administrator's provision of such document(s), and the Corporation Counsel for the City of New York and Class Counsel shall meet and confer within five (5) business days thereafter. If the City and Class Counsel are unable to agree about whether a Class Member has sufficiently established his or her identity, and if Class Counsel has a good faith and demonstrable basis to believe that such Class Member has sufficiently established his or her identity, then any such dispute shall be submitted to the assigned Magistrate Judge for a final and binding determination with no further review by any Court.
64. A Class Member submitting a non-notarizedClaimForm shall have the option to
submit identification to the Administrator at any time prior to one hundred and eighty (180) days after Final District Court Approval. In the event that the City disputes whether any Class Member has provided satisfactory proof of identity as set forth inParagraph 62(b) above, and such dispute is resolved in such Class Member's favor, such Class Member shall be deemed to have provided proof of identity on the date that such Class Member provided the disputed identification document(s).
PRELIMINARY COURT APPROVAL
65. The Parties shall seek to have the Settlement Class certified pursuant to F.R.C.P.
23(b)(3).
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66. No later than twenty-one (21) days after this Stipulation is executed, Class
Counsel shall move for Preliminary District Court Approval approving the terms of this Stipulation and the form of the Notice Form, the Notice Summary, the Claim Form, and the OptOut Form, setting deadlines for mailing the Notice Fotms, posting the Notice Summary, and filing Challenges, Claim Forms, Opt-Out Fotms, and Objections, entering the Administrator Order, and scheduling the Fairness Hearing.
67. In moving for Preliminary District Court Approval, Class Counsel shall ask the
Court to certify the Settlement Class based on the following definition: any person held in a NYCDOC facility between November 23,2012 and September 16, 2015, who, while a pretrial detainee, was confined to PSEG pursuant to the Historical Time Practice, not including (i) inmates who were, when they served Historical Time, in NYCDOC custody due to an alleged or adjudicated parole violation or (ii) New York State Department of Corrections and Community Supervision prisoners (or convicted prisoners from other jurisdictions) who were, when they served Historical Time, inNYDOC custody temporarily forpurposes of court appearances or pursuant to warrants or as of the date of conviction by verdict or plea.
68. If Preliminary District Court Approval is denied, the Parties shall work together
diligently and in good faith to remedy the basis or bases for such denial, and Class Counsel shall file a renewed motion for Preliminary District Court Approval as soon as practicable.
69. If the Parties are unable to obtain Preliminary District Court Approval
notwithstanding their diligent efforts, then this Stipulation shall become null and void in its entirety, and the Parties shall be restored to their positions immediately prior to the execution of this Stipulation.
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ATTORNEYS' FEES AND LITIGATION COSTS
70. The Final Individual Payment Amounts shall not include Class Counsel's
reasonable attorneys' fees or litigation costs, which shall be awarded by the Court separately, and paid by the City to Class Counsel separately, in addition to the amount of the Final Individual Payment Amounts.
71. Pursuant to F.R.C.P. 23(h), the Parties agree that the Court shall award Class
Counsel reasonable attorneys' fees and costs. Class Counsel shall not move for attorneys' fees or costs without first presenting the City with a demand and making good-faith effofts to
negotiate a mutually-agreeable resolution with the City, including by seeking the assistance of the assigned Magistrate Judge. Counsel will not seek attorneys' fees for any work performed
related to Challenges which are determined by the parties or by the Court to be without merit.
72. For the avoidance of doubt, the City shall pay Class Counsel the entirety of the
attorneys' fees and costs awarded by the Court, and each Eligible Class Member shall receive the entirety of his or her Final Individual Payment Amount.
73. Class Counsel shall provide the City with executed Form W-9s containing Tax
Payer Identification Numbers for Class Counsel. The City shall issue Form 1099s to Class Counsel for the payments made to Class Counsel.
THE CLAIMS ADMINISTRATION PROCESS
74. The City shall pay the entirety of all costs and expenses associated with the claims
administration process, including without limitation the Administrator's fees, all costs associated with the notice process, and all costs associated with the payment process.
75. The Administrator shall be The Garden City Group, Inc. The Parties and the
Administrator shall be bound by and adhere to the Terms of this Stipulation. The Corporation
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Counsel for the City ofNew York shall ensure that the Administrator complies with the terms of
this Stipulation.
76. The Administrator shall submit invoices for its selices, costs, and expenses on a
monthly basis to the Corporation Counsel for the City of New York and to Class Counsel, and the Corporation Counsel for the City of New York shall initiate processing of such invoices within sixty (30) days of receipt, with payment electronically transferred to the Administrator within forty-five (45) days.
77. Promptly after this Stipulation is executed, the Corporation Counsel for the City
of New York, Class Counsel, and the Administrator shall work together constructively and in
good faith to jointly create the Last Known Address List. The Corporation Counsel for the City
of New York, Class Counsel, and the Administrator shall use their best efforts to make the Last Known Address List as comprehensive and accurate as practicable, including by the City accessing all relevant and reasonably available NYCDOC databases and, where appropriate, by the Administrator performing address searches for each Class Member using reasonably available public and proprietary electronic resources that collect data from various sources such as utility records, property tax records, motor vehicle registration records, and credit bureaus. Any disputes between the Parties with respect to the appropriate scope of such searches shall be submitted to the assigned Magistrate Judge for a final and binding determination with no further review by any Court, but in no event will the Parties request that the Court direct the City to research all City databases.
78. The Administrator shall update the Last Known Address List from time to time
when new information about a Class Member's Last Known Address is obtained from the City, from Class Counsel, or from Class Members.
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79. Promptly after Preliminary District Court Approval, the Administrator shall
generate drafts of the Notice Forms (in both English and Spanish) that will be mailed to each Class Member. The draftNotice Form for each Class Member shall be in the form of the template attached hereto as Exhibit C (or in such other form(s) as may be approved by the District Court in the Preliminary District Court Approval), customized based on whether such Class Member is an Adolescent Class Member and/or a SMI Class Member, or neither. The draft Notice Form for each Class Member shall set forth the Tentative Individual Payment Amount for such Class Member.
80. No later than thirty (30) days after Preliminary District Court Approval, the City
shall present the Notice Form for each such Class Member to Class Counsel for review and approval.
81. On or before the Notice Date, the Administrator shall cause the Notice Form for
each such Class Member, the Claim Form, and the Opt-Out Form (with each form in both English and Spanish) to be mailed to such Class Member at his or her Last Known Address.
82. If the envelope that was mailed to any Class Member is retumed with a
forwarding address, the Administrator shall so inform the City and Class Counsel'and shall promptly re-mail such Notice Form, Claim Form, and Opt-Out Form to such Class Member at such forwarding address.
83. If the envelope that was mailed to any Class Member is retumed as "retum to
sender" (or other similar designation), the Administrator shall so inform the City and Class Counsel and shall promptly perform a standard skip trace in an effort to attempt to ascertain the current address of such Class Member. If such address is obtained, the Administrator shall promptly re-mail such Notice Form, Claim Form, and Opt-Out Form to such Class Member at
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such address. If such address is not obtained, then Class Counsel shall make reasonable efforts
to obtain such address.
84. On or before the Notice Date, the City shall cause the Notice Summary to be
prominently posted and displayed in NYCDOC facilities (specifically, all intake areas, all law libraries, and in the court pens at the state coufihouses that are under NYCDOC control) and New York City Department of Probation facilities (specifically, in the waiting areas of the adult supervision office for each borough in New York City in locations where individuals on probation are likely to see them, and as extensively as reasonably possible), and the City shall cause English and Spanish language versions of the Notice Summary to continue to be prominently posted and displayed in such facilities until Final District Court Approval.
85. On or before the Notice Date, the Administrator shall establish a website, email
address, and toll-free telephone number (that is accessible to both English and Spanish speakers) through which actual and prospective Class Members can access information, ask questions about the settlement process set forth in this Stipulation, and provide the Administrator with an updated Last Known Address.
86. Any person may, at any time before the Challenge Deadline as explained on the
Notice Summary, submit a Challenge to (i) his or her omission from the Class List; (ii) the failure to designate him or her as a Adolescent Class Member or a SMI Class Member; andlor (iii) his or her Tentative Individual Payment Amount.
87. A person may submit a Challenge by providing the Administrator (either directly if or with the assistance of Class Counsel) with his or her name; his or her NYSID number,
known; his or her social security number, if known; his or her date of birth; a reasonable
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approximation of the dates on which such person alleges to have serued Historical Time; and, the NYCDOC facility in which such person alleges to have served Historical Time.
88. Promptly after a Challenge is submitted to the Administrator, the Administrator
shall inform the Corporation Counsel and Class Counsel of the Challenge and the information that was provided. The Corporation Counsel and Class Counsel shall then work together in good faith, utilizing the same categories of documents and methodologies utilized by the Parties to generate the Class List, to determine whether the Challenge has merit. The Corporation Counsel shall provide Class Counsel with the same categories of documents and methodologies utilized by the Parties to generate the Class List within five (5) business days, and the Parties shall meet and confer within five (5) business days thereafter. If the Corporation Counsel and Class Counsel agree that the Challenge has merit, then any changes that are warranted shall be reflected on the Amended Class List, the Parties shall so inform the Administrator, and the Administrator shall so inform the person who made the Challenge by first class mail (which mailing shall include the Notice Form, the Claim Form, the Opt-Out Form, and a Substitute W-9 Form). If the Parties agree that the Challenge does not have merit, then the Parties shall inform the Administrator that the Challenge has been rejected, and the Administrator shall so inform the person who made the Challenge. If the Parties disagree about whether the Challenge has merit, then the Challenge shall promptly be submitted to the assigned Magistrate Judge for a final and binding determination. Under no circumstances shall any person submitting a Challenge be entitled to receive any documents relating to the consideration and resolution of such Challenge; any such consideration and resolution shall be undertaken by counsel for the Parties and, in the event of a dispute, by the assigned Magistrate Judge.
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89. Any Challenges submitted after the Challenge Deadline shall be null and void
unless (i) the person who submitted the Challenge demonstrates a compelling reason for his or her failure to submit the Challenge by the Challenge Deadline and (ii) it is practicable for the validity of the Challenge to be determined before the amount of the Actual Maximum Total Payment has been finally determined.
90. Any Class Member who ohooses to opt out of the settlement provided for in this
Stipulation shall mail, fax, or email a completed and signed Opt-Out Form (or other signed writing clearly evidencing such intent and containing his or her name and address) to the Administrator such that it is postmarked or received by the Administrator on or before the Initial OpGOut Deadline (or, if extended, the Final Opt-Out Deadline).
91. Any Class Member who submits an Opt-Out Form to the Administrator by the
Initial Opt-Out Deadline (or, if extended, the Final Opt-Out Deadline) shall no longer be a Class Member, shall be barred from participating in the settlement provided for in this Stipulation, shall not receive any payment from the City pursuant to this Stipulation, shall not be entitled to submit any Objection to this Stipulation or to the Preliminary District Court Approval, and shall not be bound by the release provided for in Paragraphs 50-53 of this Stipulation.
92. Any Class Member who does not submit an Opt-Out Form (or other signed
writing clearly evidencing such intent and containing his or her name and address) to the Administrator by the Initial Opt-Out Deadline (or, if extended, the Final Opt-Out Deadline) shall be deemed to have accepted the settlement and other terms of this Stipulation and shall be bound thereby and by any and all subsequent proceedings, order, and judgments in this action.
93. If fewer than seventy-five percent (75%) of Class Members identified on the
Class List submit either Claim Forms or Opt-Out Forms prior to the Initial Claim Form Deadline,
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then the Initial Opt-Out Deadline shall be extended by an additional sixty (60) days, which date shall be the Final Opt-Out Deadline.
94. Notwithstanding anything to the contrary in this Stipulation, if a Class Member's
Challenge is rejected, such Class Member shall have thirty (30) days from receipt of notice of
such rejection to file an Opt-Out Form.
95. The Administrator shall provide the Parties with bi-weekly updates regarding the
number and identity of Class Members who have provided updated Last Known Addresses, who have availed themselves of the Class List Challenge Procedure, whose Notice Forms were returned as undeliverable, who have submitted Opt-Out Forms, and/or who have submitted Claim Forms.
96. On or about fifteen (15) days before the Initial Claim Form Deadline, the
Administrator shall send the Claim Form Deadline Warning,via first class mail, to each Class Member who has not yet submitted a Claim Form at such Class Member's Last Known Address.
97. Promptly after the Initial Claim Form Deadline, the Administrator shall inform
the Parties which Class Members submitted Claim Forms prior to the Initial Claim Form
Deadline.
98. If fewer than seventy-five percent (75%) of Class Members identified on the
Class List submit Claim Forms or Opt-Out Forms prior to the Initial Claim Form Deadline, then the Initial Claim Form Deadline shall be extended by an additional sixty (60) days, which date shall be the Final Claim Form Deadline.
99. If the deadline for submitting Claim Forms is extended pursuant to the previous
Paragraph of this Stipulation, then during the sixty (60) days between the Initial Claim Form Deadline and the Final Claim Form Deadline, Class Counsel (at their own expense) shall make
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diligent efforts to contact each Class Member who has not submitted a Claim Form and inform him or her of his or her eligibility to receive compensation. Class Counsel may seek reasonable assistance from the Corporation Counsel in connection with such efforts, and the Corporation Counsel shall consider any such request for assistance.
100. Any Class Member who fails to submit a Claim Form by the Initial Claim Form
Deadline (or, if extended, by the Final Claim Form Deadline) shall not be eligible to receive his
or her Final Individual Payment Amount or other compensation pursuant to this Stipulation; provided, however, that the Administrator shall extend the Final Claim Form Deadline for up to an additional thirty (30) days on an individual basis for good cause shown.
101. Within ten (10) business days of receiving a Claim Form from a Class Member
that is not notarized and not accompanied by identification, the Administrator shall send the Identification Warning Letter to such Class Member by first class mail and include a selfaddressed stamped envelope in which such Class Member may submit either anotafizedClaim Form or his or her identification to the Administrator, as well as instructions about how such document(s) may be sent to the Administrator by e-mail.
102. Within ten (10) business days of receiving a Claim Form from a Class Member
that is not accompanied by a Substitute W-9 Form, the Administrator shall send the W-9 Form Warning Letter to such Class Member by first class mail and include a self-addressed stamped envelope in which such Class Member may submit a Substitute W-9 Form to the Administrator, as well as instructions about how such document may be sent to the Administrator by e-mail.
103. Within ten (10) business days of receiving a Claim Form from a Class Member
that is both (i) not accompanied by a Substitute W-9 Form and (ii) not notarized and not accompanied by identification, the Administrator shall send the Substitute W-9 Form and
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Identification Warning Letter to such Class Member by first class mail and include a selfaddressed stamped envelope in which such Class Member may submit a Substitute W-9 Form and either anotarized Claim Form or his or her identification to the Administrator, as well as instructions about how such document may be sent to the Administrator by e-mail.
104. As soon as practical after the Initial Claim Form Deadline (or, if extended, by the
Final Claim Form Deadline), the Parties shall calculate the amount of the Actual Maximum Total Payment based on the sum of each Eligible Class Member's Tentative Individual Payment amount or, if modified as a result of a successful Challenge, such Class Member's Modified Tentative Individual Payment amount.
105. If the Actual Maximum Total Payment exceeds the Anticipated Maximum Total
Payment by more than one percent (1%), then the City shall have the option to cancel this Stipulation by providing Class Counsel notice of such cancelation by email no later than two (2) weeks after the Actual Maximum Total Payment is calculated. If the City timely exercises such option to cancel this Stipulation, then this Stipulation shall become null and void in its entirety, and the Parties shall be restored to their positions immediately prior to the execution of this Stipulation.
106. The Administrator shall provide the City and Class Counsel, at least five (5)
business days before the Fairness Hearing, a sworn declaration by a person with knowledge declaring under penalty of perjury that the Administrator has complied with all of the tems, conditions, and procedures set forth above, and which informs the Court of the total number of or percentage of objectors and the total number of challengers.
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OBJECTIONS
107. Any Objections to this Stipulation by any Class Member shall be submitted to the
Court on or before the Objection Deadline (or, if extended, the Final Objection Deadline).
108. All Objections must be submitted to the Court in writing and must include a
detailed description of the basis of the Objection.
109. Only those Class Members who have not submitted timely Opt-Out Forms may
submit Objections to this Stipulation.
110. If fewer than seventy-five percent (75%) of Class Members identified on the
Class List submit Claim Forms or Opt-Out Forms prior to the Initial Claim Form Deadline, then the Initial Objection Deadline shall be extended by an additional sixty (60) days, which date shall be the Final Objection Deadline.
l. 1 I Any Class Member who fails to submit an Objection to this Stipulation by the
Objection Deadline (or, if extended, the Final Objection Deadline) shall be deemed to have
waived such any and all objections to this Stipulation and shall be foreclosed from making any objection (whether by appeal or otherwise) to this Stipulation andlor to the Preliminary District Court Approval.
II2. No Class Member may appear at the Fairness Hearing for the purpose of
objecting to this Stipulation and/or to the Preliminary District Court Approval unless he or she submitted an Objection to the Court on or before the Objection (or, if extended, the Final Objection Deadline).
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FINAL COURT APPROVAL
113. No later than forty (40) days before the date set by the Court for the Fairness
Hearing, Class Counsel shall move for Final District Court Approval.
ll4. If Final District Court Approval is denied, the Parties shall work together
diligently and in good faith to remedy the basis or bases for such denial, and Class Counsel shall re-move for Final District Court Approval as soon as practicable.
115. If the Parties are unable to obtain Final District Court Approval notwithstanding
their diligent efforts, then this Stipulation shall become null and void in its entirety, the Parties will arrange for notice to be provided at the City's expense informing the Class Members that the settlement was not approved, and the Parties shall be restored to their positions immediately prior to the execution of this Stipulation.
PAYMENT OF THE FINAL INDIVIDUAL PAYMENT AMOUNTS
116. Promptly after Final District Court Approval is granted, the Administrator shall
provide the City and Class Counsel with a list of all Eligible Class Members so that the City may, on a rolling basis, determine whether each person's award will need to be reduced due to New York child support liens and/or Medicare liens.
ll7. Upon the request of any Class Member or Class Counsel made prior to the
mailing of his or her check pursuant to the next Paragraph of this Stipulation, the Administrator shall remit the amount of such Class Member's Final Individual Payment Amount by mail to an alternative address provided by such Class Member or Class Counsel, which shall be deemed his or her Last Known Address; provided, however, that Final Individual Payment Amounts shall not be made payable to agents of Eligible Class Members other than Court-appointed legal representatives of such Eligible Class Members. In no event shall Class Counsel seek fees or
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costs for work relating to the appointment of a legal representative or other designee for any Class Member for purposes of effectuating payment.
118. As soon after the Effective Date for Payment as is practicable, the City shall mail
to each Eligible Class Member who has submitted a signed Substitute W-9 Form, at his or her Last Known Address, a check in the amount of the Final Individual Payment Amount to which such Class Member is entitled pursuant to this Stipulation, less the amount of any child support lien or Medicare lien that has been imposed against such Class Member.
119. If any Class Member's Final Individual Payment Amount is reduced because of a
New York child support lien and/or Medicare lien, then the Administrator shall provide such Class Member with written notice of those deductions, together with such Class Member's Final Individual Payment Amount and information on how to file a challenge regarding such deductions. If the City later determines that the amount of the lien was incorrect, the City shall directly pay such Class Member the amount that was incorrectly withheld from such Class Member's Final Individual Payment Amount.
120. As the claims being resolved in this settlement do not involve medical-related
claims but rather only alleged due process violations, the City shall not assert any Medicaid liens against any Class Menlber's Final Individual Payment Amount.
l2l. Notwithstanding anything to the contrary in this Stipulation, the Final Individual
Payment Amounts for each Class Representative shall be increased by five hundred dollars ($500.00) in recognition of the time and energy that each has devoted litigating this lawsuit and his or her willingness to serve as a Class Representative. For the avoidance of doubt, this increase shall be in addition to the Final Individual Payment Amount such Named Plaintiff
otherwise would have been entitled to receive pursuant to this Stipulation. All Final Individual
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Payment Amounts that are paid to each Class Representative shall be paid to Class Counsel as attorneys for such Class Representative.
122. The City shall maintain records confirming the date each check was mailed to
each Eligible Class Member.
I23. The City and/or the Administrator shall provide Class Counsel with a list, on a bi-
weekly basis, reflecting which of the checks sent to each Eligible Class Member have cleared during the prior two-week period.
124. The City and/or the Administrator also shall provide Class Counsel with a list, on
a bi-weekly basis, of all Eligible Class Members whose checks were returned to the Administrator as undeliverable during the prior two-week period.
125. The City and/or the Administrator also shall provide Class Counsel with a list, on
a bi-weekly basis, of all Class Members who (a) have not submitted a notarized Claim Form or acceptable identification to the Administrator or (b) have not submitted a Substitute W-9 Form to the Administrator.
126. On or about the one hundred and fiftieth (150th) day after a check has been
mailed to an Eligible Class Member, the Administrator shall send an overnight notice to any such Eligible Class Member who still has not cashed his or her check, at his or her Last Known Address, informing him or her that his or her Final Individual Payment Amount was mailed to
him or her and of the deadline for cashing his or her check provided for in the next paragraph of
this Stipulation.
127. If an Eligible Class Member has not cashed his or her check by one hundred and
eighty (180) days after the Administrator first mailed it, then the City shall stop payment on such
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check, and such Class Member's Final Individual Payment Amount shall be cancelled and deemed forfeited.
128. If a Class Member has not satisfied the identification or notarized Claim Form
requirement as set forth in Paragraphs 62-64 of this Stipulation or has not submitted a signed Substitute W-9 Form by one hundred and eighty days (180) after Final District Court Approval, such Class Member's eligibility to receive a Final Individual Payment Amount shall be deemed forfeited.
DISPUTE RESOLUTION
129. Should any dispute arise regarding the implementation of this Stipulation, the Parties shall first meet and confer and attempt to resolve the dispute informally. If such efforts
fail, the Parties shall present the issue to and appear before the Magistrate Judge at a conference. MISCELLANEOUS PROVISIONS
130. This Stipulation constitutes the entire agreement between and among the Parties
hereto with respect to the matters covered hereby and supersedes any prior or contemporaneous agreement, understanding, or undertaking, written or oral, by or between or among the Parties.
. 131 This Stipulation shall not be admissible in any action or proceeding except as
necessary to enforce its terms and obligations.
132. The City and Class Counsel shall be deemed to have participated fully in the
drafting, review, and revision of this Stipulation. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in interpreting this Stipulation.
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133. The signatories to this Stipulation represent that they are fully authorized to enter
into this Stipulation and to bind the Parties to the terms and conditions hereof, subject to Court approval.
I34. The Parties acknowledge that they each have voluntarily entered into this
Stipulation after consulting with counsel, and that no promises or representations were made to them by any person to induce them to enter into this Stipulation other than the express terms set forth herein.
135. No term or provision of this Stipulation may be varied, changed, modified,
waived, discharged, or terminated orally, but only by an instrument in writing signed by the Party against whom the enforcement of the variation, change, modification, waiver, discharge, or termination is sought and approved by the Court.
136. The Court shall retain jurisdiction over this action to ensure the fair and effective
implementation and enforcement of the terms of this Stipulation, and the Parties and the Class Members hereby submit to the exclusive jnrisdiction of the Court for purposes of implementing and enforcing the terms of this Stipulation.
137. This Stipulation may be executed simultaneously in one or more counterpafts,
each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Copies of this Stipulation shall have the same force and effect as an original, and each of the Parties hereby expressly waives any right to assert that such copies fail to comply with the "Best Evidence" rule of the Federal Rules of Evidence or any equivalent rule of law or evidence of any other jurisdiction. Signatures by facsimile, .pdf, or other electronic imaging shall be deemed to constitute original signatures.
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Case 1:15-cv-06733-CLP Document 56-2 Filed 08/23/17 Page 32 of 102 PageID #: 193 For Plaintiffs:

Alexander Reinert 55 Fifth Avenue, Room 1005
New York, NY 10003 (2r2) 790-0403
Eric Hecker
Daniel Mullkoff CUTI HECKER WANG LLP
305 Broadway, Sixth Floor New York, NY 10007 (2r2) 620-2600

Dated: August 11, 2017

For Defendant:

a
Assistant Corporation Counsel 100 Church Street
New York, NY 10007 (2r2) 3s6-264r

Dated: August 10, 2017

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EXHIBIT A

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Case 1:15-cv-06733-CLP Document 56-2 Filed 08/23/17 Page 57 of 102 PageID #: 218

CORRECTION DEPARTMENT ATTACHMENT

CITY OF NEW YORK

A

REPORT AND NOTICE OF INFRACTION

Form: 6500A Rev. : 08/04/15 Ref. : Dir. #6500R-C

Infraction #: Inmate Name (Last, First):

Institution:

Location of Incident (Be Specific):

Charge #

Date of Incident:
Offense

Time Infraction Written: B&C/ Sentence #: Housing Area Location:
Charge #

Date of Report:
NYSID #:

Approximate Time of

Incident:

Hrs.

Offense

Reporting Official (Print Name, Rank and Shield #):

Reporting Official (Signature):

Details of Incident (Include details as to How, When and Where Infraction was Committed):

You are entitled to a hearing for this infraction no sooner than twenty-four (24) hours after you are served with this notice. If you are a sentenced inmate and you commit an infraction within twenty-four (24) hours prior to your discharge, and have not reached your maximum sentence expiration date, you may be served with charges and held for a hearing. The Department will make every effort to hold this hearing within three (3) business days of the service of this notice. This three (3) business day period excludes the day you are served, weekends, holidays, days you go to court (whether in person or via teleconference), days you are hospitalized or at a hospital attending a clinic, days you leave the facility for an attorney interview, days you are unavailable because you are transferred to another facility and days you are unavailable due to your absence from the facility for any purpose. The three (3) business day period is automatically extended by one (1) business day if you are transferred to another facility prior to your hearing (unless you are a Pre-Hearing Detention Inmate). Commencement of a hearing after three (3) business days is at the discretion of the Adjudication Captain and is not barred by Department rules.

At your hearing you have the following rights: 1. Right to appear personally, unless you waive your right to appear, refuse to attend the hearing or appear at the hearing and become disruptive. 2. Right to make statements. If you choose to remain silent, your silence cannot be used against you. If you make a statement, such statement cannot be used in a subsequent criminal trial unless you have been given a Miranda Warning and then voluntarily testify. 3. Right to present material evidence. 4. Right to present witnesses. 5. Right to the assistance of a Hearing Facilitator. 6. Right to an interpreter if you cannot communicate well enough in English. 7. Right to appeal.

Within twenty-four hours of the Adjudication Captain reaching a decision of guilty, you will receive a copy of the "NOTICE OF DISCIPLINARY HEARING DISPOSITION" form informing you of the violation(s) you are found guilty of, the basis for that finding, the evidence relied upon and the penalty to be imposed. The following penalties are the maximum which may be imposed individually or in any combination:
1. Reprimand.
2. Loss of privileges.
3. Loss of good time if you are a sentenced inmate.
4. Punitive segregation for up to thirty (30) days per each applicable individual charge.
5. Restitution for intentionally damaging or destroying City property. A twenty five ($25) dollar disciplinary surcharge will be imposed on all inmates found guilty of a Grade I or Grade II offense. You have the right to appeal an adverse decision rendered by the Adjudication Captain.

Interpreter Requested:

Yes (If yes, include what language)

No

Hearing Facilitator Requested: Witness(es) Requested:

Yes

No

Yes (If yes, include witness(es) Name, Book and Case Number (if inmate)

No

or Shield/ID (if staff) and Location (if inmate) or Post (if staff).

Witness (Print Name):
Witness (Print Name):
Witness (Print Name):
Witness (Print Name): I certify that I received Signature of Inmate: a copy of this notice: Served by (Print Name, Rank and Shield #):

B&C Number: B&C Number: B&C Number: Shield/ID Number:

Date:

Signature of Server:

Location: Location: Location: Post:
Time:

Refused to Sign for Notice:

Yes

No

Witnessed By:

FACILITY COPY

Case 1:15-cv-06733-CLP Document 56-2 Filed 08/23/17 Page 58 of 102 PageID #: 219

CORRECTION DEPARTMENT ATTACHMENT

CITY OF NEW YORK

B

INVESTIGATION REPORT

Form: 6500B Rev. :08/04/15 Ref. : Dir. #6500R-C

Please indicate which of the following items are part of the Investigation:

Injury to Inmate UOF Reports Red ID/Enhanced Restraint Placement PHD (Specify where below) Property Damage Report Date Investigation Started:

Photos Drug Test Results NIK Reports (IU) Witness Statements Confidential Informant Date Investigation Concluded:

Mental Health Clearances Other
Infraction #:

INVESTIGATING OFFICIAL'S REPORT
Investigating official's report shall include observations and conclusions of the physical and documentary evidence. Identify each item and/or document evaluated. If inmate was served more than three (3) business days after incident, state why. Attach 600AR if necessary. If results of investigation indicate that no disciplinary action is warranted, specify the reason(s) for not pursuing disciplinary action.

Statement of Inmate Charged:

Witness Name (Last, First): Statement (If none, state such):

Statement of Witness(es) - (If more witnesses, attach additional sheets)
Rank/Title, Shield/ID (If staff) B&C#/Sentence# (If inmate):

Witness Name (Last, First): Statement (If none, state such):

Rank/Title, Shield/ID (If staff) B&C#/Sentence# (If inmate):

Was inmate Mirandized in connection with this Infraction?

Yes

No

Hearing Recommended?

Yes

No

Inmate transferred pending hearing? Yes

No If Yes, Where?

If PHD, check

Date:

Time:

Investigating Official's Signature:

Investigating Official (Print Name, Rank and Shield #):

Case 1:15-cv-06733-CLP DocumenAtT5T6A-2CHFMileEdN0T8-/2C3/17 Page 59 of 102 PageID #: 220
CORRECTION DEPARTMENT

CITY OF NEW YORK

NOTICE OF PRE-HEARING DETENTION

Form: 6500C Eff. : 08/04/15 Ref. : Dir. #6500R-C

SECTION I - INMATE INFORMATION

Last Name:

First Name:

Infraction #:

Book &Case #:

NYSID #:

Reason for placement:

Prepared by:

Print Name, Rank and Shield #

Signature

Date

Tour Commander:

Print Name, Rank and Shield #
SECTION II - SERVICE OF NOTICE

Signature

Facility

Date

You are being placed in Pre-Hearing Detention housing, based on the belief that you have committed a serious violation of an institutional or Departmental rule(s). In the event that an infraction hearing cannot be completed within three (3) business days, you will receive a hearing to determine housing that is suitable for your placement. The three (3) business days may be extended an additional three (3) business days at the discretion of the Adjudication Captain.

If, at the conclusion of any inmate disciplinary due process hearing you are found guilty of violating one or more of the Departmental rules outlined in the inmate rule book and the penalty imposed is or includes a definite period of punitive segregation time, all time spent in the Pre-Hearing Detention housing will be credited to the punitive segregation time imposed. You may respond to this notice by writing directly to the Warden of the facility in which you are housed.

You have the following rights at the hearing:
1. Right to appear personally, unless you waive your right to appear, refuse to attend the hearing or appear at the hearing and become disruptive.
2. Right to make statements. If you choose to remain silent, your silence cannot be used against you. If you make a statement, such statement cannot be used in a subsequent criminal trial unless you have been given a Miranda Warning and then voluntarily testify.
3. Right to present material evidence.
4. Right to present witnesses.
5. Right to the assistance of a Hearing Facilitator.
6. Right to an interpreter if you cannot communicate well enough in English.
7. Right to appeal.

Inmate Statement:

I certify that I received a copy of this notice.

Signature of Inmate:

Served by (Print Name, Rank and Shield #):

Distribution: Original - Adjudication Captain Copy - Deputy Warden for Security - Operations Security Intelligence Unit - OSIU - Inmate Legal Folder - Inmate

Date: Signature of Server:

Time:

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CORRECTION DEPARTMENT ATTACHMENT

CITY OF NEW YORK

D

HEARING REPORT AND NOTICE OF DISCIPLINARY DISPOSITION

Page 1 of
2 Pages

Form: 6500D Eff. : 08/04/15 Ref. : Dir. # 6500R-C

Infraction #:

Institution:

Inmate Name (Last, First): Location: Adjudication Captain (Print Name, Rank & Shield #):

B&C/ Sentence #:
Disposition Date:

NYSID #:

Disposition

Time:

Hrs.

Folder #:

Hearing Start Date:

Hearing End Date:

Inmate's Accompanying card Indicates Inmate Received Rule Book:

Yes

Inmate requested Witness(es):

Yes No Waived

Request Granted

Reason:

No Denied

(If waived, inmate must sign. If denied, state reason.)

Inmate requested Hearing Facilitator: Yes No Waived Request Granted Reason:

(If yes, Hearing Facilitator must sign. If waived, inmate must sign.

Inmate Requested Interpreter: Reason:

Yes

No

Waived Request Granted

Denied

(If yes, interpreter must sign. If waived, inmate must sign. If denied, state reason.)

If inmate advised of right to remain silent was inmate advised that statements could be used against him/her.

Special Situations

Hearing in Absentia:

Inmate Refused to Appear

Removed from Hearing Due to

Adjournment:

By Adjudication Captain

Date Reconvened

/

/

By Inmate

Waived Time Limits to Facilitate Adjournment (Inmate Signature)

Yes

No

Specify Reason

Referral:

Security

Inmate Pled:

Guilty

Summary of inmate's Testimony:

Mental Health Not Guilty

Inspector General Guilty with an Explanation

Not Applicable

The following witness(es) testified at your hearing. (If additional witnesses testified, attach additional sheets.)

Witness Name (Last Name, First Name):

Rank/Title, Shield/ID # (if staff), B&C/Sentence # (if inmate):

Witness Signature (Present at Hearing):

Witness testified in the presence of the charged inmate:

If no, state reason:

Yes

No

Summary of Testimony:

Testimony was: Credited

Rejected Reason:

Witness Name (Last Name, First Name): Witness Signature (Present at Hearing): Witness testified in the presence of the charged inmate:
Summary of Testimony:

Rank/Title, Shield/ID # (if staff), B&C/Sentence # (if inmate):

If no, state reason:

Yes

No

Testimony was: Credited

Rejected Reason:

Case 1:15-cv-06733-CLP Document 56-2 Filed 08/23/17 Page 61 of 102 PageID #: 222

CORRECTION DEPARTMENT ATTACHMENT

CITY OF NEW YORK

D

HEARING REPORT AND NOTICE OF DISCIPLINARY DISPOSITION

Page 2 of
2 Pages

Form: 6500D Eff. : 01/17/15 Ref. : Dir. # 6500R-C

DOCUMENTARY EVIDENCE (Where applicable)

Photograph of Injury:

Yes

No

Shown to Inmate:

Yes

No

Photocopy of Weapon:

Yes

No

Shown to Inmate:

Yes

No

Reports - Specify Types:

Yes

No

Shown to Inmate:

Yes

No

Logbooks - Specify Types:

Yes

No

Shown to Inmate:

Yes

No

Infraction Investigation:

Yes

No

Shown to Inmate:

Yes

No

Physical Evidence (List):

Yes

No

Shown to Inmate:

Yes

No

Witness Statements (List Witnesses):

Yes

No

Shown to Inmate:

Yes

No

On this date and time following disposition was reached after a hearing on the charges listed below:

Charge # Dismissed Penalty Guilty Not Guilty

Basis for Findings & Evidence Relied On

Twenty Five Dollar ($25) Disciplinary Surcharge Grade I or Grade II offenses only: Yes

If you have been found guilty of multiple rule violations, these penalties will be served:

Infraction Dismissed: Yes

No

Reason:

No Consecutively

Concurrently

Pre-Hearing Detention Time Credit: Adjudication Captain (Print Name, Rank, Shield #):

Days.

Signature of Adjudication Captain:

You have the right to appeal an adverse decision rendered by the Adjudication Captain within two (2) days of service of this decision. If you have been sentenced to a total of thirty (30) days of punitive segregation or loss of all your good time on any one (1) Notice of Disciplinary Disposition (6500D), you may file a petition for a writ under Article 78 of the CPLR. If you are sentenced to less that thirty (30) days punitive segregation or loss of less than all your good time, you may appeal that decision to the Warden of the facility where the infraction occurred.

I certify that I received Signature of Inmate: a copy of this notice:
Served by (Print Name, Rank and Shield #):

Refused to Sign for Notice:

Yes

No

B&C/Sentence #: Signature of Server: Witnessed By:

Date:

Time:

Case 1:15-cv-06733-CLP Document 56-2 Filed 08/23/17 Page 62 of 102 PageID #: 223

CORRECTION DEPARTMENT ATTACHMENT

CITY OF NEW YORK

E

INMATE WITNESS STATEMENT

Form: 6500E Rev. : 08/04/15 Ref. : Dir. #6500R-C

INFRACTION INFORMATION

Infracted Inmate's Name:

Infraction #:

Book & Case #:

NYSID #:

Institution:

The following is the statement of inmate witness regarding the incident described in Infraction #

Last Name, First Name

B&C/NYSID #: was made to me outside the presence of above referenced inmate.

Inmate Witness' Signature: Facility Hearing Officer's Signature: Facility Hearing Officer's Name, Title & Shield # (print): Date:

Case 1:15-cv-06733-CLP Document 56-2 Filed 08/23/17 Page 63 of 102 PageID #: 224

CORRECTION DEPARTMENT ATTACHMENT

CITY OF NEW YORK

F

INMATE REFUSAL TO TESTIFY

Form: 6500F Rev. : 08/04/15 Ref. : Dir. #6500R-C

INFRACTION INFORMATION

Infracted Inmate's Name:

Infraction #:

Book & Case #:

NYSID #:

Institution:

I

B&C/NYSID #:

Last Name, First Name

do not wish to testify at the disciplinary hearing regarding the Infraction(s) specified above.

Reason(s) for refusal to testify:

Inmate's Signature: Facility Hearing Officer's Signature: Facility Hearing Officer's Name, Title & Shield # (print): Date:

Case 1:15-cv-06733-CLP Document 56-2 Filed 08/23/17 Page 64 of 102 PageID #: 225

CORRECTION DEPARTMENT ATTACHMENT

CITY OF NEW YORK

G

STAFF WITNESS STATEMENT

Form: 6500G Rev. : 08/04/15 Ref. : Dir. #6500R-A

INFRACTION INFORMATION

Infracted Inmate's Name:

Infraction #:

Book & Case #:

NYSID #:

Institution:

The following is the testimony of Last Name, First Name and Title/Rank
regarding the incident described in Infraction #

Shield/ID #: was made to me outside the presence of above referenced inmate.

Staff Witness' Signature: Facility Hearing Officer's Signature: Facility Hearing Officer's Name, Title & Shield # (print): Date:

Case 1:15-cv-06733-CLP Document 56-2 Filed 08/23/17 Page 65 of 102 PageID #: 226

CORRECTION DEPARTMENT ATTACHMENT

CITY OF NEW YORK

H

NOTICE OF APPEAL OF DISCIPLINARY DISPOSITION

Form: 6500H Rev. : 08/04/15 Ref. : Dir. #6500R-C

Inmate's name (Last, First):

B&C #:

NYSID #:

Infraction #:

Date of incident:

Approximate time of incident: Facility:
Hrs.

Location of incident (Be specific):

Number of Punitive Segregation days sentenced to:

Number of good days removed:

You are appealing: (Choose only one)

The finding of guilt

The penalty imposed

Is there new evidence you wish to present:

Yes

No

Basis for the appeal: (Must clearly set forth the basis for the appeal.) NOTE: All supporting documents must be attached to this Appeal.

Signature:

Date:

Case 1:15-cv-06733-CLP Document 56-2 Filed 08/23/17 Page 66 of 102 PageID #: 227
CLASSIFICATION

ATTACHMENT - I

Ref.: Dir. #6500R-C Eff.: 08/04/15

INMATE RULE OFFENSES, GRADES AND PSEG LEVEL PLACEMENT

Page 1 of 3 Pages

PSEG

Placement

Rule Violation

Rule No. Grade

Arson ‐‐ intentionally starts or attempts to start any fire or causes or attempts to cause any explosion

100.10 I

Assault on staff with injury or attempted injury at any staff member, including spitting, throwing any object or substance 101.10 I

Assault on staff with injury or attempted injury at any staff member, including spitting, throwing any object or substance 101.10 I

Assault on staff with injury or attempted injury at any staff member, including spitting, throwing any object or substance 101.10 I

Assault on any other person with injury or attempted injury, including spitting, throwing any object or substance

101.11 I

Assault on any other person with injury or attempted injury, including spitting, throwing any object or substance

101.11 I

Assault on any other person with injury or attempted injury, including spitting, throwing any object or substance

101.11 I

Assault on inmate with injury or attempted injury, including spitting, throwing any object or substance

101.12 I

Assault on inmate with injury or attempted injury, including spitting, throwing any object or substance

101.12 I

Assault on inmate with injury or attempted injury, including spitting, throwing any object or substance

101.12 I

Assault or attempted assault to any person with a weapon

101.13 I

Fighting / physical struggle with an inmate resulting in injury

101.14 I

Make, possess, sell or exchange any type of contraband weapon

103.10 I

Possess or transport Department‐issued razor outside of housing area

103.10.5 I

Return all Department‐issued razors after shaving is completed

103.10.6 I

Make, possess, sell, give or exchange any amount of narcotic, narcotic paraphernalia or any other controlled substance

103.11 I

Shall not lead / attempt to lead or encourage others to participate in boycotts, work stoppages or other demonstrations

106.10 I

Shall not physically resist staff members

109.10 I

Shall not harass or annoy staff members by touching or rubbing against them

109.11 I

PSI ‐ 23 hrs locked in

Shall not escape or aid others to escape or attempt to escape or aid others to escape

111.10 I

Shall not take or hold any person hostage

114.10 I

Shall not take any action with the intention of taking control over any area of any facility (rioting)

121.1 I

Shall not encourage or in any way persuade other inmates to take any action in order to take control over the area (rioting) 121.12 I

Shall not force or in any way coerce any person to engage in sexual activities

122.10 I

Smuggle weapons (does not include drugs or drug‐related products, alcohol or tobacco)

123.10 I

Shall not engage in acts of hate regarding such person's race, color, national origin, affiliation with any group, religious practice, age, gender, disability or sexual orientation

131.00 I

Any actions that targets a person or group in a negative or hostile manner (acts of hate, issues listed in 131.00)

131.10 I

Possess any contraband with intent to sell or distribute such contraband ‐ if contraband is weapon or escape contraband 103.12.6 I

Bribery

102.10 I

Possess tobacco‐related products

103.05 I

Sell, exchange or distribute tobacco‐related products

103.07 I

Make, possess, sell or exchange alcoholic beverage

103.08 I

Make, possess, sell, give or exchange any type of escape paraphernalia

103.12 I

Possess any type of electronic telecommunication and/or recording devices

103.12.5 I

Possess any contraband with intent to sell or distribute such contraband ‐ if contraband is not weapon or escape contraband 103.12.6 I

Possess money exceeding $20

103.12.7 I

Shall not participate in boycotts, work stoppages, or other demonstrations

106.11 I

Misuses, defaces, or destroys City property with a value greater than $100

107.10 I

Shall not make threats, spoken, in writing or by gesture against a staff member for the purpose of obtaining any benefit

112.10 I

Shall not impersonate any staff member

116.10 I

Smuggle drugs or drug‐related products, alcohol or tobacco (not weapons)

123.10 I

Shall not tamper with, destroy or sabotage any security related devices or equipment

126.10 I

Shall not make any threat whether spoken in writing or by gesture against staff member

127.10 I

Shall not gather in unauthorized groups anywhere

128.10 I

Shall not refuse to provide a DNA sample

129.10 I

Shall not refuse to provide a urine, hair, salive or other sample

130.10 I

Shall not test positive for or be found under the influence of alcohol or illegal drugs / substances

130.11 I

Shall not adulterate or tamper with or attempt with a urine sample or offer their own urine sample of another individual 130.12 I

Penalty Guidelines Max. PSEG Loss of Sentence. Good Time
Up to 30 days All Up to 30 days All Up to 30 days All Up to 30 days All Up to 30 days All Up to 30 days All Up to 30 days All Up to 30 days All Up to 30 days All Up to 30 days All Up to 30 days All Up to 30 days All Up to 30 days All Up to 30 days All Up to 30 days All Up to 30 days All Up to 30 days All Up to 30 days All Up to 30 days All Up to 30 days All Up to 30 days All Up to 30 days All Up to 30 days All Up to 30 days All Up to 30 days All Up to 30 days All Up to 30 days All Up to 30 days All Up to 30 days All Up to 30 days All Up to 30 days All Up to 30 days All Up to 30 days All Up to 30 days All Up to 30 days All Up to 30 days All Up to 30 days All Up to 30 days All Up to 30 days All Up to 30 days All Up to 30 days All Up to 30 days All Up to 30 days All Up to 30 days All Up to 30 days All Up to 30 days All Up to 30 days All Up to 30 days All

Case 1:15-cv-06733-CLP Document 56-2 Filed 08/23/17 Page 67 of 102 PageID #: 228
CLASSIFICATION

ATTACHMENT - I

Ref.: Dir. #6500R-C Eff.: 08/04/15

INMATE RULE OFFENSES, GRADES AND PSEG LEVEL PLACEMENT

Page 2 of 3 Pages

PSEG Placement

Rule Violation

Penalty Guidelines Max. PSEG Loss of Rule No. Grade Sentence. Good Time

PSII ‐ 17 hrs locked in

Assault or attempted assault to any other person, not a staff person, no weapon, no injury Fighting / physical struggle with an inmate, no injury Exchange or sell prescription drugs or non‐prescription drugs Possess prescription or non‐prescription drugs (excess of authorized amounts) Possess any drug that by prescription/medical order must be ingested in view of Department or medical staff Possess more than one Department‐issued razor Make, possess, sell, exchange, use or display any item that identifies the inmate as a SRG member Possess money not in excess of $20 Shall not intentionally cause a miscount Shall not intentionally delay the count Shall not create a fire hazard, health hazard or other safety hazard Shall not tamper with any fire safety equipment Shall not cause any false alarms about a fire, claimed health emergency or create any kind of a disturbance or security problem Shall not flood any living area or another area in the facility Misuses, defaces, or destroys City property with a value between $10 and $100 Shall not verbally abuse or harass staff members or make obscene gestures towards any staff members Shall not interfere with or disrupt institutional services, programs or special activities
Shall not make any threats, spoken, in writing or by any gesture against any person other that a staff member for the purpose of obtaining any benefit
Shall not provide to Department or other officials, false oral or written statements Shall not impersonate another inmate or any other person
Shall follow facility rules and staff orders relating to movement inside and outside of the facility, including dealing with seating, lock‐in and lock‐out
Shall obey all orders of Department staff (stop fighting /assaulting another inmate, to be frisked, to have cell searched to be locked‐in/out, etc
Shall not voluntarily engage in sexual activity with any other person Shall not expose private parts in lewd manner Shall not steal property belonging to another person or the City Shall not possess property belonging to any other person or the City Shall not destroy, tamper with, change, counterfeit or give other inmates any institutional documents, passes, ID cards Shall not forge the signature of staff, an inmate or other person Shall not make any threat whether spoken in writing or by gesture against any person other than staff member

101.16 II Up to 20 days 2/3 101.17 II Up to 20 days 2/3 103.13 II Up to 20 days 2/3 103.13.5 II Up to 20 days 2/3 103.13.6 II Up to 20 days 2/3 103.13.7 II Up to 20 days 2/3 103.14 II Up to 20 days 2/3 103.15 II Up to 20 days 2/3 104.10 II Up to 20 days 2/3 104.11 II Up to 20 days 2/3 105.10 II Up to 20 days 2/3 105.11 II Up to 20 days 2/3 105.12 II Up to 20 days 2/3 105.13 II Up to 20 days 2/3 107.11 II Up to 20 days 2/3 109.12 II Up to 20 days 2/3 110.10 II Up to 20 days 2/3 112.11 II Up to 20 days 2/3 112.50 II Up to 20 days 2/3 116.11 II Up to 20 days 2/3 117.10 II Up to 20 days 2/3 120.10 II Up to 20 days 2/3 122.11 II Up to 20 days 2/3 122.12 II Up to 20 days 2/3 124.10 II Up to 20 days 2/3 124.11 II Up to 20 days 2/3 125.10 II Up to 20 days 2/3 125.11 II Up to 20 days 2/3 127.11 II Up to 20 days 2/3

Case 1:15-cv-06733-CLP Document 56-2 Filed 08/23/17 Page 68 of 102 PageID #: 229
CLASSIFICATION

ATTACHMENT - I

Ref.: Dir. #6500R-C Eff.: 08/04/15

INMATE RULE OFFENSES, GRADES AND PSEG LEVEL PLACEMENT

Page 3 of 3 Pages

PSEG Placement

Rule Violation

Penalty Guidelines Max. PSEG Loss of Rule No. Grade Sentence. Good Time

No PS

Fighting / non‐violent physical struggle, horseplay, boxing, wrestling, sparring, no injury Possess unauthorized hobby materials, art supplies or tattooing equipment or writing implements Possess unauthorized amounts of jewelry, clothing, food or personal property Possess unauthorized amounts of City‐issued property Possess any other unauthorized items Shall not store food in their housing area or workplace except commissary items Shall not litter, spit or throw garbage or any kind of waste or substance Shall follow all local facility rules relating to fire, health or safety Shall clean their cell or living area, toilet bowl, sink, etc. Shall not obscure, block or obstruct, mark up or write on or poster any pictures on Department property Shall not cook in any living area, including any cell Must keep themselves and their clothes clean Shall not block the view into or out of any cell by putting anything on the bars of the cell or any cell door, etc Misuses, defaces, or destroys City property with a value less than $10 Shall not shout out to or curse, use abusive language or make obscene gestures Shall not behave in a loud and noisy manner Shall not engage in any form of gambling Shall carry and display ID cards at all times Shall produce ID cards at the direction of a staff member Shall report the loss of an ID card Shall not be out of their assigned area Shall not sell, buy or exchange services or personal property with any other inmate without permission Shall obey all orders of Department staff (other) Shall not request, solicit or others encourage another person to engage in sexual activity Smuggle contraband other than items listed in 123.10

101.18 III No days 1/3 103.16 III No days 1/3 103.17 III No days 1/3 103.18 III No days 1/3 103.19 III No days 1/3 105.14 III No days 1/3 105.15 III No days 1/3 105.16 III No days 1/3 105.17 III No days 1/3 105.19 III No days 1/3 105.20 III No days 1/3 105.22 III No days 1/3 105.24 III No days 1/3 107.12 III No days 1/3 108.10 III No days 1/3 108.11 III No days 1/3 113.10 III No days 1/3 115.10 III No days 1/3 115.11 III No days 1/3 115.12 III No days 1/3 117.11 III No days 1/3 119.10 III No days 1/3 120.11 III No days 1/3 122.13 III No days 1/3 123.11 III No days 1/3

Case 1:15-cv-06733-CLP Document 56-2 Filed 08/23/17 Page 69 of 102 PageID #: 230

ATTACHMENT J
AUDIO-TAPING PROCEDURE

Rev.: 08/04/15 Ref.: Dir. #6500R-C

1. On the cassette case label, note the date at the start of the day. For each individual hearing conducted that day, note the inmate's name, book and case number and the counter numbers at the beginning and end of the hearing.
2. Place a heading on the tape - state the date, time, your name, shield number, the facility in which the hearing is being conducted, and the name of the inmate before you.
Example: "Today is the 1st of January, 1993, it is 0900 hours. I am Captain Blank, Shield #3987. I am conducting a disciplinary hearing at JATC. Before me is Ty Cobb."
3. Have the inmate identify him/herself by giving his/her name and number.
Example: "Please state your name and Book and Case Number for the record".
4. Read (do not summarize) the charges to the inmate.
5. Ask the inmate how he/she pleads - guilty, not guilty, or guilty with an explanation.
6. State on the record if the inmate requested, or did not request, as per the 6500A Form, any witness(es), a Hearing Facilitator, or an interpreter, if applicable. If no witnesses were requested on the 6500A Form, but the inmate wishes to call witnesses at the time of the hearing, make the arrangements for the production of the witnesses.
7. Read the Investigating Captain's report to the inmate.
8. If an inmate has been given Miranda warnings prior to the hearing, state the following:
"While this proceeding is not a criminal proceeding, any statements made by you may be used against you in a subsequent criminal trial. You may remain silent. If you choose to remain silent, your silence will not be used against you."
9. Ask the inmate to relate his/her version of the incident.

Case 1:15-cv-06733-CLP Document 56-2 Filed 08/23/17 Page 70 of 102 PageID #: 231
EXHIBIT B
FILED UNDER SEAL

Case 1:15-cv-06733-CLP Document 56-2 Filed 08/23/17 Page 71 of 102 PageID #: 232
EXHIBIT C

Case 1:15-cv-06733-CLP Document 56-2 Filed 08/23/17 Page 72 of 102 PageID #: 233
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
(A federal court authorized this notice. This is not a solicitation from a lawyer. You are not being sued.)
IF YOU WERE A PRE-TRIAL DETAINEE HELD IN THE CUSTODY OF THE NEW YORK CITY DEPARTMENT OF CORRECTION AND SERVED “OLD TIME” IN THE “BING” BETWEEN NOVEMBER 23, 2012 AND SEPTEMBER 16,
2015, YOU MAY BE ENTITLED TO MONEY.
MR. _________: BASED UPON OUR INITIAL CALCULATIONS, IT APPEARS THAT IF YOU CHOOSE TO PARTICIPATE IN THIS CLASS ACTION SETTLEMENT AND COMPLY WITH ITS REQUIREMENTS, YOU WILL BE PAID
$_________________.
• This is a proposed Settlement of a class action lawsuit. The City of New York ("City") has agreed to pay money
damages to current or former Department of Corrections (“DOC”) inmates who, while they were pre-trial detainees, served “Old Time” (described in the next paragraph) in Punitive Segregation (“PSEG”) (also known as the “bing”) between November 23, 2012, and September 16, 2015. Additional restrictions are explained in this notice.
• You served Old Time if you (a) were sentenced to serve time in PSEG in connection with a disciplinary
violation (also known as a “ticket”); (b) were then released from DOC custody prior to completing your PSEG sentence; and (c) were later readmitted to a DOC facility and, between November 23, 2012, and September 16, 2015, while you were a pre-trial detainee, you were placed in PSEG to finish a disciplinary sentence imposed during your prior detention.
• You are only eligible to receive money if you were a pretrial detainee when you served Old Time. You are
not eligible if you were a state prisoner temporarily in DOC custody, if you were serving a sentence but remained in DOC custody, if you were in custody pursuant to a warrant relating to a prior conviction or for a parole violation, or if you were otherwise serving a sentence as a result of any conviction.
• The Settlement would entitle each Class Member to between $175 to $200 for each day that he or she served
Old Time while a pretrial detainee between November 23, 2012, and September 16, 2015.
• You must fill out and mail a Claim Form postmarked by ** to be eligible for any payment. You
may use the enclosed stamped, self-addressed envelope, or any other envelope, to mail the Claim Form to **. You also may email it to _____________ or fax it to ____________.
• You may also need to send in Proof of Identity to be eligible for any payment (see #8 below). If
you are required to provide Proof of Identity, you may do so when you send in your Claim Form or at another later date.
• Before you receive any payment, you also must complete and submit the W-9 form that is
provided with this notice. You do not need to submit this form with your Claim Form, but you must submit it prior to ** to receive payment.
• Your legal rights are affected, whether you act or don’t act. Read this notice carefully.
Questions? Call ***** or *********** or visit www.****.com Un anuncio sumario y una forma de petición en español estan adjunto

Case 1:15-cv-06733-CLP Document 56-2 Filed 08/23/17 Page 73 of 102 PageID #: 234

Summary of Your Legal Rights and Options in this Settlement

Your Options

Submit a Claim Form, a W-9 Form,

The only way to get a payment.

and, if your Claim

Form is not

Notarized, Proof of

Identity

Exclude Yourself From The Settlement

Get no payment from the Settlement. This is the only option that allows you to ever be part of any other lawsuit against the City, DOC, or anyone else about the claims in this case.

Object to Settlement

Remain a Class Member but write to the Court about why you don’t like the Settlement.

Go to the Fairness Hearing

Ask to speak in Court about the fairness of the Settlement.

Do Nothing

Get no payment and give up all rights to sue the City, DOC, or their employees about the claims in

this case.

Due Date
Claim Form Postmarked By: **
W-9 Form Postmarked By: **
Proof of Identity Postmarked By: **
Opt-Out Form Postmarked By: **
Objections Postmarked By: **
** at ** p.m.
N/A

• These rights and options—and the deadlines to exercise them – are explained in this Notice.
• The Court in charge of this case still has to decide whether to approve the Settlement. Payments will be made
if the Court approves the Settlement and after any appeals are resolved. Please be patient.
• The Court in charge of the case is the United States District Court for the Eastern District of New York. The
case is called Parker v. City of New York, 15 Civ. 06733 (CPL). The Judge is Magistrate Judge Cheryl Pollak.

1.

Why did I get this notice packet?

You have received this notice either because the City’s computer records indicate that you may be a class member or because you contacted the Administrator and requested a notice. You have a right to know about the proposed Settlement of this class action lawsuit, and about your options, before the Court decides whether to approve the Settlement. This packet explains the lawsuit, the Settlement, your legal rights, what benefits are available, who is eligible for them, and how to get them.

2.

Who are the parties to the Settlement?

There are ten named plaintiffs in this case. All of them were pre-trial detainees when they served Old Time in a DOC facility. They are called Class Representatives because they brought this lawsuit on their own behalf and on behalf of other pre-trial detainees. The Defendant is the City of New York. The parties have agreed to resolve this case through this Settlement.

3.

What happened in Court?

This lawsuit was brought on November 23, 2015. The Plaintiffs amended their complaint on November 12, 2016. The parties have exchanged information and conducted settlement negotiations for approximately one and a half years.

Questions? Call ***** or *********** or visit www.****.com Un anuncio sumario y una forma de petición en español estan adjunto

Case 1:15-cv-06733-CLP Document 56-2 Filed 08/23/17 Page 74 of 102 PageID #: 235

4.

How do I know if I am part of the Settlement?

Everyone who meets the following description is a Class Member: any person held in a DOC facility between November 23, 2012 and September 16, 2015 who, while a pre-trial detainee, served Old Time (as defined above and in the Settlement Stipulation).
To receive damages as part of the Settlement, you must have been a pre-trial detainee when you served Old Time. This Settlement does not provide compensation to (i) persons who served Old Time while they were in DOC custody due to an alleged or adjudicated parole violation or (ii) New York State Department of Corrections and Community Supervision prisoners (or convicted prisoners from other jurisdictions) who were in DOC custody temporarily for purposes of court appearances or pursuant to warrants relating to convictions or as of the date of conviction by verdict or plea.

5.

What is the “Old Time” Practice?

The “Old Time” practice at issue in this case is the former DOC practice that when a person housed in a DOC facility was given a so-called “ticket” and found to have violated a disciplinary rule, was sentenced to placement in PSEG (also known as the “bing”) for a period of time as a result of that violation, and was released from DOC custody prior to completing that PSEG sentence, and then at some later date that person was readmitted to a DOC facility, and while that person was a pre-trial detainee, he or she was placed in PSEG to finish the sentence imposed for the disciplinary violation committed during the prior detention.

6.

What should I do if I think I am a Class Member but I have not received a Claim Form?

The Administrator has mailed letters and a Claim Form to everyone whom the City and Class Counsel believe is a class member. It is possible that you are a Class Member even if you did not receive a Claim Form. If you believe you are a Class Member but did not receive a letter with a Claim Form in it, you may request to be included in the Settlement and for a Claim Form. To request that you be included in the Settlement and to obtain a Claim Form, go to ** or contact the Administrator at the address or phone # below. Include your name, date of birth, address, NYSID # (if known), phone # (if any), the dates you believe you served Old Time and the DOC facility in which you served Old Time, and any other information you believe will assist in confirming that you in fact served “old” or “owed” or “historic” time. The deadline for submitting this information is **. The Administrator and the Parties will seek to determine if you are a Class Member and should be included in the Settlement and will notify you of their determination.

7.

What does the Settlement provide?

The Settlement provides for Class Members to receive compensation as follows:
a. Class Members will receive $175 for each day that they served Old Time if they were neither under the age of 18 years old nor classified by the City as having a serious mental illness.
b. Class Members will receive $200 for each day that they served Old Time if they were under the age of 18 years old or were classified by the City as having a serious mental illness when they served Old Time.

Questions? Call ***** or *********** or visit www.****.com Un anuncio sumario y una forma de petición en español estan adjunto

Case 1:15-cv-06733-CLP Document 56-2 Filed 08/23/17 Page 75 of 102 PageID #: 236 Based on the City’s records, the Parties have calculated the damages that each Class Member is owed. It appears from the City’s records that you served a total of __ days of Old Time during the relevant period. It appears from the City’s records that you were not under the age of 18 and were not classified as having a serious mental illness when you served Old Time. Accordingly, it appears from the City’s records that you are eligible to receive a total of $_______.00 of compensation if you participate in the Settlement and comply with all of its terms, including by submitting a Claim Form on time and satisfying the Proof of Identity Requirement.
If you disagree with the calculations set forth above, you can file a Challenge claiming that (a) you served more Old Time than the Parties believe; or (b) you served Old Time while under the age of 18 years old or while you had been classified as having a serious mental illness. You must submit this Challenge by **.
The Settlement also provides: (a) that the named Plaintiffs who brought this case (ROY PARKER, RAJAB ASEP, CHRISTOPHER CHANDLER, JAMAL COLEMAN, ALLANA DIXON, CHAUNCEY MIRANDA, and CESAR RIVERA) will receive an additional $500 as an incentive payment for their participation in the lawsuit; and (b) that Class Counsel may request an award of reasonable attorneys’ fees and costs, to be determined by the Court, after the Settlement is approved. The City has agreed to pay Class Counsel’s attorneys’ fees and costs, and no Class Member will have to pay any fees and costs as part of the Settlement. Finally, the Settlement provides for certification of the Settlement Class.

8.

What do I need to do in order to get payment?

To receive a payment, you need to do three things:
First, you MUST mail in a signed and completed Claim Form postmarked by no later than **. A Claim Form is enclosed with this Notice. You may use the enclosed self-addressed stamped envelope or mail it in your own envelope to **. You can also get a Claim Form by visiting www.**.com; calling ** or **; or writing to the above address.
Second, you MUST satisfy the Proof of Identity requirement.
You can do this either by submitting a Claim Form that has been notarized by a notary public. If you submit a notarized Claim Form, you do not need to submit any identification.
If you are incarcerated when you complete your Claim Form, you must have it notarized at the prison or jail law library (or by some other available licensed Notary Public), in which case you will not be required to submit additional identification in order to be eligible for payment.
If you submit a Claim Form that has not been notarized, then you must satisfy the Proof of Identification requirement. In order to satisfy the Proof of Identification requirement, you must submit (either with your Claim Form or separately at a later time) a copy of any of the following: (a) electric, gas, water, telephone, cable, or other utility bill/s in your name; (b) a lease in your name; (c) a driver’s license or other government-issued identification (such as a IDNYC card); (d) a passport or visa; (e) a green card or other identification issued by the Immigration and Naturalization Service or the United States Immigration and Customs Enforcement; or (f) other documentation that reliably establishes your identity. If the documents you submit to prove identity are not deemed sufficient, you may be determined not to qualify for the damages payment, in which case you will be notified of that determination and given an opportunity to submit further proof of identity before the deadline expires.
Proof of Identity is not due until 180 days after the Court approves the Settlement, but you should submit it as soon as possible because your check will not be mailed to you until you have satisfied this requirement.
Third, you must fill out and submit a W-9 form no later than **. Even if you have filed a Claim Form and satisfied the Proof of Identity Requirement, the City of New York will not issue a payment to you unless you have filled out and submitted this form. You may submit your W-9 Form with your Claim Form or at a later date, but if you submit it after **, you will lose any rights to receive payment.
If possible, you should keep copies or photos of anything you send and proof of when you sent it.

Questions? Call ***** or *********** or visit www.****.com Un anuncio sumario y una forma de petición en español estan adjunto

Case 1:15-cv-06733-CLP Document 56-2 Filed 08/23/17 Page 76 of 102 PageID #: 237
Please note that you should inform Class Counsel or the Administrator if your address changes so that your check is mailed to the right address.
No payments will be sent until the Court approves the Settlement. Even then, there may be appeals. It is uncertain how many appeals there may be, if any, and how long it may take to resolve them. Please be patient.
If you have any questions regarding completing the Claim Form, providing Proof of Identity, or completing the w-9 form, you may contact Class Counsel at ** or the Administrator at **.

9.

What am I giving up to get a payment or stay in the Class?

Unless you exclude yourself from this Settlement (see Question 10 below), you cannot sue the City or be part of any other lawsuit against the City, NYCDOC, or their employees relating to serving Old Time. Unless you exclude yourself, it also means that all of the decisions by the Court will bind you. But you are not giving up your right to sue the City for things that are not related to the “old” or “owed” or “historic” time practice that is covered by this Settlement.

10. How do I get out of the Settlement?
If you don’t want a payment from the Settlement, and you want to keep the right to sue or continue to sue the City, DOC, or their employees on your own about the legal issues in this case, then you must take steps to get out. This is called “excluding yourself,” or is sometimes referred to as “opting out” of the Class. To exclude yourself, you must send a letter that includes the following: (a) your name, date of birth, address and telephone number (if any); (b) a statement saying that you want to be excluded from the Settlement; and (c) your signature. You must mail your exclusion request, postmarked no later than **, to **. You will get no payments from the Settlement if you exclude yourself. If possible, you should keep copies or photos of anything you send and proof of when you sent it.
If you do not exclude yourself (“opt out”) and you also fail to submit a Claim Form, a W-9 Form, and satisfy the Proof of Identity requirement, then you will not receive any payment under this Settlement, nor will you be able to file your own lawsuit relating to the issues covered by the Settlement.

11.

Do I have a lawyer in this case? How will the lawyers be paid?

The Court has designated Cuti Hecker Wang LLP and Alexander A. Reinert, Esq. as Class Counsel in this case. Class Counsel will represent you and other Class Members. You will not be required to pay anything to these lawyers. Class Counsel will ask the Court to award them reasonable attorneys’ fees and costs, which will be paid to them by the City, after the Settlement has been approved. The amount that you are entitled to receive under this Settlement will not be affected by the amount that the City is ordered to pay Class Counsel.
If you want to be represented by your own lawyer, you may hire one at your own expense.

Questions? Call ***** or *********** or visit www.****.com Un anuncio sumario y una forma de petición en español estan adjunto

Case 1:15-cv-06733-CLP Document 56-2 Filed 08/23/17 Page 77 of 102 PageID #: 238
12. How do I tell the Court that I don’t like the Settlement?
If you are a Class Member and do not exclude yourself from the Settlement, you can object to the Settlement if you do not like any part of it. You can tell the Court why you think the Settlement should not be approved. To object, you must send a letter that includes the following: (a) your name, date of birth, address, and telephone number (if any); (b) a statement saying you object to the Settlement in Parker v. The City of New York, 15 Civ. 6733; (c) the reasons you object; (d) whether you want to speak at the fairness hearing (see Question 13 below); and (e) your signature. You must mail your objection, postmarked no later than **, to (a) the Clerk of Court, United States District Court, Eastern District of New York, 225 Cadman Plaza East, Brooklyn, New York 11201; and (b) **[ADMINISTRATOR]**. If possible, you should keep copies or photos of anything you send and proof of when you sent it.
13. When and where will the Court decide whether to approve the Settlement? The Court will have a fairness hearing to decide whether to approve the Settlement on ** at** p.m. before Hon. Cheryl L. Pollak at the United States District Court for the Eastern District of New York, located at 225 Cadman Plaza East, Brooklyn, New York 11201 in Courtroom **. The hearing may be moved to a different date or time without additional notice, so it is a good idea to regularly check www.***.com. You do not have to come to the hearing. If you want to speak at the hearing, you must request to do so when you file an objection (see Question 10 above). At this hearing, the Court will consider whether the Settlement is fair, reasonable, and adequate. If there are objections, the Court will consider them at the hearing. After the hearing, the Court will decide whether to approve the Settlement. We do not know how long this decision will take.
14. What happens if I do nothing at all?
If you do nothing, you will not get any payment. Unless you exclude yourself (“opt out”), you won’t be able to start a lawsuit, continue with a lawsuit, or be part of any other lawsuit against the City, DOC, or their employees or any other person or entity relating to Old Time.
15. How do I get more information? You can call ** or **; write to **[ADMINISTRATOR]**; or visit www.****.com, where you will find copies of the Settlement papers, Claim Forms, and answers to common questions. You can obtain detailed information about the case by examining the court file located at the address listed in Question 13.
Questions? Call ***** or *********** or visit www.****.com Un anuncio sumario y una forma de petición en español estan adjunto

Case 1:15-cv-06733-CLP Document 56-2 Filed 08/23/17 Page 78 of 102 PageID #: 239
EXHIBIT D

Case 1:15-cv-06733-CLP Document 56-2 Filed 08/23/17 Page 79 of 102 PageID #: 240
IF YOU WERE A PRE-TRIAL DETAINEE IN THE CUSTODY OF THE NEW YORK CITY DEPARTMENT OF CORRECTION AND SERVED “OLD TIME”
IN PUNITIVE SEGREGATION (THE “BING”) BETWEEN 11/23/12 AND 9/16/15, YOU MAY BE ENTITLED TO MONEY
What is this lawsuit about? Am I included? • This is a proposed Settlement of a class action lawsuit. It is called Parker et al. v. City of New York, 15 Civ. 06733 (CPL). • To settle this lawsuit, the City of New York (“City”) has agreed to pay money damages to current or former Department of Corrections (“DOC”) pre-trial detainees who served so-called “Old Time” between November 23, 2012 and September 16, 2015. • “Old Time” refers to the former DOC practice of placing an inmate in Punitive Segregation (also known as the “bing”) to finish a disciplinary sentence imposed for an infraction committed by the inmate during a prior DOC incarceration. • If you served Old Time during this period, you may be entitled to a payment, but you are only eligible to receive money if you were a pre-trial detainee when you served Old Time. You are not eligible if you were a state prisoner temporarily in DOC custody, if you were serving a sentence but remained in DOC custody, if you were in custody pursuant to a warrant relating to a prior conviction or for a parole violation, or if you were otherwise serving a sentence as a result of any conviction.
What does the Settlement provide? • Most Class Members are eligible to receive $175 for each day that they served Old Time. • Class Members who were classified as having a Serious Mental Illness or who were under the age of 18 when they served Old Time are eligible to receive $200 per day.
How do I get money from the Settlement? You must do three things: 1. You must submit a Claim Form postmarked by no later than ****.
• Claim Forms were mailed to all known Class Members at their last known addresses. It is possible that you are a Class Member even if you did not receive a Claim Form. To obtain a Claim Form, go to **** or contact the Administrator at the address or phone # below. Include your name, date of birth, address, NYSID # (if known), phone # (if any), the dates you believe you served Old Time and the DOC facilities in which you served it.
2. You must satisfy the Proof of Identity Requirement. • You can do this either (a) by submitting a Claim Form that has been notarized by a notary public; or (b) by submitting (either with your Claim Form or separately at a later time) a copy of one of various forms of acceptable identification, such as a governmentissued identification card, a utility bill, a lease, etc. • If you are incarcerated when you complete your Claim Form, you should have it notarized at the prison or jail law library, in which case you will not be required to submit additional identification in order to be eligible for payment.
3. You must fill out and submit a W-9 Form. • You may submit your W-9 Form with your Claim Form or at a later date, but if you submit it more than 180 days after the Court approves the Settlement, you will lose any rights to receive payment.
4. You must inform Class Counsel or the Administrator if your address changes at any time prior to receiving payment. What are my options?
• Your legal right to receive money damages will be affected whether you act or do not act. • To Remain in the Settlement: If you are eligible and wish to be part of the
Settlement, you must give up your legal right to bring any further claims regarding the Old Time you served. You will be bound by the federal Court’s orders. If you remain in the Settlement, you also may object in writing to or comment on the Settlement, and you have a right to appear in Court. All objections must be filed by ****. • To Exclude Yourself from the Settlement: If you do not wish to participate in the Settlement, then in order to keep any right you may have to sue the City about the Old Time you served, you must submit a request for exclusion (otherwise known as an “optout form”) which must be postmarked by ***.
The Court will determine whether to approve the Settlement at a fairness hearing on **** at *** p.m. at the United States District Court for the Eastern District of New York, located at 225 Cadman Plaza, Brooklyn NY 11201, in Courtroom 13d before Judge Pollak. The Court has appointed Class Counsel to represent everyone entitled to file a claim. Class Counsel will be paid by the City; there is no cost to you. You can also hire your own attorney at your own cost.
This is only a Summary of the proposed Settlement. For more information: call Class Counsel at (212) 620-2600 or the Administrator at (800) __________
or visit www._____.com or write _________________________________

Case 1:15-cv-06733-CLP Document 56-2 Filed 08/23/17 Page 80 of 102 PageID #: 241
EXHIBIT E

Case 1:15-cv-06733-CLP Document 56-2 Filed 08/23/17 Page 81 of 102 PageID #: 242

Parker et al. v. City of New York United States District Court for the Eastern District of New York

Must	  be	  E-­‐mailed	  or	   Postmarked	  No	  Later	  

Case No. 15 Civ. 06733 (JBW) (CPL)

Than	  ****	  

CLAIM FORM

If you want to be INCLUDED in the Class, you MUST complete this form in its entirety, and email it to **** or mail it to:

GARDEN CITY GROUP ****

THIS DOCUMENT MUST BE E-MAILED OR POSTMARKED NO LATER THAN ***.

Please read the enclosed Notice before filling out this claim form. You do NOT need the assistance of a third-party agent to file this claim. You do NOT need to pay anyone to assist you. You may contact the Administrator for assistance (see below).

The information given here is private, and will be used only for the purposes of verifying your claim.

According to the City of New York’s records, your name and address are as follows: Name 1 Name 2 Add1 Add2 City, State Zip

□ Please check this box if the information on the left is incorrect or if you want the check sent to a different address. Correct the information on the lines below. ______________________________________ ______________________________________ ______________________________________ ______________________________________

According to the Parties’ records, you are entitled to receive $___ as part of the settlement, based on serving ___ days of Old Time. During that time, according to the Parties’ records, you served ___ days of old time while under the age of 18 and/or while diagnosed with a Serious Mental Illness.

□ Please check this box if you wish to challenge this amount and claim that you served more old time as a pretrial detainee or that you served more old time while under the age of 18 and/or while you were diagnosed with a Serious Mental Illness. If you wish to file such a challenge, please submit this Claim Form and contact either the Administrator (see above) or Class Counsel at (212) 620-2600.

If you wish to be a part of this Class Action Settlement, please check the box below, sign and date this form. By checking the box and signing below, you confirm that you have received, read, and understood the notice of a class action settlement and that you wish to be included in the Class.

□ By checking this box and signing below, I affirm that I wish to be included in the Class-Action Settlement described in the class notice.

In consideration for the payment of the sum set forth above, you release defendant City of New York and any present or former employees and agents of the City of New York or any entity represented by the Office of the Corporation Counsel, from any and all liability, claims or rights of action alleging a violation of my civil rights and any and all related state law claims arising out of the Old PSEG time referenced in this form. If your claim is denied, this release will become null and void.
You declare under penalty of perjury under the laws of the United States that the information on this form is true and correct to the best of your knowledge, belief and recollection.

__________________________________________ Type or Print Name

_ _ _ - _ _ _ - _ _ _ _ Phone Number (optional)

________________________________________________ Signature

________________________ Date

______________________________________________ Notary Public (optional)

_______________________ Date

NOTE: In order to receive your check, you must either (1) have your signature on this form notarized before a notary public, or (2)(i) send in this completed form immediately, and (ii) either now or before the _______, 2017 deadline submit acceptable identification to the Administrator. If you have this form notarized, you are not required to submit identification to the Administrator.

Case 1:15-cv-06733-CLP Document 56-2 Filed 08/23/17 Page 82 of 102 PageID #: 243
EXHIBIT F

Case 1:15-cv-06733-CLP
DO NOT SUBMIT FORM TO IRS - SUBMIT

Document 56-2

FiledC0IT8Y/2O3F/1N7EWPYaOgReK83 of 102 PageID #: 244

FORM TO REQUESTING AGENCY

SUBSTITUTE FORM W-9:

9/07 Revision

REQUEST FOR TAXPAYER IDENTIFICATION NUMBER & CERTIFICATION

TYPE OR PRINT INFORMATION NEATLY. PLEASE REFER TO INSTRUCTIONS FOR MORE INFORMATION.

Part I: Vendor Information
1. Legal Business Name:(As it appears on IRS EIN records, CP575, 147C - or -
Social Security Admin records, Social Security Card, certified Form SSA7028)

2. If you use DBA, please list below:

3. Entity Type (Check one only):

Church or Church-Controlled Organization

Non-Profit Corporation
Joint Venture

Corporation/ LLC
Partnership/ LLC

Government
Single Member LLC (Individual)

City of New York Employee
Resident/NonResident Alien

Part II: Taxpayer Identification Number (TIN) & Taxpayer Identification Type

Personal Service Corporation

Individual / Sole Proprietor
Non-United States Business Entity

Trust Estate

1. Enter your TIN here: (DO NOT USE DASHES)

2. Taxpayer Identification Type (check appropriate box):

Employer ID No. (EIN)

Social Security No. (SSN)

Part III: Primary 1099 Vendor & Remittance Address 1. Primary 1099 Vendor Address:
Number, Street, and Apartment or Suite Number

Individual Taxpayer ID No. (ITIN)

N/A (Non-United United States Business Entity)

2. Remittance Address: Number, Street, and Apartment or Suite Number

City, State,and Nine Digit Zip Code or Country

City, State,and Nine Digit Zip Code or Country

Part IV: Exemption from Backup Withholding
For payees exempt from Backup Withholding, check the box below. Valid explanation required for exemption. See instructions.
Exempt from Backup Withholding

Part V: Certification

The Internal Revenue Service does not require your consent to any provision of this document other than the certifications required to avoid backup withholding. Under penalties of perjury, I certify that the number shown on this form is my correct Taxpayer Identification Number (TIN).
Sign Here:

Signature

Phone Number

Date

Print Preparer's Name Contact's E-Mail Address:

Phone Number

Submitting Agency Code:
Contact's EMail Address:

FOR SUBMITTING AGENCY USE ONLY
Contact Person:

Telephone (

)

Number:

Payee/Vendor Code: DO NOT FORWARD W-9 TO COMPTROLLER'S OFFICE. AGENCIES MUST FAX COMPLETED W-9 FORMS TO THE VALIDATION UNIT.

Case 1:15-cv-06733-CLP Document 56-2 Filed 08/23/17 Page 84 of 102 PageID #: 245
EXHIBIT G

Case 1:15-cv-06733-CLP Document 56-2 Filed 08/23/17 Page 85 of 102 PageID #: 246

Parker et al. v. City of New York United States District Court for the Eastern District of New York
Case No. 15 Civ. 06733 (JBW) (CPL)

Must be E-mailed or Postmarked No Later Than ****

OPT-OUT FORM
This is NOT a Claim Form. This form EXCLUDES you from this Class Action. DO NOT use this form if you wish to be included in the Class for the above-titled action.
If you DO NOT want to be included in the Class, complete this form in its entirety, and email it to **** or mail it to:
GARDEN CITY GROUP ****

THIS DOCUMENT MUST BE E-MAILED OR POSTMARKED NO LATER THAN ***.
The Court will exclude you from the class if you request to be excluded by ***.
If you wish to opt out of this Class Action, please check the box below, sign and date this form, and provide the requested information. By checking the box and signing below, you confirm that you have received, read, and understood the notice of a class action settlement and that you have decided to exclude yourself from the Class. You understand that you will NOT receive any money or benefits received by the Class in this class action lawsuit if you complete and sign this form.
□ By checking this box and signing below, I affirm that I wish to be excluded from the Class-
Action Settlement described in the class notice and I DO NOT want to participate in any settlement of this case.

________________________________________________ Signature

________________________ Date

_____________________________________________________________________________ Type or Print Name

_____________________________________________________________________________ Street Address

_____________________________ City

__________ State

___________________ ZIP Code

Case 1:15-cv-06733-CLP Document 56-2 Filed 08/23/17 Page 86 of 102 PageID #: 247
EXHIBIT H

Case 1:15-cv-06733-CLP Document 56-2 Filed 08/23/17 Page 87 of 102 PageID #: 248
Parker et al. v. The City of New York, 15 Civ. 6733 (E.D.N.Y.)
WARNING REGARDING APPROACHING DEADLINE FOR PARTICIPATING IN CLASS ACTION SETTLEMENT
Dear Mr./Ms. ______:
You appear to be a Class Member in Parker et al. v. The City of New York, 15 Civ. 6733 (E.D.N.Y.), which is a class action challenging New York City Department of Correction’s (“NYCDOC”) former practice of placing pre-trial detainees in punitive segregation (the “bing”) to serve “old” or “owed” or “historic” “bing” sentences in Punitive Segregation (“PSEG”) for a disciplinary violation committed during a prior detention in NYCDOC custody. We first sent you notice of this class action settlement on _______, 2017, and we included copies of the Claim Form, W-9 Form and Opt-Out Form.
The City has agreed to pay all eligible class members either $175.00 or $200.00 for every day of “old” or “owed” “bing” time that they served in PSEG between November 23, 2012 and September 16, 2015.
Based on our records, it appears that you served __ days of “old” or “owed” “bing” time in PSEG during this period, and that you therefore are eligible to receive a payment of $________ if you participate in this Settlement.
To date, we have not received a completed Claim Form from you. YOU WILL RECEIVE NOTHING FROM THIS SETTLEMENT unless you (1) submit a completed Claim Form by ________, (2) submit a completed W-9 Form, and (3) submit sufficient proof of identity (or have your Claim Form notarized before a notary public, which satisfies the proof of identity requirement).
Enclosed are a Claim Form, a W-9 Form, and an Opt-Out Form.
If you do not wish to participate in this settlement and instead wish to preserve your right to bring your own lawsuit, then you must fill out, sign, and submit the Opt-Out Form no later than _______.
You can mail the Claim Form, W-9 Form, documents establishing your identity, or Opt-Out Form to ________________, or email it/them to ___________, or fax it/them to _________________. If possible, you should keep copies or photos of everything you send, and if possible, keep proof of mailing.
If you have questions, you should call Class Counsel at (212) 620-2600 or the Administrator at (800) __________, or visit www._____.com, or write to _________________________________.

Case 1:15-cv-06733-CLP Document 56-2 Filed 08/23/17 Page 88 of 102 PageID #: 249
EXHIBIT I

Case 1:15-cv-06733-CLP Document 56-2 Filed 08/23/17 Page 89 of 102 PageID #: 250
Parker et al. v. The City of New York, 15 Civ. 6733 (E.D.N.Y.)
WARNING ABOUT PROOF OF IDENTIFICATION REQUIREMENT
Dear Mr./Ms. ______:
We recently received your Claim Form. We are pleased that you are participating in the class action Settlement in Parker et al. v. The City of New York, 15 Civ. 6733 (E.D.N.Y.), relating to the “old” or “owed” or “historic” “bing” sentences you served in Punitive Segregation (“PSEG”) between November 23, 2012 and September 16, 2015.
Based on our records, it appears that you served __ days of “old” or “owed” “bing” time in PSEG during this period, and that you therefore are eligible to receive a payment of $________ if you satisfy all of the requirements of this Settlement.
You are being sent this follow-up letter because we have not yet received from you documents that satisfy the Proof of Identity requirement. Unless we receive sufficient proof of your identity, you are not eligible to receive a payment in connection with this Settlement.
Enclosed is a postage-prepaid envelope. Please send us a copy of a document that proves your identity such as (i) any available electric, gas, water, telephone, cable, or other utility bills in your name; (ii) a lease in your name; (iii) a driver’s license or other government-issued identification, such as a passport or visa or green card.
You can mail the Proof of Identity document to _________________. You can email it to ___________. You can fax it to _________________. You should, if possible, keep copies or photos of anything you submit, and if possible, keep proof of mailing.
If you have questions, call Class Counsel at (212) 620-2600 or the Administrator at (800) __________, or visit www._____.com, or write to _________________________________.

Case 1:15-cv-06733-CLP Document 56-2 Filed 08/23/17 Page 90 of 102 PageID #: 251
EXHIBIT J

Case 1:15-cv-06733-CLP Document 56-2 Filed 08/23/17 Page 91 of 102 PageID #: 252
Parker et al. v. The City of New York, 15 Civ. 6733 (E.D.N.Y.)
WARNING ABOUT W-9 FORM REQUIREMENT
Dear Mr./Ms. ______:
We recently received your Claim Form. We are pleased that you are participating in the class action Settlement in Parker et al. v. The City of New York, 15 Civ. 6733 (E.D.N.Y.), relating to the “old” or “owed” or “historic” “bing” sentences you served in Punitive Segregation (“PSEG”) between November 23, 2012 and September 16, 2015.
Based on our records, it appears that you served __ days of “old” or “owed” “bing” time in PSEG during this period, and that you therefore are eligible to receive a payment of $________ if you satisfy all of the requirements of this Settlement.
You are being sent this follow-up letter because we have not yet received from you a completed W-9 Form. Unless we receive a completed W-9 Form from you, you are not eligible to receive a payment in connection with this Settlement.
Enclosed is a postage-prepaid envelope and a W-9 Form. Please complete this form and submit it as soon as possible.
You can mail the W-9 Form to _________________. You can email it to ___________. You can fax it to _________________. You should, if possible, keep copies or photos of anything you submit, and if possible, keep proof of mailing.
If you have questions, call Class Counsel at (212) 620-2600 or the Administrator at (800) __________, or visit www._____.com, or write to _________________________________.

Case 1:15-cv-06733-CLP Document 56-2 Filed 08/23/17 Page 92 of 102 PageID #: 253
EXHIBIT K

Case 1:15-cv-06733-CLP Document 56-2 Filed 08/23/17 Page 93 of 102 PageID #: 254
Parker et al. v. The City of New York, 15 Civ. 6733 (E.D.N.Y.)
WARNING ABOUT W-9 FORM AND PROOF OF IDENTIFICATION REQUIREMENTS
Dear Mr./Ms. ______:
We recently received your Claim Form. We are pleased that you are participating in the class action Settlement in Parker et al. v. The City of New York, 15 Civ. 6733 (E.D.N.Y.), relating to the “old” or “owed” or “historic” “bing” sentences you served in Punitive Segregation (“PSEG”) between November 23, 2012 and September 16, 2015.
Based on our records, it appears that you served __ days of “old” or “owed” “bing” time in PSEG during this period, and that you therefore are eligible to receive a payment of $________ if you satisfy all of the requirements of this Settlement.
You are being sent this follow-up letter because we have not yet received from you either (1) a completed W-9 Form or (2) documents that satisfy the Proof of Identity requirement.
Unless we receive both a completed W-9 Form and sufficient proof of your identity, you are not eligible to receive a payment in connection with this Settlement.
Enclosed is a postage-prepaid envelope and a W-9 Form. Please complete this form and submit it as soon as possible.
In the same envelope, please also include a copy of a document that proves your identity such as (i) any available electric, gas, water, telephone, cable, or other utility bills in your name; (ii) a lease in your name; (iii) a driver’s license or other government-issued identification, such as a passport or visa or green card.
You can mail the W-9 Form and Proof of Identity document to _________________. You can email them to ___________. You can fax them to _________________. You should, if possible, keep copies or photos of anything you submit, and if possible, keep proof of mailing.
If you have questions, call Class Counsel at (212) 620-2600 or the Administrator at (800) __________, or visit www._____.com, or write to _________________________________.

Case 1:15-cv-06733-CLP Document 56-2 Filed 08/23/17 Page 94 of 102 PageID #: 255
EXHIBIT L

Case 1:15-cv-06733-CLP Document 56-2 Filed 08/23/17 Page 95 of 102 PageID #: 256

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ----------------------------------------------------x

ROY PARKER; RAJAB ASEP, CHRISTOPHER CHANDLER, JAMAL COLEMAN; ALLANA DIXON; CHAUNCEY MIRANDA; and CESAR RIVERA, on behalf of themselves and all others similarly situated,

15 Civ. 06733 (JBW) (CPL)

Plaintiffs,

-against-

THE CITY OF NEW YORK,

Defendant. ----------------------------------------------------x

ORDER OF ADMINISTRATION

WHEREAS, the Court has conditionally approved the settlement memorialized in the

parties' Stipulation dated August 11, 2017 (the “Stipulation”); and

WHEREAS, the Stipulation provides that the Claims Administrator shall be bound by

and adhere to the terms thereof and that the City of New York shall ensure that the Claims

Administrator complies with the terms thereof;

WHEREAS, the parties believe that the services of a claims administrator are required

to efficiently and effectively manage communications with the plaintiff class in regards to

both class notice and the individual claims process; and

WHEREAS, the parties have jointly requested that the Court issue an Order appointing

The Garden City Group, Inc. (“GCG”) to serve as the Claims Administrator in this case;

IT IS HEREBY ORDERED THAT:

1. GCG shall serve as the Claims Administrator in the remedial phase of this

litigation.

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2. GCG shall perform duties including: a. Sending, receiving, and distributing correspondence and documents between
and among counsel for the parties and actual and/or putative class members; b. Maintaining an internet website, a toll-free telephone number, a fax number, and
an e-mail address to receive and provide information to such actual and/or putative class members; and c. Receiving documents from the parties and Claimants and uploading them on to a secure, online database accessible to counsel for the parties. 3. GCG will submit itemized statements of fees and expenses to counsel for the parties. Counsel for the parties review each statement from GCG and inspect it for regularity and reasonableness. After review, counsel for the Parties will submit GCG’s statement to the Court within 14 days of receipt, noting any area of unresolved dispute. If the Court determines GCG’s statement is regular and reasonable, the Court may sign it and transmit it to the counsel for the parties. Such transmittal shall constitute a direction to the City of New York to pay the amount set forth in GCG’s statement. The City of New York shall then remit to GCG any Court-approved amount in the regular manner in which it pays bills, but not later than 30 calendar days following Court approval. 4. The City of New York shall ensure that CGC complies with the terms of the Stipulation. 5. The parties shall update the Court on GCG’s efforts in its periodic updates to the Court, as required by the Court.
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Case 1:15-cv-06733-CLP Document 56-2 Filed 08/23/17 Page 97 of 102 PageID #: 258 6. The City of New York shall be responsible for paying all costs of GCG’s work.
GCG has agreed that it will be paid at the rates listed in GCG’s pricing proposal dated June 27, 2017, annexed hereto as Exhibit A, and the parties have no objection.
7. If the parties deem it necessary, the parties shall recommend that the Court amend the Claims Administrator’s duties to more effectively assist in the administration of individual relief.
SO ORDERED: ______________________
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EXHIBIT A to Order of Administration

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