The opinion of the court was delivered by: Ellen Segal Huvelle
This case was filed more than thirty years ago in an effort to remedy the constitutionally deficient level of care, treatment, education, and training being provided to residents of Forest Haven, the District of Columbia's institution for persons with developmental disabilities, which was closed as a result of this litigation in 1991. Plaintiffs are a class of over 650 former residents of Forest Haven. Defendants are the District of Columbia ("the District") and the Honorable Adrian Fenty, the City's Mayor.*fn1 The United States is also a party, having been permitted to intervene as a plaintiff in January 1977.*fn2
As described in greater detail below, this litigation has resulted in a series of consent orders and remedial plans in which defendants have admitted that class members' constitutional rights have been violated and have agreed to take actions necessary to remedy these constitutional violations. Because these measures have been unsuccessful in achieving desired outcomes for class members in many critical areas, the litigation has also resulted in a series of efforts by plaintiffs and plaintiff-intervenor to force compliance with the Court's orders through motions for contempt and other relief. Before the Court is the latest such effort. Plaintiffs have moved for an order finding defendants in noncompliance with the prior Court orders and placing the District's Mental Retardation and Developmental Disabilities Administration ("MRDDA") into receivership.*fn3 At a July 20, 2006, status conference, the Court bifurcated proceedings on the motion into a liability and a remedy phase and directed the parties to submit proposed findings of fact on the liability question, i.e., whether there has been substantial noncompliance with Court orders. (July 20, 2006 Hr'g Tr. at 6, 9-10.)*fn4 This Memorandum Opinion sets forth the Court's factual findings on that issue.
This case began in February 1976, when a group of individual plaintiffs filed suit alleging that they and other residents of Forest Haven were not receiving "a constitutionally minimal level of habilitation" (Compl. ¶ 1) and seeking declaratory and injunctive relief.*fn5 The Honorable John H. Pratt, who presided over this case until his death in August 1995, certified a plaintiff class consisting of present, former, and future residents of Forest Haven in June 1976. Following a period of discovery, plaintiffs moved for partial summary judgment on the issue of liability in November 1977. Plaintiffs urged the Court to require defendants to "undertake a phased Court supervised planning process for remedying the statutory and constitutional violations." (Mem. of Law in Support of Pls.' Mot. for Partial S.J. at 52.) Although defendants objected to plaintiffs' characterization of the conditions at Forest Haven, noting that changes had been implemented following the filing of plaintiffs' lawsuit, defendants acknowledged that "the level of care and habilitation at Forest Haven has never been that which any of the parties to this action desire." (Defs.' Opp'n to Pls.' Mot. for Partial S.J. at 2.) Defendants urged the Court to deny the motion and instead to direct counsel for the parties to enter into discussions as to "what further actions can and should be done . . . to better provide for the mentally retarded at Forest Haven." (Id. at 1, 4.)
I. The 1978 Consent Order
On June 14, 1978, Judge Pratt entered a "Final Judgment and Order" (the "1978 Consent Order" or the "1978 Order"), which was consented to by defendants. Evans v. Washington, 459 F. Supp. 483 (D.D.C. 1978). The Court found that plaintiffs have a federal constitutional right to habilitative care and treatment, to be free from harm, and to receive habilitative care and treatment in the alternative least restrictive of individual liberty and to be kept free from harm. Id. at 484.*fn6 The Court went on to find that violations of these constitutional rights had occurred and ordered extensive permanent injunctive relief, requiring defendants to deinstitutionalize class members and imposing a series of requirements governing virtually all aspects of the District's interim operation of Forest Haven. Id. at 484-90.
With respect to deinstitutionalization, the Court prohibited any further admissions to Forest Haven and ordered defendants to provide all class members with suitable community living arrangements and with the community-based day programs and services necessary to provide them with minimally adequate habilitation in the most integrated and least restrictive community settings. Id. at 484-85, 488.*fn7 The Court also ordered defendants, inter alia, to provide each class member with a written individualized habilitation plan and an individualized habilitation program designed in accordance with the plan; to retain a full-time "Developmental Disabilities professional" (later referred to as the "Court Monitor") to assist defendants and the Court in implementing the Consent Order, including reporting to the Court at ninety-day intervals regarding the status and progress of defendants' efforts to do so; and, in conjunction with the Court Monitor, to develop and submit for court approval a detailed implementation plan for the provision of community living arrangements, programs, and services. Id. at 484-87.
With respect to Forest Haven, the Court ordered defendants, again in conjunction with the Court Monitor, to prepare a plan for the interim operation of the facility pending the placement of class members in community living arrangements and set out a series of requirements for the facility's continued operation. Id. at 488-89. Among other things, the Court prohibited all "[a]cts of physical or psychological abuse, neglect or mistreatment of any Forest Haven resident," required the prompt investigation of all such incidents, and required "[a] program of medical, dental and health related services for class members which provides accessibility, quality and continuity of care for physical illness or injury." Id.
II. The 1981 and 1983 Consent Orders
In January 1981, plaintiff and plaintiff-intervenor filed motions for contempt and for enforcement of the Court's June 1978 Consent Order. The motions were ultimately withdrawn, and the Court entered a further Consent Order on June 25, 1981 (the "1981 Consent Order" or the "1981 Order"), setting forth a list of agreed-upon measures "necessary to the implementation of this Court's Order of June 14, 1978." Evans v. Barry, No. 76-293, Consent Order at 1 (D.D.C. June 25, 1981).*fn8 The 1981 Consent Order reaffirmed defendants' obligations under the 1978 Order and imposed a series of further requirements with respect to staffing and staff training at Forest Haven; the provision of individualized assessments and habilitation plans to all class members, including the identification of all services required by class members regardless of the current availability of those services; procurement of necessary supplies and performance of routine maintenance and repairs required for class members' health, safety, and sanitation; outplacement of class members from Forest Haven with appropriate day programs and living arrangements and with adequate case management support; funding for class members; and the timely processing of contracts. See generally id.
Plaintiff and plaintiff-intervenor again filed contempt motions in June 1982 that resulted in the entry of a further Consent Order on February 8, 1983 (the "1983 Consent Order" or the "1983 Order"). See Evans, Consent Order at 14 (Feb. 8, 1983). The 1983 Order again affirmed defendants' obligations under the earlier Consent Orders and required defendants to take certain additional steps to implement those Orders. See generally id. The 1983 Order required defendants to ensure that periodic assessments were conducted and that individual habilitation plans were developed for all class members; to prepare an assessment of services required by class members; to address certain budget and staffing issues, including maintenance of the appropriate case manager to class member ratio;*fn9 and to properly maintain the facilities at Forest Haven. Id. at 2-9. The Order also imposed requirements with respect to the reporting of "unusual incidents" involving class members; safekeeping of class members' funds; programming; and outplacement of class members, including the requirement that all residents of Forest Haven be placed in community settings by the end of Fiscal Year 1988. Id. at 8-14.
III. Closure of Forest Haven
When defendants failed to meet the 1983 Consent Order's September 30, 1988 deadline for the outplacement of all class members, plaintiffs and plaintiff-intervenor again initiated contempt proceedings in July 1989. The Court did not immediately grant the motion to show cause but instead continued the matter for 120 days to give the parties time to agree to a further consent decree. (Sept. 29, 1989 Hr'g Tr. at 2.) The parties did not agree, however, and after a January 1990 hearing, the Court issued an Order holding the District in civil contempt, observing that it had "no alternative except to find that the District of Columbia has been in consistent and continuing violation of the three Consent Orders [of 1978, 1981 and 1983]." Evans, Order (Jan. 30, 1990). The Court held a sanctions hearing in March 1990 and issued a further Order imposing a schedule for outplacement of the remaining 233 residents of Forest Haven that required all residents to be outplaced by September 30, 1991, and providing for the imposition of fines in the event that defendants failed to meet quarterly outplacement quotas. Evans, Order (Apr. 9, 1990).
In July 1990, while outplacement of the remaining Forest Haven residents pursuant to the Court's April 1990 Order was underway, plaintiffs and plaintiff-intervenor again moved for civil contempt sanctions and damages based on the conditions at Forest Haven.*fn10 The Court denied the motion in May 1991, finding that the level of medical care at Forest Haven, while imperfect, was adequate to meet the needs of the declining population there, Evans, Mem. Op. & Order at 6 (May 15, 1991), and the D.C. Circuit affirmed. Evans v. Kelly, No. 91-5237, 1992 WL 337321, at *1 (D.C. Cir. Nov. 1992).*fn11
Outplacement of all remaining residents was completed in October 1991.
IV. Appointment of Special Master
Plaintiffs and plaintiff-intervenor next initiated contempt proceedings in March 1995, filing motions for contempt, contempt sanctions, appointment of a special master, and emergency injunctive relief based on defendants' nonpayment of providers of residential and day programming services, failure to maintain the required case manager to class member ratio of one to sixty, mismanagement of class members' personal funds, and nonpayment of the Court Monitor.*fn12 The Court issued an Order to Show Cause in April 1995, finding the District to be in violation of the three previously-issued Consent Orders, particularly with respect to the payment of care providers, but suspended further contempt proceedings and consideration of the requests for emergency relief to afford the parties an opportunity to devise a viable plan to bring the District into compliance. Evans, Order to Show Cause at 4 (Apr. 21, 1995). Negotiations between the parties proved unsuccessful, and at a May 1995 hearing, the Court found the District to be in contempt. See Evans, Findings of Fact & Conclusions of Law at 2 (Oct. 11, 1995).
In October 1995, the Honorable Stanley S. Harris, to whom the case was reassigned upon Judge Pratt's death, issued formal Findings of Fact and Conclusions of Law and an Order of Reference. The Court found the District to be in contempt of the prior Consent Orders in three material respects: (1) by being substantially in arrears on undisputed payments to care providers; (2) by failing to maintain the required case manager to class member ratio; and (3) by failing to provide all class members with "community living arrangements suitable to each, in the least separate, most integrated and least restrictive community settings, and to provide all class members with such community-based day programs and services as are necessary to provide them with minimally adequate habilitation." Id. at 7-8.*fn13 Based on the defendants' long history of noncompliance, the Court determined that the appointment of a Special Master was necessary. Evans, Order of Reference at 1-2 (Oct. 11, 1995). The Court appointed Margaret G. Farrell to serve in that capacity and ordered the Special Master to work with the parties to develop and submit a remedial plan through which defendants could purge themselves of the Court's contempt findings. Id. at 2-3.
The Special Master submitted a remedial plan in January 1996, and in August of that year, the Court issued an Order adopting the plan and the Special Master's proposed findings of fact that accompanied it. Evans v. Barry, No. 76-293, 1996 WL 451054, at *1-2 (D.D.C. Aug. 2, 1996) (the "1996 Plan"). The Court-ordered 1996 Plan imposed a series of further requirements with respect to the timely payment of care providers, negotiation of long-term provider contracts, maintenance of the required case management ratio, and implementation of class members' individual habilitation plans.*fn14 Id. at *3-8. The 1996 Plan also provided for imposition of coercive civil fines in the event that defendants failed to meet the Plan's requirements -- fines that the Court determined were necessary in light of defendants' "unrelenting contempt" of the Court's prior Consent Orders and "seeming inability to bring themselves into compliance therewith." Id. at *2-8.*fn15
In February 1999, as part of its decision imposing contempt fines, Judge Harris also amended the 1996 Plan to order the Special Master to work with the parties to develop and recommend to the Court a plan for the conclusion of the litigation and the termination of the Court's jurisdiction in a manner that would ensure that plaintiffs' interests would continue to be protected. Evans, Op. at 18-20 (Feb. 10, 1999). Pursuant to the Court's Order, under the direction of Special Master Farrell, and with the assistance of her then-consultant Clarence L. Sundram,*fn16 the parties engaged in lengthy negotiations that resulted in a series of agreements intended to achieve compliance with the prior Court Orders, to provide for permanent and independent mechanisms to safeguard the rights of class members, and to permit the phased withdrawal of judicial oversight as compliance with the Court Orders was achieved. See Evans v. Williams, 139 F. Supp. 2d 79, 81 (D.D.C. 2001). In particular, the parties agreed to and submitted for Court approval: (1) a set of joint stipulated findings of fact regarding the status of defendants' compliance with the outstanding Court Orders; (2) the "2001 Plan for Compliance and Conclusion of Evans v. Williams" (the "2001 Plan" or the "Plan"); and (3) a Consent Order and accompanying settlement agreement regarding the creation of an external monitoring body to protect the interests of class members and other MRDDA consumers after the end of the case. In March 2001, Judge Harris issued an Opinion and Order approving these agreements. Id. at 85.*fn17
The parties' stipulated findings of fact, which the Court adopted, painted a bleak picture as to defendants' record of noncompliance. The findings acknowledged that there had been a "serious breakdown" in the District's system of support for individuals with developmental disabilities and that the system, which had suffered from years of neglect and mismanagement, "urgently need[ed] to be fixed." Evans, 139 F. Supp. 2d at 96-97; see also, e.g., id. at 98 (noting that District's mental retardation and developmental delivery system was "broken" and needed to be "redefined and rebuilt"). The findings noted that defendants' compliance with the prior Court Orders had deteriorated following the closure of Forest Haven in 1991 and that defendants were not complying with many of the requirements of those Orders. Id. at 98. The findings also identified numerous "fundamental problems," including problems with respect to staffing, staff training, and monitoring; management; reporting of and response to unusual incidents; safeguarding of class members' funds; the budgeting process; and the District's Medicaid Home and Community-Based Services waiver. See id. at 98-107.
Intended to remedy these deficiencies and to provide a means for defendants to come into compliance with the outstanding Court Orders, the 2001 Plan was organized thematically around the broad goals of those Orders. The Plan identified the major goals (and sub-goals) of the Orders as follows:
(1) appropriate individualized habilitation and treatment in the community in the least separate, most integrated and least restrictive settings, including (a) individualized habilitation plans, (b) the provision of residential, vocational, and day services, (c) staff training, and (d) restricted control procedures (including use of medication, restraints, and time out);
(2) protection from harm;
(3) safeguarding consumers' personal possessions;
(4) monitoring, including (a) case management, (b) quality assurance and fiscal audits, and (c) external monitoring;
(5) advocacy for consumers;
(7) timely payment of vendors.
For each of these goals (and sub-goals), the Plan went on to (a) identify the specific provisions of the existing Court Orders that must be complied with; (b) identify the tasks necessary for defendants to meet the requirements of the relevant Court Orders; (c) establish a time frame for implementation of the identified tasks; (d) identify specific outcome criteria for determining defendants' compliance with the relevant Court Orders; (e) establish a threshold standard of compliance that defendants must meet for the particular Court Orders;*fn18 and (f) establish a method for assessing compliance. Although the Plan was developed in the context of the Evans case, it referred throughout to "consumers" rather than "class members." This choice of words was intentional and reflected defendants' "express agree[ment] not to create a bifurcated system of services for its citizens with developmental disabilities" but to "provide the same level of services to class and non-class members." (2001 Plan at 5 n.2.)
The Plan made clear that the measure of defendants' compliance with each group of underlying Court Orders would be whether they had satisfied the specific outcome criteria relating to those Orders. (Id. at 7 ("[W]hile it is the intent of the parties to monitor the timely implementation of the specific tasks that have been identified as necessary for implementation of the Court Orders in each section, the ultimate test of compliance will be in satisfying all of the related outcome criteria.") (emphasis in Plan); see also id. ("[T]he Plan identifies specific outcome criteria for determining compliance with the related group of Court Orders.").) The parties agreed that
if the Court finds that defendants have satisfied the outcome criteria, the defendants will also be in compliance with the related Court Orders pursuant to this Plan, and the Court may vacate the related Court Orders.
(Id. at 7.) Although compliance with the Court Orders depended on defendants' satisfaction of the outcome criteria rather than their completion of the tasks identified therein (see id. ("In the final analysis, it is compliance with the specific outcome criteria that is required . . ., and the tasks identified are a means to this end."), the parties also agreed that "[t]he failure of the defendants to implement the actions identified in the Plan as necessary to meet the requirements of the related Court Orders is also evidence of noncompliance with those Court Orders." (Id.)
The Plan contemplated that as defendants satisfied the outcome criteria for particular groups of Court Orders, they would move the Court to have those Orders vacated and dismissed with the ultimate goal that, over time, defendants would
implement all of the required actions and meet the specified outcome criteria in order to successfully move the Court to vacate and dismiss the related Court Orders, except the declaratory judgment on the constitutional rights of the consumers to receive individualized habilitation in the least separate, most integrated and least restrictive environment and to be protected from harm.
(Id. at 9-10.) Although the Plan itself was "not intended to be an enforceable document," the underlying Court Orders, until vacated and dismissed as provided for in the Plan, would "continue to remain enforceable in federal court." (Id. at 10.) In particular, plaintiffs and plaintiff-intervenor "retain[ed] the right to seek appropriate judicial relief, based on this evidence of noncompliance with the Court Orders, including Orders requiring specific performance of the Plan." (Id.)
The final section of the Plan, captioned "Essential Systemic Conditions," addressed certain other actions to be taken by defendants to assist the District in "developing additional options for the cost-effective implementation of the goals of this action" -- namely, "individualized services in the least restrictive environment to the persons served by the mental retardation and developmental disabilities service delivery system." (Id. at 62.) In particular, the Plan addressed the need to amend the District's Medicaid waiver to expand the number of MRDDA consumers served by the waiver and outlined a series of actions to be taken by District in order to achieve this goal. (Id. at 62-64.) The Plan also set forth certain steps to be taken by the parties and the Special Master to develop and propose legislation to revise and update the existing statutes governing services and supports for persons with developmental disabilities to reflect contemporary approaches. (Id. at 64-65.)
The third component of the series of agreements approved by the Court in March 2001 concerned the creation of the Quality Trust for Individuals with Disabilities, Inc. (the "Quality Trust"), a durable, independent, nonprofit organization to "monitor and advance the individual and collective interests of people with developmental disabilities in the District of Columbia's service delivery system." Evans, 139 F. Supp. 2d at 86. In the Consent Order, defendants agreed to endow and annually fund the Quality Trust with a total of $31.5 million over eleven years in exchange for a waiver of all claims for past violations of Court's Orders, subject to certain exceptions. See id. at 85-90. The settlement agreement set forth in detail the structure of the Quality Trust, the control and use of the funds to be provided by defendants, and the Trust's right of access to information. See id. at 90-96. The settlement agreement also described the purpose and obligations of the Quality Trust, which was to be charged with advancing the individual and collective interests of consumers with developmental disabilities and, in particular, Evans class members; monitoring the health, safety, and welfare of consumers and the protections, services, and supports provided to these consumers; and providing for individual and collective legal services and lay advocacy services for consumers. Id. at 92-95.
VI. Post-2001 Plan Developments
Shortly after the 2001 Plan was approved, this case was reassigned to the undersigned upon the retirement of Judge Harris. Since that time, the Court has monitored defendants' progress in implementing the Plan through periodic status hearings and through the Court Monitor's written quarterly reports.
Although it quickly became apparent that compliance would not be achieved within the time frames set forth in the Plan itself (see, e.g., April-June 2001 Monitor's Report at 1 (noting defendants' failure to comply with Plan's completion dates)), in the six years since the Plan's adoption, defendants have made progress in some respects. The Quality Trust has been established, and defendants have endowed and funded the Trust, as required by both the Plan (2001 Plan at 48) and the Consent Order that accompanied it. Evans, 139 F. Supp. 2d at 87. An independent financial review of the District's treatment of funds held in custody for class and non-class members served by MRDDA for the years 1992 to 2001 was completed, and in June 2004, defendants paid approximately $1.2 million to reimburse class members and other MRDDA consumers for amounts found to be owed to them as a result of that review. (See Special Master's Report, Recommended Findings of Fact and Conclusions of Law and Proposed Order Regarding the Independent Financial Review of Consumers' Funds at 6-7; Evans, Order (Feb. 25, 2004); Defs.' Proposed Findings of Fact ["Defs.' Findings"] at 26.) Defendants have consistently maintained the required ratio of at least one case manager for every thirty class members. (See 2001 Plan ¶¶ D.1.b.2., D.1.d.iv.) Defendants have also developed policies and procedures required by the 2001 Plan and have created systems and structures intended to assist them in achieving the Plan's goals. For example, defendants have established an Incident Management and Investigation Unit ("IMIU"), a quality assurance unit, a training unit, a Fatality Review Committee ("FRC"), and an intake process for the reporting of serious incidents.
Notwithstanding these efforts, problems have persisted with respect to the implementation of defendants' policies and procedures and the effectiveness of defendants' systems and structures. Concerns have repeatedly been raised, for example, with respect to the performance of case managers and providers; the monitoring of health needs and the delivery of health care services; investigations of class member deaths and other serious incidents and the implementation of recommended corrective and preventive actions; and the lack of progress in implementing the Medicaid waiver. Significantly, not one of the underlying Court Orders has been vacated based on a showing by defendants that they have satisfied the standard for compliance with the related outcome criteria under the 2001 Plan.
In January 2004, recognizing that a lack of coordination among the District of Columbia agencies with responsibility for actions necessary to achieve compliance with the 2001 Plan had impeded the timely completion of those actions, the Court ordered the Mayor to assign a Deputy Mayor or other senior official who reported directly to the Mayor to be responsible for the dayto-day efforts of District agencies to achieve compliance with the Plan. Evans, Order at 1-2 (Jan. 21, 2004). The Court further ordered that the Deputy Mayor or other senior official be required to coordinate the efforts of all District agencies "as necessary to secure the timely delivery of appropriate services to class members in compliance with the 2001 Plan and previous [Court Orders],"*fn19 and that the official be required to report periodically to the Special Masters, the Court Monitor, and the Court. Id. at 2-3. Since January 2004, several different individuals have served in this capacity, but as explained herein, bureaucratic bottlenecks still plague the defendants' ability to achieve results.
In the fall of 2005, the parties agreed to a time-limited initiative (the "ninety-day plan") to address some of the more persistent concerns for a subset of class members in need of specialized attention. The ninety-day plan was intended to produce specified improvements, over a period of ninety days, for a limited number of class members and, in the process, to identify and correct some of the systemic barriers that had impeded progress in the past. (See Nov. 28, 2005 Hr'g Tr. at 6; Feb. 22, 2006 Monitor's Report at 4.) In particular, defendants agreed: (1) to review, revise, and implement health care plans for forty-eight "at-risk" class members; (2) to move forty-six consumers, including thirty class members, from unsafe and inappropriate residential programs into smaller, community-based housing;*fn20 and (3) to move forty-two class members out of segregated day programs and into supported employment opportunities. (See Nov. 28, 2005 Hr'g Tr. at 6-8; Feb. 22, 2006 Monitor's Report at 1, 4; U.S. Ex. 6.) When defendants failed to make significant progress towards achieving these goals by the end of January 2006, shortly before the ninety-day period was to expire, the Court directed the parties to negotiate a further Consent Order that would formalize defendants' obligations to address the short-term needs of the identified at-risk class members. (See United States' Notice of the Parties' Failure to Agree at 1, 7-8.) The parties were unable to reach agreement on such an order and so informed the Court in mid-February. (See id.; Pls.' Endorsement of United States' Notice; Def. Anthony Williams's Notice of Filing.) At the conclusion of the ninety-day period, defendants had made only three out of forty-six promised residential placements and only five out of forty-two promised supported employment placements, two of which did not even meet the agreed-upon criteria. (Feb. 22, 2006 Monitor's Report at 1.) Moreover, although defendants made progress in identifying class members' health care needs, health interventions were not implemented for the forty-eight at-risk class members as promised. (Id.)
VII. Current Procedural Posture
Discouraged by the failure of the ninety-day plan, as well as by the lack of progress under the 2001 Plan, plaintiffs filed the instant motion in May 2006, seeking an order finding defendants in noncompliance with the outstanding Court Orders and placing MRDDA into receivership. The United States, as plaintiff-intervenor, also filed a motion for a finding of contempt. At a status conference on June 29, 2006, the Court ordered the parties to engage in settlement discussions with the goal of agreeing to structural changes that would survive the change in administration at the end of the calendar year. (June 29, 2006 Hr'g Tr. at 27, 31.) See also Evans, Order at 1 (June 29, 2006). The Court also directed the parties to establish a discovery schedule and ordered further briefing in response to plaintiffs' argument that the Court need not decide the issue of contempt as a threshold manner. Id. at 1-2.
The Court held a further status conference on July 20, 2006. Although settlement discussions during the preceding weeks had been unsuccessful, the Court encouraged the parties to continue their efforts to reach a settlement. (July 20, 2006 Hr'g Tr. at 4.) With respect to the pending motions, the Court indicated that it would not proceed on plaintiff-intervenor's contempt motion, noting that contempt remedies would be ineffective in addressing the kinds of problems that had been identified by the parties (see id. at 29),*fn21 and bifurcated proceedings on plaintiffs' receivership motion into a "liability" and a "remedy" phase. (Id. at 9.) In the "liability" phase, plaintiffs would be required to show that there had been "systemic, continuous, ...