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IN THE UNITED STATES DISTRICT COUR'I'I\STi ,;,

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EASTERN DISTRICT OF ARKANSAS HELENA DIVISION

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JAM "11 r;6I;1P~/:gjc'!(. C;~E:::«

DARYAL T. NELSON, individually and

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on behalf of all persons similarly situated

) PLAINTIFF

VS.

CONSOLIDATED CIVIL ACTION NO. 2·04CVOOOOl71 WRW

WAL·MART STORES, INC; and WAL·MART TRANSPORTATION LLC

DEFENDANTS

TOMMY ARMSTRONG, Individually and on Behalf of All Persons Similarly Situated

VS.

NO. 2:05 CV·OO134·WRW

WAL·MART STORES, INC; and WAL·MART TRANSPORTATION LLC

PLAINTIFF DEFENDANTS

CONSOLIDATED AMENDED AND SUPPLEMENTED CLASS ACTION COMPLAINT
Case 2:05-cv-00134-WRW Document 11 Filed 08/11/2005 Page 1 of 19
INTRODUCTION 1. This is a class action lawsuit asserting claims under the Civil Rights Act of 1866, 42 U.S.c. § 1981, and Title VII of the Civil Rights Act of 1964,42 U.S,C. § 2000e that Defendants Wal-Mart Stores, Inc. and Wal-Mart Transportation, LLC (collectively "Wal-Mart") discriminate against African Americans in their hiring practices for over·the-road (OTR) truck driver positions throughout the continental United States. Although African Americans comprise approximately 15% of the OTR truck driver population in the continental United

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States, only 2-3% of Wal-Mart's OTR truck drivcrs are African American. The disparity betwcen the percentage of African Americans in the general OTR truck driver population and the percentage of African Americans in Wal-Mart' s OTR truck driver population is the result of nationwide policies, practices and customs that arc purposefully discriminatory and that serve no rea~onable business purpose, yet have a disproportionate impact on African Americans.
2. Among other relief, this class action seeks a declaration that Wal·Mart's conduct is in violation of the Civil Rights Act of 1866 and Title V]] of the Civil Rights Act of 1964, an injunction ending Wal-Mart's discriminatory practices and providing prospective reforms, restitution for the class members and punitive damages.
JURISDICTION AND VENUE 3. This Court has jurisdiction over this action pursuant to 42 U.S.c. § 1981,42 U.S.C. §2000eS(f), 28 U.S.C. § 1331, and 28 U.S.C. §§ 2201 and 2202. 4. This Court has personal jurisdiction over the defendants because each of the defenCdanstes 2ha:0s5it-scvh-e0a0dq1u3a4r-tWersRaWnd priDncoicpuaml pelancte1o1f busFiinleedss0in8/t1h1e/S2t0a0te5of APrakagnesa2soafnd19 engages in business in the State of Arkansas and within this district. 5. This court has determined that venue is proper in this district and division. Additionally, the court has personal jurisdiction over each of the defendants. 6. Plaintiff Armstrong is a resident of Arkansas, and Plaintiff Nelson alleges discrimination against Defendant who operates its principal place of business in Arkansas thus making jurisdiction proper over eaeh of the two Plaintiffs.
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PARTIES 6. Plaintiff Armstrong is an African-American citizen of the United States of America who resides in Woodruff County, Arkansas. 7. Plaintiff Nelson is an African-American citizen of the United States of America who resides in Coldwater, Mississippi. 8. Defendants are Wal-Mart Stores, Inc. and Wal-Mart Transportation llC (collectively "Wal-Mart"). Wal-Mart Transportation LLC is a wholly-owned subsidiary ofWalMart Stores, Inc. Wal-Mart Stores, Inc. is a Delaware Corporation whose principal business location is Bentonville, Arkansas. Its stores and distribution centers are located throughout Arkansas, the United States, and certain other parts of the world.
CLASS ALLEGATIONS 9. This action is brought hy Plaintiffs as a class action, on behalf of themselves and on behalf of all others similarly situated, under the provisions of Federal Rules of Civil ProcCedausree, 2R:u0l5e-2c3v.-0P0l1ai3n4ti-fWfsRseWek ceDrtiofcieuamtioennot f1t1his aFctilieodn a0s8a/1c1la/2ss00ac5tionPoangbeeh3aloffo1f9the following classes of persons:
a. African-American persons who reside in the Continental United States of America, who have applied for employment as OTR truck drivers at Wal-Mart and who have not been hired; and
b. African-American persons who reside in the Continental United States of America who were deterred from applying for or completing applications for OTR truck driver positions at Wal-Mart due to their awareness ofWal-Mart's policy, pattern, practice, andlor custom of not hiring African Americans for such positions.
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10. This case is properly brought as a class action under Rule 23 for the reasons set forth in the following paragraphs.
II. The members of the Class are so numerous that joinder of all members is impracticable. While the exact number of the Class members is unknown to Plaintiffs at this time and can only be ascertained through appropriate discovery, Plaintiffs believe that there are certainly hundreds, and likely thousands, of members in the proposed Class.
12. Plaintiffs' claims are typical of the claims of the members of the Class as all members of the Class are similarly affected by Wal-Matt's wrongful conduct that is complained of herein.
13, Common questions of law and fact exist as to all members of the Class and predominate over any questions solely affecting individual members of the Class. Among the questions of law and fact common to the Class are:
a, Whether Wal-Matt' s common practices and procedures discriminate againCsat sAefr2ic:a0n5--Acvm-e0r0ic1a3n4a-pWpRlicWants fDoroOcuTmRetnrutc1k1drivFerilepods0it8io/n1s1;/2005 Page 4 of 19
b, Whether Wal-Matt's policies, procedures and actions have an adverse impact on the Class;
c, Whether the adverse impact on the Class can be justified by business necessity;
d, Whether injunetive relief, restitution, and other equitable relief is warranted;
e. Whether punitive damages are warranted. 14. The elaims of Plaintiffs, who are representatives of the Class herein, are typical of
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the claims of the Class, There is no conflict among Plaintiffs and other members of the Class with respect to this action or with respect to the claims for relief set forth herein,
15. The named Plaintiffs are the representative parties for the Class, and are able to, and will fairly and adequately protect thc intcrests of the Class. The attorneys for Plaintiffs are experienced and capable in civil litigation and class actions.
16. A class action is superior to all other available methods for the fair and efficient adjudication of this controversy. There will be no difficulty in the managcmcnt of this action as a class action. A class action will redress Wal-Mart's wrongful conduct described herein.
GENERAL ALLEGATIONS 17. Wal-Mart employs approximately one million people in the United States, On information and belief, Wal-Mart employs approximately 10,000 full-time persons as OTR truck drivers, as well as several thousand additional OTR truck drivers on a part-time basis. These employees work in, from, and between approximately forty-four (44) distribution centers or termiCnaalsselo2c:a0t5ed-ctvh-r0o0u1gh3o4u-tWthReWcontinDeonctaulmUennitte1d1StateFsi.leWd a0l8-M/1a1r/t2e0m0p5loysPuangifeor5mof 19 employment, personnel and hiring policies, practices, and procedures throughout the United States. Wal-Mart also employs uniform policies, practices, and procedures in establishing new distribution centers and staffing those centers with employees, including OTR truck drivers. 18. On information and belief. approximately 2-3% ofWal-Marl's OTR truck drivers are African-American. African Americans comprise approximately 14% of the population in the United States. On information and belief, Mrican Amerieans comprise approximately 15% of the OTR truck driver population in the continental United States. The disparity between the percentage of African Americans in the general OTR truck-driver popUlation and the pereentage

of African Americans in Wal-Marfs OTR truck-driver population is the result of purposeful discrimination and of practices that serve no reasonable business purpose yet have a disproportionate impact on African Americans.
19. The written requirements for the position of aIR truck driver at Wal·Mart, which
are applicable on a nationwide basis, are set forth as follows: 3 years and 250,000 miles driving experience in the last 5 years; Minimum of 50,000 miles in the last 12 months with no breaks in service; No single break in service greater than 6 months in the 3-year qualification period; No preventable accidents in the last 3 years; No preventable accidents resulting in a fatality· lifetime; No preventable D.O.T. reportable accidents in the last 10 years; No more than 1 non-preventable accident in the last 3 years; No more than 2 minor moving violations in the last 3 years;
Case 2:05N-covs-e0r0io1u3s4tr-aWffRicWviolaDtiooncsuwmheinlet o1p1eratiFnigleadc0o8m/m11e/r2ci0a0l 5vehicPleaginet6heolfa1st93 years; and Interstate Commercial Drivers License with Hazmat and Airbrakes endorsements.
In addition to these written requirements, Wal-Mart has unwritten requirements that vary from official to official representing Wal-Mart. Defendants apply their written and unwritten employment criteria in a manner that disfavors African-American applicants and that favors white applicants. This is reflected in Wal-Mart's hiring statistics regarding OTR truck drivers.
20. The adverse, intentional, and racially discriminatory practices, which are the subject of this action, are systemic and ingrained. On information and belief, Wal-Mart has becn
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aware of the consequences and effects of its policies, practices and customs (including the fact that it employs a significantly lower percentage of African Americans as OTR truck drivers than competitors, national norms and benchmarks) for many years. Wal-Mart has failed to take effective steps to bring its hiring practices for OTR truck driver positions into conformity with the requirements and expectations of law.
ALLEGATIONS G.F PLAINTIFF ARMSTRONG 21. While employed as a limited duty truck driver at the Wal-Mart distribution center in Searcy, Arkansas, Armstrong was informed by Wal-Mart officials, and learned by word of mouth, of the written qualifying requirements for the position of OTR truck driver at Wal-Mart. 22. Armstrong met the qualifying employment criteria. His employment history reflects the following; a) approximately 20 years truck driving experience; b) an up-to-date commercial driver's license (CDL); c) the absence of preventable accidents for a million miles; d) no preventable accident resulting in a fatality; e) no serious traffic offenses involving moving violaCtioanssei2n:t0h5e-pcavs-t0t0h1re3e4y-WearRs.W Document 11 Filed 08/11/2005 Page 7 of 19 23. Armstrong began applying to work as an OTR truck driver at the Searcy distribution center in 1997. At that time, he spoke with Wal-Mart Supervisor Terry Duncan to inform Dunean of his desire to be moved from a "loader" into an OTR truck driver position. Rather than hiring Armstrong as an OTR truck driver, Defendants hired him as a "yard driver." A yard driver at Wal-Mart has the duty to move trucks and other vehicles sueh as tractors and trailers around within the gates of the distribution centers. The yard driver may drive Wal-Mart vehicles or vehicles from other companies which comc onto Wal-Mart's property for purposes of delivery, receiving and distribution. The non-Wal-Mart drivers are generally not authorized to
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move their vehieles within the Wal-Mart yard. Armstrong was the first African-American yard driver assigned at the Searcy distribution center. Mr. Dunean, however, infonned Armstrong that he would never be an OTR tmck driver at Wal-Mart.
24. At the time Annstrong sought an OTR tmck driver position in 1997, there were vacancies for the position. Annstrong met the qualifications for those positions but was rejected. Wal-Mart continued to seek other applicants for the vacancies and ultimately filled those vacancies with white persons.
Case 2:05-cv-00134-WRW Document 11 Filed 08/11/2005 Page 8 of 19
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25. During the time that Armstrong worked as a yard driver, he continued to drive

commercial vehicles for other trucking companies over the road. This was done on weekends

and at other times when he was off from work at Wal-Mart.

26. Armstrong applied for OTR truck driver positions at Wal-Mart in each year

between 1998 and 2004. On each occasion, he met the written job requirements as well as the

unwritten job requirements communicated to him. Generally, when Armstrong applied, he

completed an application form and indicated the various distribution centers where he wished to

be considered. Armstrong completed at least eight separate applications in 2001, at least six

separate applications in 2002, at least six separate applications in 2003; and at least seven

separate applications in 2004.

27, Between January 2001 and November 2004 Armstrong informed Wal-Mart of his

interest in at least the following twenty-two (22) locations:

Brookhaven, MS Coldwater, MI Case 2:05P-ocrvte-0rv0i1ll3e,4C-WARW Sutherland, VA Marcy, NY Greencastle, IN Opelousas, LA Raymond,NH Buckeye,AZ Spring Valley, IL Searcy, AR

Document 11

Midway, TN Red Bluff, CA FileHdo0p8k/i1n1sv/2il0le0,5KY Page 9 of 19 Cullman, AL Seymour, IN St. James, MO Brooksville, FL Loveland, CO Ottawa, KS Sanger, TX Bentonville, AR

Armstrong physically presented himself to Wal-Mart distribution centers at the following

locations: Searcy and Bentonville, Arkansas; Red Bluff, California; Seymour, Indiana; St.

James, Missouri; Buckeye, Arizona; Hopkinsville, Kentucky, and Midway, Tennessee.

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28. Wal-Mart often informs applicants for OTR truck driver positions in the distribution centers of its receipt of applications by mailing a postcard to them. Armstrong receivcd a number of postcards from various Wal-Mart locations whcrc hc specifically applied.
29. Defendants have opened approximately twenty distribution centers throughout the United States within the past ten years. Armstrong worked for Wal-Mart during all this time and continually sought employment as an OTR truck driver, especially when Wal-Mart was establishing and staffing new distribution centers.
30. From at least 1997 to 2004, Dennis May was the personnel manager for the WalMart distribution center located in Searcy, Arkansas, where Armstrong worked. May was the hiring official for the OTR truck driver position vacancies at the Searcy location and, on information and belief, May influenced the hiring of OTR truck drivers in other locations.
31. On information and belief, May also assisted in the opening of new distribution centers, including assisting in the orientation and training of management personnel. May's trainCinagsean2d:0o5ri-ecnvta-0ti0o1n3o4f-tWheRnWew diDstroicbuutmioenncte1n1ter stFaiflfeidnc0lu8d/1e1d/p2r0o0v5idingPsaugceh s1t0afof fw1it9h information regarding Wal-Mart's policy, pattern, practice, and custom of hiring truck drivers.
32. In 1999, Armstrong completed an application in Searcy, Arkansas, for the position of OTR truck driver. He was refused an interview by Dennis May. May gave Armstrong no reason for rejecting his application. In 2001, Armstrong again encountered May during the applieation process. May interviewed Armstrong. At the time May questioned the accuracy of Armstrong's mileage record but refused to cheek industry record sources in order to verify Armstrong's driving mileage. May also told Armstrong that he did not consider him "fleet material."
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33. Dennis May encountered Armstrong on at least two additional occasions during Armstrong's efforts to be hired by Wal-Mart as an OTR truck driver. One was in 2002, and another was in 2003. In 2002, May again informed Armstrong that May was unable to verify the miles that Armstrong had driven. In 2003, May rejected Armstrong because he had a "gut feeling" that he did not meet the qualifications for the position.
34. During the time that May, acting on behalf of Wal-Mart, was rejecting Armstrong for OTR truck driving positions, May was aware of Armstrong's applications, inquiries, and travels to the other Wal-Mart distribution centers set forth herein.
35. In late September 2004, Armstrong applied to several Wal-Mart distribution centers. He waited for a reply, and when he did not receive a reply by November 2004, Armstrong determined that his latest application had been constructively rejected. He also determined that it would be an exercise in futility for him to continue applying for OTR truck driver positions at Wal-Mart. Realizing that he was locked into a yard driver position, ArmCstarsoeng2r:e0s5ig-cnved-0. 0T1h3e4re-WaftRerW, on MDaorcchum13e,n2t01015, ArFmilsetdro0n8g/f1il1e/d20a0C5hargPeaogfeDi1s1croimf 1in9ation with the United States Equal Employment Opportunity Commission. (Copy attached as Exhibit I). He received his Notice of Right to Sue on July 7, 2005. (Copy attached as Exhibit 2).
36. Between January 2000 and November 2004, Armstrong was aware of large numbers of white persons, who appeared to have less qualifications than Plaintiff. who were hired as OTR truck drivers by Wal-Mart for their distribution centers. A number of these persons were relatives or friends of white truck drivers or other white Wal-Mart employees.
37. It became known at the Searcy Wal-Mart distribution center that an AfricanAmerican applicant had filed a charge of discrimination against Wal-Mart due to having been
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rejected for an OTR truck driver position at the distribution center. It was rumored in Searcy that the charging party was Armstrong. In fact, the charging party was Daryal Nelson of Mississippi. Wal-Mart reacted to the charge by hastily employing one African-American female driver and two African-American male drivers. This increased the number of African-American drivers at the Searcy location from six to nine out of approximately 263 drivers.
38. The reasons articulated by Wal-Mart for not hiring Armstrong to any of the positions for which he applied changed from rejection date to rejection date. The reasons proffered by Wal-Mart in support of their rejection of the multiple applications of Armstrong for the OTR truck driver positions are not legitimate and are discriminatory.
ALLEGATIONS OF PLAINTIFF NELSON 39. Nelson was informed by Wal-Mart of the qualifying requirements for an OTR truck driver. Wal-Mart's qualifying requirements are set forth supra at'll20. Nelson met these qualifying employment criteria. Cas4e1.2:05N-cevls-0on01w3a4s-WlatRerWinformDeodcubmy Denetfe1n1dantFthilaetdh0e 8w/1as1/r2eq0u0i5red toPahagvee1a2goof d19 credit rating as a qualifying condition for the position of OTR truck driver. He met that unwritten job requirement as well. 42. On May 12, 2002, after having applied several times for an OTR position through Wal-Mart's nationwide application process, Nelson was finally offered an interview at the distribution center in Searcy, Arkansas. There, he was given a road test. Upon determination by the terminal manager that Nelson met Wal-Mart's relevant employment conditions and criteria, the interviewing official informed him that he was hired as an OTR truck driver subject to the completion of the formalities required by the Human Relations Director, Dennis May, who was,
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at the time, located at the distribution center in Searcy, Arkansas. 43. May disregarded the terminal manager's decision and informed Nelson that he
would not be given a job as an OTR truck driver and could accept a position as a laborer. When Nelson rejected May's offer, May extended Nelson an opportunity to persuade May that Nelson should be employed as an OTR truck driver. Nelson did so, but to no avail. May used racial stereotyping in refusing to accept the terminal manager's hiring decision. May's "gut feeling" was that Nelson falsified his good credit and driving record. At the time, Nelson had driven 3,010,000 miles without a preventable accident and more than 700,000 miles without any accident at all.
44. At the time of his application for work at Wal-Mart as an OTR truck driver in May 2002 and at the date of his rejection in June 2002, there were vacancies for the position; Nelson met the qualifications for the vacant positions; Nelson was rejected for the positions; Wal-Mart continued to seek other applicants to fill the vacancies; and Wal-Mart later filled the vacaCnacisees 2w:i0th5-wchvi-t0e0p1e3rs4o-nWs.RW Document 11 Filed 08/11/2005 Page 13 of 19
45. Upon being rejected by Wal-Mart's employee, May, on October 4, 2002, Nelson filed a Charge of Employment Discrimination with the United States Equal Employment Opportunity Commission (EEOC). (Copy attached as Exhibit 3). That agency issued a Cause Determination (copy attached as Exhibit 4) and then issued a Notice of Right to Sue on June 22, 2004. (Copy attached as Exhibit 5). Upon information and belief, following the EEOC's issuance of Nelson's Cause Determination, Wal-Mart hired as many African-American drivers as it then had in its entire nationwide truck driver work force.
46. Other than Nelson, numerous African Americans have applied for jobs as OTR
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truck drivers only to be treated in the same or similar fashion as Nelson was by Wal-Mart, despite having met the written and unwritten qualifications for obtaining such employment.
47, Additionally, numerous other African-American potential applicants have been deterred from applying for these positions because of Wal-Mart's discriminatory hiring policies,
FIRST CAUSE OF ACTION (VIOLATION OF CIVIL RIGHTS ACT OF 1866) 48. Plaintiffs repeat and reallege all paragraphs of this complaint. 49. The Civil Rights Act of 1866,42 U.S.C. § 1981, provides: "All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other." 50. The actions, policies, practices, procedures, and customs of Wal-Mart described Case 2:05-cv-00134-WRW Document 11 Filed 08/11/2005 Page 14 of 19 herein discriminates against Plaintiffs and the class Plaintiffs seek to represent on the basis of their race, and denies Plaintiffs and the class the same right to make and enforce contracts as is enjoyed by white citizens of the United States in violation of the Civil Rights Act of 1866. 51. Because of these violations of the Civil Rights Act of 1866, Plaintiffs and the class are entitled to the relief set forth below.
SECOND CAUSE OF ACTION (VIOLATION OF TITLE VII OF CIVIL RIGHTS ACT OF 1964) 52. Plaintiffs repeat and reallege all paragraphs of this complaint. 53. On or about October 4,2002, Daryal T. Nelson filed a Charge of Discrimination
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against Wal-Mart with the United States Equal Employment Opportunity Commission. See Exhibit 3. Mr. Nelson received a Notice of Right to Sue on June 22, 2004 and timely commenced a class action on September 22, 2004, styled as Nelson v. Wal-Mart Stores, Inc., et al., No. 2-04-CV-0171 WRW, which has been consolidated with this action. See Exhibit 5.
54. On or about March 18, 2005, Plaintiff and Class Representative Tommy Armstrong filed a Charge of Discrimination against Wal-Mart with the United States Equal Employment Opportunity Commission. See Exhibit I. Armstrong received a Notice of Right to Sue on July 7, 2005. See Exhibit 2.
55. The conduct, practices, policies, and procedures described above violate Title VII of the Civil Rights Act of 1964,42 U.S.C. §§ 2000e et al, in that Wal-Mart denied and continues to deny African Americans equal opportunity for hiring.
56. Because of these violations of Title VII of the Civil Rights Act of 1964, Plaintiffs and the class are entitled to the relief set forth below.
Case 2:05-cv-00134-WRW REDLoIcEuFmAeLntL1E1GATFIilOedNS08/11/2005 Page 15 of 19 57. Plaintiffs and the class they seek to represent have no plain, adequate, or complete
remedy at law to redress the wrongs alleged herein; and the injunctive relief, including restitution, sought in this action is the only means of securing complete and adequate relief. Plaintiffs and the class they seek to represent are now suffering and will continue to suffer irreparable harm from Wal-Mart' s discriminatory acts and omissions.
58. Because ofWal-Mart's long-standing and well established policy, pattern, practice, and custom of denying qualified African-American persons employment as OTR truck drivers, it is necessary that this Court not only enjoin continuation of such unlawful policy,
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pattern, practice, and custom, it is also necessary that this Court require Wal-Mart to devise, subject to Court approval, a plan for remedying present effects of past discrimination which includes a timetable for remedial action. It is also necessary that the Court allow Plaintiffs to monitor implementation of Wal-Mart's plan to ensure plan compliance and that the effects of Wal-Mart's past discrimination upon Plaintiffs and the class will be fully eliminated.
PUNITIVE DAMAGES 59. Wal-Mart has acted wilfully and/or with reckless indifference with respect to the well-known and well-established rights of Plaintiffs and other members of the class to be free from unlawful employment discrimination due to race, color, and national origin. Plaintiffs and the class members should therefore be allowed to recover punitive damages in an amount to be determined based upon the proof at trial.
JURY DEMA?l.n 60. Plaintiffs pray that all matters properly amenable to trial by jury be so tried. Case 2:05-cv-00134-WRW PRDAocYuEmRenFtO1R1 REFLilIeEdF08/11/2005 Page 16 of 19 WHEREFORE, Plaintiffs and the class respectfully pray for relief as follows: a. Consolidation of this action with the pending, related action styled Nelson v. Wa/-
Mart Stores, Inc. and Wal-Mart Transportation UC, No. 2:04-CV-171 WRW; b. Certification of this matter as a class action on behalf of the proposed class and
designation of Plaintiffs as Class Representative and their counsel of record as Class Counsel; c. Declaratory judgment that the practices complained of herein violate the Civil Rights Act of 1866 and Title VII of the Civil Rights Act of 1964;
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d. Permanent injunction against Wal-Mart, its directors, officers, owners, agents.

successors, employees and representatives, as well as any and all persons acting in

concert with them, from engaging in each of the unlawful practices, policies,

customs and usages set forth herein and proved at trial;

e. Equitable relief in the form of back pay, front pay, and other monetary

compensation related to lost job benefits for Plaintiffs and class members;

f. Prospective injunctive relief which affords Plaintiffs and the class retroactive

seniority and any other benefits of employment which they may have lost due to

Wal-Mart's discriminatory employment practiees;

g. Class damages as authorized by the Civil Rights Acts of J866 and Title VII of

the Civil Rights Act of 1964;

h. Continued jurisdiction of this ca~e for a sufficient period of time, subject to the

Court's monitoring, in order to ensure that the Court's orders are complied with;

CaseI. 2:05-Ccvo-s0ts0i1n3c4ur-rWedR, WincludDinogcuremaseonnta1bl1e attForilneedy'0s8fe/1es1,/2to0t0h5e extPenatgaell1o7weodf b1y9

law;

J

Pre-judgment and post-judgment interest, as provided by law; and

k. Such other relief that may be appropriate.

Respectfully submitted,

John W. Walker, #64046 Shawn Childs, #99058 JOHN W. WALKER, P.A. 1723 S. Broadway little Rock, AR. 72206 (501) 374-3758 - Telephone

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Hank Bates, #98063 Darrin Williams, #94069 Brooke Augusta Owen, #2004091 CAULEY BOWMAN CARNEY & WILLIAMS, PLLC 11311 Arcade Drive, Suite 200 Little Rock, AR 72212 (SOl) 312-8500 - Telephone (501) 312-8505 - Facsimile Morgan C. "Chip" Welch, #75136 Lloyd W. (Tre') Kitchens, #99075 WELCH & KrrCHENS One Riverfront Place, Suite 413 North Little Rock, AR 72114 (501) 978-3030 - Telephone (501) 978-3050 - Facsimile
BY:----j-I:-:::t--\t------BA Ln..",'", ES, #98063
Case 2:05-cv-00134-WRW Document 11 Filed 08/11/2005 Page 18 of 19
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CERIIFlCAIE OF SERVICE

-H- I certify that a true and correct copy of the r,cgoing Motion to Amend Complaint has

been served via U. S. Mail, postage prepaid, this

day of August, 2005, upon:

Philip Kaplan KAPLAN BREWER MAXEY & HARALSON 415 Main Street Little Rock, AR 72201

Lawrence C. DiNardo Michael J. Gray Kathryn A. Stieber JONES DAY 77 West Wacker Chicago, IL 60601-1692

Alison B. Marshall JONES DAY 51 Louisiana Avenue NW Washington, D.C. 20001

Richard H. Deane, Jr. JONES DAY 1420 Peachtrce Atlanta, GA 30309
Case 2:05-cv-00134-WRW

Document 11

Filed 08/11/2005

Page 19 of 19

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 Case 2:04-cv-00171-WRW Document 204-2 Filed 03/05/2009 Page 1 of 53 Case 2:04-cv-00171-WRW Document 201-2 Filed 03/03/2009 Page 1 of 53
SETTLEMENT AGREEMENT
WHEREAS, Daryal Nelson, Tommy Armstrong and Howard Gurley, individually and on behalf of all persons similarly situated, parties of the first part (herein "Plaintiffs"), have filed a lawsuit against Wal-Mart Stores, Inc. and Wal-Mart Transportation LLC, parties of the second part (herein "Defendants") (Plaintiffs and Defendants collectively referred to throughout as "the Parties"); and
WHEREAS, Plaintiffs and their counsel and Defendants and their counsel have been negotiating with a view toward resolving all outstanding issues raised by the Consolidated Litigation; and
WHEREAS, Plaintiffs and Defendants have determined that a Settlement Agreement ("Agreement") is in the best interests of Plaintiffs, the class of individuals they represent and Defendants,
NOW, THEREFORE, they have entered into this Settlement Agreement in order to resolve all issues between the Parties and will submit the Settlement Agreement to the Court for its Preliminary and Final Approval.
I. INTRODUCTION This Settlement Agreement ("Agreement") has been voluntarily entered into by the parties
for the purpose of finally resolving the Consolidated Litigation between them. This Settlement Agreement includes a joint statement of the purposes of the Agreement, a

Case 2:04-cv-00171-WRW Document 204-2 Filed 03/05/2009 Page 2 of 53 Case 2:04-cv-00171-WRW Document 201-2 Filed 03/03/2009 Page 2 of 53
description of the history of the Consolidated Litigation, and various substantive provisions agreed upon by the parties. As a result of negotiations supervised by a mediator, the parties have reached a voluntary agreement that is contained in this Agreement. II. PURPOSES OF THE SETTLEMENT AGREEMENT
The parties have entered into this Settlement Agreement for the following purposes: A. To ensure equal employment opportunity for African Americans applying for positions as over-the-road ("OTR") truck drivers within Wal-Mart's private fleet. B. To provide for the implementation of recruitment, selection and personnel systems that will lead to African Americans composing a representative number of applicants in the applicant flow for the position of OTR truck driver within Wal-Mart's private fleet. C. To create an expedited and efficient procedure for implementing equitable and compensatory relief pursuant to the terms of this Agreement; D. To provide finality to the resolution of all claims and defenses asserted in these civil actions; and E. To resolve all disputes covered by this Settlement Agreement in such a way as to avoid further expensive and protracted litigation. III. DEFINITIONS A. "African American" means all persons having origins in any of the black racial groups of Africa. B. "Applicant Claimant" means an Applicant Class Member who submits a Claim. C. "Applicant Class Member" means any individual who meets the definition under Section VII.B. of this Agreement.
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Case 2:04-cv-00171-WRW Document 204-2 Filed 03/05/2009 Page 3 of 53 Case 2:04-cv-00171-WRW Document 201-2 Filed 03/03/2009 Page 3 of 53
D. "Approval Date" means the date upon which the Court orders Final Approval of the settlement set forth in the Agreement, having determined that it is fair, adequate and reasonable.
E. "Approved Applicant Claimant" means any Applicant Class Member who submits an Approved Claim.
F. "Approved Claim" means any Claim that is approved by the Claims Administrator for payment after the deadline for audits and challenges allowable under Section XVIILF has expired, or, if an audit or challenge is made, after all audits or challenges have been resolved in accordance with Section XVIILF of this Agreement.
G. "Approved Claimant" means any Claimant who has submitted an Approved Claim. H. "Approved Claimant Settlement Fund" means the amount remaining from the Settlement Fund, inclusive of any interest earned, after deduction of the following expenses and costs: Notice and Administration Costs, Class Counsel fees and costs, and Class Representatives' enhancements. L "Approved Deterred Claimant" means any Deterred Class Member who submits an Approved Claim. J. "Best Efforts" mean the good faith and reasonable steps taken to achieve compliance with all the specific objectives to which the Best Efforts are directed. K. "Claim" means any Claim submitted by way of a Claim Form. L. "Claim Form A" and "Claim Form B" mean the Claim Forms substantially in the form of the documents attached hereto as Exhibit 1 and 2, which have been agreed to by the Parties subject to approval by the Settlement Court as the two methods by which Claimants may submit Claims. Claim Form A and Claim Form B shall be referred to collectively as the "Claim Forms." Each Claim Form shall include, or be accompanied by, a Tax Declaration election to
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be filled out by each Claimant. Only those Class Members who submit one or the other of the Claim Fonns are eligible to recover a share of the Settlement proceeds.
M. "Claimant" means any Class Member who submits a Claim. N. "Claims Administrator" means the entity agreed to by the Parties subject to Court approval, which will perfonn the duties of, among other things: (i) mailing the Notice and Claim Fonns (and accompanying Tax Declarations), to Class Members; (ii) tracking returned Claim Forms (and accompanying Tax Declarations) and Exclusion Letters; (iii) notifying the Parties of determinations regarding submitted Claim Forms and Exclusion Letters consistent with this Agreement; (iv) calculating the amounts due to each Claimant who submits an approved Claim; (v) issuing the required Tax Declarations to Claimants; and (vi) with the approval of Wal-Mart and Class Counsel, selecting, engaging, supervising, compensating, removing, and replacing the Trustee ofthe QSF. O. "Class Counsel" means all counsel of record on behalf of Plaintiffs:
John W. Walker Morgan E. Welch Joseph Henry ("Hank") Bates III P. "Class Member" means any individual who meets the definition under Section VII.B.l and 2. Q. "Class Representatives" or "Plaintiffs" mean Daryal T. Nelson, Tommy Armstrong and Howard Gurley. R. "Consolidated Litigation" means the consolidated lawsuit filed by Daryal T. Nelson and Tommy Annstrong, 2:04CVI7IWRW, in the United States District Court for the Eastern District of Arkansas. S. "Court" means the United States District Court for the Eastern District of Arkansas. T. "Deterred Claimant" means any Deterred Class Member who submits a Claim.
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U. "Deterred Class Member" means any individual who meets the definition in Section VILB.2 of this Agreement.
V. "Exclusion Letter" means the letter a Class Member must deliver to the Claims Administrator in order to "opt-out" of the Class and to avoid being bound to the terms of the Settlement Agreement, which provides both injunctive and monetary relief. Upon delivering a valid and timely Exclusion Letter, an individual will no longer be considered a Class Member, part of the Settlement Class, or subject to the Settlement Agreement.
W. "Fairness Hearing" means the proceedings to be held before the Court to determine whether this Settlement Agreement should be approved as fair, adequate and reasonable; whether the Judgment should be entered; and whether the application of the Class Representatives and Class Counsel for payment of Class Counsel Fees and Expenses should be approved.
X. "Final Approval" means the entry of this Agreement on the Approval Date by the United States District Court for the Eastern District of Arkansas, and either: (1) the expiration of the time for filing of a direct appeal from the Court's approval of the Agreement without the filing of a notice of appeal, or (2) if a timely direct appeal is filed, the final resolution of the appeal (including any requests for rehearing and/or petitions for a writ of certiorari), resulting in final judicial approval of the Settlement Agreement.
Y. "Initial Application Date" means the date that an Applicant Claimant first submitted, on or after June 22, 2001, an application for an OTR truck driver position. Unless an Applicant Claimant is able to establish conclusively through written evidence that Wal-Mart's record for Initial Application Date is not correct, the Initial Application Date shall be established by Wal-Mart's record.
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z. "Initial Deterrence Date" means the date that a Deterred Claimant was first
deterred, on or after September 22,2001, from applying for an OTR truck driver position. AA. "Minimum Eligibility Requirements" mean the minimum eligibility requirements
established and published by Wal-Mart in order to be considered for a position as an over-the-road (OTR) truck driver in Wal-Mart's private fleet, and that are in effect at the time benchmarks, as specified in Section XN, are established and placements opportunities, as specified in Section XV, are provided.
BB. "Minimum Qualifications" mean the current (as of the date this Agreement is executed) minimum eligibility requirements established and published by Wal-Mart in order to be considered for a position as an over-the-road (OTR) truck driver in Wal-Mart's private fleet.
CC. "Notice" or "Notice of Settlement" means the notices substantially in the form of the notices attached hereto as Exhibits 3 and 4, which have been agreed to by the Parties subject to Court approval and which the Claims Administrator will mail to each Class Member or cause to be published explaining the terms of the Settlement and the Claims, the exclusion and objection processes, and the date of the Fairness Hearing.
DD. "Notice and Administration Costs" mean the costs and fees of the Claims Administrator to provide notice as described in Section XVII.E, to administer the Settlement as described in Sections X through XVII, and to establish and administer the QSF, including the costs and fees of the Trustee of the QSF, as described in Section XIX.
EE. "Opening" or "Open Position" means a vacancy in an OTR truck driver position that is to be filled by hiring external to Wal-Mart's existing OTR truck driver workforce.
FF. "Parties" means the Class Representatives, the Class Members, and Wal-Mart. GG. "Preliminary Approval Date" means the date upon which the Court enters an Order
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preliminarily approving this Agreement, pending Notice to the Class of the terms of the Settlement Agreement, the right to opt-out of the Class and the right to submit objections to the Agreement, and a hearing on the fairness of the Settlement Agreement.
HH. "Preliminary Approval of Settlement" means proceedings before the Court for the purpose of jointly requesting an order preliminarily approving (1) this Settlement Agreement, (2) certification of the Settlement Class and (3) Notice of Settlement and the Plan of Notice. Class Counsel will also request that the Court appoint a Claims Administrator agreed to by the parties to oversee the management of the Settlement Funds and the implementation of the Settlement. The hearing for Preliminary Approval of Settlement and appointment of a Claims Administrator is currently scheduled for February 25, 2009 at 9:00 a.m The Order preliminarily approving this Settlement Agreement, shall be substantially in the form attached hereto as Exhibit 5.
II. "Qualified Settlement Fund" or "QSF' means the Qualified Settlement Fund to be set up in accordance with Section XIX of this agreement. All payments from the Settlement Fund, including distribution checks to Approved Claimants and the Class Counsel fees and expenses as approved by the Court shall be made through the QSF.
JJ. "Release" means the release of claims set forth in Section VIII of the Agreement. KK. "Settlement Class" means those persons described in Section VILB.l and 2 of the Agreement. LL. "Settlement Class Members" mean each and every person described in Section VII.B.l and 2 of the Agreement, who does not exercise his or her right to opt out of the Settlement Class pursuant to Section XVILF.2. MM. "Settlement Fund" means $17,500,000 to be paid by Wal-Mart pursuant to this Settlement.
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NN. "Tax Declaration" means a Form W-4 or such other analogous state or federal tax declaration as the Claims Administrator may reasonably require of to Class Members in accordance with Section XIX.E.
00. "Term of the Agreement," "Period of the Agreement" or "Duration of the Agreement" is the period provided under Section VI of the Agreement.
PP. "Transportation Office (TO)" is anyone of the transportation offices located throughout the continental United States that have been established by Wal-Mart to provide transportation services for the delivery of goods and merchandise to Wal-Mart Stores and that engage in the hiring of OTR truck drivers.
QQ. "Wal-Mart" or the "Company" means Wal-Mart Stores, Inc. and/or Wal-Mart
Transportation LLC, as well as its parents, subsidiaries, affiliates, officers, directors, agents, management, successors and assigns and those in active concert or participation with them, or any of them. IV. LITIGATION BACKGROUND
On September 22, 2004, Daryal T. Nelson, a rejected applicant for an OTR truck driver position at Wal-Mart, filed a class action complaint in this Court against Wal-Mart, which he amended on September 24, 2004, alleging that Wal-Mart discriminates against African Americans when hiring for OTR truck driver positions. Nelson's lawsuit asserted claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981.
On June 16, 2005, Tommy Armstrong, a former Wal-Mart Distribution Center employee and a rejected applicant for an OTR truck driver position at Wal-Mart, filed his class action complaint alleging that Wal-Mart discriminates against African Americans when hiring for OTR truck driver positions. Like Nelson, Armstrong's lawsuit asserted claims against Wal-Mart
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pursuant to 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
On June 27, 2005, this Court consolidated the Nelson and Armstrong complaints. On August II, 2005, Armstrong and Nelson filed a Consolidated, Amended and Supplemental Class Action Complaint under Title VII and § 1981, alleging that Wal-Mart discriminates on the basis of race against African Americans seeking positions as OTR truck drivers. In their Consolidated, Amended and Supplemental Class Action Complaint, Plaintiffs claimed relief under theories of disparate treatment and disparate impact, and sought back pay, front pay, injunctive relief, punitive damages, and attorneys' fees.
On March 13, 2006, Plaintiffs filed their motion for class certification. On May 16, 2007, this Court partially granted and partially denied Plaintiffs' motion for class certification. In granting in part Plaintiffs' motion, the Court certified a class action, under Federal Rule of Civil Procedure 23(b)(2) for purposes of determining class-wide liability and obtaining declaratory and equitable relief. The Court's certified class, consisting of two sub-classes, included:
a. African American persons who reside in the continental United States of America who have applied for employment as over-the-road truck drivers at Wal-Mart since September 22, 2001, and who have not been hired; and
b. African American persons who reside in the continental United States of America who were deterred or thwarted from applying for positions as over-the-road truck drivers at Wal-Mart due to Wal-Mart's challenged policies and practices.
The Court denied Plaintiffs' request for certification of a class under Rule 23(b)(3) on the issue of punitive and compensatory damages, holding that "[a]ny class member wishing to bring an individual suit for punitive or compensatory damages after the conclusion of this litigation
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will be free to do so without worrying about the risk of res judicata." After May 2007, the parties conducted discovery on the merits of the class claims. The
discovery was broad, extensive, and thorough. The discovery included requests for production of documents, interrogatories and depositions of both lay and expert witnesses. Over two million pages of documents were produced. In addition, Wal-Mart produced computerized payroll data for all OTR truck drivers from 1998 through 2008 and 238 computer-readable logs of applications for OTR truck driver positions (including, in aggregate, 253,970 entries). With regard to depositions, over 50 persons were deposed including the Class Representatives and approximately 25 class members.
In July and September 2008, the parties served and filed expert reports and rebuttal expert reports. Plaintiffs submitted expert reports from Dr. Martin Shapiro, a statistician; Dr. Marc Bendick, a labor economist; and Dr. William Bielby, a sociologist. Wal-Mart submitted expert reports from Dr. Robert Topel, a labor economist; Dr. James Peoples, an economics professor at the University of Wisconsin-Milwaukee with a background in the trucking industry; Dr. John Ozment, a transportation logistics professor at the University of Arkansas; and Dr. Philip Tetlock, a sociologist.
After the discovery cutoff, Wal-Mart filed four motions: (1) a motion for summary judgment on the class claims; (2) a motion for summary judgment on the individual claims of the Class Representatives; (3) a motion for decertification; and (4) a motion to strike the testimony of Drs. Shapiro and Bendick. On January 14, 2009, the Court entered orders denying WalMart's motions for summary judgment on the class claims, decertification, and to strike the testimony of the experts. On January 27, 2009, the Court entered an order denying without prejudice Wal-Mart's motion for summary judgment on the individual claims.
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The trial was scheduled to begin March 16,2009, and was scheduled to last three weeks. On December 16, 22, and 23, 2008 and January 13, 14, 21, 22 and 29, 2009, the parties attended settlement and mediation sessions in an attempt to resolve the Consolidated Litigation. These settlement negotiations have culminated in this Settlement Agreement. V. JURISDICTION The Court has jurisdiction over the parties and subject matter of the civil action. This Court shall retain jurisdiction of this matter to enforce the terms of this Agreement. VI. EFFECTIVE DATES AND DURATION OF THE AGREEMENT A. Unless provided otherwise, the provisions in this Agreement are effective immediately upon the Final Approval. B. The programmatic provisions of this Agreement contained in Sections X through XVI shall remain in effect for a period of four years (48 months), measured from the later of Final Approval or the date Wal-Mart implements the process for establishing TO hiring benchmarks set forth in Section XIV(B)(4), unless extended by the express written agreement of the Parties.
VII. SETTLEMENT CLASS A. Certification of Settlement Class. 1. Class Counsel shall request that the District Court amend its prior orders
regarding class certification in this Consolidated Litigation to certify the classes pursuant to Rule 23(b)(3), and to add in certain claims that were not previously certified, solely for the purpose of implementing the terms of this Settlement. The form of amended class certification order shall, subject to Court approval, expressly state that the Parties and Class Counsel agree that certification of the Settlement Class is a conditional certification for settlement purposes only,
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and that Wal-Mart retains its right to object to certification of this Consolidated Litigation, or any other class action, under PRCP 23 or any other applicable rule, statute, law, or provision.
2. The Parties and Class Counsel agree that, if approved, certification of the Settlement Class is a conditional certification for settlement purposes only, and if for any reason the District Court does not grant Final Approval of the Settlement, or if Final Approval is not given following the appeal of any order by the District Court, the certification of the Settlement Class for settlement purposes shall be deemed null and void without further action by the Court or any of the Parties, and each Party shall retain all of their respective rights as they existed prior to execution of this Settlement Agreement, and neither this Settlement Agreement, nor any of its accompanying exhibits or any orders entered by the Court in connection with this Settlement Agreement, shall be admissible or used for any purpose in this Consolidated Litigation. Specifically, the Parties and Class Counsel agree that in the event that Final Approval is not obtained, nothing in this Agreement shall be deemed to waive Wal-Mart's objections and defenses to class certification, including but not limited to predominance, manageability, liability, or entitlement to monetary or equitable relief, or any other issue in the Consolidated Litigation or any other litigation, and this Agreement shall then be deemed null and void and not admissible in any court regarding the propriety of class certification, liability, or entitlement to monetary or equitable relief, or any other issue in the Consolidated Litigation or any other litigation. Further, in the event that Final Approval is not obtained, the Court's prior Rule 23(b)(2) order for class certification shall be reinstated and neither Party shall have waived any claims, objections, or defenses that existed in connection with the Consolidated Litigation.
3. The Parties and Class Counsel agree that, if approved, certification of the Settlement Class for settlement purposes is in no wayan admission by Wal-Mart that class
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certification is proper in this Consolidated Litigation, or any other litigation, against Wal-Mart. Moreover, Wal-Mart continues to assert that this Consolidated Litigation fails to meet the prerequisites necessary for class or collective action treatment under applicable law, especially with respect to predominance and manageability because the need to determine individualized issues and to satisfy due-process requirements make the case unmanageable. The Parties and Class Counsel further agree that, other than to effectuate the Settlement of this Consolidated Litigation in this jurisdiction, the certification of the Settlement Class for settlement purposes and all documents related thereto, including this Agreement and all accompanying exhibits and all orders entered by the Court in connection with this Agreement, are not intended to be admissible in any judicial, arbitral, administrative, investigative, or other court, tribunal, forum, or other proceeding, including without limitation any wage and hour litigation, or any other litigation, against Wal-Mart. The Parties and Class Counsel agree that by entering into this Settlement Agreement and establishing a Settlement Class, the issues and problems of predominance and manageability are avoided, and that by providing notice and the opportunity to opt-out, due-process requirements are satisfied.
B. The Settlement Class Consists of: I. African American persons, residing in the continental United States of
America, who, on or after June 22, 2001, applied for employment as OTR truck drivers at WalMart and who were not hired or who, on or after September 22, 200 I, received notification of rejection for employment as OTR truck drivers at Wal-Mart ("Applicant Class Members"); and
2. African American persons, residing in the continental United States of America, who, on or after September 22, 2001, were deterred or thwarted from applying for employment as over-the road truck drivers at Wal-Mart due to policies and practices challenged
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in the Consolidated Litigation ("Deterred Class Members"). C. The Right to Opt-Out. Any individual. meeting the definition of Class Member. who. through a timely filed
Exclusion Letter. may opt-out of the Settlement Class and the provisions of the Settlement Agreement, and, in doing so, such individual shall not be held to the terms of the release contained in the Settlement Agreement. VIII. RELEASE OF CLAIMS IN PRIVATE ACTIONS
A. Release of Claims by Settlement Class. Upon Final Approval of the Agreement, Wal-Mart and its employees, officers, managers, insurers, representatives, and attorneys shall be fully released and forever discharged from any and all individual and/or class-wide claims, demands, charges, complaints, rights and causes of action of any kind, known or unknown, by the Class Representatives and all members of the Settlement Class other than those who opt out of the Settlement Class (collectively hereafter "Releasers"), and by the Releasers' estates, whether seeking monetary and/or equitable relief of any sort, arising out of any conduct prior to the Preliminary Approval Date constituting alleged race discrimination in the hiring process for OTR truck drivers for Wal-Mart's private fleet (including claims of individuals who applied for employment, attempted to apply for employment, or were discouraged from applying for employment) and any terms and conditions of employment that were asserted in the Consolidated Litigation or that could have been asserted or raised in the Consolidated Litigation, whether know or unknown, on the basis of, connected with, arising out of, or related in whole or in part to any or all of the alleged acts, omissions, facts. matters, transactions, circumstances, and occurrences that were directly or indirectly alleged, asserted, described, set forth or referred to in the Consolidated Litigation, whether such
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allegations were or could have been based on common law or equity, or on any statute, rule, regulation, order, or law, whether federal, state, or local, or any grounds whatsoever, including, without limitation, Title VII, 42 U.S.C. § 1981, the Arkansas Civil Rights Act, or any other federal, state, or local law prohibiting race discrimination. (The released common law and/or equitable claims include but are not limited to the following: claims of breach of express or implied contract; breach of duty; breach of the (implied) covenant of good faith and fair dealing; unfair business practices; and claims for declaratory relief; injunctive relief; punitive damages; and attorneys' fees.)
This release also includes a release of all claims for attorneys' fees and costs incurred by Class Members or by Class Counsel in connection with the Consolidated Litigation and the Settlement of the Consolidated Litigation.
Further, Releasers understand and agree that this release is a full and final general release applying to both those released claims that are currently known, anticipated, or disclosed to the Class Members and to all those released claims that are presently unknown, unanticipated, and undisclosed to any and all Class Members arising out of the alleged facts, circumstances, and occurrences underlying: (i) the claims set forth in the Consolidated Litigation; and (ii) WalMart's conduct with respect to the Consolidated Litigation. In exchange for the good and valuable consideration set forth herein, the Class Members, for themselves and the Settlement Class waive any and all rights or benefits that they as individuals or the classes may now have as a result of the alleged facts, circumstances, and occurrences underlying the claims set forth in the Consolidated Litigation under the terms of Section 1542 (a) of the California Civil Code (or similar statute in effect in any other jurisdiction), which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
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CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH DEBTOR. Finally, this Release, the form of which is attached as Exhibit 6, is final and shall survive expiration of the Agreement's terms.
B. General Release of all Claims by Class Representatives. Upon Final Approval of the Agreement, for and in consideration of the mutual promises, terms and conditions by and between Class Representatives and Wal-Mart set forth herein, the sufficiency of which consideration is expressly acknowledged, the Class Representatives do hereby fully, finally and forever release and discharge Wal-Mart and its employees, officers, managers, insurers and attorneys from any and all past and/or present claims, demands, actions, causes of action, suits, damages, liabilities, assessments, judgments, costs, losses, debts, obligations and expenses, of any and every nature whatsoever, whether or not known, that they have had, now have, or may have from the beginning of time to the Preliminary Approval Date, including without limitation those arising in any way out of the alleged facts, circumstances and occurrences underlying those allegations of violations of Title VII, § 1981, the Arkansas Civil Rights Act, and any other federal, state, or local law prohibiting race discrimination, that were asserted or that might have been asserted by or on behalf of the Class Representatives and/or Class Members against Wal-Mart in this Consolidated Litigation. This Release is final and shall survive the expiration of the Term of the Agreement. Prior to receiving any monetary relief under this Agreement, including any enhanced payment, each Class Representative will be required to execute a full and final general release of all claims against Wal-Mart, known or unknown, whether or not asserted in or related to the Consolidated Litigation, in the form attached as Exhibit 7.
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C. Unknown Claims. Class Representatives and Settlement Class Members acknowledge that they may not now know fully the number or magnitude of the claims they may have, and that they may suffer some further loss or damage in some way connected with the subject matter of the Consolidated Litigation, but which is unknown or unanticipated at this time. Class Representatives and Settlement Class Members have taken these risks and possibilities into account and accept that, nevertheless, this Settlement Agreement covers all claims arising out of or related to the subject matter of the Consolidated Litigation, which, although unknown at the time of the execution of this Settlement Agreement, may be discovered later. Class Representatives and Settlement Class Members expressly waive any right to assert hereafter that through ignorance, oversight, or error any claim was intended to be excluded from this Settlement Agreement. D. No Bar to Future Claims. Nothing in the Agreement shall be construed to bar any claims of the Class Representatives or Settlement Class Members that arise after the Preliminary Approval Date. IX. NO ADMISSION OF LIABILITY This Settlement Agreement does not constitute and shall not be deemed to be a finding or determination by the Court, or an admission by any party, regarding the merits, validity or accuracy of any of the allegations, claims or defenses asserted in the Consolidated Litigation. This Agreement represents the compromise of disputed claims that the parties recognize would require protracted and costly litigation to determine. Wal-Mart denies that it has engaged in any policy or pattern or practice of unlawful discrimination, or that it has engaged in any other unlawful conduct as alleged in the Consolidated Litigation, and Wal-Mart's entry into this Agreement is not and may not be used by any person in any proceeding as an admission or
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evidence that Wal-Mart and/or its employees, managers, and/or attorneys have on any occasion engaged in discriminatory employment practices or any other unlawful conduct, such being expressly denied. Wal-Mart has voluntarily entered into this Agreement because it believes the actions it has agreed to undertake demonstrate its strong commitment to diversity and equal employment opportunity. Neither the Agreement nor any compliance reports, filings, data, or other compliance information arising out of or related to the Agreement shall be discoverable, admissible or used as evidence of liability or non-liability for unlawful discrimination in any proceeding other than one relating to the enforcement of this Agreement. X. MONETARY RELIEF
A. Wal-Mart shall, at the times required by this Agreement, transfer into a Qualified Settlement Fund ("QSF"), as further discussed in Section XIX, the amount of $17,500,000 for the purpose of providing individual monetary awards to Approved Claimants, payment of enhancements to Class Representatives, payment of Class Counsel's fees and litigation costs, and payment of Notice and Administration Costs. In addition, and separate from its obligation to transfer $17,500,000 into the QSF, Wal-Mart will pay its share of employer's payroll taxes. WalMart shall place at least $500,000 of the Class Settlement Amount in the QSF within ten (l0) business days of Preliminary Approval or seven (7) business days after the QSF has been established, which ever event occurs last. Wal-Mart shall retain the right to defer transferring the remaining Class Settlement Amount into the QSF until Final Approval. If Wal-Mart elects to defer payment ofthe remaining portion until Final Approval, Wal-Mart agrees that it will fund the remaining $17 million of the Settlement Fund within ten (10) business days after Final Approval, plus interest at an annualized rate of .75% to be calculated on a pro-rata basis based on the number of days between the Preliminary Approval Date and the date the wire is paid into the QSF
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for the benefit of the Settlement Class. If for any reason the Settlement is not approved or ifWalMart exercises it right to rescind the Agreement as provided in Section XVlIG, all monies paid into the QSF along with accumulated interest, which have not been expended as part of the Notice and Administration Costs, shall be returned to WaI-Mart.
B. After all payments of attorneys' fees and litigation costs for Class Counsel, payments of enhancements to the Class Representatives, and payments of Notice and Administration Costs, have been made, and the sum of these amounts has been subtracted from the $17,500,000 that is to be paid by Wal-Mart into the QSF, the resulting amount ("Approved Claimant Settlement Fund") will be designated for payment to Approved Claimants pursuant to the allocation plan set forth in Section XXB.
C. If there are fewer than 100 Approved Claimants, a minimum of $2,000,000 shall be subject to cy pres. Of the cy pres amount, 10% shall go to Arkansas Baptist College in Little Rock, Arkansas; 10% shall go to Philander Smith College in Little Rock, Arkansas, and 80% will go to the United Negro College Fund to fund college scholarships for African American OTR truck drivers or the dependents of African American OTR truck drivers.
D. Wal-Mart will not oppose enhancement payments to Class Representatives provided the payments do not exceed a total of $85,000 with neither Tommy Armstrong nor Daryal Nelson receiving more than $40,000 each and Howard Gurley receiving no more than $5,000, and further provided that Gurley, as Class Representative of the Deterred Class Members, receiving less than Armstrong and Nelson, Class Representatives of the Applicant Class Members. XI. PROGRAMMATIC RELIEF
A. All programmatic relief established pursuant to Sections XI through XVI of this
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Agreement wit! be monitored by Wal-Mart's Office of Diversity. In addition to amounts deposited in the Settlement Fund, Wal-Mart shall pay to Class Counsel $200,000 as a one time only amount for Counsel to utilize in hiring consultants to assist in analyzing the various reports and compliance with the Settlement Agreement throughout the term of the Settlement Agreement. This amount wit! be provided to Class Counsel within ten (10) business days after Final Approval.
B. Nothing contained in the Programmatic Relief sections of this Agreement commits or requires Wal-Mart to create new or additional OTR truck driver positions. XII. EEO TRAINING
All programmatic relief established pursuant to Sections XI through XVI of this Agreement will be conducted and monitored by Wal-Mart's Office of Diversity. During the term of the Agreement, Wal-Mart shall provide training regarding equal employment opportunity and specific compliance with the provisions of the Agreement to the following Transportation Department employees: personnel clerks, members of screening committees, human resources managers, operations managers and general transportation managers. The training shall include the following topics: (I) compliance with the Agreement; (2) equal employment opportunity and nondiscrimination as required by Wal-Mart; (3) federal, state and Company prohibitions of unlawful discrimination in hiring, training and retaliation; and (4) other topics that will encourage and promote equal employment in recruiting and hiring of African Americans. Such training may be delivered by computer program, live "discussion" format, video format, written materials, or any combination of these or other formats tailored to be effective in communicating the material, provided, however, that such training as it occurs within the first twelve months following Final Approval shall not be provided to participants solely through written materials. Plaintiffs shall not have prior input into the content or sufficiency of the training or materials
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unless requested by Defendants. However, Plaintiffs reserve the right to review, analyze and potentially challenge the sufficiency of the training or materials as insufficient to meet the goal of encouraging and promoting equal employment in recruiting and hiring of African Americans.
At Wal-Mart's discretion, the training described in this section may be held in conjunction with other Company business.
Wal-Mart shall institutionalize the terms of this Agreement by incorporating this Agreement's programmatic relief into the diversity training. XIII. ACTIVE RECRUITING EFFORTS
A. Purpose and Aspirational Goal. The parties agree that the purpose of the Active Recruiting Efforts, as further described herein, is to increase the proportion of available, interested and qualified African Americans in the flow of applicants for OTR truck driver positions at Wal-Mart. To that end, and for the term of this Agreement, Wal-Mart will work to maximize the percentage of available, interested and qualified African American OTR truck driver applicants in its applicant flow. B. Diversity Recruiter. Within two months from Final Approval, Wal-Mart will assign to an individual or individuals within the Transportation Department the responsibility for the recruitment of available, interested and qualified African American applicants for Wal-Mart's OTR truck driver position. Such person or persons will be in addition to any person currently responsible for OTR recruitment. Upon expiration of this Agreement, Wal-Mart may extinguish such responsibility if it so chooses. C. Advertisements. During the Term of the Agreement, whenever it is determined by Wal-Mart that there is a need to fill an Opening with outside individuals, for each such Opening, Wal-Mart shall
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advertise and publicize OTR truck driver employment opportunities in a manner reasonably calculated to eliminate any deterrent effect on African American applicants and to attract African American applicants so that all available, interested, and qualified individuals have an opportunity to become a part of the flow of applicants from which the position will be filled.
D. Recruiting Events. During the Term of the Agreement, Wal-Mart will present a presence at job fairs throughout the United States for available, interested and qualified African American OTR truck drivers, if such job fairs exist; and it will present a presence at other OTR truck driver recruiting events that are attended by African Americans. E. Screening Committee Diversity. As long as the driver screening committee remains a part of the hiring process for OTR truck driver positions, Wal-Mart shall establish a goal of including one ethnic or racial minority on every screening committee at each TO and shall monitor compliance with that goal through its annual audits of each TO. In addition, Wal-Mart shall incorporate such goals into the annual review of appropriate management personnel, who are assessed on whether diversity goals have been met. During the term of this Agreement, if Wal-Mart makes changes to its screening committee process, WalMart will report to Class Counsel the changes to its screening committee process and how such changes are consistent with the terms and goals of this Settlement Agreement. F. Individual Notice of Openings to Applicants. The purpose of this section is to provide individual notice of OTR truck driver Openings to interested Approved Claimants. For the Duration of this Agreement, Wal-Mart agrees to maintain at its home office a roster of those Approved Claimants who indicate on the Claim Form they are available and interested and continue to meet Minimum Qualifications for positions as
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OTR truck drivers at Wal-Mart's TOs. Except for the Openings that are to be filled under Section XV of this Agreement, as soon as it is determined that an Opening for an OTR truck driver occurs, Wal-Mart shall notify each Approved Claimant on the home office roster by email if available, otherwise by regular mail, at the address indicated on the Claim Form unless specifically changed by the Claimant thereafter. The Claimant will have twenty-one (21) days from the date of the notice to return an application to the place indicated in the notice in order to be considered for the Opening. Approval of a Claim by the Claims Administrator neither determines whether that Claimant meets Minimum Eligibility Requirements nor creates a presumption that the Claimant meets Minimum Eligibility Requirements.
G. Documentation. Wal-Mart will ensure that it documents its recruiting efforts and its efforts to provide the individual notice of Openings as provided in Section XIII.F and that all such records are retained for review by the Office of Diversity and are available to Class Counsel. Such documentation shall include, specifically but not exclusively: I) a description of tbe placement of advertisements (publication, size, time, duration, targeted audience) and 2) a description of recruiting events/job fairs attended (place, date, targeted audience). XIV. BENCHMARKS A. General Principles.
I. Wal-Mart shall use its Best Efforts in good faith to meet or surpass the selection benchmarks as set forth in this section. The benchmarks do not establish maximum or minimum rates for the selection of African American OTR truck drivers.
2. In attempting to meet these Benchmarks, Wal-Mart shall not be required to select persons who do not meet Minimum Eligibility Requirements or to displace any incumbent associate from his or her position. Wal-Mart shall retain the right to select the individuals it, in
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its sole good faith discretion, deems best qualified to fill the positions. These Benchmarks are not quotas; rather, they are expectations designed to afford guidance in detennining whether Wal-Mart is making selection decisions in such a way as to afford equal employment opportunity for African American truck drivers.
3. As further provided herein, in order to establish Benchmarks, Wal-Mart shall institute the use of voluntary self-identification on application fonns to identify the race of applicants. Once an applicant has self identified, that applicant's self- identification shall remain unchanged absent a compelling reason and proof for changing it.
4. All Benchmarks shall be detennined on a TO-by-TO basis. Meeting Benchmarks on a TO-by-TO basis is not conclusive of compliance with this Agreement, and all relevant factors can be used to detennine compliance.
B. Establishment of Benchmarks. \. As soon as technologically possible after the date of Final Approval, Wal-
Mart will implement a process that will allow it to post Openings on its website and will allow an individual to download an OTR truck driver application from an on-line website.
2. Within twelve (12) months from the date of Final Approval, Wal-Mart will implement a process that will allow applicants for OTR truck driver positions to provide selfidentifying infonnation.
3. Within twelve (12) months from the date of Final Approval, Wal-Mart shall begin monitoring, by the use of applicant self-identification, applicant flow of African Americans for open OTR truck driver positions at each stage of the hiring process including: (a) initial application, (b) meeting of Minimum Eligibility Requirements, (c) selection for interview before a screening committee, (d) recommendation for a management interview, (e) selection for
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a management interview, (D offer, and (g) acceptance. In addition, Wal-Mart will maintain in log format the home address (including ZIP code) of all applicants as well as each applicant's response (or non-response) to the inquiry on the application as to how the applicant learned of the job opening.
4. Within twelve (12) months from the date of Final Approval, Wal-Mart will implement a process that will allow it to establish on a TO-by-TO basis hiring benchmarks for all open OTR truck driver positions based on the proportion of minimally qualified, interested and available African Americans applying for an open OTR truck driver position at a TO as compared to the total number of minimally qualified, interested and available individuals competing for the same position. Actual applicant flow information shall be used to determine the number of African American applicants meeting then existing Minimum Eligibility Requirements, as well as the number of applicants of all races meeting then existing Minimum Eligibility Requirements.
5. The Applicant Rate for OTR truck driver positions shall be the applicant flow rate of a group as measured by the applicants who meet then existing Minimum Eligibility Requirements and are available for Open Positions (those which are vacant and being filled by external applicants) at individual TOs.
6. With regard to the time tables in paragraphs B.2-4 above, Wal-Mart will proceed with all possible dispatch to accomplish the goals set forth in those paragraphs prior to the twelve (12) month deadline, recognizing that there are technological problems inherent in establishing the processes involved. The first report called for in this Settlement Agreement shall set forth Wal-Mart's progress in meeting its requirements in B.2-4.
7. Pursuant to this Settlement Agreement, Wal-Mart aspires to hire African American OTR truck drivers at each of its Transportation Offices in proportion to the Applicant
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Rate as described above.
8. Pursuant to this Settlement Agreement, Wal-Mart will take steps to ensure
that even though applicants will be able to self-identify their race, any racial designation is kept
from those who make OTR truck driver hiring decisions at a TO, including Screening Committee
members, general transportation managers, and human resources managers, other than as is
required to effect other provisions of this Agreement.
9. The Parties recognize that implementation of these Benchmarks and the
procedures necessary to establish Benchmarks may require changes in the present way
applications are treated and hiring decisions are made, but, consistent with these objectives, Wal-
Mart will make Best Efforts to achieve these objectives.
XV. PLACEMENT OPPORTUNITIES A. Wal-Mart will provide a total of twenty-three (23) placement opportunities to
Approved Applicant Claimants at the following TOs:
Palestine, TX Coldwater, MI Mt. Crawford, VA Cullman,AL Douglas, GA Midway, TN LaGrange, GA Spring Valley, IL Mt. Pleasant, IA St. James, MO Grantsville, UT Plainview, TX Ft. Pierce, FL.
A placement will be made at each of these thirteen (13) TOs; there will no more than two
placements pursuant to this provision at anyone TO.
B. Approved Applicant Claimants, who qualify for a placement opportunity, will be
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afforded the fIrst and second Openings that become available at each of the identifIed TOs (until the twenty-three placements obligations are satisfIed) once all audits or challenges of Claim determinations are completed by the Claims Administer and the Claims Administrator has delivered to Wal-Mart a list of those Approved Applicant Claimants who seek placement and the Initial Application Date to be used in making placement decisions.
C. In order to qualify for one of these placement opportunities, an Approved Applicant Claimant must:
I. Meet all Minimum Eligibility Requirements existing at the time of the placement;
2. Pass all routine tests and screening processes that are part of Wal-Mart's OTR truck driver hiring process including a background check, drug screen, DOT physical, and road test;
3. File a Claim indicating that he or she is available, interested, and qualifIed for a placement opportunity;
4. File an updated completed application. Additionally, an Approved Applicant Claimant's last three years of OTR truck-driving employment must be with an employer who has complied with DOT drug testing regulations.
D. An Approved Applicant Claimant may indicate on the Claim Form he/she wishes to be considered for a placement opportunity at any or all thirteen (13) TOs identifIed in Section XV.A.
E. If two or more Approved Applicant Claimants meeting the criteria listed above in Paragraph C indicate a desire to be considered for a placement opportunity at any of the TOs set forth, preference shall be given to the Approved Applicant Claimant with the earliest Initial
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Application Date, unless there is an objective, overriding consideration to select another Approved

Applicant Claimant.

F. If a placement is not filled after being offered to ten Approved Applicant Claimants

pursuant to this section, Wal-Mart's obligation for offering a placement will be considered satisfied

for that placement opportunity.

G. Wal-Mart retains the right to make all decisions as to whether any applicant,

including applicants with preferential placement opportunities, meets Wal-Mart's then existing

Minimum Eligibility Requirements.

H. Each placement decision made pursuant to this provision shall be reviewed and

approved by the Senior Director of Human Resources for the Transportation Department.

XVI. REPORTING, RECORDKEEPING, AND COMPLIANCE MEETINGS

A. Documents To Be Preserved For The Duration of The Agreement.

Wal-Mart shall retain the following employment-related records for the Duration of the

Agreement or as required by state or federal law, whichever is longer:

1.

Applications;

2.

Applicant logs; and

3.

Semi-Annual and Annual Progress Reports;

4.

All databases related to the above.

B. Access to Documents.

1. Class counsel shall, upon reasonable notice and within sixty (60) days of a

semi-annual or annual report, be entitled to review those documents that are used or referred to by

Wal-Mart to prepare progress reports, except, however, that Class Counsel shall not be entitled to

review any such documents that are protected by attorney-client privilege or attorney work

product doctrine.

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2. All documents required to be maintained by the express terms of the Agreement, and all documents that are provided to the Class Counsel under the terms of the Agreement, are presumed to be, and shall be treated as, confidential business records. Class Counsel shall not divulge any such documents to any third party unless: (a) prior written permission has been obtained from Wal-Mart, or (b) so ordered by the Court after notice to WalMart and an opportunity for Wal-Mart to object to such disclosure and be heard. Upon expiration of this Agreement, Class Counsel shall promptly return to Wal-Mart or notify Wal-Mart's counsel that it has destroyed any and all documents Wal-Mart furnished under this Agreement. This provision shall not prevent a party from filing otherwise confidential documents with the Court, provided that, either: (a) such documents are filed under seal; or (b) Class Counsel gives ten (10) days advance notice to Wal-Mart, to permit opportunity to seek a protective order sealing such documents.
C. Reporting Schedule. Within six months of Final Approval, and at six (6) month intervals for the first twentyfour (24) months, and at twelve (12) month intervals thereafter, through the Term of the Agreement, Wal-Mart, through its Office of Diversity, shall provide progress reports to Class Counsel on Wal-Mart's compliance with the Agreement's requirements. All such progress reports shall be subject to the same confidentiality restrictions described in Section XVI.B.2 above. D. Contents of the Progress Reports. Wal-Mart's progress reports shall include information regarding the following:
1. Progress in achieving each of the Benchmarks described above in Section XIV at any TO at which there was a hiring event for an Opening. This report will include the actual proportion of African Americans in the applicant flow. Wal-Mart will indicate any
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shortfalls in achieving Benchmarks for the preceding twelve-month period, will analyze the possible reasons for any such shortfall, and will identify plans to facilitate achievement of the Benchmark not met. In addition, if applicable, Wal-Mart will analyze possible reasons that any Benchmark was met through good faith offers only.
2. Number and proportion of African Americans extended a good faith offer or hired into an OTR truck driver position.
3. Summary of activity in implementing targeted recruitment efforts and diversity training, with copies of materials attached;
4. Summary of recruitment efforts referred to in Section XIII. Within one month of the first progress report, representatives of Wal-Mart and Class Counsel shall confer in order to review the initial implementation of the Agreement, WalMart's compliance with the requirements, and other related topics. Thereafter, representatives of Wal-Mart and Class Counsel will confer yearly or if requested by Class Counselor Wal-Mart. XVII. SETTLEMENT APPROVAL AND IMPLEMENTATION PROCEDURE A. Duties of the Parties Prior to Court Approval. On or before February 19, 2009, the Plaintiffs shall apply to the District Court for the entry of an order granting Preliminary Approval of the Settlement and Notice substantially in the form of the document attached hereto as Exhibit 5, which: 1. Preliminarily amends the District Court's prior certification orders for purposes of Settlement in accordance with Section VII.A. 2. Preliminarily approves the Settlement; 3. Schedules a fairness hearing on the question of whether the proposed settlement should finally be approved as fair, reasonable, and adequate as to the Class;
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4. Approves as to form and content the proposed Notice; 5. Approves as to form and content the proposed Claim Forms; 6. Approves as to form and content the proposed opt-out Exclusion Letter; 7. Directs the publication and mailing of Notice by first class mail to the Class Members. B. Duties of the Parties Following Final Court Approval. Following Final Approval by the Court of the Settlement, the Parties will submit a proposed Final Judgment and Order of Dismissal, which includes language substantially in the form of the attached hereto as Exhibit 8. The proposed Final Judgment and Order of Dismissal shall: 1. Certify the Class for Settlement purposes in accordance with FRCP 23(b)(3) and Exhibit 5 to this Agreement; 2. Approve the Class Settlement, adjudging the terms thereof to be fair, reasonable, and adequate and directing consummation of its terms and provisions; 3. Dismiss the Consolidated Litigation on the merits and with prejudice and permanently bar the named Plaintiffs, the Class Representatives, and all Class Members (other than those who timely file valid Exclusion Letters) from further prosecuting any of the released claims against Wal-Mart. 4. Retain continuing jurisdiction over: (a) implementation ofthis settlement and any award or distribution of the Qualified Settlement Fund, including interest earned thereon; (b) disposition of the Qualified Settlement Fund; (d) all parties hereto for the purposes of enforcing this Agreement. Wal-Mart shall cooperate with Class Counsel as necessary to obtain final judgment and the dismissal of the Consolidated Litigation.
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C. Mutual Full Cooperation. The Parties agree to cooperate fully with each other to accomplish the terms of this Settlement, including but not limited to, execution of all necessary documents and to take such other action as may reasonably be necessary to implement the terms of this Settlement. The Parties shall use their best efforts, including all efforts contemplated by this Settlement and any other efforts that may become necessary by order of the Court, or otherwise, to effectuate the terms of this Settlement. As soon as practicable after execution of this Agreement, Class Counsel shall, with the assistance and cooperation of Wal-Mart and its counsel, take all necessary steps to secure the Court's Final Judgment. D. Prerequisites to Payment of Settlement Amount. Prior to any payment to the QSF, Plaintiffs and Class Counsel agree that the following conditions must be satisfied:
1. delivery to Wal-Mart of an original and/or counterparts of this Agreement fully executed by Plaintiffs and Class Counsel;
2. the Court's Preliminary Approval of the Agreement before transferring any portion of the $17,500,000 into the QSF;
3. the establishment of the QSF pursuant to Section XIX. E. Notice to Settlement Class Members. The Claims Administrator shall disseminate the Notice of Proposed Class Action Settlement and Final Fairness and Approval Hearing ("Notice of Settlement") as described in this Agreement, which the Plaintiffs and Wal-Mart will ask the Court to approve. The Notices for mailing and publications shall be substantially in the forms of Exhibits 3 and 4. All Notice and Administration Costs, including but not limited to printing and mailing costs of the Notice of
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Settlement, costs of publishing notice, cost of mailing and administering Claim Fonns, the cost for Exclusion Letters, including the cost of re-mailing such notices and forms returned as undeliverable that includes a forwarding address, (along with the Claims Administrator's fees and the fees and costs of the Trustee of the QSF), shall be paid out of the QSF.
1. Mailed Notice. Within 10 (ten) days following the Preliminary Approval Date, Wal·Mart shall provide the Claims Administrator with a computer disk containing the full names, social security numbers, last known addresses and phone numbers, and Initial Application Date of all applicants for employment as an OTR truck driver in Wal-Mart's private fleet who applied from June 22, 2001 through the Preliminary Approval Date who are potential Settlement Class members. Within ten (10) days following the Preliminary Approval Date, Class Counsel shall also provide the Claims Administrator with a computer readable list of all known potential Settlement Class members and their mailing addresses. Prior to the mailing of the Notice of Settlement, the Claims Administrator will combine these lists of potential Settlement Class members received from WalMart and Class Counsel and update any new address infonnation for potential class members as may be available through the National Change of Address system. The Claims Administrator shall determine through a computer database search the most recent address that may be obtained for each person on the combined list of potential Settlement Class members. Within thirty (30) days of the Preliminary Approval Date, the Claims Administrator shall mail, via first class postage, Notice of Settlement (substantially in the fonn of Exhibit 3), the Claim Ponn and the Claim Fonn instructions (substantially in the fonn of Exhibit 9 attached), all in the fonn approved by the Court in the Preliminary Approval Order, to all known potential Settlement Class members at their last known address or, if available, at the most recent address that may have
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been obtained through the computer database search. 2. Published Notice.
Within fourteen (14) days of the Preliminary Approval Date, Class Counsel shall submit for publication the Notice of the class settlement, in the form approved by the Court in the Preliminary Approval Order but substantially in the form of Exhibit 4, to (a) a nationally distributed magazine targeted to African American audiences, Jet (three weekly placements), and (b) three nationally distributed magazines targeted to OTR truck drivers, Trucker News, The Trucker, and American Trucker. In addition, radio announcements will be placed nationally through American Urban Radio Network.
F. Objections and Exclusions. Class members may object to the class settlement or opt-out of the Class.
1. Objections. Class members objecting to the terms of the Agreement must do so in writing within ninety (90) days of the Preliminary Approval Date. The written objection must be sent to the Claims Administrator on or before the date specified in the Preliminary Approval Order. The Claims Administrator will record the date of receipt of each objection and forward it to both WalMart and Class Counsel within two (2) business days following receipt. The Claims Administrator will also file the original objections with the Clerk of the Court no later than ten (10) days prior to the scheduled Fairness Hearing date. The Claims Administrator shall retain copies of all written objections until such time as it has completed its duties and responsibilities under this Agreement.
2. Exclusions. Class members may exclude themselves from, or opt-out of, the class and the class
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settlement. Any request for exclusion must be in the form of the written Exclusion Letter sent to
the Claims Administrator. Information on how to opt-out of the class and class settlement shall
be made available by the Claims Administrator. A person wishing to opt-out must sign the
Exclusion Letter, which includes the following language: I am an African American Truck Driver. I understand that I am requesting to be excluded from the class settlement and that I will receive no money from the settlement fund created under the Settlement Agreement entered into by Wal-Mart. I understand that if I am excluded from the class settlement, I may bring a separate legal action for my individual claims, but may receive nothing or less than what I would have received if I had filed a Claim under the class settlement procedure in this case. I also understand that in any individual action, I may be bound by the terms of the injunctive relief provided in the Class Settlement agreement.
A class member submitting an Exclusion Letter shall sign and date the statement and
deliver it to the Claims Administrator within ninety (90) days of the Preliminary Approval date.
The Claims Administrator shall date stamp the original of any Exclusion Letter and serve
copies on both Wal-Mart and Class Counsel within two (2) business days of receipt of each such
statement. Class Counsel will also file the original Exclusion Letters with the Clerk of the Court
no later than ten (10) days prior to the scheduled Fairness Hearing date. The Claims
Administrator shall retain copies of all Exclusion Letters until such time as it has completed its
duties and responsibilities under this Agreement.
3. Rescission of Class Member Opt-Outs.
The Parties recognize that some class members who initially submit Exclusion Letters
seeking exclusion may, upon further reflection, wish to withdraw or rescind such Exclusion
Letters. The Parties agree that class members shall be permitted to withdraw or rescind their
Exclusion Letters by submitting a "Rescission of Exclusion Letter" to the Claims Administrator.
The Rescission of Exclusion Letter shall include the following language: . I previously submitted an Exclusion Letter seeking exclusion from
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the class and the class settlement. I have reconsidered and wish to withdraw my Exclusion Letter. I understand that by rescinding my Opt-out I will be part of the class and may be eligible to receive an award from the Class Settlement Fund and may not bring a separate legal action against Wal-Mart seeking relief. A class member submitting such a rescission statement shall sign and date the statement and cause it to be delivered to the Claims Administrator within ninety (90) days of the Preliminary Approval Order. The Claims Administrator shall stamp the date received on the original of any Rescission of Exclusion Letter and serve copies to counsel for Wal-Mart and Class Counsel no later than two (2) days after receipt thereof and shall file the date-stamped originals with the Clerk of the Court no later than ten (10) business days prior to the date of the Fairness Hearing. The Claims Administrator shall retain copies of all Rescissions of Exclusion Letters until such time as the Claims Administrator is relieved of its duties and responsibilities under this Agreement. G. Defendant's Rescission of Agreement.
If. prior to the Fairness Hearing. persons who otherwise would be Settlement Class Members, in accordance with the provisions of this Agreement and the notice given pursuant thereto, request exclusion from the Settlement Class ("Exclusion Letter"), and if the number of claimants who have "opted-out" equals or exceeds the amount specified in a separate supplemental agreement ("Supplemental Agreement") between the parties, then Defendants shall have, in their sole and absolute discretion, the option to terminate the Settlement Agreement in accordance with the procedures set forth herein and in the Supplemental Agreement. The Supplemental Agreement and all of its terms are hereby incorporated into this Settlement Agreement (and vice versa); however, the Supplemental Agreement will not be filed with the Court unless and until a dispute arises among the parties concerning its interpretation or application. Subject to the terms of the Supplemental Agreement, Wal-Mart, at its sole
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discretion, shall have the right to void this Settlement Agreement within fifteen (15) business days after the deadline for submitting an Exclusion Letter. If Wal-Mart exercises this option, all of Wal-Mart's obligations under the Settlement Agreement shall cease to be of any force and effect, and the Settlement Agreement and any orders entered in connection therewith shall be vacated, rescinded, canceled, and annulled, and the parties shall return to the status quo in the Consolidated Litigation as if the parties had not entered into the Settlement Agreement. In addition, in such event, the Settlement Agreement and all negotiations, Court orders and proceedings relating thereto shall be without prejudice to the rights of any and all parties hereto, and evidence relating to the Settlement Agreement and all negotiations shall not be admissible or discoverable in the Consolidated Litigation or otherwise. In the event Wal-Mart exercises this option, all expended Notice and Administration Costs shall not be refundable to Wal-Mart but all other monies paid into the QSF, included earned interest, shall be refunded to Wal-Mart.
H. Final Fairness and Approval Hearing. On June 30, 2009, a Fairness and Final Approval Hearing shall be held before the Court in order to consider and determine (i) whether the Court should give this Agreement Final Approval; (ii) Class Counsel's application for attorneys' fees and costs; and (iii) any timely objections made pursuant to Section XVILF and all responses by Plaintiffs and Wal-Mart to such objections. At the Fairness and Final Approval Hearing, Plaintiffs and Wal-Mart shall ask the Court to give Final Approval to this Agreement. If Plaintiffs' and Wal-Mart's request for Final Approval is granted, a Judgment and Dismissal that includes language consistent with that included in Exhibit 8 shall be entered in the Consolidated Litigation. Class Counsel shall furnish the Claims Administrator with a copy of the Judgment and Dismissal and serve notice of entry of the Judgment and Dismissal on Wal-Mart within two (2) business days ofreceiving it.
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XVIII. CLAIMS ADMINISTRATION A. Selection of Claims Administrator. 1. Class Counsel and Wal-Mart will confer and agree on the selection
of the Claims Administrator, the selection of whom shall be submitted to the Court for approval. The Claims Administrator will be responsible for distributing the Notice of Settlement, Claim Forms, and the Exclusion Letter forms, as well as making eligibility decisions, handling inquiries about the calculation of the individual Settlement Payments.
2. The Claims Administrator shall establish a website at the earliest practicable time, through which Claimants will be able to view and/or download a copy of the Settlement Agreement and all forms necessary to effectuate the administration of the Agreement. In addition, potential Claimants should be able to communicate with the Claims Administrator through the use of e-mail.
3. The Claims Administrator shall begin processing Claims by Settlement Class Members immediately after such claims are submitted, and shall determine the anticipated amount of individual awards before the scheduled hearing for Final Approval. Under no circumstances shall the Claims Administrator make any disbursement to Settlement Class Members until all timely Claims have been considered, calculated and accounted for and the obligations set forth herein have been satisfied, and until Final Approval.
4. The Claims Administrator will act as the administrator of the Qualified Settlement Fund (QSF), as further described in Section XIX of this Agreement, for the purpose of receiving all funds payable in this matter. The QSF will
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meet all Internal Revenue Code requirements for the establishment of such a Fund. The QSF will be the vehicle for the receipt and disbursement of all funds as well as payments to attorneys and claimants, incentive awards, and payments to the Settlement Administrator.
B. Submission of Claim Forms. Class members who seek recovery of monetary compensation must complete a Claim Form, affirm that the information contained on the Claim Form to true to the best of the Claimant's knowledge and belief, and cause it to be filed with the Claims Administrator by the Claim filing deadline set forth in the Preliminary Approval Order. The Claim Form must be postmarked on or before such date in order to be considered timely. Failure to file a timely Claim Form, for any reason whatsoever, shall bar the potential class member from having his or her Claim considered and from receiving monetary compensation from the Settlement Fund Account. Class members who file a Claim Form must notify the Claims Administrator of any change of address. A failure to notify the Claims Administrator of a change of address may result in the forfeiture of a monetary award. The Claims Administrator shall be available through the toll-free line and via e-mail through the Claims Website to respond to requests from class members for assistance in completing and filing Claim Forms. Class Counsel shall also be available to consult with and provide assistance to potential class members who request assistance in completing their Claim Forms. C. Deceased Claimants. Claims may be filed by deceased Claimants through representatives of their estate if appropriate documentation is provided. Any Claims paid to a deceased Claimant shall be made payable to the estate of the deceased Claimant. D. Determining Eligibility.
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The Claims Administrator shall make the determination as to whether a Claim Form is complete and, if a Claimant is to be approved for a monetary award, the date to be used to calculate the amount of a monetary award. If a Claim Form is not complete, and if it appears that such additional information would complete the Claim Form, the Claims Administrator shall request additional information from the Claimant. Such requests for information shall be in writing and shall specify the information necessary to complete the Claim Form. The requests for information will be sent via first class mail, or e-mail if Claimant supplies an e-mail address, and inform the Claimant that a response must be returned no later than thirty (30) days from the date the request for information was mailed. The Claimant must provide the requested information to the Claims Administrator by mail with a postmark no later than thirty (30) days from the date of the mailed request for information. Such additional information shall be considered part of the original Claim Form and will relate back to the original filing date. The failure of a Claimant to timely respond to the request for information may result in the denial of the Claim.
E. Late-Filed Claims. For Claims received after the filing deadline, the Claims Administrator shall notify latefiling Claimants that their Claims are untimely and that they are not eligible for any monetary award. The Claims Administrator shall also inform late-filing Claimants that they may seek a review of the determination that they filed untimely by requesting the Claims Administrator to reconsider its determination. The Claims Administrator may reverse its determination that a Claim was not timely filed only if the Claimant proves that the Claim Form was filed on or before the filing deadline and that the untimeliness determination is erroneous. F. Appeals of Claims Eligibility. As determinations are made, the Claims Administrator shall provide written notification to Class Counsel and Wal-Mart Counsel of the name of the claimants and Claims Administrator's
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eligibility decision for each. Additionally, the Claims Administrator shall provide written notification to the Claimant of eligibility decision. Wal-Mart and Claimants may appeal eligibility and ineligibility determinations. Class Counsel will not file appeals on behalf of individual claimants. All appeals must be made in writing and with a postmark no later than twenty-one (21) days from the date of the notice of Claim determination. Failure to file a timely request for review shall bar any further challenge of an eligibility determination decision.
The Claims Administrator shall resolve the requests for review based on the written requests for review and any other documentation or written information submitted by the Claimant, Wal-Mart or Class Counsel.
The Claims Administrator shall attempt to expeditiously resolve any requests for review within sixty (60) days after the filing of the request for review. The Claims Administrator's decisions shall be communicated to the Claimant, Wal-Mart and Class Counsel in writing and shall be binding and nonappealable.
G. Claimant Information Provided by Wal·Mart. The parties understand and agree that Wal-Mart may possess information that may assist in the determination of eligibility of potential class members for monetary compensation. WalMart shall reasonably cooperate in providing such information which Class Counselor the Claims Administrator deems reasonably necessary to assist in determining the eligibility of any class member for monetary relief. Wal-Mart shall attempt to provide such information within fourteen (14) days of any written requests for the information. XIX. QUALIFIED SETTLEMENT FUND. A. At the times required by this Agreement, Wal-Mart shall transfer the required portions of the Class Settlement Amount and the Class Counsel Fees and Expenses to a trustee selected jointly by Class Counsel and Wal-Mart (the "Trustee") to be held as a separate trust
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constituting a QSF as described in Treasury Regulation §1.468B-I, 26 C.F.R. §1.468B-1. Class Counsel and Wal-Mart jointly shall, and shall cause the Trustee to, take such steps as shall be necessary to qualify the QSF under §468B of the Internal Revenue Code, 26 U.S.c. §468B, and the regulations promulgated pursuant thereto. Wal-Mart shall be considered the "transferor" within the meaning of Treasury Regulation §1.468B-I (d)(I). The Claims Administrator shall be the "administrator" within the meaning of Treasury Regulation §1.468B-2(k)(3). The Parties shall cooperate in securing an order of the Court to establish the QSF in accordance with the terms hereof in conjunction with its Preliminary Approval of the Settlement and Notice of Settlement as described in Section XVII. The Court shall retain jurisdiction over the administration of the QSF. Wal-Mart shall supply to the Claims Administrator and to the Internal Revenue Service the statement described in Treasury Regulation §1.468B-3(e)(2) no later than February 15 of the year following each calendar year in which Wal-Mart makes a transfer to the QSF. It is intended that the transfers to the QSF will satisfy the "all events test" and the "economic performance" requirement of §461 (h)(l) of the Internal Revenue Code, and Treasury Regulation §1.461-I(a)(2). Accordingly, Wal-Mart shall not include the income of the QSF in its income. Rather, the QSF shall be taxed on its modified gross income, excluding the sums transferred to it, and shall make payment of resulting taxes from its own funds. In computing the QSF's modified gross income, deductions shall be allowed for its administrative costs and other deductible expenses incurred in connection with the operation of the QSF, including, without limitation, state and local taxes and legal, accounting, and other fees relating to the operation of the QSF.
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B. Upon establishment of the QSF, the Trustee shall apply for an employer identification number for the QSF utilizing Internal Revenue Service Form SS-4 and in accordance with Treasury Regulation §1.468B-2(k)(4).
C. If requested by either Wal-Mart or the Claims Administrator, the Claims Administrator, the Trustee and Wal-Mart shall fully cooperate in filing a relation-back election under Treasury Regulation §1.468B-I (j)(2) to treat the QSF as coming into existence as a settlement fund as of the earliest possible date.
D. Following its deposits as described in Section X.A of this Agreement, Wal-Mart shall have no responsibility, financial obligation or liability whatsoever with respect to the notifications to the Class required hereunder, the processing of Claims and Exclusion Letters, the allowance or disallowance of claims by Claimants, payments to Class Counsel, investment of QSF funds, payment of federal, state, and local income, employment, unemployment, excise, and other taxes imposed on the QSF or its disbursements, payment of the administrative, legal, accounting, or other costs occasioned by the use or administration of the QSF, since it is agreed that such deposits shall fully discharge Wal-Mart's obligation to Claimants, Class Counsel and expenses of administration with respect to the disposition of the Class Settlement Amount, and the Class Counsel Fees and Expenses hereunder. Rather, the Claims Administrator, under the control and direction of the Court, shall have sole authority and responsibility for the administration of such funds and income thereon, disbursement to Claimants and Class Counsel, and payment of taxes and administrative costs in accordance with the provisions hereof, subject only to the rights of Wal-Mart or Class Counsel to audit the determinations of the Claims Administrator in accordance with Section XVIII.F of this Agreement or to seek redress for any breach of the terms hereof.
E. The Claims Administrator shall cause to be filed, on behalf of the QSF, all required federal, state, and local tax returns, information returns and tax withholdings statements in accordance with the provisions of Treasury Regulation §1.468B-2(k)(I) and Treasury Regulation §1.468B-2(I)(2)(ii). The Claims Administrator may, at the expense of the QSF,
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retain legal counsel and an independent, certified public accountant to consult with and advise the Claims Administrator or the Trustee with respect to the preparation and filing of such materials and the federal, state and local tax compliance of the QSF. Subject to any contrary holdings in any such ruling:
I. As provided in Section XIX.C, a portion of the distributions from the QSF to the Class Members shall be treated as "wages" or "compensation" paid by the QSF during the calendar year of payment. Claimants may file with the QSF a Tax Declaration. Any Claimant who does not file a Tax Declaration with the QSF shall have taxes withheld at the rate for a single person claiming no withholding exemptions. Class Members shall be responsible for payment of appropriate federal, state, and local income taxes on any claim paid out pursuant to this Agreement, except that Wal-Mart shall transfer to the QSF funds sufficient to pay any appropriate employer-associated taxes. The Parties agree that no portion of any distributions from the QSF to the Class Members is made in satisfaction of any excluded liability as described in Treasury Regulation § 1.468B-I (g), related to Qualified Settlement Funds.
2. All federal, state, and local withholding, employment, unemployment, excise, or similar taxes that may be imposed with respect to distributions from the QSF (including, but not limited to, FICA, FUTA, Medicare taxes, and all state and local taxes and, in each instance, both the Class Claimants' and QSF's share of all taxes), shall be paid from the QSF. Wal-Mart will fund the employer's share of taxes and withholdings and such taxes and withholdings will not be paid from the Settlement Fund.
3. Federal, state and local income tax and other payroll tax withholding rates on all distributions from the QSF will be as determined by applicable law. The Claims Administrator's good faith determination as to the withholding rates shall be final, provided that should an advance ruling be sought by either or both ofWal-Mart or the Claims Administrator in regard to the obligation for, or rate of, any taxes pursuant to Section XIX.E.1 and 2, the Parties and the Claims Administrator shall be bound by the ruling of the appropriate taxing authority.
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F. The taxable year of the QSF shall be the calendar year in accordance with Treasury Regulation §1.468B-2(j). The QSF shall utilize the accrual method of accounting within the meaning of §446(c) of the Internal Revenue Code.
G. The QSF shall be invested in United States Treasury bills or money market funds primarily invested in the same, provided that such portions of the QSF as may reasonably be required to pay current QSF administrative expenses, taxes or disbursements to Claimants or Class Counsel may be deposited in bank accounts which are federally insured to the greatest extent practicable. All federal, state, and local taxes with respect to income earned by, or property of, the QSF, shall be paid from the QSF.
H. The Claims Administrator may amend, either in whole or in part, any administrative provision of this Section or the trust instrument through which the QSF is established to maintain the qualification of the QSF pursuant to the above-described authorities, provided that the rights and liabilities of the Parties hereto and the Class are not altered thereby in any material respect.
XX. DISTRIBUTION OF SETTLEMENT FUND. A. Settlement Class. Members of the Settlement Class who applied and were not hired for OTR truck driver
positions shall be compensated according to the formula set forth in Section XX.B, providing: (i) the Applicant Claimant submitted, on or after June 22, 2001, an application to be employed as an OTR truck driver in Wal-Mart's private fleet and was not hired, or received, on or after September 22, 200 I, a notification of rejection as an OTR truck driver in Wal-Mart's private fleet; (ii) the Applicant Claimant is African American; and (iii) the Applicant Claimant met Minimum Qualifications for the position at
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the time the application was submitted; and (iv) the Applicant Claimant provides a current MVR; and (v) the Applicant Claimant provides a photocopy of his/her CDL, driver's
license, or a government-issued identification card; and (vi) the Applicant Claimant provides his/her social security number; and (iv) the Applicant Claimant signs a Claim Form attesting to
information/statements contained on his/her Claim. For Applicant Claimants, the Claims Administrator, in calculating the amount of an award, shall use the Initial Application Date for an Applicant Claimant as reflected in WalMart's records, or in other written records submitted by an Applicant Claimant conclusively demonstrating he or she submitted au earlier dated OTR truck driver application to Wal-Mart during the class period than reflected in Wal-Mart's records. Members of the Settlement Class who were deterred from applying for Wal-Mart OTR truck driver positions shall be compensated in accordance to the formula set forth Section XIX B providing:
(i) the Deterred Claimant was deterred on or after September 22, 2001 from filing an application for employment as an OTR truck driver in WalMart's private fleet and:
(ii) the Deterred Claimant is African American; and (iii) the Deterred Claimant met Minimum Qualifications at the time he/she
was deterred; and (iv) the Deterred Claimant provides a current MVR and proof of a CDL at the
time the Claimant was deterred, and was actively seeking employment during the class period; and (v) the Deterred Claimant states a reason why or how he/she was deterred
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from applying at Wal-Mart; and (vi) the Deterred Claimant states the earliest date upon which he/she was
deterred; and (vii) the Deterred Claimant signs the Claim Form attesting to the
information/statements contained in his/her claim. B. Formula for Monetary Awards. After all payments of Class Counsel's fees and litigation costs, payments of the Notice and Administration Costs, and payment of the enhancements to the Class Representatives, and the sum of these amounts has been subtracted from the $17,500,000 that is to be paid by Wal-Mart into the Qualified Settlement Fund, the resulting amount ("Approved Claimant Settlement Fund") will be designated for payment to the Approved Claimants as follows: 1. For each Approved Applicant Claimant, the Claims Administrator will determine the Initial Application Date, which will be the former of either (a) the initial application for an OTR truck driver position, meeting Minimum Qualifications, submitted on or after June 22,2001, or (b) the initial application for an OTR truck driver position meeting Minimum Qualification, that resulted in notification of rejection on or after September 22, 2001. The Approved Applicant Claimant will be allocated a number of Monthly Credits equal to four times the number of months between the month of the Initial Application Date and June 2009. For example, if an Approved Applicant Claimant's Initial Application Date were June 3, 2006, he would be assigned 140 Monthly Credits (4 X 35). 2. For each Approved Deterred Claimant, the Claims Administrator will determine the Initial Deterrence Date, which will be the earliest date on or after September 22, 2001 that the claimant (a) met the Minimum Qualifications, (b) was actively seeking employment as an OTR truck driver, and (c) was deterred from seeking employment as an OTR truck driver at Wal-Mart.
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The Approved Deterred Claimant will be allocated a number of Monthly Credits equal to the number of months between the month of the Initial Deterrence Date and June 2009. For example, if an Approved Deterred Claimant's Initial Deterrence Date were June 3, 2006, he would be assigned 35 Monthly Credits.
3. If at some point prior to June 2009, an Approved Claimant ceased meeting the Minimum Qualifications for reasons including but not limited to occupation change, retirement or death, the month in which the Approved Claimant ceased meeting the Minimum Eligibility Requirements, rather than June 2009, will be used in calculating his number of Monthly Credits.
4. The value of an individual Monthly Credit will be calculated by dividing the amount of funds in the Approved Claimant Settlement Fund by the total number of monthly credits allocated to all Approved Claimants. Then, each Approved Claimants' monetary relief will be calculated by multiplying his assigned number of Monthly Credits by the value of an individual Monthly Credit.
C. Allocation and Taxing of Monetary Awards. The monetary awards shall be allocated 70% to lost wages and 30% to compensatory damages. Flat rate deductions from gross amounts that are determined to be wage payments will be made for federal and state income taxes, the employee's share of social security and Medicare tax, and any local income or payroll tax that apply. Any amounts designated as interest shall not be subject to withholding and shall be reported, if required, to the IRS on Form 1099-INT. The amounts paid for other damages shall not be subject to withholding and shall be reported to the IRS on Form 1099-MISC. The Claims Administrator will be responsible for preparing and filing all appropriate tax filings and reports (except for any unemployment compensation taxes that may be due, which will
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be the sole responsibility of Wal-Mart to calculate and pay), including, but not limited to, W-2 and 1099 fonns for all eligible Claimants and Class Representatives for their payments from the Settlement Fund, as well as any required for the Settlement Fund. The Claims Administrator will also be responsible for reporting and remitting to the appropriate taxing authorities the employer's share of taxes or contributions required to be paid by Wal-Mart in a timely manner after receipt of the amount due for those payments from Wal-Mart.
The Claims Administrator will infonn Wal-Mart of the employer's share of all taxes or contributions (Le., matching social security and Medicare tax) required to be paid by Wal-Mart and Wal-Mart shall timely remit all such payments to the Claims Administrator for payment to appropriate taxing authorities.
C. Report from Claims Administrator of Monetary Awards After the Claims Administrator detennines the amount of monetary awards, the Claims Administrator shall file a report with the Court and provide a copy to, Class Counsel and WalMart setting forth the amount of the monetary awards to eligible class members. D. Distribution of Awards After the Court has entered an order approving distribution of the monetary awards, the Claims Administrator shall distribute the monetary awards to eligible class members via first class mail. The Claims Administrator shall only issue the checks in the name of the Approved Claimants unless Section XVIILC is applicable. Included with the check due to the eligible Claimant will be a statement showing the gross amount of the payment and an itemized statement of all deductions made. E. Report from Claims Administrator of Distribution. Within thirty (30) days of the distribution of the monies provided under this Agreement from the Settlement Fund, the Claims Administrator shall furnish an accounting of all
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distributions from the Settlement Fund to the Court with copies to Class Counsel and Wal-Mart. XXI. ATTORNEYS' FEES, COSTS AND EXPENSES
A. Basis for Award of Fees, Costs and Expenses. 1. The parties have agreed that it is appropriate as part of this Settlement
Agreement that a portion of the Settlement Fund be used for payment to Class Counsel, on behalf of the Class Representatives and the Settlement Class, reasonable attorneys' fees, litigation expenses, and costs in this case.
2. The Company has agreed not to object to the Class Counsel's application for reasonable attorneys' fees, litigation expenses, and costs so long as such application does not exceed the amount of $6,283,000 for work perfonned and costs and expenses incurred through the tennination of this Consolidated Litigation. Included in this amount is $5,833,000 (one third of the QSF) for attorneys' fees and up to $450,000 for litigation costs and expenses incurred by Class Counsel. This amount fully satisfies any arguable obligation the Company may have to pay attorneys' fees, litigation expenses, and costs for and on behalf of the Plaintiffs, Class Representatives and the Settlement Class for any and all work perfonned and costs and expenses incurred through and including Final Approval.
B. Payment of Award. Any disagreements among Class Counsel shall be resolved among themselves outside of the tenns of this Agreement, and Wal-Mart shall have no part in or incur any fees, costs or expense in connection with any such dispute. XXII. MISCELLANEOUS PROVISIONS A. Execution in Counterparts. The parties agree that the Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be part of the same Agreement.
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B. Parties' Authority. The respective signatories to this Agreement each represent that they are fully authorized to enter into this Settlement and bind the respective Parties to its terms and conditions. C. No Prior Assignments. The Parties represent, covenant, and warrant that they have not directly or indirectly assigned. transferred, encumbered, or purported to assign, transfer. or encumber to any person or entity any portion of any liability, Claim, demand, action, cause of action, or right released and discharged in this Settlement. D. Notices. Unless otherwise specifically provided herein. all notices, demands, or other communications given hereunder shall be in writing and shall be deemed to have been duly given as of: (i) the date given, if given by hand delivery; (ii) within one (I) business day, if sent by overnight delivery services such as Federal Express or similar courier; or (iii) the third business day after mailing by United States registered or certified mail, return receipt requested. All notices given under this Agreement shall be addressed as follows:
1. To the Class: John W. Walker 1723 Broadway Little Rock, AR 72206 Joseph Henry ("Hank") Bates III Carney Williams Bates Bozeman & Pulliam PLC 11311 Arcade Dr., Ste. 200 P.O. Box 25438 Little Rock, AR 72221-5438 Morgan E. Welch Welch & Kitchens, LLC One Riverfront Place, Ste. 413 North Little Rock, AR 72114
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Case 2:04-cv-00171-WRW Document 201-2 Filed 03/03/2009 Page 52 of 53
2. To Wal-Mart: Philip E. Kaplan (#68026) JoAnn C. Maxey (#83117) WilLIAMS & ANDERSON PLC 111 Center Street, Suite 2200 Little Rock, AR 72201 Lawrence C. DiNardo Michael J. Gray JONES DAY 77 West Wacker Chicago, IL 60601
C. Joint Press Release. The parties have agreed to issue three joint press releases, the first to be released at the time of the filing of the motion for Preliminary Approval, the second to the public at the time of Preliminary Approval of the Settlement, and the third to the public at the time of Final Approval of the Settlement. The parties will agree on the contents of each press release. Neither side shall make any other statements to the media concerning the Settlement and both sides shall decline to respond substantively to media inquiries concerning the Settlement. D. Documents and Discovery. Within sixty (60) days after completion of the Claims Administration process, Class Counsel shall return to Wal-Mart all documents and data, both electronic and hard copy, produced by Wal-Mart to Class Counsel in connection with this Consolidated Litigation and subject to the terms of the Protective Order. Class Counsel shall certify to Wal-Mart their good faith efforts to comply with this provision. E. Integration Clause. This Agreement, the Exhibits hereto, and any other documents delivered pursuant hereto contain the entire agreement between the Parties relating to the resolution of the Consolidated
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Litigation, and all prior or contemporaneous agreements, understandings, representations, and statements, whether oral or written and whether by a Party or such Party's legal counsel, are merged in this Agreement. No rights under this Settlement may be waived except in writing and signed by the Party against whom such waiver is to be enforced.
F. Binding on Assigns. This Settlement shall be binding upon, and inure to the benefit of, the Parties and their respective heirs, trustees, executors, administrators, successors, and assigns.
JOHNW. WALKER
JOSEPH HENRY BATES III
MORGAN E. WELCH ATTORNEYS FORPLNNTWFS WAL-MART STORES, INC. AND WAL-MART TRANSPORTATION, LLC
BY: B. MICHAEL BENNETT Vice President, Wal-Mart Stores, Inc.
53

 
 Nelson v. Wal-Mart Stores, Inc., 245 F.R.D. 358 (2007)

245 F.R.D. 358 United States District Court,
E.D. Arkansas, Eastern Division.
Daryal T. NELSON and Tommy Armstrong, individually and on behalf of all persons similarly
situated, Plaintiffs, v.
WAL–MART STORES, INC; and Wal–Mart Transportation LLC, Defendants.
Nos. 2:04CV00171 WRW, 2:05CV00134 WRW. | May 16, 2007.
Attorneys and Law Firms
*361 David O. Bowden, Attorney at Law, John W. Walker, Shawn Garrick Childs, John W. Walker, P.A., Lloyd W. Kitchens, III, Morgan E. Welch, Welch and Kitchens, LLC, Joseph Henry Bates, III, Darrin Lavell Williams, Cauley Bowman Carney & Williams, LLP, Little Rock, AR, Robert Peter Pressman, Attorney at Law, Lexington, MA, for Plaintiffs.
Alison B. Marshall, Jones Day, Washington, DC, Joann C. Maxey, Philip E. Kaplan, Kaplan, Brewer, Maxey & Haralson, P.A., Little Rock, AR, Lawrence C. Dinardo, Michael J. Gray, Jones Day, Chicago, IL, Richard H. Deane, Jones Day, Atlanta, GA, for Defendants.
Opinion

*362 ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

WILSON, District Judge.
Pending is Plaintiffs’ Motion for Class Certification,1 to which Defendants have responded.2 A Class Certification Hearing was held May 31, 2006. After the hearing, both parties submitted proposed findings of fact and conclusions of law.3 I submitted additional questions to the parties, and held another hearing, on April 24, 2007, on the motion to certify the class. For the reasons below, Plaintiffs’ Motion for Class Certification is GRANTED in part and DENIED in part.

1

Doc. No. 54. For purposes of this Opinion and Order,

“Doc. No.” refers to the CM/ECF docket entry number,

while “Pls.’ Ex.” (or “Defs.’ Ex.”) refers to the number

of the exhibit to the class certification motion (or

response to the class certification motion) submitted by the respective party.

2

Doc. No. 64.

3

Doc. Nos. 105; 106.

I. BACKGROUND Plaintiffs Tommy Armstrong and Daryal T. Nelson are African American truck drivers who applied for positions as over-the-road truck drivers at transportation offices operated by Defendant Wal–Mart Transportation LLC, a wholly owned subsidiary of Defendant Wal–Mart Stores, Inc. (collectively “Wal–Mart”), but were rejected. This case challenges Wal–Mart’s hiring practices for over-the-road truck drivers.
Wal–Mart’s Logistics Division is divided into two subdivisions: (1) the Transportation Division in charge of Wal–Mart’s truck fleet and its support; and (2) the Distribution Division in charge of the distribution centers that the trucking fleet services.4 Wal–Mart’s Transportation Division includes approximately 8,000 drivers, in 47 field transportation offices nationwide, who deliver goods and products to Wal–Mart stores and Sam’s Clubs across the country.5 Every transportation office is located on-site at one of the distribution centers it services.6 The transportation offices have their own management structure, including a general transportation manager in charge of each office and a personnel manager who, together with the general transportation manager, is responsible for hiring over-the-road truck drivers.7 The general transportation manager and personnel manager report to regional managers, who in turn report to either the east or west vice president of the Transportation Division.8 Those vice presidents report to the senior vice president of the Transportation Division, who reports directly to the executive vice president of the Logistics Division.9

4

Doc. No. 82 at 3.

5

See Defs.’ Ex. 24 ¶ 4. Counsel stated at the hearings

that Wal–Mart now has 47 transportation offices.

6

Doc. No. 77–9 at 23.

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Nelson v. Wal-Mart Stores, Inc., 245 F.R.D. 358 (2007)

7

Doc. Nos. 63–2 at 11; 77–9 at 17–19.

8

Doc. No. 77–9 at 28–30.

9

Doc. No. 77–11.

Each over-the-road truck driver is assigned to a transportation office.10 Every transportation office, with minor exceptions, has the same management positions and internal reporting hierarchy.11 Wal–Mart fosters a uniform corporate culture by the frequent transfer of managers from one transportation office to another as well as by training managers in transportation offices other than those to which they will ultimately be assigned.12

10

Pls.’ Ex. 3.

11

Pls.’ Exs. 5 at 17–19; 7 at 20–21.

12

See, e.g., Pls.’ Exs. 12 at 32–34; 13 at 8–12; 14 at 10.

Wal–Mart’s field transportation operations are divided into ten regions.13 Each region has an identical management organization, including a regional transportation manager and a regional people manager.14 All regional managers are centrally based at Wal– *363 Mart’s headquarters in Bentonville.15 The regional managers travel to the transportation offices in their region from Tuesday through Thursday and are back in Bentonville on Monday and Friday.16 The managers in the transportation offices report directly to the regional managers.17

13

Pls.’ Ex. 3.

14

Pls.’ Ex. 5 at 28–30.

15

Id. at 39.

16

Id. at 39–40.

17

Pls.’ Ex. 8.

All hiring and personnel policies for the transportation offices are developed at and disseminated from Wal–Mart’s central headquarters in Bentonville. The corporate-level Human Resources Department develops the human resource policies that apply throughout Wal–Mart.18 The corporate-level Diversity Office develops, coordinates, and monitors all of Wal–Mart’s diversity initiatives.19 Ed Parrish, the director of people for Wal–Mart’s Transportation Division, develops all the hiring and personnel policies specific to the Transportation Division.20 These policies are disseminated nationwide to the regions and individual transportation offices through an online database.21 Neither regional managers nor managers at individual transportation offices have the authority to develop personnel or hiring policies that diverge from the corporate policies developed in Bentonville.22

18

Pls.’ Ex. 7 at 10–12.

19

Id. at 38.

20

Id. at 9–10, 152.

21

Id. at 145–46, 152.

22

Id. at 151–52.

The primary elements of the hiring process for drivers at every transportation office are identical. First, new drivers are recruited almost exclusively through the “word of mouth” of current Wal–Mart drivers.23 Wal–Mart implements the word-of-mouth recruitment by providing its current drivers with a “1–800 card” to pass out to prospective applicants.24 The card lists the minimum driver qualifications and a 1–800 number drivers can call to request an application.25 Both the minimum qualifications and the application are the same nationwide.26 All 1–800 cards are designed and printed at the Bentonville headquarters.27 Wal–Mart does little, if
2

Nelson v. Wal-Mart Stores, Inc., 245 F.R.D. 358 (2007)

any, job advertising in addition to their drivers disseminating the 1–800 card.28

23

While Wal–Mart vigorously disputes that fact, it is

amply supported by Wal–Mart’s own admission in an

answer to one of Plaintiffs’ interrogatories as well as

the corporate memos and presentations and deposition

testimony of Wal–Mart’s own employees. See Pl. Exs.

9 at 6 (interrogatory response no. 4); 7 at 46–48,

180–81, 184, 194, 197, 204–05; 10 at 745; 11 at 4; 12

at 44–48; 13 at 28–30; 15 at 33–34; 16 at 52; 20 at

10–14; 21 at 12, 44, 47–48; 22 at 269; 83 at 15–16, 58.

24

Pls.’ Ex. 9 at 6.

25

Id.

26

See Pls.’ Ex. 7 at 49, 58.

27

Id. at 49–50.

28

Id. at 180–81; see also Pls.’ Exs. 23; 24.

All who call the 1–800 number, regardless of which transportation office they wish to apply, are initially processed and screened at Wal–Mart’s Bentonville headquarters.29 An application is then sent to the potential applicant.30 The applicant is instructed to return the completed application to the Bentonville headquarters.31 If the application is completed, the minimum requirements are met, and the applicant’s preferred transportation office is currently hiring, the application is forwarded to the appropriate transportation office.32 In some cases, an applicant may send the application directly to the transportation office, in which case the clerk at the transportation office conducts the initial screening process.33

29

Pls.’ Exs. 28; 29.

30

Id.

31

Id.

32

Id.

33

Pls.’ Ex. 7 at 72–75.

After the application is forwarded from the Bentonville headquarters, a screening committee, consisting of current drivers at the transportation office, decides which applicants *364 will be granted an interview.34 The same screening committee of current drivers also interviews those applicants who make the initial screening cut.35 Those applicants who are recommended by the screening committee are then interviewed by a management committee, which must include the general transportation manager and the personnel manager.36 The general transportation manager of the transportation office for which the applicant applied makes the final hiring decision.37 No other position within the Transportation Division utilizes a hiring process involving word-of-mouth recruitment, a centralized 1–800 number, or employee screening committees.38

34

Pls.’ Ex. 31.

35

Id.

36

Id.

37

Pls.’ Ex. 7 at 127.

38

Id. at 153–54.

Beyond the minimum qualifications, Wal–Mart has no written or objective criteria to guide the driver screening committees when analyzing applicants during the hiring process.39 The hiring discretion of the general transportation managers is similarly unfettered by any objective criteria.40 Wal–Mart does not track, evaluate, or analyze what subjective criteria its drivers and managers are utilizing during the recruitment and hiring process.41 While Wal–Mart policy requires each driver screening committee to be 50% diverse,42 a review of all of Wal–Mart’s regional personnel manager audits reveals that no screening committee has a majority of African Americans and that a substantial percentage of the
3

Nelson v. Wal-Mart Stores, Inc., 245 F.R.D. 358 (2007)

screening committees do not have any African American representation whatsoever.43 Plaintiffs have presented evidence of some of the subjective factors employed by the screening committees to determine which applicants make the interview cut,44 as well as anecdotal evidence of overt racism among screening committee members.45

39

Id. at 80–89.

40

Id. at 127.

41

Id. at 54, 89, 127.

42

Pls.’ Ex. 45 at 76–77.

43

Pls.’ Ex. 43.

44

See, e.g., Pls.’ Exs. 20 at 30; 21 at 34–35; 65 ¶ 7; 71 ¶

9; 80 ¶ 7.

45

Pls.’ Exs. 94 at 90; 95 at 94–95, 119, 149–50; 96 at

61–73.

From January 1, 2000, to September 19, 2005, Wal–Mart hired 4,135 over-the-road truck drivers.46 Wal–Mart’s workforce of over-the-road truck drivers during that time ranged from approximately 4% to 6% African American and the new hires during that period approximately 7.4% African American.47 During the same time period, a study by the American Trucking Association determined that approximately 15% of the nationwide truck-driver workforce was African American.48 Utilizing census data and EEOC data, Plaintiffs’ expert Dr. Martin Shapiro determined that from January 1, 2000, to September 19, 2005, the proportion of newly hired African American drivers was less than the expected proportion of newly hired African American drivers in 34 of the 39 transportation offices.49

46

Defs.’ Ex. 32–3 at 4.

47

Defs.’ Ex. 32–1 at 7.

48

Pls.’ Ex. 102.

49

See Pls.’ Ex. 93 at A–3.

In 1999, Kevin Upham, the driver recruitment coordinator, undertook a detailed evaluation of Wal–Mart’s current recruiting practices.50 Upham concluded that the exclusive reliance on word-of-mouth hiring practices was greatly limiting publicity of job openings for over-the-road truck drivers.51 He recommended to management that steps be taken to publicize job openings to the general trucking community.52 Wal–Mart did not *365 adopt Upham’s proposals,53 and eliminated the driver recruitment position.54

50

Pls.’ Ex. 10.

51

See id. at 745.

52

Id.

53

Pls.’ Ex. 7 at 183–85.

54

Id. at 195.

Wal–Mart revived the recruitment position in 2004 and placed Frank Paris in that position.55 Paris investigated Wal–Mart’s recruitment practices and, in an August 2004 memo and Powerpoint presentation, reached almost the same conclusions as Upham about the impact of Wal–Mart’s reliance on word-of-mouth recruiting.56 Wal–Mart made no changes to its hiring policies in response to Paris’s investigation.

55

Id.

56

Pls.’ Ex. 11 at 4; see also Pls.’ Exs. 22 at 269; 7 at

200–201.

Wal–Mart has the ability to generate and retain complex demographic data and other statistical information.57 Yet
4

Nelson v. Wal-Mart Stores, Inc., 245 F.R.D. 358 (2007)

Wal–Mart rejected two proposals to track the racial demographics of its applicant pool for over-the-road truck drivers.58 In fact, Wal–Mart has never analyzed the causal connection between its reliance on word-of-mouth recruiting and the number of African Americans in its workforce of over-the-road truck drivers, despite the acknowledgment by Ed Parrish—Wal–Mart’s top human resources officer in the Transportation Division and chosen corporate representative in this suit—that word-of-mouth recruiting leads to a perpetuation of the current demographics in the workforce.59

57

See Pls.’ Exs. 45 at 28–29; 58.

58

Pls.’ Exs. 45 at 25–26, 49–54; 46; 48.

59

Pls.’ Ex. 7 at 207–08.

62

Id.

63

Coleman v. Watt, 40 F.3d 255, 259 (8th Cir.1994).

[4] [5] [6] [7] The decision whether to certify a class action is left to the sound discretion of the district court.64 In determining whether to certify a class action, “the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.”65 “Accordingly, while the Court must conduct a ‘rigorous analysis,’ class certification is a procedural determination and should not include an inquiry into the merits.”66 The Court’s duty to assure compliance with Rule 23 continues even after the certification.67

64

Id.

II. CERTIFICATION UNDER RULE 23(A) [1] [2] [3] Plaintiffs seek to certify a class consisting of:
a. African American persons who reside in the continental United States of America who have applied for employment as over-the-road truck drivers at Wal–Mart since September 22, 2001, and who have not been hired; and b. African American persons who reside in the continental United States of America who were deterred or thwarted from applying for positions as over-the-road truck drivers at Wal–Mart due to Wal–Mart’s challenged policies and practices.60

60

Doc. No. 105 at 9.

To obtain class certification, Plaintiffs must meet all four requirements of Federal Rule of Civil Procedure 23(a) and the requirements of at least one of the subdivisions of Rule 23(b). A case is “not maintainable as a class action by virtue of its designation as such in the pleadings.”61 Instead, “[t]here must be an adequate statement of the basic facts to indicate that each requirement of the rule is fulfilled.”62 The party seeking class certification has the burden of establishing that certification is appropriate.63

61

In re Am. Med. Sys., Inc., 75 F.3d 1069, 1079 (6th

Cir.1996).

65

Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178, 94

S.Ct. 2140, 40 L.Ed.2d 732 (1974).

66

Mehl v. Canadian Pac. Ry. Ltd., 227 F.R.D. 505, 509

(D.N.D.2005) (citation omitted).

67

See Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147,

160, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982).

*366 A. Implicit Requirement for Class Certification While not explicitly listed in Rule 23(a), some courts have required that a precisely defined class exist before considering the Rule 23(a) criteria for class certification.68 Wal–Mart argues that including all African Americans who were deterred or thwarted from applying to the proposed class renders the class too imprecise and speculative to be certified.

68

Dirks v. Clayton Brokerage Co. of St. Louis Inc., 105

F.R.D. 125, 130 (D.Minn.1985) (citing Roman v. ESB,

Inc., 550 F.2d 1343, 1348 (4th Cir.1976)).

[8] The Supreme Court has held that, in certain situations, deterred applicants are entitled to relief under Title VII.69 According to the Supreme Court,

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Nelson v. Wal-Mart Stores, Inc., 245 F.R.D. 358 (2007)

69

Int’l Bhd. of Teamsters v. United States, 431 U.S. 324,

97 S.Ct. 1843, 52 L.Ed.2d 396 (1977).

[t]he effects of and the injuries suffered from discriminatory employment practices are not always confined to those who were expressly denied a requested employment opportunity. A consistently enforced discriminatory policy can surely deter job applications from those who are aware of it and are unwilling to subject themselves to the humiliation of explicit and certain rejection.
If an employer should announce his policy of discrimination by a sign reading “Whites Only” on the hiring-office door, his victims would not be limited to the few who ignored the sign and subjected themselves to personal rebuffs. The same message can be communicated to potential applicants more subtly but just as clearly by an employer’s actual practices—by his consistent discriminatory treatment of actual applicants, by the manner in which he publicizes vacancies, his

recruitment techniques, his responses to casual or

tentative inquiries, and even by the racial or ethnic composition of that part of his work force from

which he has discriminatorily excluded members of

minority groups. When a person’s desire for a job is

not translated into a formal application solely

because of his unwillingness to engage in a futile

gesture he is as much a victim of discrimination as is

he who goes through the motions of submitting an application.70

70

Id. at 365–66, 97 S.Ct. 1843.

Where, as here, the employment practice complained of involves word-of-mouth recruitment, courts have often included deterred and thwarted applicants in the class challenging such a practice.71 Indeed, inclusion of deterred and thwarted applicants seems most appropriate in the context of word-of-mouth practices, since the nature of word-of-mouth recruiting is to prevent members of a protected class from even knowing about employment opportunities.

71

See, e.g., Catlett v. Mo. Highway & Transp. Comm’n,

828 F.2d 1260, 1262 (8th Cir.1987) (class of females

“who applied or might have applied for maintenance

positions” with the defendant); Domingo v. New

England Fish Co., 727 F.2d 1429, 1433, 1442 (9th

Cir.1984) (class of all nonwhites who “were employed

by Nefco, applied for employment with Nefco, or were

deterred from applying for employment with Nefco”);

Bibbs v. Jernberg Indus., Inc., No. 93 C 0637, 1993

WL 535338, at *3 (N.D.Ill.Dec.17, 1993); Van v. Plant

& Field Serv. Corp., 672 F.Supp. 1306, 1308

(C.D.Cal.1987) (class of all women who were past or present applicants for hire or were deterred from applying); Kraszewski v. State Farm Gen. Ins. Co., No. C 79–1261, 1985 WL 1616, at *78, *80 (N.D.Cal. Apr.29, 1985) (class consisting of all “female applicants and deterred applicants”); Pollar v. Judson Steel Corp., No. C–82–6833, 1984 WL 968, at *3 (N.D.Cal. Mar.30, 1984) (“female applicants and deterred female applicants”);

[9] Wal–Mart in its surreply vigorously contests Plaintiffs’ characterization of Wal–Mart’s driver recruitment practices as “word of mouth.” Instead, Wal–Mart chooses to characterize driver hiring as “a more formal hiring process with many objective components.”72 Wal–Mart points to the existence of minimum job qualifications and a formal application process as proof that its characterization is correct. At this stage in the litigation, however, where I am not allowed to inquire into the merits of Plaintiffs’ claims,73 Plaintiffs have presented sufficient *367 evidence to support their characterization of the recruitment process as word-of-mouth. Wal–Mart concedes that its primary means of driver recruitment is through its current drivers—who, based on evidence presented by Plaintiffs, are disproportionately white74—passing out cards with the 1–800 number for applications.75 Plaintiffs also have presented evidence that Wal–Mart’s white drivers mainly refer only other white drivers.76 Such evidence is consistent with what courts have understood to be the tendency of word-of-mouth recruiting.77 Whether Wal–Mart actually engaged in impermissible word-of-mouth recruiting will be best resolved in a motion for summary judgment, or in a trial on the merits. However, Plaintiffs have presented sufficient evidence to raise an inference that Wal–Mart’s practices are word-of-mouth recruiting as that term has been recognized by other courts.

72

Defs.’ Surreply at 7.

73

The Supreme Court was unmistakably clear in Eisen

that “nothing in either the language or history of Rule

23 ... gives a court any authority to conduct a

preliminary inquiry into the merits of a suit in order to

determine whether it may be maintained as a class

action.” Eisen, 417 U.S. at 177, 94 S.Ct. 2140.

74

See Pls.’ Exs. 2; 57.

75

Pls.’ Exs. 7 at 180, 184, 195, 197; 9 at 6.

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Nelson v. Wal-Mart Stores, Inc., 245 F.R.D. 358 (2007)

76

See Pls.’ Exs. 71 ¶ 6; 77 ¶ 6; 16 at 55; 68 ¶ 8; 70 ¶ 7; 79

¶ 9.

77

See, e.g., Parham v. Sw. Bell Tel. Co., 433 F.2d 421,

426–27 (8th Cir.1970).

[10] While some courts have excluded deterred applicants from class participation out of fear that the class size will become unlimited or unwieldy,78 such concerns are not present here. The proposed class of deterred applicants is limited to African Americans possessing sufficient experience and training to meet Wal–Mart’s minimum qualifications for over-the-road truck drivers but who were deterred or thwarted, because of Wal–Mart’s reliance on word-of-mouth recruitment, from making timely applications for employment. While that may be a few hundred, or even a few thousand, class members, it is far cry from the sheer magnitude of potential class members that has given other courts pause in determining whether to allow deterred applicants to participate in the class.79 I find that Plaintiffs have presented a sufficiently precise class definition to meet the implied requirement of Rule 23(a).

78

For example, the court in Harris v. General

Development Corporation, 127 F.R.D. 655

(N.D.Ill.1989), addressed the inclusion of deterred

applicants in an employment class action: In certain

cases ... class identification would be entirely feasible.

For example, a class comprised of current employees

who were “chilled” from applying for a promotion is

relatively limited, readily identifiable, and capable of

more accurate verification. In contrast to that situation,

plaintiffs’ class of deterred applicants encompasses the

entire available black labor force in the City of Chicago

and its contiguous suburbs. In attempting to cull the

truly deterred applicants from such an expansive

universe, a tremendous amount of valuable court time

and resources would be consumed, placing a severe

burden on the court and litigants.

Id. at 659 (citation omitted).

79

See id. (entire available black labor force in the City of

Chicago); see also Sondel v. Nw. Airlines, Inc., No.

3–92–381, 1993 WL 559031, at *4 (D.Minn. Sept. 30,

1993) (finding that the proposed sub-class of deterred

applicants was the equivalent of a “substantial

percentage of the nation’s female work force”).

B. Numerosity Since it is undisputed that the class is “so numerous that

joinder of all members is impracticable,” I find that Plaintiffs have met Rule 23(a)(1)’s numerosity requirement.

C. Commonality [11] Rule 23(a)(2) requires that there be common questions of law or fact among the members of the class.80 Class certification is “particularly appropriate” when the issues involved are common to the class as a whole and when they turn on questions of law applicable in the same manner to each member of the class.81 While allegations of across-the-board discrimination will not satisfy the burden of proof on certification, evidence that an employer operated under a general policy of discrimination which manifested itself to all class members “in the same general fashion, such as through entirely subjective decisionmaking processes,” suffices *368 to show commonality.82 “[C]ourts have made it clear that in cases alleging classwide disparate treatment in particular employment actions, plaintiffs must show a company-wide policy or practice, beyond individualized claims of discrimination.”83

80

Paxton, 688 F.2d at 561.

81

Falcon, 457 U.S. at 155, 102 S.Ct. 2364.

82

Id. at 159 n. 15, 102 S.Ct. 2364.

83

Abrams v. Kelsey–Seybold Med. Group, Inc., 178

F.R.D. 116, 129 (S.D.Tex.1997).

[12] Plaintiffs argue that commonality is met because all class members are over-the-road truck drivers who have been affected by the excessive subjectivity of Wal–Mart’s uniform hiring policies. I am satisfied that there are common questions of law and fact with respect to the class and its representatives. Plaintiffs do not seek to certify a class challenging across-the-board discrimination for a broad range of jobs across several departments,84 but rather focus specifically on the hiring policies for the single position of over-the-road truck driver in Wal–Mart’s Transportation Division.

84

Cf. Falcon, 457 U.S. at 152, 102 S.Ct. 2364 (describing

“across-the-board” challenge to defendant’s

employment practices involved in the case); Bradford

v. Sears, Roebuck, & Co., 673 F.2d 792, 794–95, 796

(5th Cir.1982) (challenging hiring, firing, pay, and

7

Nelson v. Wal-Mart Stores, Inc., 245 F.R.D. 358 (2007)
promotion practices across all of defendant’s job classifications in the state of Mississippi); Yapp v. Union Pac. R.R. Co., 229 F.R.D. 608, 610 (E.D.Mo.2005) (challenging selection practice for non-union positions across all of the defendant’s departments); Dukes v. Wal–Mart Stores, Inc., 222 F.R.D. 137, 141, 146 (N.D.Cal.2004) (challenging the pay and promotion practices across several departments and numerous job classifications); Clayborne v. Omaha Pub. Power Dist., 211 F.R.D. 573, 578 (D.Neb.2002) (challenging promotion, pay, training, and performance-evaluation practices for positions companywide); Wright v. Circuit City Stores, Inc., 201 F.R.D. 526, 528, 531 (N.D.Ala.2001) (challenging promotion assignment, training, and transfer practices across multiple positions and departments); Bacon v. Honda of Am. Mfg., Inc., 205 F.R.D. 466, 477 (S.D.Ohio 2001) (seeking to certify class “consisting of every African American who has ever been employed at the Ohio Honda facilities”).

“[I]t is uniformly held that plaintiffs seeking class certification may represent a multi-facility class only where centralized and uniform employment practices affect all facilities the same way.”85 For purposes of this stage of the litigation, Plaintiffs have established uniform hiring policies affecting all African American over-the-road truck drivers who met the minimum requirements and applied, or were deterred from applying, to Wal–Mart in a similar manner. Plaintiffs presented evidence that, while Wal–Mart does not have a centralized decisionmaking body that makes each driver hiring decision, Wal–Mart does have uniform policies, procedures, and practices that control the hiring process for over-the-road truck drivers.

85

Clayborne, 211 F.R.D. at 595.

Plaintiffs have produced evidence of hiring practices promulgated by Wal–Mart’s central office in Bentonville that each transportation office must follow. These practices include relying primarily on current drivers to solicit potential applicants for driver positions through distribution of the 1–800 cards; entrusting current drivers to conduct both the initial screening to determine which applicants will be granted an interview and the initial interview; and entrusting the final stage of interviews and the ultimate hiring decision to the general transportation managers. Plaintiffs have produced evidence that Wal–Mart has not established any objective hiring criteria besides the minimum qualifications printed on the 1–800 cards to guide the decisionmakers at any step of the hiring process. Consequently, drivers and general transportation managers are free to apply subjective and idiosyncratic factors in deciding which applicants are hired. Plaintiffs have produced evidence that the application of such

subjective factors has led to statistically significant under-representation of African American over-the-road truck drivers in Wal–Mart’s work force. Plaintiffs have produced evidence that, although Wal–Mart was aware of both the potential for its hiring process to produce this disparity and had the means to attempt to correct the disparity, Wal–Mart did nothing to change its hiring policies.
This evidence presented by Plaintiffs demonstrates the existence of common issues of fact and law to be decided at trial (if not on Wal–Mart’s motion). Plaintiffs will have to establish that Wal–Mart’s hiring policies and *369 practices were indeed uniform throughout Wal–Mart’s transportation offices and that they caused African Americans to be hired less often as over-the–road truck drivers than similarly situated whites. They will have to demonstrate that Wal–Mart’s driver hiring policy for the Transportation Division caused a pattern or practice of discrimination against African American over-the-road truck drivers in violation of Title VII and § 1981. They also must show that Wal–Mart’s driver hiring policy violated Title VII by having a disparate impact on African American over-the-road truck drivers—a disparate impact not justified by a business necessity. Resolving these factual and legal questions will involve the same evidence for all class members.

Wal–Mart asserts several reasons as to why Plaintiffs’ proposed class cannot meet the commonality requirement, none of which are persuasive. First, Wal–Mart argues that commonality is defeated because of the variations in qualifications and experience among the class members. Wal–Mart cites several cases to support its argument. Those cases all stand for the unremarkable proposition that, absent a showing of a pattern or practice of discrimination common to the class, “[d]iscrimination based solely on membership in a protected class [w]hich manifests itself in a different set of facts for each employee is not enough to satisfy the commonality requirement.”86 However, Plaintiffs have presented evidence of uniform hiring policies, developed by a centralized authority, which affect all class members in a similar way. Thus, the factual differences in Plaintiffs’ claims that Wal–Mart points out—such as different levels of experience and locations of interest—do not defeat the existence of common questions based on the effect of Wal–Mart’s uniform hiring policies on African American over-the-road truck drivers.

86

Ellis v. Elgin Riverboat Resort, 217 F.R.D. 415, 427

(N.D.Ill.2003) (internal quotation omitted); see also

Skipper v. Giant Food Inc., 68 Fed.Appx. 393, 397 (4th

Cir.2003) (“Given the nature of the claims plaintiffs

have pressed, the facts will vary widely from worker to

worker in cases of disparate treatment, and they will

vary widely from warehouse to warehouse in cases of a

hostile work environment.”); Johnson v. U.S. Beef

8

Nelson v. Wal-Mart Stores, Inc., 245 F.R.D. 358 (2007)
Corp., No. 04–0963, 2006 WL 680918, at *4 (W.D.Mo. Mar. 14, 2006) (noting that “plaintiffs have failed to identify what policies or procedures they believe are discriminatory”).

Next, Wal–Mart argues that the evidence of significant variations in the hiring processes of the 47 individual transportation offices prevents a finding of commonality. For example, Wal–Mart points out that different general transportation managers and screening committees use different evaluation methods for driver candidates, some of which involve assessing objective qualifications.87 However, as Plaintiffs correctly note in their reply,88 all of the distinctions Wal–Mart lists are either immaterial or actually support Plaintiffs’ contention that Wal–Mart has set up a driver-hiring process rife with subjectivity. Furthermore, the fact that some individual managers may actually use objective criteria does not defeat Plaintiffs’ claim of excessive subjectivity. “[W]hat is significant is that the determination of which criteria to use is left entirely to the individual manager.”89

87

Defs.’ Resp. Br. at 23.

88

Pls.’ Reply Br. at 20.

89

McReynolds v. Sodexho Marriott Servs., Inc., 208

F.R.D. 428, 442 (D.D.C.2002).

That last point ties into Wal–Mart’s third, and most substantial, argument against a finding of commonality here. Wal–Mart argues that commonality is defeated because, despite similar hiring policies, the hiring decisions are made independently by each general transportation manager. Wal–Mart cites numerous cases where other courts refused to grant certification when an employer “had a centralized policy of decentralization.”90 I am well aware of the split among courts who view a policy of decentralized and subjective decisionmaking as sufficient to support a finding of commonality, and those who find that it defeats commonality.91 *370 Without hesitation, I agree with the former courts. It is difficult to see why a large corporation should not be held to account for instituting a centralized policy that harms a class of individuals just because that policy allows managers to utilize subjective decisionmaking. As the court in McReynolds stated:

90

Defs.’ Resp. Br. at 28–29 (citing Reid v. Lockheed

Martin Aeronautics Co., 205 F.R.D. 655, 670

(N.D.Ga.2001)).

91

Melissa Hart, Subjective Decisionmaking and

Unconscious Discrimination, 56 ALA. L. REV. 741,

787 (2005) (collecting cases).

This position [that a policy of decentralized decisionmaking defeats commonality] would permit companies to escape Title VII class actions by minimizing the amount of control that they exercise over individual managers. Such a holding would run afoul of the purpose of Title VII, which is “not to provide redress but to avoid harm,” by encouraging employers “to adopt antidiscrimination policies and to educate their personnel on Title VII’s prohibitions.”92

92

208 F.R.D. at 443 (citing Kolstad v. Am. Dental Ass’n,

527 U.S. 526, 545, 119 S.Ct. 2118, 144 L.Ed.2d 494

(1999) (internal quotation omitted)); See generally

Daniel S. Klein, Note, Bridging the Falcon Gap: Do

Claims of Subjective Decisionmaking in Employment

Discrimination Class Actions Satisfy the Rule 23(a)

Commonality and Typicality Requirements?, 25 REV.

LITIG. 131, 152–165 (2006).

The Ninth Circuit has made the same point: “The unsurprising fact that some employment decisions are made locally [should] not allow a company to evade responsibility for its policies.”93

93

Staton v. Boeing Co., 327 F.3d 938, 956 (9th Cir.2003).

Nevertheless, even assuming that a centralized policy of decentralized, subjective decisionmaking cannot by itself meet the commonality requirement for Rule 23, the unique factual situation of this case makes a finding of commonality appropriate here.94 Although Wal–Mart’s policy of subjective and decentralized decisionmaking is an important part of Plaintiffs’ claims, Plaintiffs do not argue that Wal–Mart should be liable just because they allowed its general transportation managers discretion as to who they could hire. Instead, Plaintiffs have presented evidence that Wal–Mart’s policy across all the transportation offices is to recruit new drivers primarily through its current drivers by using the 1–800 card and driver screening committees. Plaintiffs also have presented statistical and anecdotal evidence to show that this policy had a class-wide impact, preventing qualified African American truck drivers from getting positions as over-the-road truck drivers at Wal–Mart. Finally, Plaintiffs have produced evidence that Wal–Mart was aware of the potential for its hiring process to perpetuate the racial disparity in its driver workforce but did nothing. Combined, Plaintiffs’ evidence raises an inference that
9

Nelson v. Wal-Mart Stores, Inc., 245 F.R.D. 358 (2007)

Wal–Mart excluded a cohesive group from the same opportunity by the intentional application of the same policy.

94

See, e.g., Prado–Steiman ex rel. Prado v. Bush, 221

F.3d 1266, 1275–76 (11th Cir.2000) (noting that most

certification decisions turn on “case-specific matters of

fact”).

Again, although Wal–Mart vigorously disputes the inferences to be drawn from Plaintiffs’ evidence and introduces its own evidence to counter Plaintiffs’ claims, I note again that my task, at this stage of the litigation, is not to determine the merits.95 It is sufficient that Plaintiffs’ evidence “at least suggest[s]” that Wal–Mart’s hiring policies affected African American over–the-road truck drivers in a similar way by routinely excluding them from hiring opportunities with Wal–Mart.96 Plaintiffs have met that burden and satisfy the commonality requirement of Rule 23.

95

Eisen, 417 U.S. at 177–78, 94 S.Ct. 2140.

96

Chaffin v. Rheem Mfg. Co., 904 F.2d 1269, 1276 (8th

Cir.1990).

D. Typicality [13] The Eighth Circuit has defined typicality as requiring “a demonstration that there are other members of the class who have the same or similar grievances as the plaintiff.”97 “A demonstration of typicality ‘require[s] something more than general conclusory allegations that unnamed blacks have been discriminated against.’ ”98 As courts have noted, the typicality and commonality requirements “tend to merge” because *371 “[b]oth serve as guideposts for determining whether ... the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.”99 The analysis of commonality presented above applies with equal force to typicality. Plaintiffs have shown uniform hiring policies across the transportation offices that affect all class members in a similar manner. The named plaintiffs’ claims are typical of the class members’ claims because they seek to challenge those policies.

97

Id. at 1275.

98

Id. (quoting Paxton, 688 F.2d at 562).

99

Falcon, 457 U.S. at 157 n. 13, 102 S.Ct. 2364.

[14] Wal–Mart does make one argument specifically addressed to the typicality requirement. Wal–Mart argues that Plaintiffs cannot meet the typicality requirement because of the differing qualifications and factual circumstances of the named plaintiffs and the members of the proposed class.100 Because of these factual variations, Wal–Mart argues that it has unique defenses to many of the individual class members that makes class treatment inappropriate. However, when a plaintiff challenges a corporate-wide policy of discrimination with regard to a specific employment practice, typicality is not defeated just because the named plaintiffs and individual class members have differing qualifications.101 As was explained above, Plaintiffs’ claims are based on the same hiring policies and legal theories relevant to the class as a whole.102 While Wal–Mart’s unique defenses may ultimately preclude some potential class members from recovering, they do not prevent the use of a class action to determine the central issue in this case: whether Wal–Mart’s hiring policies for over-the-road truck drivers resulted in unlawful discrimination.
100 Defs.’ Resp. Br. at 26.

101 Paxton, 688 F.2d at 562; see also Donaldson v. Pillsbury Co., 554 F.2d 825, 831 (8th Cir.1977) (“When the claim arises out of the same legal or remedial theory, the presence of factual variations is normally not sufficient to preclude class action treatment.”).
102 Alpern v. UtiliCorp United, Inc., 84 F.3d 1525, 1540 (8th Cir.1996) (“Factual variations in the individual claims will not normally preclude class certification if the claim arises from the same event or course of conduct as the class claims, and gives rise to the same legal or remedial theory.”).

E. Adequacy of Representation [15] [16] The fourth Rule 23(a) requirement requires that “a class representative ... be part of the class and possess the same interest and suffer the same injury as the class members.”103 This requirement “tend[s] to merge” with the commonality and typicality requirements because its purpose is to determine whether in a particular case
10

Nelson v. Wal-Mart Stores, Inc., 245 F.R.D. 358 (2007)
“maintenance of a class action is economical and whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.”104 The adequacy inquiry also factors in competency and conflicts of class counsel.105 Wal–Mart does not dispute the competency or qualifications of Plaintiffs’ counsel, nor does Wal–Mart argue that Plaintiffs’ counsel has any conflicts of interest. Accordingly, I find class counsel qualified and competent to prosecute this class action.
103 East Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977) (internal quotation omitted).
104 Falcon, 457 U.S. at 157 n. 13, 102 S.Ct. 2364.
105 Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 626 n. 20, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997).
While Wal–Mart does not challenge the competency of Plaintiffs’ counsel, Wal–Mart does challenge the adequacy of the named plaintiffs to represent the class. It makes three arguments regarding the adequacy of the named plaintiffs. First, Wal–Mart argues that Plaintiff Armstrong is not an appropriate class representative because he did not verify that he met the minimum qualifications to be hired as an over-the-road truck driver at Wal–Mart.106 Whether Armstrong needed to verify that he met the qualifications, however, is hotly disputed.107 Because *372 “the named plaintiff need not demonstrate a probability of success on the merits ... to serve as the class representative,”108 I need not decide that factual dispute now.
106 Defs.’ Resp. Br. at 35.
107 See Pls.’ Reply Br. at 35.
108 ALBA CONTE & HERBERT B. NEWBERG, NEWBERGONCLASS ACTIONS § 3.29 (4th ed.2002).
[17] Second, Wal–Mart argues that the named plaintiffs are not adequate representatives for the deterred applicants. “A fundamental requirement of representatives in a class action is that they must be members of the subclasses they seek to represent. The representatives must possess the

same interest and suffer the same injury as their fellow class members.”109 The class representatives here are alleged to have suffered the same injury as the deterred applicants, namely being shut out of the opportunity of working as an over-the-road truck driver for Wal–Mart because of the application of Wal–Mart’s hiring policies. Other courts, when addressing word-of-mouth hiring practices similar to those alleged here, have not hesitated to certify classes represented by applicants that included deterred applicants.110 While the named plaintiffs made it farther in Wal–Mart’s hiring process than the class members who were deterred from applying at the outset, Wal–Mart has not made any showing of how that factual difference might lead to conflicting interests between the named plaintiffs and the class members who are deterred applicants such that recognizing independently represented subclasses would be appropriate.111 At this point, I do not see potential for conflict between the interests of the named plaintiffs and the class members who were deterred applicants.112
109 Roby v. St. Louis Sw. Ry. Co., 775 F.2d 959, 961 (8th Cir.1985) (citing Rodriguez, 431 U.S. at 403, 97 S.Ct. 1891) (internal quotation omitted).
110 See, e.g., Catlett, 828 F.2d at 1262 (class representatives were all applicants who represented a class including “all females who applied or might have applied”); Van, 672 F.Supp. at 1308–09 (class representatives were applicants who represented a class including “[a]ll women who are past or present applicants [or who were] deterred from applying”).
111 See, e.g., Ortiz v. Fibreboard Corp., 527 U.S. 815, 831–32, 119 S.Ct. 2295, 144 L.Ed.2d 715 (1999) (finding that district court should have ensured that the “potentially conflicting interests of easily identifiable categories of claimants be protected by provisional certification of subclasses under Rule 23(c)(4)”).
112 I can create subclasses if this becomes an issue later. FED. R. CIV. P. 23(c)(1)(C), (c)(4); see also U.S. Fid. & Guar. Co. v. Lord, 585 F.2d 860, 865 (8th Cir.1978) (“[T]he district court can redefine the class or create subclasses, on its own initiative, or on motion of any party.”).
[18] Third, Wal–Mart argues that the named plaintiffs are not adequate class representatives because, by not seeking compensatory damages, they “place themselves in conflict with any absent class members who might have claims for such damages.”113 All the cases cited by Wal–Mart in support of this argument were concerned
11

Nelson v. Wal-Mart Stores, Inc., 245 F.R.D. 358 (2007)
with the potential preclusive effect of the class judgment on any class member having a significant claim for compensatory damages.114 While I recognize the principle that a court “cannot predetermine the res judicata effect of the [class] judgment,”115 I can assess the risk of res judicata in order to determine the adequacy of the class representation.116 The principle that a “class action suit seeking only declaratory and injunctive relief does not bar subsequent individual damage claims by class members, even if based on the same events,” is well established.117 To the extent *373 Plaintiffs seek declaratory and injunctive relief, as well as back pay,118 I am not concerned about the res judicata effect of this class action for those class members who want to pursue compensatory damages in individual suits.
113 Defs.’ Resp. Br. at 36.

Plaintiffs’ claim for punitive damages, however, is another matter. It may raise res judicata concerns for any class member wishing to pursue compensatory damages in an individual suit.119 While I recognize that most of the members of the proposed class would probably have insignificant compensatory claims, if any, I am unwilling to entirely dismiss the possibility that a few members of the proposed class might have claims for significant compensatory damages. However, I believe that severing the issue of punitive damages under Rule 23(c)(4)(A) and certifying a class only on the issues of classwide liability and declaratory and equitable relief removes any res-judicata risk. Thus, I find that the named plaintiffs are adequate representatives of the proposed class.

119

See id.

114 See Thompson v. Am. Tobacco Co., Inc., 189 F.R.D. 544, 550–51 (D.Minn.1999); Zachery v. Texaco Exploration & Prod., Inc., 185 F.R.D. 230, 243 (W.D.Tex.1999); Feinstein v. Firestone Tire & Rubber Co., 535 F.Supp. 595, 606–07 (S.D.N.Y.1982).
115 Matsushita Elec. Indus. Co., Ltd. v. Epstein, 516 U.S. 367, 396, 116 S.Ct. 873, 134 L.Ed.2d 6 (1996); FED. R. CIV. P. 23(c)(3) advisory committee’s note.
116 Coleman v. Gen. Motors Acceptance Corp., 220 F.R.D. 64, 80–81 (M.D.Tenn.2004).
117 Hiser v. Franklin, 94 F.3d 1287, 1291 (9th Cir.1996); see also Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984); Fortner v. Thomas, 983 F.2d 1024, 1031 (11th Cir.1993); Norris v. Slothouber, 718 F.2d 1116, 1117 (D.C.Cir.1983); In re Jackson Lockdown/MCO Cases, 568 F.Supp. 869, 892 (E.D.Mich.1983) (“[E]very federal court of appeals that has considered the question has held that a class action seeking only declaratory and injunctive relief does not bar subsequent individual suits for damages based on the same or similar conditions.”).
118 See Samuel Issacharoff, Preclusion, Due Process, and the Right to Opt Out of Class Actions, 77 NOTRE DAME L. REV. 1057, 1078 (2002) (drawing the distinction between equitable remedies and traditional common-law compensatory remedies in describing the res-judicata effect of class actions).

III. CERTIFICATION UNDER RULE 23(B) Besides meeting the Rule 23(a) requirements of commonality, typicality, numerosity, and adequacy of representation, a plaintiff must also show that the proposed class meets the requirements of one of the three categories listed in Rule 23(b). The relevant portion of Rule 23(b) is:
(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
* * *
(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of
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Nelson v. Wal-Mart Stores, Inc., 245 F.R.D. 358 (2007)
the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.120 120 FED.R.CIV.P. 23(b).

Plaintiffs seek class certification under Rule 23(b)(2) or, as an alternative, Rule 23(b)(3).

A. Rule 23(b)(2) Rule 23(b)(2) requires Plaintiffs to show that Wal–Mart “acted or refused to act on grounds generally applicable to the class.”121 Wal–Mart’s hiring policies, as discussed above, meet that requirement. Wal–Mart argues, however, that Plaintiffs’ proposed class cannot be certified under Rule 23(b)(2) because claims for monetary damages predominate over Plaintiffs’ claims for declaratory and injunctive relief.

121

Id.

1. Predomination under Rule 23(b)(2) [19] Proposed Rule 23(b)(2) classes involving claims for monetary damages should be treated with special care. “[T]he class treatment of claims for monetary damages implicates the Seventh Amendment and due process rights of individual class members,” since such claims involve individual interests that are “necessarily heterogeneous in nature.” *374 122 Classes certified under Rule 23(b)(3) are required to provide the additional procedural protections of notice and the opportunity to opt out precisely because of the risks attendant with aggregating individual claims for monetary damages.123 The federal rules contain no such requirement for Rule 23(b)(2) classes,124 however, because the “very nature of a(b)(2) class” is homogeneity “without any conflicting interests between the members of the class.”125 Thus, whether the monetary relief requested by a Title VII plaintiff seeking class certification is allowable under Rule 23(b)(2) must be carefully determined in order to protect the individual interests at stake and ensure that the underlying assumption of homogeneity is not undermined.126
122 Coleman v. Gen. Motors Acceptance Corp., 296 F.3d 443, 448 (6th Cir.2002) (citing Ortiz, 527 U.S. at 846, 119 S.Ct. 2295).
123 FED.R.CIV.P. 23(c)(2) advisory committee’s note.

124 Whether such requirements can be grafted onto a(b)(2) class will be discussed below.
125 Wetzel v. Liberty Mut. Ins. Co., 508 F.2d 239, 256 (3d Cir.1975).
126 The Supreme Court has questioned in dicta whether monetary damages can ever be recovered in a Rule 23(b)(2) class action, stating that there was at least a “substantial possibility” that they could not. Ticor Title Ins. Co. v. Brown, 511 U.S. 117, 121, 114 S.Ct. 1359, 128 L.Ed.2d 33 (1994). The Supreme Court has never squarely faced the issue, however. And holding that no monetary relief could be recovered in a(b)(2) class flies in the face of long established circuit-court precedent.
The advisory committee provided guidance as to when monetary relief is allowable in a(b)(2) class. They state that Rule 23(b)(2) does not extend to “cases in which the appropriate final relief relates exclusively or predominately to money damages.”127 Neither the advisory committee’s notes nor the Eighth Circuit has defined “predominately.” However, the weight of authority holds that money damages predominate when they are not incidental to declaratory and injunctive relief, i.e., when the damages do not “flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief.”128 The Fifth Circuit explained this definition in the landmark case Allison v. Citgo Petroleum Corporation:
127 FED.R.CIV.P. 23 advisory committee’s notes.
128 151 F.3d 402, 415 (5th Cir.1998); see also Barabin v. Aramark Corp., No. 02–8057, 2003 WL 355417, at *1–*2 (3d Cir. Jan.24, 2003) (adopting the Allison approach to incidental damages); Coleman, 296 F.3d at 448; Murray v. Auslander, 244 F.3d 807, 812 (11th Cir.2001); Jefferson v. Ingersoll Int’l Inc., 195 F.3d 894, 898 (7th Cir.1999). But see Robinson v. Metro–North Commuter R.R. Co., 267 F.3d 147, 164 (2d Cir.2001) (rejecting the Fifth Circuit’s incidental damages approach as defined in Allison in favor of an ad hoc balancing determination); Molski v. Gleich, 318 F.3d 937, 950 (9th Cir.2003) (refusing to follow Allison because it “would nullify the discretion vested in the district courts through Rule 23” and might have “troubling implications for the viability of future civil rights actions, particularly those under the Civil Rights Act of 1991”).
[T]he recovery of incidental damages should typically
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Nelson v. Wal-Mart Stores, Inc., 245 F.R.D. 358 (2007)
be concomitant with, not merely consequential to, class-wide injunctive or declaratory relief. Moreover, such damages should at least be capable of computation by means of objective standards and not dependent on the intangible, subjective differences of each class member’s circumstances. Liability for incidental damages should not require additional hearings to resolve the disparate merits of each individual’s case; it should neither introduce new and substantial legal or factual issues, nor entail complex individualized determinations.129 129 Allison, 151 F.3d at 415.
If the monetary relief sought is a group remedy rather than an individual-by-individual remedy, however, it does not predominate and the class can be certified under Rule 23(b)(2).130 The Fifth Circuit in Allison gave a hypothetical where a defendant’s liability entitled the class to a statutorily-mandated damages award as an example of when monetary damages would not predominate over injunctive and declaratory relief.131
130 Murray, 244 F.3d at 812.
131 Allison, 151 F.3d at 415.

with claims for back pay under Rule 23(b)(2).135
132 Daniel F. Piar, The Uncertain Future of Title VII Class Actions After the Civil Rights Act of 1991, 2001 BYU L. REV. 305, 319 (2001); see also Cooper v. S. Co., 390 F.3d 695, 720 (11th Cir.2004) ( “Back pay is considered equitable relief and can therefore be awarded in a case certified under Rule 23(b)(2).”); Jefferson, 195 F.3d at 896 (mentioning the tradition in Title VII where back pay was allowed to be recovered in a Rule 23(b)(2) class action and noting that “back pay is a form of equitable relief, but this relief was treated as incidental to the injunction”).
133 Marshall v. Kirkland, 602 F.2d 1282, 1295 (8th Cir.1979) (footnote and quotation omitted).
134 See Allison, 151 F.3d at 416 n. 10.
135 See Kirby v. Colony Furniture Co., Inc., 613 F.2d 696, 699–700 (8th Cir.1980); see also Allison, 151 F.3d at 415 (noting that back pay is “an equitable remedy similar to other forms of affirmative injunctive relief permitted in (b)(2) class actions”).

a. Back Pay [20] While the back-pay remedy Plaintiffs seek would seem to be classified as non- *375 incidental damages under the above definition, courts have uniformly held that back pay does not predominate over the declaratory and injunctive relief sought by Title VII plaintiffs. “[T]he availability of equitable monetary remedies in [Rule 23(b)(2)] class actions is entrenched as a matter of precedent.”132 As the Eighth Circuit has stated, “Though Rule 23(b)(2) relates to class claims on which declaratory and injunctive relief is sought, this Court has observed in conformity with the majority of federal courts, that the fact pecuniary relief in the form of back pay is sought incidental to injunctive relief will not preclude certification.”133 Courts have distinguished back pay from all other forms of monetary relief and exempted back pay from the rigors of the “incidental” determination. In Allison, the Fifth Circuit stated that because back pay is a remedy historically available in Title VII class actions, it is considered incidental by precedent and courts need not engage in further analysis.134 Thus, although individualized analysis may be required in determining each individual class member’s entitlement to back pay, that alone has not stopped courts from certifying classes

b. Punitive Damages The more perplexing question is whether the punitive damages Plaintiffs’ seek predominate over the declaratory and injunctive relief sought. Both parties were afforded an opportunity at the April 24, 2007, hearing to provide further argument on this difficult issue. While several courts have addressed the question of whether compensatory damages,136 or compensatory damages coupled with a request for punitive damages,137 are incidental to declaratory and injunctive relief under Rule 23(b)(2), few courts have addressed the question of whether a request for punitive damages alone defeats certification under Rule 23(b)(2).138
136 See, e.g., Coleman, 296 F.3d at 446–48; Robinson, 267 F.3d at 155; Murray, 244 F.3d at 812; Taylor v. D.C. Water & Sewer Auth., 205 F.R.D. 43 (D.D.C.2002); Buycks–Roberson v. Citibank Fed. Sav. Bank, 162 F.R.D. 322, 335 (N.D.Ill.1995) (citing cases).
137 See, e.g., Lemon v. Int’l Union of Operating Engineers, Local No. 139, AFL–CIO, 216 F.3d 577, 579 (7th Cir.2000); Allison, 151 F.3d at 416–18; Adler v. Wallace Computer Services, Inc., 202 F.R.D. 666
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Nelson v. Wal-Mart Stores, Inc., 245 F.R.D. 358 (2007)
(N.D.Ga.2001); Hoffman v. Honda of Am. Mfg., Inc., 191 F.R.D. 530 (S.D.Ohio 1999); Faulk v. Home Oil Co., Inc., 186 F.R.D. 660 (M.D.Ala.1999).
138 See Carlson v. C.H. Robinson Worldwide, Inc., No. 02–3780, 2005 WL 758602, at *16 (D.Minn. Mar.31, 2005); Dukes, 222 F.R.D. at 170–71, aff’d, 474 F.3d 1214 (9th Cir.2007); Anderson v. Boeing Co., 222 F.R.D. 521, 542 (N.D.Okla.2004); Palmer v. Combined Ins. Co. of Am., 217 F.R.D. 430 (N.D.Ill.2003). Plaintiffs can request punitive damages without also asking for compensatory damages because the Eighth Circuit is one of the circuits that allows an award of punitive damages without any award of compensatory damages. Anderson, 222 F.R.D. at 542 (citing cases).
[21] In order to resolve this question, I must determine the nature of the claim for punitive damages in this case. Punitive damages are available in claims under Title VII where the employer has engaged in intentional discrimination and has done so with malice or reckless indifference to the federally protected rights of “an aggrieved individual.”139 Wal–Mart argues that the punitive damages Plaintiffs seek are an individualized remedy.140 Plaintiffs, on the other hand, assert *376 that their request for punitive damages is a form of classwide relief.141
139 42 U.S.C. § 1981a(b)(1).
140 Defs.’ Resp. Br. at 41–42.
141 Pls.’ Br. at 42–45.
[22] In most cases, punitive damages are an individualized, and not a classwide, remedy. To be eligible to receive punitive damages an individual plaintiff must “establish that the defendant possessed a reckless indifference to the plaintiff’s federal rights—a fact-specific inquiry into that plaintiff’s circumstances.”142 Furthermore, given the Supreme Court’s repeated insistence that an award of punitive damages be reasonably related to the harm to the individual plaintiff.143 an award of punitive damages often must include an inquiry into each plaintiff’s individual circumstances in order to determine the amount of punitive damages awardable to that plaintiff.144
142 Lemon, 216 F.3d at 581.

143 See Philip Morris USA v. Williams, 549 U.S. 346, ––––, 127 S.Ct. 1057, 1065, 166 L.Ed.2d 940 (2007) (holding that the “Due Process Clause prohibits a State’s inflicting punishment for harm caused strangers to the litigation.”); State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 426, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003) (“[C]ourts must ensure that the measure of punishment is both reasonable and proportionate to the amount of harm to the plaintiff and to the general damages recovered.”); BMW of N. Am. v. Gore, 517 U.S. 559, 580, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996) (“The second and perhaps most commonly cited indicium of an unreasonable or excessive punitive damages award is its ratio to the actual harm inflicted on the plaintiff.”). Oftentimes that means that the amount of punitive damages awardable to an individual plaintiff is bounded by some ratio of the compensatory damages awarded to that plaintiff. See, e.g., Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 23, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991) (suggesting that a four-to-one ratio of punitive damages to compensatory damages was “close to the line” of constitutional impropriety).
144 See Campbell, 538 U.S. at 423, 123 S.Ct. 1513 (“A defendant should be punished for the conduct that harmed the plaintiff, not for being an unsavory individual or business.”).
[23] Plaintiffs here argue, however, that their claim for punitive damages could be considered on a classwide basis rather than individually because their claim is based on a pattern of similar acts perpetrated by Wal–Mart. Plaintiffs assert that, because the focus of punitive damages is on Wal–Mart’s conduct, and not the injury to each class member, classwide punitive damages is appropriate in this case.145 The Fifth Circuit in Allison left open the question of whether, in cases involving a pattern of illegal acts, punitive damages could be considered on a classwide basis. Allison involved a class-action challenge to Citgo’s promotion and hiring policies, which were similar to Wal–Mart’s hiring policies at issue here.146 The plaintiffs sought to certify a class of all African American employees and applicants of Citgo, and included a request for both compensatory and punitive damages on behalf of the class.147 Allison held that the district court properly denied certification.148 On the road to that holding, the Fifth Circuit assumed that punitive damages “may be awarded on a class-wide basis, without individualized proof of injury, where the entire class or subclass is subjected to the same discriminatory act or series of acts.”149 The court found, however, that “no such discrimination is alleged in this case.”150 The Fifth Circuit was careful to note that the Allison plaintiffs did “not contend that each [class member] was affected by these policies and practices in the same way.”151 The court observed that any award of punitive damages would
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Nelson v. Wal-Mart Stores, Inc., 245 F.R.D. 358 (2007)
therefore be “uniquely dependent on the subjective and intangible differences of each class member’s individual circumstances” since “[s]ome discriminatory policies may have been implemented more—or less—harshly depending *377 on the department or facility involved.”152
145 Pls.’ Reply Br. at 44.

146 Allison, 151 F.3d at 407 (use of an informal word-of-mouth announcement process by the defendant Citgo to fill job vacancies and the use of a subjective decisionmaking process by Citgo’s predominantly white supervisory staff in reviewing applicants for hire and employees for promotion).

147

Id.

148

Id.

149

Id. at 417.

150

Id.

151

Id.

152 Id. at 417, 418.
Here, Plaintiffs do allege that each potential class member has been affected by Wal–Mart’s hiring policies and practices in a similar way. Furthermore, Plaintiffs rely on Williams v. ConAgra Poultry Company153 for the proposition that punitive damages may be awarded on a classwide basis, without individualized proof of injury.154 The Eighth Circuit in Williams decided to remit a punitive-damages award to an individual plaintiff that was based, in part, on proof of the defendant’s discriminatory conduct towards others. On the way to that decision, the Eighth Circuit observed in dictum:
153 378 F.3d 790 (8th Cir.2004).

154 See Pls.’ Br. at 43–44.
Where there has been a pattern of illegal conduct resulting in harm to a large group of people, our system has mechanisms such as class action suits for punishing defendants. Punishing systematic abuses by a punitive damages award in a case brought by an individual plaintiff, however, deprives the defendant of the safeguards against duplicative punishment that inhere in the class action procedure.155 155 Williams, 378 F.3d at 797.
Plaintiffs urge me to read that statement as a recognition by the Eighth Circuit that some awards of punitive damages may flow to a class as a whole.156 Plaintiffs’ argument is not without appeal, since a case where punitive damages flows to a class as a whole—rather than existing merely as an individual-by-individual remedy—is not inconceivable, if one reflects on the Eighth Circuit’s example of a “pattern of illegal conduct.”157 Nevertheless, when the court in Williams made the above statement, it was not confronted with the whole host of issues a request for punitive damages raises at the class certification stage. Thus, I am chary of basing my decision on a single statement by the Eighth Circuit in a case that did not present the same issues as are presented here.
156 Cf. Anderson, 222 F.R.D. at 541 (“Because the purpose of punitive damages is not to compensate the victim, ... [the inquiry] hinges, not on facts unique to each class member, but on the defendant’s conduct toward the class as a whole.”); Barefield v. Chevron, U.S.A., Inc., No. C 86–2427, 1988 WL 188433, *3 (N.D.Cal. Dec. 6, 1988) (holding that a class-wide request for punitive damages was incidental to declaratory and injunctive relief because it did not detract from the “homogeneity or cohesiveness” of the 23(b)(2) class).
157 If, for instance, the defendant acts in the same manner towards each class member while at the same time perceiving the risk that such a policy may violate those class members’ federally-protected rights, then a claim for punitive damages might be thought of as flowing to the class as a whole upon a finding of liability.
Furthermore, Plaintiffs’ claim for punitive damages would be non-incidental even if a jury in this case were to find that Wal–Mart engaged in a pattern of discriminatory acts that affected class members in a similar way. Even after such a finding, a jury would not be able to determine the extent of the harm caused by Wal–Mart’s conduct,
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Nelson v. Wal-Mart Stores, Inc., 245 F.R.D. 358 (2007)
and as a corollary the extent of the need for punishment and deterrence,158 at the classwide stage without engaging in further individualized determinations. The reason for the need for further proceedings is simple. Typically, a court or jury is not able to determine, until the conclusion of the second stage of a Teamsters-style proceeding, which alleged class members were actually harmed by the defendant’s pattern of discriminatory acts and which were not.159 Thus, unless each alleged class member has actually suffered harm from the pattern of illegal acts—which is highly unlikely—Wal-Mart would be over-deterred by any classwide award of punitive *378 damages. Individualized determinations are necessary to fully realize the extent of the harm caused by Wal–Mart’s conduct and properly assess the need for punishment and deterrence. Such individualized determinations in this case would include whether each proposed class member met Wal–Mart’s minimum requirements at the time he or she applied for a position as an over-the-road truck driver or was deterred from applying; whether each proposed class member applied to a transportation office that was currently hiring at the time of the application; and whether Wal–Mart denied employment to an individual applicant who met the minimum requirements for lawful reasons. Because of the need for those individualized determinations, I find that, in this case, the punitive damages Plaintiffs seek predominate over their claims for injunctive and declaratory relief.160
158 See Williams, 127 S.Ct. at 1062 (“This Court has long made clear that punitive damages may properly be imposed to further a State’s legitimate interests in punishing unlawful conduct and deterring its repetition.”) (internal quotation and alteration omitted).
159 See Teamsters, 431 U.S. at 371–72, 97 S.Ct. 1843 (“The task remaining for the District Court [after finding a pattern-and-practice of discrimination] will not be a simple one. Initially, the court will have to make a substantial number of individual determinations in deciding which of the minority employees were actual victims of the company’s discriminatory practices.”).
160 Although this conclusion appears to be inconsistent with allowing back pay in a(b)(2) class—a remedy which will potentially involve just as many individualized determinations as an award of punitive damages—it is worth reiterating that the back-pay remedy has been historically recoverable in Rule 23(b)(2) Title VII class actions, while punitive damages have not.

2. Opting Out of a Rule 23(b)(2) Class [24] Plaintiffs argue that the due-process problems caused by allowing non-incidental damages in a Rule 23(b)(2) class can be avoided if class members are given notice and an opportunity to opt out as other courts have done.161 Allowing class members to opt out arguably relieves any due-process concerns.162 However, the Eighth Circuit foreclosed this option in DeBoer v. Mellon Mortgage Company, where it stated that “the privilege to opt-out of the action should be operable only when the class action is maintainable under [Rule 23(b)(3)] alone.”163 While Plaintiffs urge me to distinguish DeBoer on the facts, as the court did in Robinson v. Sears, Roebuck and Company,164 I decline the invitation. The court in Robinson distinguished DeBoer on the grounds that it involved incidental damages and therefore did not confront the question of opting out of a Rule 23(b)(2) class in the context of non-incidental damages.165 Robinson did not explain why the distinction between incidental and non-incidental damages would make a difference. Given the Eighth Circuit’s stated reason for preferring a mandatory class over a Rule 23(b)(3) opt-out class—i.e. “to avoid unnecessary inconsistencies and compromises in future litigation”166—the distinction between incidental and non-incidental damages appears immaterial, since the whole point of having a mandatory Rule 23(b)(2) class is destroyed if opting out is allowed regardless of whether the damages involved are incidental or are not incidental to the declaratory and injunctive relief. Thus, according to DeBoer, if Plaintiffs want the right to opt out, they can get it only in a Rule 23(b)(3) class.
161 111 F.Supp.2d 1101, 1127 (E.D.Ark.2000); see also Eubanks v. Billington, 110 F.3d 87, 93–94 (D.C.Cir.1997) (collecting cases).
162 See Robert M. Brava–Partain, Note, Due Process, Rule 23, and Hybrid Classes: A Practical Solution, 53 HASTINGS L.J. 1359, 1369–70 (2002).
163 64 F.3d 1171, 1175 (8th Cir.1995).

164 Robinson, 111 F.Supp.2d at 1127.

165

Id.

166 64 F.3d at 1175. 17

Nelson v. Wal-Mart Stores, Inc., 245 F.R.D. 358 (2007)
B. Rule 23(b)(3) [25] Plaintiffs request, as an alternative to Rule 23(b)(2), that either their proposed class be certified entirely under Rule 23(b)(3) or that two classes be certified: one under Rule 23(b)(2) for the issues of liability and declaratory and equitable relief, the other under Rule 23(b)(3) on the issue of punitive damages. In addition to the Rule 23(a) requirements,
“a class certified under Rule 23(b)(3) must meet that provision’s heightened requirements that ‘[common] questions of law or fact ... predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.’ ”167
167 Blyden v. Mancusi, 186 F.3d 252, 269 (2d Cir.1999) (quoting FED.R.CIV.P. 23(b)(3)).
*379 While this is a close issue, I find that the superiority and predominance requirements, though not necessary for certification under Rule 23(b)(2),168 pose an insuperable barrier to certification of Plaintiffs’ proposed class under Rule 23(b)(3).
168 Robinson v. Tex. Auto. Dealers Ass’n, 387 F.3d 416, 426 n. 29 (5th Cir.2004) (“[P]roposed (b)(2) classes need not withstand a court’s independent probe into the superiority of the class action over other available methods of adjudication[,] as (b)(3) classes must.”).
As mentioned above, recovery of punitive damages in Title VII cases is a fact-specific inquiry requiring “individualized and independent proof of injury to, and the means by which discrimination was inflicted upon, each class member.”169 Regardless of whether Plaintiffs are able to establish a pattern or practice of discrimination at the liability stage, a jury or juries170 still would have to make a “substantial number of individual determinations”171 in deciding which of the alleged class members were actual victims and thus entitled to collect a share of the back pay and punitive damages.172 Such individual determinations include whether each proposed class member met Wal–Mart’s minimum requirements at the time he or she applied for a position as an over-the-road truck driver or was deterred from applying; whether each proposed class member applied to a transportation office that was currently hiring at the time of the application; and whether Wal–Mart denied employment to an individual applicant who met the minimum requirements for lawful reasons.173 The individual issues involved in these “mini-trials” for each

potential class member would swamp the litigation and, as a result, detract from a class action’s superiority over other methods of adjudication. Furthermore, because the Plaintiffs have exercised their right to a jury trial, the impact of these individualized issues on the management of the litigation could not be lessened by the use of more efficient litigation techniques, such as the use of a special master or other similar timesaving device.174 Finally, “the most compelling rationale for finding superiority in a class action”—the negative value suit—is missing in this case.175 Because of their claim for punitive damages, then, Plaintiffs cannot meet the predominance and superiority requirements of Rule 23(b)(3), either for the entire proposed class or a separate punitive-damages only class.
169 Allison, 151 F.3d at 419.
170 Title VII plaintiffs have a right to a jury trial when they request punitive damages, 42 U.S.C. § 1981a(c), and Plaintiffs have exercised that right here. Doc. No. 40 at 16.
171 Teamsters, 431 U.S. at 371, 97 S.Ct. 1843.
172 Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999, 1006 (11th Cir.1997); see also Rutstein v. Avis Rent–A–Car Sys., Inc., 211 F.3d 1228, 1235 (11th Cir.2000) (“Given that each plaintiff must demonstrate that he or she suffered from intentional discrimination, however, we expect that most, if not all, of the plaintiffs’ claims will stand or fall, not on the answer to the question whether [Avis] has a practice or policy of [ethnic] discrimination, but on the resolution of ... highly case-specific factual issues.”) (internal quotation omitted); Adams v. Henderson, 197 F.R.D. 162, 172 (D.Md.2000) (“The issue of liability will depend on the circumstances surrounding each individual employment decision, relating to each class member. This will require individualized evidence as to the qualifications of the persons who applied for and received promotions, as well as the qualifications of the persons who were denied those promotions.”); Ramirez v. DeCoster, 194 F.R.D. 348, 354 (D.Me.2000).
173 If Plaintiffs establish that Wal–Mart’s hiring polices amounted to a pattern-or-practice of discrimination, then the burden would rest on Wal–Mart to demonstrate that the individual applicant was denied an employment opportunity for lawful reasons. Teamsters, 431 U.S. at 362, 97 S.Ct. 1843.
18

Nelson v. Wal-Mart Stores, Inc., 245 F.R.D. 358 (2007)
174 Allison, 151 F.3d at 409; see also Piar, supra, at 318 (“While not entirely formulaic, [back pay determinations, as opposed to the determinations necessary for awards of compensatory or punitive damages,] are made according to methods of calculation that are well developed and can be applied with some degree of classwide efficiency, especially because they need not be determined by juries.”).
175 Allison, 151 F.3d at 420.
C. Rule 23(c)(4)(A) Severance [26] Although Plaintiffs’ class claim for punitive damages throws a monkey wrench in certification under either Rule 23(b)(2) or Rule 23(b)(3), that is not the end of the matter. In my letter to the parties dated *380 April 4, 2007, I raised the question of whether I could sever the request for punitive damages under Rule 23(c)(4)(A) and certify a Rule 23(b)(2) class on the issues of classwide liability, declaratory relief, and equitable relief. To that possibility I now turn. Rule 23(c)(4)(A) states that “[w]hen appropriate an action may be brought or maintained as a class action with respect to particular issues.”176 A district court may utilize Rule 23(c)(4)(A) on its own initiative.177 “The theory of Rule 23(c)(4)(A) is that the advantage and economies of adjudicating issues that are common to the entire class on a representative basis should be secured even though other issues in the case may have to be litigated separately by each class member.”178 “[T]he relevant inquiry under Rule 23(c)(4)(A) is whether resolution of the particular common issues would materially advance the disposition of the litigation as a whole.”179
176 FED.R.CIV.P. 23(c)(4)(A).
177 Robinson v. Gillespie, 219 F.R.D. 179, 185 (D.Kan.2003).
178 7A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICEANDPROCEDURE § 1790 (3d ed.2005).
179 Emig v. Am. Tobacco Co., 184 F.R.D. 379, 395 (D.Kan.1998) (internal quotation omitted).
[27] The advisory committee envisioned severance of

liability issues from damages issues as an appropriate use of Rule 23(c)(4)(A).180 Other courts have severed claims for punitive and compensatory damages from the determination of liability and declaratory and equitable relief in Title VII pattern-and-practice class actions.181 Thus, under Rule 23(c)(4)(A), I am severing the issue of punitive damages and certifying a class under Rule 23(b)(2) on the issues of classwide liability, declaratory relief, and equitable relief.182 I believe this option makes the best use of judicial resources and the efficiencies of the class-action device to materially advance this litigation, while at the same time protecting the due-process rights of individual class members and avoiding the difficult legal and managemental issues attendant to aggregating individual punitive-damages claims. Any class member wishing to bring an individual suit for punitive or compensatory damages after the conclusion of this litigation will be free to do so without worrying about the risk of res judicata.183
180 The advisory committee’s note states: This provision recognizes that an action may be maintained as a class action as to particular issues only. For example, in a fraud or similar case the action may retain its “class” character only through the adjudication of liability to the class; the members of the class may thereafter be required to come in individually and prove the amounts of their respective claims.
FED. R. CIV. P. 23(c)(4)(A) advisory committee’s note; See also Hannah Stott–Bumsted, Note, Severance Packages: Judicial Use of Federal Rule of Civil Procedure 23(c)(4)(A), 91 GEO. L.J. 219, 222 (2002).
181 See, e.g., Carlson v. C.H. Robinson Worldwide, Inc., No. 02–3780, 2005 WL 758602, at *16 (D.Minn. Mar.31, 2005); Morgan v. United Parcel Serv. of Am., Inc., 169 F.R.D. 349, 358 (E.D.Mo.1996).
182 Robinson, 267 F.3d at 167 (“District courts should take full advantage of [Rule 23(c)(4)(A)] to certify separate issues in order to reduce the range of disputed issues in complex litigation and achieve judicial efficiencies.”) (internal quotations omitted).
183 See Issacharoff, supra, at 1073 (limiting certification to those claims that actually fit the Rule 23(b)(2) model leaves “individuals free to pursue their separate claims should individual class members ... find that these claims merited individual prosecution” without the fear that those claims have been waived in the class action).
19

Nelson v. Wal-Mart Stores, Inc., 245 F.R.D. 358 (2007)
CONCLUSION
Based on all the filings and proceedings on the Plaintiffs’ motion, and for the reasons stated above, Plaintiffs’ Motion for Class Certification is GRANTED IN PART and DENIED IN PART. I certify the following class under Federal Rule of Civil Procedure 23(b)(2) for purposes of classwide liability, declaratory relief, and equitable relief only:
a. African American persons who reside in the continental United States of America who have applied for employment as over-the-road truck drivers at Wal–Mart since September 22, 2001, and who have not been hired; and

b. African American persons who reside in the continental United States of America *381 who were deterred or thwarted from applying for positions as over-the-road truck drivers at Wal–Mart due to Wal–Mart’s challenged policies and practices.
IT IS SO ORDERED.
Parallel Citations
100 Fair Empl.Prac.Cas. (BNA) 1197, 69 Fed.R.Serv.3d 77
	  

20

 
 Nelson v. Wal-Mart Stores, Inc., Not Reported in F.Supp.2d (2006)
2006 WL 3361212 Only the Westlaw citation is currently available.
United States District Court, E.D. Arkansas, Helena Division.
Daryal T. NELSON and Tommy Armstrong, individually and on behalf of all persons similarly situated, Plaintiffs v.
WAL-MART STORES, INC; Wal-Mart Transportation LLC, Defendants.
No. 2:04CV00171 WRW, 2:05CV00134 WRW. | Nov. 20, 2006.
Attorneys and Law Firms
David O. Bowden, Attorney at Law, John W. Walker, Shawn Garrick Childs, John W. Walker, P.A., Lloyd W. Kitchens, III, Morgan E. Welch, Welch and Kitchens, LLC, Joseph Henry Bates, III, Darrin Lavell Williams, Brooke Augusta Owen, Cauley Bowman Carney & Williams, LLP, Little Rock, AR, Robert Peter Pressman, Attorney at Law, Lexington, MA, for Plaintiffs.
Alison B. Marshall, Jones Day, Washington, DC, Joann C. Maxey, Philip E. Kaplan, Kaplan, Brewer, Maxey & Haralson, P.A., Little Rock, AR, Lawrence C. Dinardo, Michael J. Gray, Jones Day, Chicago, IL, Richard H. Deane, Jones Day, Atlanta, GA, for Defendants.
Opinion
ORDER
WM. R. WILSON, JR., District Judge.
*1 Pending is Plaintiffs’ Motion to Compel (Doc. No. 81). Defendants have responded (Doc. No. 83). The parties also have submitted letters to the Court concerning two other discovery issues.
First, Plaintiffs have served Defendants with a 30(b)(6) notice of deposition related to Defendants’ distribution centers, which Defendants have objected to on the grounds that the Court has still not decided Plaintiffs’ April 2006 Motion to Compel.
Second, Plaintiffs seek the application files for all the over-the-road truck drivers hired at 22 of the transportation offices during the period of 2000 to the present. Because both of those requests involve information relevant to the plaintiffs’ claims, the requests are granted.
I. BACKGROUND Plaintiffs challenge Wal-Mart’s hiring practices for over-the-road truck drivers for its transportation offices. The core issue in the motion to compel and the follow-up letters is whether the scope of discovery to be expanded into Wal-Mart’s hiring practices at its distribution centers.
Wal-Mart’s Logistics Division1 is divided into two subdivisions: (1) the Transportation Division in charge of Wal-Mart’s truck fleet and its support; and (2) the Distribution Division in charge of the distribution centers that the trucking fleet services. There are 41 field transportation offices in Wal-Mart’s Transportation Division.2 Every transportation office is located onsite at one of the distribution centers it services.3 The transportation offices have their own management structure, including a general transportation manager in charge of each office and a personnel manager who, together with the general transportation manager, is responsible for hiring over-the-road truck drivers.4 The general transportation manager and personnel manager report to regional managers, who in turn report to either the East or West Transportation Division Vice
1

Nelson v. Wal-Mart Stores, Inc., Not Reported in F.Supp.2d (2006)
President.5 Those Vice Presidents report to the Senior Vice President of Transportation, who reports directly to the Executive Vice President of Logistics.6
The distribution centers are under the Distribution Division. They have a managerial structure apart from the transportation offices and report to a chain of higher-ups separate from the transportation offices.7 Each distribution center, for instance, has a general manager who reports to a regional vice president for the distribution centers.8 The distribution centers, like the transportation offices, are ultimately accountable to the officers of the Logistics Division.
Wal-Mart’s Diversity Office-a corporate-level office-has established Diversity Goals for the Logistics Division. For the transportation offices, the general transportation managers must meet good faith efforts, i.e. set up a diversity mentoring program and go to three diversity conferences a year.9 In contrast, the general managers of the distribution centers, while having to meet good faith efforts, also have diversity hiring goals for entry-level warehouse positions.10 Edward Parrish, the human resources director for the Transportation Division, recommended that Wal-Mart set diversity hiring goals for truck drivers in the transportation offices, but that recommendation was summarily rejected.11
*2 In the Motion to Compel, Plaintiffs asked for information on the diversity hiring goals for positions in the distribution centers, how those goals were developed, how Wal-Mart determines that those goals are met, the starting salary and benefits package for each of those positions, and electronic data related to those positions including name, address, race data, hire date, age data, address, and employment location. Defendants objected to providing that information. On May 4, 2006, Defendants were directed to provide Plaintiffs with a definitive statement describing whether the warehouse operations of Wal-Mart’s Logistics Division have conducted studies setting forth the racial makeup of its warehouse workforce; whether Wal-Mart has established numeric or other goals relating to the warehouse workforce; and whether Wal-Mart has conducted any studies or investigations related to relevant census data concerning the warehouse operations. Wal-Mart responded to that order by stating that it had not conducted any “non-privileged” studies setting forth the racial makeup of its warehouse workforce12; that it had established goals relating to entry-level positions at its distribution centers from May 31, 2004, to October 31, 2004, and from November 1, 2004, to October 31, 2005; and that it had not conducted any studies or investigations related to relevant census data concerning warehouse operations.13
II. ANALYSIS Resolution of discovery issues are within the sound discretion of the district court, reviewable only for abuse of discretion.14 Under Federal Rule of Civil Procedure 26(b)(1), parties may obtain discovery regarding any nonprivileged matter that is “relevant to the claim or defense” of any party.
A. 30(b)(6) Deposition Plaintiffs seek similar information from Wal-Mart in their 30(b)(6) Notice of Deposition as was sought in the Motion to Compel. Plaintiffs ask Wal-Mart to designate a person to testify on the following topics: • All studies that Wal-Mart has conducted setting forth the racial or other demographic makeup of its warehouse workers;
• The numeric and other goals relating to the warehouse workforce dealing specifically with the hiring of the most commonly hired entry-level positions at its distribution centers during the period of May 31, 2004, to the present;
• Comparisons conducted by Wal-Mart of the job duties and requirements of selected warehouse positions to the descriptions of census codes in developing the numeric goals applicable to the hourly warehouse workforce;
• All documents related to Defendants’ Statement in Response to May 4, 2006, Order; and
• All persons who provided information relevant to Defendants’ Statement in Response to the May 4, 2006 Order.
Plaintiffs assert that this information is relevant to Plaintiffs’ claims because it may shed light on Wal-Mart’s intent. A plaintiff must show that the defendant “purposefully” discriminated to prevail on a claim alleging a pattern and practice of employment discrimination.15 Similarly, “malice or reckless indifference” is required for punitive damages to issue in a Title VII case.16 Here, the same corporate-level office sets diversity goals for the Logistics Division, of which both the Transportation Division and the Distribution Division are parts. Plaintiffs contend that any evidence as to why Wal-Mart’s
2

Nelson v. Wal-Mart Stores, Inc., Not Reported in F.Supp.2d (2006)
Diversity Office has set diversity hiring goals for entry-level positions at the distribution centers but not for truck drivers will be evidence of Wal-Mart’s intent for purposes of the plaintiffs’ claims.
*3 Defendants, however, argue that the information on warehouse employees sought by the plaintiffs bears no relation to the hiring of truck drivers because that is done by separate managers in a completely distinct subdivision. They cite Sallis v. University of Minnesota,17 a Title VII race discrimination case where the Eighth Circuit held that the district court did not abuse its discretion by denying the plaintiff’s discovery requests where the personnel complaints the plaintiff requested from the defendant’s central database did not involve the plaintiff’s supervisors. Sallis is not on point.
In Sallis the actions of supervisors in other departments had no bearing on whether the plaintiff was discriminated against by his supervisors, while here the diversity policies for the entire Logistics Division, of which both the transportation offices and distribution centers are parts, are set by the same corporate-level office. Wal-Mart’s Diversity Office could have set the same diversity goals for over-the-road truck drivers as it did for entry-level warehouse employees, but did not. Similarly, if the Diversity Office studied the racial demographics for the entry-level warehouse employees it could also could have studied the racial demographics for its over-the-road truck drivers. Why the Diversity Office set such diversity goals and may have conducted studies of the racial makeup of its warehouse workforce is therefore much more relevant to the plaintiffs’ claims than the complaints against supervisors outside the plaintiff’s department in Sallis, as any discovery about the hiring goals for warehouse workers and studies of the warehouse workers’ racial makeup may shed light on what Wal-Mart knew and could have implemented for over-the-road truck drivers.18
B. Application Files Plaintiffs requests application files for all the over-the-road truck drivers hired at the 22 transportation offices,19 where Plaintiff Tommy Armstrong applied.20 It seems to me that the application files Plaintiffs request are directly relevant to Armstrong’s claims, regardless of whether class certification is granted..
Armstrong alleges that he was discriminated against because of the practice of “word of mouth” hiring.21 Reviewing the application files for the 22 offices in which he applied would either confirm or cast doubt upon that allegation. Furthermore, Wal-Mart has already produced application files for 12 transportation offices, so they would only have to produce application files for the remaining 10 transportation offices. As Plaintiffs state in their November 7, 2006 letter, “For a case of this complexity, this is far from an overly burdensome production.”

CONCLUSION
Based on the findings of fact and conclusions of law above, Plaintiffs’ Motion to Compel is GRANTED. Additionally, because granting the plaintiffs’ request for a 30(b)(6) deposition concerning the diversity goals and racial makeup of the warehouse workers at Wal-Mart’s distribution centers involves the same issues as Plaintiffs’ motion to compel, i.e. whether to expand the scope of discovery to encompass the diversity goals and any racial studies of WalMart’s warehouse workforce, Defendant should make a representative available for a 30(b)(6) deposition.
*4 The parties are reminded that they should comply with the protective order when exchanging and reviewing any “sensitive” information regarding personnel files and other documents.22
IT IS SO ORDERED.

Footnotes

1

This division is also referred to as the Transportation/Warehousing Division. See Doc. No. 83 at 3.

2

Doc. No. 72 at 5-6.

3

Doc. No. 77-8 at 23.

3

Nelson v. Wal-Mart Stores, Inc., Not Reported in F.Supp.2d (2006)

4

Doc. No. 63-2 at 11; Doc. No. 77-8 at 17-19.

5

Doc. No. 77-8 at 28-29.

6

Doc. No. 77-10.

7

Doc. No. 77-8 at 28-29.

8

Id. at 29.

9

Class Cert. Hrg. Tr. at 26-27.

10

Id. at 23, 26-27.

11

Pl. Class Cert. Ex. 45 at 47-49.

12

Wal-Mart did state that it prepared and filed with the EEOC EEO-1 reports that set forth the racial breakdown of employees

grouped by job categories such as officials and managers, professionals, technicians, operatives (semi-skilled), and laborers

(unskilled).

13

Wal-Mart did state that it compared the job duties and requirements of the selected warehouse positions to the descriptions of

census codes in developing the numeric goals applicable to the hourly warehouse workforce.

14

Roberts v. Shawnee Mission Ford, Inc., 352 F.3d 358, 360 (8th Cir.2003).

15

Morgan v. United Parcel Serv. of Am., Inc., 380 F.3d 459, 463 (8th Cir.2004).

16

42 U.S.C. § 1981a(b)(1).

17

408 F.3d 470, 477-78 (8th Cir.2005).

18

Some of the previous filings indicate that Wal-Mart has argued that Wal-Mart Transportation LLC is a separate entity apart from

Wal-Mart Stores, Inc. See Doc. No. 81-2 at 4. However, Wal-Mart has not raised that argument in this context.

19

There is a discrepancy between the plaintiffs’ November 3, 2006 and November 7, 2006 letters. The November 3, 2006 letter says

that Armstrong applied to 21 transportation offices, while the November 7 letter says that he applied to 22 transportation offices.

20

Plaintiffs originally sought all the application files at all the transportation offices, but have since proposed a compromise of only

the application files at the 22 transportation offices at which Armstrong applied. Plaintiffs will wait on requesting the application

files of the other transportation offices until after the Court has ruled on its motion for class certification.

21

Plaintiffs allege that the defendants recruited new truck drivers by having its current drivers pass out cards with a 1-800 number to

call for an application. Plaintiffs allege that Wal-Mart knew that its body of current drivers was predominantly white and that the

practice of having current drivers distribute the 1-800 number was therefore discriminatory.

22

Doc. No. 45 at 2.

4

 
 Nelson v. Wal-Mart Stores, Inc.
United States District Court for the Eastern District of Arkansas, Eastern Division January 13, 2009, Decided; January 13, 2009, Filed 2:04CV00171-WRW

Reporter: 2009 U.S. Dist. LEXIS 38859; 105 Fair Empl. Prac. Cas. (BNA) 643

DARYAL T. NELSON and TOMMY ARMSTRONG,

individually and on behalf of all persons similarly situated, For Wal-Mart Transportation LLC, Defendant: Alison B.

PLAINTIFFS vs. WAL-MART STORES, INC. and WAL- Marshall, LEAD ATTORNEY, Jones Day - Washington,

MART TRANSPORTATION, LLC., DEFENDANTS

Washington, DC; Elizabeth B. McRee, Lawrence C. DiNardo,

Michael J. Gray, LEAD ATTORNEYS, Jones Day - Chicago,

Subsequent History: Costs and fees proceeding at Nelson v. Chicago, IL; Joann C. Maxey, Philip E. Kaplan, LEAD

Wal-Mart Stores, Inc., 2009 U.S. Dist. LEXIS 71253 (E.D. ATTORNEYS, Clayborne S. Stone, Jess L. Askew, III,

Ark., Aug. 12, 2009)

Michael Muskheli, Williams & Anderson, PLLC, Little Rock,

AR; Monica R. McCullough, Richard H. Deane, LEAD

Prior History: Nelson v. Wal-Mart Stores, Inc., 2009 U.S. ATTORNEYS, Jones Day - Atlanta, Atlanta, GA.

Dist. LEXIS 28708 (E.D. Ark., Jan. 13, 2009)

Judges: Wm. R. Wilson, Jr., UNITED STATES DISTRICT

Counsel: [*1] For Daryal T Nelson, individually and on JUDGE.

behalf of all persons similarly situated, Plaintiff: John W.

Walker, Shawn Garrick Childs, LEAD ATTORNEYS, John Opinion by: Wm. R. Wilson, Jr.

W. Walker, P.A., Little Rock, AR; Lloyd W. Kitchens, III,

Morgan E. Welch, LEAD ATTORNEYS, Ashley R. Hudson, Opinion Welch and Kitchens, LLC, North Little Rock, AR; Robert

Peter Pressman, LEAD ATTORNEY, Attorney at Law, ORDER Lexington, MA; Joseph Henry Bates, III, Cauley Bowman

Carney & Williams, LLP, Little Rock, AR.

Pending is Defendants' Motion For Decertification (Doc. No.

150). Plaintiffs have responded 1 and Defendants have For Tommy Armstrong, Individually and on Behalf of All replied. 2 For the reasons set out below, Defendants' Motion is Persons Similarly Situated, Consol Plaintiff: Darrin Lavell DENIED. Williams, Joseph Henry Bates, III, LEAD ATTORNEYS,

Cauley Bowman Carney & Williams, LLP, Little Rock, AR; I. DISCUSSION John W. Walker, Shawn Garrick Childs, LEAD

ATTORNEYS, John W. Walker, P.A., Little Rock, AR; In a May 16, 2007, Order, I certified the following class under

Lloyd W. Kitchens, III, Morgan E. Welch, LEAD Rule 23(b)(2) of the Federal Rules of Civil Procedure:

ATTORNEYS, Welch and Kitchens, LLC, North Little Rock,

AR.

a. African American persons who reside in the

For Wal-Mart Stores Inc, Defendant: Alison B. Marshall, LEAD ATTORNEY, Jones Day - Washington, Washington, DC; Elizabeth B. McRee, Lawrence C. DiNardo, Michael J. Gray, LEAD ATTORNEYS, Jones Day - Chicago, Chicago, IL; Joann C. Maxey, Philip E. Kaplan, LEAD ATTORNEYS, Clayborne S. Stone, Jess L. Askew, III, Michael Muskheli, [*2] Teresa M. Wineland, Williams & Anderson, PLLC, Little Rock, AR; Monica R. McCullough, Richard H.

continental United States of America who have applied for employment as over-the-road truck drivers at Wal-Mart since [*3] September 22, 2001, and who have not been hired; and
b. African American persons who reside in the continental United States of America who were deterred or thwarted from applying for positions as over-the-road truck drivers at

Deane, LEAD ATTORNEYS, Jones Day - Atlanta, Atlanta,

GA.

1 Doc. No. 170. 2 Doc. No. 181.

2009 U.S. Dist. LEXIS 38859, *3

Wal-Mart due to Wal-Mart's challenged policies and practices. 3

A. Expert Evidence

Page 2 of 3

Defendants correctly note that "courts have an obligation to assure that compliance with Rule 23 continues after certification and in light of evidentiary developments arising during the course of litigation." 4Rule 23 of the Federal Rules of Civil Procedure governs class actions. 5 A class certified under Rule 23(b)(2) must meet the requirements of Rule 23(a), which are:
(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. 6A class certified under Rule 23(b)(2) must also show that "the party opposing the class has acted or refused to act on grounds that apply generally to the class . . . ."
7
Defendants contend that post-certification evidence shows that Plaintiffs cannot meet either the commonality requirement of Rule 23(a) or the cohesiveness requirement of Rule 23(b)(2). 8 Defendants maintain that Plaintiffs' experts have no reliable statistical evidence that Wal-Mart's hiring policies or practices adversely affected or deterred AfricanAmerican OTR driver applicants, and that Plaintiffs assertions of commonality are unfounded. 9 I disagree.

1. Hiring Outcomes Vary By Location
I stand by my finding that Plaintiffs' evidence created an inference that Wal-Mart's OTR driver hiring practices and policies disfavor African Americans nationwide, as demonstrated by the "statistically significant underrepresentation of African American [OTR] truck drivers in Wal-Mart's work force." 10 Wal-Mart asserts that Plaintiffs' expert analyses do not support the conclusion that AfricanAmerican drivers are underrepresented [*5] at each of WalMart's 47 transportation offices ("TOs"). Wal-Mart contends that Plaintiffs have moved away from a nationwide statistic, and turned to local labor markets to calculate the expected representation of African-American OTR drivers at WalMart's 47 TOs, thus destroying commonality. I do not read Plaintiffs' pleadings or statistics as having "moved away" from a nationwide statistic. 11 Further, I am not persuaded by the law -- discussed below -- cited by Wal-Mart in support of its position.
In Stastny v. Southern Bell Telephone & Telegraph Co., a class of female employees alleged Southern Bell Telephone and Telegraph Company's promotion and pay practices violated Title VII. 12 The class included females from various Southern Bell facilities across the state of North Carolina, but plaintiffs' evidence was related only to employment decisions affecting persons in one Southern Bell facility. 13Stastny can be distinguished from this case; in Stastny, "[t]hough statewide statistical data was introduced to show statewide disparities in filling management positions, there was no showing of the extent to which, if at all, the overall disparities [*6] were

3 Doc. No. 118. 4 Doc. No. [*4] 156. The standard of review for decertification of a class is abuse of discretion. See Roby v. St. Louis Southwestern Railway Co., 775 F.2d 959, 961 (8th Cir. 1985). 5 Fed. R. Civ. P. 23. 6 Fed. R. Civ. P. 23(a). 7 Fed. R. Civ. P. 23(b)(2). 8 Doc. No. 156. 9 Id. 10 Doc. No. 118. 11 See, e.g., Doc. No. 170. 12 Stastny v. Southern Bell Tel. & Tel. Co., 628 F.2d 267, 269 (4th Cir. 1980). 13 See id. at 279.

2009 U.S. Dist. LEXIS 38859, *6

Page 3 of 3

paralleled in the separate facilities or even a statistically recruitment policy may have. Second, this finding supports

reliable sample of them." 14

Plaintiffs' position that a word-of-mouth recruitment policy is

crucial to Wal-Mart's OTR driver positions. This finding does

Clayborne v. Omaha Pub. Power Dist.,

not, however, show that Wal-Mart's hiring practices and

policies do not adversely affect or thwart African-American 15 also cited by Defendants, is distinguishable as well, applicants. because that case involved multiple job classifications.

2. The Methodology of Plaintiffs' Statistical Analyses

C. Wal-Mart's Subjective Practices

Wal-Mart's challenges to Plaintiffs' statistical analyses were addressed in the Order denying Wal-Mart's Motion To Exclude Testimony. 16
B. The Use and Effect of Word-of-Mouth Recruiting

Wal-Mart argues that it incorporates extensive objective criteria in its OTR driver selection process. 21 Beyond the minimum requirements set out on the 1-800 card, I am unaware of a written corporate policy setting out objective criteria.

1. Dissemination of the 1-800 Number: Wal-Mart's Home Office and TOs
Although Wal-Mart uses various means to distribute the 1800 cards and the 1-800 number, 17 word-of-mouth appears to be the preliminary method. 18
2. African Americans Calling the 1-800 Number

I believe the commonality requirement has been met -- in part, it's Wal-Mart's centralized policy allowing subjective practices that is at question. Wal-Mart asserts that Plaintiffs [*8] could have analyzed applicant flow data to determine if African-American drivers were less likely to be hired than white drivers. I explained in the Order denying Wal-Mart's Motion To Exclude Testimony why I think the use applicant flow data is not appropriate in ths case.

The Order denying Wal-Mart's Motion for Summary Judgment on Plaintiffs' Class Claims addresses Wal-Mart's assertions that because 15% of callers asking for applications were African [*7] American, Wal-Mart effectively reaches out to the African-American truck driver population. 19

CONCLUSION
Based on the findings of fact and conclusions of law above, I find the commonality requirement of Rule 23(a) is met, as is the cohesiveness requirement of Rule 23(b)(2). Accordingly, Defendants' Motion is DENIED.

Wal-Mart's expert, Topel, found that 70% of applicants -both African American and white -- learned of Wal-Mart's OTR driver positions through another driver. 20 First, this finding was based on applicant flow data, so it does not take into account any chilling effect a word-of-mouth

IT IS SO ORDERED this 13th day of January, 2009. /s/ Wm. R. Wilson, Jr. UNITED STATES DISTRICT JUDGE

14 Id. at 279. 15 211 F.R.D. 573, 578 (D. Neb. 2002). 16 Doc. No. 187. 17 Doc. No. 158-2, Ex. 5. 18 See Doc. No. 158-3, Ex. 1(b); Plaintiffs' Ex. 134, filed under seal; and Doc. No. 176-16. 19 Doc. No. 188. 20 Doc. No. 158-6, Ex. 27. 21 Doc. No. 156.

 
 Nelson v. Wal-Mart Stores, Inc.
United States District Court for the Eastern District of Arkansas, Eastern Division January 13, 2009, Decided; January 13, 2009, Filed 2:04CV00171-WRW

Reporter: 2009 U.S. Dist. LEXIS 3707; 105 Fair Empl. Prac. Cas. (BNA) 631

DARYAL T. NELSON and TOMMY ARMSTRONG,

individually and on behalf of all persons similarly situated, For Wal-Mart Transportation LLC, Defendant: Alison B.

PLAINTIFFS vs. WAL-MART STORES, INC. and WAL- Marshall, LEAD ATTORNEY, Jones Day - Washington,

MART TRANSPORTATION, LLC., DEFENDANTS

Washington, DC; Elizabeth B. McRee, Lawrence C. DiNardo,

Michael J. Gray, LEAD ATTORNEYS, Jones Day - Chicago,

Subsequent History: Motion denied by Nelson v. Wal-Mart Chicago, IL; Joann C. Maxey, Philip E. Kaplan, LEAD

Stores, Inc., 2009 U.S. Dist. LEXIS 28708 (E.D. Ark., Jan. ATTORNEYS, Cassandra P. LaFrance, Clayborne S. Stone,

13, 2009)

Jess L. Askew, III, Michael Muskheli, Williams & Anderson,

PLLC, Little Rock, AR; Monica R. McCullough, Richard H.

Prior History: Nelson v. Wal-Mart Stores, Inc., 245 F.R.D. Deane, LEAD ATTORNEYS, Jones Day - Atlanta, Atlanta,

358, 2007 U.S. Dist. LEXIS 35760 (E.D. Ark., 2007)

GA.

Counsel: [*1] For Daryal T Nelson, individually and on behalf of all persons similarly situated, Plaintiff: John W. Walker, Shawn Garrick Childs, LEAD ATTORNEYS, John W. Walker, P.A., Little Rock, AR; Lloyd W. Kitchens, III, Morgan E. Welch, LEAD ATTORNEYS, Ashley R. Hudson, Welch and Kitchens, LLC, North Little Rock, AR; Robert Peter Pressman, LEAD ATTORNEY, Attorney at Law, Lexington, MA; Joseph Henry Bates, III, Cauley Bowman Carney & Williams, LLP, Little Rock, AR.
For Tommy Armstrong, Individually and on Behalf of All Persons Similarly Situated, Consol Plaintiff: Darrin Lavell Williams, Joseph Henry Bates, III, LEAD ATTORNEYS, Cauley Bowman Carney & Williams, LLP, Little Rock, AR; John W. Walker, Shawn Garrick Childs, LEAD ATTORNEYS, John W. Walker, P.A., Little Rock, AR; Lloyd W. Kitchens, III, Morgan E. Welch, LEAD ATTORNEY, Ashley R. Hudson, Welch and Kitchens, LLC, North Little Rock, AR.
For Wal-Mart Stores Inc, Defendant: Alison B. Marshall, LEAD ATTORNEY, Jones Day - Washington, Washington, DC; Elizabeth B. McRee, Lawrence C. DiNardo, Michael J. Gray, LEAD ATTORNEYS, Jones Day - Chicago, Chicago, IL; Joann C. Maxey, Philip E. Kaplan, LEAD ATTORNEYS, Cassandra P. LaFrance, Clayborne S. Stone, [*2] Jess L. Askew, III, Michael Muskheli, Teresa M. Wineland, Williams & Anderson, PLLC, Little Rock, AR; Monica R. McCullough, Richard H. Deane, LEAD ATTORNEYS, Jones Day - Atlanta, Atlanta, GA.

Judges: Wm. R. Wilson, Jr., UNITED STATES DISTRICT JUDGE.
Opinion by: Wm. R. Wilson, Jr.
Opinion
ORDER
Pending is Defendants' Motion For Summary Judgment On Plaintiffs' Class Claims (Doc. No. 152). Plaintiffs have responded (Doc. No. 170) and Defendants have replied (Doc. No. 181). For the reasons set out below, Defendants' Motion is DENIED.
I. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate only when there is no genuine issue of material fact, so that the dispute may be decided on purely legal grounds. 1 The Supreme Court has established [*3] guidelines to assist trial courts in determining whether this standard has been met:
The inquiry performed is the threshold inquiry of determining whether there is the need for a trial -whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party. 2
The Court of Appeals for the Eighth Circuit has cautioned that summary judgment is an extreme remedy that should

1 Holloway v. Lockhart, 813 F.2d 874 (8th Cir. 1987); Fed. R. Civ. P. 56. 2 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

2009 U.S. Dist. LEXIS 3707, *3

Page 2 of 6

only be granted when the movant has established a right to the Wal-Mart's truck fleet and its support; and (2) the Distribution judgment beyond controversy. 3 Nevertheless, summary Division in charge of the distribution centers that the trucking

judgment promotes judicial economy by preventing trial when fleet services. Wal-Mart's Transportation Division includes

no genuine issue of fact remains. 4 I must view the facts in the approximately 8,000 drivers in 47 field transportation offices light most favorable to the party opposing the motion. 5 The nationwide. The transportation offices have their own

Eighth Circuit has also set out the burden of the parties in management structure, including a general transportation

connection with a summary judgment motion:

manager in charge of each office and a personnel manager

who, together with the general transportation manager, is

[T]he burden on the party moving for summary judgment is only to demonstrate, i.e., "[to point] out to the District Court," that the record does not disclose a genuine dispute on a [*4] material fact. It is enough for the movant to bring up the fact that the record does not contain such an issue and to identify that part of the record which bears out his assertion.

responsible for hiring OTR truck drivers. The general transportation manager and personnel manager report to regional managers, who in turn report to the east or west vice president of the Transportation Division. Those vice presidents report to the senior vice [*6] president of the Transportation Division, who reports directly to the executive vice president of the Logistics Division.

Once this is done, his burden is discharged, and, if the record in fact bears out the claim that no genuine dispute exists on any material fact, it is then the respondent's burden to set forth affirmative evidence, specific facts, showing that there is a genuine dispute on that issue. If the respondent fails to carry that burden, summary judgment should be granted. 6Only disputes over facts that may affect the outcome of the suit under governing law will properly preclude

All hiring and personnel policies for the transportation offices are developed at and disseminated from Wal-Mart's central headquarters in Bentonville. The policies are disseminated nationwide to the regions and individual transportation offices through an online database. Neither regional managers nor managers at individual transportation offices have the authority to develop personnel or hiring policies that diverge from the corporate policies developed in Bentonville.

the entry of summary judgment. 7

The primary elements of the hiring process for drivers at

II. DISCUSSION

every transportation office are identical. First, new drivers are recruited almost exclusively through the "word of mouth" of

The background of this case is set out in detail in a May 16, 2007, Order, and is reproduced in part here. 8 Plaintiffs Tommy Armstrong and Daryal Nelson are African-American truck drivers [*5] who applied for positions as over-the-road ("OTR") truck drivers at transportation offices operated by Defendant Wal-Mart Transportation LLC, a wholly owned

current Wal-Mart drivers; Wal-Mart provides current drivers with a "1-800 card" to pass out to prospective applicants. 9 The card lists the minimum driver qualifications and a 1-800 number drivers can call to request an application. Wal-Mart does little advertising of its OTR driver positions in addition to the 1-800 card. 10

subsidiary of Defendant Wal-Mart Stores, Inc. (collectively "Wal-Mart" or "Defendants"), but were rejected. This case challenges Wal-Mart's hiring practices for OTR truck drivers.

All [*7] who call the 1-800 number, regardless of at which transportation office they wish to apply, are initially processed and screened at Wal-Mart's Bentonville

Wal-Mart's Logistics Division is divided into two

subdivisions: (1) the Transportation Division in charge of

3 Inland Oil & Transport Co. v. United States, 600 F.2d 725, 727 (8th Cir. 1979). 4 Id. at 728. 5 Id. at 727-28. 6 Counts v. MK-Ferguson Co., 862 F.2d 1338, 1339 (8th Cir. 1988) (quoting City of Mt. Pleasant v. Associated Elec. Coop., 838 F.2d 268, 273-74 (8th Cir. 1988) (citations omitted)). 7 Anderson, 477 U.S. at 248. 8 Doc. No. 118. 9 See, for example, Doc. No. 176-16, and Plaintiff's Exhibit 134 filed under seal. 10 See id.

2009 U.S. Dist. LEXIS 3707, *7

Page 3 of 6

headquarters. An application is then sent to the potential applicant. The applicant is instructed to return the completed application to the Bentonville headquarters. If the application is completed, the minimum requirements are met, and the applicant's preferred transportation office is currently hiring,

Plaintiffs allege disparate treatment under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964. 12 Title VII and § 1981 disparate treatment claims are both analyzed under a burden-shifting framework. 13

the application is forwarded to the appropriate transportation

office. Sometimes an applicant submits an application directly Under the shifting framework, in cases like this one the

to a transportation office.

plaintiff must first establish a prima facie case of

discrimination by showing that the employer "'regularly and

After the application is forwarded from the Bentonville purposefully' treated members of the protected group less headquarters, a screening committee, consisting of current favorably and that unlawful discrimination was the employer's drivers at the transportation office, decides which applicants 'regular procedure or policy.'" 14 In a class action, plaintiffs

will be granted an interview, and then interviews the often will [*9] offer statistical evidence of the alleged qualifying applicants. A management committee then disparate treatment, 15 and significant statistical disparities 16

interviews applicants who successfully complete the alone may constitute a prima facie case. 17 "Statistical

screening committee interview. Wal-Mart has no written or disparities are significant if the difference between the

objective criteria to guide the driver screening committees expected number and the observed number is greater than two when those committees analyze applicants during the hiring or three standard deviations." 18 The converse that "standard

process. Wal-Mart does require each driver screening deviations of not 'more than two or three' necessarily exclude

committee to be 50% [*8] diverse, but that does not discriminatory design as the cause is nowhere implied." 19

guarantee that any member of the screening committee is

African American.

Once the plaintiff meets this initial threshold, the burden then

shifts to the employer, which must show that the plaintiff's

During the class period, African Americans represented 8.4% proof is not accurate or not significant. 20 If the employer

of Wal-Mart's nationwide OTR driver hires; according to a shows the plaintiff's proof is inaccurate or insignificant, the

study prepared for the American Trucking Association using burden returns to the plaintiff to prove that the employer had a

US Census Bureau 2002 Current Population Survey data, practice or pattern of discrimination. 21 If the employer does

African Americans represented around 15% of persons not satisfactorily rebut the plaintiff's evidence, the plaintiff

employed as "Driver/Sales Workers or Truck Drivers" in the prevails. 22

"Truck Transportation" industry. 11

Wal-Mart asserts it is entitled to summary judgment on

A. Plaintiffs' Disparate Treatment Claims

Plaintiffs' class claims for the multiple reasons discussed

below.

11 Doc. No. 164-3.
12 42 U.S.C. § 2000e.
13 See Int'l Bhd. Of Teamsters v. United States, 431 U.S. 324, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977).
14 Morgan v. UPS, 380 F.3d 459, 463 (8th Cir. 2004) (citing EEOC v. McDonnell Douglas Corp., 191 F.3d 948 (8th Cir. 1999).
15 Id.
16 Statistical significance is a measure of the probability that an observed disparity is not due to chance. Craik v. Minn. State Univ. Bd., 731 F.2d 465, 476 n.13 (8th Cir. 1984) (citing Baldus & Cole, Statistical Proof of Discrimination § 9.02, at 290 (1980)).
17 Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 307-08, 97 S. Ct. 2736, 53 L. Ed. 2d 768 (1977).
18 See EEOC v. Dial Corp., 469 F.3d 735, 741 (8th Cir. 2006) (citing Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 308 n.14, 97 S. Ct. 2736, 53 L. Ed. 2d 768 (1977)); Castaneda v. Partida, 430 U.S. 482, 496-97 n.17, 97 S. Ct. 1272, 51 L. Ed. 2d 498 (1977).
19 EEOC v. American Nat'l Bank, 652 F.2d 1176, 1192 (4th Cir. 1981). See also Craik v. Minn. State Univ. Bd., 731 F.2d 465, 476 n.13 (8th Cir. 1984) [*10] ("Statistical evidence showing less marked discrepancies will not alone establish that something other than chance is causing the result, but we shall consider it in conjunction with all the other relevant evidence in determining whether the discrepancies were due to unlawful discrimination.").
20 Teamsters, 431 U.S. at 360 (1977).
21 Id. at 335-36.
22 See id.

2009 U.S. Dist. LEXIS 3707, *11

Page 4 of 6

1. Unreliable and Irrelevant Statistical Evidence

Part of the class certified consists of African American

Wal-Mart contends that Plaintiffs cannot make a prima facie persons who . . . were deterred or thwarted from applying for

case with respect to the "rejected class" 23 through their positions as [*13] OTR truck drivers at Wal-Mart

statistical evidence for several reasons. First, Wal-Mart argues because of Wal-Mart's challenged policies and practices. 28

that Plaintiffs' statistical analysis [*11] is flawed because

Plaintiffs' experts relied on data outside the relevant time Defendant's expert Robert Topel reports that "[o]ver all years,

period. 24 Second, Wal-Mart states that neither the Census data nor EEO-1 data relied upon by Plaintiffs' expert Bendick is a reasonable proxy for individuals qualified for and interested in Wal-Mart's OTR driver positions. Third, WalMart maintains that a serious problem with Census and EEO1 data is that neither source "provides information whether the individuals meet Wal-Mart's minimum qualification requirements." 25 I disagree -- I addressed these arguments in the Order denying Defendants' Motion to Exclude Testimony.
26

blacks account for about 10.2 percent of completed applications, but according to the 3rd panel of the exhibit 29 they account for nearly 15% of 1-800 requests for applications." 30 Wal-Mart asserts that because African Americans accounted for nearly 15% of callers asking for an application via the1-800 number, and because 15% is within Bendick's nationwide estimate of the African American representation of the general truck driver population, that Wal-Mart "effectively reaches out to the African American driver community." 31 While the 1-800 number plays an

Wal-Mart asserts that Plaintiffs cannot make a prima facie case with respect to the "deterred class" through statistics, because Plaintiffs have no statistical evidence that Wal-Mart's practices deter African American OTR-drivers from applying.
27

important role in this case, the number of African Americans who called the 1-800 number is not, taken alone, the benchmark by which it can be determined if Wal-Mart's practices and procedures deterred or thwarted African Americans from applying for positions as OTR drivers.

23 In a May 16, 2007, Order (Doc. No. 118), I certified the following class (emphasis added) under Rule 23(b)(2) of the Federal Rules of Civil Procedure:
a. African American persons who reside in the continental United States of America who have applied for employment as over-theroad truck drivers at Wal-Mart since September 22, 2001, and who have not been hired; and
b. African American persons who reside in the continental United States of America who were deterred or thwarted from applying for positions as over-the-road truck drivers at Wal-Mart due to Wal-Mart's challenged policies [*12] and practices.I will, however, refer to a "rejected class" and "deterred class" in this Order, in part to show that even if the class is "divided," summary judgment still is not appropriate.
24 Doc. No. 154.
25 Id.
26 Doc. No. 187. In connection with Wal-Mart's assertions about the Census and EEO-1 data, Wal-Mart's Motion reads, in part: "Bendick recognized his data sources as potentially inaccurate because no public sources provide data that tabulate long-haul OTR truck drivers separately. Neither Plaintiffs nor Defendants have located a private data source likely reflecting only long-haul drivers, other than Wal-Mart's applicant data." Doc. No. 154, n.22. I already found that it would not be appropriate to use applicant flow data in this case, and that Bendick's labor pool was a reasonable proxy. Id.
27 Doc. No. 154.
28 Doc. No. 118.
29 Topel is referring to Exhibit 13 to his expert report.
30 Doc. No. 158-6.
31 Doc. No. 154.

2009 U.S. Dist. LEXIS 3707, *13

Page 5 of 6

Wal-Mart relies heavily on word-of-mouth recruiting. 32 WalMart management was aware that word-of- B. Plaintiffs' Disparate Impact Claims

mouth [*14] recruiting can perpetuate racial inequity. 33 Numerous courts recognize that word-of-mouth recruiting may be a discriminatory practice. 34 Multiple courts have found word-of-mouth recruitment discriminatory when the practice carries forward racial imbalances. 35 Word-of-mouth hiring that results in "a relatively small number of minority applicants is circumstantial evidence which helps to establish a reasonable inference of an employer's discriminatory treatment of blacks as a class." 36 African-American applications for Wal-Mart OTR positions accounted for only 10.2% of applications. Considering all of this, I disagree with Defendants' assertion that Plaintiffs cannot make a prima facie case.

Initially, Wal-Mart asserts that Plaintiffs cannot bring a disparate impact claim under § 1981, and cites General Building Contractors Association, Inc. v. Pennsylvania40 to support its position. 41 Claims brought [*16] under § 1981 require intentional discrimination. 42 Plaintiffs point out that the court in Copeland v. Hussman Corporation43 denied a motion to dismiss based on the argument that § 1981 does not encompass a disparate impact claim. 44 The court in Copeland quoted Edwards v. Jewish Hospital of St. Louis45 -- "[t]he Eighth Circuit has explained that General Building 'eliminated from § 1981's sphere of liability those cases that have a disparate impact unless that impact can be traced to discriminatory purpose.'" 46

2. Plaintiffs' Anecdotal Evidence Is Limited

Plaintiffs have made an adequate showing of purposeful

With respect to the "rejected class," in connection Wal-Mart's discrimination at this point that I will allow Plaintiffs' argument about Nelson and Armstrong -- and the other disparate impact claim under § 1981. Thus, the statute of applicants mentioned in Wal-Mart's brief 37 -- there appear to limitations for § 1981 claims applies.

be material facts in dispute -- making summary judgment

inappropriate. 38

A disparate impact claim is also analyzed under a burden-

shifting framework. 47 The plaintiff must first

With respect to the "deterred class," again, there are issues of material fact in dispute in connection with Wal-Mart's assertions that Plaintiffs' anecdotal evidence is insufficient to support a prima face disparate treatment claim. 39

establish [*17] a prima facie case by showing that the employer "uses a particular employment practice that causes a disparate impact on the basis of race, color,

32 See Doc. No. 176-16. Plaintiffs' expert William Bielby estimates that 85% of applicants heard about Wal-Mart's OTR positions through informal means, while about 10% of applicants heard about the positions through Wal-Mart's formal recruitment efforts. 33 Doc. Nos. 176-58, 176-71, and 176-72. 34 See, for example, Catlett v. Missouri Highway and Transp. Comm'n, 828 F.2d 1260 (8th Cir. 1987); EEOC v. Chicago Miniature Lamp Works, 947 F.2d 292, 298 (7th Cir. 1991); and EEOC v. Metal Service Co., 892 F.2d 341, 350-51 (3d Cir. 1990). 35 See [*15] EEOC v. Metal Service Co., 892 F.2d 341, 350 (3d Cir. 1990) (citing Barnett v. W.T. Grant Co., 518 F.2d 543, 549 (4th Cir. 1975); Parham v. Southwestern Bell Tel. Co., 433 F.2d 421, 426-27 (8th Cir. 1970); and others). 36 Id. (citing United States v. International Union of Elevator Constructors, Local Union No. 5, 538 F.2d 1012, 1016 (3d Cir. 1976)). 37 Doc. No. 154. 38 Doc. Nos. 153, 174. 39 See Doc Nos. 154, 153, and 174. 40 458 U.S. 375, 102 S. Ct. 3141, 73 L. Ed. 2d 835 (1982). 41 Doc. No. 154. 42 See 42 U.S.C. § 1981; Gen. Bldg. Contractors Ass'n Int'l Bhd. Of Teamsters v. United States, 431 U.S. 324, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977)., Inc. v. Pennsylvania, 458 U.S. 375, 102 S. Ct. 3141, 73 L. Ed. 2d 835 (1982). 43 462 F. Supp. 2d 1012 (E.D. Mo. 2006). 44 Doc. No. 170. 45 855 F.2d 1345, 1351 (8th Cir. 1988). 46 Copeland v. Hussmann Corp., 462 F. Supp. 2d 1012, 1021 (E.D. Mo. 2006). 47 See Firefighters' Inst. for Racial Equal. v. City of St. Louis, 220 F.3d 898, 903-04 (8th Cir. 2000).

2009 U.S. Dist. LEXIS 3707, *17

Page 6 of 6

religion, sex, or national origin." 48 "To make this showing, a Bendick including data from 1998 in his analysis, as well as

plaintiff must (1) identify a policy or practice, (2) demonstrate numerous other challenges. 55 Above, I held that I would

that a disparity exists, and (3) establish a causal relationship allow Plaintiffs' impact claim under § 1981 at this time, and

between the two." 49 Statistical evidence often "occupies that the statute of limitations for § 1981 claims applies.

center stage" in a plaintiff's prima facie case. 50 Once the Further discussion about time periods included in Plaintiffs'

plaintiff makes a prima facie showing, the burden shifts to the experts' analysis is not necessary.

employer, which must "convince the factfinder that its 'numerical picture is more accurate, valid, or reliable than the plaintiff[s'] evidence'" 51 or that the allegedly discriminatory practice is "job related for the position in question and is consistent with business necessity." 52 If the employer is successful in rebutting a plaintiff's prima facie case, then the burden shifts back to the plaintiff to show that the employer could have practiced a different policy that would meet its business needs, but with lesser discriminatory effects. 53

Wal-Mart makes several other challenges to the sufficiency of Plaintiffs' [*19] statistical evidence. 56 Plaintiffs' experts conducted detailed statistical analyses that, along with the other facts of the case, establish a prima facie showing of disparate impact (and disparate treatment). I am not persuaded that Defendants' experts' analyses provide a more accurate account of how Wal-Mart's hiring practices and policies effected African Americans, or that the practices and policies in place were a business necessity.

Wal-Mart maintains that:

CONCLUSION

Plaintiffs rely on the same inadequate statistical evidence that they used to support their disparate treatment claim. Relying on the same statistical data is fatal to Plaintiffs' impact claim because Plaintiffs' statistical evidence, already based on overinclusive and irrelevant data, does not address the relevant time period for Plaintiffs' impact claim. As a result, Plaintiffs cannot establish a prima face case of discrimination under an impact theory. 54

Based on the findings of fact and conclusions of law above, Defendants' Motion For Summary Judgment On Plaintiffs' Class Claims (Doc. No. 152) is DENIED.
IT IS SO ORDERED this 13th day of January, 2009.
/s/ Wm. R. Wilson, Jr.
UNITED STATES DISTRICT JUDGE

The Order denying Wal-Mart's Motion to Exclude Testimony discusses Bendick's methodology, including challenges to

48 42 U.S.C. § 2000e-2(k)(1)(A)(I). 49 Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 160 (2d Cir. 2001). 50 Id. 51 Id. at 161 [*18] (quoting ARTHUR LARSON ET AL., EMPLOYMENT DISCRIMINATION § 23.02 (2d ed. 2001)). 52 42 U.S.C. § 2000e-2(k)(1)(A)(i). 53 See Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S. Ct. 2720, 53 L. Ed. 2d 786 (1977). 54 Doc. No. 154. 55 Doc. No. 187. 56 Doc. No. 154.

 
 Case: 2:04-cv-171 As of:10/09/2010 02:22 PM CDT 1 of 22
CLOSED, HLJ, LEAD
U.S. District Court Eastern District of Arkansas (Helena) CIVIL DOCKET FOR CASE #: 2:04−cv−00171−WRW

Nelson v. Wal−Mart Stores Inc, et al Assigned to: Judge William R. Wilson, Jr Demand: $0 Case in other court: USCA8, 10−01651 Cause: 42:2000e Job Discrimination (Employment)
Plaintiff

Date Filed: 09/22/2004 Date Terminated: 07/08/2009 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Daryal T Nelson individually and on behalf of all persons similarly situated

represented by David O. Bowden Attorney at Law Post Office Box 193101 Little Rock, AR 72219−3101 501−372−1315 Fax: 501−372−1870 Email: david_bowden@juno.com TERMINATED: 01/15/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jim Jackson Patton Roberts, PLLC − Little Rock 111 Center Street Suite 1315 Little Rock, AR 72201 501−372−3480 Fax: 501−372−3488 Email: jjackson@pattonroberts.com TERMINATED: 06/24/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, AR 72206−1220 (501) 374−3758 Email: johnwalkeratty@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lloyd W. Kitchens , III Brad Hendricks Law Firm 500 Pleasant Valley Drive Suite C Little Rock, AR 72227 501−221−0444 Email: tkitchens@bradhendricks.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Morgan E. Welch Welch, Brewer and Hudson One Riverfront Place Suite 413 North Little Rock, AR 72114 501−978−3030 Fax: 501−978−3050 Email: mwelch@wbhlawfirm.com LEAD ATTORNEY

Case: 2:04-cv-171 As of:10/09/2010 02:22 PM CDT 2 of 22
ATTORNEY TO BE NOTICED
Robert Peter Pressman Attorney at Law 22 Locust Avenue Lexington, MA 02421 (781) 862−1955 Email: ehpressman@verizon.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shawn Garrick Childs John W. Walker, P.A. 1723 Broadway Little Rock, AR 72206−1220 (501) 374−3758 Email: johnwalkeratty@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ted Boswell Boswell Law Firm Post Office Box 798 Bryant, AR 72089−0798 (501) 847−3031 Email: tboswell@boswellaw.com TERMINATED: 06/24/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ashley R. Hudson Welch, Brewer and Hudson One Riverfront Place Suite 413 North Little Rock, AR 72114 501−978−3030 Fax: 501−978−3050 Email: ahudson@wbhlawfirm.com ATTORNEY TO BE NOTICED
Joseph Henry Bates , III Carney Williams Bates Bozeman &Pulliam, PLLP 11311 Arcade Drive Suite 200 Little Rock, AR 72212 (501) 312−8500 Email: hbates@carneywilliams.com ATTORNEY TO BE NOTICED

V.
Consol Plaintiff
Tommy Armstrong Individually and on Behalf of All Persons Similarly Situated

represented by Brooke Augusta Owen Attorney at Law 1401 North Pierce Street Suite 18 Little Rock, AR 72207 501−960−6876 TERMINATED: 05/25/2006 LEAD ATTORNEY
Darrin Lavell Williams Carney Williams Bates Bozeman

Case: 2:04-cv-171 As of:10/09/2010 02:22 PM CDT 3 of 22
&Pulliam, PLLP 11311 Arcade Drive Suite 200 Little Rock, AR 72212 (501) 312−8500 Email: dwilliams@carneywilliams.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
John W. Walker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph Henry Bates , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lloyd W. Kitchens , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Morgan E. Welch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shawn Garrick Childs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Wal−Mart Stores Inc

represented by Alison B. Marshall Jones Day − Washington 51 Louisiana Avenue, N.W. Washington, DC 20001 (202) 879−7611 Email: abmarshall@jonesday.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth B. McRee Jones Day − Chicago 77 West Wacker Drive Suite 3500 Chicago, IL 60601 (312) 782−3939 Email: emcree@jonesday.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joann C. Maxey Williams &Anderson, PLC 111 Center Street Suite 2200 Little Rock, AR 72201−2413 501−372−0800 Fax: 501−376−6453 Email: jmaxey@williamsanderson.com

Case: 2:04-cv-171 As of:10/09/2010 02:22 PM CDT 4 of 22
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lawrence C. DiNardo Jones Day − Chicago 77 West Wacker Drive Suite 3500 Chicago, IL 60601 (312) 269−4306 Email: lcdinardo@jonesday.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael J. Gray Jones Day − Chicago 77 West Wacker Drive Suite 3500 Chicago, IL 60601 (312) 269−4096 Email: mjgray@jonesday.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Monica R. McCullough Jones Day − Atlanta 1420 Peachtree Street, N.E. Suite 800 Atlanta, GA 30309 (404) 581−8352 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip E. Kaplan Williams &Anderson, PLC 111 Center Street Suite 2200 Little Rock, AR 72201−2413 501−372−0800 Fax: 501−376−6453 Email: pkaplan@williamsanderson.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard H. Deane Jones Day − Atlanta 1420 Peachtree Street, N.E. Suite 800 Atlanta, GA 30309 (404) 581−8502 Email: rhdeane@jonesday.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cassandra P. LaFrance Attorney at Law 18 Edgehill Road Little Rock, AR 72207 501−412−0434 Email: cassie.lafrance@hotmail.com TERMINATED: 02/13/2009 ATTORNEY TO BE NOTICED
Clayborne S. Stone Williams &Anderson, PLC 111 Center Street

Case: 2:04-cv-171 As of:10/09/2010 02:22 PM CDT 5 of 22

Suite 2200 Little Rock, AR 72201−2413 (501) 372−0800 Email: cstone@williamsanderson.com ATTORNEY TO BE NOTICED

Jess L. Askew , III Williams &Anderson, PLC 111 Center Street Suite 2200 Little Rock, AR 72201−2413 (501) 372−0800 Email: jaskew@williamsanderson.com ATTORNEY TO BE NOTICED

Michael Muskheli Williams &Anderson, PLC 111 Center Street Suite 2200 Little Rock, AR 72201−2413 501−396−8818 Email: mmuskheli@williamsanderson.com ATTORNEY TO BE NOTICED

Teresa M. Wineland Williams &Anderson, PLC 111 Center Street Suite 2200 Little Rock, AR 72201−2413 501−372−0800 Email: twineland@williamsanderson.com ATTORNEY TO BE NOTICED

Defendant Wal−Mart Transportation LLC

represented by Alison B. Marshall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth B. McRee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joann C. Maxey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lawrence C. DiNardo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael J. Gray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Monica R. McCullough (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:04-cv-171 As of:10/09/2010 02:22 PM CDT 6 of 22
Philip E. Kaplan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard H. Deane (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cassandra P. LaFrance (See above for address) TERMINATED: 02/13/2009 ATTORNEY TO BE NOTICED
Clayborne S. Stone (See above for address) ATTORNEY TO BE NOTICED
Jess L. Askew , III (See above for address) ATTORNEY TO BE NOTICED
Michael Muskheli (See above for address) ATTORNEY TO BE NOTICED

Date Filed 09/22/2004 09/24/2004 01/20/2005
01/21/2005 01/21/2005 01/24/2005 01/24/2005 01/25/2005
01/31/2005 02/01/2005
02/02/2005
02/04/2005

# Docket Text
1 COMPLAINT, $150.00 filing fee paid/receipt #116142; summons issued and returned to counsel (jap) (Entered: 09/23/2004)
2 AMENDED complaint [1−1] by plaintiff (bsm) (Entered: 09/24/2004)
3 MOTION by defendants for attorneys Lawrence C. DiNardo, Michael J. Gray, Alison B. Marshall and Richard H. Deane, Jr. to appear pro hac vice (bsm) (Entered: 01/24/2005)
4 MOTION by defendants for partial dismissal of pltf's Amended Complt (bsm) (Entered: 01/24/2005)
5 MEMORANDUM OF LAW by defendants in support of motion for partial dismissal of pltf's Amended Complt [4−1] (bsm) (Entered: 01/24/2005)
6 MOTION by defendants to transfer venue pursuant to 28 U.S.C. 1404(a) (bsm) (Entered: 01/25/2005)
7 MEMORANDUM OF LAW by defendants in support of motion to transfer venue pursuant to 28 U.S.C. 1404(a) [6−1] (bsm) (Entered: 01/25/2005)
UTILITY EVENT: Add attorney(s) Alison B. Marshall, Richard H. Deane and Michael J. Gray for Wal−Mart Stores Inc and Wal−Mart Trans LLC (bsm) (Entered: 01/25/2005)
8 MOTION by plaintiff to extend time to respond to motion for partial dismissal (bsm) (Entered: 02/01/2005)
9 ORDER by Judge William R. Wilson granting motion for attorneys Lawrence C. DiNardo, Michael J. Gray, Alison B. Marshall and Richard H. Deane, Jr. to appear pro hac vice for defts [3−1] (cc: all counsel) (bsm) (Entered: 02/01/2005)
10 ORDER by Judge William R. Wilson granting pltf's motion to extend time until 2/18/05 to respond to motion for partial dismissal [8−1] [4−1] (cc: all counsel) (bsm) Modified on 02/22/2005 (Entered: 02/03/2005)
11 MOTION by plaintiff to extend time to respond to motion for transfer of venue (bsm) (Entered: 02/07/2005)

Case: 2:04-cv-171 As of:10/09/2010 02:22 PM CDT 7 of 22

02/09/2005 02/16/2005 02/16/2005 02/18/2005 02/18/2005 02/18/2005 02/18/2005 02/22/2005 02/25/2005 03/03/2005 03/03/2005 03/07/2005 03/21/2005 03/24/2005
03/24/2005 04/14/2005
04/20/2005 04/20/2005 04/21/2005

12 ORDER by Judge William R. Wilson granting motion to extend time to respond to motion for transfer of venue until 02/16/05 [11−1] [6−1] (cc: all counsel) (bkj) (Entered: 02/10/2005)
13 RESPONSE by plaintiff to motion to transfer venue [6−1] (bsm) (Entered: 02/17/2005)
14 BRIEF by plaintiff in support of response to motion for transfer of venue [13−1] (bsm) (Entered: 02/17/2005)
UTILITY EVENT: Add attorneys Philip E. Kaplan and Joann C. Maxey for defendants Wal−Mart Stores Inc and Wal−Mart Trans LLC (maj) (Entered: 02/18/2005)
CLERK'S MINUTES: Telephone conference w/parties re pending motion to transfer venue; motion denied; order to be entered (E. Hinson) (maj) (Entered: 02/18/2005)
15 RESPONSE by plaintiff to motion for partial dismissal of pltf's Amended Complt [4−1] (bkp) (Entered: 02/22/2005)
16 BRIEF by plaintiff in support of response to defendants' motion for partial dismissal of plaintiff's amended complaint [15−1] (bkp) (Entered: 02/22/2005)
17 INITIAL SCHEDULING ORDER (DOC) Rule 26(f) Conference set 4/27/05; Rule 26(f) Report due 5/11/05; Jury trial set for 9:00 a.m. 3/13/06 in Helena; Rule 16(b) Conference set 5/18/05 (cc: all counsel) (maj) (Entered: 02/22/2005)
18 ORDER by Judge William R. Wilson that based on the conclusions of law and findings of fact made during the telephone conference held, defts' motion to transfer venue is denied [6−1] (cc: counsel) (bsm) (Entered: 02/25/2005)
19 MOTION by defts for leave to file a reply memorandum in further support of their motion for partial dismissal of pltf's amended complt (vjt) (Entered: 03/04/2005)
20 REPLY MEMORANDUM by defts in further support of their motion for partial dismissal of pltf's Amended Complt [4−1] (vjt) (Entered: 03/04/2005)
21 ORDER by Judge William R. Wilson, granting motion for leave to file a reply memorandum in further support of their motion for partial dismissal of pltf's amended complt [19−1], (cc: all counsel) (dac) (Entered: 03/08/2005)
22 MOTION by plaintiff for leave to file a surreply brief in opposition to defts' motion for partial dismissal of pltf's amended complt (bsm) (Entered: 03/22/2005)
23 ORDER by Judge William R. Wilson granting pltf's motion for leave to file a surreply brief in opposition to defts' motion for partial dismissal of pltf's amended complt [22−1] Clerk is directed to file the sur−reply that was attached to pltf's motion (cc: all counsel) (bsm) (Entered: 03/25/2005)
24 SURREPLY BRIEF by plaintiff in opposition to defts' motion for partial dismissal of pltf's Amended Complt [4−1] [20−1] (bsm) (Entered: 03/25/2005)
25 ORDER by Judge William R. Wilson granting motion for partial dismissal of pltf's Amended Complt [4−1]; pltf's class claims against defts are dismissed; pltf's personal claims against defts remain intact (cc: all counsel) (bsm) (Entered: 04/14/2005)
26 MOTION by plaintiff for clarification of Court's Order entered on 4/14/2005 (bsm) (Entered: 04/20/2005)
27 BRIEF by plaintiff in support of motion for clarification of Court's Order entered on 4/14/2005 [26−1] (bsm) (Entered: 04/20/2005)
28 ORDER by Judge William R. Wilson granting motion for clarification of Court's Order entered on 4/14/2005 [26−1]; the Order granting defts' motion was directed only at the claims defts raised in their motion for partial dismissal, namely pltf's Title VII class claims (cc: all counsel) (bsm) (Entered: 04/21/2005)

Case: 2:04-cv-171 As of:10/09/2010 02:22 PM CDT 8 of 22

04/25/2005 04/25/2005 05/11/2005 05/11/2005 06/01/2005 06/16/2005 06/17/2005 06/17/2005 06/24/2005 06/27/2005
08/11/2005 08/11/2005 08/18/2005
08/18/2005 08/19/2005 08/19/2005 08/29/2005 08/31/2005 09/27/2005

29 ANSWER by defendants Wal−Mart Stores Inc, Wal−Mart Trans LLC to amended complaint (dac) (Entered: 04/26/2005)
30 NOTICE by defendants Wal−Mart Stores Inc, Wal−Mart Trans LLC of filing Corporate Disclosure Statement (dac) (Entered: 04/26/2005)
31 ATTORNEY APPEARANCE for plaintiff; attorneys Morgan Welch and Lloyd Kitchens III (bsm) (Entered: 05/12/2005)
32 RULE 26(f) REPORT by parties (bsm) (Entered: 05/12/2005)
33 FINAL SCHEDULING ORDER (DOC) Jury trial set for 9:00 a.m. 3/13/06 in Helena; discovery due 12/30/05; pretrial info sheet due 2/13/06 (cc: all counsel) (maj) (Entered: 06/01/2005)
34 MOTION by plaintiff to consolidate case with 2:05cv00134WRW (bsm) (Entered: 06/17/2005)
35 MOTION by attys Ted Boswell and Jim Jackson, counsel for plaintiff to be relieved as counsel of record (bsm) (Entered: 06/17/2005)
36 AMENDED MOTION by plaintiff to consolidate case with 2:05cv00134WRW (bsm) Modified on 06/20/2005 (Entered: 06/20/2005)
37 ORDER by Judge William R. Wilson granting pltf's motion to be relieved as counsel of record [35−1]; attorney James Ralph Jackson and Ted Boswell are relieved as counsel of record for pltf (cc: all counsel) (bsm) (Entered: 06/27/2005)
38 ORDER by Judge William R. Wilson granting amended motion to consolidate case with 2:05cv00134WRW for DISCOVERY and for TRIAL [36−1]; all remaining motions are denied as moot [34−1]; final scheduling order previously issued in 2:04cv00171WRW will govern both of these cases (cc: all counsel) (bsm) Modified on 06/27/2005 (Entered: 06/27/2005)
39 UNOPPOSED MOTION for Reconsideration re 38 Order on Consolidating Cases by Daryal T Nelson. (bsm ) (Entered: 08/12/2005)
40 CONSOLIDATED AMENDED AND SUPPLEMENTED CLASS ACTION COMPLAINT with jury demand, filed by Daryal T Nelson. Text modified on 9/27/2005 (bsm ) (Entered: 08/15/2005)
41 ORDER granting 39 Pltfs' Motion for reconsideration of Order consolidating cases for discovery and trial purposes only 38 ; Cases 2:04cv171 and 2:05cv134 are fully consolidated; Parties are directed to file all future pleadings and documents on the docket of the lead case, Nelson, 2:04cv171 only; the Clerk is directed to file all future pleadings and documents on the docket of the lead case only; the recently filed Consolidated Amended and Supplemented Complt 40 will serve as the current complt for the consolidated actions. Signed by Judge William R. Wilson Jr. on 8/18/05. (bmt, ) (Entered: 08/19/2005)
***Added Tommy Armstrong as a consolidated pltf purs to Order of 8/18/05. (bmt) Modified on 8/23/2005 to clean up text (bmt). (Entered: 08/23/2005)
42 CERTIFICATE OF MAILING by the Clerk re 41 Order (bmt, ) (Entered: 08/19/2005)
***Set/Clear Flags (bmt, ) (Entered: 08/19/2005)
43 Defendants' ANSWER to Amended Complaint consolidated amended and supplemented class action complaint by Wal−Mart Stores Inc.(Kaplan, Philip) (Entered: 08/29/2005)
44 Joint MOTION for Protective Order by Wal−Mart Stores Inc. (Kaplan, Philip) (Entered: 08/31/2005)
45 CONFIDENTIALITY ORDER granting joint motion 44 for Protective Order; parties have stipulated that certain discovery material is and should be treated as confidential and have agreed to the terms of this Order . Signed by Judge William R. Wilson Jr. on 9/27/05. (bsm ) (Entered: 09/27/2005)

Case: 2:04-cv-171 As of:10/09/2010 02:22 PM CDT 9 of 22

09/27/2005 10/20/2005 10/21/2005
10/24/2005 12/19/2005
12/19/2005 12/19/2005 03/10/2006 03/10/2006 03/13/2006 03/14/2006 03/22/2006 04/13/2006
04/13/2006 04/13/2006
04/13/2006
04/13/2006

46 CERTIFICATE OF MAILING by the Clerk re 45 Protective/Confidentiality Order (bsm ) (Entered: 09/27/2005)
47 MOTION to Extend Time to Disclose Expert Witnesses by Tommy Armstrong. (Welch, Morgan) (Entered: 10/20/2005)
48 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) ORDER granting 47 Motion to Extend Time for Expert Disclosures. Accordingly, case−in−chief expert disclosures, including the Reports, must be made by January 3, 2006, and rebuttal expert disclosures, including the Reports, must be made by February 3, 2006. No other deadline is affected by this order.Signed by Judge William R. Wilson Jr. on 10−21−05. (dmm, ) (Entered: 10/21/2005)
49 CERTIFICATE OF MAILING by the Clerk re doc #48 Order on Motion to Extend Time (maj) (Entered: 10/24/2005)
50 AMENDED FINAL SCHEDULING ORDER (DOC): Jury Trial reset for 3/12/2007 at 9:00 AM in Helena Courtroom #314 before Judge William R. Wilson Jr; Discovery due by 12/12/2006; Motions due by 1/12/2007; Pretrial Disclosure Sheet due by 2/12/2007.(maj) (Entered: 12/19/2005)
51 CERTIFICATE OF MAILING by the Clerk re doc #50 Amended Final Scheduling Order (maj) (Entered: 12/19/2005)
Set/Reset Deadlines as to Hearing on Motion for Class Certification set for 5/31/2006 09:00 AM in Little Rock Courtroom #431 before Judge William R. Wilson Jr., per Amended Scheduling Order. (thd) (Entered: 02/16/2006)
52 MOTION for Leave to File Documents under Seal by Tommy Armstrong, Daryal T Nelson. (Attachments: # 1 Exhibit Exhibit 1)(Welch, Morgan) (Entered: 03/10/2006)
53 BRIEF IN SUPPORT filed by Tommy Armstrong, Daryal T Nelson re 52 Motion for Leave to File Documents Under Seal. (Welch, Morgan) (Entered: 03/10/2006)
54 MOTION to Certify Class by Tommy Armstrong, Daryal T Nelson. (Welch, Morgan) (Entered: 03/13/2006)
55 NOTICE of Appearance by Joseph Henry Bates, III on behalf of all plaintiffs (Bates, Joseph) (Entered: 03/14/2006)
56 RESPONSE to Motion re 52 MOTION for Leave to File Documents under Seal filed by Wal−Mart Stores Inc, Wal−Mart Transportation, LLC. (Attachments: # 1 # 2)(Kaplan, Philip) (Entered: 03/22/2006)
57 ORDER granting 52 Motion for Leave to File certain documents pursuant to paragraph 2 of the Protective Order under seal; this order is w/o prejudice to pltf's right to raise objections concerning particular exhibits at a later date. Signed by Judge William R. Wilson Jr. on 4/13/06. (mkf, ) (Entered: 04/13/2006)
58 CERTIFICATE OF MAILING by the Clerk re 57 Order on Motion for Leave to File Documents Under Seal. (mkf, ) (Entered: 04/13/2006)
59 MOTION to Exclude The Report and Testimony of Martin Shapiro by Wal−Mart Stores Inc, Wal−Mart Transportation, LLC. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10 # 11 # 12 # 13 # 14 # 15 # 16 # 17)(Gray, Michael) (Entered: 04/13/2006)
60 BRIEF IN SUPPORT filed by Wal−Mart Stores Inc, Wal−Mart Transportation, LLC re 59 Motion to Exclude, Wal−Mart's Memorandum In Support of its Motion to Exclude The Report And Testimony of Martin Shapiro. (Gray, Michael) (Entered: 04/13/2006)
61 MOTION to Exclude The Report and Testimony of William T. Bielby, Ph.D. by Wal−Mart Stores Inc, Wal−Mart Transportation, LLC. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10 # 11 # 12 # 13 # 14 # 15 # 16 # 17)(Gray, Michael) (Entered: 04/13/2006)

Case: 2:04-cv-171 As of:10/09/2010 02:22 PM CDT 10 of 22

04/13/2006 04/13/2006 04/13/2006
04/13/2006
04/13/2006 04/13/2006 04/13/2006 04/13/2006 04/14/2006 04/14/2006 04/14/2006 04/17/2006 04/17/2006 04/17/2006

62 BRIEF IN SUPPORT filed by Wal−Mart Stores Inc, Wal−Mart Transportation, LLC re 61 Motion to Exclude, Wal−Mart's Memorandum in Support of Its Motion to Exclude The Report and Testimony of William T. Bielby, Ph.D.. (Gray, Michael) (Entered: 04/13/2006)
63 BRIEF IN OPPOSITION filed by Wal−Mart Stores Inc re 54 Motion to Certify Class. (Kaplan, Philip)(MODIFICATION: Original document submitted in error; corrected document added as an attachment on 4/17/2006, per instructions from chambers.) (thd) (Entered: 04/13/2006)
64 RESPONSE to Motion re 54 MOTION to Certify Class Defendants' Motion In Opposition to Class Certification filed by Wal−Mart Stores Inc, Wal−Mart Transportation, LLC. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10 # 11 # 12 # 13 # 14 # 15 # 16 # 17 # 18 # 19 # 20 # 21 # 22 # 23 # 24 # 25 # 26 # 27 # 28 # 29 # 30 # 31 # 32 # 33 # 34 # 35 # 36 # 37)(Gray, Michael) (Entered: 04/13/2006)
65 ADDENDUM filed by Wal−Mart Stores Inc, Wal−Mart Transportation, LLC to 64 Response to Motion, Defendants' Motion In Opposition To Class Certification additional exhibits. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10 # 11 # 12 # 13 # 14 # 15 # 16 # 17 # 18 # 19 # 20 # 21 # 22 # 23 # 24 # 25 # 26 # 27 # 28 # 29 # 30)(Gray, Michael) (Entered: 04/13/2006)
66 ADDENDUM filed by Wal−Mart Stores Inc, Wal−Mart Transportation, LLC to 64 Response to Motion, Defendants' Motion In Opposition To Class Certification additional exhibits. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10 # 11 # 12 # 13 # 14 # 15 # 16 # 17 # 18 # 19 # 20)(Gray, Michael) (Entered: 04/13/2006)
67 EXHIBIT 6 − Ed Parrish Declaration (FILED UNDER SEAL) by Wal−Mart Stores Inc, Wal−Mart Transportation, LLC to 61 MOTION to Exclude The Report and Testimony of William T. Bielby, Ph.D. (mkf, ) (Entered: 04/14/2006)
68 EXHIBIT 7 − Shirley Coonrod Declaration (FILED UNDER SEAL) by Wal−Mart Stores Inc, Wal−Mart Transportation, LLC to 59 MOTION to Exclude The Report and Testimony of Martin Shapiro. (mkf, ) (Entered: 04/14/2006)
69 EXHIBIT 8 − Shirley Coonrod Declaration − (FILED UNDER SEAL) by Wal−Mart Stores Inc, Wal−Mart Transportation, LLC to 64 Defts' Opposition Response to Pltfs' Motion for Class Certification. (mkf, ) (Entered: 04/14/2006)
70 MOTION for Extension of Time to File Response/Reply as to 61 MOTION to Exclude The Report and Testimony of William T. Bielby, Ph.D., 59 MOTION to Exclude The Report and Testimony of Martin Shapiro by Tommy Armstrong, Daryal T Nelson. (Welch, Morgan) (Entered: 04/14/2006)
71 MOTION for Extension of Time to File Response/Reply as to 64 Response to Motion, by Tommy Armstrong, Daryal T Nelson. (Welch, Morgan) (Entered: 04/14/2006)
72 BRIEF IN SUPPORT filed by Tommy Armstrong, Daryal T Nelson re 54 Motion to Certify Class. (Welch, Morgan) (Entered: 04/14/2006)
73 NOTICE OF DOCKET CORRECTION re: 63 Brief in Opposition. CORRECTION: The original document was submitted in error. The correct document was received by the court (correspondence attached) and added to docket entry 63 , per instructions from chambers. (thd) (Entered: 04/17/2006)
74 CERTIFICATE OF MAILING by the Clerk re 73 Notice of Docket Correction. (thd) (Entered: 04/17/2006)
79 LETTER/ORDER to Mr. Chip Welch and Phil Kaplan; submit an expert testimony re Daubert by 5/23/06; a short brief with afdts may also be submitted; Court may decide Daubert issue on papers submitted, but if not, Daubert hearing will be at 8:30 a.m. on 5/31/06; granting Motions 70 71 for Extension of Time until 5/18/06 to File Reply to deft's response to MOTIONS 59 61 to Exclude and MOTION 54 to Certify Class. Signed by Judge William R. Wilson Jr. on 4/17/06. (bsm, ) (Entered: 04/20/2006)

Case: 2:04-cv-171 As of:10/09/2010 02:22 PM CDT 11 of 22

04/19/2006 04/19/2006 04/19/2006
04/19/2006
04/20/2006 04/25/2006 04/25/2006 05/01/2006 05/02/2006 05/04/2006 05/04/2006 05/12/2006 05/18/2006

75 EXHIBITS (FILED UNDER SEAL) by Tommy Armstrong, Daryal T Nelson to 72 Pltfs' Brief in Support of Motion for Class Certification. (mkf, ) (Entered: 04/19/2006)
76 ADDENDUM filed by Tommy Armstrong, Daryal T Nelson to 72 Brief in Support Unsealed Exhibits − Part 1 of 2. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10 # 11 # 12 # 13 # 14 # 15 # 16 # 17 # 18 # 19 # 20 # 21 # 22 # 23 # 24 # 25 # 26 # 27 # 28 # 29 # 30 # 31 # 32 # 33 # 34 # 35)(Bates, Joseph) (Entered: 04/19/2006)
77 ADDENDUM filed by Tommy Armstrong, Daryal T Nelson to 72 Brief in Support Amended and Substituted Unsealed Exhibits − Part 1 of 2. (Attachments: # 1 Exhibit 1# 2 Exhibit 2−1# 3 Errata 2−2# 4 Exhibit 2−3# 5 Exhibit 2−4# 6 Exhibit 3# 7 Exhibit 4# 8 Exhibit 5# 9 Exhibit 6# 10 Exhibit 8# 11 Exhibit 9# 12 Exhibit 12# 13 Exhibit 13# 14 Exhibit 14# 15 Exhibit 15# 16 Exhibit 16# 17 Exhibit 17# 18 Exhibit 19# 19 Exhibit 20# 20 Exhibit 21# 21 Exhibit 26# 22 Exhibit 28# 23 Exhibit 29# 24 Exhibit 30# 25 Exhibit 32# 26 Exhibit 33# 27 Exhibit 34# 28 Exhibit 35# 29 Exhibit 36# 30 Exhibit 37# 31 Exhibit 38−1a# 32 Exhibit 38−1b# 33 Exhibit 38−2# 34 Exhibit 39# 35 Exhibit 40)(Bates, Joseph) (Entered: 04/19/2006)
78 ADDENDUM filed by Tommy Armstrong, Daryal T Nelson to 72 Brief in Support Unsealed Exhibits − Part 2 of 2. (Attachments: # 1 Exhibit 42# 2 Exhibit 43# 3 Exhibit 47# 4 Exhibit 50# 5 Exhibit 55# 6 Exhibit 56# 7 Exhibit 58# 8 Exhibit 60# 9 Exhibit 61# 10 Errata 62# 11 Exhibit 63# 12 Exhibit 64# 13 Exhibit 65# 14 Exhibit 66# 15 Exhibit 67# 16 Exhibit 68# 17 Exhibit 69# 18 Exhibit 70# 19 Exhibit 71# 20 Exhibit 72# 21 Exhibit 73# 22 Exhibit 74# 23 Exhibit 75# 24 Exhibit 76# 25 Exhibit 77# 26 Exhibit 78# 27 Exhibit 79# 28 Exhibit 80# 29 Exhibit 81# 30 Errata 82# 31 Exhibit 83# 32 Exhibit 84# 33 Exhibit 85# 34 Exhibit 86# 35 Exhibit 87# 36 Exhibit 88# 37 Exhibit 89# 38 Exhibit 90)(Bates, Joseph) (Entered: 04/19/2006)
80 CERTIFICATE OF MAILING by the Clerk re 79 Letter/Order on Motion for Extension of Time to File Response/Reply and Daubert Issue (bsm ) (Entered: 04/20/2006)
81 MOTION to Compel by Tommy Armstrong, Daryal T Nelson. (Attachments: # 1 Exhibit Exhibit 1)(Bates, Joseph) (Entered: 04/25/2006)
82 BRIEF IN SUPPORT filed by Tommy Armstrong, Daryal T Nelson re 81 Motion to Compel. (Bates, Joseph) (Entered: 04/25/2006)
83 RESPONSE to Motion re 81 MOTION to Compel filed by Wal−Mart Stores Inc, Wal−Mart Transportation, LLC. (Attachments: # 1 # 2)(Gray, Michael) (Entered: 05/01/2006)
(This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) Minute Entry for telephone conference on Motion to Compel held before Judge William R. Wilson Jr. in chambers in Little Rock on 5/2/2006. Defts directed to submit follow−up briefs within 10 days. Ruling to follow. 81 (Court Reporter Deposition Court Reporter Ms. Robbins for Defts.) (lej) (Entered: 05/02/2006)
84 ORDER re Motion Hearing on Plaintiffs' 81 MOTION to Compel filed by Tommy Armstrong,, Daryal T Nelson, . Signed by Judge William R. Wilson Jr. on 5/4/06. (mkf, ) (Entered: 05/04/2006)
85 CERTIFICATE OF MAILING by the Clerk re 84 Order. (mkf, ) (Entered: 05/04/2006)
86 RESPONSE re 84 Order Statement in Response to May 4 Order by Wal−Mart Stores Inc, Wal−Mart Transportation, LLC. (Gray, Michael) (Entered: 05/12/2006)
87 REPLY to Response to Motion re 54 MOTION to Certify Class filed by Tommy Armstrong, Daryal T Nelson. (Attachments: # 1 Exhibit Index to Exhibits to Reply# 2 Exhibit Exhibit No. 91# 3 Exhibit Exhibit No. 92# 4 Exhibit Exhibit No. 93# 5 Exhibit Exhibit No. 94# 6 Exhibit Exhibit No. 95# 7 Exhibit Exhibit No. 96# 8 Exhibit Exhibit No. 97# 9 Exhibit Exhibit No. 98# 10 Exhibit Exhibit No. 99# 11 Exhibit Exhibit No. 100# 12 Exhibit Exhibit No. 101# 13 Exhibit Exhibit No. 102# 14 Exhibit Exhibit No. 103# 15 Exhibit Exhibit No. 104# 16 Exhibit Exhibit No.

Case: 2:04-cv-171 As of:10/09/2010 02:22 PM CDT 12 of 22

05/22/2006 05/22/2006
05/22/2006 05/23/2006 05/23/2006
05/23/2006
05/23/2006
05/23/2006 05/23/2006
05/23/2006 05/23/2006 05/23/2006
05/24/2006 05/25/2006 05/25/2006 05/31/2006

105# 17 Exhibit Exhibit No. 106)(Bates, Joseph) (Entered: 05/18/2006)
88 MOTION to Withdraw as Attorney by Tommy Armstrong, Daryal T Nelson. (Bates, Joseph) (Entered: 05/22/2006)
89 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) ORDER granting 88 Plaintiffs' Motion to Withdraw Attorney Brooke Owen. Acccordingly, Ms. Owen is relieved as counsel of record. Signed by Judge William R. Wilson Jr. on 05/22/06. (dmm, ) (Entered: 05/22/2006)
Attorney Brooke Augusta Owen terminated pursuant to text Order doc 89. (mar) (Entered: 05/25/2006)
90 CERTIFICATE OF MAILING by the Clerk re doc #89 Order on Motion to Withdraw as Attorney (maj) (Entered: 05/23/2006)
91 RESPONSE to Motion re 61 MOTION to Exclude The Report and Testimony of William T. Bielby, Ph.D., 59 MOTION to Exclude The Report and Testimony of Martin Shapiro filed by Tommy Armstrong, Daryal T Nelson. (Welch, Morgan) (Entered: 05/23/2006)
92 NOTICE by Wal−Mart Stores Inc, Wal−Mart Transportation, LLC re 79 Order on Motion for Extension of Time to File Response/Reply,,, Filing of Summary Declarations of Robert Topel and Philip Tetlock (Attachments: # 1 Exhibit Summary Declaration of Robert Topel# 2 Exhibit Summary Declaration of Philip Tetlock)(Gray, Michael) (Entered: 05/23/2006)
93 BRIEF IN SUPPORT filed by Tommy Armstrong, Daryal T Nelson re 91 Response to Motion to Exclude Testimony and Reports of Dr. William T. Bielby and Dr. Martin Shapiro. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H)(Welch, Morgan) (Entered: 05/23/2006)
94 ADDENDUM filed by Tommy Armstrong, Daryal T Nelson to 93 Brief in Support, Index of Exhibits. (Welch, Morgan) (Entered: 05/23/2006)
95 MOTION to Exclude Declaration and Addendum of Martin Shapiro by Wal−Mart Stores Inc, Wal−Mart Transportation, LLC. (Attachments: # 1 Exhibit 1/19/06 Letter to Bates# 2 Exhibit Excerpts of 5/1/06 Shapiro Deposition# 3 Exhibit Excerpts 3/23/06 Shapiro Deposition)(Gray, Michael) (Entered: 05/23/2006)
96 BRIEF IN SUPPORT filed by Wal−Mart Stores Inc, Wal−Mart Transportation, LLC re 95 Motion to Exclude,. (Gray, Michael) (Entered: 05/23/2006)
97 MOTION for Leave to File Surreply in Opposition to Class Certification by Wal−Mart Stores Inc, Wal−Mart Transportation, LLC. (Gray, Michael) (Entered: 05/23/2006)
98 MEMORANDUM re 97 MOTION for Leave to File Surreply in Opposition to Class Certification filed by Wal−Mart Stores Inc,, Wal−Mart Transportation, LLC, Surreply. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit # 4 # 5 # 6 # 7 # 8 # 9 # 10)(Gray, Michael) (Entered: 05/23/2006)
99 RESPONSE in Opposition re 95 MOTION to Exclude Declaration and Addendum of Martin Shapiro filed by Tommy Armstrong, Daryal T Nelson. (Bates, Joseph) (Entered: 05/24/2006)
100 ORDER denying 59 Motion to Exclude, denying 61 Motion to Exclude, denying 95 Motion to Exclude, granting 97 Motion for Leave to File . Signed by Judge William R. Wilson Jr. on 5/25/06. (mkf, ) (Entered: 05/25/2006)
101 CERTIFICATE OF MAILING by the Clerk re 100 Order on Motion to Exclude,Order on Motion for Leave to File. (mkf, ) (Entered: 05/25/2006)
(This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) Minute Entry for proceedings held before Judge William R. Wilson Jr: Motion Hearing held on 5/31/2006 re: Motion to Certify Class; simultaneous briefs due by 5:00 p.m. 6/15/06; simultaneous responses due by 5:00 p.m. 6/22/06; order to be entered (Court Reporter J. Ammons) (maj) (Entered: 06/02/2006)

Case: 2:04-cv-171 As of:10/09/2010 02:22 PM CDT 13 of 22

06/01/2006
06/01/2006 06/05/2006 06/15/2006 06/15/2006 06/22/2006 06/22/2006 11/01/2006 11/09/2006 11/20/2006 11/28/2006 02/07/2007 02/08/2007 02/09/2007
04/04/2007 04/04/2007 04/24/2007
05/16/2007 06/01/2007

102 ORDER directing parties to file proposed findings of fact of no longer than 21 pages, by 5 p.m., Thursday, June 15, 2006; simultaneous responses must be filed by 5 p.m., June 22, 2006. Signed by Judge William R. Wilson Jr. on 6/1/06. (mkf, ) (Entered: 06/01/2006)
103 CERTIFICATE OF MAILING by the Clerk re 102 Order. (mkf, ) (Entered: 06/01/2006)
104 TRANSCRIPT of Hearing held on 05/31/2006 before Judge William R. Wilson, Jr. Court Reporter: Judith A. Ammons. (thd) (Entered: 06/05/2006)
105 Proposed Findings of Fact by Tommy Armstrong, Daryal T Nelson. (Bates, Joseph) (Entered: 06/15/2006)
106 BRIEF filed by Wal−Mart Stores Inc, Wal−Mart Transportation, LLC Defendants' Proposed Findings of Fact and Conclusions of Law. (Gray, Michael) (Entered: 06/15/2006)
107 RESPONSE re 106 Brief (non−appeal) by Tommy Armstrong, Daryal T Nelson. (Welch, Morgan) (Entered: 06/22/2006)
108 RESPONSE re 105 Proposed Findings of Fact by Wal−Mart Stores Inc, Wal−Mart Transportation, LLC. (Gray, Michael) (Entered: 06/22/2006)
109 Letter to counsel from Judge William R Wilson Jr re discovery problems; anyone wanting to submit a letter outlining the problems should do so by noon, this Friday, November 3, 2006 by fax. (mkf, ) (Entered: 11/01/2006)
110 MOTION to Extend Time Motion For Extension Of Time To Extend Deadlines by Daryal T Nelson. (Attachments: # 1 Exhibit A − Amended Scheduling Order)(Walker, John) (Entered: 11/09/2006)
111 ORDER granting 81 Motion to Compel . Signed by Judge William R. Wilson Jr. on 11/20/06. (mkf, ) (Entered: 11/20/2006)
112 ORDER granting 110 Motion to Extend Deadlines; a new scheduling order will be issued following the ruling on the Motion for Class Certification. Signed by Judge William R. Wilson Jr. on 11/28/06. (mkf, ) (Entered: 11/28/2006)
113 NOTICE by Tommy Armstrong, Daryal T Nelson re 72 Brief in Support of Additional Citation (Welch, Morgan) (Entered: 02/07/2007)
114 REQUEST by Wal−Mart Stores Inc, Wal−Mart Transportation, LLC for Leave to Respond to Citation of Additional Authority. (Gray, Michael) (Entered: 02/08/2007)
115 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) ORDER: Denying Defendant's request to Respond to Citation of Additional Authority. I have read the case and will take it into consideration. No additional briefing is necessary.Signed by Judge William R. Wilson Jr. on 02/09/07. (dmm, ) (Entered: 02/09/2007)
116 NOTICE: Motion for Class Certification Hearing set for 4/24/2007 at 1:30 PM in Little Rock Courtroom #431 before Judge William R. Wilson Jr. (maj) (Entered: 04/04/2007)
117 Letter to counsel from Judge Wm. R. Wilson, Jr. re Class Certification Hearing scheduled for Tuesday, April 24, 2007 at 1:30 p.m. (mkf) (Entered: 04/04/2007)
(This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.)Minute Order. Proceedings held before Judge William R. Wilson Jr: Motion Hearing held on 4/24/2007 re Motion to Certify Class filed by pltf; motion taken under advisement. (Court Reporter C. Newburg) (maj) (Entered: 05/01/2007)
118 ORDER granting in part and denying in part 54 Motion to Certify Class. Signed by Judge William R. Wilson Jr. on 5/16/07. (mkf) (Entered: 05/16/2007)
119 Letter from Clerk USCA8, Wal−Mart Stores, and Wal−Mart Transportation LLC has filed a petition for permission to appeal, re. 118 Order, USCA8 Misc. No. 07−8007 (dac) (Entered: 06/01/2007)

Case: 2:04-cv-171 As of:10/09/2010 02:22 PM CDT 14 of 22

06/11/2007 06/28/2007 06/28/2007 09/24/2007 09/24/2007 09/25/2007
09/26/2007 09/27/2007 09/28/2007 10/11/2007
10/12/2007
12/12/2007 12/12/2007 01/03/2008 01/15/2008 01/15/2008
03/04/2008 03/04/2008

120 TRANSCRIPT of Motions Hearing (1 Volume) held on April 24, 2007 before Judge William R. Wilson, Jr.. Court Reporter: Christa R. Newburg. (mkf) (Entered: 06/11/2007)
121 USCA8 JUDGMENT, Petition for Permission to File Interlocutory Appeal is Denied (dac) (Entered: 06/28/2007)
122 USCA8 MANDATE, in accordance with the judgment of 6/28/07 (dac) (Entered: 06/28/2007)
123 STATUS REPORT Plaintiffs' Scheduling Conference Report by Tommy Armstrong, Daryal T Nelson (Bates, Joseph) (Entered: 09/24/2007)
124 STATUS REPORT of proposed trial plan by Wal−Mart Stores Inc (Kaplan, Philip) (Entered: 09/24/2007)
(This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) Proceedings held before Judge William R. Wilson Jr: Scheduling Conference held on 9/25/2007; Court made a tentative ruling for a non−jury trial; pltfs brief on issue due by noon on 9/26/2007; case set for trial, in Little Rock, on October 6, 2008 for 4 weeks; back−up setting of 1/5/2009; Status Conference set, in Little Rock, for 3/4/2008 at 9:00 a.m.; Telephone Conference set for 10/11/2007 at 8:00 a.m. (Court Reporter C. Newburg) (maj) (Entered: 09/27/2007)
125 NOTICE by Tommy Armstrong Of Filing of Letter Response (Welch, Morgan) (Entered: 09/26/2007)
126 NOTICE of Appearance by Jess L. Askew, III on behalf of Wal−Mart Stores Inc, Wal−Mart Transportation, LLC (Askew, Jess) (Entered: 09/27/2007)
127 Letter to Attorney Phillip E. Kaplan from Judge Wm. R. Wilson, Jr. directing him to prepare a precedent for an order based on the September 25, 2007 hearing by noon, Monday, October 1, 2007. (mkf) (Entered: 09/28/2007)
(This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) Proceedings held before Judge William R. Wilson Jr: Telephone Conference held on 10/11/2007 regarding status of discovery. (Court Reporter J. Ammons) (maj) (Entered: 10/11/2007)
128 ORDER pursuant to oral arguments heard on September 25, 2007; this matter will be heard by the Court w/o a jury at this initial stage; the trial will commence on either October 6, 2008 or January 5, 2009; the final date will be determined at a status conference to be held on March 4, 2008 at 9:00 a.m.; the trial will be set for a period of four weeks; scheduling ddls for each proposed trial date are set out in this Order. Signed by Judge William R. Wilson Jr. on 10/12/07. (mkf) (Entered: 10/15/2007)
129 NOTICE of Appearance by Michael Muskheli on behalf of Wal−Mart Stores Inc, Wal−Mart Transportation, LLC (Muskheli, Michael) (Entered: 12/12/2007)
130 NOTICE of Appearance by Clayborne S. Stone on behalf of Wal−Mart Stores Inc, Wal−Mart Transportation, LLC (Stone, Clayborne) (Entered: 12/12/2007)
131 NOTICE of Appearance by Teresa M. Wineland on behalf of Wal−Mart Stores Inc (Wineland, Teresa) (Entered: 01/03/2008)
132 MOTION to Withdraw as Attorney by Daryal T Nelson (Bowden, David) (Entered: 01/15/2008)
133 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) ORDER granting 132 Plaintiff's Motion to Withdraw Mr. David O. Bowden as Counsel. Accordingly, Mr. David O. Bowden is relieved as counsel. Signed by Judge William R. Wilson, Jr on 01/15/08. (dmm) (Entered: 01/15/2008)
134 STATUS REPORT by Tommy Armstrong (Welch, Morgan) (Entered: 03/04/2008)
135 STATUS REPORT by Wal−Mart Stores Inc (Kaplan, Philip) (Entered: 03/04/2008)

Case: 2:04-cv-171 As of:10/09/2010 02:22 PM CDT 15 of 22

03/06/2008 04/18/2008 04/18/2008
05/08/2008 05/08/2008
09/11/2008 09/11/2008 09/12/2008 09/17/2008
09/17/2008 09/18/2008
09/19/2008
09/24/2008 10/06/2008 10/06/2008 10/06/2008 10/06/2008 10/06/2008

136 STATUS REPORT In Reply to Defendant's Status Report by Tommy Armstrong (Welch, Morgan) (Entered: 03/06/2008)
137 Letter from Judge Wm. R. Wilson, Jr. to Counsel of Record re issues raised in Status Reports; trial will start on Tuesday, January 6, 2009. (mkf) (Entered: 04/18/2008)
138 FINAL SCHEDULING ORDER (DOC): Bench Trial set for 1/6/2009 at 9:00 AM in Little Rock Courtroom #4C before Judge William R. Wilson Jr; Discovery due by 10/6/2008; Motions due by 10/6/2008; Pretrial Disclosure Sheet due by 12/1/2008. (maj) (Entered: 04/18/2008)
139 Joint MOTION to Extend Time of expert disclosure deadline by Wal−Mart Stores Inc (Maxey, Joann) (Entered: 05/08/2008)
140 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) ORDER granting 139 the Joint Motion for Extension of Time for Expert Disclosures. Accordingly, case−in−chief expert disclosures must be made by 5 p.m., Monday, July 21, 2008. All other deadlines remain the same. Signed by Judge William R. Wilson, Jr on 05/08/08. (dmm) (Entered: 05/08/2008)
141 MOTION to Quash and Request for Protective Order Concerning Deposition of H. Lee Scott, Jr. by Wal−Mart Stores Inc (Attachments: # 1 Exhibit Exhibits 1−6)(Kaplan, Philip) (Entered: 09/11/2008)
142 BRIEF IN SUPPORT filed by Wal−Mart Stores Inc re 141 Motion to Quash and Request for Protective Order Concerning Deposition of H. Lee Scott, Jr. (Kaplan, Philip) (Entered: 09/11/2008)
143 Letter to Counsel from Judge Wm. R. Wilson, Jr. re deposition of Defendant's CEO; response to 141 Motion due by noon, Thursday, September 18, 2008. (mkf) (Entered: 09/12/2008)
144 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) Minute Order for proceedings held before Judge William R. Wilson, Jr:Telephone Conference re case status held on 9/17/2008. (Court Reporter E. Hinson) (maj) (Entered: 09/17/2008)
145 LETTER ORDER informing counsel of Witness Time Limits. Signed by Judge William R. Wilson, Jr on 9/17/08. (vjt) (Entered: 09/17/2008)
146 RESPONSE in Opposition re 141 MOTION to Quash and Request for Protective Order Concerning Deposition of H. Lee Scott, Jr. filed by Tommy Armstrong, Daryal T Nelson. (Attachments: # 1 Exhibit, # 2 Exhibit)(Walker, John) (Entered: 09/18/2008)
147 REPLY to Response to Motion re 141 MOTION to Quash and Request for Protective Order Concerning Deposition of H. Lee Scott, Jr. filed by Wal−Mart Stores Inc. (Attachments: # 1 Exhibit Exhibits 1 and 2)(Kaplan, Philip) (Entered: 09/19/2008)
148 ORDER granting 141 Motion to Quash the deposition of H. Lee Scott, jr.. Signed by Judge William R. Wilson, Jr on 9/24/08. (bkp) (Entered: 09/24/2008)
149 MOTION for Leave to Appear pro hac vice by Wal−Mart Stores Inc (Kaplan, Philip) (Entered: 10/06/2008)
150 MOTION for Order decertifying class by Wal−Mart Stores Inc (Kaplan, Philip) (Entered: 10/06/2008)
151 MOTION for Summary Judgment Against Individual Plaintiffs by Wal−Mart Stores Inc (Kaplan, Philip) (Entered: 10/06/2008)
152 MOTION for Summary Judgment on Plaintiffs' Class Claims by Wal−Mart Stores Inc (Kaplan, Philip) (Entered: 10/06/2008)
153 STATEMENT OF FACTS (Local Rule 56.1) re 152 Motion for Summary Judgment, 151 Motion for Summary Judgment filed by Wal−Mart Stores Inc. (Kaplan, Philip) (Entered: 10/06/2008)

Case: 2:04-cv-171 As of:10/09/2010 02:22 PM CDT 16 of 22

10/06/2008 10/06/2008 10/06/2008 10/06/2008 10/06/2008
10/08/2008 10/09/2008 10/09/2008
10/09/2008 10/28/2008
11/03/2008
11/03/2008 11/14/2008 11/14/2008 11/14/2008 11/14/2008

154 BRIEF IN SUPPORT filed by Wal−Mart Stores Inc re 152 Motion for Summary Judgment on Class Claims (Kaplan, Philip) (Entered: 10/06/2008)
155 BRIEF IN SUPPORT filed by Wal−Mart Stores Inc re 151 Motion for Summary Judgment Against Individuals (Kaplan, Philip) (Entered: 10/06/2008)
156 BRIEF IN SUPPORT filed by Wal−Mart Stores Inc re 150 Motion for Order Decertifying Class (Kaplan, Philip) (Entered: 10/06/2008)
157 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) ORDER granting 149 Defendnats' Motion for Leave for Ms. Elizabeth B. McRee and Ms. Monica R. McCullough to Appear Pro Hac Vice in this case. Signed by Judge William R. Wilson, Jr on 10/06/08. (dmm) (Entered: 10/06/2008)
158 NOTICE by Wal−Mart Stores Inc re 152 MOTION for Summary Judgment on Plaintiffs' Class Claims, 151 MOTION for Summary Judgment Against Individual Plaintiffs, 150 MOTION for Order decertifying class of Filing of Exhibits (Attachments: # 1 Exhibit Batch 1, # 2 Exhibit Batch 2, # 3 Exhibit Batch 3, # 4 Exhibit Batch 4, # 5 Exhibit, # 6 Exhibit Batch 6 part 1, # 7 Exhibit Batch 6 part 2, # 8 Exhibit Batch 7, # 9 Exhibit Batch 8.1, # 10 Exhibit Batch 8.2, # 11 Exhibit Batch 9, # 12 Exhibit Batch 9, # 13 Exhibit Batch 11, # 14 Exhibit Batch 12)(Kaplan, Philip) (Entered: 10/06/2008)
159 MOTION for Extension of Time to File Response/Reply as to 152 MOTION for Summary Judgment on Plaintiffs' Class Claims, 151 MOTION for Summary Judgment Against Individual Plaintiffs, 150 MOTION for Order decertifying class by Tommy Armstrong (Welch, Morgan) (Entered: 10/08/2008)
160 NOTICE of Appearance by Cassandra P. LaFrance on behalf of Wal−Mart Stores Inc, Wal−Mart Transportation LLC (LaFrance, Cassandra) (Entered: 10/09/2008)
161 ORDER granting in part and denying in part 159 Motion for Extension of Time to File Response/Reply re 151 MOTION for Summary Judgment Against Individual Plaintiffs, 150 MOTION for Order decertifying class, 152 MOTION for Summary Judgment on Plaintiffs' Class Claims; Replies due by 11/3/2008 by 5:00 p.m. Signed by Judge William R. Wilson, Jr on 10/09/08. (mkf) (Entered: 10/09/2008)
162 NOTICE of Appearance by Ashley R. Hudson on behalf of all plaintiffs (Hudson, Ashley) (Entered: 10/09/2008)
163 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) Minute Order for proceedings held before Judge William R. Wilson, Jr:Telephone Conference held on 10/28/2008 w/parties; Bench trial reset to begin on Monday, March 16, 2009 at 1:00 p.m.; responses to pending motions extended up to and including November 14, 2008. (Court Reporter E. Hinson) (maj) (Entered: 10/29/2008)
164 MOTION to Exclude the Testimony of Plaintiffs' Experts Bendick and Shapiro by Wal−Mart Stores Inc, Wal−Mart Transportation LLC (Attachments: # 1 Document Index of exhibits, # 2 Exhibit 1−1, # 3 Exhibit 1−2, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6−1, # 9 Exhibit 6−2, # 10 Exhibit 7, # 11 Exhibit 8, # 12 Exhibit 9)(McRee, Elizabeth) (Entered: 11/03/2008)
165 BRIEF IN SUPPORT filed by Wal−Mart Stores Inc, Wal−Mart Transportation LLC re 164 Motion to Exclude, (McRee, Elizabeth) (Entered: 11/03/2008)
166 MOTION for Leave to File Documents Under Seal by Tommy Armstrong (Welch, Morgan) (Entered: 11/14/2008)
167 BRIEF IN SUPPORT filed by Tommy Armstrong re 166 Motion for Leave to File Documents Under Seal (Welch, Morgan) (Entered: 11/14/2008)
168 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) ORDER granting 166 Plaintiff's Motion for Leave to File Exhibits Under Seal. Signed by Judge William R. Wilson, Jr on 11/14/08. (dmm) (Entered: 11/14/2008)
170 RESPONSE in Opposition re 152 MOTION for Summary Judgment on Plaintiffs' Class Claims, 150 MOTION for Order decertifying class filed by Tommy

Case: 2:04-cv-171 As of:10/09/2010 02:22 PM CDT 17 of 22

11/14/2008 11/14/2008 11/14/2008 11/14/2008 11/14/2008 11/17/2008
11/17/2008 11/17/2008 11/25/2008

Armstrong, Daryal T Nelson. (Bates, Joseph) (Entered: 11/14/2008)
171 RESPONSE in Opposition re 164 MOTION to Exclude the Testimony of Plaintiffs' Experts Bendick and Shapiro filed by Tommy Armstrong, Daryal T Nelson. (Bates, Joseph) (Entered: 11/14/2008)
172 RESPONSE to Motion re 151 MOTION for Summary Judgment Against Individual Plaintiffs filed by Tommy Armstrong. (Attachments: # 1 Affidavit Affidavit of Morgan E. Welch)(Welch, Morgan) (Entered: 11/14/2008)
173 BRIEF IN SUPPORT filed by Tommy Armstrong re 172 Response to Motion for Summary Judgment as to Individual Class Representatives (Welch, Morgan) (Entered: 11/14/2008)
174 STATEMENT OF FACTS (Local Rule 56.1) re 153 Statement of Facts (Local Rule 56.1) filed by Tommy Armstrong. (Welch, Morgan) (Entered: 11/14/2008)
175 DOCUMENT FILED IN ERROR (duplicate, incomplete entry)− DISREGARD. (The party correctly filed the document as docket entry 176 .)(Bates, Joseph) (Docket text modified on 11/17/2008 to indicate the document was filed in error.) (thd) (Entered: 11/15/2008)
176 NOTICE by Tommy Armstrong, Daryal T Nelson re 172 Response to Motion, 175 Notice (Other), Notice (Other), Notice (Other), Notice (Other), Notice (Other), Notice (Other), Notice (Other), Notice (Other), Notice (Other), Notice (Other), Notice (Other), 170 Response in Opposition to Motion, 171 Response in Opposition to Motion, 173 Brief in Support, 174 Statement of Facts (Local Rule 56.1) (Attachments: # 1 Exhibit 2, # 2 Exhibit 3, # 3 Exhibit 5, # 4 Exhibit 6, # 5 Exhibit 7, # 6 Exhibit 8, # 7 Exhibit 9, # 8 Exhibit 10, # 9 Exhibit 11, # 10 Exhibit 12 − Part 1, # 11 Exhibit 12 − Part 2, # 12 Exhibit 13 − Part 1, # 13 Exhibit 13 − Part 2, # 14 Exhibit 14, # 15 Exhibit 20 − Part 1, # 16 Exhibit 20 − Part 2, # 17 Exhibit 20 − Part 3, # 18 Exhibit 20 − Part 4, # 19 Exhibit 23, # 20 Exhibit 32 − Part 1, # 21 Exhibit 32 − Part 2, # 22 Exhibit 32 − Part 3, # 23 Exhibit 32 − Part 4, # 24 Exhibit 32 − Part 5, # 25 Exhibit 32 − Part 6, # 26 Exhibit 32 − Part 7, # 27 Exhibit 32 − Part 8, # 28 Exhibit 33, # 29 Exhibit 34, # 30 Exhibit 35, # 31 Exhibit 36, # 32 Document 37, # 33 Exhibit 38, # 34 Document 39, # 35 Exhibit 40, # 36 Document 41 − Part 1, # 37 Exhibit 41 − Part 2, # 38 Document 42, # 39 Exhibit 43, # 40 Exhibit 44, # 41 Exhibit 45, # 42 Exhibit 46 − Part 1, # 43 Document 46 − Part 2, # 44 Exhibit 46 − Part 3, # 45 Exhibit 47, # 46 Document 48, # 47 Document 49, # 48 Document 50, # 49 Document 51, # 50 Document 52, # 51 Exhibit 53, # 52 Document 54, # 53 Exhibit 55, # 54 Exhibit 56, # 55 Exhibit 57, # 56 Document 58, # 57 Document 59, # 58 Document 61, # 59 Document 62, # 60 Document 63, # 61 Document 64, # 62 Document 65, # 63 Exhibit 66, # 64 Document 67, # 65 Exhibit 68, # 66 Exhibit 69, # 67 Exhibit 70, # 68 Exhibit 71, # 69 Exhibit 72, # 70 Exhibit 73, # 71 Exhibit 74, # 72 Document 75, # 73 Exhibit 76, # 74 Document 77, # 75 Document 78, # 76 Exhibit 79, # 77 Document 80, # 78 Exhibit 81, # 79 Document 82, # 80 Document 87, # 81 Exhibit 88, # 82 Document 89, # 83 Document 90, # 84 Exhibit 91, # 85 Document 92, # 86 Exhibit 93, # 87 Exhibit 106, # 88 Exhibit 107, # 89 Exhibit, # 90 Exhibit 111, # 91 Exhibit 112, # 92 Exhibit 115, # 93 Exhibit 119, # 94 Exhibit 121 − Part 1, # 95 Exhibit 121 − Part 2, # 96 Exhibit 122, # 97 Exhibit 123, # 98 Document 124, # 99 Exhibit 132, # 100 Document 133, # 101 Exhibit 135, # 102 Document 136, # 103 Exhibit 137, # 104 Exhibit 138, # 105 Exhibit 139, # 106 Exhibit 140, # 107 Document 141, # 108 Exhibit 142, # 109 Document 143, # 110 Exhibit 144)(Bates, Joseph) (Entered: 11/17/2008)
NOTICE OF DOCKET CORRECTION re: 175 Notice of Filing Exhibits. CORRECTION: The docket text was modified to indicate the document was filed in error (incomplete, duplicate docket entry). The party filed the correct document as docket entry 176 . (thd) (Entered: 11/17/2008)
178 SEALED DOCUMENT. (mkf) (Entered: 11/17/2008)
179 MOTION for Leave to File Consolidated Reply Brief to Plaintiffs' Responses to Motions for Summary Judgment against the Class and the Individual Plaintiffs, for Decertification, and to Strike Testimony of Plaintiffs' Experts by Wal−Mart Stores Inc (Attachments: # 1 Exhibit Proposed Reply Brief, # 2 Exhibit Exhibits attached

Case: 2:04-cv-171 As of:10/09/2010 02:22 PM CDT 18 of 22

11/26/2008
12/01/2008
12/01/2008 12/01/2008
12/18/2008 12/22/2008
12/22/2008
01/13/2009 01/13/2009 01/13/2009 01/15/2009 01/15/2009 01/27/2009 02/13/2009 02/13/2009

to Proposed Reply Brief)(Kaplan, Philip) (Entered: 11/25/2008)
180 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) ORDER granting 179 Defendants' Motion for Leave to File Reply. Accordingly, Defendants' reply, attached to the Motion as an Exhibit, must be filed by 5 p.m., Monday, December 1, 2008. Signed by Judge William R. Wilson, Jr on 11/26/08. (dmm) (Entered: 11/26/2008)
181 REPLY to Response to Motion re 179 MOTION for Leave to File Consolidated Reply Brief to Plaintiffs' Responses to Motions for Summary Judgment against the Class and the Individual Plaintiffs, for Decertification, and to Strike Testimony of Plaintiffs' Experts filed by Wal−Mart Stores Inc. (Attachments: # 1 Exhibit 1−13)(Kaplan, Philip) (Entered: 12/01/2008)
182 AMENDED FINAL SCHEDULING ORDER (DOC): Bench Trial set for 3/16/2009 at 1:00 PM in Little Rock Courtroom #4C before Judge William R. Wilson Jr.; Pretrial Disclosure Sheet due by 2/9/2009. (maj) (Entered: 12/01/2008)
183 STATEMENT OF FACTS (Local Rule 56.1) re 174 Statement of Facts (Local Rule 56.1) Defendants' Response to Plaintiffs' Statement of Disputed Facts and Reply to Plaintiffs' Response to Defendants' Statement of Undisputed Facts in support of Motions for Summary Judgment on Class and Individual Claims filed by Wal−Mart Stores Inc. (Kaplan, Philip) (Entered: 12/01/2008)
184 ORDER REFERRING CASE to Magistrate Judge Henry L. Jones, Jr. for Settlement Conference. Signed by Judge William R. Wilson, Jr on 12/18/08. (mkf) (Entered: 12/18/2008)
185 SCHEDULING ORDER (DOC) Settlement Conference set for 1/14/2009 09:00 AM in Little Rock Courtroom # 4B before Magistrate Judge Henry L. Jones Jr.; statement of issues due by 5:00 p.m. 1/7/09. (tjj) Modified on 12/22/2008 to correct date of conference (tjj). () (Additional attachment(s) added on 12/22/2008: ) # 1 Main Document − Correct) (thd). (Entered: 12/22/2008)
186 NOTICE OF DOCKET CORRECTION re: 185 Scheduling Order. CORRECTION: The original Order contained a typographical error in the date; the correct Order setting the settlement conference for 1/14/2009 was added to docket entry 185 . (Copy of correct order attached for service on the parties.) (thd) (Entered: 12/22/2008)
187 ORDER denying 164 Motion to Exclude the Testimony of Plaitiffs' Experts Bendick and Shapiro. Signed by Judge William R. Wilson, Jr on 1/13/09. (mkf) (Entered: 01/13/2009)
188 ORDER denying 152 Motion for Summary Judgment on Plaintiffs' Class Claims. Signed by Judge William R. Wilson, Jr on 1/13/09. (mkf) (Entered: 01/13/2009)
189 ORDER denying 150 Motion for Decertification. Signed by Judge William R. Wilson, Jr on 1/13/09. (mkf) (Entered: 01/13/2009)
190 SEALED MINUTE ORDER. (lej) (The document was removed from the docket and filed under seal on 1/15/2009 pursuant to instructions from Chambers.) (thd) (Entered: 01/15/2009)
NOTICE OF DOCKET CORRECTION re: 190 MINUTE ORDER. CORRECTION: The document was removed from the docket and filed under seal, pursuant to instructions from Chambers. (thd) (Entered: 01/15/2009)
192 ORDER denying without prejudice 151 Motion for Summary Judgment. Signed by Judge William R. Wilson, Jr on 1/27/09. (mkf) (Entered: 01/27/2009)
193 MOTION to Withdraw as Attorney by Cassandra P. LaFrance by Wal−Mart Stores Inc (LaFrance, Cassandra) (Entered: 02/13/2009)
194 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) ORDER granting 193 Defendants' Motion to Withdraw Counsel. Accordingly, Ms. Cassandra P. LaFrance is relieved as counsel. Signed by Judge William R. Wilson, Jr on 02/13/09. (dmm) (Entered: 02/13/2009)

Case: 2:04-cv-171 As of:10/09/2010 02:22 PM CDT 19 of 22

02/20/2009
02/20/2009
02/24/2009 02/25/2009
02/25/2009
03/03/2009 03/03/2009 03/05/2009 03/05/2009 04/06/2009
04/28/2009 05/27/2009 06/15/2009 06/15/2009

196 Unopposed MOTION to Certify Class Unopposed Motion of Plaintiffs for Certification of Class for Settlement Purposes, Approval of Notice, and Preliminary Approval of Settlement Agreement and Request for Fees and Expenses by Tommy Armstrong, Daryal T Nelson (Attachments: # 1 Exhibit No. 1)(Bates, Joseph) (Entered: 02/20/2009)
197 BRIEF IN SUPPORT filed by Tommy Armstrong, Daryal T Nelson re 196 Motion to Certify Class, Unopposed Motion of Plaintiffs for Certification of Class for Settlement Purposes, Approval of Notice, and Preliminary Approval of Settlement Agreement and Request for Fees and Expenses (Bates, Joseph) (Entered: 02/20/2009)
198 ORDER re General Order 54 authorizing certain electronics into the courtroom. Signed by Judge William R. Wilson, Jr on 2/24/09. (bkp) (Entered: 02/24/2009)
199 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) Minute Order for proceedings held before Judge William R. Wilson, Jr:Motion Hearing held on 2/25/2009 re: Unopposed Motion of Plaintiffs for Certification of Class for Settlement Purposes, Approval of Notice, and Preliminary Approval of Settlement Agreement and Request for Fees and Expenses filed by pltfs(doc #196); Preliminary Approval GRANTED; Order to be entered. (Court Reporter C. Newburg) (maj) (Entered: 02/25/2009)
200 PRELIMINARY APPROVAL ORDER granting 196 Unopposed MOTION to Certify Class Unopposed Motion of Plaintiffs for Certification of Class for Settlement Purposes, Approval of Notice, and Preliminary Approval of Settlement Agreement and Request for Fees and Expenses filed by Tommy Armstrong, Daryal T Nelson. Signed by Judge William R. Wilson, Jr on 2/25/09. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(bkp) (Entered: 02/25/2009)
201 Joint MOTION to Approve/Approval Parties' Settlement Agreement by Wal−Mart Stores Inc (Attachments: # 1 Exhibit)(Kaplan, Philip) (Entered: 03/03/2009)
202 BRIEF IN SUPPORT filed by Wal−Mart Stores Inc re 201 Motion to Approve/Approval Parties' Settlement Agreement (Kaplan, Philip) (Entered: 03/03/2009)
203 ORDER granting 201 Motion to Approve/Approval Parties' Settlement Agreement. Signed by Judge William R. Wilson, Jr on 3/5/09. (bkp) (Entered: 03/05/2009)
204 AMENDED PRELIMINARY APPROVAL ORDER re 203 Order on Motion to Approve/Approval. Signed by Judge William R. Wilson, Jr on 3/5/09. (Attachments: # 1 Document Settlement Agreement)(bkp) (Entered: 03/10/2009)
205 TRANSCRIPT of Motions Hearing Proceedings held on February 25, 2009, before Judge William R. Wilson Jr. Court Reporter Christa R. Newburg. Transcript may be viewed only at the public terminals in the Clerk's office. Copies of transcript are only available through the Official Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. DEADLINES: Notice of Intent to Request Redaction due 4/20/2009. Redaction Request due 4/27/2009. Redacted Transcript Deadline set for 5/7/2009. Release of Transcript Restriction set for 7/6/2009. (plm) (Entered: 04/06/2009)
206 LETTER ORDER to counsel. Signed by Judge William R. Wilson, Jr on 4/28/09. (Attachments: # 1 Document Letter)(bkp) (Entered: 04/28/2009)
207 NOTICE by Tommy Armstrong, Daryal T Nelson Notice of Change of Firm Name and Address (Bates, Joseph) (Entered: 05/27/2009)
208 MOTION to Join In and Objection by Ronny L Moore (bkp) (A redacted document was substituted as the main document on 6/15/2009, based on directions from Chambers.) (thd). (Entered: 06/15/2009)
209 NOTICE OF DOCKET CORRECTION re: 208 MOTION for Joinder. CORRECTION: A redacted copy of the document was substituted as the main document, based on instructions from Chambers. (Copy of redacted document attached hereto for review by the parties.) (thd) (Entered: 06/15/2009)

Case: 2:04-cv-171 As of:10/09/2010 02:22 PM CDT 20 of 22

06/17/2009 06/19/2009 06/23/2009
06/23/2009
06/23/2009
06/23/2009 06/24/2009 06/29/2009 06/29/2009 06/29/2009 06/29/2009 06/30/2009
06/30/2009
07/08/2009 07/09/2009 07/09/2009 07/09/2009

211 ORDER denying 208 "Motion to Joint−In and 'Objection,'" and directing plaintiffs' counsel to forward Mr. Moore's request to the Claims Administrator. Signed by Judge William R. Wilson, Jr on 6/17/09. (bkp) (Entered: 06/17/2009)
213 NOTICE by Daryal T Nelson of Filing of Letter to the Court (Attachments: # 1 Exhibit Letter)(Welch, Morgan) (Entered: 06/19/2009)
214 MOTION for Attorney Fees Class Counsel's Application for Award of Attorneys' Fees and Reimbursement of Expenses by Tommy Armstrong, Daryal T Nelson (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Bates, Joseph) (Entered: 06/23/2009)
215 BRIEF IN SUPPORT filed by Tommy Armstrong, Daryal T Nelson re 214 Motion for Attorney Fees Brief in Support of Class Counsels' Application for Award of Attorneys' Fees and Reimbursement of Expenses (Bates, Joseph) (Entered: 06/23/2009)
216 MOTION to Approve/Approval of Class Action Settlement by Daryal T Nelson (Attachments: # 1 Index of Exhibits, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2, # 4 Exhibit Exhibit 3, # 5 Exhibit Exhibit 4, # 6 Exhibit Exhibit 5, # 7 Exhibit Exhibit 6, # 8 Exhibit Exhibit 7, # 9 Exhibit Exhibit 8, # 10 Exhibit Exhibit 9, # 11 Exhibit Exhibit 10, # 12 Exhibit Exhibit 11, # 13 Exhibit Exhibit 12)(Welch, Morgan) (Entered: 06/23/2009)
217 BRIEF IN SUPPORT filed by Daryal T Nelson re 216 Motion to Approve/Approval, of Class Action Settlement (Welch, Morgan) (Entered: 06/23/2009)
218 NOTICE by Daryal T Nelson of Attorney's Lien by Rickey H. Hicks (Attachments: # 1 Exhibit Exhibit "A")(Hicks, Rickey) (Entered: 06/24/2009)
219 NOTICE of Appearance by Troy A. Price on behalf of Ricky H Hicks (Price, Troy) (Entered: 06/29/2009)
220 Mail Returned as Undeliverable. Mail sent to Ronny L. Moore re 209 Notice of Docket Correction (bkp) (Entered: 06/29/2009)
221 Mail Returned as Undeliverable. Mail sent to Ronny L. Moore re 211 Order on Motion for Joinder (bkp) (Entered: 06/29/2009)
222 MOTION for Issuance of General Order No. 54 by Daryal T Nelson (Welch, Morgan) (Entered: 06/29/2009)
223 ORDER granting 222 Motion for Issuance of Amended General Order No. 54; persons identified who will be permitted to bring electronic devices into the Courthouse for a Hearing on June 30, 2009. Signed by Judge William R. Wilson, Jr on 6/30/09. (mkf) (Entered: 06/30/2009)
225 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) Minute Order for proceedings held before Judge William R. Wilson, Jr:Final Approval of Settlement Hearing held on 6/30/2009; Order to be entered; Atty fee issue of Rickey Hicks argued; Pltfs brief due 7/9/2009 by noon; Response due 7/15/2009 by noon. (Court Reporter C. Newburg) (maj) (Entered: 06/30/2009)
226 FINAL ORDER OF APPROVAL AND DISMISSAL. Signed by Judge William R. Wilson, Jr on 7/8/09. Associated Cases: 2:04−cv−00171−WRW, 2:05−cv−00134−WRW(bkp) (Entered: 07/08/2009)
228 RESPONSE re 218 Notice (Other) of Attorney's Lien by Daryal T Nelson (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D)(Welch, Morgan) (Entered: 07/09/2009)
229 BRIEF IN SUPPORT filed by Daryal T Nelson re 228 Response (Non Motion) to Attorney's Lien (Welch, Morgan) (Entered: 07/09/2009)
230 Mail Returned as Undeliverable. Mail sent to Ronny L. Moore re 226 Order Dismissing Case, (bkp) (Entered: 07/10/2009)

Case: 2:04-cv-171 As of:10/09/2010 02:22 PM CDT 21 of 22

07/15/2009 07/16/2009 07/20/2009 07/23/2009 07/30/2009 07/30/2009
07/30/2009 07/30/2009 07/30/2009 08/06/2009 08/07/2009 08/10/2009 08/12/2009
09/28/2009
10/06/2009

231 BRIEF IN SUPPORT filed by Ricky H Hicks re 218 Notice (Other) re Attorney's Lien (Price, Troy) (Entered: 07/15/2009)
232 LETTER ORDER to counsel directing them to submit expected witnessses for an evidentiary hearing by 5 p.m. Monday, July 20, 2009. Signed by Judge William R. Wilson, Jr on 7/16/09. (bkp) (Entered: 07/16/2009)
233 NOTICE by Ricky H Hicks of Evidentiary Hearing Witness List (Price, Troy) (Entered: 07/20/2009)
234 NOTICE of Hearing: Evidentiary Hearing set for 7/30/2009 at 1:30 PM in Little Rock Courtroom #4C before Judge William R. Wilson Jr. (maj) (Entered: 07/23/2009)
235 MOTION for Consideration to Allow Electronic Devices by Tommy Armstrong, Daryal T Nelson (Welch, Morgan) (Entered: 07/30/2009)
236 ORDER Re: Amended General Order 54 granting 235 Motion to Allow Electronic Devices to be brought into the Courthouse by Morgan "Chip" Welch, Hank Bates, John W. Walker, Ashley Welch Hudson, Jeanne Gray and Joy Springer for a Hearing on Thursday, July 30, 2009 before Judge Wilson, subject to the rules set out in this Order. Signed by Judge William R. Wilson, Jr on 7/30/09. (mkf) (Entered: 07/30/2009)
237 MOTION for Order Regarding Electronic Devices by Wal−Mart Stores Inc (Muskheli, Michael) (Entered: 07/30/2009)
238 ORDER Re: General Order 54 granting 237 Defendants' Motion to Allow electronic devices to be brought into the Courthouse for the Hearing on July 30, 2009. Signed by Judge William R. Wilson, Jr on 7/30/09. (mkf) (Entered: 07/30/2009)
239 Minute Order for proceedings held before Judge William R. Wilson, Jr: Evidentiary Hearing held on 7/30/2009; Testimony presented; Parties rest; Closing srguments; Movant has until 8/6/09 to submit any further cases; Pltf has until 8/12/09 to respond. (Court Reporter C. Newburg) (maj) (Entered: 07/30/2009)
240 MEMORANDUM of points and authorities re 231 Brief in Support filed by Ricky H Hicks. (Price, Troy) (Entered: 08/06/2009)
241 RESPONSE re 240 Memorandum of Points and Authorities by Tommy Armstrong, Daryal T Nelson (Welch, Morgan) (Entered: 08/07/2009)
242 NOTICE by Ricky H Hicks re 218 Notice (Other) of Withdrawal (Price, Troy) (Entered: 08/10/2009)
243 ORDER re 216 MOTION to Approve/Approval of Class Action Settlement filed by Daryal T Nelson: Class counsel are hereby awarded attorneys' fees in the amount of one−third of the Settlement Fund, and $405,213.16 in reimbursement of expenses. Signed by Judge William R. Wilson, Jr on 8/12/09. (bkp) (Entered: 08/12/2009)
244 TRANSCRIPT of Final Approval Hearing Proceedings held on June 30, 2009, before Judge William R. Wilson Jr. Court Reporter Christa R. Newburg. Transcript may be viewed only at the public terminals in the Clerk's office. Copies of transcript are only available through the Official Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. DEADLINES: Notice of Intent to Request Redaction due 10/13/2009. Redaction Request due 10/19/2009. Redacted Transcript Deadline set for 10/29/2009. Release of Transcript Restriction set for 12/28/2009. (plm) (Entered: 09/28/2009)
245 TRANSCRIPT of Motions Proceedings held on July 30, 2009, before Judge William R. Wilson Jr. Court Reporter Christa R. Newburg. Transcript may be viewed only at the public terminals in the Clerk's office. Copies of transcript are only available through the Official Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. DEADLINES: Notice of Intent to Request Redaction due 10/19/2009. Redaction Request due 10/27/2009. Redacted Transcript Deadline set for 11/6/2009. Release

Case: 2:04-cv-171 As of:10/09/2010 02:22 PM CDT 22 of 22

12/02/2009 12/02/2009 12/02/2009
12/18/2009 03/18/2010 03/22/2010
03/23/2010 04/02/2010 04/09/2010 04/15/2010 05/03/2010 05/10/2010
05/13/2010 05/24/2010 05/25/2010 07/01/2010

of Transcript Restriction set for 1/4/2010. (plm) (Entered: 10/06/2009)
246 MOTION for Settlement Authorizing Distribution by Tommy Armstrong (Bates, Joseph) (Entered: 12/02/2009)
247 BRIEF IN SUPPORT filed by Tommy Armstrong re 246 Motion for Settlement Authorizing Distribution (Bates, Joseph) (Entered: 12/02/2009)
248 DECLARATION Supplemental of Brendan S. McInerney by Tommy Armstrong. (Attachments: # 1 Exhibit A−I to Supplemental Declaration)(Bates, Joseph) (Entered: 12/02/2009)
249 ORDER Authorizing the Distribution of the Settlement Fund 246 . Signed by Judge William R. Wilson, Jr on 12/18/09. (bkp) (Entered: 12/18/2009)
250 NOTICE OF APPEAL as to 211 Order on Motion for Joinder by Ronny L Moore. (copy mailed) (dac) (Entered: 03/22/2010)
251 NOTIFICATION OF APPEAL and NOA SUPPLEMENT as to 250 Notice of Appeal, 211 Order on Motion for Joinder by Ronny L Moore. (dac) (Entered: 03/22/2010)
252 USCA Docketing Letter as to 250 Notice of Appeal filed by Ronny L Moore. USCA Case Number 10−1651 (dac) (Entered: 03/23/2010)
253 MOTION for Leave to Appeal in forma pauperis by Ronny L Moore (copy mailed) (dac) (Entered: 04/07/2010)
254 AFFIDAVIT re 253 MOTION for Leave to Appeal in forma pauperis by Ronny L Moore. (copy mailed) (dac) (Entered: 04/14/2010)
255 ORDER granting 253 Motion for Leave to Appeal in forma pauperis. Signed by Judge William R. Wilson, Jr on 4/15/10. (dac) (Entered: 04/15/2010)
257 MOTION for Copies of Transcripts and Docket Sheet by Ronny L Moore (copy mailed) (dac) (Entered: 05/03/2010)
258 ORDER granting in part and denying in part 257 Motion for Copies. Request for a copy of the transcript is denied. Clerk is directed to mail a copy of the docket to petitioner. Signed by Judge William R. Wilson, Jr on 5/10/10. (dac) (Entered: 05/10/2010)
260 USCA JUDGMENT as to 250 Notice of Appeal filed by Ronny L Moore is dismissed for lack of jurisdiction (dac) (Entered: 05/13/2010)
261 REQUEST for Review and MOTION to Extend Time by Ronny L Moore (copy mailed) (dac) (Entered: 05/24/2010)
262 ORDER denying 261 Motion to Extend Time. Signed by Judge William R. Wilson, Jr on 5/25/10. (bkp) (Entered: 05/25/2010)
263 MANDATE of USCA in accordance with the judgment of 5/13/2010 as to 250 Notice of Appeal filed by Ronny L Moore. (cby) (Entered: 07/01/2010)