Case 2:07-cv-00394-LSC Document 3 Filed 07/17/07 Page 1 of 15
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

FILED
2007 Jul-17 PM 03:22 U.S. DISTRICT COURT
N.D. OF ALABAMA

MARION WATERS and CHRISTAN

)

DANIEL DOTSON,

)

)

Plaintiffs, )

)

v,

)

)

COOK'S PEST CONTROL,

)

INC.

)

)

Defendant. )

JURY DEMAND
CIVIL ACTION NO, CV-07-394 - Coogler

FIRST AMENDED CLASS ACTION COMPLAINT

COMES NOW the Plaintiffs, Marion Waters and Christan Daniel Dodson, named in the

above-styled cause, and file this first amended complaint as follows:

I. JURISDICTION

1. Plaintiff Marion Waters is an individual, and resided within the Northern District

of Alabama at the time of his application for employment with Defendant (hereinafter referred to

individually as Plaintiff Waters),

2.

PlaintiffChristan Dotson is an individual and resides at 1616 Five Acre Road,

Dolomite. Alabama. 35061 (hereinafter referred to individually as Plaintiff Dotson).

2. The Defendant, Cook's Pest Control, Inc. (hereinafter "Defendant" or "Cook's"),

IS an Alabama registered corporation with its principal place of business in the Northern District

of Alabama with its headquarters at 1741 Fifth Avenue S.E., Decatur, Alabama 35602.

3. This is an action for declaratory relief, monetary damages, and other appropriate

legal and equitable relief to redress the deprivation of rights secured to the Plaintiffs, and the

members of the class that he seeks to represent, by Title VII of the Civil Rights Act of 1964, 42

Case 2:07-cv-00394-LSC Document 3 Filed 07/17/07 Page 2 of 15
U.s.c. §2000e, el seq., (hereinafter "Title VW), and 42 U.S.c. § 1981, as amended by the Civil Rights Act of 1991 (hereinafter "§ 1981 "), which seek to prevent discrimination based on race in the making and enforcement of contracts, including contracts of employment, on the basis of membership in a racial category referred to herein as African-Americans.
4. Venue for this action properly lies in this Court because the statutory violations committed against the Plaintiffs, and made the basis of their suit, were committed within the Northern Division of the Northern District of Alabama.
5. In or around June and/or July 2006, Plaintiffs completed job applications and took pen and paper pre-employment screening tests at Cook's Birmingham North District Office (Lakeshore Parkway). Plaintiffs Waters and Dotson applied for any position at any Cook's location.
6. Plaintiffs were not offered employment. 7. Plaintiffs applied for jobs companywide. 8. Plaintiffs Waters fulfilled all administrative prerequisites to filing this complaint. Within 180 days of the last act of complained of discrimination, Plaintiff Waters filed a Charge of Discrimination with the Equal Employment Opportunity Commission (hereinafter "EEOC") in its Atlanta District Office where Waters was then residing. A copy of Plaintiff Waters' Notice of Right to Sue is attached hereto as Exhibit "A." This complaint is filed within 90 days of receipt of the Notice of Right to Sue and, therefore, is timely. Plaintiff Dodson's complaint is timely under "piggyback" principles. 9. Title VII recognizes a cause of action for adverse impact and disparate treatment discrimination. 10. Section 1981 recognizes causes of action for disparate treatment discrimination.
2

Case 2:07-cv-00394-LSC Document 3 Filed 07/17/07 Page 3 of 15 11. Plaintiffs did not sign any valid or enforceable mandatory arbitration agreement. 12. This Court has federal question jurisdiction over this dispute. which is alleged to arise under a federal statute. 13. The Court has in personam jurisdiction over the pm1ies to this action.
[Remainder of Page Blank]
3

Case 2:07-cv-00394-LSC Document 3 Filed 07/17/07 Page 4 of 15
II. CLASS ALLEGATIONS 14. Plaintiffs bring this action pursuant to Rule 23(a) and (b) (2) of the Federal Rules ofCivil Procedure. on their own behalf and on behalf of all other persons similarly situated. The members of the class are in excess of the numerosity requirement for a class action. The class is composed of: Plaintiffs and all African-American applicants for employment for jobs. or who may become applicants for jobs. or who were discouraged from applying for jobs. for the period two years preceding the date of the filing of this complaint to the date of class certification. excluding all judicial officers or employees of the Federal courts within the second degree of affinity; employees of Plaintiffs' counsel; and any other person whose presence in the class would cause mandatory recusal of any judge assigned to the case. 15. Plaintiffs' attorneys are qualified and generally able. with extensive experience in race discrimination law. test validation. validation of selection criteria. disparate impact cases. and complex class actions. For these reasons. the Plaintiffs will fairly and adequately protect the interests of the class in this action for claims of monetary liability. declaratory and injunctive relief. Their claims are typical of the claims of the other members of the class. 16. The questions of law common to the above described class are whether or not the Defendant discriminated against African-Americans as a class, by depriving the members of the class of civil rights secured to them by the laws of the United States. by denying them terms. conditions, and privileges of employment. including wages, benefits. training opportunities, and other beneficial working conditions granted to similarly and/or less qualified non-AfricanAmerican applicants because of their race, in violation of Title VII and § 1981. 17. The Defendant has acted or refused to act. on grounds generally applicable to the class. thereby making appropriate injunctive relief with respect to the class as a whole.
4

Case 2:07-cv-00394-LSC Document 3 Filed 07/17/07 Page 5 of 15
III. BACKGROUND FACTS 18. Plaintiffs have been denied employment despite being qualified for the positions for which they applied due to intentional disparate treatment and/or application of facially neutral selection criteria which have an impermissible and unjustified impact upon AfricanAmericans. 19. Plaintiffs contend that they were qualified to perform the duties of many positions within the company. including supervisory or managerial positions but were not hired and that less qualified persons of other races were placed in the positions. 20. Plaintiffs allege that they were not considered for jobs. although they were more qualified and had all educational and experiential qualifications that were reasonably related to success in the jobs for which application was made. 21. Plaintiffs are informed and believe and thereon allege that the Defendant maintained a pattern and practice of discrimination in employment on the basis of race. As a part of that pattern and practice. the Defendant:
(al Discourages applications by African-Americans by telling callers with a dialect or diction which may indicate they are African-Americans. or persons who apply in person. that there are no jobs available. the effect of which is to taint the applicant pool data. Plaintiffs were discouraged from making an application for employment;
(b) Discourages applications by African-Americans by stating that applications for jobs must be placed on file at every office for which employment could be sought when there is no justification for the practice that has a racially disparate impact on African-Americans who tend to be less able financially to afford to travel to offices across multiple states to make applications at dozens of branches. Cook's accepts applications online
5

Case 2:07-cv-00394-LSC Document 3 Filed 07/17/07 Page 6 of 15
through its web page which indicates that application in person at each of its locations has no business justification;
(c) Discourages applications from African-Americans by usmg only nonAfrican-Americans in its print and television advertising, or uses few blacks in such advertisements of the companies services, which indicates to the pool pfpotential applicants that Cook's is not interested in making race-neutral employment decisions;
(d) Fails to employ or promote African-Americans into management positions, which signals African-Americans that Cook's does not make race-neutral employment decisions even when it hires the occasional African-American employee in a low level job;
(e) Designates race on employment applications so as to afford decsionmakers the opportunity to take race into consideration when weeding out applications;
(f) Staffs offices in which applications are submitted with white workers to discourage applications from African-Americans;
(g) Discourages African-Americans from applying by announcing to them that an algebra, geometry and math test is required of applicants;
(h) Uses a "good old boy," "word of mouth," or "tap on the shoulder" system of recruitment, hiring, and promotion;
(i) Uses, or purports to use, a pen and paper test of algebra, geometry and math skills as a selection criteria that has a racially disparate impact on African-Americans in violation of the 4/5(h,s rule and which has not been validated using any method recognized under the EEOC Guidelines for validation of selection criteria;
(j) Utilizes a cut-score on screening tests, which has not been demonstrated to validly predict success in the jobs for which it is used;
6

Case 2:07-cv-00394-LSC Document 3 Filed 07/17/07 Page 7 of 15
(k) Fails to inform applicants that jobs in which simple algebra, geometry and math will be used to perform the essential functions will be taught utilizing a training program or the use of simplified worksheets for calculating such things as chemical mixing and application, or that it is unnecessary due to the use of regulated "flow-meters" on modern pest control equipment; and,
(I) Uses an overall system of subjective selection criteria. 22. Plaintiffs aver that Cook's high levelmanagcment is exclusively Caucasian. 23. Plaintiffs aver that Cook's uses mandatory binding arbitration clauses for employees to discourage African-Americans from collectively challenging racially discriminatory employment practices because of the prohibitively expensive cost of arbitration of class action and individual claims. 24. Plaintiffs avers because they are African-American, they were denied an employment contract with Defendant.
COUNT I PATTERN AND PRACTICE DISPARATE TREATMENT 25. Comes now the Plaintiffs and reallege each and every material and factual allegation of paragraphs 1 through 24 of Plaintiffs' complaint as though the same were fully set forth here, and Plaintiffs further aver that the action of the Defendant constituted disparate treatment against the Plaintiffs in terms, conditions, and privileges of employment because of race, in violation of Title VII, and § 1981, and Plaintiffs aver that the Defendant's illegal practices were intentional, willful, wanton, and done with reckless disregard for the Plaintiffs' federally protected civil rights.
7

Case 2:07-cv-00394-LSC Document 3 Filed 07/17/07 Page 8 of 15
26. Plaintiffs alleges that as a proximate result of the statutory violations by Defendant, they are now suffering and will continue to suffer material damages and economic losses, mental anguish and emotional distress, and other damages as a result of the discriminatory practices of the Defendant unless and until this Court grants relief.
COUNT II DISPARATE IMPACT DISCRIMINATION 27. Comes now the Plaintiffs and reallege each and every material and factual allegation of paragraphs 1 through 26 of Plaintiffs' complaint as though the same were fully set forth here, and Plaintiffs further aver that the action of the Defendant constituted illegal disparate impact discrimination in violation of Title VIII. 28. Plaintiffs alleges that as a proximate result of the statutory violations by Defendant, they are now suffering, and will continue to suffer, material damages and economic losses, mental anguish and emotional distress, and other damages as a result of the discriminatory practices of the Defendant unless and until this Court grants relief. WHEREFORE, Plaintiffs pray and respectfully request that this Court: 29. Rule that this matter is properly maintained as a class action; 30. Issue a judgment declaring that the Defendant violated the rights afforded the Plaintiffs and the members of the class he seeks to represent, pursuant to Title VII and § 1981; 31. Award Plaintiffs and the class they seek to represent compensation incidental to the injunctive relief requested herein for loss of wages and benefits of employment; 32. Award Plaintiffs and members of the class compensatory damages for economic injuries and losses actually suffered as a result of the Defendant's violations offederallaw;
8

Case 2:07-cv-00394-LSC Document 3 Filed 07/17/07 Page 9 of 15

33. Award Plaintiffs, and the members of the class they seek to represent,

compensatory damages for the emotional stress suffered as a result of the action of Defendant;

34. Enter a judgment against the Defendant for such punitive damages as will

properly punish the Defendant for the illegal employment practices as alleged herein and in an

amount that will serve as a deterrent to the Defendant and others from engaging in similar

conduct in the future;

35. Issue a permanent injunction:

(a) Requiring Defendant to abolish race discrimination throughout its

organization, including all departments and branches, by means of a plan by giving preference to

members of the class identified herein in hiring, promotion and other terms and conditions of

employment, until such time as the Court determines that all vestiges of discrimination against

African-Americans have been abolished and eradicated;

(b) Requiring Defendant to accord African-Americans who were not hired but

should have been hired absent the discriminatory practices back pay and front pay (until time of

instatement) which would have been commensurate with their wages/salaries, merit increases,

responsibilities, and assignments commensurate with their positions; (c) Requiring Defendant to refrain from using subjective selection criteria and

non-validated selection criteria for hiring, promotion, and assigning employees that have a

detrimental adverse impact on African-Americans and which are not validated pursuant to 29

C.F.R. 1607; (d)

Requiring Defendant to institute training programs in the management,

administrative and professional areas which are designed to compensate for the lost training

opportunities and experiences which Plaintiffs and class members would have acquired had they

9

Case 2:07-cv-00394-LSC Document 3 Filed 07/17/07 Page 10 of 15
earlier been assigned to positions predominately held by persons of races other than AfricanAmerican, and to give newly hired or instated African-Americans the background they will need to compete effectively with persons of other races now occupying such positions; and,
(e) Requiring Defendant to prepare and publish descriptions and titles for all job positions, specifying for each the criteria for hiring and placement, the salary and the responsibilities for the job.
36. Plaintiffs avers that as a direct and/or proximate result of the Defendant's violation of Plaintiffs' federally protected rights, Plaintiffs lost employment wages, benefits, and other accrued emoluments of employment, for which he is entitled to an award of equitable remedies, monetary damages for lost wages, benefits, consequential, and liquidated damages against the Defendant: and Plaintiffs fm1her avers that he is entitled to instatement to employment and/or front pay from the Defendant.
37. Award the Plaintiffs, and members of the class he seeks to represent, such other and further relief as the Com1 deems necessary and proper.
39. Award the Plaintiffs, and members of the class he seeks to represent, reasonable attorneys' fees and the cost of this action as provided for under Title VII and § 1981 or other applicable statutes. PLAINTIFFS DEMAND A TRIAL BY JURY ON ALL ISSUES TRIABLE TO A JURY.
Respectfully Submitted,

Of Counsel:
CAMPBELL • LAW
A PROFESSION A,L CORPORATIO~
Complex and Class Litigation Concourse at Riverchase

Thorn

10

Case 2:07-cv-00394-LSC Document 3 Filed 07/17/07 Page 11 of 15
100 Concourse Parkway, Suite 115 Birmingham, AL 35244 0: 205-397-0307 F: 205-397-0307 C: 205-567-6490 E-mail: tcampbel!(d.campbelllitigation.com Ala. Bar No. ASB-5900-M60T Attorney Code CAM036
Samuel Mark Hill The Law Offices of Sam HilL L.L.c. 2117 Magnolia Ave. South, Suite 100 Birmingham, AL 35205-2808 0: 205-250-7776 F: 205-250-7675 E-mail: Sam0.samhilllaw.com Ala. State Bar No. ASB-8820-H465 Attorney Code HIL025
Samuel Fisher Wiggins, Childs, Quinn & Pantazis, LLC The Kress Building 301 19th Street North Birmingham, AL 35203 0: 205-314-0500 F: 205-254-1500 Email: sf@wcpg.com
Defendants to be served via HAND DELIVERY
Cook's Pest Control, Inc. c/o James Aycock 1741 Fifth Avenue, S.E. Decatur, Alabama 35602
11

Case 2:07-cv-00394-LSC Document 3 Filed 07/17/07 Page 12 of 15
EXHIBIT A

Case 2:07-cv-00394-LSC Document 3 Filed 07/17/07 Page 13 of 15

""

<,,!,j'

----c.,-c---,:c-c-- - - M3rlor: Waters 2619 Ha!lg;::m POInte
RIYCrd;:,.lc, GA 30296

U.S. EQUAL EMPLOYMENT QpPORTUNlTY COMM!SSION
---------,,-------
NOTICE OF RIGHT TO SUE (ISSUED ON RfC!UEST;

r-rCf"

At!anta District Office 41u 100- Alilbilm.a Street. SV'; Suite 4R30 AU;xnta, GA 30303

nil /:t'ln!1 nf l';U',I.;ili~1 ar;.f)"I;"/J'_ ,,~II(l\!· d',!J/dv jr
CC'J;':;!XJ-,rTlA; ()', ;:rr : IIA!" 'I',!
---------------- --
:::E',J{' Hl:;.;re~C,:'l,jllv\.:

- 410-2007-00675 - -

Daniel Nance,

- - - -Inves -- t1gator -------------

(404) 562-_68_6_5____

(51'(' di:;u the llcidl(Jonaf Ifdr:/TIJ'-1110n Gn;:lc;.'.~d WI:!' III;~ 10m;)

NOTice TO Tile Pfri:SON AGGHIEVE!}
Tttle.- VII of tlH' Clvli RJgh:~, Act of 1984 ~nd!or the ':\rncrrcan;-, with DI<;.."\billtlc~ Act (ADA), Trw: I' V:)l~' \J0 1:_l'::.' I<nil: k : ~" ..,~-,,-~ ,:n:,,_'r 'j _tic .!i .II,d,c:' :"\; ACf--.. t,,;;,cc :;ri lh- ,,:J;:;v>;;- ;,ur'd.:(·~c::: ct)argc I', 11~\~' bror:n 1,"~,H;d ul vOU1 rr:quu!:>t Y(.)\J[ IiWJ:",dilt ',nd(:,r TIIII: VII [jf Ih0 AD/\ must b(; fllod in £I frdcrJI or state court WITrjJN 90 DAYS of your receipt of thl'~> notice or yO,J[ rlqh 1 Ic ',[j(: b~~~t:C .il, Ii:,~ d1nrgc will be jo~t (lIlt: \J[TlP i'rnd 101 [;11110 <;~Iit b:->sed on ;) ~;t;J\(; cLGlm m:.ly br, dl((erell! )

D
[KJ

MorC' Ih,ln 180 day:, k.lvC' pn~,r,r.d '...J'lCl: the rlhng of this. ChM!J'~
U~f,!", tt1<4n 1hO a.jy:.ll;)'V~ r~'lt.~{J(1 c.lnct.: tho filing of thl:;' cl1.:1rql:, but) mwe df~!('(jT1lncd tl"l.Jt it 10. unllkr,ly Ihol PIC EFOC v.lIIJ
br ,')bil;;!O ,:omp'eh.: I\S. Ddm'n!:,\ldhvc' prlJC'.esslng within 180 d(jy~ from the f1hnO of 1hts (:h3r90

lhr E[OC' WI)' contlnuf' iO procc~L,I\W"> chnrqe

Ag~ Discrimination !!"\ Employment Act (ADEA), You nlClY ;~ut: under the A.f)r A ;)\ .3.!'\y lime irom GO dRy~ Dltc.:l th(: chorgr: W~l~< fliCd until 90 d,gys ;)f1er you H:CCWr: nol,e\:" Ihrlt We: hJV(' com["llcted CtChon on the Ch,Jrgf: in tll!~- rl!qJ(J. the pi!ragraph marked below applic9 to

your case.
I I

,he r::EOC I":. C!C'",I'lq YO,lf c;:)sr TI\(.:rcforc, your IclW~\IIt under the M)l:A must be filod in fNlernl or st;~tp court WITHIN 90 DAYB of your receipt of thu> Notice OthCnt/lSe your 'Ight to sue bosed on \lw ;:Jbovu- numbcred ch21r~l-':' \I.,,:j h~lo~

D

11),_ 1 I'DC ;:.; cont1'11 Jlf)(l I!~; I)~!nd'ino 01 VOLl( ADr' A C~3~,c; IIC'lwt'vel If BG d:ly~, hON'~ p.1Rr,cd o.;ln(,t,; tlK ~(iln? c,i \h' (1,;nQc

you f'\:1y flie: ~Uil Hl leoet:); 0/ ~tL,ll' CCJlll1 undc'l the; t\Dt-..A. dl thf; time

Equal Pay Act (EPA) You aTClIGY h;.lVt.:- the IIglll10 ~ue untir'>.' the EPA (filing 3n EEOC thi.llgc 1S nol rr>quJwd) EP/, <;1!lt~. 'nu~1 bp. hrouqhl In tcc!(;r~l Of !,latt' CO Jri v/lthll1 2 ycms 1.:1 yedf::' 10( Wri((u! v,olnhons) af !he cl!!nged EPA Llndorp!.Iyment 1 !w; mt::2ns thot bllckpay dw· for any vIolations tho)! occurred morC' than 2 '1p.~~nill before you frio 'Suit may not be coHectrblo
\ :f you file SlIl\ b(;scc on Itl]::' Ci)8fgC r'~;\:.f::' r>lir,;J r.:;pv fl )our court ccrnpllinl to ttilS ofk:r
,

I·· nc!o!:.\ure'--,(::\

On btJh::ll~4~Omml~_Slon

~~ t~~

/

~f--~'~~-~~-~~~
Bernice Williams-Kimbrough,

"--

Director

NOV 3 0 ZOOO
(ii,,/{1 M}lJlorf)

cc

eml MODIn, Humnn kL'50vrC('$ M.J "gel'

Joe R Wha\l{!),. E~q

Case 2:07-cv-00394-LSC Document 3 Filed 07/17/07 Page 14 of 15

~",

W,I , ! ;.:::.,(

''"r'''- 1'1 i' i")I,'

INFORMATION RELATED TO HLiNG SUIT UNDER THE LAWS ENFORCED BY THE EEOC

: It)!,:, mfGrmd!J()I; (':'Idlr: r , to (111m] .<:;ul( In Feder,1i 01 Staff) COul; ~I(f(:r Fedc[.di fA'/.' If you a/su p/,'JtI 10 sur; r:/rJtn/!1l9 v!olatlons of Stotc low, pfO.1.<:;(' bo <.IWfJr& {i}{)t limo "mtf~ (i/;[j OUJU
f)IOVISIOm., 01 Sidle 1<1',1\1 may t)e sllOf1er or fltOr& lunlted thtH! thoso (Josef/be() bU/(JI)/ )

PR1VATE SUIT RIGHTS

Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA), or the Age Discrimination in Employment Act (ADEA):

lfl order lo pursue thiS mattv il;rtnci ~Gll n:us t fli£.. ~) laWSUIt clg~.jPlsl the: rc~pDndc:nt(s) numeo in \GE chargc::: wlthm 90 davs of the date you rocoive thts Notice T))ercdore Y0l; sl"\oulc keep a record of this date GriCE \~IS ~)'J­
d8y penod JS ovN your (j9l-)llo s,;e bElsr:C on Ii~e Ch(}fCl8 rekrred to ri: thIS Notice wd: he lost Ii you l'y\c:nCJ tu
car5ult at"'! CJ\lof:JC:y you shuulc dCl sc promptly Give your attorney a r.opy of thIS NotIce, Clnd \\5 envelLlpc and tell hlln or h(Jf the d.Jil.: YOll ((;CBlv0G ,t ~ urthcrrr:orc ,r' ordl::.r t'J ElV01CJ any question 1hat yO:l dld nc~ act Ir, ;] tJrrlf:~iY m(p"',!"I(;r )t IS prUder:~ lh;:.ll 1,'0,.' ,,>u;1 l:c: i!lcd wl'thin 90 days of the date thiS Nottce WJS mOli/od to you ,as
. ....;C:::.1CCI'." "'t;'\" ~~::',::,-'~ :'::;"',,~~ Y;'-, J!tc r:/t;l'-'GC-,t"l'd" ,i'-/e'

Your IGiwsult r1~y be flI(,(j In US CIS\f!C\ CCL1!"t or a St8te COJn of cO'llpplenl JunsdlcLon (USlJr.I!iy thvapOfopriJtc S!3to cOLIn is th:: qeneral CIVil trl8' court) Whetncr you hie ~n r cdcml or State Cou(1 IS Ci matter for you t~) t1eClde after \r.dklntJ tc your JitlAileY FIL:1g thl~ ~JO!ICr: fS not t:nougt', You ITlU5 f file 2 "comp!r3lnt" tnat ContdlnS 8 srlort statement of the f~cts 0; yew case w)"lich shows thd! you are entrtle(j to fcHef Your SU:: m3Y 'nc!Jd£; ar,,! matlc.:1
alleged In the charge 0' to tr,c extent po,r":i1tteo by court declslonb matters like or reialcd to the rnalter~~ <"lllegcd n !he ch3rgc G(~~eml!y SUits Jre brouCjl)t Ifl the State where the alleged unlawfui practice occurred but In sorrle
Cases C8n bE: brough! where relev8nl 0mployrne nt reCords aft· kept wlterc; the employrn81t would r,()Ve beer,. or
whon.-: the respondent lldS Its mt.H"; otflC(:; If you r13VC: Simple questions you usu811y can get ans\,Jer·s fron, the
office ot the clerk of tilt-: court w~erE YOli 'J.re br'nglng Sl11t but do not cxoect thot office to vmte your complain! or
rn;'3Ke legal stratogy deCISlont, for you

PRIVATE SUIT RIGHTS

Equal Pay Act (EPA):

F..PA ~UltS. must be flied in cour: within? years (3 years for Willful ViolationS) of the 8l\eged EPA underpaymCllt back
pay duo for V~(/lat!Or~ that OCGurrr~d more than 2 years (3 years} before you file SUIt may not bE: collectible r- or
example, d' you were undc(p~1Ia under tne EPA. for work performed from 7/1/00 to 1211100 you ShOUld flle SUit
before 7/1102·· not 12!1/02 .. If! order to r8cover unpGld waae~ due for July 2000 Thls lime 11m!! (or filinG an EPA SUit IS separate from the 90¥day filing penod under Title VII ...\l~e ADA or the ADFA referred to abOve Th~refore If
you also pinn to sue under Tlth: VII the r-..OP. or the ADEA In additIon to sUing or thr,:: FPA ciC:l1m SUI! must be filed Within 90 days. of ttllS Notice and wJlhtn thE 2- or 3-year FPA buck pay recovery per,od

ATTORNEY REPRESENTM!ON

Title VII and the ADA:

If you cannot oHara or ';('lV!? been lJfl8DI8 to obtr:lln 2 kiWyer III represent you :t'tl; U So O\slnct Couft ji31,r~n9 Jlmsdlctl0(, m YOll r c;:~s.e may If) Ilml~cd nrcurnslClnti?S. 8SS1St you In Obtaining 3 lawyer Requests for such aSslst3nce mllst be
m8dc to the US Dlstflct COl. 1\ In the form ;;H)d manner It requires (you should be prepan;:{j to explt.:lln ,n detail your t"fforts to rctJln 3n Cltto:'nBYJ ReQuests s-I,ould be mnde we!! lil~forc the end of the gO·dDY penOd mer;tlonc·d alY::)vc: because &uCh requl:~;ls do n,oj re!IAve YOl: of UK: rcqwremcnt to bnnq ;:'\)It wllhtn 90 dCJys

ATTORNEY REFERRAL AND EEOC ASSISTANCE

All Statutes:

You may conlnct the: [EOC rcp'r;;'~('n\.Jt1ve shovm on your No\!ce I( you n8ed help In flnd:ng a I()wyer or II you hSVl. ~ny questlon~ <:H)ou\ YOUI legi'll rHJhts, including adVice: on which II S District Court Cdn hear YOJf case If yc~: rv~'(-:,d tG In::.pect or obtclln ;1 copy of mformatlon Itl t:EOC'~, file on the CilcHgC, please request rt promptly In Wr\[lrg El'lU provJdr:
your cnmqc number (~~ s.llown 0(1 your NottC~~) VVhlie: EEOC destroys chmge files nH()( ,,) cert,;)trl time, ali O){Jrge file:::; .• ' <-- -' 1•. __ • r~ ___ "H,,· '"'(+~, .-.,,, I~,,,,j 'Jrt,,-.,.., ('\r\ thf" r-,'-:.,(... ThN!"!ore It vou fife SUit cmd want to review ~hc ci13rge

Case 2:07-cv-00394-LSC Document 3 Filed 07/17/07 Page 15 of 15
HIBIT A

 
 Case 2:07-cv-00394-LSC Document 25 Filed 01/28/08 Page 1 of 5

FILED
2008 Jan-28 PM 02:05 U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

MARION WATERS, et al., Plaintiffs, vs.
COOK'S PEST CONTROL, INC., Defendant.

] ] ] ] ] 2:07-CV-00394-LSC ] ] ] ]

MEMORANDUM OF OPINION AND ORDER

I. Introduction.

The Court has for consideration Defendant’s Motion to Dismiss

Plaintiff’s Original Complaint (Doc. 8) and Motion to Dismiss Plaintiff’s Title

VII Claims in First Amended Complaint (Doc. 10); both motions were filed on

August 8, 2007. On September 10, 2007, Defendant refiled its Motion to

Dismiss Plaintiff’s Original Complaint as a procedural precaution. (Doc. 19.)

Because the Court had not ruled on Defendant’s first motion to dismiss the

original complaint, Defendant’s refiled motion is redundant and for the

Court’s purposes, will be considered MOOT. The initial motions to dismiss

have been briefed by both parties and are ripe for decision. Upon full

Page 1 of 5

Case 2:07-cv-00394-LSC Document 25 Filed 01/28/08 Page 2 of 5
consideration of the arguments submitted, Defendant’s motions to dismiss are DENIED. II. Background.
Plaintiff Marion Waters (“Waters”) initiated this action against the defendant, Cook’s Pest Control, Inc., on February 28, 2007. His complaint (“Original Complaint”) included class allegations under Title VII of the Civil Rights Act of 1964, 20 U.S.C. § 2000(e), et seq. (“Title VII”), and 42 U.S.C. § 1981 (“§ 1981”). (Doc. 1.) On July 11, 2007, this Court entered an Order requiring the plaintiff to show cause within eleven (11) days why his case should not be dismissed for failure to perfect service of process. (Doc. 2.) On July 17, 2007, an Amended Complaint nearly identical to the Original Complaint was filed with the Court, except the Amended Complaint added a new plaintiff: Christian Daniel Dotson. (Doc. 3.) The Amended Complaint was served on the defendant on July 19, 2007, or 141 days after the inception of this action. Plaintiffs filed a response to the Court’s Show Cause Order on July 23, 2007. (Doc. 6.)
Defendant has not raised an objection per se to Plaintiffs’ service of their Amended Complaint on July 19, 2007. Rather, on August 8, 2007,
Page 2 of 5

Case 2:07-cv-00394-LSC Document 25 Filed 01/28/08 Page 3 of 5
Defendant filed a motion to dismiss the Original Complaint for lack of service, and a motion to dismiss the Title VII claims in Plaintiffs’ Amended Complaint because the Amended Complaint was filed over ninety (90) days after Waters’ receipt of his Notice of Right to Sue from the Equal Employment Opportunity Commission (“EEOC”). (Docs. 8, 10.) On August 21, 2007, Plaintiffs effected service of the Original Complaint. III. Analysis.
Defendant argues that this Court should dismiss Waters’ Original Complaint for untimely service and strike Plaintiffs’ Title VII claims in their Amended Complaint because they do not “relate back” to the filing of the Original Complaint.
Fed. R. Civ. P. 4(m) “grants discretion to the district court to extend the time for service of process even in the absence of a showing of good cause.” Horenkamp v. Van Winkle & Co., Inc., 402 F.3d 1129, 1132 (11th Cir. 2005). Plaintiffs’ counsel’s explanation to this Court regarding the tardiness of service of process consists of a series of mistakes and miscommunications by several good attorneys at respectable law firms; in short, Plaintiffs’ counsel dropped the ball. Plaintiffs, however, filed their Amended
Page 3 of 5

Case 2:07-cv-00394-LSC Document 25 Filed 01/28/08 Page 4 of 5
Complaint1 shortly after the issuance of this Court’s Show Cause Order, and assured the Court both that they will actively pursue their claims and confusion in case management is no longer an issue.
Moreover, in this Circuit it is established that the extension of time for service “may be justified . . . if the applicable statute of limitations would bar the refiled action.” Horenkamp, 402 F.3d at 1132. Waters’ Original Complaint was timely filed on the ninetieth day following the EEOC’s issuance of a Notice of Right to Sue. If this Court dismisses the Original Complaint without prejudice, Waters’ Title VII claims will be barred. Because a large portion of Plaintiffs’ claims center around disparate impact allegations, dismissal of his Title VII claims could severely limit Waters’ cause of action.
1Plaintiffs believed that service of the Amended Complaint alone—without service of the Original Complaint—was sufficient to preserve their claims, but requested "ten days after the first responsive pleading would be due from Cook's" to "allow re-service if necessary to cure any defects." (Doc. 6 at 6.) Although Plaintiffs miscalculated that date in their submission as August 18, 2007 (a Saturday), “ten days” from August 8, 2007, properly counted under Fed. R. Civ. P. 6 as ten business days, is August 22, 2007. The Original Complaint was served on August 21, 2007.
Page 4 of 5

Case 2:07-cv-00394-LSC Document 25 Filed 01/28/08 Page 5 of 5
The Court also notes that Defendant does not dispute that it had notice of this lawsuit, despite the untimely service, and was aware of the types of claims being asserted against it at least as early as April 2007.
Defendant is correct that, given the reasons listed above, this Court is not required to extend the time for service of process in this action. However, the Court is convinced that it should indeed exercise its discretion under these particular circumstances and allow Plaintiffs’ cause to proceed in full.
The Court also finds that Defendant’s arguments and case citations regarding the “relation back” doctrine are inapplicable; Title VII claims were asserted in the Original Complaint, the late service of which is being allowed at the discretion of this Court. IV. Conclusion.
Therefore, as outlined above, Defendant’s motions to dismiss are DENIED.
Done this 28th day of January 2008. ____________ L. SCOTT COOGLER
UNITED STATES DISTRICT JUDGE
139297
Page 5 of 5

 
 Case 2:07-cv-00394-LSC Document 38 Filed 06/05/08 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

FILED
2008 Jun-05 PM 03:23 U.S. DISTRICT COURT
N.D. OF ALABAMA

MARION WATERS, Plaintiff,
v.
COOK'S PEST CONTROL, INC., Defendant.

) ) ) )
) CIVIL ACTION NO.
)) 2:07-CV-00394-LSC
) )

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT COMES NOW the defendant in the above-styled action, Cook's Pest Control, Inc. ("defendant" or "Cook's"), and respectfully submits this motion for summary judgment and, pursuant to Rule 56 of the Federal Rules of Civil Procedure, moves this Court to enter an order granting summary judgment in its favor as to all claims asserted by plaintiff Marion Waters against Cook's in this complaint, on behalf of himself and on behalf of the alleged class, because there is no genuine issue of material fact, and Cook's is entitled to summary judgment as a matter of law. More specifically, and in support of its motion, Cook's states as follows: 1. Under applicable federal summary judgment standards, summary judgment is warranted in this case because the undisputed factual evidence and federal substantive law foreclose the plaintiff from recovering against Cook's.

1657324 vi

Case 2:07-cv-00394-LSC Document 38 Filed 06/05/08 Page 2 of 4
2. The plaintiff cannot prevail on his claims for the following reasons:
• Plaintiff has failed to prove a prima facie case of disparate treatment race discrimination in the failure to hire him to a position of employment, because plaintiff has not shown that he applied or was considered for an available position with the Birmingham North District office with which he applied.
• Plaintiff has failed to prove a prima facie case of pattern and practice disparate treatment race discrimination in the failure to hire him to a position of employment, because plaintiff has not shown that he applied or was considered for an available position with the Birmingham North District office with which he applied. Furthermore, he has failed to produce any evidence that Cook's engaged in race discrimination towards him or any other individuals.
• Plaintiff has failed to prove a prima facie case of disparate impace race discrimination in the failure to hire him to a position of employment, because plaintiff has not shown that any of the policies, practices, or procedures that he alleges to have a disparate impact caused him, or anyone else, any individual harm.
• Plaintiff has no standing to bring his claims on behalf of the individuals in his alleged Fed. R. Civ. P. Rule 23 class, because he cannot establish a prima facie case regarding any of these allegations.
3. Cook's motion is based on admissible portions of:
(A) The pleadings;
(B) Affidavits (with exhibits);
(C) Other authenticated evidence;
(D) Plaintiffs Responses to Defendant's Interrogatories and
Requests for Production; and

1657324 vi

2

Case 2:07-cv-00394-LSC Document 38 Filed 06/05/08 Page 3 of 4
(E) Cook's Brief in Support of its Motion for Summary Judgment as to claims alleged by PlaintiffMarion Waters.
WHEREFORE PREMISES CONSIDERED, Cook's respectfully requests this Court to grant summary judgment on all claims alleged by Marion Waters against Cook's in this complaint, certify the judgment as final under Rule 54(b) of the Federal Rules of Civil Procedure and grant costs in favor of the defendant.

Burr & Forman, LLP 3400 Wachovia Tower
420 2oth Street North Birmingham, AL 35203 (205) 251-3000

Is/ Mac B. Greaves Mac B. Greaves Ronald W. Flowers, Jr.
Attorneys for Defendant
jCOOK'S PEST CONTROL, INC.

1657324 vi

3

Case 2:07-cv-00394-LSC Document 38 Filed 06/05/08 Page 4 of 4
CERTIFICATE OF SERVICE
I hereby certify that on the 5th of June, 2008, I electronically filed the foregoing Motion with the Clerk of the Court by using the CM/ECF system, which will send a notice of electronic filing to the following:
Thomas F. Campbell Raymond Bronner Campbell Law Concourse at Riverchase 100 Concourse Parkway, Suite 115 Birmingham, AL 35244
Samuel Mark Hill The Law Office of Sam Hill, L.L.C. 211 7 Magnolia Avenue South, Suite 100 Birmingham, AL 35205
Samuel Fisher Wiggins, Childs, Quinn & Pantazis, LLC The Kress Building 301 19th Street North Birmingham, AL 35203
Isf Mac B. Greaves OF COUNSEL

1657324 vi

4

 
 Case 2:07-cv-00394-LSC Document 39 Filed 06/05/08 Page 1 of 22
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

FILED
2008 Jun-05 PM 03:26 U.S. DISTRICT COURT
N.D. OF ALABAMA

MARION WATERS, Plaintiff,
v.
COOK'S PEST CONTROL, INC., Defendant.

) ) ) )
) CIVIL ACTION NO.
)) 2:07-CV-00394-LSC
) )

DEFENDANT COOK'S PEST CONTROL, INC.'S BRIEF IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT COMES NOW the defendant in the above-styled action, Cook's Pest Control, Inc. ("defendant" or "Cook's"), and submits this brief in support of its Motion for Summary Judgment on all claims asserted by plaintiff Marion Waters ("Waters").
I. INTRODUCTION The United States Supreme Court, the Eleventh Circuit and the federal courts of Alabama have all emphatically held that a plaintiff cannot bring a class action alleging discrimination under Title VII, unless and until that named Plaintiff has first established a prima facie case of discrimination on his own behalf In this case, the named plaintiff, Marion Waters, has alleged claims of disparate treatment race discrimination, pattern-and-practice discriminatory treatment and

1656892 vi

Case 2:07-cv-00394-LSC Document 39 Filed 06/05/08 Page 2 of 22

disparate impact discrimination, and seeks to represent a broad putative class that would include past, present and future applicants for employment with Defendant. Waters has failed, however, to establish the single most fundamental prerequisite of this case-- his own case o{discrimination against Defendant. Waters has not established a prima facie case of race discrimination under Title VII under any of his theories, and thus, he has no standing to bring this case, either for himself or on behalf of a class. He has produced no evidence in support of any of his theories.
As a threshold matter, any plaintiff who asserts a Title VII failure-to-hire claim must establish two elementary facts: that he applied for an available job and was rejected as an applicant for that job. Waters has failed to cross this threshold. The undisputed facts clearly establish that Waters applied for employment with Defendant's Birmingham North office and that no available job existed at the time he applied. These facts also establish that Waters never applied for employment with any of Defendant's other offices, even when employees for Defendant advised him that a position might be available at Defendant's commercial office only one mile away from the North District office.
An employer does not commit a discriminatory act by failing to hire an applicant where no job is available or when an individual has not even applied for a job. Thus, as a matter of law, Waters has not established a prima facie case, and therefore, he is unable to prevail on his claims either as an individual or as a class

1656892 vi

2

Case 2:07-cv-00394-LSC Document 39 Filed 06/05/08 Page 3 of 22

representative. Therefore, Defendant's motion for summary judgment is due to be

granted.

II.

STATEMENT OF THE FACTS

A. Cook's Pest Control Hiring Policies

1. Cook's provides professional pest control services to homes and

businesses in more than 22 cities in Alabama, Georgia, and Tennessee. (Affidavit

of Sherrill Hodges, Exhibit A, ,-r 3.)

2. Cook's operates its business through district offices. (Hodges aff., ,-r

3.)

3. Cook's hiring for district offices is performed at the local district

office. (Hodges aff., ,-r 4; Affidavit of Robbie Cole, Ex. C, ,-r 4.)

4. Applicants must submit applications at each district office they seek to

be considered for employment. (Hodges aff., ,-r 4; Cole aff., ,-r 4.)

5. Applicants may submit a preliminary application on-line through

Cook's website or other internet services, but all applicants are required to

complete an application at the site where he or she wants to work. (Hodges aff., ,-r

4.)

6. The pre-application on Cook's web site states: "I further understand

that this is only a preliminary application and that I am still required to fill out a

1656892 vi

3

Case 2:07-cv-00394-LSC Document 39 Filed 06/05/08 Page 4 of 22
detailed written employment application at one of Cook's locations pnor to employment." (Hodges aff., ,-r 4 & Att. A.)
7. Cook's application states, "Your application will not be considered unless a specific job is included in the space designated 'Position Applied For."' (Hodges aff., ,-r 5 & Att. B.)
8. Cook's hires its managerial and supervisory personnel from within the company. (Hodges aff., ,-r 6.)
9. Prior to employment, all applicants are subject to a criminal background report, a driving record report, and a drug screen. (Hodges aff., ,-r 5.) B. Plaintiffs Application at the Birmingham North District Office
10. Plaintiff Marion Waters decided to apply for employment with Defendant because "a friend had told me that Cook's was hiring and that it was a great opportunity." (Plaintiffs Responses to Defendant's First Interrogatories, Response, Exhibit D, Response to Interrogatory# 18.)
11. On July 11, 2006, Waters visited Cook's Birmingham North District office and completed an application. (Hodges aff., ,-r,-r 7-8; Affidavit of Rob Gerchow, Exhibit B, ,-r,-r 6-7.)
12. At the time Plaintiff completed an application at the Birmingham North District office, he lived in Elmore County. (Gerchow aff, ,-r 6-7 & Atts. C & D.)

1656892 vi

4

Case 2:07-cv-00394-LSC Document 39 Filed 06/05/08 Page 5 of 22
13. The application Mr. Waters completed did not ask him to list his race. (Gerchow aff., ,-r 7 & Att. D.)
14. Mr. Waters submitted a resume to Cook's which stated that his objective was "[t]o obtain an exciting and challenging position in sales/marketing, leveraging any teamwork, leadership, and communication skills." (Hodges aff., ,-r 7 & Att. C; Gerchow aff., ,-r 6 & Att. C.)
15. Although Plaintiff did not list on his application a specific position to which he was applying, as required, he informed Cook's that he was interested in a sales position. (Hodges aff., ,-r 8; Gerchow aff, ,-r 7.)
16. District Manager Sherrill Hodges noticed that Mr. Waters was dressed well and made a good appearance, and thus directed Sales Manager Rob Gerchow to interview Plaintiff even though the office had no opening. (Hodges aff., ,-r 9; Gerchow aff, ,-r 8.)
17. At the time Plaintiff applied with the Birmingham North District office, all seven approved sales positions were filled. (Hodges aff., ,-r 9; Gerchow aff, ,-r 8.)
18. The Birmingham North District office allows individuals to complete applications and submit them at the office even when the office has no available positions for hire. (Hodges aff., ,-r 9; Gerchow aff, ,-r 8.)

1656892 vi

5

Case 2:07-cv-00394-LSC Document 39 Filed 06/05/08 Page 6 of 22
19. All applicants for sales positions take a math test when they submit their application. (Hodges aff., ,-r 10.)
20. Although he was not evaluated for a particular position at the Birmingham North District office because no such position was available, Waters performed very well on his test, answering nine out of 10 questions correctly. (Hodges aff., ,-r 10.)
21. Plaintiffs performance on the test would not have excluded him from any employment position and would not have negatively affected his application for any available position. (Hodges aff., ,-r 10.)
22. Most individuals submitting applications are not interviewed on their first visit, but instead, are called back for an interview if there is an opening and the company is interested in the applicant. (Hodges aff., ,-r 8; Gerchow aff, ,-r 8.) C. Cook's Birmingham Commercial Office
23. Because the Birmingham North District office did not have an opening in sales, Mr. Gerchow suggested that Plaintiff apply with Cook's commercial office, which is about one mile from the Birmingham North District office. (Gerchow aff., ,-r 9; Affidavit ofRobbie Cole, Exhibit C, ,-r 5.)
24. Mr. Gerchow called Robbie Cole with the commercial office, to alert him to the fact that Mr. Waters might be stopping by the office to apply for a position. (Gerchow aff., ,-r 9; Cole aff., ,-r 5.)

1656892 vi

6

Case 2:07-cv-00394-LSC Document 39 Filed 06/05/08 Page 7 of 22
25. Waters neither visited the commercial office nor submitted an application with that office. (Cole aff., ~ 5.)
26. At the time of Plaintiffs visit to the Birmingham North District office, the commercial office had a sales opening, for which Plaintiff would have been eligible. (Cole aff., ~ 6.) D. Plaintifrs Race Discrimination Allegations
27. Marion Waters filed the Original Complaint on February 28, 2007 (Doc. 1), and a First Amended Complaint on July 7, 2007 (Doc. 2), alleging claims under Title VII of the Civil Rights Acts of 1964, 42 U.S.C. §2000, et seq. ("Title VII") and 42 U.S.C. §1981, as amended by the Civil Rights Act of 1991 ("§ 1981 "); on behalf of himself and a class of plaintiffs including "all AfricanAmerican applicants for employment for jobs, or who may become applicants for jobs, or who were discouraged from applying for jobs, for the period two years [sic] preceding the date of the filing of this complaint to the date of class certification." (Amended Complaint, Doc. 3, ~14).
28. Waters alleged that Defendant denied employment to Waters and the class members due to "disparate treatment and/or applications of facially neutral selection criteria which have an impermissible and unjustified impact upon African-Americans" (Doc. 3, ~ 18.) and that Defendant "maintained a pattern and practice of discrimination in employment on the basis of race" (ld., § 21.)

1656892 vi

7

Case 2:07-cv-00394-LSC Document 39 Filed 06/05/08 Page 8 of 22
29. The only factual basis that Plaintiff has set forth to support his Title
VII claims are as follows:
Around June or July 2006, I filled out job applications and took employment tests at Cook's office on Lakeshore Parkway. I applied for any position at any Cook's location. Cook's never offered me employment despite the fact that I believe I was qualified for multiple positions and feel that I did well on the test. I know of no legitimate reason I was passed over for employment. It is my impression based on my experience applying at Cook's and the employment screening procedures that I was categorized as a black applicant and unfairly and illegally discriminated against in Cook's decision not to hire me. I do not recall the names of any Cook's employees I had contact with. Nor do I know what positions any of those persons held with Cook's. Cook's should know who handled their job application procedures and what positions those persons hold. See also factual allegations in the First Amended Complaint.
(Plaintiffs Responses to Defendant's First Interrogatories and Requests for
Production to Plaintiff Marion Waters ("Waters Discovery Responses", Exhibit D,
Paragraph 20.)
30. Plaintiff knows of no individuals who he contends have been
discriminated against by Cook's on the basis of race and knows of no other
members of the class of individuals he purports to represent in this action.
("Waters Discovery Responses", Ex. D, ,-r,-r 15 & 16.)
31. Plaintiff has offered no further facts in support of his allegations of
pattern and practice race discrimination and disparate impact. (Waters Discovery
Responses, Ex. D, ,-r,-r 21-22.)

1656892 vi

8

Case 2:07-cv-00394-LSC Document 39 Filed 06/05/08 Page 9 of 22
IV. ARGUMENT "The legitimacy of a private Title VII suit brought on behalf of a class depends upon the satisfaction of two distinct prerequisites." Griffin v. Duggar, 823 F. 2d 1476, 1482 (11th Cir. 1987). "First, there must be an individual plaintiff with a cognizable claim, that is, an individual who has constitutional standing to raise the claim (or claims) and who has satisfied the procedural requirements of Title VII." !d. "Second, the requirements of Rule 23 must be fulfilled." !d. In this case, the first prerequisite cannot be met, and the second is thus mooted. The fact that a claim is brought in the context of a class action does not in any way diminish the rigor of this threshold standing inquiry by purporting to bring a class action. "Standing cannot be acquired through the back door of a class action." Allee v. Medrano, 416 U.S. 802, 829 (1974) (Burger, C.J., concurring in part and dissenting in part). "Thus, a plaintiff cannot include class action allegations in a complaint and expect to be relieved of personally meeting the requirements of constitutional standing even if the persons described in the class definition would have standing themselves to sue." Griffin, 823 F. 2d at 1483, quoting Brown v. Sibley, 650 F. 2d 760, 771 (5th Cir. Unit A 1981); see also Dallas Gay Alliance, Inc. v. Dallas County Hosp. Dist., 719 F. Supp. 1380 (N.D. Tex. 1989) (holding plaintiff lacked standing to assert class claims for declaratory

1656892 vi

9

Case 2:07-cv-00394-LSC Document 39 Filed 06/05/08 Page 10 of 22

and injunctive relief forbidding defendant from depriving eligible persons of AIDS remedies when the individual representative lacked standing to bring such claims).
Accordingly, well before the certification of a class, the district court must determine that at least one named class representative has Article III standing to raise each class subclaim. Griffin, 823 F. 2d 1482 (11th Cir. 1987) ("[A]ny analysis of class certification must begin with the issue of standing"); see also Brown v. Sibley, 650 F. 2d at 771 (stating that the "constitutional threshold [of standing] must be met before any consideration of the typicality of claims or commonality of issues required for procedural reasons by Fed. R. Civ. P. 23"). Moreover, it is not enough that a named plaintiff can establish a case or controversy between himself and the defendant by virtue of having standing as to one of many claims he wishes to assert; rather, "each claim must be analyzed separately, and a claim cannot be asserted on behalf of a class unless at least one named plaintiff has suffered the injury that gives rise to that claim." Griffin, 823 F. 2dat 1483.
As shown below, the Amended Complaint and discovery responses make clear from the outset that Waters cannot establish even one individual, prima facie claim under Title VII, and thus has no standing to bring an array of such claims on behalf of a broad putative class. The Court should, therefore, grant Defendant's motion for summary judgment.

1656892 vi

10

Case 2:07-cv-00394-LSC Document 39 Filed 06/05/08 Page 11 of 22
A. Plaintiff Cannot Establish a Prima Facie Case on His Claim of Race Discrimination under Any of His Proposed Theories. 1. Plaintiff Has Not Established a Prima Facie Case on His Claim of Disparate Treatment Race Discrimination. The U.S. Supreme Court has firmly declared that, in order to establish a
prima facie case for a discrimination claim, the plaintiff must show: "( 1) that he belongs to a racial minority; (2) that he applied and was qualified for a job for which the employer was seeking applications; (3) that, despite his qualifications, he was rejected; and (4) that after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications." McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); see also Godoy v. Habersham Cty., 211 Fed. Appx. 850, 853 (11th Cir. 2006) (same). Here, Waters has met the first factor by establishing the fact that he is an AfricanAmerican and is, therefore, a member of a protected class. Waters has, however, utterly failed to establish a prima facie showing as to any of the remaining factors of the McDonnell Douglas test --in fact, Waters failed to provide any factual basis to support the allegations that he does make. The Court should, therefore, grant Defendant's motion for summary judgment.
Waters is also required to show that he sought a specific job for which the Defendant was actually "seeking applicants"; that is, a job that was actually vacant and available. Because "[a] failure to hire claim obviously depends on the

1656892 vi

11

Case 2:07-cv-00394-LSC Document 39 Filed 06/05/08 Page 12 of 22
availability of a job," Velez v. Janssen Ortho, LLC, 467 F. 3d 802, 807-08 & fn. 5 (1st Cir. 2006) (stating that a failure to hire claim begins with the fact that the plaintiff has "applied for and been rejected for a specific job), such a claim is not viable if a plaintiff cannot "eliminate one of the most common legitimate nondiscriminatory reasons for a failure to hire: the absence of a vacancy." Black v. Tomlinson, 425 F. Supp. 2d 101 (D.D.C. 2006). "An employer does not discriminate or retaliate illegally if it has no job opening." Adams v. Groesbeck Ind. Sch. Dist., 475 F. 3d 688, 691 (5th Cir. 2007) (reversing district court finding that plaintiff established a prima facie case when individual applied for coaching position that was not announced as available and for which no candidates were interviewed); Dare v. Wal-Mart Stores, Inc., 267 F. Supp. 2d 987, 993 (D. Minn. 2003) (granting summary judgment on plaintiffs failure to hire claim because plaintiff failed to establish the seeking applicants element of the prima facie case when the employer was seeking applicants only in the event a current employee did not transfer stores to the position); Rush v. McDonald's Corp., 966 F. 2d 1104, 1118 (7th Cir. 1992) ("[I]f an employer is willing to consider white persons for an open position, but would refuse to consider applications from minorities for that position, it appears logical to characterize that conduct as discriminatory. On the other hand, it would not appear discriminatory if the employer is not hiring

1656892 vi

12

Case 2:07-cv-00394-LSC Document 39 Filed 06/05/08 Page 13 of 22
anybody, for example, if there is no vacancy to be filled, and that would normally be the end of a Title VII claim.").
Here, Waters has never even alleged that an open position existed at the North District office. The undisputed evidence confirms that, at the time Waters applied to the North District office, all seven approved sales positions were filled. (Facts,~ 17.)
The facts establish the simple, nondiscriminatory truth -- Waters was not hired simply because a job was not available for him in the North District office and because he did not apply for any job with any other office. Under these facts, Waters cannot establish that he applied for a "specific available position for which Defendant was seeking applicants" and thus cannot go on to establish that, "despite his qualifications, he was rejected" from employment with Defendant. McDonnell Douglas Corp., supra, 411 U.S. at 802. Likewise, because there was no open position in the North District office to begin with, and thus no rejection of Waters by Defendant, there is no way in which Waters can establish "that after his rejected the position remained open and the employer continued to seek applicants from persons of complainant's qualifications." !d. Because Waters has not -- and cannot -- establish an individual prima facie claim for relief under either Title VII or §1981, he may not maintain the instant action on behalf of himself or the

1656892 vi

13

Case 2:07-cv-00394-LSC Document 39 Filed 06/05/08 Page 14 of 22

proposed class. The Court should therefore grant Defendant's motion for summary judgment.
2. Plaintiff Has Not Established a Claim ofPattern and Practice Race Discrimination.
Waters' Amended Complaint includes a pattern-and-practice disparate treatment claim, which requires him to establish not only the "mere occurrence of isolated discriminatory acts" but also "that racial discrimination was the employer's standard operating procedure - the regular rather than the unusual practice." Hall v. Alabama Ass'n of School Boards, 326 F. 3d 1157, 1171 (11th Cir. 2003). Because, as discussed, Waters cannot prove even the most basic elements of his own individual claim for discrimination, he also cannot establish a prima facie claim of race discrimination by pattern and practice evidence.
Furthermore, Waters has offered no evidence of any discriminatory treatment of other individuals. In his discovery responses, plaintiff testified that he knows of no individuals whom Cook's has discriminated against on the basis of race. (Facts, ~ 30.) As plaintiff has shown no evidence that he nor any other individuals suffered discrimination on the basis of race, he falls well short of demonstrating that "racial discrimination was the standard operating procedure," and thus, his claim of pattern and practice disparate treatment must fail.
Waters has failed to offer any evidence in support of the twelve allegations in his complaint on which he alleges that Cook's maintained a pattern or practice

1656892 vi

14

Case 2:07-cv-00394-LSC Document 39 Filed 06/05/08 Page 15 of 22

on the basis of race. He has not offered evidence that he or any other African American individual (a) was discouraged from submitting an application because of the what he or she was told by a Cook's representative on the phone or in an office; (b) was discouraged from submitting an application for an available position because he or she was required to submit an application at each office to which he or she wished to apply; (c) was discouraged from submitting an application because of the race of individuals used in advertising; (d) was denied a management position, which Cook's only hires from within, based on race; (f) was discouraged from submitting an application because offices were staffed with white workers; (g) was discouraged from submitting an application because Cook's announced that a math test is required; (h) was excluded from a position because of the alleged, but not explained, "good old boy," "word of mouth," or "tap on the shoulder" system of recruitment, hiring, or promotion; (i, j) was excluded from a position because of performance on a written test; (k) was discouraged from submitting an application because of Cook's failure ·to notify applicants of a training program; or (1) was excluded from a position because of subjective selection criteria. (Facts, ,-r,-r 29-31.) Waters' allegation in subsection (e) that he was required to state his race on his application is false as demonstrated by his application. (Facts, ,-r 13.) As these examples make clear, Waters has failed to establish how he has been injured by any pattern or practice of discrimination, or to

1656892 vi

15

Case 2:07-cv-00394-LSC Document 39 Filed 06/05/08 Page 16 of 22

produce any facts to show the existence of such practices. The facts only show that Waters did not obtain employment with Defendant because he did not apply for an available job.
Waters brought this action, attempting to obtain a class action, without any evidence in support of any of his claims. As Waters has not submitted any evidence in support of his own claims or to demonstrate Cook's discriminated against any other individuals, his pattern and practice disparate treatment claim must be dismissed.
3. Plaintiff has not shown individual harm as required to establish a disparate impact claim.
In addition to his disparate treatment claims, Waters has brought a race discrimination claim under the disparate impact theory. "To make out a prima facie case under a disparate impact theory, the complaining party must demonstrate that the defendant employed a facially neutral employment practice that had a significant discriminatory effect." Stephen v. PGA Sheraton Resort, Ltd., 873 F. 2d 276, 279 (11th Cir. 1989). Even where an individual alleges a disparate impact theory of recovery, he must prove individual harm to himself arising from the facially neutral employment practice. !d. A plaintiff must prove individual harm. In order to demonstrate individual harm, the individual plaintiff must show that application of the specific discriminatory practice has caused him to suffer a significant adverse effect. See Hill v. Seaboard Coast LineR. Co., 885 F. 2d 804,

1656892 vi

16

Case 2:07-cv-00394-LSC Document 39 Filed 06/05/08 Page 17 of 22

811 (11th Cir. 1989). A defendant can rebut a plaintiffs claim of individual injury by demonstrating that the adverse effect he complains of was dictated by a legitimate, nondiscriminatory reason. See Stephen, 873 F. 2d at 279. "[T]he employer must be given an opportunity to demonstrate a legitimate nondiscriminatory reason why, absent the offending practice, the individual plaintiff would have not have been awarded the job or job benefit at issue anyway." In reEmployment Discrimination Litigation against the State ofAlabama, 198 F. 3d 1305, 1315-16(1lthCir.1999).
Waters cannot show that any of the policies or practices that he alleges cause a disparate impact have caused him any individual harm. In his Amended Complaint, Waters alleges twelve practices, policies, or procedures of Cook's which could cause a disparate impact. (Amended Complaint, ,-r 21.) Waters lacks standing to bring any of these allegations and cannot demonstrate that he suffered any individual harm because of these alleged practices, policies, or procedures. He cannot establish claims on the allegations in subparagraphs (a), (b), (c), (f) or (g), in which he alleges that Cook's practices discourage applications, because he actually did submit an application at the Birmingham North District office. (Facts, ,-r 11.) Thus, he did not suffer a significant adverse effect because of these alleged practices. He has not offered any evidence that any individuals were discouraged from submitting an application because of these alleged practices. (Facts, ,-r 30.)

1656892 vi

17

Case 2:07-cv-00394-LSC Document 39 Filed 06/05/08 Page 18 of 22

Moreover, he cannot establish a claim based on subparagraph (b), because, although he traveled from Elmore County (Facts,~ 12), he failed to visit a Cook's location which had available positions, to which he was referred, and which was located only one mile from the Birmingham North District office. (Facts, ~~ 2326.) He lacks standing to bring the allegation in subparagraph (d) because he did apply for a sales position and Cook's had no management positions available at the North District Office. (Facts, ~~ 8, 14-15.) Waters cannot establish a claim of discrimination based on subparagraph (e), because his application does not require him to state his race as he alleges. (Facts,~ 13.) Waters cannot establish claims of discrimination based on his allegations in subparagraph (h) and (1) because he was not denied an available position and his application for employment was not rejected. (Facts, ~~ 17, 23.) Finally, Waters has not established claims of discrimination based on the allegations in subparagraphs (i), (j), or (k), because he took the test which accompanied his application, performed very well on the test, and his test score would have been a positive, and not a negative factor, in evaluating his application had he applied for an available position. (Facts, ~~ 1921.)
Here, as discussed previously, there has been no failure to hire Waters, much less a discriminatory failure to hire him, because there was no available job in the North District office when he applied. Plaintiffs failure to obtain a position with

1656892 vi

18

Case 2:07-cv-00394-LSC Document 39 Filed 06/05/08 Page 19 of 22
Cook's was based on the fact that no available positions existed at the office he applied, and he did not follow up at other offices, even though he was referred to those office by the Birmingham North District office's Sales Manager. Because Cook's has established that Plaintiff would not have been awarded a position even if the policies that allegedly created a disparate impact were not applied, his disparate impact claim must be dismissed. B. Waters Lacks Standing To Bring Claims On Behalf Of The Class.
"[J]ust as a plaintiff cannot pursue an individual claim unless he proves standing, a plaintiff cannot represent a class unless he has standing to raise the claims of the class he seeks to represent." Murray v. US. Bank Trust Nat'! Ass'n, 365 F. 3d 1284, 1288-89, n.7 (11th Cir. 2004). "A named plaintiff in a class action who cannot establish the requisite case or controversy between himself and the defendants simply cannot seek relief for anyone -- not for himself, and nor for any other member of the class." Griffin v. Duggar, 823 F. 2d 1476, 1482 (11th Cir. 1987); see also O'Shea v. Littleton, 414 U.S. 488 (1974) (if"none ofthe named plaintiffs purporting to represent a class establishes a requisite of a case or controversy with the defendant, none may seek relief on behalf of himself or any other member of the class."). As demonstrated above, plaintiff must be able to establish a case regarding each of his individual claims to have standing to bring

1656892 vi

19

Case 2:07-cv-00394-LSC Document 39 Filed 06/05/08 Page 20 of 22
each individual claim on behalf of the class. See Griffin v. Duggar, 823 F.2d 1476, 1483 (11th Cir. 1987).
Here, plaintiff fails to establish a prima facie case with regard to any of his allegations. Thus, he has no standing to bring any of these allegations on behalf of a class. It is clear from the outset that Plaintiff cannot establish a prima facie case on any of his claims against Cook's, and further discovery will not change this. The facts are what they are -- no available position existed in the North District Office at the time that Waters applied, and he never applied for a job at any of Defendant's other offices, even when advised to do so. Additional discovery will not alter these fundamental facts, which fatally undercut Plaintiffs ability to establish even the most basic elements of a failure-to-hire claim under Title VII. The Court should, therefore, grant Defendant's motion for summary judgment as to Waters' disparate treatment and disparate impact claims.
As the foregoing makes clear, Waters cannot establish a prima facie claim of discrimination on his own behalf, and thus cannot bring an action on behalf of any putative class. The Court should, therefore, grant Defendant's motion for summary judgment on all claims and dismiss this action.

1656892 vi

20

Case 2:07-cv-00394-LSC Document 39 Filed 06/05/08 Page 21 of 22

V. CONCLUSION For the foregoing reasons, this Court should grant Defendant's motion for summary judgment, dismiss all of Plaintiffs claims, and tax costs to Plaintiff.
Respectfully submitted,

Burr & Forman, LLP 3400 Wachovia Tower
420 2oth Street North Birmingham, AL 35203 (205) 251-3000

Is/ Mac B. Greaves Mac B. Greaves Ronald W. Flowers, Jr.
Attorneys for Defendant
COOK'S PEST CONTROL, INC.

1656892 vi

21

Case 2:07-cv-00394-LSC Document 39 Filed 06/05/08 Page 22 of 22
CERTIFICATE OF SERVICE
I hereby certify that on the 5th of June, 2008, I electronically filed the foregoing Motion with the Clerk of the Court by using the CM/ECF system, which will send a notice of electronic filing to the following:
Thomas F. Campbell Raymond Bronner Campbell Law Concourse at Riverchase 100 Concourse Parkway, Suite 115 Birmingham, AL 35244
Samuel Mark Hill The Law Office of Sam Hill, L.L.C. 2117 Magnolia Avenue South, Suite 100 Birmingham, AL 35205
Samuel Fisher Wiggins, Childs, Quinn & Pantazis, LLC The Kress Building 301 19th Street North Birmingham, AL 35203
Is/ Mac B. Greaves OF COUNSEL

1656892 vi

22

 
 Case 2:07-cv-00394-LSC Document 59 Filed 12/09/08 Page 1 of 2

FILED
2008 Dec-09 PM 03:14 U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

MARION WATERS, et al., Plaintiffs, vs.
COOK'S PEST CONTROL, INC., Defendant.

] ] ] ] ] 2:07-CV-00394-LSC ] ] ] ]

ORDER

The Court has for consideration Defendant’s motion for summary

judgment, which was filed on June 5, 2008. (Doc. 38.) The parties have

since argued whether discovery is necessary in this case, and the Court has

heard argument on a motion to compel and a motion to stay discovery. The

Court instructed the parties that it would consider only the standing issue

raised in Defendant’s motion for summary judgment, and Plaintiff was

directed to file a Rule 56(f) affidavit, if necessary, detailing the discovery

he would need to oppose Defendant’s motion on that issue. Plaintiff

initially filed a brief that was unresponsive to this Court’s directive. (Doc.

48.) Defendant’s motion to strike that brief is therefore GRANTED.

Page 1 of 2

Case 2:07-cv-00394-LSC Document 59 Filed 12/09/08 Page 2 of 2
However, Plaintiff has since filed the requisite Rule 56(f) affidavit. (Doc. 58.) After full review, it is apparent that Plaintiff should have an opportunity to conduct discovery on the issues raised in the Rule 56(f) affidavit before this Court takes up the issue of Plaintiff’s standing. Therefore, Defendant’s motion for summary judgment is DENIED, without prejudice to refile, if appropriate, at a later date.
The parties are also DIRECTED to file a proposed modified scheduling order within eleven (11) days of this Order.
Done this 9th day of December 2008.
____________ L. SCOTT COOGLER
UNITED STATES DISTRICT JUDGE
139297
Page 2 of 2

 
 Case 2:07-cv-00394-LSC Document 120 Filed 11/03/11 Page 1 of 15

FILED
2011 Nov-03 PM 06:10 U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

MARION WATERS, et al., Plaintiffs,
v.
COOK'S PEST CONTROL, INC., Defendant.

)
) ) ) CASE NO. 2:07-CV-00394-LSC
) )
) )

JOINT MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENT

Plaintiff Marion Waters, on behalf of himself and the class which he seeks to represent, and the Defendant Cook's Pest Control, Inc. ("Cook's"), by and through

their undersigned counsel, hereby jointly move the Court for an Order: (1) Conditionally certifying a class for settlement purposes; (2) Preliminarily approving the Settlement Agreement; and (3) Setting a Fairness Hearing.

In support of this Motion, these parties state as follows: 1. On March 1, 2007, Plaintiff Marion Waters filed his Initial Complaint

against Cook's Pest Control, Inc. ("Cooks") on behalf of himself and other African-American applicants or individuals discouraged from applying for jobs with Cook's. The Named Plaintiff alleged claims under Title VII, 42 U.S.C.

Case 2:07-cv-00394-LSC Document 120 Filed 11/03/11 Page 2 of 15
§2000e, et seq. and 42 U.S.C. § 1981. The Complaint alleged that the Named Plaintiff and other similarly-situated African. American applicants had been denied employment despite being qualified due to intentional disparate treatment and/or application of facially neutral selection criteria which have an impermissible and unjustified impact on African-Americans.
2. Cook's answered the complaint, denied any wrongdoing, denied its actions violated any federal law, and asserted a number of affirmative defenses.
3. All parties recognized that there existed substantial uncertainty as to the outcome of the case, that if the case were to be litigated fully, it would be extremely expensive and time consuming, and that a prompt resolution of the case was in the best interests of all the parties.
4. Thus, following almost four (4) years of protracted litigation, including the production of thousands of pages of documents, as well as databases, and substantial written discovery, the parties (with the Court's approval) agreed to a stay of the litigation during which extensive mediation and settlement negotiations were conducted. Mediation of this case began on December 20, 2010 and has been ongoing.
5. The parties have agreed upon a compromise settlement of the disputed claims in this action, the terms and provisions of which are embodied in the
2

Case 2:07-cv-00394-LSC Document 120 Filed 11/03/11 Page 3 of 15
Settlement Agreement which terms will be converted to a Consent Decree upon final approval. The Proposed Settlement Agreement/Consent Decree has been submitted directly to the Court.
6. Without detailing all of the material terms, provisions, and conditions of the Proposed Consent Decree, the parties state that the Decree provides for conditional class certification by the Court for settlement purposes only, declaratory and injunctive relief, implementation of new hiring procedures for the positions of sales, pest control technician and termite technician, as defined in Paragraph II.D.3 of the Proposed Consent Decree ("Monitored Positions"), training for hiring managers, and monetary relief for the named Plaintiff and eligible class members, and an award of attorney's fees and costs for Class Counsel. In return, Plaintiff and the conditional settlement class agree to provide a release to Cook's and to the dismissal of this case with prejudice.
7. Mediator. The mediator in this case is Hunter R. Hughes, III, a partner at the law firm of Rogers & Hardin, LLP in Atlanta, Georgia. Mr. Hughes has been the mediator in some of the largest class actions in the nation. He also has experience serving as special master and assisting courts in determining the appropriate fees in large class actions. Mr. Hughes is also the proposed Fees Special Master in this matter. A copy of Mr. Hughes' CV is attached as Exhibit A.
3

Case 2:07-cv-00394-LSC Document 120 Filed 11/03/11 Page 4 of 15
8. Monitor. The Decree Monitor will be James E. Coleman, Jr., a Duke University Law Professor. As Monitor, Mr. Coleman will have all powers necessary to effectuate the terms of the Consent Decree. Mr. Coleman's CV is attached as Exhibit B.
9. Claims Administrator. The Claims Administrator Settlement Services, Inc., of Tallahassee, Florida. Settlement Services was founded in 1992 and specializes in administrating class action settlements. Its founder and president, attorney Thomas A Warren has over 30 years experience in class action and fair employment /civil right law and has been class counsel in some of the country's largest fair employment class action cases. The Claims Administrator shall serve as the Trustee of the Settlement Fund.
10. Class Action Status is Appropriate. The parties have stipulated, for settlement purposes only, that the requirements of Rule 23 have been satisfied, such that it would be appropriate to conditionally certify for settlement purposes a class action under Rules 23(b)(2) and 23(b)(3). The class is so numerous that joinder is impractical. Cook's estimates that thousands of notices will be mailed to the population of unsuccessful applicants and notice will be published in newspapers in all counties in which Cook's maintains an office. The parties expect that as many as hundreds of potential class members will respond. There are
4

Case 2:07-cv-00394-LSC Document 120 Filed 11/03/11 Page 5 of 15
the claims of the named Plaintiff are typical of the claims of the class. 11. The proposed class representative, Marion Waters, will fairly and
adequately protect the interests of the class. Waters is a 2004 graduate of the University of Alabama, with a degree in Psychology. Waters is gainfully employed and has been vigorously prosecuting this action from the beginning. Waters is willing to subordinate his interests for those of the class.
12. Class counsel are the following lawyers and law firms: Samuel Fisher, Robert Childs and the law firm of Wiggins, Childs,
Quinn and Pantazis, LLC: The law firm has a nationwide practice in complex litigation and employment class actions. Mr. Fisher has practiced employment law for thirty (30) years, is a former chairman of the Employment Section of the Alabama· State Bar Association and has extensive experience as class counsel in several large employment class actions, including serving as co-counsel in Ingram v. Coca Cola (NDGA, 2000), resulting in the largest settlement of an employment class action in the history of Title VII litigation at the time.
Thomas F. Campbell, Ravmond L. Bronner and the Campbell Law, PC firm: The law firm has a nationwide practice in complex and class action cases, is rated a Tier 2 "Best Law Firm" by U.S. News and World Reports for 2012 for Labor and Employment Law Litigation. Mr. Campbell has twenty-three years
5

Case 2:07-cv-00394-LSC Document 120 Filed 11/03/11 Page 6 of 15
PC firm: The law firm has a nationwide practice in complex and class action cases, is rated a Tier 2 "Best Law Firm" by U.S. News and World Reports for 2012 for Labor and Employment Law Litigation. Mr. Campbell has twenty-three years experience in the field of labor and employment law including serving as counsel in numerous noteworthy disparate impact employment discrimination cases. He was a founding partner of the Birmingham office of Ogletree Deakins, Nash, Smoak and Stewart, P.C. Mr. Campbell is included in the "Best Lawyer" publication for 2011 and 2012 for Commercial Litigation and has retained an "AV" rating by Martindale-Hubbell for over a decade.
Sam Hill of the Law Offices of Sam Hill, LLC: Mr. Hill has a nationwide complex and class action practice including employment law litigation. Most recently, he successfully represented the tax payers of Jefferson County in a long-running dispute over occupational taxes.
13. The Proposed Consent Decree is conditioned upon the entry of a Preliminary Approval Order that is agreeable to the Plaintiff and Cook's. A proposed Preliminary Approval Order, which the parties agree is satisfactory, is attached as Exhibit C.
WHEREFORE, the parties move the Court for the entry of an Order: (1) Conditionally certifying a class for settlement purposes;
6

Case 2:07-cv-00394-LSC Document 120 Filed 11/03/11 Page 7 of 15
Respectfully Submitted,
Is/ Samuel Fisher Robert Childs Samuel Fisher Attorneys for Plaintiffs Wiggins, Childs, Quinn & Pantazis, LLC The Kress Building 301 19th Street North Birmingham, Alabama 35203 (205) 314-0500
Is/ Thomas F. Campbell Thomas F. Campbell Attorneyfor Plaintifft Campbell Law PC One Chase Corporate Drive Suite 180 Birmingham, Alabama 35244 (205) 278c6650
Is/ Samuel Mark Hill Samuel Mark Hill The Law Offices of Sam Hill, LLC 265 Riverchase Pkwy E Ste 202 Hoover, AL 35244-2898 (205) 250-7776
Is/ Mac B. Greaves Mac Greaves Dent M. Morton Julie W. Pittman Attorneys for Defendant Burr & Forman, LLP 3400 Wachovia Tower 420 North 20th Street
7

Case 2:07-cv-00394-LSC Document 120 Filed 11/03/11 Page 8 of 15
Birmingham, Alabama 35203 (205) 251-3000 Is/ David J. Middlebrooks David J. Middlebrooks Attorneyfor Defendant Lehr Middle brooks & Vreeland, P.C. P.O. Box 11945 Birmingham, Alabama 35202-1945 (205) 323-9262
8

Case 2:07-cv-00394-LSC Document 120 Filed 11/03/11 Page 9 of 15
EXHIBIT A

Case 2:07-cv-00394-LSC Document 120 Filed 11/03/11 Page 10 of 15
ROGERS & HARDIN
Hunter R. Hughes Direct. 404.420.4622 Direct Fax: 404.230.0947 Email: hhughes@rh-law.com
RESUME OF
HUNTER R. HUGHES
Hunter R. Hughes is a Partner in the Atlanta firm of Rogers & Hardin, LLP practicing primarily in the area of employment law. He received his B.A. and J.D. degrees from the University of Virginia.
Mr. Hughes has successfully served as lead trial counsel in numerous employment and other cases, including nationwide class actions and mass employment litigation. He has been lead counsel in arbitrations as well as numerous proceedings before state and federal agencies. The "National Law Journal" has recognized him as "Among the Nation's Best Litigators in Employment [Law]." He has successfully served as the mediator in numerous employment class actions, including the Publix class action, Home Depot, and The Coca-Cola Company class actions, as well as the Burlington Northern genetic testing litigation. He also served as the mediator in the recent class and collective actions involving Boeing Aircraft Company, Abercrombie & Fitch, Xerox Corporation, and Cracker Barrel.
Mr. Hughes is the author of Chapter 20, "Settlements of Litigation," EEOC Litigation and Charge Resolution, Donald R. Livingston, BNA, 2005; Chapter 8, "Promotions," Age Discrimination in Employment Law, Lindemarm and Kadue, BNA, 2003; Chapter 26, "Mediating Class Actions: How Mediators Operate and What They Want," How ADR Works, ABA Section of Labor and Employment Law, Norman Brand, BNA Books, 2002; and "ADR in Employment Law," Class Actions in Arbitrations, A Treatise Project of the American Bar Association Labor and Employment Law Section, BNA, 2002. Mr. Hughes is also the author of "Sitting At The Head Of The Table: How To Be An Effective Labor And Employment Mediator And Arbitrator," The Practical Lawyer, December, 2005; and "Counseling the Whistleblower (Parts I and II)", The Practical Lawyer, Volume 38, Numbers 4-5, June-July, 1992. Co-Author: Chapter 21, "Special Litigation Issues: Complainant's Litigation Strategy", Sexual Harassment in Employment Law, Lindeman and Kadue, 1992; Chapter 29, "Election and Exhaustion of Remedies", Employment Discrimination Law, 3rd Edition, Five Year Cumulative Supplement, Schlei and Grossman; Chapter 28, "Injunctive and Affirmative Relief'', Sexual Harassment in Employment Law Supplement, Lindeman and Kadue,. 1994; and co-author: "Employment Surveys in Employment Litigation," Employment Relations Law Journal 42, 1983. Mr. Hughes was Vice Chairman, EEO Committee of Administrative Section of the
Rogers & Hardin LLP I 2700 International Tower I 229 Peachtree Street NE I Atlanta, GA 30303 I 404 522.4700 Phone I 404.525.2224 Fax I rh-law.com

Case 2:07-cv-00394-LSC Document 120 Filed 11/03/11 Page 11 of 15
ROGERS & HARDIN
Resume of Hunter R. Hughes Page2

American Bar Association, 1981-83, Chairman, 1983-84; and was President, Corporate Council Section, Atlanta Bar Association, 1981-82. He has served as Management Co-Chairman of the Program and Membership Divisions of the EEO Committee of the ABA Labor and Employment Section and on the Advisory Board of the National Employment Law Institute. He was also the Program Chairman of The American Employment Law Council, 1999-2000, and is a Fellow both in the American College of Employment Lawyers and the American College of Civil Trial Mediators.

He also has been a speaker throughout the country at scores of employment seminars on numerous topics, including trial practice, alternate dispute resolution, settlement strategies, damages, and a wide range of substantive employment matters.

Mr. Hughes has handled litigation throughout the nation and is admitted to practice in the Northern, Middle, and Southern Districts of Georgia, the Fifth, Sixth, Eighth, Ninth, and Eleventh Circuit Courts of Appeal and the United States Supreme Court.

Member:

Who's Who in America Who's Who Legal Georgia Arbitrators Forum American Arbitration Association Commercial Panel

786130.1

Case 2:07-cv-00394-LSC Document 120 Filed 11/03/11 Page 12 of 15
EXHIBITB
2

Case 2:07-cv-00394-LSC Document 120 Filed 11/03/11 Page 13 of 15

'DUKE LAW

JAMES E. COLEMAN, JR,
ASSOCIATE DEAN FOR SPECIAL PROJECTS AND PRIORITIES AND JOHN 5. BRADWAY PROFESSOR OF THE PRACTICE OF LAW DUKE UNIVERSITY SCHOOL OF LAW SCIENCE DRIVE AND TOWERVIEW ROAD BOX 90360 • DURHAM, NC 27708-0360 919-613-7057 • FACSIMILE919-668-0996 JCOLEMAN@LAW.DUKE. EDU

EXPERIENCE
JohnS. Bradway Professor of the Practice of Law, Duke University School of Law and Associate Dean for Special Projects and Priorities, Durham, North Carolina, July 1996present; Professor of Law, July 1991-August 1993. Courses: criminal law, co-director of the Duke Wrongful Convictions Clinic and the Duke Appellate Litigation Clinic. Distinguished Teacher (1993). Senior Associate Dean for Academic Affairs (2001-2005)
Wilmer, Cutler & Pickering, Washington, D.C. Partner, 1993-1996; 1982-1991; Associate, 1981-1982, 1978-1980. Litigated a wide range of cases including criminal (capital postconviction), civil commercial, natural gas regulatory, administrative, employment discrimination, and various civil rights actions. Mediated large employment discrimination class actions involving both government employers and private employers. Appeared as trial and appellate counsel in numerous state and federal courts, and as counsel of record in the United States Supreme Court. NAACP Legal Defense and Education Fund Pro Bono Award for contribution to enforcement of civil rights laws.
Deputy General Counsel, United States Department of Education, Washington, D.C., 19801981. Responsible for providing legal advice on civil rights, rights of the disabled, and business and administrative law issues.
Chief Counsel, United States House of Representatives Committee on Standards of Official Conduct, Washington, D.C., 1978. Together with special counsel, directed the Committee's investigation of two Members of Congress from Pennsylvania.
Assistant General Counsel, Legal Services Corporation, Washington, D.C., 1976-1978.
Associate, Kaye, Scholer, Fierman, Hays & Handler, New York, New York, 1975-1976.
Law Clerk, United States District Judge Damon J. Keith (E.D. Michigan), 1974-1975. Judge Keith recently took senior status on the U.S. Court of Appeals for the Sixth Circuit.
EDUCATION Columbia University School of Law, Juris Doctor, 1974. Harlan Fiske Stone Scholar; Charles Bathgate Beck Award.
Harvard College, Bachelor of Arts, 1970.

Case 2:07-cv-00394-LSC Document 120 Filed 11/03/11 Page 14 of 15
EXHIBITC
3

Case 2:07-cv-00394-LSC Document 120 Filed 11/03/11 Page 15 of 15

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

MARION WATERS, et al., Plaintiffs,
v. COOK'S PEST CONTROL, INC.,
Defendant.

)
) )
) CASE NO. 2:07-CV-00394-LSC ) )
) )

!PROPOSED! ORDER GRANTING PRELIMINARY APPROVAL
OF SETTLEMENT AGREEMENT Now before the Court is the parties' Joint Motion for Preliminary Approval
of Settlement Agreement. For good cause show, the Motion is hereby
GRANTED. The Proposed Settlement Agreement is approved, pending a fairness
hearing and the Class, as defined in the Proposed Settlement Agreement is
conditionally certified for settlement purposes. The Fairness hearing is scheduled
for at - - - - - - - - - - - - - - - - - - - - - - DONE this the ______ day of _____________________, 2011.

L. SCOTT COOGLER UNITED STATES DISTRICT JUDGE

 
 Case 2:07-cv-00394-LSC Document 123 Filed 01/27/12 Page 1 of 10

FILED
2012 Jan-27 AM 10:19 U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

MARION WATERS, et al., Plaintiffs, vs.
COOK'S PEST CONTROL, INC., Defendant.

] ] ] ] ] 2:07-cv-00394-LSC ] ] ] ]

ORDER PRELIMINARILY APPROVING SETTLEMENT AND PROVIDING FOR NOTICE

In this putative nationwide class action (“Action”), the parties have made

application for an order preliminarily approving the Settlement of the Action

(“Settlement”), in accordance with the Settlement Agreement submitted to the Court

(the “Agreement”). The Agreement sets forth the terms and conditions for a proposed

Settlement of the Action and for dismissal of the Action with prejudice based upon

its terms and conditions.

On March 1, 2007, Plaintiff Marion Waters (“Named Plaintiff”) filed his initial

Complaint against Cooks Pest Control, Inc. (“Cook’s”), on behalf of himself and

other African-American applicants or individuals discouraged from applying for jobs

with Cook’s. The Named Plaintiff alleged claims under Title VII, 42 U.S.C. §2000e,

Page 1 of 10

Case 2:07-cv-00394-LSC Document 123 Filed 01/27/12 Page 2 of 10
et seq., and 42 U.S.C. § 1981. The initial Complaint alleged that the Named Plaintiff and other similarly-situated African-American applicants had not been hired despite being qualified due to intentional disparate treatment and/or application of facially neutral selection criteria which have an impermissible and unjustified impact on African-Americans. In its Answer to the Complaint, Cook’s denied each and every claim asserted by the Named Plaintiff, both individually and on behalf of the class.
All parties recognized that there was substantial uncertainty regarding the outcome of this case, and if this case was litigated fully, it would be extremely expensive and time consuming. They have decided that prompt resolution of this case is in the best interests of all parties. After almost four years of protracted litigation, which has included the production of thousands of pages of documents, as well as databases and substantial written discovery, the parties have agreed upon a compromise settlement.
The Court heard argument on the parties’ motion for preliminary approval on October 21, 2011. Since that time, the parties have revised the terms of the Agreement and made corrections suggested by the Court. Having read and considered the Agreement, it is now hereby ADJUDGED AND DECREED as follows:
Page 2 of 10

Case 2:07-cv-00394-LSC Document 123 Filed 01/27/12 Page 3 of 10

1. Class Representatives. The Court conditionally appoints Marion Waters

as Class Representative.

2. Class Counsel. Upon consideration of all factors under Federal Rule of

Civil Procedure 23(g)(1), the Court conditionally appoints Samuel Fisher, Robert

Childs, Jr., and Toni J. Braxton of Wiggins, Childs, Quinn & Pantazis, LLC, Thomas

F. Campbell and Ray Bonner of Campbell Law, P.C., and Samuel Hill of the firm of

Hill Turner, as Settlement Class Counsel for the sole purpose of seeking to achieve

a settlement of this action on behalf of the Class.

3. Claims Administrator. The Court appoints Tommy Warren and

Settlement Services, Inc., as the Claims Administrator, which shall consider Claims

for Settlement Compensation in accordance with the terms and conditions of this

Order and the Agreement.

4.

Preliminary Certification. With respect to the Class, the Court

preliminarily finds and concludes that because under Amchem Prods., Inc. v. Windsor,

521 U.S. 591, 620 (1997), “[c]onfronted with a request for settlement-only class

certification, a district court need not inquire whether the case, if tried, would present

intractable management problems . . ., for the proposal is that there can be no trial,”

all requirements pursuant to Fed. R. Civ. P. 23 are met for purposes of certification

Page 3 of 10

Case 2:07-cv-00394-LSC Document 123 Filed 01/27/12 Page 4 of 10
of the Class for settlement purposes only. The Court therefore preliminarily certifies, for purposes of effectuating the Settlement only, a Class consisting of:
All African-Americans who applied for employment at any Cook’s location from March 1, 2005, through the date of preliminary approval, and who were denied employment, excluding all judicial officers or employees of the Federal courts within the second degree of affinity; employees of Plaintiffs’ counsel; and any other person whose presence in the class would cause mandatory recusal of any judge assigned to the case. 5. The Settlement. After a preliminary review, and subject to the Fairness Hearing described below, the Court preliminarily finds that the Settlement appears to be fair, reasonable, and adequate with respect to the Class. The Settlement also appears to be free of collusion to the detriment of Class Members, and its terms are within the range of apparent reasonableness, fairness and adequacy. 6. Fairness Hearing. The Fairness Hearing shall be held before this Court at 9:00 a.m. on Friday, May 25, 2012, in the second-floor District Courtroom of the new Federal Building and Courthouse in Tuscaloosa, Alabama, located at 2005 University Boulevard. The purpose of the hearing shall be: (a) to determine whether a Class shall be finally certified; (b) to determine whether the Settlement of the Action on the terms and conditions provided for in the Agreement is fair, reasonable, and adequate to the Settlement Class and should be approved by the Court; (c)
Page 4 of 10

Case 2:07-cv-00394-LSC Document 123 Filed 01/27/12 Page 5 of 10
whether the Final Judgment and Order of Dismissal with Prejudice (“Final Judgment”) as provided in Section X. B. of the Agreement should be entered herein; (d) to entertain any objections of any affected persons as to the certification of the Class, the proposed Settlement, or any other matter related thereto; and (e) to rule on all other matters pertaining to the proposed Settlement and such other matters as the Court may deem appropriate. The Court reserves the right to adjourn the date of the Fairness Hearing without further notice to the Class Members, and retains jurisdiction to consider all further applications arising out of or connected with the Settlement. The Court may approve the Settlement, with such modifications as may be agreed to by both Defendant's Counsel and Class Counsel, without further notice to the Class.
7. Approval of Notice. The Court approves, as to form and content, the Class Notice provided to the Court, and finds that the mailing and distribution of the Class Notice in the manner and form set forth in Section IX. C. of the Agreement meets the requirements of Federal Rule of Civil Procedure 23 and due process, and is the best notice practicable under the circumstances, and shall constitute due and sufficient notice to the Class Members. The Court further finds that the Class Notice, included as Exhibit 2 hereto, complies with Rule 23 in that it:
clearly and concisely state[s] in plain, easily understood language: (i) the nature of the action;
Page 5 of 10

Case 2:07-cv-00394-LSC Document 123 Filed 01/27/12 Page 6 of 10
(ii) the definition of the class certified; (iii) the class claims, issues, or defenses; (iv) that a class member may enter an appearance through an attorney if the member so desires; (v) that the court will exclude from the class any member who request exclusion; (vi) the time and manner for requesting exclusion; and (vii) the binding effect of a class judgment on members under Rule 23(e)(3). Fed. R. Civ. P. 23(c)(2)(B). 8. Notice Administration. Within thirty (30) days of this Order, the Claims Administrator shall mail the Class Notice attached hereto as Exhibit 2, by first class mail, postage prepaid, to those Class Members for whom Cook’s has address information. With respect to any Class Notices that are returned as undelivered, the Claims Administrator shall attempt one trace and, if the trace establishes an alternate address, attempt one additional mailing of the Class Notice to the alternate address. The Claims Administrator shall not be obligated to undertake additional traces or additional mailing efforts. The Claims Administrator shall also place the Class Notice in online and print versions of a newspaper of general circulation in each county where Cook’s has a district office. 9. Declaration of Notice Compliance. At least thirty (30) days prior to the Fairness Hearing, Defendant’s counsel shall provide Class Counsel and the Court
Page 6 of 10

Case 2:07-cv-00394-LSC Document 123 Filed 01/27/12 Page 7 of 10
with a declaration from a competent declarant stating that the Class Notice Date has occurred.
10. Exclusion from Class Membership. Any Class Member may request to be excluded from the Settlement Class. Such requests for exclusion must be submitted in time to be received by no later than forty-five (45) days after the Class Notice Date and otherwise comply with the requirements set forth in the Class Notice. If the Court grants final approval of the Agreement and enters the Final Judgment, all Class Members who have not submitted valid requests for exclusion shall be bound by the Final Judgment.
11. Binding Nature of Settlement. All Class Members who do not become excluded shall be bound by all determinations and judgments in the Action concerning the Settlement.
12. Objections of Class Members. Class Members may present written objections to the Settlement or appear at the Fairness Hearing in the manner set forth in the Agreement. Any objections must comply with the procedures outlined in the Agreement and Class Notice. Strict compliance with these procedures is required.
14. Appearances at Fairness Hearing. Any Settlement Class Member may appear at the Fairness Hearing, at their own expense, individually or through counsel of their own choice. If they do not enter an appearance, they will be represented by
Page 7 of 10

Case 2:07-cv-00394-LSC Document 123 Filed 01/27/12 Page 8 of 10
Class Counsel. Any Settlement Class Member who wishes to appear individually at the Fairness Hearing must give notice of her or her intent to appear, in accordance with the procedures outlined in the Agreement and disclosed in the Class Notice. If the Court grants final approval of the Agreement and enters the Final Judgment, all Settlement Class Members who have not given notice of their intent to appear individually in accordance with the procedures outlined in the Agreement and disclosed in the Class Notice shall be deemed to have waived their right to participate at the Fairness Hearing and shall be foreclosed from individually participating at the Fairness Hearing unless otherwise ordered by the Court.
15. Attorneys’ Fee Application. Class Counsel’s attorneys’ fee application shall be filed and served no later than April 2, 2012.
16. Objections and Briefs Regarding Settlement Approval. All papers including memoranda or briefs in support of or opposition to the Settlement shall be filed and served than forty-five (45) days after the Class Notice Date.
17. No Admission by the Parties. Neither the Settlement nor the Agreement constitutes an admission, concession, or indication by the Parties of the validity of any claims or defenses in the Action, or of any wrongdoing, liability, or violation of law by the Defendant. The Defendant vigorously denies all of the claims and allegations raised in the Action.
Page 8 of 10

Case 2:07-cv-00394-LSC Document 123 Filed 01/27/12 Page 9 of 10
18. Additional Matters. This Preliminary Approval Order shall become null and void, and shall be without prejudice to the rights of the Parties, all of whom shall be restored to their respective positions existing immediately before the Parties entered into the Agreement, if: (1) the Settlement is not finally approved by the Court, or does not become Final, pursuant to the terms of the Agreement; or (2) the Settlement is terminated in accordance with the Agreement or does not become effective, as required by the terms of the Agreement or for any other reason. In either of such events, and except as provided therein, the Agreement shall become null and void and be of no further force and effect, and neither the Agreement, the documents submitted in connection with it, nor the Court’s orders relating thereto, including this Preliminary Approval Order, shall be used or referred to for any purpose whatsoever.
This Preliminary Approval Order shall be of no force or effect if the Settlement does not become final, and nothing in this Preliminary Approval Order shall be construed or used as an admission, concession, or declaration by or against Defendant, of any fault, wrongdoing, breach, or liability. This Preliminary Approval Order shall not be construed by or against Plaintiff or the Class Members that their claims lack merit or that the relief requested in this Action is inappropriate, improper, or unavailable, or as a waiver by any Party of any defenses it may have. This Preliminary Approval Order shall not be construed or used to show that certification
Page 9 of 10

Case 2:07-cv-00394-LSC Document 123 Filed 01/27/12 Page 10 of 10
of one or more classes would or would not be appropriate if this Action were to be litigated rather than settled.
Done this 27th day of January 2012. ____________ L. SCOTT COOGLER
UNITED STATES DISTRICT JUDGE
139297
Page 10 of 10

 
 Case 2:07-cv-00394-LSC Document 131 Filed 05/10/12 Page 1 of 37

FILED
2012 May-10 PM 10:10 U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

MARION WATERS, Plaintiff,
v. COOK’S PEST CONTROL, INC.,
Defendant.

) ) ) ) CASE NO. 07-CV-0394-LSC ) ) ) )

PLAINTIFFS’ BRIEF IN SUPPORT OF MOTION FOR FINAL APPROVAL OF CLASS SETTLEMENT, ATTORNEY FEE AWARD AND OTHER RELIEF
INTRODUCTION The efforts of the representative plaintiff, the defendants, and their respective counsel have yielded a class action settlement providing monetary and non-monetary benefits for employment applicants for positions at Cook’s Pest Control, Inc. (“Cook’s”). Plaintiff Marion Waters filed this lawsuit on behalf of himself and other African-American applicants or individuals denied employment or discouraged from applying for jobs with Cook’s because of their race. The terms of this settlement will provide Cook’s employees with training and hiring procedures developed to eliminate race discrimination in the workplace. The settlement will also provide monetary relief for African-American class members who applied for, but were denied, employment at any Cook’s location during a specified period. The parties now request that this Court certify the settlement class and give its final approval on the settlement. The parties request approval of the incentive award to the representative plaintiff who helped further the lawsuit. Finally, Class Counsel have elected

Case 2:07-cv-00394-LSC Document 131 Filed 05/10/12 Page 2 of 37
to use the “common fund” method of determining reasonable attorneys’ fees in this matter, in order to eliminate the Court’s need to for an hour-by-hour review.1 Class Counsel requests an attorneys fee award of 35% of the common settlement fund which equals $875,000.00 plus reasonable litigation expenses in the amount of $53,831.55.
PROCEDURAL HISTORY This class action was filed by Plaintiff Marion Waters on February 28, 2007. (Doc. 1). The Complaint as amended on July 17, 2007, asserts claims for violation of Title VII and 42 U.S.C. §1981 for failure to hire based on race. (Doc. 3). Cook’s moved to dismiss all of the Plaintiffs’ claims, which was denied on January 28, 2008. (Doc. 7, Doc. 25). The defendant answered the complaint on February 11, 2008. (Doc. 27). On June 5, 2008, Defendant filed a motion for summary judgment, which was denied without prejudice, on December 9, 2008. (Doc. 59). On December 6, 2010, the parties filed a joint motion to stay this action pending mediation, which was granted. (Doc. 110). Extensive discovery on the merits has been conducted regarding disparate impact and pattern and practice disparate treatment race discrimination claims of the Named Plaintiff and Class Members. The Parties have employed experts to assist in evaluating data and statistical evidence. In addition, there was extensive motion practice concerning discovery, including motions to compel discovery and motions for protective orders.
MEDIATION AND SETTLEMENT Counsel for the parties participated in mediation beginning in December, 2010. The
1See Loranger v. Stierheim, 10 F.3d 776, 783 (11th Cir. 1994)(The Eleventh Circuit has recognized that "an hour-by-hour review is both impractical and a waste of judicial resources.").
2

Case 2:07-cv-00394-LSC Document 131 Filed 05/10/12 Page 3 of 37
parties chose Hunter R. Hughes of the law firm Rogers & Hardin, LLP in Atlanta, Georgia as mediator. The Settlement Agreement that has resulted is the product of litigation, discovery and a protracted and intensive mediation process. A settlement agreement was reached in October 2011 and, on November 3, 2011, a Joint Motion for Preliminary Approval of the Settlement was filed with this Court. (Doc. 120). The same was granted on January 27, 2012. (Doc. 123). The Court preliminarily certified the settlement class and approved the form of notice. (Doc. 123). The Court appointed Plaintiff’s counsel as Class Counsel; Tommy Warren and Settlement Services, Inc., as Claims Administrator; and Professor James Coleman, of Duke University, as Monitor. (Doc. 123).
Following the Court’s decision to preliminarily approve settlement and certify the settlement class, notice was mailed to applicants who applied for employment with Cook’s during the settlement period. (Fisher Decl., ¶ 23). Notices were also published in online and print versions of newspapers of general circulation in localities where Cook’s has a district office. (Fisher Decl., ¶ 23).
The settlement has met with overwhelming approval by the settlement class members. The deadline for objections and opt-outs was April 12, 2012. (Fisher Decl., ¶ 24). As of the deadline, 297 putative settlement class members have submitted claim forms. (Fisher Decl., ¶ 24). No settlement class member has objected or opted out. (Fisher Decl., ¶ 24). Thus, 100% of the settlement class has either actively or passively accepted the benefits of the settlement. (Fisher Decl., ¶ 24).
SUMMARY OF SETTLEMENT TERMS The Settlement Agreement defines the Settlement Class as follows: All African-Americans who applied for employment at any Cook’s location
3

Case 2:07-cv-00394-LSC Document 131 Filed 05/10/12 Page 4 of 37
from March 1, 2005 through the date of preliminary approval, and who were denied employment, excluding all judicial officers or employees of the Federal Courts within the second degree of affinity; employees of Plaintiff’s counsel; and any other person whose presence in the class would cause mandatory recusal of any judge assigned to the case. The settlement fund consists of $2,500,000, which includes all costs and fees (“Settlement Fund”). Cook’s will be responsible for all costs and expenses of the settlement administration. The payment to the Settlement Fund will be in two installments: one installment in the amount of $1.5 million will be paid on or before 30 days after the date of final approval of the Decree, and will include payment of attorney’s fees. The remaining balance of the settlement payment will be paid no later than the end of the first week of January 2013. The Consent Decree will provide for a Rule 23(b)(2) and Rule 23(b)(3) settlement class that would cover all of Cook’s facilities for all African-Americans who applied for the positions addressed in the Complaint. The Decree will also provide for a general release by the Named Plaintiff of all claims of every type. The Named Plaintiff will receive an incentive payment, in the amount of one and one-half times the maximum amount paid to a settlement class member, to be paid out of the Settlement Fund. Each member of the Settlement Class who receives compensation under the Decree will give a release of all claims relating to Cook’s failure to hire them. The length of the Decree shall be three years, but may be extended to a maximum of four years, to the extent necessary to resolve any challenges still pending with the Monitor at the end of three years. The Decree will also include the following terms: • With the assistance and approval of the Monitor, Cooks will establish objective, facially neutral hiring criteria that shall be used in the hiring process for the positions of sales, pest control technician, or termite technician during the term of
4

Case 2:07-cv-00394-LSC Document 131 Filed 05/10/12 Page 5 of 37
the Decree. • Cook’s will hire qualified applicants at each facility without regard to race. • Cook’s CEO will issue to all employees a statement affirming Cook’s anti-
discrimination policy and describing its implementation and the reporting process if they believe a violation has occurred. • Cook’s will institute periodic training of its hiring and other management and supervisory personnel relative to the terms of the Decree, non-discriminatory hiring and other terms and conditions of employment. • Cook’s will put in place mutually agreed upon recordkeeping procedures that shall include the compilation by each facility of applicant flow data by race, the number of Monitored Position hires by race, and a summary of the reasons for selection/rejection of each applicant for the Monitored Positions.
ARGUMENT I. THIS COURT SHOULD CERTIFY THE SETTLEMENT CLASS.
The party seeking to certify a class bears the burden of showing that the requirements of Rule 23 have been met. Amchem Products, Inc. V. Windsor, 521 U.S. 591 (1997). “Whether to certify a class action rests within the sound discretion of the district court.” In re Healthsouth Corporation Securities Litigation, 257 F.R.D. 260, 270 (N.D. Ala. 2009)(citing Cooper v. Southern Co., 390 F.3d 695 (11th Cir. 2004). This discretion must be exercised pursuant to the dictates of Rule 23. Id. In evaluating a motion for class certification, the allegations of the complaint should be taken as true and the Court is to assume that cognizable claims are stated. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974).
A. The Proposed Settlement Class Meets the Requirements of Rule 23(a).
The elements of Rule 23(a) 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)
5

Case 2:07-cv-00394-LSC Document 131 Filed 05/10/12 Page 6 of 37
the claims or defenses of the representative parties are typical of the claims or defenses of the class; (4) the representative parties will fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a). These requirements are often referred to as numerosity, commonality, typicality, and adequacy of representation, and often tend to overlap and merge. Amchem, 521 U.S. at 626 n. 20. This action satisfies all the requirements of Rule 23(a).
Plaintiff Marion Waters has standing to bring the claims raised in the complaint and has timely filed an EEOC charge alleging race discrimination in hiring, thus exhausting his administrative remedies. Additionally, Plaintiff has properly alleged that the injuries of which he complains occurred as a direct consequence of Defendant’s discriminatory hiring practices and policies. The individual claims of the Plaintiff and the claims of the settlement class of members he seeks to represent all arise from the same or similar discriminatory hiring practices and policies.
1. Numerosity. Plaintiff must show that the settlement class is so numerous that joinder of all members is impracticable. Rule 23 (a)(1). In the Eleventh Circuit, classes of more than forty persons are generally held to satisfy the numerosity requirement. See Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir. 1986). Even where the exact number of persons in the class cannot be determined with precision, a district court may make “common sense assumptions regarding numerosity. Evans v. U.S. Pipe & Foundry, 696 F.2d 925, 930 (11th Cir. 1983). In this case, the settlement class which Plaintiff seeks to represent is currently made up of thousands of African-American applicants. (Fisher Decl., ¶ 18). The settlement class
6

Case 2:07-cv-00394-LSC Document 131 Filed 05/10/12 Page 7 of 37
members applied at various Cook’s locations that are geographically dispersed throughout Alabama, Georgia, Mississippi and Tennessee. (Fisher Decl., ¶ 18). Joinder of all or even a substantial percentage of settlement class members before this Court as individual plaintiffs would be impracticable. (Fisher Decl., ¶ 18).
2. Commonality Plaintiff must also show that there are questions of law or fact that are common to the class. Rule 23(a)(2). This is a “minimal standard” that “merely requires an identity of some factual or legal matter among members of the class.” Healthsouth, 257 F.R.D. at 274, citing Hudson v. Delta Air Lines, Inc., 90 F.3d 451, 456 (11th Cir. 1996). It is not necessary for all questions of law or fact to be common to the class. Id. Plaintiff alleges, on behalf of himself and the prospective settlement class, that the Defendant has a pattern or practice of discrimination that results in African-American applicants being denied employment. (Fisher Decl., ¶ 19). These questions are common to every potential class member and must be analyzed by the same class-wide statistical analysis that applies to all applicants. (Fisher Decl., ¶ 19). The common focus was not on individualized fact situations but a pattern of discriminatory decision making and a combination of statistical, historical and anecdotal evidence. (Fisher Decl., ¶ 19). As the individual facts alleged by Plaintiff are manifestations of Defendant’s uniform policy and practice of race discrimination, Plaintiff has shown that there are questions of law or fact that are common to the settlement class.
3. Typicality Plaintiff is required, pursuant to Rule 23(a)(3), to show that the claims of the representative party are typical of the claims of the class. In this case, the named Plaintiff
7

Case 2:07-cv-00394-LSC Document 131 Filed 05/10/12 Page 8 of 37
herein and the members he seeks to represent, challenge the same unlawful course of conduct. This alignment of interests assures that the absentees' interests will be fairly represented. Typicality and commonality tend to merge as they are focusing on the similarity of claims. Dujanovic v. MortgageAmerica, Inc., 185 F.R.D. 660, 667 (N.D. Ala. 1999). A standard, uniform course of conduct that affects class members is generally all that is required to establish commonality. Id. “[T]here must be a nexus between the class representative’s claims . . . and the common questions of fact or law which united the class. A sufficient nexus is established if the claims or defenses of the class and the class representative arise from the same event or pattern or practice and are based on the same legal theory. Typicality, however, does not require identical claims.” In re Healthsouth Corporation Securities Litigation, 257 F.R.D. 260, 275 (N.D. Ala. 2009)(quoting Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1337 (11th Cir. 1984), cert. denied, 470 U.S. 2004 (1985). The key is “whether the proposed class representatives’ claims have the same essential characteristics as those of the proposed class.” Id. Here, the claims of the Plaintiff and the settlement class members arise from the same events – application for employment at Cook’s.
4. Adequacy of Representation Plaintiff must also show, pursuant to Rule 23(a)(4), that he, as the representative party, will fairly and adequately represent the interests of the class. Adequacy involves a determination whether there are any substantial conflicts of interest between the representatives and the class members, and whether the representatives will adequately prosecute the case. Healthsouth, 257 F.R.D. at 275. A class representative need not be intimately familiar with every fact or legal argument in a case. Morris v. Transouth
8

Case 2:07-cv-00394-LSC Document 131 Filed 05/10/12 Page 9 of 37
Financial Corporation, 175 F.R.D. 694, 698 (M.D. Ala. 1997). Nor are the finances of the class representatives “particularly important.” Id., citing Deposit Guaranty Nat’l Bank v. Roper, 445 U.S. 326 (1980). A plaintiff of limited means can be a class representative in a major class action. Id.
In this case, the named Plaintiff has no conflicts of interests that will arise, as he has the same interests as the class members and has vigorously prosecuted the action on behalf of the class. (Fisher Decl., ¶ 20). He has demonstrated a desire to protect the interests of the class members and has taken an active role in the litigation. (Fisher Decl., ¶ 20). The Plaintiff’s attorneys have extensive experience as litigators and specialize in complex litigation in the federal courts, including class actions and multi-party cases. (Fisher Decl., ¶ 21; Campbell Decl., ¶2; Hill Decl., ¶2). Based on the foregoing factors, the putative settlement class should be certified. II. The Settlement Meets the Standards for Approval Under Rule 23
This Court should approval this class settlement under Rule 23(e) because the settlement is fair, reasonable and adequate. In order to approve a class action settlement, the court “must find that it is fair, adequate and reasonable and is not the product of collusion between the parties.” Bennett v. Behring Crop., 737 F.2d 982, 986 (11th Cir. 1984) (citing Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir. 1977). “Determining the fairness of the settlement is left to the sound discretion of the trial court,” and will not be overturned “absent a clear showing of abuse of that discretion.” Id. In Bennett, the Eleventh Circuit identified the factors to consider in determining whether a settlement is fair, adequate and reasonable: “(1) the likelihood of success at trial; (2) the range of possible recovery; (3) the point on or below the range of possible recovery at which a settlement is
9

Case 2:07-cv-00394-LSC Document 131 Filed 05/10/12 Page 10 of 37
fair, adequate and reasonable; (4) the complexity, expense and duration of litigation; (5) the substance and amount of opposition to the settlement; and (6) the stage of proceedings at which the settlement was achieved.” Id. “The Court may also consider the judgment of experienced counsel.” Smith, 2010 U.S. Dist. LEXIS 67832, at *6. Here, the settlement is fair, adequate and reasonable, and resulted from arm’s length negotiations between experienced counsel following extensive discovery.
A. The Likelihood of Success At Trial. The settlement is fair, reasonable and adequate when weighed against the likelihood of success at trial. While Plaintiff’s counsel believe that they would have prevailed on any dispositive motions, there is always significant risk in continuing litigation. (Fisher Decl., ¶ 25). The Defendant is represented by experienced and competent counsel who have raised legal and factual issues which, if successful by motion, at trial, or on appeal, could substantially reduce or completely eliminate a potential recovery for the settlement class. (Fisher Decl., ¶ 25). The ability to predict a likely result in cases like this one is virtually impossible. (Hopkins Decl., p. 31). Counsel for plaintiffs cannot speculate as to what facts Cook’s may be able to present, how trial and appellate courts will react, or the cost and duration of the litigation. (Hopkins Decl., p. 31). Setting a budget and predicting the range of potential outcomes is extremely difficult and unreliable. (Hopkins Decl., p. 31). Therefore, taking on a case like this one involves “extraordinary risk of a degree that may be unparalleled in employment litigation.” (Hopkins Decl., p. 31). As the declaration of Professor Harry L. Hopkins, long-time attorney in the area of labor and employment litigation, explains: The additional burden for plaintiff lawyers evaluating cases is that the
10

Case 2:07-cv-00394-LSC Document 131 Filed 05/10/12 Page 11 of 37
information necessary to evaluate a disparate impact or pattern and practice claim for a group of incumbent employees is tilted in favor of employers. Incumbent employees lack the "big picture" or information necessary to understand the employer's internal decision making process. However, when the prospective class involves a class of unsuccessful applicants who by definition have almost no credible information about an employer, the ability to evaluate a case is as daunting, difficult, and risky as any claims known in the law. And as employers have changed their culture over the decades, and discriminatory practices have become more opaque, the risks associated with being able to evaluate the potential for success in cases has become more difficult, not less.
(Hopkins Decl., ¶ 11).
B. The Range of Possible Recovery and the Point on or below the Range of Possibly Recovery at Which a Settlement Is Fair, Adequate and Reasonable.
The range of possible recovery weighs heavily in favor of concluding that the
settlement is fair, adequate and reasonable. While the anticipated damages of the
settlement class could possibly exceed the amount provided in the settlement, there is no
guarantee that Plaintiff or the class would obtain any judgment at trial against Cook’s.
(Fisher Decl., ¶ 26).
C. The Complexity, Expense and Duration of Litigation.
The complexity, expense and duration of further litigation weigh heavily in favor of
concluding that the settlement is fair, adequate and reasonable. This is a complex case
involving a multitude of legal issues, most of which have not yet been fully litigated and
adjudicated, including, but not limited to, the viability of claims asserted against the
defendant. (Fisher Decl., ¶ 27). Continuing the litigation will also continue the expenses for
both sides, likely reducing the net amounts potentially available for recovery by the
settlement class. (Fisher Decl., ¶ 27).
The law relating to employment class actions has been in a constant state of flux
11

Case 2:07-cv-00394-LSC Document 131 Filed 05/10/12 Page 12 of 37
since 1964. See Walmart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011). Furthermore, There have also been relatively frequent Congressional Acts that have reversed Supreme Court rulings regarding employment class actions which have made learning the law in this area both stimulating and frustrating for practitioners and a barrier to entry into the legal marketplace for litigating these claims for new lawyers - especially those who are not compensated as services are rendered (i.e., the plaintiff's bar).
(Hopkins Decl., ¶ 15). The acceptance of representation of the Plaintiff in a race discrimination case also
has a very negative effect on the financial health of a law firm because of the delay in the payment of fees and expenses in successful cases and the non-payment of fees and expenses in unsuccessful cases. Both of these factors present a necessary and inherent part of the representation of plaintiffs for all firms who accept such cases. The delay in payment often lasts from 2-5 years or longer, as in this case. (Fisher Decl., ¶ 28).
D. The Stage of Proceedings at Which the Settlement Was Achieved. The settlement was achieved after completion of extensive discovery, including taking the depositions of key witnesses as well as reviewing thousands of pages of documents relating to the claims and defenses at issue in the case. (Fisher Decl., ¶ 29). At this stage in the proceedings, the legal and factual issues are well known to both sides and to the Court. This is not a situation in which a settlement is quickly proposed when the facts relating to liability or damages are unclear or undiscovered. Litigation in this case was in its fifth year. However, as discussed above, the litigation is still at an early enough stage in the proceedings such that a settlement now would avoid the substantial expense involved with continued litigation, as well as the risk of adverse rulings on many important issues that have not yet been litigated.
12

Case 2:07-cv-00394-LSC Document 131 Filed 05/10/12 Page 13 of 37
E. The Judgment of Experienced Counsel. Class Counsel in this case are experienced in successfully handling complex class action employment cases. (Fisher Decl., ¶ 30). Class Counsel have completed substantial discovery in this case and carefully evaluated the strengths and weaknesses of our theories and evidence, and believe that the settlement is in the best interests of the settlement class. (Fisher Decl., ¶30). While Class Counsel remain confident that the class members could obtain a significant judgment in the event the case proceeds to trial, Counsel also believe that a settlement at this point in litigation is in the best interests of the settlement class. (Fisher Decl., ¶30). All of these factors being met, the settlement proposed here is fair, reasonable and adequate, and should be approved by the Court. III. This Court Should Approve the Class Representative Service Award to the Representative Plaintiff, Marion Waters The Settlement Agreement calls for the named Plaintiff, Marion Waters, to receive a Service Award for participation in the action and his service to the settlement class. It has been agreed that the Service Award will be paid from the Settlement Fund, and will be one and one-half times the maximum amount paid to a settlement class member. Incentive awards are not uncommon in class action litigation where, as here, a common fund has been created for the benefit of the class. Incentive awards compensate named plaintiffs for the services they provided and the risks they incurred during the course of the class action litigation. Allapattah Servs. v. Exxon Corp., 454 F. Supp. 2d 1185, 1218 (S.D. Fla. 2006)(citing In re Southern Ohio Corr. Facility, 175 F.R.D. 270, 272-76 (S.D. Ohio 1997)). Incentive awards serve an important function, particularly where the named
13

Case 2:07-cv-00394-LSC Document 131 Filed 05/10/12 Page 14 of 37
plaintiffs participated actively in the litigation. Id. (citing Denney v. Jenkens & Gilchrist, 230 F.R.D. 317, 355, 2005 WL 388562, at *31 (S.D. N.Y. Feb. 18, 2005)).
While the Eleventh Circuit has not expressly set forth guidelines for courts to use in determining incentive awards, there is ample precedent for awarding incentive compensation to class representatives at the conclusion of a successful class action. In fact, "'[c]ourts routinely approve incentive awards to compensate named plaintiffs for the services they provided and the risks they incurred during the course of the class action litigation.'" Ingram v. Coca-Cola Co., 200 F.R.D. 685, 694 (N.D. Ga. 2001 ).
Waters initially consulted with Sam Hill, who suggested that an attorney with experience and familiarity with Cook’s and employment testing and hiring class action cases should be consulted. (Waters Decl., ¶ 12). Waters consulted with Tom Campbell, who informed him that the complexity and long duration of the case would require association of a larger firm with extensive experience in these cases. (Waters Decl., ¶ 13). Subsequently, the firm of Wiggins, Childs, Quinn & Pantazis, joined in the representation of the class. (Waters Decl., ¶ 13). Waters determination to find the best representation for his interest and the interests of the class is clearly evident.
Although the discovery process in this case was long, Waters kept up with the progress of the case and assisted Class Counsel in preparing for depositions and discussing strategies. (Waters Decl., ¶ 17-18). Waters also participated directly in the formal mediation sessions, with his sole objective being “to make sure that the class received the best possible outcome.” (Waters Decl., ¶ 19, 21). Waters also attended the preliminary approval hearing. (Waters Decl., ¶ 23). As Waters stated in his declaration, attached hereto:
14

Case 2:07-cv-00394-LSC Document 131 Filed 05/10/12 Page 15 of 37
I have taken time away from both work and personal obligations, held myself up to public scrutiny and ridicule and forever associated my name and reputation with a cause I believed, but which has exposed me to potential risks and scorn in some quarters of the community. (Waters Decl., ¶ 23). Nevertheless, Waters invested substantial time and effort working with the attorneys on obtaining a successful resolution of this case. As Professor Hopkins indicates in his declaration: The incentive fee proposed for the named class representative who has stuck with a case for five years and withstood attack by Cook's regarding his adequacy is fair and reasonable. It is in-line or toward the low-end of typical awards in such cases. It is certainly not an amount that should infer bias or self-dealing but is more likely to reflect the probable value of his individual claim that he was clearly intent on pursuing. (Hopkins Decl., p. 26). Based on the foregoing, the Incentive Award should be approved. IV. The Requested Award of Attorneys' Fees Is Reasonable and Warranted It is well established that "a lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorney's fee from the fund as a whole." Boeing Co. v. Ban Gemert, 44 U.S. 472, 478 (1980). "The doctrine rests on the perception that persons who obtain the benefit of a lawsuit without contributing to its cost are unjustly enriched at the successful litigant's expense." Id. As the Eleventh Circuit has held, under the "common benefit" doctrine, when litigation confers substantial benefits on members of a class, courts are authorized to award attorney's fees to class counsel to spread the cost proportionally among the class members. Camden I Cond. Ass'n, Inc. v. Dunkle, 946 F.2d 768, 771 (11th Cir. 1991). Class Counsel's fee award should be based on a percentage of the common fund. (Hopkins Decl., p. 30)(“Class Counsel’s fee award should be based on a percentage of the common fund rather than consuming resources parsing time entries and hourly rates.”).
15

Case 2:07-cv-00394-LSC Document 131 Filed 05/10/12 Page 16 of 37
In this circuit, the law is clear that where a settlement provides for the creation of a common fund, "attorneys' fees awarded from a common fund shall be based upon a reasonable percentage of the fund established for the benefit of the class." Id. at 774. This district has likewise held that a percentage-based fee award accomplishes the following objectives:
First, it is consistent with the private market place where contingent fee attorneys are regularly compensated on a percentage of recovery method. Second, it provides a strong incentive to plaintiffs' counsel to obtain the maximum possible recovery in the shortest time possible under the circumstances. Finally, the percentage approach reduces the burden of the Court to review and calculate individual attorney hours and rates and expedites getting the appropriate relief to class members. Garst v. Franklin Life Ins. Co., 1999 U.S. Dist. LEXIS 22666 at *83-84 (N.D. Ala. June 25, 1999); See Dikeman v. Progressive Express Ins. Co., 312 Fed. Appx. 168, 172 (11th Cir. Fla. 2008)(district court is not limited to applying a lodestar analysis for a statutory fee-shifting award because the suits were resolved by a class settlement agreement without any express finding as to defendant's willful noncompliance ). A. The requested fee of 35% of the common fund is within the range
considered reasonable and fair in the Eleventh Circuit The Eleventh Circuit has consistently held that “there is no hard and fast rule mandating a certain percentage of a common fund which may be awarded as a fee because the amount of any fee must be determined upon the facts of each case.” Camden I, 946 F.2d at 771. In this circuit, the majority of common fund fee awards fall between 20% and the "upper limit of 50% of the fund.” Id. at 774-75; In re Sunbeam; Securities Litigation, 176 F.Supp.2d 1323, 1333 (S.D. Fla. 2001)(the 25% "bench mark" is just that; it is not a ceiling or a floor).
16

Case 2:07-cv-00394-LSC Document 131 Filed 05/10/12 Page 17 of 37
Class Counsel here are requesting a 35% fee, which “represents a good balance between competing interests in this highly specialized area.” (Hopkins Decl., ¶ 22)(This figure would not be viewed as a windfall to the Plaintiffs' attorneys). As Class Counsel will demonstrate, this requested percentage is fair and reasonable when analyzed under the Camden I/Johnson factors.
The Johnson factors are also considered by the court in determining the reasonable percentage of a common fund to award class-action counsel. Id. (citing factors from Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974)). These factors include: (1) the time and labor required; (2) the novelty and the difficulty of the questions presented; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to the acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Id. A consideration of the relevant factors in this case supports the 30% fee award requested by Class Counsel in this case.
1. The Time and Labor Required The amount of time and labor required to achieve a result is an important consideration when considering a fee application. See, e.g., Garst, 1999 U.S. Dist. LEXIS 22666 at *88 (finding plaintiffs' fee request reasonable where counsel had expended thousands of hours on a contingency basis); Carnegie v. Mut. Sav. Life Ins. Co., 2004 LEXIS 29404 at *137-38 (N.D. Ala. Nov. 23, 2004)(recognizing that complex civil litigation
17

Case 2:07-cv-00394-LSC Document 131 Filed 05/10/12 Page 18 of 37
is particularly demanding on attorneys' time and "where a plaintiff has obtained an excellent result, his attorney should recover a fully compensatory fee")(quoting Hensley v. Eckerhart, 461 U.S. 424, 435-36 (1983).
Here, Class Counsel dedicated substantial time and effort during the five years since this litigation started. (Fisher Decl., ¶ 32). Extensive time and energy was spent in motions practice; discovery, including several lengthy document inspections and review of thousands of employment applications; and in a protracted mediation period involving both formal and informal mediation sessions and conferences. That lasted for nearly a year. (Fisher Decl., ¶ 32). Class Counsel was dedicated to this case, and diligently pursued the class' claims in litigation and extensive settlement efforts, notwithstanding the risk of non-payment presented in this case. (Fisher Decl., ¶ 26). These efforts were the necessary groundwork for the Settlement finally obtained in this case. (Fisher Decl., ¶ 26). Thus the first Johnson factor, the time and labor required, supports the requested fee award in this case.
In this case, Class Counsel are requesting 35% of the common fund, which equals only $875,000.00 in fees. If the hours expended by Class Counsel were billed on a “straight” hourly basis, the lodestar figure would be approximately $1,076,140.00. On a firm-by-firm basis, the lodestar calculations are as follows:
18

Case 2:07-cv-00394-LSC Document 131 Filed 05/10/12 Page 19 of 37

FIRM
Wiggins, Childs, Quinn & Pantazis, LLC Attorneys (Samuel Fisher, Robert Wiggins, Robert Childs, and Toni J. Braxton; James V. Doyle)
The Campbell Law Group Attorneys (Tom Campbell and Ray Bronner) Professionals Total
The Law Offices of Samuel Hill, LLC Attorneys (Sam Hill)
TOTAL

HOURS LODESTAR

1,128.00 $525,468.75

1,047.15 241.15
1,288.30

495, 660.25 33,761.00
$529,421.25

50.00 $21,250.00 2,466.30 $1,076,140.00

These lodestar figures are based upon the given firm’s current billing rates and contemporaneous time records. (Fisher Decl., ¶ 34; Campbell Decl., ¶ 22; Hill Decl., ¶11). An average of $530 for associates and $900 for senior partners is billed at the AmLaw 100 law firms. (Campbell Decl., ¶ 23, Ex. D).
Counsel here expended in the neighborhood of 2,200 hours. Hopkins Decl., ¶30). However, if not for the vast experience of the lawyers in the case many more hours would have been spent getting up to speed on the law and potential litigation strategies and tactics. (Hopkins Decl., p. 30).
Although there are three separate law firms representing Class Counsel in this case, there was no duplication of efforts among the firms. (Fisher Decl., ¶ 11). Each firm had a distinct role in the prosecution of this case. (Fisher Decl., ¶ 11). The Hill Turner firm was the initial firm contacted by Plaintiff Marion Waters. (Fisher Decl., ¶ 11). Sam Hill maintained a close relationship with the client throughout the entire litigation process. (Fisher Decl., ¶ 11). Hill Turner worked early on to put together the litigation team and to

19

Case 2:07-cv-00394-LSC Document 131 Filed 05/10/12 Page 20 of 37
explore the feasability of seeking class-wide and company-wide relief, based on the claims that emerged from preliminary investigation of Cook’s hiring practices. (Hill Decl., ¶4; Fisher Decl., ¶ 39). Sam Hill engaged Tom Campbell and his firm and they ultimately presented the case to WCQP. ((Hill Decl., ¶4, 6; Fisher Decl., ¶ 11).
After the preliminary stages, Hill Turner played only an intermittent role in the actual litigation. (Fisher Decl., ¶ 12). However, Campbell Law, PC worked intensively during the early stages of litigation, drafting the complaint and early discovery, responding to motions to dismiss and attending hearings. Campbell continued to maintain a key role throughout the prosecution of this case. (Fisher Decl., ¶ 12).
WCQP became involved in the case in the early stages, but initially played a relatively subordinate role, mostly monitoring and consulting. (Fisher Decl., ¶ 13). As litigation progressed and moved into the more intensive discovery stage, WCQP began to play a more primary role. (Fisher Decl., ¶ 13). WCQP’s role included gathering employment data to be analyzed, employing the expert consultants and working very closely with them to develop the statistical evidence on disparate impact. (Fisher Decl., ¶ 13). WCQP, LLC also played a key role in mediation and settlement. (Fisher Decl., ¶ 13).2
2Furthermore, there was no duplication in work among the lawyers at WCQP, LLC who were involved in this case. (Fisher Decl., ¶ 35). Each lawyer played a significant, but identifiable role in this case. (Fisher Decl., ¶ 35). Samuel Fisher was the initial point of contact for the firm and played a lead role throughout the course of the firms involvement in the case; from early investigation through mediation and settlement. (Fisher Decl., ¶ 35). Toni Braxton played the important role of drafting pleadings, responding to motions, and keeping the case progressing toward resolution. (Fisher Decl., ¶ 42). James V. Doyle, along with Ms. Braxton also participated in the necessary and time consuming task of document review and data compilation. (Fisher Decl., ¶ 35). Robert Wiggins played an early consulting role, assessing the strengths of the case and making recommendations about its direction. (Fisher Decl., ¶ 36). Robert Childs became involved in the case at the mediation stage and worked closely through
20

Case 2:07-cv-00394-LSC Document 131 Filed 05/10/12 Page 21 of 37
2. The Novelty and Difficulty of the Questions Presented One of the factual issues in this case involved evidence of racial coding of applications. Cases involving "coding" are rare and have not been discussed among the employment bar except in one other case since the 1970's. (Hopkins Decl., ¶ 18). This case also involved evidence that Cook’s did not maintain applicant flow data, as required by the EEOC Uniform Guidelines. (Hopkins Decl., ¶ 18). Cases involving those facts are likewise rare. (Hopkins Depo., ¶ 18). “There are one or two generations of lawyers with significant experience in this narrow sub-specialty of employment law who have never seen issues raised in this litigation.” (Hopkins Decl., ¶ 18). The number of lawyers competent to handle these difficult cases is dwindling. (Hopkins Decl., ¶ 19). Furthermore, Cook's was represented by attorneys with many years of litigation and trial experience, and had virtually unlimited resources with which to prepare and present their defenses. In fact, in the past decade, there have been a mere handful of defense firms in Alabama with the requisite experience to handle these kinds of cases from evaluation through trial or settlement. (Hopkins Decl., ¶ 21). Two of the defense firms are representing Cook's in this case. (Hopkins Decl., ¶ 21). The complexity and uncertainty in the law, combined with the vigorous defense at every stage of the case, presented novel and difficult questions which were successfully navigated by Class Counsel. Thus, the second Johnson factor supports the fee award requested.
settlement. (Fisher Decl., ¶ 36). 21

Case 2:07-cv-00394-LSC Document 131 Filed 05/10/12 Page 22 of 37
3. The Skill Requisite to Perform the Legal Service Properly The representation of employees and job applicants in cases alleging employment discrimination requires a high degree of skill and experience not readily found among members of the bar in a typical local market. There are a myriad of legal decisions and judgments that have to occur in order to successfully litigate these claims, not the least of which involves the determinations of which theories of liability should be pursued under which statutory basis. It takes many hundreds of hours of study and substantial practical experience for a lawyer to become competent to serve as a first or second chair strategist on a disparate impact case that potentially involves challenges to facially neutral job criteria. (Hopkins Decl, ¶ 16). A lawyer who lacks this experience could not effectively screen the case for worthiness, plead it effectively, or strategize how to posture it for litigation. (Hopkins Decl, ¶ 16). As Professor Hopkins has explained: For all of the foregoing reasons and many more, there have never been many lawyers or law firms competent, willing and able to undertake employment discrimination class action cases - and this is especially true for hiring class actions. Nationally there are maybe a dozen or so firms scattered across the country in the larger metropolitan areas that handle such cases effectively. Those firms tend to concentrate on cases involving many thousands of job openings for large organizations (including government agencies) and private employers. While some of those firms may get involved in a case the size of the Cook's matter, many would not, especially if there were potential issues raised about the suitability of the class representative such as Cook's was initially asserting in this litigation. (Hopkins Decl., ¶ 17). In this case, Class Counsel were uniquely qualified in this important sub-specialty, and took on a contingent fee case “of the most extreme difficulty known to this highly specialized area of the law.” (Hopkins Decl., p. 17). This factor has been met.
22

Case 2:07-cv-00394-LSC Document 131 Filed 05/10/12 Page 23 of 37
4. The Preclusion of other employment by the attorneys due to acceptance of the case
This factor requires consideration of whether “once the employment is undertaken the attorney is not free to use the time spent on the client’s behalf for other purposes.” Johnson, 488 F.2d at 718. As reflected by the sheer number of hours devoted by the attorneys and paralegals involved in prosecuting this case, many people devoted a substantial amount of their total available time to this litigation at the preclusion of other work. Thus, the fourth Johnson factor supports the fee award requested.
Furthermore, representation of plaintiffs in cases like this one often leads to conflicts of interest which prevent the plaintiff’s attorney from being able to represent corporate defendants who would provide non-contingent employment on a continuing basis. The law firm which represents plaintiffs must weigh the value of the representation of an individual plaintiff in a single lawsuit that is not likely to lead to further representation for that client against the possible loss of repeat business over the course of an entire career from a corporate client. Most, if not all, of the firms in the local markets who seek corporate representation refuse to accept contingent representation of plaintiffs because of the conflicts of interest that such cases cause and because of the effect on their reputation in the local markets which could cause some corporate or potential clients not to choose them as their attorney. This is part of the risk involved in the representation of plaintiffs, i.e., the risk of losing is a definite deterrent to the ability to attract competent counsel in the local markets. Our firm has been faced with this conflict in significant matters in the past.
Secondly, the requirement that fee requests be reviewed by your opponent and approved by the Court or an arbitrator is an extremely undesirable feature of such cases
23

Case 2:07-cv-00394-LSC Document 131 Filed 05/10/12 Page 24 of 37
even when successful. This factor, standing alone, is a deterrent to many attorneys willing to handle such cases. Regardless of the cause of such reductions, the result is a deterrent to accepting contingent representation in employment discrimination cases.
5. The customary fee The “customary fee” in a class action lawsuit is contingent. Ressler v. Jacobson, 149 F.R.D. 651, 654 (M.D. Fla. 1992). This is because, an individual would rarely possess a sufficiently large stake in the litigation to justify paying his attorneys on an hourly basis. Id. This is particularly true in employment discrimination cases where the plaintiff is most often terminated or denied employment. For example, WCQP customarily enters into contingent fee agreements allowing for recovery of 33% in low risk cases with uncontested or moderately contested liability, and up to 49% in higher risk cases with difficult liability issues. (Fisher Decl., ¶ 43). The fee percentage requested in this case is at the low end of that range. (Fisher Decl., ¶ 43). Again, the majority of common fund fee awards in this circuit fall between 20% and 50% of the fund. Camden I, 946 F.2d at 771. As such, Class Counsel’s request for a 35% fee is reasonable.
6. Whether the fee is fixed or contingent Class Counsel accepted this matter on a wholly contingent basis. Courts uniformly hold that when recovery is contingent, a higher fee should be awarded than when counsel undertake no risk of non-payment. See, e.g., Blum v. Stenson, 465 U.S. 886, 902 (1984)(“the risk of not prevailing, and therefore the risk of not recovering any attorney’s fees, is a proper basis on which a district court may award an upward adjustment to an otherwise compensatory fee”); Behrens v. Wometco Enter., Inc., 118 F.R.D. 534, 548 (S.D. Fla. 1998), aff’d, 899 F.2d 21 (11th Cir. 2001)(“A contingency fee arrangement often justifies
24

Case 2:07-cv-00394-LSC Document 131 Filed 05/10/12 Page 25 of 37
an increase in the award of attorneys’ fees”); Jones v. Diamond, 636 F.2d 1364, 1382 (5th Cir. 1981)(“Lawyers who are to be compensated only in the even of victory expect and are entitled to be paid more when successful than those who are assured of compensation regardless of result”).
This is also true because there is substantial risk that, after investing thousands of hours, plaintiff’s counsel may receive no compensation whatsoever. Ressler, 149 F.R.D. at 655-656. Employment law plaintiff’s firms know from experience that, despite the most vigorous and competent efforts, their success in contingent litigation such as this is never guaranteed. Indeed, because the fee in this matter was entirely contingent, the only certainties were that the case would require a substantial investment of time and resources over several years, and that there would be no fee without a successful result. The contingent nature of Class Counsel’s representation supports the fee award requested.
7. Time limitations imposed by the client or the circumstances Although Class Counsel were limited by the court-imposed deadlines relating to dispositive motions and discovery, they are unaware of any particular time limitations imposed by the client which would affect the fee determination in this matter.
8. The amount involved and the results obtained Before this lawsuit, the Class Members had no remedy for the discrimination claims asserted against Cook’s. Now, the efforts of Class Counsel have resulted in a $2.5 million settlement for the Class. This result was accomplished in a complex, difficult case, which was aggressively defended, and in the face of the very real risk that the Class would fail to recover anything at all. The monetary award for each settlement class member should be several thousand
25

Case 2:07-cv-00394-LSC Document 131 Filed 05/10/12 Page 26 of 37
dollars based upon the representation of the number of valid and timely claims submitted to the claims administrator thus far. (Hopkins Decl., ¶25). This monetary amount is well above average for similar cases and represents an excellent result for the claimants. (Hopkins Decl., ¶25).
9. The experience, reputation and ability of the attorneys Class Counsel in this case come from three law firms: The Law Offices of Sam Hill, LLC, Campbell Law, P.C., Wiggins, Childs, Quinn & Pantazis, LLC (“WCQP”). All three of these firms have experience in handling complex class action cases. Sam Hill’s practice is comprised almost exclusively of civil litigation, the vast majority of which is Plaintiff’s work. (Hill Decl., ¶ 2). Hill has been involved in many class action cases as class counsel, including actions against junk fax advertisers and broadcasters, insurers, and lending institutions, in both state and federal court. (Hill Decl., ¶2)(see Exhibit A to Hill’s Declaration). Tom Campbell and Ray Bronner, of Campbell Law, P.C., exclusively represent clients on a contingent fee basis, and devote most of the its resources to class, mass and complex litigation. (Campbell Decl., ¶ 6). Campbell Law, P.C. has represented corporations in employment class action, mass action and representative actions, including Searle Pharmaceuticals, Stevens Graphics, Drummond Company, Westpoint-Steven, Inc., Regions Bank, Liberty National Insurance, Alabama Federal Savings & Loan Assoc., BridgestoneFirestone, Inc., and BellSouth Telecommunications. (Campbell Decl., ¶ 2). Campbell Law, P.C. has similar experience representing consumers. (Campbell Decl., ¶ 2). Most notably, the firm’s lawyers have been involved in the trial of three cases brought chiefly under California’s Unfair Competition Law (“UCL”; California Bus. & Prof. Code 17200, et seq.)
26

Case 2:07-cv-00394-LSC Document 131 Filed 05/10/12 Page 27 of 37
either through conclusion or the liability phases. (Campbell Decl., ¶ 2). Mr. Campbell, as class counsel, also achieved meaningful results in class actions
against termite companies, such as Cook’s. (Campbell Decl., ¶ 3). He has achieved what may be the only “limited fund” class action settlement in the history of Alabama jurisprudence and one of a very few in the country. (Campbell Decl., ¶ 3).
Mr. Campbell received his Bachelor’s Degree from the University of Alabama in 1983 and his Juris Doctor in 1988. (Campbell Decl., Ex. B). Mr. Campbell has also been voted into “Best Lawyers in America - 2011” for Commercial Litigation. (Campbell Decl., ¶ 4).
Raymond L. Bronner is an associate with the Campbell Law Group. (Campbell Decl., ¶ 5). He graduated in May 2000 from the Cumberland School of Law at Samford University. (Campbell Decl., ¶ 5). Mr. Bronner began working with Mr. Campbell in the fall of 2000 and has practiced in complex and class action litigation in court and arbitration across the country. (Campbell Decl., ¶ 5). In addition to employment law cases, Mr. Bronner has participated in prosecution of claims for injured consumers in deceptive trade practices litigation. (Campbell Decl., ¶ 5).
WCQP maintains a nationwide consumer, environmental and employment practice, having litigated cases in nearly every United States federal appellate circuit in the country. (Fisher Decl., ¶2). WCQP is one of the largest Plaintiffs-oriented law firms in Alabama and one of the largest Civil Rights firms in the country. (Fisher Decl., ¶2). WCQP has offices in Birmingham, Alabama, Deland, Florida, and Washington, D.C., with more than 34 attorneys.(Fisher Decl., ¶2).
Since its formation in 1985, the Firm has litigated cases against various major corporations throughout the United States, including Winn-Dixie Stores, Cracker Barrel
27

Case 2:07-cv-00394-LSC Document 131 Filed 05/10/12 Page 28 of 37
Old Country Stores, Family Dollar Stores, J.P. Morgan Chase, U.S. Pipe and Foundry Company, Pittsburg Plate Glass, Goody’s, Kroger, South Central Bell, U.S. Steel Corporation, most of the Health Management Organizations, and most of the nation’s major railroads. (Fisher Decl., ¶3). WCQP has also been recognized by the National Law Journal as one of the top 25 litigation firms in America. (Fisher Decl., ¶3).
Furthermore, WCQP attorneys have been appointed as members of Plaintiffs’ Steering Committees in numerous federal Multi-District Litigation (MDL) cases, including In re Managed Care Litigation (S.D. Fla. 2000), In Re: American General Life and Accident Insurance Company - Industrial Life Insurance Litigation (Dist. of SC, Columbia Div., 2001), In Re: Terrorist Attacks on September 11, 2001 (S.D. NY 2003), In Re: Pharmacy Benefit Managers AntiTrust Litigation (E.D. PA 2006), In Re Tyson Foods, Inc. (694 F.Supp.2d 1348, M.D. GA, MDL No. 1854), In Re: Comcast Corp. Set-Top Cable Television Box Anti-Trust Litigation (E.D. Pa. 2009), and In Re: Cox Enterprises, Inc., SetTop Cable Television Box Antitrust Litigation (W.D. OK 2009); and Avandia Marketing, Sales Practices and Products Liability Litigation, (E.D. Pa. 2007). (Fisher Decl., ¶4).
Mr. Fisher has extensive experience in class action and complex litigation, including complex litigation. (Fisher Decl., ¶9). Mr. Fisher was Plaintiff's co-counsel in Ingram v. Coca-Cola (1:98-CV-3679-RWS), in the Northern District of Georgia (Atlanta), which resulted in the largest valued employment consent decree in the nation at that time. (Fisher Decl., ¶9). Mr. Fisher has also served as class counsel in several prominent class action lawsuits, including Allen v. International Truck and Engine Corp., in the Southern District of Indiana (Case No. IP-02- C 0902); and Wright v. Bellsouth (Case No. 93-C-1530-S), in the Northern District of Alabama. (Fisher Decl., ¶9).
28

Case 2:07-cv-00394-LSC Document 131 Filed 05/10/12 Page 29 of 37
This was by all accounts a difficult and demanding case that presented many risks as noted above. As the results achieved under these circumstances establish, Class Counsel demonstrated a high degree of ability, skill and diligence throughout the litigation. The ninth Johnson factor supports the fee award requested in this case.
10. The “undesirability” of the case In general, civil rights litigation is seen “as very undesirable because it stigmatizes the attorney as a ‘civil rights lawyer’ and thus tends to deter fee-paying clients, particularly high-paying commercial clients, from seeking assistance from that lawyer.” Stokes v. City of Montgomery, 706 F.Supp. 811, 815 (M.D. Ala. 1988), aff’d, 891 F.2d 905 (11th Cir. 1989). Furthermore, civil rights attorneys “face hardships in their communities because of their desire to help the civil rights litigant. See NAACP v. Button, 371 U.S. 415, 443, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). As the Johnson court opined: Oftentimes his decision to help eradicate discrimination is not pleasantly received by the community or his contemporaries. This can have an economic impact on his practice which can be considered by the Court. Johnson, 488 F.2d at 719. The acceptance of representation of the Plaintiff in a race discrimination case has a very negative effect on the financial health of a law firm because of the delay in the payment of fees and expenses in successful cases and the non-payment of fees and expenses in unsuccessful cases. (Fisher Decl., ¶28). Both of these facts are a necessary and inherent part of the representation of plaintiffs for all firms who accept such cases. (Fisher Decl., ¶28). The delay in payment often lasts from 2-5 years. (Fisher Decl., ¶28). In this case, the work for the Plaintiff began in 2006. Counsel with qualifications and experience necessary to properly handle complex class actions involving hiring and use of selection criteria is “a tiny specialty within the overall field” would not take cases similar to
29

Case 2:07-cv-00394-LSC Document 131 Filed 05/10/12 Page 30 of 37
this one without the option of a substantial enhancement being added to the court-awarded attorney fees to compensate such counsel for the considerable risk of prosecuting the case for years on a contingent fee basis. (Hill Decl., ¶7).
As discussed above, the difficulty of the questions presented in this case. By taking this case, Class Counsel took on significant risk of non-payment, the significant burden of advancing litigation expenses and the significant “opportunity cost” of having to turn down other potentially lucrative cases. (Fisher Decl., ¶44). These risks strongly motivated Class Counsel to perform work of the highest quality and in appropriate quantity, in order to fulfill their fiduciary commitment to Plaintiff and the Class and to lessen the chances of loss. (Fisher Decl., ¶44).
The complexity of the case, combined with the intensity of the defense, reflects that the case had some undesirable characteristics. The undesirability of the case is further demonstrated by the fact the noted firm Whatley, Drake and Kallas actually withdrew after Cook's attorney alleged the class representative was disqualified by virtue of a prior conviction of a crime. (Hopkins Decl., p. 19). This case was not an example of “cookiecutter” litigation and presented unique demands. See, e.g., Sunbeam, 176 F.Supp.2d at 1336 (noting that counsel should be rewarded for taking on a case to which other law firms are adverse and explaining that “[s]uch aversion could be due to any number of things, including social opprobrium surrounding the parties, thorny factual circumstances, or the possible financial outcome of a case”). This fact also weighs in favor of the requested fee award.
30

Case 2:07-cv-00394-LSC Document 131 Filed 05/10/12 Page 31 of 37
11. The nature and length of the professional relationship with the client
Class Counsel are not aware of any particular factors concerning the nature and length of the professional relationship of counsel with his client which could affect the fee determination. Other than the five-year relationship developed as a result of the present litigation, none of Plaintiff’s lawyers had a prior professional relationship with Waters.
12. Awards in similar cases “The reasonableness of a fee may also be considered in light of awards made in similar litigation within and without the court’s circuit.” Johnson, 488 F.2d at 719. Again, the majority of common fund fee awards in this circuit fall between 20% and 50% of the fund. Camden I, 946 F.2d at 771. The requested fee in this case falls squarely within that range. Furthermore, the ability to predict a likely result in cases like this one is virtually impossible. (Hopkins Decl., ¶31). Therefore, a comparison of attorneys fee awards in other cases is not helpful, as the facts are always unique. B. Other factors In addition to the Johnson factors, the Eleventh Circuit has identified the following factors that a court may consider in approving a fee request: (1) the time required to reach settlement; (2) whether there are any substantial objections by class members other parties to the settlement terms or the fees requested by counsel; (3) any non-monetary benefits conferred upon the class by the settlement; and (4) the economics involved in prosecuting a class action. Camden I, 946 F.2d at 775. Each of these factors support the requested fee award in this case as well.
31

Case 2:07-cv-00394-LSC Document 131 Filed 05/10/12 Page 32 of 37
1. Time required to reach settlement While all parties expressed willingness to reach an early settlement, the negotiations proved difficult and protracted. (Fisher Decl., ¶14). Mediation efforts began in late summer/early fall 2010. (Fisher Decl., ¶14). This case required specialized knowledge of not only Title VII, but also, disparate impact claims, testing claims, statistical models and regression analysis, and class action litigation concerns. (Fisher Decl., ¶14). Therefore, it was necessary to find a mediator with sufficient knowledge and experience in these matters. (Fisher Decl., ¶14). After weeks of screening potential mediators and negotiations between the parties, Hunter Hughes was selected as mediator. (Fisher Decl., ¶14). Hunter Hughes is a nationally-known attorney and mediator with the firm, Rogers & Hardin in Atlanta, Georgia. (Fisher Decl., ¶15). Mr. Hughes as successfully served as lead trial counsel in numerous employment cases, including nationwide class actions and mass employment litigation. (Fisher Decl., ¶15). He has also successfully mediated numerous employment class actions, including the Wal-Mart and Publix class actions, Home Depot and Ingram v. Coca-Cola Company, and other cases of national prominence. (Fisher Decl., ¶15). The parties in this case participated in their first mediation session on December 20, 2010. (Fisher Decl., ¶16). During this session, the parties developed a plan of action to gather information necessary for both sides to evaluate the scope and size of the class and to assess the value of potential claims. (Fisher Decl., ¶16). The parties understood and agreed that additional discovery was needed in order to perform statistical analyses. (Fisher Decl., ¶16). Plaintiff subsequently employed out-of-state experts to analyze the data provided by Cook’s. (Fisher Decl., ¶16).
32

Case 2:07-cv-00394-LSC Document 131 Filed 05/10/12 Page 33 of 37
The mediation process continued for months, with at least four informal conferences held prior to a second formal mediation session conducted on July 25, 2011. (Fisher Decl., ¶17). Following the second formal session, the parties, with the help of Mr. Hughes, agreed upon and drafted the terms of the settlement agreement. (Fisher Decl., ¶17). This process resulted in at least five additional informal conferences spanning over several weeks. (Fisher Decl., ¶17). Counsel for the parties were determined to ensure that the parties’ interests were advanced and protected. (Fisher Decl., ¶17). This factor weighs in favor of the requested fee award. See, e.g. Ressler, 149 F.R.D. at 656 (noting that counsel had shown particular diligence and care in maintaining settlement deliberations over 9-10 month period).
2. Whether there are any objections by class members or other parties to the settlement terms or fees requested by counsel
Again, this settlement has met with overwhelming approval by the settlement class members. (Fisher Decl., ¶24). As of the April 12, 2012 deadline for objections, 297 putative settlement class members have submitted claim forms, and no settlement class member has objected or opted out. (Fisher Decl., ¶24). Thus, 100% of the settlement class has either actively or passively accepted the benefits of the settlement.
3. Any non-monetary benefits conferred on the class Along with the monetary benefit of $2.5 million dollars, the Settlement provides the Settlement class with non-monetary benefits as well. These specific benefits are outlined in the Summary of Settlement Terms included above. In addition to evaluating nonmonetary aspects of a settlement that benefit the Class directly, in evaluating a fee request, courts frequently consider the broad “public” benefits of a case. Ressler, 149 F.R.D. at 657
33

Case 2:07-cv-00394-LSC Document 131 Filed 05/10/12 Page 34 of 37
(“Attorneys who bring class actions are acting as ‘private attorneys general’ and . . . [a]ccordingly, public policy favors the granting of counsel fees sufficient to reward counsel for bringing these actions and to encourage them to bring additional such actions”)(citation omitted).
4. The economics involved in prosecuting a class action Few firms were equipped to deal with litigation that could endure for many years or even decades – especially on behalf of private litigants challenging public or private employers. (Hopkins Decl., ¶ 14). Law firms then and now are faced with working for many years without any compensation and where they would need to routinely employ industrial and organizational psychologists who charge some of the highest expert witness fees of any litigation support group. (Hopkins Decl., ¶ 14). C. The requested award of expenses is reasonable and warranted Reimbursement of reasonable costs and expenses to counsel who create a common fund is both necessary and routine. Class Counsel have advanced or incurred $53,831.55 in expenses to date, and a summary of these unreimbursed expenses by category is contained in the affidavits of counsel from each of the three Class Counsel firms. Because these expenses were advanced with no guarantee of recovery, Class Counsel had a strong incentive to keep them to a reasonable level and did so.
34

Case 2:07-cv-00394-LSC Document 131 Filed 05/10/12 Page 35 of 37

On a firm-by-firm and category-by-category basis, the expenses are as follows:

CATEGORY Travel Copies and Scans Research Telephone Miscellaneous Postage Process Service Filing Fees Transcripts Expert Fees 3rd Party Mailing SUBTOTAL

WCQP 152.03
1,731.90 977.58 34.72 55.20 3.15 336.86 0.00
2,263.55 42,219.25
99.51 47,873.75
TOTAL

Campbell Law 1,749.17 1,100.80 2,177.96 89.00 167.64 42.68 125.35 350.00 11.70 0.00 143.50
5,957.80 $53,831.55

In light of the nature of this complex litigation, which required, inter alia, the use of experts, multiple mediation sessions with a highly capable and respected mediator, the expenses incurred by Class Counsel were both reasonable and reasonably related to the interests of the Plaintiff and the settlement class. Hence, Class Counsel respectfully request that they be fully reimbursed for their out-of-pocket expenses in this case.
WHEREFORE, based on the reasons set forth above and those previously stated on the record, Class Counsel requests certification of the settlement class and final approval of the settlement, including the requested incentive award to the representative plaintiff. Finally, Class Counsel requests an attorneys fee award of 35% of the common settlement fund which equals $875,000.00 plus expenses in the amount of $53,831.55.

35

Case 2:07-cv-00394-LSC Document 131 Filed 05/10/12 Page 36 of 37

Respectfully Submitted,

OF COUNSEL: Thomas F. Campbell Ray Bronner Attorney for Plaintiffs Campbell Law, P.C. 100 Concourse Parkway, Suite 115 Birmingham, Alabama 35244 Telephone: (205) 278-6650

/s/ Toni J. Braxton Samuel Fisher Toni J. Braxton Attorneys for Plaintiffs Wiggins, Childs, Quinn & Pantazis, LLC The Kress Building 301 19th Street North Birmingham, Alabama 35203 Telephone: (205) 314-0500

Samuel Mark Hill The Law Offices of Sam Hill, LLC 2117 Magnolia Avenue So., Suite 100 Birmingham, Alabama 35205-2808 Telephone: (205) 250-7776

CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing with the Clerk of Court by

using the CM/ECF system, which will send notice of electronic filing to the following:

Mac B. Greaves Ronald W. Flowers, Jr. Julie W. Pittman Burr & Forman, LLP 3400 Wachovia Tower 420 North 20th Street Birmingham, Alabama 35203

David J. Middle brooks Lehr Middle brooks & Vreeland, P.C. P.O. Box 11945 Birmingham, Alabama 35202-1945

36

Case 2:07-cv-00394-LSC Document 131 Filed 05/10/12 Page 37 of 37

On this the 10th day of May, 2012.

/s/ Toni J. Braxton OF COUNSEL

37

 
 Case 2:07-cv-00394-LSC Document 129 Filed 05/10/12 Page 1 of 14

FILED
2012 May-10 PM 05:38 U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

MARION WATERS, Plaintiff,
v. COOK'S PEST CONTROL, INC.,
Defendant.

) ) ) ) Case No.: 2:07-CV-00394-LSC ) ) ) ) )

DEFENDANT'S BRIEF IN SUPPORT OF APPROVAL OF CLASS SETTLEMENT
INTRODUCTION Defendant, Cook's Pest Control, Inc. submits this brief in support of final approval of the Settlement Agreement reached by the parties in the above-styled action. In his brief, Plaintiff has fairly and accurately summarized the procedural history of this litigation through mediation and settlement, as well as the terms of the Settlement Agreement. Plaintiff also has provided the Court with a succinct argument as to why the settlement class should be certified. While Cook's does not necessarily agree with all of the arguments and factual allegations in that section of Plaintiff's Brief--Cook's denies that it engaged in any discriminatory conduct, and reserves the right to contest certification in the event that settlement does not become final--Cook's agrees that the requirements for certification of a settlement

2000874 v1

Case 2:07-cv-00394-LSC Document 129 Filed 05/10/12 Page 2 of 14

class have been met. Cook's also agrees with Plaintiff that the settlement is fair, reasonable, and adequate in all respects. Cook's therefore writes only to address issues relating to notice to the class, the status of the claims process, and compliance with the Class Action Fairness Act of 2005 ("CAFA"), 28 USC §§1332(d), 1453, 1711-1715.
NOTICE AND THE STATUS OF THE CLAIMS PROCESS In its Order Preliminarily Approving Settlement and Providing for Notice ("Preliminary Approval Order"), the Court appointed Settlement Services, Inc. ("SSI"), of Tallahassee, Florida, as the Claims Administrator, and directed SSI to mail the approved Class Notice of the parties' settlement to all potential class members for whom Cook's had address information.1 As reflected in the Second Declaration of Loree Kovach, ¶ 3, filed contemporaneously herewith, SSI mailed a total of 14,563 Class Notices to all such potential class members on February 27, 2012.2 The Preliminary Approval Order further provided that with respect to any

1 Both the mailed notice and the newspaper notice, discussed infra, notified class members of the nature of the action, the class claims, the right to enter an appearance through an attorney, the right to opt out and the time and manner for doing so, and the binding effect of a class judgment on class members, and thus fully complied with the requirements of Fed. R. Civ. P. 23(c)(2)(B)(i) - (vii). The notices also directed class members to a toll-free number they can call for additional information, and SSI set up a limited-access website with information and documents related to the case. See the Second Declaration of Loree Kovach, and the discussion at p. 5, infra.
2 In evaluating that number, as well as response rates, it is important to bear in mind that Cook's employment applications do not reflect the race of the applicant. Therefore, notices were mailed to all known applicants during the settlement, rather than merely to African American applicants. The Class Notices mailed to applicants repeatedly stated that non-African Americans are not

2000874 v1

2

Case 2:07-cv-00394-LSC Document 129 Filed 05/10/12 Page 3 of 14
Class Notice returned as undeliverable, SSI attempt a trace of the potential class member and, if it was able to establish an alternative address, remail the class notice. Consistent with the Preliminary Approval Order, SSI has remailed 2,605 notices, which had been returned as undeliverable, to trace addresses. (Id.) SSI also remailed 415 returned notices to forwarding addresses provided by the Post Office. (Id.)
SSI also placed the newspaper notice approved by the Court in the online and print versions of newspapers of general circulation in each county in which Cook's has a district office. (Id. at ¶ 4) Those notices, which ran between February 28 and March 2, 2012, appeared in 27 newspapers (of which 19 had on-line versions), in four states--Alabama, Georgia, Mississippi, and Tennessee. (Id.) Those are the only states in which Cook's does business. The settlement also received press coverage in the Decatur Daily and Chattanooga Times Free Press, and in various on-line news services and blogs. To date, SSI has received 17 claim forms from potential class members to whom no notice was mailed. (Id. at ¶ 7) As Cook's had generally preserved its applications during the settlement period, the notice by publication was included only to reach those class members whose

included in the class and should not submit a claim form. Both the toll-free number and website set up by SSI in connection with the settlement, and the Claim Form itself, were designed to inform potential claimants that only African American applicants should submit a claim.

2000874 v1

3

Case 2:07-cv-00394-LSC Document 129 Filed 05/10/12 Page 4 of 14

applications might have been inadvertently lost or destroyed, and the number of responses indicates that the newspaper notices were highly effective.
As required by the Settlement Agreement, SSI also set up a toll free, telephone number limited access website in connection with the settlement. (Id. at ¶ 5) Access to the site requires a user name and password, which can be obtained by contacting SSI on the toll-free number set forth in the notices. The website contains general information about the case, a Frequently Asked Questions section, and links to the Claim Form, Claim Form Instructions, Fair Credit Reporting Act Disclosure and Authorization Form, the Settlement Agreement, and the Class Notice, all of which can be downloaded by the viewer. (Id.) It also includes a section setting forth relevant deadlines in the case; a section regarding class member address changes; instructions for opting out or filing objections to the settlement; and contact information for SSI, Class counsel, Cook's counsel, and the Court. (Id.)3

3 There is no question that mailing direct notice to all known potential class members, and publishing notice in 27 newspapers is sufficient to meet Rule 23 (c)(2)(B)'s requirement of the "best notice practicable under the circumstances," especially when coupled with the "tracing" and re-mailing protocols observed here, the website, and the toll-free number. See, e.g. In re Checking Account Overdraft Litigation, __F. Supp. 2d__, 2011 WL 5873889 at *6-7 (S.D. Fla. 2011) (notice by direct mail to class members, notice by publication in appropriate outlets, a tollfree number and a settlement website constituted "the best notice practicable"); Weinberger v. Kendrick, 698 F.2d 61, 69-71 (2d Cir. 1982) (approving of mailed notice and publication in one newspaper); In re Prudential Securities Inc. Ltd. Partnerships Litigation., 164 F.R.D. 362, 367 (S.D.N.Y.) (approving of mailed notice to class members identified with "reasonable effort" and publication in various newspapers), aff'd, 107 F.3d 3 (2d Cir. 1996). See also Weinberger v. Kendrick, 698 F.2d 61, 71 (2d Cir. 1982) (rejecting contention that mailing of notice to last known address of all class members was inadequate).

2000874 v1

4

Case 2:07-cv-00394-LSC Document 129 Filed 05/10/12 Page 5 of 14

As of May 8, 2012, SSI had fielded approximately 908 calls on the toll-free number regarding the proposed settlement, and has given out about 272 user names and passwords to the website. (Id. at ¶ 6) SSI has mailed out approximately 558 claim form packets in response to requests received on the toll-free number, and numerous other potential class members have downloaded claim forms from the website. (Id.)
As of May 8, 2012, SSI has received approximately 355 claim forms, with twenty days remaining in the claims period. (Id. at ¶ 7) Some of those claims may be denied for various reasons--for example, five claimants had no high school diploma or GED, seven failed to submit an executed FCRA form, seventeen had been convicted of a felony, and one both lacked a driver's license and had been convicted of a felony.4 (Id.) Additionally, there are a few applications with incomplete or ambiguous information with respect to which validity determination will have to be made.5 (Id.) However, the vast majority of the claim forms appear to be valid. Recovery amounts, of course, will vary depending on the number of claims, the formula set forth in the Settlement Agreement, and the fees and

4 Pursuant to Section VII (C)(2)(a) (p. 14) of the Settlement Agreement, an applicant must have graduated from high school or obtained a GED, possessed a valid driver's license and not been convicted of a felony in order to be eligible to receive an award.
5 Section VII (C)(2)(b) and (c) require that a claim form be complete in order to be valid, and Section VII (C)(3) provides that the Claims Administrator shall make final determinations regarding the sufficiency or validity of a claim.

2000874 v1

5

Case 2:07-cv-00394-LSC Document 129 Filed 05/10/12 Page 6 of 14
expenses awarded to class counsel, but even if the number of valid claims were to double, there still would be thousands of dollars in the settlements fund to satisfy each claim. If there is any amount remaining in the Settlement Fund after all claims are paid, it will be paid to a charity, the Birmingham Chapter of the United Negro College Fund.
Objections to the settlement, and opt-out notices, were due to be received by April 12, 2012. Significantly, not a single class member opted out of the settlement, or filed an objection to it. (Id. at p. 2) "In determining whether a settlement is fair, adequate, and reasonable, the obvious first place the court should look is to the views of the class itself." Paradise v. Wells, 686 F.Supp. 1442, 1444 (M.D. Ala. 1988). See also Hill v. Art Rice Realty Co., 66 F.R.D. 449, 456 (N.D. Ala. 1974) ("In considering the fairness of the settlement, the attitude of the people whose interest shall be affected should of course, be taken into consideration.") A small number of objections and opt-outs weighs heavily in favor of a finding that a settlement is fair, reasonable, and adequate. In Hill, supra, the Court stated as follows:
That there is only one objection is compelling evidence that the attitude of the overwhelming percentage of the class effected [sic] by the settlement does not oppose the settlement. The attitude of the class thus supports the reasonableness and appropriateness of the proposed settlement.

2000874 v1

6

Case 2:07-cv-00394-LSC Document 129 Filed 05/10/12 Page 7 of 14

66 F.R.D. at 456. Similarly, in Beavers v. American Cast Iron Pipe Co., 164 F.2d
1290 (N.D. Ala. 2001), the court stated:
There was only one objection to the present settlement. Thus, not only did counsel for the parties and all the named plaintiffs approve the settlement, almost 100% of the class also approved the settlement. The court finds that this is yet another factor favoring approval of the settlement. Id. at 1298 (emphasis in original; citations omitted). See also Carnegie v. Mutual
Savings Life Ins. Co., 2004 WL 3715446, *22 (N.D. Ala. 2004) (No objections and
0.4% opt-outs demonstrated "that the proposed settlement is supported by the vast
majority of class members, and this factor counsels in favor of approval of the
settlement"); Elkins v. Equitable Life Ins. Co. of Iowa, 1998 WL 133741 (M.D. Fla
1998) (De minimis number of objections weighed in favor of approval of the
settlement). The complete absence of opposition to this settlement--not a single objection, and not a single opt-out6--is powerful evidence that the settlement is fair, reasonable, and adequate in all respects.7

6 The fact that there are no opt-outs is especially significant in this case, as opt-out rates typically are considerably higher in employment cases than in consumer cases. B. Rothstein and T. Willging, Managing Class Action Litigation: A Pocket Guide for Judges, at 26 (2d. ed. 2009).
7 A lack of objections by class members also is probative of the absence of collusion in connection with a class settlement. Carnegie, supra, 2004 WL 3715446 at *24. However, Cook's believes that the absence of collusion is apparent on the face of the Settlement Agreement in this case, given that Class counsel's fees and expenses will be determined by the Court and that neither the named Plaintiff, Class counsel, Cook's, nor Cook's counsel has any interest in any residual remaining in the settlement fund after all awards are paid. Rather, any such residual will be paid to the Birmingham Chapter of the United Negro College Fund.

2000874 v1

7

Case 2:07-cv-00394-LSC Document 129 Filed 05/10/12 Page 8 of 14
CAFA Compliance
The Class Action Fairness Act of 2005 ("CAFA"), 28 USC §§1332(d), 1453,
and 1711 et seq., provides that in connection with settlement of a class action
lawsuit in federal court, the defendant "[s]hall serve upon the appropriate State
official of each State in which a class member resides and the appropriate Federal
official, a notice of the proposed settlement consisting of--
"(1) a copy of the complaint and any materials filed with the complaint and any amended complaints (except such materials shall not be required to be served if such materials are made electronically available through the Internet and such service includes notice of how to electronically access such material); "(2) notice of any scheduled judicial hearing in the class action; "(3) any proposed or final notification to class members of--
"(A)(i) the members' rights to request exclusion from the class action; or
"(ii) if no right to request exclusion exists, a statement that no such right exists; and
"(B) a proposed settlement of a class action; "(4) any proposed or final class action settlement; "(5) any settlement or other agreement contemporaneously made between class counsel and counsel for the defendants; "(6) any final judgment or notice of dismissal;

2000874 v1

8

Case 2:07-cv-00394-LSC Document 129 Filed 05/10/12 Page 9 of 14

"(7) (A) if feasible, the names of class members who reside in each State and the estimated proportionate share of the claims of such members to the entire settlement to that State's appropriate State official; or
"(B) if the provision of information under subparagraph (A) is not feasible, a reasonable estimate of the number of class members residing in each State and the estimated proportionate share of the claims of such members to the entire settlement; and
"(8) any written judicial opinion relating to the materials described under subparagraphs (3) through (6).
28 USC §1715(b). The statute further provides that
An order giving final approval of a proposed settlement may not be issued earlier than 90 days after the later of the dates on which the appropriate Federal official and the appropriate State official are served with the notice required under subsection (b).
28 USC §1715(d).
Cook's has fully complied with its obligations under CAFA in connection
with the settlement before the Court. In this case, the "appropriate Federal official"
clearly is U. S. Attorney General Eric Holder. See 28 USC §1715(a)(1). On
February 6, 2012--well over 90 days before the May 25, 2012 Fairness Hearing
and therefore well over 90 days before any possible entry of an order finally
approving the Settlement Agreement--Cook's served an appropriate notice on
Attorney General Holder. (Declaration of Dent Morton, ¶¶ 6-7 and Ex. B.) The
notice, which stated that it was being sent pursuant to CAFA, informed him of the
pendency of the lawsuit and that it is a class action asserting claims of race

2000874 v1

9

Case 2:07-cv-00394-LSC Document 129 Filed 05/10/12 Page 10 of 14
discrimination against African Americans in hiring. The notice further informed Mr. Holder that the parties had reached a proposed settlement, which had been preliminarily approved by the court. It set forth the date, time, and location of the Fairness Hearing, and it stated that there were no side agreements between counsel and that no final judgment or notice of dismissal had been entered in the case. The notice also explained that notices had been sent to the "appropriate State official" in each state, as contemplated by CAFA.
The notice further explained that because Cook's applications for employment do not reflect the race of the applicant, and because there might be applicants whose identity was not reflected in Cook's records, it is not possible to determine the total number of class members, the total number of class members residing in each jurisdiction, or the proportionate share of the settlement that any class member in any state will receive. The notice also set forth the approximate percentages of known applicants living in each state and territory, and enclosed a CD listing the names of all known applicants by state. Finally, as explained therein, the notice also enclosed a CD containing copies of the Complaint and Amended Complaint, with attachments; copies (in blank) of the notice of the proposed settlement to be mailed to known applicants, and the notice being published in the various newspapers; a copy of the Settlement Agreement, and a

2000874 v1

10

Case 2:07-cv-00394-LSC Document 129 Filed 05/10/12 Page 11 of 14

copy of the Court's Order Preliminarily Approving Settlement and Providing for
Notice.
Also on February 6, 2012, Cook's served similar notices on the "appropriate
State officials" as well. (Id. at ¶¶ 3-5 and Ex. A.) Pursuant to 28 USC §1715(a)(2)
the "appropriate State official" is
the person in the State who has the primary regulatory or supervisory responsibility with respect to the defendant, or who licenses or otherwise authorizes the defendant to conduct business in the State, if some or all of the matters alleged in the class action are subject to regulation by that person. If there is no primary regulator, supervisor, or licensing authority, or the matters alleged in the class action are not subject to regulation or supervision by that person, then the appropriate State official shall be the State attorney general. Because Cook's had no way of knowing which states or territories were
home to potential class members, and because of the difficulty of determining the
identity of the "appropriate State official" in each state or territory, Cook's served
notices to the Attorneys General of all fifty states and each U.S. territory, and to
the entities in each state or territory responsible for regulating the pest control
industry. (Id. at ¶ 3.) Those notices contained essentially the same information as
the notice directed to U. S. Attorney General Holder, except that they contained
information relating only to the percentage of known potential class members
residing in the official's state or territory, and listed the names of only the known
potential applicants residing in that state or territory.

2000874 v1

11

Case 2:07-cv-00394-LSC Document 129 Filed 05/10/12 Page 12 of 14

Shortly thereafter, Cook's discovered that a few names had been left off the list of known applicants for the State of Alabama. (Id. at ¶ 8.) It therefore mailed supplemental notices to U. S. Attorney General Holder, Alabama Attorney General Luther Strange, and John McMillan, Commissioner, Alabama Department of Agricultural Industries on February 8, 2012. (Id.) The supplemental notices explained the error, included a list of the names omitted, and noted that their addition made no material change in the percentages set forth in the previous Notices.8
Subsequently, the Court approved changes in the Notices to be sent to known applicants, and the Notices to be published in various newspapers. On February 14, 2012--still more than 90 days before the May 25, 2012 Fairness Hearing--Cook's sent supplemental notices to U. S. Attorney General Holder, and to the state and territorial officials. (Id. at ¶ 9.) Those notices enclosed copies of the revised notices to class members approved by the Court.
In sum, Cook's has more than complied with its obligations under CAFA with respect to the settlement before the Court. Cook's served appropriate notices, and appropriate supplemental notices, to the appropriate Federal and State officials more than 90 days before any possibility of an order finally approving the

8 As that was true for all other states and territories, no supplemental notices were sent to other "appropriate State officials."

2000874 v1

12

Case 2:07-cv-00394-LSC Document 129 Filed 05/10/12 Page 13 of 14
settlement. Significantly, to date not a single official has taken any action
whatsoever to oppose the settlement - once again, powerful evidence that it is fair,
adequate, and reasonable.
/s/ Dent M. Morton Mac B. Greaves ASB-6830-A60M Dent M. Morton ASB-6431-N77D Julie W. Pittman ASB-3628-T52J
OF COUNSEL: BURR & FORMAN LLP 3400 Wachovia Tower 420 North 20th Street Birmingham, Alabama 35203 Telephone: (205) 251-3000 Facsimile: (205) 458-5100
/s/ David J. Middlebrooks David J. Middlebrooks ASB-8553-D58D Attorneys for Defendant Cook's Pest Control, Inc. OF COUNSEL: LEHR MIDDLEBROOKS & VREELAND, P.C. P.O. Box 11945 Birmingham, Alabama 35202

2000874 v1

13

Case 2:07-cv-00394-LSC Document 129 Filed 05/10/12 Page 14 of 14
CERTIFICATE OF SERVICE
I hereby certify I have served a copy of the above and foregoing DEFENDANT'S BRIEF IN SUPPORT OF APPROVAL OF SETTLEMENT on counsel by filing the foregoing with the Clerk of the Court using the CM/EMF system on this the 10th day of May, 2012:
Thomas F. Campbell Campbell Law Concourse at Riverchase 100 Concourse Parkway, Suite 115 Birmingham, AL 35244
Samuel Mark Hill The Law Office of Sam Hill, L.L.C. 2117 Magnolia Avenue South, Suite 100 Birmingham, AL 35205
Robert Childs Samuel Fisher Wiggins, Childs, Quinn & Pantazis, LLC The Kress Building 301 19th Street North Birmingham, AL 35203
/s/ Dent M. Morton OF COUNSEL

2000874 v1

14

 
 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

FILED
2012 Jul-17 AM 10:10 U.S. DISTRICT COURT
N.D. OF ALABAMA

MARION WATERS, on his own

]

behalf and on behalf of all others

]

similarly situated,

]

]

Plaintiffs,

]

]

v.

] 2:07-cv-00394-LSC

]

COOK’S PEST CONTROL, INC., ]

]

Defendant.

]

]

]

MEMORANDUM OF OPINION

The Court has for consideration the parties’ request for final approval of a class

settlement, approval of a class representative service award, and award of attorneys’ fees.

(Docs. 129, 131, 133.) The Court preliminarily approved the parties’ Settlement Agreement (the “Settlement”) on January 27, 2011.1 (Doc. 123.) On May 25, 2012, an evidentiary

fairness hearing was held pursuant to Federal Rule of Civil Procedure 23(e)(1)(A), which

mandates judicial review of any “settlement, voluntary dismissal, or compromise of the

claims, issues, or defenses of a certified class.” On July 5, 2012, the Court heard argument

1This Memorandum of Opinion incorporates by reference the definitions used in the Settlement and unless otherwise noted, all applicable terms used in this Opinion shall have the same meanings as those in the Settlement.
Page 1 of 43

on Class Counsel’s Motion for Approval of Attorney Fees and Expenses. The Court has thoroughly examined and considered: (1) the parties’ briefs and evidentiary submissions; (2) the arguments and evidence presented at the fairness hearing conducted on May 25, 2012; (3) the arguments and evidence presented at the attorney fee hearing held on July 5, 2012; (4) all objections; and (5) the Court’s own review of the case and procedural record. For the following reasons, the Court finds that the proposed Settlement is fair, reasonable, and adequate and it is due to be approved. Accordingly, the Court enters this Memorandum Opinion and Final Judgment, which approves the Settlement in full. The Court also finds that it is fair and reasonable to award Marion Waters a Service Award and Class Counsel fees and expenses. The Court makes the findings of fact and conclusions of law set forth below. I. Background.
A. Procedural History. This class action was filed by Plaintiff Marion Waters (“Named Plaintiff”), on his own behalf and on behalf of all other persons similarly situated (“Class Members”) (collectively, “Plaintiffs”), on February 28, 2007. (Doc. 1.) The Complaint, as amended on July 17, 2007, asserts claims for violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000 et seq., and 42 U.S.C. §1981, for failure to hire based on race. (Doc. 3.) Specifically, Plaintiffs sought monetary damages and equitable relief to redress alleged
Page 2 of 43

racially discriminatory practices in Defendant’s application process. Plaintiffs accused Cook’s Pest Control, Inc. (“Cook’s”), of: (1) discouraging job applications by AfricanAmericans by telling callers with a dialect or diction that may indicate they are AfricanAmericans, or African-Americans who apply in person, that there are no jobs available; (2) discouraging applications by African-Americans by stating that applications for jobs must be placed on file at every office where employment is sought because African-Americans tend to be less financially able to travel to all offices; (3) discouraging job applications from African-Americans by using only non-African-Americans in print and television advertising; (4) failing to employ or promote African-Americans into management positions; (5) designating race on employment applications; (6) staffing application offices with white workers to discourage job applications from African-Americans; (7) discouraging AfricanAmericans from applying for jobs by announcing that an algebra, geometry, and math test is required; (8) using “good old boy,” “word of mouth,” or “tap on the shoulder” systems to avoid recruiting, hiring, or promoting African-Americans; (9) using pen and paper math tests as selection criteria, which have a racially disparate impact on African-Americans, and are unnecessary due to the automatic measuring of modern pest control equipment; (10) utilizing a cut-score on screening tests; and (11) avoiding hiring African-Americans by using an overall system of subjective selection criteria. (Id. at 5-7.)
Page 3 of 43

Cook’s promptly moved to dismiss all of Plaintiffs’ claims. (Doc. 7.) That motion was denied on January 28, 2008. (Doc. 25.) Cook’s answered the Complaint on February 11, 2008. (Doc. 27). On June 5, 2008, Defendant Cook’s filed a motion for summary judgment (Doc. 39), which was denied without prejudice to refile on December 9, 2008 (Doc. 59). On December 7, 2010, the Court granted the parties’ joint motion to stay this action pending mediation. (Doc. 110.)
Extensive discovery on the merits has been conducted regarding disparate impact and pattern and practice disparate treatment race discrimination claims of the Named Plaintiff and Class Members. The parties have employed experts to assist in evaluating data and statistical evidence. Moreover, the parties have litigated contentious motions to compel discovery and motions for protective orders.
B. Settlement Negotiations. Counsel for the parties participated in mediation beginning in December 2010. The parties chose Hunter R. Hughes of the law firm Rogers & Hardin, LLP, in Atlanta, Georgia, as mediator. The resulting Settlement Agreement is the product of litigation, discovery, and a protracted and intensive mediation process. The parties reached an agreement to settle in October 2011, and they filed a Joint Motion for Preliminary Approval of the Settlement with this Court on November 3, 2011. (Doc. 120.) The Court preliminarily certified the settlement class and approved the form of notice on January 27, 2012. (Doc. 123.) The
Page 4 of 43

Court appointed Plaintiffs’ counsel as Class Counsel; Tommy Warren and Settlement Services, Inc. (“SSI”), as Claims Administrator; and Professor James Coleman, of Duke University, as Monitor. (Id.)
C. Class Notice. SSI mailed a total of 14,563 Class Notices to all potential class members on February 27, 2012. Because all Cook’s employment applications did not reflect the race of the applicant, notices were mailed to all known applicants during the applicable settlement time period, rather than merely to African-American applicants. The Class Notices mailed to applicants repeatedly stated that non-African-Americans are not included in the class and should not submit a claim form. When Class Notices were returned as undeliverable, SSI attempted a trace of the potential class member and remailed the Class Notice if an alternative address was located. SSI remailed 2,605 Class Notices to new addresses after they were returned as undeliverable. SSI also remailed 415 Class Notices to forwarding addresses provided by the U.S. Postal Service. SSI also placed a newspaper notice approved by the Court in the online and print versions of newspapers of general circulation in each county where Cook’s has a district office. The newspaper notices ran between February 28 and March 2, 2012, in 27 newspapers (of which 19 had online versions), in four states: Alabama, Georgia, Mississippi, and Tennessee. These four states are the only states in which Cook’s does business. The
Page 5 of 43

Settlement also received press coverage in the Decatur Daily, Chattanooga Times Free Press, and various online news services and blogs. Because Cook’s generally preserved its job applications during the applicable settlement period, notice by publication was intended to reach only those Class Members whose applications may have been inadvertently lost or destroyed.
Both the mailed notice and newspaper notice notified Class Members of the nature of the action, the class claims, the right to enter an appearance through an attorney, the right to opt out and the time and manner for doing so, and the binding effect of a class judgment on Class Members, in compliance with the requirements of Fed. R. Civ. P. 23(c)(2)(B)(i) - (vii). The Class Notices also directed Class Members to a toll-free number they could call for additional information.
SSI set up a limited-access website with information and documents related to this case. Access to the website required a user name and password, which were obtained by contacting SSI using the toll-free number set forth in the Class Notices. The website contained general information about the case; a “Frequently Asked Questions” section; and links to the Claim Form, Claim Form Instructions, Fair Credit Reporting Act Disclosure and Authorization Form, the Settlement Agreement, and the Class Notice, all of which can be downloaded by the viewer. The website also included sections with relevant case deadlines; instructions regarding Class Member address changes; instructions for opting out
Page 6 of 43

or filing objections to the Settlement; and contact information for SSI, Class counsel,
Cook’s counsel, and the Court.
D. Compliance with CAFA.
When a proposed class action settlement is filed in court, the Class Action Fairness
Act of 2005 (“CAFA”), 28 USC §§1332(d), 1453, and 1711 et seq., requires a defendant to
“serve upon the appropriate State official of each State in which a class member resides and
the appropriate Federal official, a notice of the proposed settlement consisting of--
(1) a copy of the complaint and any materials filed with the complaint and any amended complaints (except such materials shall not be required to be served if such materials are made electronically available through the Internet and such service includes notice of how to electronically access such material); (2) notice of any scheduled judicial hearing in the class action; (3) any proposed or final notification to class members of--
(A)(i) the members’ rights to request exclusion from the class action; or (ii) if no right to request exclusion exists, a statement that no such right exists; and (B) a proposed settlement of a class action; (4) any proposed or final class action settlement; (5) any settlement or other agreement contemporaneously made between class counsel and counsel for the defendants; (6) any final judgment or notice of dismissal; (7) (A) if feasible, the names of class members who reside in each State and the estimated proportionate share of the claims of such members to the entire settlement to that State’s appropriate State official; or (B) if the provision of information under subparagraph (A) is not feasible, a reasonable estimate of the number of class members residing in each State and the estimated
Page 7 of 43

proportionate share of the claims of such members to the entire settlement; and (8) any written judicial opinion relating to the materials described under subparagraphs (3) through (6).
28 U.S.C §1715(b). CAFA also requires:
An order giving final approval of a proposed settlement may not be issued earlier than 90 days after the later of the dates on which the appropriate Federal official and the appropriate State official are served with the notice required under subsection (b).
Id. §1715(d).
Pursuant to these obligations, Cook’s served appropriate notice on U.S. Attorney
General Eric Holder on February 6, 2012. Cook’s also served similar notices on state
officials on February 6, 2012. Under 28 U.S.C. § 1715(a)(2), an “appropriate State
official” is:
the person in the State who has the primary regulatory or supervisory responsibility with respect to the defendant, or who licenses or otherwise authorizes the defendant to conduct business in the State, if some or all of the matters alleged in the class action are subject to regulation by that person. If there is no primary regulator, supervisor, or licensing authority, or the matters alleged in the class action are not subject to regulation or supervision by that person, then the appropriate State official shall be the State attorney general.
Because Cook’s did not know which states or territories might be the residence to all
potential class members, it served notices to the Attorney Generals of all fifty states and
Page 8 of 43

each U.S. territory, and to the entities in every state and territory responsible for regulating the pest control industry.
When it later came to light that a few names were left off the known list of potential class members in Alabama, Cook’s mailed a supplemental notice to the U.S. Attorney General, Alabama Attorney General, and the Commissioner of the Alabama Department of Agricultural Industries on February 8, 2012, explaining the error and noting the names previously omitted.
After the Court approved changes to the Class Notices to be mailed and published, Cook’s sent another supplemental notice to the U.S. Attorney General and appropriate state and territorial officials on February 14, 2012, which included copies of the revised Class Notices. All supplemental notices were served more than 90 days prior to any possible entry of a final order approving the Settlement. Not a single official has taken action to oppose the Settlement.
E. Reaction to the Settlement from the Class. As of May 8, 2012, SSI fielded approximately 908 calls on the toll-free number regarding the proposed settlement, and gave out about 272 user names and passwords to the website. SSI mailed out approximately 558 claim form packets in response to requests received on the toll-free number, and numerous other potential class members have downloaded claim forms from the website.
Page 9 of 43

As of the claims deadline, SSI received 495 claim forms. The vast majority of the claim forms appear to be valid. Only nine claims forms require disqualification on their face: seven potential claimants answered that they did not have a high school diploma or GED at the time of application, and two individuals did not have a valid driver’s license.
There are a number of claims that will require further investigation to determine eligibility. Twenty-eight claimants answered that they had felony convictions, but it is unclear whether the convictions occurred before or after they applied for employment with Cook’s. Three claimants answered that they were hired by Cook’s after applying. Further information is needed to determine when these individuals were hired. A few claimants answered that they did not apply for employment with Cook’s during the Settlement Period. The records will need to be checked to see if Cook’s has applications for these individuals. Finally, 161 claimants did not submit any proof confirming their African-American race. Follow-up will be necessary to ensure that valid claims are not denied based on an accidental omission of paperwork. Because the terms of the Settlement arguably preclude payment based on incomplete paperwork, the parties have proposed that the Court include a provision in the Consent Decree giving the Claims Administrator the authority to investigate and seek further information from claimants, if necessary, to determine eligibility. The Court agrees, and that language will be added.
Page 10 of 43

The Settlement has met with overwhelming approval by the Class Members. The deadline for objections and opt-outs was April 12, 2012. No Class Members have objected or opted out.
F. The Fairness Hearing. At the fairness hearing scheduled on May 25, 2012, both parties represented to the Court that it was their position the Settlement was fair and reasonable in every respect. Proper notice of the hearing was provided to all parties and the Class Members. At the hearing, all who appeared and wished to be heard were given an opportunity to present their positions and arguments. No one appeared to object to the Settlement. II. Structure of the Settlement. Although the Court has already given its preliminary approval, the Court is nonetheless required to undertake a rigorous analysis to ensure the parties’ settlement is fair, adequate, and reasonable. Fed.R.Civ.P. 23(e)(2). The Settlement defines the Settlement Class as:
All African-Americans who applied for employment at any Cook’s location from March 1, 2005[,] through the date of preliminary approval, and who were denied employment, excluding all judicial officers or employees of the Federal Courts within the second degree of affinity; employees of Plaintiff’s counsel; and any other person whose presence in the class would cause mandatory recusal of any judge assigned to the case.
Page 11 of 43

The settlement fund consists of $2,500,000, which includes all costs and fees (“Settlement Fund”). Cook’s is responsible for all costs and expenses of settlement administration. Payment to the Settlement Fund consists of two installments. One installment in the amount of $1.5 million will be paid on or before 30 days after the date of final approval of the Consent Decree, and will include payment of attorneys’ fees. The remaining balance of the settlement payment will be paid no later than the end of the first week of January 2013.
The Consent Decree (or “Decree”) will provide for a Rule 23(b)(2) and Rule 23(b)(3) settlement class that will cover all of Cook’s facilities for all African-Americans who applied for the positions addressed in the Complaint. The Decree will also provide for a general release by the Named Plaintiff of all claims of every type. The Named Plaintiff will receive an incentive payment in the amount of one and one-half times the maximum amount paid to a settlement class member, to be paid out of the Settlement Fund. Payments to the remaining Class Members will be determined according to a points system. The Claims Administrator shall assign points to each Class Member who submits a valid, complete, and timely claim form based on the following formula: one point for having made application for employment to Cook’s during the applicable Settlement period; one additional point for having made application for employment to Cook’s more than once during the covered period, without regard to the
Page 12 of 43

total number of times the Class Member may have made application within the covered period; one quarter of one additional point for each full calendar year since the first Covered Application was submitted; and ten additional points for having made a Covered Application to Cook’s Decatur District Office. All points awarded to all Class Members shall be totaled, and the total funds remaining in the Settlement Fund after payment of all attorneys’ fees and expenses, and the award to the Named Plaintiff, shall be divided by the total number of points to determine the value of each point. The settlement payment to which each Class Member is entitled shall be determined by multiplying the result of that calculation by the number of points awarded to that Class Member. However, no Class Member other than the Named Plaintiff shall receive a monetary payment exceeding one year’s average pay for the highest-compensated class position (approximately $32,000). Moreover, the Claims Administrator may petition the Court to make adjustments to the awards calculations to relieve unforeseen anomalous, grossly inequitable, or suspected fraudulent results.
Distributions from the Settlement Fund will occur in such a way as to ensure that a Class Member receives only one payment. Each Class Member who receives compensation under the Decree will give a release of all claims relating to Cook’s failure to hire them. All interest earned on the Settlement Fund shall be used to pay the costs of settlement administration or taxes on the interest. Class Counsel are entitled to apply
Page 13 of 43

to the Court for an award from the Settlement Fund for payment of attorneys’ fees and reimbursement of costs and expenses incurred in prosecuting this action. In the event that there is any residual in the Settlement Fund after distributions, attorneys’ fees, costs, and interest, the residual shall be donated to the Birmingham Chapter of the United Negro College Fund.
The length of the Decree shall be three years, but may be extended to a maximum of four years, to the extent necessary to resolve any challenges still pending with the Monitor at the end of three years. The Decree will include the following terms:
(1) With the assistance and approval of the Monitor, Cook’s will establish objective, facially neutral hiring criteria that shall be used in the hiring process for the positions of sales, pest control technician, or termite technician during the term of the Decree. (2) Cook’s will hire qualified applicants at each facility without regard to race. (3) Cook’s CEO will issue to all employees a statement affirming Cook’s antidiscrimination policy and describe its implementation and the reporting process if employees believe a violation has occurred. (4) Cook’s will institute periodic training of its hiring and other management and supervisory personnel relative to the terms of the Decree, nondiscriminatory hiring, and other terms and conditions of employment.
Page 14 of 43

(5) Cook’s will put in place mutually agreed upon record keeping procedures that shall include the compilation by each facility of applicant flow data by race, the number of Monitored Position hires by race, and a summary of the reasons for selection/rejection of each applicant for the Monitored Positions. The Decree will also enjoin Cook’s, and its officers and managers in their official capacities: (1) from taking any action which violates the terms of the Decree and from engaging in any employment practice that has the purpose or the effect of violating the terms of the Decree or discriminating against African-Americans on the basis of their race in violation of 42 U.S.C. §1981 or Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000 et seq.; and (2) from engaging in, implementing or permitting any action, policy or practice which has the purpose or effect of retaliating against any prospective, current or former employee because of his/her participation as a party, claimant, witness or declarant in this action. III. Fairness, Reasonableness, and Adequacy of the Proposed Settlement. This Court “has a heavy duty to ensure that any settlement is ‘fair, reasonable, and adequate.’” Piambino v. Bailey, 757 F.2d 1112, 1139 (11th Cir. 1985). “The Court must be exacting and thorough in analyzing whether the settlement is in the best interests of
Page 15 of 43

class members.” Turner v. Murphy Oil USA, Inc., 472 F.Supp.2d 830, 843 (E.D. La.
2007) (citing Manual for Complex Litigation (Fourth) § 21.61 (2004)). “A ‘mere
boiler-plate approval phrased in appropriate language but unsupported by evaluation of
the facts or analysis of the law’ will not suffice.” Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir. 1977) (quoting Protective Comm. v. Anderson, 390 U.S. 414, 434 (1968)).2
A. Appropriate and Effective Notice.
The Court’s Order Preliminarily Approving Settlement and Providing for Notice
(Doc. 123) required the mailing of a legal notice of the Settlement to individual Class
Members in a form approved by the Court, as well as publication of a legal notice in
online and print versions of newspapers of general circulation in each county where
Cook’s has a district office. The Court worked with counsel to correct noted deficiencies
in their proposed Class Notices. After revisions were complete, the Court found the
Class Notices complied with Fed. R. Civ. P. 23(c)(2)(B) because they:
clearly and concisely state[d] in plain, easily understood language: (i) the nature of the action; (ii) the definition of the class certified; (iii) the class claims, issues, or defenses; (iv) that a class member may enter an appearance through an attorney if the member so desires;
2In Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit Court of Appeals adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to close of business on September 30, 1981.
Page 16 of 43

(v) that the court will exclude from the class any member who request exclusion; (vi) the time and manner for requesting exclusion; and (vii) the binding effect of a class judgment on members under Rule 23(e)(3). The notices also directed recipients to a toll-free number they could call for additional information and to obtain access to a website. The website contained a plethora of information regarding the Settlement: general information about the case; a “Frequently Asked Questions” section; links to the Claim Form, Claim Form Instructions, Fair Credit Reporting Act Disclosure and Authorization Form, the Settlement Agreement, and the Class Notice; relevant case deadlines; instructions regarding Class Member address changes; instructions for opting out or filing objections to the Settlement; and contact information for Class counsel, Cook’s counsel, the Claims Administrator, and the Court. Fed. R. Civ. P. 23(e)(1) requires notice to be given “in a reasonable manner.” “[W]hen courts have evaluated whether settlement notice is adequate, the focus is not on actual notice rates, but rather whether the best notice practicable to individuals under the circumstances was achieved through reasonable effort.” Turner, 472 F. Supp. 2d at 840 (citing DeJulius v. New England Health Care Employees Pension Fund, 429 F.3d 935, 944 (10th Cir. 2005)). “Rule 23’s mandate that absentee class members be given ‘the best notice practicable under the circumstances,’ Fed.R.Civ.P.
Page 17 of 43

23(c), is consistent with the due process requirements of the Constitution.” Adams v. Southern Farm Bureau Life Ins. Co., 493 F.3d 1276, 1287 n.5 (11th Cir. 2007).
In order to reach potential Class Members, 14,563 Class Notices were mailed to all known job applicants during the time period at issue, regardless of race, at the address on file with Cook’s. The Class Notices repeatedly stated that only African-Americans were eligible to participate in the Settlement. When notices were returned as undeliverable, the Claims Administrator attempted a trace to locate a current address. If an alternative address was located through a trace or provided by the U.S. Postal Service, the Class Notices were remailed. In order to reach potential Class Members whose applications may have been lost or destroyed, the parties published Class Notices in 27 newspapers, 19 of which had online versions, in every county where Cook’s has a district office. The published notices proved effective; a number of claim forms were received from individuals to whom no notice was mailed. Given the information known and available to the parties, the Court finds that the Class Notices in this case were distributed “in a reasonable manner.” Counsel for the parties have achieved the best notice practicable through reasonable effort.
B. Class Certification. The parties settled this action prior to class certification. “Confronted with a request for settlement-only class certification, a district court need not inquire whether
Page 18 of 43

the case, if tried, would present intractable management problems,” as required under Fed. R. Civ. P. 23(b)(3)(D). Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997). “But other specifications of the Rule-those designed to protect absentees by blocking unwarranted or overbroad class definitions-demand undiluted, even heightened, attention in the settlement context.” Id. “Such attention is of vital importance, for a court asked to certify a settlement class will lack the opportunity, present when a case is litigated, to adjust the class, informed by the proceedings as they unfold.” Id. The U.S. Supreme Court has emphasized that district court may not disregard the requirements of Fed. R. Civ. P. 23(a) and (b), and “substitute for Rule 23’s certification criteria a standard never adopted-that if a settlement is ‘fair,’ then certification is proper.” Id. at 622.
Because the undersigned found that the Rule 23(a) and (b) standards were satisfied, the settlement class was preliminarily certified, and notice to the proposed class was required. A summary of the Court’s findings of fact and conclusions of law on these issues is warranted on final approval.
1. Fed. R. Civ. P. 23(a). Under Fed. R. Civ. P. 23(a), a class may be certified if “(1) the class is so numerous that joinder of all members would be impracticable; (2) there are questions of fact and law common to the class; (3) the claims or defenses of the representatives are typical of the claims and defenses of the unnamed members; and (4) the named representatives will be
Page 19 of 43

able to represent the interests of the class adequately and fairly.” Valley Drug Co. v. Geneva Pharms., Inc., 350 F.3d 1181, 1187-88 (11th Cir. 2003). These four prerequisites are generally known as “numerosity, commonality, typicality, and adequacy of representation.” Id. at 1188. While the prerequisites are often discussed in isolation, the inquiries necessary to determine whether they are met tend to overlap. See Amchem Prods., 521 U.S. at 626 n.20 (“The adequacy-of-representation requirement tends to merge with the commonality and typicality criteria of Rule 23(a), which serve as guideposts for determining whether 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.”) (internal citations omitted).
The numerosity element requires that the members of the class must be “so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). No third party nor objector has appeared to dispute the numerosity factor. Here, 14,563 Class Notices were mailed to potential class members. The Claims Administrator received approximately 908 calls on the toll-free number and gave out around 272 user names and passwords. 558 claim form packets were mailed in response to requests on the toll-free number, and more claim forms were downloaded from the website. As of the claims deadline, 495 claim forms were received. It appears that nine of those claimants
Page 20 of 43

are ineligible, and approximately 195 forms will require further investigation, as explained above. Even if the Court assumed all 195 claimants were found ineligible, the class is sufficiently numerous to meet the requirements of Rule 23(a). See Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir. 1986).
“Commonality requires ‘that there be at least one issue whose resolution will affect all or a significant number of the putative class members.’” Williams v. Mohawk Indus., 568 F.3d 1350, 1355 (11th Cir. 2009) (quoting Stewart v. Winter, 669 F.2d 328, 335 (5th Cir. 1982)). Plaintiffs contend that Cook’s engaged in a widespread, uniform pattern or practice of discrimination that resulted in African-Americans being denied employment. Plaintiffs’ claims focus on a pattern of discrimination, not on individual fact situations. Every member of the potential class would have to prove his or her claim using the same statistical analysis. For the purposes of settlement, the parties agree that this alleged pattern of discrimination satisfies commonality, and no objector or third party has disputed that assertion. Accordingly, the Court finds the commonality element is satisfied. Plaintiffs’ complaint raises common questions of fact and law sufficient to meet the “low hurdle of Rule 23(a)(2).” Williams, 568 F.3d at 1356.
Typicality is satisfied if “the claims or defenses of the class and the class representative arise from the same event or pattern or practice and are based on the same legal theory.” Id. at 1357 (quoting Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332,
Page 21 of 43

1337 (11th Cir. 1984)). “A class representative must possess the same interest and suffer the same injury as the class members in order to be typical under Rule 23(a)(3).” Id. (quoting Murray v. Auslander, 244 F.3d 807, 811 (11th Cir. 2001)). Here, the Named Plaintiff’s claim and the claims of the Class Members arise from the same alleged pattern or practice of discrimination. All contend that they applied for employment with Cook’s and were denied because of their African-American race. The typicality element is satisfied.
“The adequacy-of-representation requirement ‘encompasses two separate inquiries: (1) whether any substantial conflicts of interest exist between the representatives and the class; and (2) whether the representatives will adequately prosecute the action.’” Busby v. JRHBW Realty, Inc., 513 F.3d 1314, 1323 (11th Cir. 2008) (quoting Valley Drug Co. v. Geneva Pharm., Inc., 350 F.3d 1181, 1189 (11th Cir. 2003)). The Court is not aware of any conflicts of interest between the Named Plaintiff and Class Members. Despite the complexities that have arisen in attempting to prove a pattern and practice of widespread race discrimination, the Named Plaintiff has continued to vigorously prosecute this action for years. Moreover, Plaintiffs’ attorneys have demonstrated extensive experience as litigators in federal court class action litigation. For these reasons, the Court concludes that the Named Plaintiff has adequately
Page 22 of 43

represented the class, and the requirements of Fed. R. Civ. P. 23(a) have been established.
2. Fed. R. Civ. P. 23(b). However, the proposed class must also meet the requirements of one of the three class types found in Fed. R. Civ. P. 23(b). Here, the parties have stipulated to the certification of a Rule 23(b)(2) and Rule 23(b)(3) settlement class. In order “[t]o qualify for certification under Rule 23(b)(3), a class must meet two requirements beyond the Rule 23(a) prerequisites: Common questions must predominate over any questions affecting only individual members; and class resolution must be superior to other available methods for the fair and efficient adjudication of the controversy.” Amchem Prods., Inc., 521 U.S. at 615 (quotations omitted). “Rule 23(b)(3) includes a nonexhaustive list of factors pertinent to a court’s ‘close look’ at the predominance and superiority criteria:
(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 the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action. Id. at 615-16 (quotations omitted).
Page 23 of 43

In the settlement context of this case, there are no disputes undermining class certification. The Class Members allege that they have been harmed by the same widespread pattern or practice of race discrimination in hiring. This is not a situation where, “after adjudication of the classwide issues, plaintiffs must still introduce a great deal of individualized proof or argue a number of individualized legal points to establish most or all of the elements of their individual claims.” Williams, 568 F.3d at 1357. Given the nature and amount of discovery involved to prove just one Class Member’s claim of pattern or practice discrimination, concentrating the litigation of the Class Members’ claims in one forum is highly desirable. No party has located nor identified other litigation concerning this controversy by Class Members against the Defendant. Furthermore, when “[c]onfronted with a request for settlement-only class certification, a district court need not inquire whether the case, if tried, would present intractable management problems, . . . for the proposal is that there be no trial.” Amchem Prods., Inc., 521 U.S. at 620 (citation omitted). Accordingly, certification is appropriate under Fed. R. Civ. P. 23(b)(3).
“Certification of a class under subsection (b)(2) is appropriate when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Williams, 568 F.3d at 1359 (quoting Fed. R. Civ. P. 23(b)(2)).
Page 24 of 43

“Monetary damages are legal relief that can only be awarded in a Rule 23(b)(2) class action when the damages sought are incidental to the claims for equitable and declaratory relief.” Id. (quotations omitted). “[T]he advisory committee’s note to Rule 23 explains that certification under section (b)(2) is not proper in cases in which the appropriate final relief relates exclusively or predominantly to money damages.” Id. (quotations omitted).
When a class is certified under Fed. R. Civ. P. 23(b)(3), a “hybrid” class action can be certified under Fed. R. Civ. P. 23(b)(2) in some cases. “Since in theory there should be no hard requirement that (b)(2) be mutually exclusive, and since subpart (c)(4)(A) allows an action to be maintained with respect to particular issues, the fact that damages are sought as well as an injunction or declaratory relief should not be fatal to a request for a (b)(2) suit, as long as the resulting hybrid case can be fairly and effectively managed.” Id. (quoting Holmes v. Cont’l Can Co., 706 F.2d 1144, 1158 n.10 (11th Cir. 1983).
In this case, Cook’s is alleged to “have acted or refused to act on grounds that apply generally to the class,” by failing to hire the Class Members as part of a widespread pattern or practice of race discrimination in hiring. The predominant relief requested is a consent decree requiring implementation of new hiring procedures, training programs, and methods of record keeping, as well as the institution of a monitor to oversee the decree. The parties also request a Court order enjoining Cook’s from violating the decree or discriminating against African-Americans in employment based on their race. Because
Page 25 of 43

the predominant relief requested is equitable, and individual damages are easy to calculate and manage based on the formula agreed upon by the parties, certification is appropriate under both Fed. R. Civ. P. 23(b)(2) and (b)(3).
C. Fairness of the Settlement Agreement Fed. R. Civ. P. 23(e) provides that “[a] class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs.” While Rule 23(e) does not provide any standards or guidelines for settlement approval, it is well-established in this Circuit that “in order to approve a settlement, the district court must find that it ‘is fair, adequate and reasonable and is not the product of collusion between the parties.’” Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir. 1984) (quoting Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir. 1977)). When examining the fairness, adequacy, and reasonableness of a settlement, the Eleventh Circuit requires a district court to examine a number of factors, including: “(1) the likelihood of success at trial; (2) the range of possible recovery; (3) the point on or below the range of possible recovery at which a settlement is fair, adequate and reasonable; (4) the complexity, expense and duration of litigation; (5) the substance and amount of opposition to the settlement; and (6) the stage of proceedings at which the settlement was achieved.” In re CP Ships Ltd. Securities Litigation, 578 F.3d 1306, 1317-18 (11th Cir. 2009) (quoting
Page 26 of 43

Bennett, 737 F.2d at 986), abrogated on other grounds by Morrison v. Nat’l Australia Bank Ltd., 130 S. Ct. 2869 (2010).
Whether to approve a settlement in a class action lawsuit is a decision “left to the sound discretion of the trial court,” and the trial court’s decision will not be overturned “absent a clear showing of abuse of that discretion.” Bennett, 737 F.2d at 986. “Settlement is generally favored because it conserves scarce judicial resources.” In re Smith, 926 F.2d 1027, 1029 (11th Cir. 1991) (citing Cotton, 559 F.2d at 1331)). In short, “[T]he judge must guard against the temptation to become an advocate—either in favor of the settlement because of a desire to conclude the litigation, or against the settlement because of the responsibility to protect the rights of those not parties to the settlement. In reviewing the settlement the judge is called upon to be impartial and neutral, favoring neither the proponents of the settlement nor those who are opposed or absent.” Id. (quoting Moore’s Federal Practice, Manual for Complex Litigation 2d § 23.14 at 160 (1986)).
1. The Likelihood of Success at Trial The Court is familiar with the facts and law of this case and the legal standards that apply. On a number of occasions, the Court has been very involved in supervising the litigation and resolving extensive discovery disputes. Given this familiarity, the Court believes that good cause exists for the parties to resolve this case.
Page 27 of 43

It is virtually impossible to predict a likely result at trial. Proving this pattern or practice discrimination case requires statistical analysis of massive amounts of documents. Plaintiffs believe they have accumulated sufficient evidence to prevail, but Defendant has raised significant legal and factual issues that could reduce or completely eliminate a class recovery. The parties have invested years in this litigation at significant cost to both sides. A trial and probable appeal would only add exponentially to the costs of litigation and serve to further reduce any potential recovery for Class Members. For these reasons, the Court finds that the risks faced by the parties and the difficulty in managing a trial or hearing weigh in favor of accepting the Settlement.
2. The Range of Possible Recovery and the Point on or Below the Range of Possible Recovery at Which a Settlement is Fair, Adequate, and Reasonable .
The relief sought in the Settlement is reasonable and within the range of remedies permitted by law. While Class Members’ damages could exceed the amount provided in the Settlement, the Plaintiffs have no guarantee they will prevail. When the Settlement is taken as a whole, the relief proposed is fair, adequate, and reasonable when compared to the range of possible recovery in this action.
3. The Complexity, Expense, and Duration of Litigation. As previously discussed, this is a complex case that will only get more expensive and time consuming. The parties have litigated this action for five years, and many legal issues have not yet been raised for disposition by the Court. That process could take
Page 28 of 43

many more years, increasing expenses for both sides and potentially reducing the amount that would be available for recovery by Class Members. This factor weighs heavily in favor of approving the Settlement.
4. The Substance and Amount of Opposition to the Settlement. In assessing whether a proposed settlement is fair, adequate, and reasonable, the Court must “examine the settlement in light of the objections raised.” Cotton, 559 F.2d at 1331. “In assessing the fairness of a proposed compromise, the number of objectors is a factor to be considered but is not controlling.” Id. “[A] low percentage of objections points to the reasonableness of a proposed settlement and supports its approval.” Lipuma v. Am. Express Co., 406 F. Supp. 2d 1298, 1324 (S.D. Fla. 2005) (citing Bennett, 737 F.2d at 986). “[A] high percentage of objections signals that a proposed settlement is not fair and reasonable.” Id. As noted previously, the Settlement has met with overwhelming approval by the Class Members. The deadline for objections and opt-outs was April 12, 2012. No Class Members have objected or opted out, despite notices being sent to all job applicants that could be located, regardless of race, and publication of notices in 27 newspapers in four states. The complete absence of opposition is powerful evidence that the proposed relief provides significant and material benefits to the Class Members and the Settlement is fair, reasonable, and adequate in all respects.
Page 29 of 43

5. The Stage of Proceedings at Which the Settlement Was Achieved. The Settlement was achieved after nearly five years of litigation and extensive discovery. The parties took depositions of key witnesses, argued motions to compel and motions for protective orders, and reviewed thousands of pages of legal documents related to the claims and defenses in this case. Both parties and the Court are familiar with the legal and factual issues and have an adequate appreciation of the merits of this case. The litigation is still at an early enough stage, however, that settlement will avoid substantial expense for all involved. This factor also counsels in favor of approving the Settlement.
6. Lack of Collusion. Finally, the Court is required to determine the possible existence of fraud or collusion. The record demonstrates that the Settlement was negotiated by capable, experienced counsel in good faith and at arms’ length, after extensive, difficult, and lengthy negotiations involving a skilled mediator. The mediation process, itself, took nearly ten months. Class Members have universally accepted the terms of the Settlement by choosing not to object or opt-out. And, neither the Named Plaintiff nor any counsel has an interest in the residual Settlement Fund after all awards are paid. If there is a residual, it will be donated to the United Negro College Fund. In short, there is
Page 30 of 43

absolutely no evidence of fraud, collusion, or any other improper conduct in the settlement negotiations or the resulting proposed Settlement.
Because all factors weigh in favor of settling this class action, the Court finds that the proposed Settlement is fair, adequate, and reasonable, and not the product of fraud, collusion, or any other improper conduct. IV. Service Award.
The Settlement proposes that the Named Plaintiff, Marion Waters, receive a Service Award for his participation in this action and his service to the settlement class. The parties have agreed that the Service Award will be paid from the Settlement Fund and will equal one and one-half times the maximum amount paid to a Class Member.
“While the Eleventh Circuit has not expressly set forth guidelines for courts to use in determining incentive awards, there is ample precedent for awarding incentive compensation to class representatives at the conclusion of a successful class action. In fact, “‘[c]ourts routinely approve incentive awards to compensate named plaintiffs for the services they provided and the risks they incurred during the course of the class action litigation.’” Allapattah Servs., Inc. v. Exxon Corp., 454 F. Supp. 2d 1185, 1218 (S.D. Fla. 2006) (quoting Ingram v. Coca-Cola Co., 200 F.R.D. 685, 694 (N.D. Ga. 2001)).
The Court finds that the proposed Service Award in this action is fair and reasonable under the circumstances. For nearly five years, Marion Waters has born the
Page 31 of 43

burden of acting as the sole class representative in this action. Marion Waters consulted with several attorneys in order to engage the best representation for him and the members of the class. Discovery has been contentious from the start. The record shows that the Marion Waters assisted Class Counsel in preparing for depositions and discussing case strategy. He kept up with the progress of the case and participated directly in mediation sessions. Marion Waters also attended the preliminary approval hearing. In his own words:
I have taken time away from both work and personal obligations, held myself up to public scrutiny and ridicule and forever associated my name and reputation with a cause I believed, but which has exposed me to potential risks and scorn in some quarters of the community. (Waters Decl. ¶ 23.) No one has objected to the proposed Service Award, and the Court has found there is no evidence of collusion. Accordingly, the Service Award is approved. V. Attorneys’ Fees. Class Counsel request 35% of the Settlement Fund as attorneys’ fees ($875,000.00), plus litigation expenses in the amount of $53,831.55. “The district court has wide discretion to award attorneys’ fees based on its own expertise and judgment because of ‘the district court’s superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters.” Dikeman v. Progressive Exp. Ins. Co., 312 Fed. Appx. 168, *171 (11th Cir. 2008) (quoting
Page 32 of 43

Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)). “Yet, the district court’s discretion is not unlimited, and ‘[a] conclusory statement that a fee is reasonable in light of the success obtained is generally insufficient.’” Id. (quoting Norman v. Housing Authority of Montgomery, 836 F.2d 1292, 1304 (11th Cir. 1988)). “The court’s order on attorney’s fees must allow for meaningful review—the district court must articulate the decisions it made, give principled reasons for those decisions, and show its calculation.” Norman, 836 F.2d at 1304.
“There is no hard and fast rule mandating a certain percentage of a common fund which may reasonably be awarded as a fee because the amount of any fee must be determined upon the facts of each case.” Camden I Condominium Ass'n, Inc. v. Dunkle, 946 F.2d 768, 774 (11th Cir. 1991). The “majority of common fund fee awards fall between 20% to 30% of the fund.” Id. “To avoid depleting the funds available for distribution to the class, an upper limit of 50% of the fund may be stated as a general rule, although even larger percentages have been awarded.” Id. at 774-75. However, the “benchmark” range of 20% to 30% “may be adjusted in accordance with the individual circumstances of each case.” Id. at 775. “The factors which will impact upon the appropriate percentage to be awarded as a fee in any particular case will undoubtedly vary.” Id. The Court is instructed to consider the twelve factors set forth in Johnson v.
Page 33 of 43

Georgia Highway Express, Inc., 488 F.2d 714, 717 (5th Cir.1974).3 Camden I, 946 F.2d at 775. “Other pertinent factors are the time required to reach a settlement, whether there are any substantial objections by class members or other parties to the settlement terms or the fees requested by counsel, any non-monetary benefits conferred upon the class by the settlement, and the economics involved in prosecuting a class action.” Id. The district court must “identify all factors upon which it relied and explain how each factor affected its selection of the percentage of the fund awarded as fees.” Id.
In obtaining the Settlement, Class Counsel have recovered a determinate fund of $ 2.5 million for the benefit of all Class Members, exclusive of injunctive and declaratory relief. Their request for an award of attorneys’ fees in the amount of $875,000.00, or 35% of the fund, is reasonable given the time and labor required of Class Counsel, the difficulty of the questions at issue in this litigation, the skill and experience of Class Counsel, the customary fee for cases of this nature, Class Counsel’s contingent fee risk and financial contribution to the case, the undesirability of the case, and the results obtained.
3The Johnson factors are: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. 488 F.2d at 717-19.
Page 34 of 43

A. Time and Labor Required. “Although the hours claimed or spent on a case should not be the sole basis for determining a fee, . . . they are a necessary ingredient to be considered.” Johnson, 488 F.2d at 717. This factor requires the Court to examine the number of hours actually expended, multiplied by a reasonable hourly rate for attorneys with similar skill and experience practicing in the same area. Over the course of five years of litigation in this action, Class Counsel have expended 2,466.30 hours. Although there are three separate law firms involved, the firms divided their labor and ensured work was not duplicated. Multiplying 2,466.30 hours by the reasonable hourly rates routinely charged yields a total figure of $1,076,140.00. Because the requested amount of $875,00.00 falls well below the calculated fees, this factor heavily weighs in favor of awarding attorneys’ fees in the amount of 35% of the Settlement Fund . B. Novelty and Difficulty of the Questions at Issue. “Cases of first impression generally require more time and effort on the attorney’s part.” Id. at 717. This case involved evidence of racial coding of employment applications. As noted in the declaration of Professor Harry Hopkins, a professor of labor law at the University of Alabama School of Law, such a case is extremely rare, and disparate impact litigation alone involves incredibly complex discovery problems for plaintiffs’ counsel. (Doc. 132-5.) Defense counsel presented a vigorous defense at every
Page 35 of 43

stage of the case, requiring multiple hearings on motions to quash and motions for protective orders. This factor also weighs in favor of the attorneys’ fee requested.
C. Skill Requisite to Perform the Legal Service Properly. This is a class action case involving an area of employment law where few lawyers dare tread. Class Counsel have set forth their qualifications in their declarations. The skill necessary to litigate this case, despite the consistently tough opposition of reputable law firms with significant resources, is high. Accordingly, this factor weighs in favor of approving the requested fees in the amount of 35% of the Settlement Fund. D. Preclusion of Other Employment by the Attorneys Due to Acceptance of
the Case.
“This guideline involves the dual consideration of other available business which is foreclosed because of conflicts of interest which occur from the representation, and the fact that once the employment is undertaken the attorney is not free to use the time spent on the client’s behalf for other purposes.” Johnson, 488 F.2d at 718. There is no doubt that the amount of hours required to prosecute this action limited the amount of time and resources that Class Counsel was available to devote to other matters over the period of this litigation. However, Class Counsel has not offered any evidence that it actually turned down other business because of this case. This factor is neutral for the consideration whether to award the slightly enhanced fee of 35% of the Settlement Fund.
Page 36 of 43

E. Customary Fee. The rates charged by Class Counsel are well within the customary fees charged for comparable service. Wiggins Childs Quinn & Pantazis, LLC, customarily enters into contingent fee agreements allowing for recovery of 33% in low risk cases with uncontested or moderately contested liability, and up to 49% in higher risk cases with difficult liability issues. (Doc. 132-1 ¶ 43). Although this would certainly qualify as a “higher risk” case with difficult liability issues, the fee percentage requested in this case is at the lower end of that range. This factor weighs in favor of approving the requested fees in the amount of 35% of the Settlement Fund. F. Whether the Fee is Fixed or Contingent and the Economics of Prosecuting
a Class Action. “The fee quoted to the client or the percentage of the recovery agreed to is helpful in demonstrating the attorney’s fees expectations when he accepted the case.” Johnson, 488 F.2d at 718. Class Counsel accepted this matter on a contingent basis. They have incurred significant expenses in prosecuting this action over the course of five years and received no compensation. They have spent more time on this case than they will be compensated for at their customary rates. Throughout the years, there has been a real possibility that Class Counsel would not recover anything for the Class. For these reasons, this factor supports the approval of the requested amount of attorneys’ fees.
Page 37 of 43

G. Time Limitations Imposed by the Client or the Circumstances. “Priority work that delays the lawyer’s other legal work is entitled to some premium. This factor is particularly important when new counsel is called in to prosecute the appeal or handle other matters at a late stage in the proceedings.” Johnson, 488 F.2d at 718. Class Counsel have not identified any deadlines that delayed their other work such that an enhanced attorneys’ fee award is justified. This factor is neutral. H. Amount Involved and the Results Obtained. Class Counsel have recovered a determinate fund of $ 2.5 million for the benefit of all Class Members, exclusive of injunctive and declaratory relief. The monetary award for each Class Member is expected to be several thousand dollars. Considering the complexities of this case and the vigorous defense of opposing counsel, this is an excellent recovery when there was a very real chance the Class would not recovery anything. This factor definitely supports the slightly enhanced attorneys’ fee of 35% of the Settlement Fund. I. Experience, Reputation, and Ability of the Attorneys. The court is familiar with the experience, reputation, and ability of Class Counsel and Defendant’s counsel. Class Counsel have set forth their qualifications and prior experience in declarations. This case has, at all stages, been handled on both sides by very experienced and talented lawyers whose reputations for effective handling of
Page 38 of 43

complex litigation are well known throughout Alabama. This factor also weighs in favor of awarding the requested fee of 35% of the Settlement Fund.
J. Undesirability of the Case. The Court has already discussed the complex discovery issues involved in proving a disparate impact case. The expense and time involved in prosecuting such litigation on a contingent basis, with no guarantee or high likelihood of recovery, would make this case highly undesirable for many attorneys. Therefore, this factor, too, supports the requested amount of attorneys’ fees. K. Nature and Length of the Professional Relationship with the Client. Class Counsel were not representing long-term clients in this matter. This factor is neutral. L. Awards in Similar Cases. “The reasonableness of a fee may also be considered in light of awards made in similar litigation within and without the court’s circuit.” Johnson, 488 F.2d at 719. Neither Class Counsel nor the Court were able to locate instances of factually-similar litigation or similar recoveries in cases with comparable class sizes. However, an award of 35% of the Settlement Fund is well within the range of 20% to 50%, which has been generally established in this circuit. Camden I, 946 F.2d at 771. This factor is also neutral.
Page 39 of 43

M. Time Required to Reach a Settlement. The mediation process, start to finish, took almost a year. The parties selected a skilled mediator and agreed to additional discovery and review to facilitate settlement. The parties held two formal mediation sessions and nine informal conferences in order to reach a resolution of matters and draft the specific terms of the Settlement Agreement. This factor supports the requested fee of 35% of the Settlement Fund. N. Any Non-Monetary Benefits Conferred Upon the Class by the Settlement. In addition to each Class Member receiving a monetary award that is expected to be several thousands of dollars, Class Counsel has negotiated a Settlement Agreement that provides other non-monetary benefits. In fact, as outlined above, the predominant relief requested is equitable. Namely, a consent decree will be entered requiring Cook’s to implement new hiring procedures, training programs, and methods of record keeping, and a monitor will be instituted to oversee the decree. The Court will also enjoin Cook’s from violating the decree or discriminating against African-Americans in employment based on their race. This factor strongly weighs in favor of the slightly enhanced attorneys’ fee of 35% of the Settlement Fund O. Objections by Class Members or Other Parties to the Settlement Terms or
the Fees Requested by Counsel. Opposing Counsel has not objected to the terms of the Settlement Agreement or the fees requested by Class Counsel. Out of hundreds of Claimants, no one has objected
Page 40 of 43

to the terms of the Settlement Agreement. In the Class Notices, Class Counsel notified potential claimants that they would be seeking up to 40% of the Settlement Fund as attorneys’ fees; there was no objection.
In order to ensure compliance with all notice provisions, however, the parties mailed a separate notice to Claimants, informing them of their petition for attorneys’ fees in the amount of 35% of the Settlement Fund, plus expenses, and Claimants’ right to object and appear at the hearing on attorneys’ fees on July 5, 2012. No one appeared at the hearing to voice an objection. Only one claimant filed an objection to the amount of attorneys’ fees and expenses. (Doc. 137.) However, the objecting claimant also acknowledged the quality of Class Counsel and did not appear to speak at the hearing. In the written objection, the individual claimant notes that she is “eternally grateful for the effort all of the attorneys have put forth to correct the injustice perpetrated by Cook’s . . . However I think the amount of . . . 35% is excessive. Most lawsuit fees are limited to 33% of the award amount. I strongly feel it should be the same in this case.” (Id.)
As discussed previously, this is not “most lawsuits.” This is a high risk case with difficult discovery and liability issues. Class Counsel have obtained an outstanding result for Class Members. This factor supports awarding the amount requested.
Page 41 of 43

Having considered all the factors outlined above, the Court finds that it is fair and reasonable to award Class Counsel fees in the amount of $875,000.00, or 35% of the Settlement Fund. VI. Expenses.
Class Counsel also request reimbursement of costs and expenses in the total amount of $53,831.55. “Upon submission of adequate documentation, plaintiffs’ attorneys are entitled to reimbursement of those reasonable and necessary out-of-pocket expenses incurred in the course of activities that benefitted the class.” In re “Agent Orange” Prod. Liab. Litig., 611 F.Supp. 1296, 1314 (E.D. N.Y. 1985), modified on other grounds, 818 F.2d 226 (2d Cir. 1987), quoted by Waters v. Int’l Precious Metals Corp., 190 F.3d 1291, 1298 (11th Cir. 1999). The district court has a “responsibility to scrutinize the costs for which reimbursement is requested in order to ensure that class counsel is not obtaining a secret or unintended profit.” Int’l Precious Metals Corp., 190 F.3d at 1298.
Class Counsel have submitted a summary of their expenses and receipts in support. At the hearing on attorneys’ fees on July 5, 2012, the Court questioned Class Counsel at length about some items for which the Court needed information to gauge the reasonableness of the charges. After full review, the Court is convinced that the charges submitted are “reasonable and necessary out-of-pocket expenses incurred in the course of activities that benefitted the class.” There is no indication that Class Counsel have
Page 42 of 43

inflated the expenses claimed in order to realize a secret profit. The Court will award Class Counsel expenses in the amount of $53,831.55. VII. Conclusion
For the reasons outlined above, the Court will enter separate orders that: 1. Approve the proposed Settlement and finds that the Settlement is fair,
adequate and reasonable, and not the product of collusion among the parties; 2. Order the equitable relief requested in the Settlement; 3. Order that this action shall be dismissed with prejudice; 4. Approve the request for a Service Award for the Named Plaintiff; and 5. Grant Class Counsel’s motion for attorneys’ fees in the amount of $875,000.00, and expenses in the amount of $53,831.55. Done this 17th day of July 2012.
____________ L. SCOTT COOGLER UNITED STATES DISTRICT JUDGE
139297
Page 43 of 43

 
 Case 2:07-cv-00394-LSC Document 139 Filed 07/17/12 Page 1 of 21
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

FILED
2012 Jul-17 AM 10:15 U.S. DISTRICT COURT
N.D. OF ALABAMA

MARION WATERS, on his own

]

behalf and on behalf of all others

]

similarly situated,

]

]

Plaintiffs,

]

]

v.

] 2:07-cv-00394-LSC

]

COOK’S PEST CONTROL, INC., ]

]

Defendant.

]

]

]

CONSENT DECREE

In accordance with the Memorandum of Opinion entered contemporaneously herewith, it is hereby ORDERED, ADJUDGED, and DECREED1 that:

1. The Court has jurisdiction over this action and over all Class Members.

2. Pursuant to Federal Rule of Civil Procedure 23, the Court hereby

CERTIFIES, for purposes of effectuating the Settlement by and among Plaintiff Marion

Waters, individually and as class representative, and defendant Cook’s Pest Control, Inc.

(“Cook’s”), a Settlement Class consisting of all African-Americans who applied for

1This Consent Decree incorporates by reference the definitions used in the accompanying Memorandum of Opinion and Settlement, and all applicable terms used in this Consent Decree shall have the same meanings as those in the Memorandum of Opinion and Settlement
Page 1 of 21

Case 2:07-cv-00394-LSC Document 139 Filed 07/17/12 Page 2 of 21
employment at any Cook’s location from March 1, 2005, through the date of preliminary approval, and who were denied employment, excluding all judicial officers or employees of the Federal courts within the second degree of affinity; employees of Plaintiffs' counsel; and any other person whose presence in the class would cause mandatory recusal of any judge assigned to the case.
3. With respect to the Settlement Class, the Court FINDS and CONCLUDES that: (a) the Settlement Class Members are so numerous that joinder of all Settlement Class Members in this action is impracticable; (b) under Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997), the manageability of a nationwide class, such as manageability issues arising from legal and factual variation, is not implicated in the settlement context, and need not be considered, because “the proposal is that there be no trial”; (c) Plaintiffs’ complaint raises common questions of fact and law sufficient to meet the requirements of Rule 23(a)(2); (d) the claims of the Named Plaintiff are typical of the claims of the Settlement Class; (e) the Named Plaintiff and Class Counsel have fairly and adequately represented and protected the interests of all Settlement Class Members; and (f) a class action is superior for the fair and efficient adjudication of this action.
4. Marion Waters is APPOINTED as Class Representative.
Page 2 of 21

Case 2:07-cv-00394-LSC Document 139 Filed 07/17/12 Page 3 of 21
5. Samuel Fisher, Robert Childs, Jr., and Toni J. Braxton of Wiggins, Childs, Quinn & Pantazis, LLC; Thomas F. Campbell and Ray Bonner of Campbell Law, P.C.; and Samuel Hill of the firm of Hill Turner are APPOINTED as Class Counsel.
6. Tommy Warren and Settlement Services, Inc., is APPOINTED as Claims Administrator to consider Claims for Settlement Compensation in accordance with the terms of this Decree and the Settlement.
7. The Court FINDS that the Class Notice fully, fairly, and accurately informed all Class Members of the material elements of this action and the proposed Settlement, and constituted: (i) the best practicable notice; and (ii) notice that was reasonably calculated, under the circumstances, to apprise members of the Class of the pendency of this action, their right to object or exclude themselves from the proposed Settlement, and their right to appear at the Fairness Hearing; and (iii) notice in conformity with the requirements of Fed. R. Civ. P. 23(c)(2). Notice was also sent to appropriate state and federal authorities pursuant to the requirements of the Class Action Fairness Act, 28 U.S.C. § 1715.
8. The proposed Settlement is APPROVED as fair, adequate and reasonable, and not the product of collusion among the parties.
9. The parties to the Settlement are AUTHORIZED and DIRECTED to comply with and to consummate the Settlement, in accordance with its terms and provisions.
Page 3 of 21

Case 2:07-cv-00394-LSC Document 139 Filed 07/17/12 Page 4 of 21
10. The Court has made no findings concerning Cook’s alleged violations of Title VII, 42 U.S.C. §1981, or any other federal, state or local law, regulation, order or rule, and Cook’s expressly denies any wrongdoing whatsoever. Accordingly, neither the Settlement nor this Decree shall constitute, and shall not be used in this or any other case or action as an admission or evidence of any violation of Title VII, 42 U.S.C. §1981, or any other federal, state or local law, regulation, order or rule. Neither this Settlement nor Decree shall be cited, offered, or construed as an admission or evidence (including but not limited to an admission or evidence of the propriety or feasibility of certifying a class) in this Action or any other action or proceeding except for purposes of seeking approval, fulfillment, or enforcement of this Decree or the Settlement. Notwithstanding the foregoing, this Decree or the Settlement may be used in any proceeding, in this Court or in mediation or arbitration, to enforce or implement any provision of this Decree or the Settlement or implement or enforce any orders or judgments of the Court entered in connection with this Decree or the Settlement. If this Decree or the Settlement is reversed or otherwise rendered ineffective for any reason, neither the Settlement nor this Decree shall be admissible for any purpose in this or any other action, and shall not constitute an admission by Cook’s as to the suitability for class action treatment of these or any other claims.
11. Duke University Law Professor James Coleman of North Carolina is APPOINTED as Decree Monitor. If, for any reason, the selected Decree Monitor cannot
Page 4 of 21

Case 2:07-cv-00394-LSC Document 139 Filed 07/17/12 Page 5 of 21
serve or complete his/her term, the parties, with the assistance of the Mediator, Hunter R. Hughes and Rogers & Hardin, LLP, will select the replacement. If the parties cannot agree, then the Mediator will make the selection. The Monitor shall have all powers necessary to effectuate the terms of the Decree. Among his/her duties and powers, the Monitor will review and approve the hiring procedures developed by Cook’s and will periodically review hiring rates for African-Americans by location. In the event that the hiring data for qualified applicants shows statistically significant shortfalls in the hiring of AfricanAmericans in any of the Monitored Positions2 in any of Cook’s locations (using applicant flow data analysis or any other method deemed appropriate by the Monitor), then the Monitor shall investigate the reason(s) for such shortfalls. If the Monitor determines that the shortfalls are for racially discriminatory reasons, then Cook’s shall work with the Monitor to resolve the issues of concern to the Monitor. If such issues are not resolved to the satisfaction of the Monitor through such process(es), he may raise the matter with the Court for resolution by the Court. Cook’s shall pay the fees and expenses of the Monitor.
12. The length of the Decree shall be three years from the entry of the Decree, but may be extended to a maximum of four years, to the extent necessary to resolve any issues still pending with the Monitor at the end of three years.
13. Cook’s is ORDERED to institute the following measures:
2“Monitored Positions” means the positions of sales, pest control technician, or termite technician at any of Cook’s facilities.
Page 5 of 21

Case 2:07-cv-00394-LSC Document 139 Filed 07/17/12 Page 6 of 21
A. Statement of Anti-Discrimination Policy. Cook’s CEO shall issue to all employees a statement affirming Cook’s anti-discrimination policy and describing its implementation. The statement will describe the reporting process if an employee believes a violation of the policy has occurred, without fear of retaliation. Cook’s will draft the statement and decide how the statement will be disseminated, subject to approval by the Monitor.
B. Training. Cook’s shall institute periodic training of its hiring and other management and supervisory personnel regarding the terms of the Decree, and non-discrimination in hiring, and other terms and conditions of employment.
C. Hiring. Cook’s shall hire qualified applicants at each facility without regard to race. With the assistance and approval of the Monitor, Cook’s shall establish objective, facially neutral hiring criteria that shall be used in the hiring process for the Monitored Positions during the term of the Decree. The criteria may be changed during the term of the decree with the consent of the Monitor. Cook’s shall retain the right to make hiring decisions on a decentralized basis, and to consider subjective factors, including those that may arise from interviews, in
Page 6 of 21

Case 2:07-cv-00394-LSC Document 139 Filed 07/17/12 Page 7 of 21
making hiring decisions. Further, Cook’s will retain the right to use any lawful criteria in making its hiring decisions, with approval of the Monitor. D. Recordkeeping. Cook’s shall put in place mutually agreed upon recordkeeping procedures that shall include the compilation by each facility of applicant flow data (based on voluntary self-identification by applicants) by race, the number of Monitored Position hires by race, and a summary of the reasons for selection/rejection of each applicant for the Monitored Positions, which may be in the form of a menu or checklist approved by the Monitor for this purpose. All application materials for the Settlement Period3 shall be kept for the full term of the Decree, but the Decree shall provide that all such materials are to be kept in the custody of the Claims Administrator, shall be maintained in the strictest confidence, and may not be disclosed to any person except by order of the Court; provided, however, that on inquiry made by counsel regarding a specific Class Member, the Claims Administrator shall provide information in its possession relating to that Class Member. Cook’s may retain copies of any such application materials,
3“Settlement Period” means the period from March 1, 2005 through January 27, 2012. Page 7 of 21

Case 2:07-cv-00394-LSC Document 139 Filed 07/17/12 Page 8 of 21
and is not required to submit applications made after the Settlement Period to the Claims Administrator. 14. Cook’s, and its officers and managers in their official capacities, are hereby ENJOINED: A. from taking any action which violates the terms of this Decree and from engaging in any employment practice that has the purpose or the effect of violating the terms of the Decree or discriminating against AfricanAmericans on the basis of their race in violation of 42 U.S.C. §1981 or Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000 et seq.; and B. from engaging in, implementing or permitting any action, policy or practice which has the purpose or effect of retaliating against any prospective, current or former employee because of his/her participation as a party, claimant, witness or declarant in this action. 15. The amount of the Settlement Fund is $2,500,000.00. A. Qualified Settlement Fund. The Settlement Fund shall be a “Qualified Settlement Fund” as described in Section 468B of the Internal Revenue Code, as amended, and Treas. Reg. § 1.468B-1 et seq. The Claims Administrator shall serve as the Trustee of the Settlement Fund, shall act in a manner necessary to qualify the Settlement Fund as a Qualified
Page 8 of 21

Case 2:07-cv-00394-LSC Document 139 Filed 07/17/12 Page 9 of 21
Settlement Fund and to maintain that qualification, and shall administer the Settlement Fund subject to Court supervision. Cook’s shall hereby be deemed to have made an election under Section 468B of the Internal Revenue Code to have the Settlement Fund treated as a Qualified Settlement Fund. Cook’s shall timely furnish a statement to the Claims Administrator that complies with Treasury Regulation § 1.468B-3(e) and shall attach a copy of the statement to its federal income tax returns that are filed for the taxable years in which Cook’s makes the required payments to the Settlement Fund. The Parties shall cooperate to ensure treatment of the Settlement Fund as a Qualified Settlement Fund and shall not take a position in any filing or before any tax authority inconsistent with such treatment. B. Establishment and Funding of Settlement Fund Account. The Parties have selected Settlement Services, Inc. (“SSI”) as the Claims Administrator for this Settlement, and SSI has contractually agreed to perform the duties of the Claims Administrator set forth in this Settlement for the express benefit of the Parties and the Class. Cook’s will pay the fees and expenses of the Claims Administrator. The Claims Administrator will open and administer an interest-bearing
Page 9 of 21

Case 2:07-cv-00394-LSC Document 139 Filed 07/17/12 Page 10 of 21
account (“Settlement Fund Account”) with a unique Taxpayer Identification Number. Cook’s shall make two payments to the Settlement Fund Account: one installment in the amount of $1.5 Million shall be paid on or before 10 business days after the Effective Date, and shall include payment of attorneys’ fees; the remaining balance of the settlement payment shall be paid no later than the later of the end of the first week of January 2013 or sixty days after the first installment. C. Disposition of Settlement Fund Account. The funds in the Settlement Fund Account shall be used to make all distributions required from the Settlement Fund in the manner and at the times specified in this Decree. The distributions will occur in such a way as to ensure that a Class Member will receive one payment only. D. Interest. All interest on the Settlement Fund Account shall be used, as directed by Cook’s Counsel, to pay costs of settlement administration or taxes on the interest. Any such interest shall not be subject to withholding and shall, if required, be reported appropriately to the IRS by the Claims Administrator. The Claims Administrator is responsible for the payment of all taxes on interest on the Settlement Fund.
Page 10 of 21

Case 2:07-cv-00394-LSC Document 139 Filed 07/17/12 Page 11 of 21
16. The Settlement Fund will be distributed as follows: A. Class Representative Service Award. The Named Plaintiff, Marion Waters, shall receive a Service Award in the amount of $48,000 for participation in this action and his service to the Class. The Service Award shall be paid from the Settlement Fund. B. Awards to Class Members. The Claims Administrator will calculate the amount of the settlement payment to each Class Member who has filed a timely and complete claim form, and has otherwise met the requirements for eligibility set forth herein, as follows: i. The Claims Administrator shall assign points to each Class Member who submits a valid, complete, and timely claim form based on the following formula: one point for having made application for employment to Cook’s during the covered period (“Covered Application”); one additional point for having made application for employment to Cook’s more than once during the covered period, without regard to the total number of times the Class Member may have made application within the covered period; one quarter of one additional point for
Page 11 of 21

Case 2:07-cv-00394-LSC Document 139 Filed 07/17/12 Page 12 of 21
each full calendar year since the first Covered Application was submitted, and ten additional points for having made a Covered Application to Cook’s Decatur District Office. All points awarded to all Class Members shall be totaled, and the total funds remaining in the Settlement Fund after payment of the Expense and Fee Award and the Service Award to the named plaintiff, Marion Waters, from the Settlement Fund shall be divided by the total number of points to determine the value of each point. The settlement payment to which each Class Member is entitled shall be determined by multiplying the result of that calculation by the number of points awarded to that Class Member; provided, however, that no Class Member other than the named class representative, Marion Waters, shall receive a monetary payment exceeding one year’s average pay for the highest-compensated class position (approximately $32,000); and further provided, that the Claims Administrator may petition the Court to make adjustment to the awards calculations to relieve
Page 12 of 21

Case 2:07-cv-00394-LSC Document 139 Filed 07/17/12 Page 13 of 21
unforeseen anomalous, grossly inequitable or suspected fraudulent results, and that either party to the Settlement Agreement may request the Claims Administrator to exercise his discretion to do so; and further provided, that under no circumstances shall Cook’s be liable for any payments to the Settlement Fund, class counsel, or class members beyond the payments described in this Decree. ii. Basic Eligibility Requirements. To be eligible to receive a settlement payment, a Class Member must have applied for employment at a Cook’s location during the Settlement Period, been denied employment, and at the time of application i) had graduated from high school or had obtained a GED, ii) possessed a valid driver’s license, and iii) had never been convicted of a felony. iii. Requirement of Timely and Complete Claim Form. To recover his or her settlement payment, a Class Member must have returned to the Claims Administrator a complete, executed Claim Form and Release postmarked on or before May 29, 2012, along with an executed copy of
Page 13 of 21

Case 2:07-cv-00394-LSC Document 139 Filed 07/17/12 Page 14 of 21
the Fair Credit Reporting Act (FCRA) Release. The Claims Administrator shall have the authority to investigate the information contained on the Claim Form and Release, which shall be executed under penalty of perjury. The Claims Administrator shall have the power to require additional information and verification from anyone submitting a suspicious claim, and, if a claim is deemed to lack credibility, to deny the claim if the additional information is not provided or deemed suspect in the sole discretion of the Claims Administrator. iv. Failure to Return Timely and Complete Claim Form. In the event that a Claim Form and Release is postmarked after the Claim Deadline, the Claims Administrator shall not make a payment to the Class Member from the Settlement Fund. In the event that a Class Member returns an incomplete Claim Form and Release, including, for example, by failing to include required enclosures, or by failure to include and executed FCRA Release, the Claims Administrator shall not make a payment to the
Page 14 of 21

Case 2:07-cv-00394-LSC Document 139 Filed 07/17/12 Page 15 of 21
Class Member from the Settlement Fund, subject to the Claims Administrator’s authority to investigate and seek additional information described in Section 16(B)(iii) above. v. Time for Depositing Award Checks. If a Class Member does not deposit, cash or negotiate his or her settlement check within one hundred and eighty (180) calendar days after the check is mailed, (a) the settlement check will be null and void; (b) the Class Member will be barred from receiving a monetary award under this Decree except for good cause shown, which shall be determined by the Claims Administrator; and (c) subject to (b) above, the amount of such a check will revert to the Settlement Fund. C. Awards and Tax Documents. The Claims Administrator shall mail awards to those Class Members, or to the estates of deceased Class Members, who are entitled to receive such awards. Also, such mailings shall, to the extent practical, include any tax documents that are required to be sent to Class Members in connection with their awards;
Page 15 of 21

Case 2:07-cv-00394-LSC Document 139 Filed 07/17/12 Page 16 of 21
if that is not possible, the Claims Administrator will mail any tax documents that are required to be sent to Class Members in connection with their awards as soon as practicable. D. Tax Allocation of Awards. The settlement awards to Class Members shall be allocated for tax purposes 18% to wages and 82% to non-wages. This allocation is based on the nature of the claims asserted (which claims Cook’s denies). The amounts allocated as wages shall be treated as wages and subject to payroll taxes. E. Tax Obligations. The Claims Administrator shall withhold from each Class Member’s award, and timely disburse to the IRS or other appropriate authorities, the employee’s portion of payroll taxes and tax withholding attributable to the wages component of each Class Member’s Award. The Parties shall have no responsibility or liability for any federal or state taxes owed in connection with the payments to Class Members made in connection with this Settlement Agreement. F. Tax Reporting. The Claims Administrator shall prepare and provide to each Class Member receiving a payment from the Settlement Fund a Form W-2 (for wages) and (if applicable) a Form 1099 (for nonwages) for these payments. The Class Representative will also receive
Page 16 of 21

Case 2:07-cv-00394-LSC Document 139 Filed 07/17/12 Page 17 of 21
a Form 1099 for any Class Representative Service Award. Class Counsel will receive a Form 1099 for the attorneys’ fees and costs awarded to Class Counsel. The Parties hereto shall cooperate with the Claims Administrator, each other, and their tax attorneys and accountants to the extent reasonably necessary to carry out the provisions set forth in this paragraph. G. Dispute Resolution. In the event of any dispute or issue raised by any of the Parties, by any Class Member or by any individual claiming to be a Class Member as to an individual’s membership in the Class, an individual’s timely return of a Claim Form and Release, the sufficiency or validity of a Claim Form and Release, the calculation of a Class Member’s award or the Class Member’s eligibility for such an award, the dispute or issue will be resolved by the Claims Administrator. The Claims Administrator’s decisions on such disputes and issues shall be final, binding, and non-appealable. H. The Claims Administrator shall provide the Parties with a reconciliation of the Settlement Fund Account no later than ten (10) days after the Class Awards are mailed.
Page 17 of 21

Case 2:07-cv-00394-LSC Document 139 Filed 07/17/12 Page 18 of 21
17. Class Counsel is AWARDED attorneys’ fees, costs, and expenses in the amount of $928,831.55 (“Expense and Fee Award”), to be paid out of the Settlement Fund. The Claims Administrator shall distribute funds in that amount to Class Counsel, or their designees, within twenty (20) days after the Effective Date. The amount of the Expense and Fee Award is independent of and apart from the amounts paid to Class Members, and Class Members shall at no time have any interest in the Expense and Fee Award. Cook’s shall have no responsibility for the tax treatment of the Expense and Fee Award or any other payments paid to Class Counsel, or the tax treatment of any amounts paid under this Decree.
18. In the event that there is any residual in the Settlement Fund after the distributions required by this Settlement Agreement are completed, and subject to Section15(D), that residual shall be donated in the parties’ names (Cook’s may opt to be unnamed) to the Birmingham Chapter of the United Negro College Fund. Any tax deduction associated with such donation shall belong to Cook’s.
19. The following releases shall be effective: A. The named plaintiff, Marion Waters, shall execute a release that releases the Cook’s Released Parties4 from any and all Released
4“Cook’s Released Parties” means and includes Cook’s Pest Control, Inc.’s past, present and future parent corporation(s), wholly and majority-owned company(ies), past, present and future affiliates, subsidiaries, divisions, joint ventures, predecessors, successors, successors-in-interest, and
Page 18 of 21

Case 2:07-cv-00394-LSC Document 139 Filed 07/17/12 Page 19 of 21
Claims,5 and in addition waives any right to employment with Cook’s
and contains an agreement not to apply for employment with Cook’s
and that the Release constitutes a legitimate, non-discriminatory, non-
pretextual and non-retaliatory reason not to hire him, or to terminate
him if he has been hired pursuant to application made in violation of the
Settlement.
B. Each Class Member who has not opted out of the Class, regardless of
whether the Class Member receives any monetary award pursuant to
this Settlement Agreement, shall have fully, finally, and forever settled,
remised, released, relinquished, acquitted, waived, and discharged any
and all Released Claims against the Cook’s Released Parties, and shall
be forever enjoined from prosecuting all Released Claims against the
assigns; and all of these entities’ employee benefit plans, fiduciaries, administrators, wage or benefit consultants, officers, directors, managers, employees, insurers and attorneys.
5“Released Claims” means any and all manner of actions, causes of action, suits, debts, judgments, rights, demands, damages, compensation, injuries to business, loss of service, expenses, attorneys’ fees, litigation costs, other costs, rights or claims for reimbursement of attorneys fees, and claims of any kind or nature whatsoever, in law or equity, under any theory of common law or under any federal, state, or local law, statute, regulation, ordinance, or executive order that the Class Member ever had, whether directly or indirectly, that occurred from the beginning of time through December 31, 2011, WHETHER HERETOFORE OR HEREAFTER ACCRUING, WHETHER FORESEEN OR UNFORESEEN, OR WHETHER KNOWN OR UNKNOWN TO ALL OR ANY OF THE PARTIES that arise out of or in any way relate to Cook’s failure to hire the Class Member because of his or her African-American race.
Page 19 of 21

Case 2:07-cv-00394-LSC Document 139 Filed 07/17/12 Page 20 of 21
Cook’s Released Parties. Furthermore, with respect to any and all Released Claims only, each Class Member who has not opted out of the Class, shall be conclusively deemed to, and by operation of the final judgment shall, waive and relinquish any and all rights or benefits they may now have, or in the future may have, under any law relating to the release of unknown claims. The foregoing release of claims was separately bargained for and a key element of the Settlement pursuant to which this Decree was entered. 20. This Decree hereby incorporates the terms of the Protective Order previously entered by the Court. 21. Neither party, nor any counsel for either party, shall at any time make any statement to the media, post or make any public statement on the Internet or on any website or through any social medium whatsoever, including but not limited to Facebook, MySpace, Twitter and Linked-In, relative to claims asserted in this matter, this Decree, or the Settlement Agreement. The intent of the foregoing is to ensure that other than such public notices and filings made as a part of the settlement approval and administration process, this matter and its settlement are to be kept confidential by all counsel and the Named Plaintiff. Notwithstanding the foregoing, nothing in the Decree prohibits counsel from making statements regarding said Decree in any subsequent court filings.
Page 20 of 21

Case 2:07-cv-00394-LSC Document 139 Filed 07/17/12 Page 21 of 21
22. This action will be dismissed with prejudice, subject to the Court’s continuing jurisdiction to reopen the action in order to enforce this Decree or the Settlement. In the event the Judgment is reversed or the Decree or Settlement does not become final and binding for any reason, the Court shall vacate the dismissal with prejudice.
23. In the event that this Decree is appealed, its provisions shall automatically be stayed pending resolution of the appeal, including any motions for rehearing or rehearing en banc, or any petitions for certiorari. If the Decree is reversed or vacated, or the Settlement does not become final and binding for any reason, no Party shall be deemed to have waived any claims, objections, rights or defenses, or legal arguments or positions, including but not limited to, claims or objections to class certification, or claims or defenses.
Done this 17th day of July 2012.
____________ L. SCOTT COOGLER UNITED STATES DISTRICT JUDGE
139297
Page 21 of 21

 
 Case 2:07-cv-00394-LSC Document 140 Filed 07/17/12 Page 1 of 1
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

FILED
2012 Jul-17 AM 10:29 U.S. DISTRICT COURT
N.D. OF ALABAMA

MARION WATERS, on his own behalf and on behalf of all others similarly situated,
Plaintiffs,
v.
COOK’S PEST CONTROL, INC.,
Defendant.

] ] ] ] ] ] ] 2:07-cv-00394-LSC ] ] ] ]

FINAL JUDGMENT

In accordance with the Memorandum of Opinion and Consent Decree entered

contemporaneously herewith, it is hereby ORDERED, ADJUDGED, and DECREED that

the above-entitled cause is DISMISSED with prejudice, subject to the Court’s continuing

jurisdiction to reopen the action in order to enforce the Consent Decree or Settlement

Agreement. Class Counsel is AWARDED attorney’s fees, costs, and expenses in the

amount of $928,831.55, to be paid out of the Settlement Fund in accordance with the terms

outlined in the Consent Decree.

Done this 17th day of July 2012.

____________ L. SCOTT COOGLER UNITED STATES DISTRICT JUDGE
139297
Page 1 of 1

 
 Case: 2:07-cv-394 As of: 03/10/2017 03:18 PM CST 1 of 13
U.S. District Court Northern District of Alabama (Southern) CIVIL DOCKET FOR CASE #: 2:07−cv−00394−LSC

CLOSED

Waters v. Cook's Pest Control, Inc. Assigned to: Judge L Scott Coogler Cause: 42:2000 Job Discrimination (Race)
Plaintiff Marion Waters

Date Filed: 02/28/2007 Date Terminated: 07/17/2012 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question
represented by Samuel Fisher WIGGINS CHILDS PANTAZIS FISHER & GOLDFARB, LLC 301 19th Street, North Birmingham, AL 35203−3204 205−314−0500 Fax: 205−254−1500 Email: sf@wigginschilds.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel Mark Hill THE LAW OFFICES OF SAM HILL, LLC 265 Riverchase Parkway East Suite 202 Hoover, AL 35244 205−985−5099 Fax: 205−985−5093 Email: sam@samhilllaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas F Campbell CAMPBELL LAW PC 1 Chase Corporate Drive Suite 180 Birmingham, AL 35244 205−278−6650 Fax: 205−278−6654 Email: tcampbell@campbelllitigation.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Toni J Braxton WIGGINS CHILDS QUINN & PANTAZIS LLC 301 19th Street North Birmingham, AL 35203 205−314−0500 Fax: 205−254−1500 Email: tbraxton@wcqp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raymond L Bronner CAMPBELL LAW PC One Chase Corporate Drive Suite 180 Birmingham, AL 35244 205−278−6650 Fax: 205−278−6654 Email: rbronner@campbelllitigation.com

Case: 2:07-cv-394 As of: 03/10/2017 03:18 PM CST 2 of 13

ATTORNEY TO BE NOTICED

Plaintiff
Christan Daniel Dodson TERMINATED: 03/03/2008

represented by Samuel Fisher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas F Campbell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Toni J Braxton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raymond L Bronner (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Cook's Pest Control, Inc.

represented by Julie Wilson Pittman BURR & FORMAN LLP 420 North 20th Street, Suite 3100 Birmingham, AL 35203 205−458−5239 Fax: 205−458−5100 Email: jpittman@burr.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mac B Greaves JONES WALKER LLP One Federal Place 1819 5th Avenue North Suite 1100 Birmingham, AL 35203 205.244.5200 Fax: 205.244.5400 Email: mgreaves@joneswalker.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
David J Middlebrooks LEHR MIDDLEBROOKS & VREELAND PC P.O. Box11945 Birmingham, AL 35202 205−323−9262 Fax: 205−326−3008 Email: dmiddlebrooks@lehrmiddlebrooks.com ATTORNEY TO BE NOTICED
Dent M Morton BURR & FORMAN LLP 420 North 20th Street Suite 3400 Birmingham, AL 35203 205−251−3000

Case: 2:07-cv-394 As of: 03/10/2017 03:18 PM CST 3 of 13
Fax: 205−244−5688 Email: dmorton@burr.com ATTORNEY TO BE NOTICED
Ronald W Flowers , Jr BURR & FORMAN LLP Southtrust Tower, Suite 3400 420 North 20th Street Birmingham, AL 35203 251−3000 Fax: 458−5100 Email: rflowers@burr.com ATTORNEY TO BE NOTICED

Date Filed 02/28/2007
02/28/2007 07/11/2007
07/17/2007
07/17/2007 07/20/2007
07/23/2007 08/08/2007 08/08/2007 08/08/2007 08/08/2007 08/08/2007
08/08/2007 08/09/2007 08/09/2007

# Docket Text
1 COMPLAINT against Cook's Pest Control, Inc. (Filing fee $ 350.) , filed by Marion Waters. (Attachments: # 1 Exhibit A)(BST, ) Modified on 3/1/2007 (BST, ). (Entered: 03/01/2007)
Request for service by certified mail filed by Marion Waters (filed w/i the complaint) (BST, ) (Entered: 03/01/2007)
2 ORDER TO SHOW CAUSE the plaintiff show cause within 11 days why this action should not be dismissed pursuant to FRCP Rule 4(m) for failure to prosecute. Show Cause Response due by 7/23/2007. Signed by Judge L Scott Coogler on 7/11/2007. (ADF) (Entered: 07/11/2007)
3 AMENDED COMPLAINT Marion Waters and Christan Daniel Dodson, et al., against Cook's Pest Control, Inc., filed by Christan Daniel Dodson. (Attachments: # 1 Exhibit Exhibit A)(Campbell, Thomas) (Entered: 07/17/2007)
5 Summons Issued as to Cook's Pest Control, Inc., del to pla for service (BST, ) (Entered: 07/20/2007)
4 SUMMONS Returned Executed by Christan Daniel Dodson, Marion Waters. Cook's Pest Control, Inc. served on 7/19/2007, answer due 8/8/2007. (Attachments: # 1)(Campbell, Thomas) (Entered: 07/20/2007)
6 RESPONSE to re 2 Order to Show Cause filed by Christan Daniel Dodson, Marion Waters. (Campbell, Thomas) (Entered: 07/23/2007)
7 MOTION to Dismiss Plaintiff's Original Complaint by Cook's Pest Control, Inc.. (Greaves, Mac) (Entered: 08/08/2007)
8 MOTION to Dismiss Plaintiff's Original Complaint by Cook's Pest Control, Inc.. (Greaves, Mac) (Entered: 08/08/2007)
9 Brief re 8 MOTION to Dismiss Plaintiff's Original Complaint In Support filed by Cook's Pest Control, Inc.. (Greaves, Mac) (Entered: 08/08/2007)
10 MOTION to Dismiss Plaintiffs' Title VII Claims in First Amended Complaint by Cook's Pest Control, Inc.. (Greaves, Mac) (Entered: 08/08/2007)
11 Brief re 10 MOTION to Dismiss Plaintiffs' Title VII Claims in First Amended Complaint In Support filed by Cook's Pest Control, Inc.. (Greaves, Mac) (Entered: 08/08/2007)
12 REPLY to re 6 In Opposition to Plaintiffs' Response to the Order to Show Cause filed by Cook's Pest Control, Inc.. (Greaves, Mac) (Entered: 08/08/2007)
13 UNIFORM INITIAL ORDER − with appendices attached. Signed by Judge L Scott Coogler on 8/9/2007. (ADF) (Entered: 08/09/2007)
ORDER FINDING AS MOOT 7 Motion to Dismiss Pla's Original Complaint. Scrivner's error corrected in Doc. 8 . Signed by Judge L Scott Coogler on 08/09/2007. (LIB) (Entered: 08/09/2007)

Case: 2:07-cv-394 As of: 03/10/2017 03:18 PM CST 4 of 13

08/09/2007
08/14/2007 08/20/2007
08/21/2007 08/27/2007 09/10/2007 10/05/2007 10/09/2007 10/10/2007 10/12/2007 11/09/2007 11/19/2007
01/28/2008
02/01/2008 02/11/2008 02/12/2008 02/13/2008
02/18/2008

14 ORDER establishing briefing schedule re: 8 Def's MOTION to Dismiss Pla's Original Complaint and 10 Def's MOTION to Dismiss Pla's Title VII Claims in First Amended Complaint. Signed by Judge L Scott Coogler on 08/09/2007. (LIB) (Entered: 08/09/2007)
15 Summons Reissued as to Cook's Pest Control, Inc., del to pla for service (BST, ) (Entered: 08/15/2007)
16 RESPONSE in Opposition re 8 MOTION to Dismiss Plaintiff's Original Complaint, 10 MOTION to Dismiss Plaintiffs' Title VII Claims in First Amended Complaint filed by Christan Daniel Dodson, Marion Waters. (Campbell, Thomas) (Entered: 08/20/2007)
17 SUMMONS Returned Executed by Christan Daniel Dodson, Marion Waters. Cook's Pest Control, Inc. served on 8/21/2007, answer due 9/10/2007. (Campbell, Thomas) (Entered: 08/21/2007)
18 REPLY to Response to Motion re 8 MOTION to Dismiss Plaintiff's Original Complaint, 10 MOTION to Dismiss Plaintiffs' Title VII Claims in First Amended Complaint filed by Cook's Pest Control, Inc.. (Greaves, Mac) (Entered: 08/27/2007)
19 RE−SUBMITTED MOTION to Dismiss Plaintiff's Original Complaint by Cook's Pest Control, Inc.. (Greaves, Mac) Modified on 9/10/2007 (BST, ). (Entered: 09/10/2007)
20 Joint MOTION for Extension of Time to File Unopposed Motion to Extend Time to File Report of Parties Planning Meeting by Christan Daniel Dodson, Marion Waters. (Campbell, Thomas) (Entered: 10/05/2007)
ORDER GRANTING 20 Motion for Extension of Time to File Report of Parties' Planning Meeting. Signed by Judge L Scott Coogler on 10/09/2007. (LIB) (Entered: 10/09/2007)
21 REPORT of Rule 26(f) Planning Meeting. (Flowers, Ronald) (Entered: 10/10/2007)
22 ORDER setting Telephone Conference on the Report of Parties' Planning Mtg at 1:30 p.m. on Tuesday, October 23, 2007; see order for instructions. Signed by Judge L Scott Coogler on 10/12/2007. (ADF) (Entered: 10/12/2007)
23 NOTICE by Cook's Pest Control, Inc. Revised Report of Parties' Planning Meeting (Flowers, Ronald) (Entered: 11/09/2007)
24 SCHEDULING ORDER: Class certification deadlines as set out in order; All other Discovery due by 10/3/2008. Dispositive Motions due by 11/3/2008. Status Report due by 10/3/2008. Jury Trial set for 4/13/2009 at 9:00 AM in Birmingham, AL before Judge L Scott Coogler. Signed by Judge L Scott Coogler on 11/19/2007. (ADF) (Entered: 11/19/2007)
25 MEMORANDUM OF OPINION AND ORDER DENYING 8 Motion to Dismiss; DENYING 10 Motion to Dismiss; and FINDING AS MOOT 19 Re−submitted Motion to Dismiss. Signed by Judge L Scott Coogler on 01/28/2007. (LIB) (Entered: 01/28/2008)
26 NOTICE of Appearance by Raymond L Bronner on behalf of Christan Daniel Dodson, Marion Waters (Bronner, Raymond) (Entered: 02/01/2008)
27 ANSWER to Amended Complaint by Cook's Pest Control, Inc..(Greaves, Mac) (Entered: 02/11/2008)
28 MOTION to Compel by Cook's Pest Control, Inc.. (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(Greaves, Mac) (Entered: 02/12/2008)
29 ORDER Setting Hearing on 28 MOTION to Compel. Motion Hearing set for 2/28/2008 at 02:00 PM in Birmingham before Judge L Scott Coogler IF required stmt is filed on or before 2/26/2008. Signed by Judge L Scott Coogler on 02/13/2008. (LIB) (Entered: 02/13/2008)
30 Corporate Disclosure Statement by Cook's Pest Control, Inc.. (Greaves, Mac) (Entered: 02/18/2008)

Case: 2:07-cv-394 As of: 03/10/2017 03:18 PM CST 5 of 13

02/26/2008 02/27/2008 02/29/2008 03/03/2008
03/03/2008 03/04/2008
04/04/2008 04/08/2008
04/22/2008 04/23/2008
05/01/2008
06/05/2008 06/05/2008 06/05/2008 07/21/2008

31 NOTICE by Cook's Pest Control, Inc. re 29 Order Setting Hearing on Motion Resolution of Discovery Dispute (Greaves, Mac) (Entered: 02/26/2008)
ORDER FINDING AS MOOT 28 Motion to Compel. Signed by Judge L Scott Coogler on 02/27/2008. (LIB) (Entered: 02/27/2008)
32 First MOTION to Dismiss Plaintiff Christan Daniel Dodson from this Action by Christan Daniel Dodson. (Bronner, Raymond) (Entered: 02/29/2008)
33 ORDER granting 32 Motion for Voluntary Dismissal of Plaintiff Christian Daniel Dodson, pla Christian Daniel Dodson claims against the dft are DISMISSED WITHOUT PREJUDICE. Signed by Judge L Scott Coogler on 3/3/2008. (KSS, ) (Entered: 03/03/2008)
34 Joint MOTION for Extension of Time as to Expert Deadlines by Marion Waters. (Bronner, Raymond) (Entered: 03/03/2008)
ORDER GRANTING 34 Joint Motion for Extension of Time to File Expert Disclosures. Plas' expert witness disclosures are now due 05/18/2008. Def's expert witness disclosures are due 07/21/2008. Signed by Judge L Scott Coogler on 03/04/2008. (LIB) (Entered: 03/04/2008)
35 MOTION for Leave to File Re−Assert Their First Interrogatories and Requests for Production of Documents and to Shorten Time to Answer by Marion Waters. (Bronner, Raymond) (Entered: 04/04/2008)
36 ORDER SETTING TELEPHONE CONFERENCE re: 35 MOTION for Leave to Re−Assert Their First Interrogatories and Requests for Production of Documents and to Shorten Time to Answer. Conference set for 04/23/2008, at 1:30 PM. Counsel for the movant shall arrange call. Signed by Judge L Scott Coogler on 04/08/2008. (LIB) (Entered: 04/08/2008)
37 RESPONSE to and Opposition to Plaintiff's Motion for Leave to Re−Assert His First Discovery Requests and Shorten Time to Answer filed by Cook's Pest Control, Inc.. (Greaves, Mac) (Entered: 04/22/2008)
ORDER granting in part and denying in part 35 Motion for Leave to Re−Assert First Interrogatories and Requests for Production of Documents. Def has until 05/07/2008 to file responses. Signed by Judge L Scott Coogler on 04/23/2008. (LIB) (Entered: 04/23/2008)
NOTICE The parties are NOTIFIED that due to administrative changes in the Tuscaloosa Courthouse, the new Chambers telephone number is 205−561−1670. The law clerks telephone number for THIS case is still 205−278−1827. COURTESY COPIES in THIS case should still be sent to L. Scott Coogler, United States District Court, Northern District of Alabama, 1729 5th Avenue North, Suite 419, Birmingham, Alabama 35203. (BST, ) (Entered: 05/01/2008)
38 MOTION for Summary Judgment by Cook's Pest Control, Inc.. (Greaves, Mac) (Entered: 06/05/2008)
39 Brief re 38 MOTION for Summary Judgment In Support of Its Motion for Summary Judgment filed by Cook's Pest Control, Inc.. (Greaves, Mac) (Entered: 06/05/2008)
40 Evidentiary Material re: 38 MOTION for Summary Judgment, 39 Brief. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Greaves, Mac) (Entered: 06/05/2008)
41 MOTION to Compel by Marion Waters. (Attachments: # 1 Exhibit Exh. 1 − Cook's Initial Disclosures, # 2 Exhibit Exh. 2 Pls 1st Rogs and RFPs, # 3 Exhibit Exh. 3 − 032508 correspondences, # 4 Exhibit Exh. 4 − Amended Supp Rogs & RFPs, # 5 Exhibit Exh. 5 − Cook's Resps to Reasserted Rogs, # 6 Exhibit Exh. 6 − Cook's Resps to Reasserted RFPs, # 7 Exhibit Exh. 7 − Cook's Resps to Amended Rogs & RFPs, # 8 Exhibit Exh. 8 − 070108 correspondences, # 9 Exhibit Exh. 9 − 070308 correspondences, # 10 Exhibit Exh. 10 − 070808 correspondences, # 11 Exhibit Exh. 11 − 071108 correspondences, # 12 Exhibit Exh. 12 − 032808 correspondences, # 13 Exhibit Ex. 13 − Proposed Order)(Campbell, Thomas) (Entered: 07/21/2008)

Case: 2:07-cv-394 As of: 03/10/2017 03:18 PM CST 6 of 13

07/25/2008 09/08/2008 09/15/2008 09/16/2008 09/17/2008 09/18/2008 09/18/2008 09/23/2008 09/24/2008 10/02/2008
10/06/2008 10/14/2008 10/15/2008
10/15/2008 10/16/2008

42 ORDER Setting Hearing on 41 MOTION to Compel. Motion Hearing is set for 9/18/2008 at 10:00 AM in BIRMINGHAM before Judge L Scott Coogler IF the certification is filed by 9/8/2008. Signed by Judge L Scott Coogler on 07/25/2008. (LIB) (Entered: 07/25/2008)
43 NOTICE by Marion Waters Stmt Certifying Need for Court Resolution of Discovery Dispute (Attachments: # 1 Exhibit Email correspondence attempting to resolve discovery dispute)(Bronner, Raymond) (Entered: 09/08/2008)
44 NOTICE of Appearance by David J Middlebrooks on behalf of Cook's Pest Control, Inc. (Middlebrooks, David) (Entered: 09/15/2008)
45 RESPONSE in Opposition re 41 MOTION to Compel filed by Cook's Pest Control, Inc.. (Greaves, Mac) (Entered: 09/16/2008)
46 MOTION to Stay Discovery by Cook's Pest Control, Inc.. (Greaves, Mac) (Entered: 09/17/2008)
ORDER DENYING 41 Motion to Compel, and GRANTING 46 Motion to Stay Discovery as stated on the record in open court today, 9/18/2008. Signed by Judge L Scott Coogler on 09/18/2008. (LIB) (Entered: 09/18/2008)
Minute Entry for proceedings held before Judge L Scott Coogler: Motion Hearing held on 9/18/2008 re 38 MOTION for Summary Judgment, 41 MOTION to Compel, and 46 MOTION to Stay Discovery; oral arguments; order to be entered (Court Reporter Lindy Fuller.) (ADF) (Entered: 09/19/2008)
47 MOTION for Extension of Time to File Rule 56(f) Motion in Opposition by Marion Waters. (Bronner, Raymond) (Entered: 09/23/2008)
ORDER granting 47 Motion for Extension of Time to File. Signed by Judge L Scott Coogler on 9/24/2008. (BJT) (Entered: 09/24/2008)
48 RESPONSE to Court's Oral Instruction for Plaintiff to Show Cause and In the Alternative, Motion to Allow Discovery Needed to Oppose Defendant's Motion for Summary Judgment filed by Marion Waters. (Attachments: # 1 Exhibit Exh. A − Declaration of Thomas F. Campbell, # 2 Exhibit Exh. B − 11.19.07 Scheduling Order, # 3 Exhibit Exh. C − Marion Waters' EEOC Charge)(Campbell, Thomas) (Entered: 10/02/2008)
49 RESPONSE to re 48 Plaintiff's Supplement to His Response to the Court's Oral Instruction for Plaintiff to Show Cause And, In The Alternative, Motion to Allow Discovery Needed to Oppose Defendant's Motion for Summary Judgment filed by Marion Waters. (Bronner, Raymond) (Entered: 10/06/2008)
50 ORDER re: 48 Response and Motion filed by Marion Waters. The Court will issue an Order at a later date that will notify Def when its response to Plas motion is due. Signed by Judge L Scott Coogler on 10/14/2008. (LIB) (Entered: 10/14/2008)
51 Transcript of Proceedings held on 9/18/2008, before Judge L. Scott Coogler; Court Reporter Lindy Fuller, Telephone number 205−527−2958; Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction; After that date it may be obtained through PACER. NOTICE: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (See Transcript Redaction Policy) Redaction Request due 11/5/2008. Redacted Transcript Deadline set for 11/17/2008. Release of Transcript Restriction set for 1/13/2009. (BST) (Additional attachment(s) added on 10/17/2008: # 1 signature page) (BST, ). (Entered: 10/15/2008)
52 ORDER that Def has 10 days to file a response to 48 Response and Motion filed by Marion Waters. Signed by Judge L Scott Coogler on 10/15/2008. (LIB) (Entered: 10/15/2008)
53 ORDER Setting Hearing re: Pla's Response and Motion 48 . Hearing set for 11/12/2008 at 02:30 PM before Judge L Scott Coogler. Thomas Campbell is ordered to attend. Signed by Judge L Scott Coogler on 10/16/2008. (LIB) (Entered: 10/16/2008)

Case: 2:07-cv-394 As of: 03/10/2017 03:18 PM CST 7 of 13

10/23/2008 10/24/2008
10/29/2008 10/29/2008 11/21/2008
12/04/2008 12/09/2008
12/22/2008 12/30/2008 01/09/2009 01/14/2009 01/21/2009
02/05/2009 02/05/2009
02/09/2009 02/10/2009
02/20/2009 02/24/2009

54 MOTION for Hearing Plaintiff's Unopposed Motion to Re−schedule Hearing Set For November 12, 2008 by Marion Waters. (Bronner, Raymond) (Entered: 10/23/2008)
55 ORDER GRANTING 54 Pla's Unopposed Motion to Re−schedule Hearing Set For November 12, 2008. Hearing is RESCHEDULED for 11/21/2008 at 03:00 PM in BIRMINGHAM, AL, before Judge L Scott Coogler. Tom Campbell is ordered to attend in person. Signed by Judge L Scott Coogler on 10/24/2008. (LIB) (Entered: 10/24/2008)
56 MOTION to Strike 48 Response (other), Response (other) by Cook's Pest Control, Inc.. (Greaves, Mac) (Entered: 10/29/2008)
57 Opposition to re 48 to Plaintiff's Motion to Allow Discovery Needed to Oppose Defendant's Motion for Summary Judgment filed by Cook's Pest Control, Inc.. (Greaves, Mac) (Entered: 10/29/2008)
Minute Entry for proceedings held before Judge L Scott Coogler: Motion Hearing held on 11/21/2008 re 56 MOTION to Strike 48 Response (other), Response (other), 47 MOTION for Extension of Time to File Rule 56(f) Motion in Opposition; further instructions to attys regarding motions (Court Reporter Lindy Fuller.) (ADF) (Entered: 11/21/2008)
58 AFFIDAVIT in Opposition re 38 MOTION for Summary Judgment filed by Marion Waters. (Campbell, Thomas) (Entered: 12/04/2008)
59 ORDER denying dft's 38 Motion for Summary Judgment w/o prej to refile, at a later date; granting dft's 56 Motion to Strike brief; parties are to file a proposed scheduling order w/i 11 days; Signed by Judge L Scott Coogler on 12/9/2008. (BST) (Entered: 12/09/2008)
60 Joint MOTION Proposing A Modified Scheduling Order by Cook's Pest Control, Inc. (Greaves, Mac) Modified on 12/23/2008 (BST) (Entered: 12/22/2008)
61 Brief Memorandum of Law in Supplement of Proposed Joint Scheduling Order filed by Cook's Pest Control, Inc.. (Greaves, Mac) (Entered: 12/30/2008)
62 ORDER re discovery and scheduling issues. Signed by Judge L Scott Coogler on 01/09/2009. (LIB) (Entered: 01/09/2009)
63 RESPONSE to re 62 Joint Proposed Modified Scheduling Order filed by Cook's Pest Control, Inc.. (Greaves, Mac) (Entered: 01/14/2009)
64 MODIFIED SCHEDULING ORDER: Discovery due by 7/15/2009. Dispositive Motions due by 12/15/2009. Status Report due by 10/15/2009 − further deadlines to be set at later date. Signed by Judge L Scott Coogler on 1/21/2009. (ADF) (Entered: 01/21/2009)
65 MOTION to Compel by Marion Waters. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Campbell, Thomas) (Entered: 02/05/2009)
66 ORDER Setting Hearing on 65 MOTION to Compel. Motion Hearing set for 2/19/2009 at 03:30 PM in BIRMINGHAM, Alabama, before Judge L Scott Coogler IF certification of dispute is filed by 02/17/2009. Signed by Judge L Scott Coogler on 02/05/2009. (LIB) (Entered: 02/05/2009)
67 Joint MOTION to Continue of Hearing by Cook's Pest Control, Inc.. (Greaves, Mac) (Entered: 02/09/2009)
ORDER GRANTING 67 Joint MOTION to Continue Hearing; Motion Hearing on 65 MOTION to Compel (set for 2/19/09) is RESCHEDULED for 2/27/2009 at 10:00 AM to be held in TUSCALOOSA, AL by agreement of parties before Judge L Scott Coogler. Signed by Judge L Scott Coogler on 2/10/2009. (ADF) (Entered: 02/10/2009)
68 ORDER re: inquiry on deadline for response to 65 MOTION to Compel. Response due by 02/24/2009 at 5 PM. Signed by Judge L Scott Coogler on 02/20/2009. (LIB) (Entered: 02/20/2009)
69 Opposition to Waters Renewed Motion to Compel filed by Cook's Pest Control, Inc.. (Greaves, Mac) (Entered: 02/24/2009)

Case: 2:07-cv-394 As of: 03/10/2017 03:18 PM CST 8 of 13

02/24/2009 02/25/2009 02/26/2009
03/06/2009 03/09/2009 03/09/2009 03/09/2009 03/10/2009 03/10/2009 03/11/2009 03/16/2009 03/17/2009 04/08/2009 04/09/2009 04/10/2009
04/15/2009 04/15/2009 06/23/2009 07/02/2009 09/14/2009

70 Exhibits A & B to 69 opposition to motion filed by Cook's Pest Control, Inc.. (Attachments: # 1 Exhibit B − Part 1, # 2 Exhibit B − Part 2, # 3 Exhibit B − Part 3)(Greaves, Mac) Modified on 2/25/2009 (BST) (Entered: 02/24/2009)
71 NOTICE by Marion Waters re 65 MOTION to Compel Certification of Need for Hearing (Bronner, Raymond) (Entered: 02/25/2009)
72 ORDER CONTINUING Discovery Hearing set for 02/27/2009. The hearing will be reset for a later date. Counsel nonetheless shall meet in the Court's 4th floor jury room. See written order for details. Signed by Judge L Scott Coogler on 02/26/2009. (LIB) (Entered: 02/26/2009)
73 MOTION for Extension of Time for Production of Discovery by Cook's Pest Control, Inc.. (Greaves, Mac) (Entered: 03/06/2009)
ORDER GRANTING 73 Motion for Extension of Time to Produce Discovery. Signed by Judge L Scott Coogler on 03/09/2009. (LIB) (Entered: 03/09/2009)
74 Supplemental MOTION for Extension of Time for Production of Discovery by Cook's Pest Control, Inc.. (Greaves, Mac) (Entered: 03/09/2009)
75 MOTION for Protective Order − Stipulated Protective Order by Cook's Pest Control, Inc.. (Greaves, Mac) (Entered: 03/09/2009)
ORDER GRANTING 74 Motion for Extension of Time. Signed by Judge L Scott Coogler on 03/10/2009. (LIB) (Entered: 03/10/2009)
76 STIPULATED PROTECTIVE ORDER. Signed by Judge L Scott Coogler on 03/10/2009. (LIB) (Entered: 03/10/2009)
77 NOTICE of Appearance by Julie Wilson Pittman on behalf of Cook's Pest Control, Inc. (Pittman, Julie) (Entered: 03/11/2009)
78 STATUS REPORT − Joint Statement Regarding Discovery Issues Requiring Court Resolution by Cook's Pest Control, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Greaves, Mac) (Entered: 03/16/2009)
79 ORDER Resetting Hearing on 65 MOTION to Compel. Motion Hearing set for 4/10/2009 at 09:30 AM in TUSCALOOSA, AL, before Judge L Scott Coogler. Signed by Judge L Scott Coogler on 03/17/2009. (LIB) (Entered: 03/17/2009)
80 Supplemental MOTION to Compel by Marion Waters. (Campbell, Thomas) (Entered: 04/08/2009)
81 Opposition to re 80 − Initial First Supplemental Opposition to Plaintiff's First Supplement to Renewed Motion to Compel filed by Cook's Pest Control, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Pittman, Julie) (Entered: 04/09/2009)
Minute Entry for proceedings held before Judge L Scott Coogler: Motion Hearing held on 4/10/2009 re 65 MOTION to Compel, and 80 Supplemental MOTION to Compel; oral arguments; written order to be entered (Court Reporter Lindy Fuller.) (ADF) (Entered: 04/10/2009)
82 RESPONSE to Court's Order for Proposed Discovery Plan filed by Cook's Pest Control, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Greaves, Mac) (Entered: 04/15/2009)
83 RESPONSE in Support re 65 MOTION to Compel filed by Marion Waters. (Campbell, Thomas) (Entered: 04/15/2009)
84 Supplement to MOTION to Compel by Marion Waters. (Attachments: # 1 Exhibit 1)(Campbell, Thomas) Modified on 9/14/2009 (BST) (Entered: 06/23/2009)
85 Opposition to re 84 Plaintiff's Second Supplement to Renewed Motion to Compel filed by Cook's Pest Control, Inc.. (Attachments: # 1 Exhibit A)(Pittman, Julie) (Entered: 07/02/2009)
86 ORDER GRANTING IN PART AND DENYING IN PART 65 Motion to Compel. Signed by Judge L Scott Coogler on 09/14/2009. (LIB) (Entered: 09/14/2009)

Case: 2:07-cv-394 As of: 03/10/2017 03:18 PM CST 9 of 13

12/02/2009 12/22/2009 01/05/2010
01/08/2010 01/11/2010 01/22/2010 01/25/2010
01/25/2010 01/26/2010
01/28/2010
01/29/2010
01/29/2010
02/17/2010 02/18/2010 04/13/2010
04/19/2010

87 MOTION for Sanctions by Marion Waters. (Fisher, Samuel) (Entered: 12/02/2009)
88 NOTICE by Cook's Pest Control, Inc. − Notice of Intent to Serve Non−Party Subpoenas (Attachments: # 1 Exhibit 1)(Pittman, Julie) (Entered: 12/22/2009)
89 ORDER Setting Hearing on 87 MOTION for Sanctions. Motion Hearing set for 1/27/2010 at 10:30 AM in Hugo L Black US Courthouse, Birmingham, AL before Judge L Scott Coogler. Signed by Judge L Scott Coogler on 1/5/2010. (LIB) (Entered: 01/05/2010)
90 MOTION to Continue Hearing by Marion Waters. (Fisher, Samuel) (Entered: 01/08/2010)
ORDER GRANTING 90 Unopposed Motion to Continue. The hearing previously set for 1/27/2010 is RESCHEDULED for 11:15 AM on Friday, 1/29/2010. Signed by Judge L Scott Coogler on 01/11/2010. (LIB) (Entered: 01/11/2010)
91 NOTICE by Marion Waters Withdrawal of Motion to Continue Hearing (Campbell, Thomas) (Entered: 01/22/2010)
ORDER VACATING Order Granting 90 Unopposed Motion to Continue and FINDING AS MOOT 90 Unopposed Motion to Continue. In light of Plas' counsel's NOTICE of Withdrawal 91 and a Court scheduling conflict, the hearing on 87 MOTION for Sanctions is RESET and MOVED BACK to the original time and date of 1/27/2010 at 10:30 AM in Hugo L. Black US Courthouse, Birmingham, AL. See Order 89 . Signed by Judge L Scott Coogler on 01/25/2010. (LIB) (Entered: 01/25/2010)
92 Opposition to Motion for Sanctions filed by Cook's Pest Control, Inc.. (Attachments: # 1 Exhibit A−J)(Greaves, Mac) (Entered: 01/25/2010)
ORDER that the hearing on 87 MOTION for Sanctions, currently scheduled for 1/27/2010 at 10:30 AM, is hereby RESCHEDULED for 1/29/2010 at 9:30 AM in Hugo L. Black US Courthouse, Birmingham, AL. Signed by Judge L Scott Coogler on 1/26/2010. (LIB) (Entered: 01/26/2010)
93 RESPONSE in Support re 87 MOTION for Sanctions filed by Marion Waters. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit Declaration of Toni J. Braxton)(Fisher, Samuel) (Entered: 01/28/2010)
ORDER that Plas' 87 Motion for Sanctions is contrued as a Motion to Compel. Plas' Motion to Compel is GRANTED as stated on the record today in open Court. To the extent Plas' motion seeks sanctions, the Court withholds ruling, as stated on the record today in open Court. Signed by Judge L Scott Coogler on 01/29/2010. (LIB) (Entered: 01/29/2010)
Minute Entry for proceedings held before Judge L Scott Coogler: Motion Hearing held on 1/29/2010 re 87 MOTION for Sanctions filed by Marion Waters; oral arguments; Court's ruling as stated on record − order to be entered (Court Reporter Lindy Fuller.) (ADF) (Entered: 01/29/2010)
94 NOTICE by Cook's Pest Control, Inc. − Defendant's Statement of Completion Regarding Production of Documents (Greaves, Mac) (Entered: 02/17/2010)
95 NOTICE of Appearance by Toni J Braxton on behalf of Christan Daniel Dodson, Marion Waters (Braxton, Toni) (Entered: 02/18/2010)
96 ORDER setting TELEPHONE Status Conference for Monday, 4/19/2010 at 10:30 AM in Federal Building, Tuscaloosa, AL before Judge L Scott Coogler. See written order for call−in information. Signed by Judge L Scott Coogler on 4/13/2010. (ADF) (Entered: 04/13/2010)
ORDER RESCHEDULING TELEPHONE STATUS CONFERENCE. The Telephone Conference currently set for 4/19/2010 at 10:30 AM, CST, is RESCHEDULED for 4/22/2010 at 09:30 AM, CST, before Judge L Scott Coogler. Signed by Judge L Scott Coogler on 4/19/2010.(LIB) (Entered: 04/19/2010)

Case: 2:07-cv-394 As of: 03/10/2017 03:18 PM CST 10 of 13

05/03/2010 05/04/2010
05/12/2010 05/13/2010 05/14/2010 05/14/2010 05/14/2010 05/20/2010 05/28/2010 06/07/2010 06/07/2010 06/09/2010 06/09/2010 06/10/2010 06/10/2010

97 STATUS REPORT on Discovery, Motion to Compel Compliance and Motion to Broaden Discovery by Marion Waters. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Braxton, Toni) (Entered: 05/03/2010)
98 ORDER Setting Hearing on Report on the Status of Discovery, Motion to Compel Compliance with the Courts September 19, 2009 Order, and Motion to Broaden Discovery 97 . Motion Hearing set for 6/10/2010 at 9:30 AM in Hugo L Black US Courthouse, Birmingham, AL before Judge L Scott Coogler. If Def wishes to file a written response, it shall do so by 5/28/2010. Signed by Judge L Scott Coogler on 5/4/2010. (LIB) (Entered: 05/04/2010)
99 MOTION for Protective Order and in the Alternative, Motion to Quash Deposition by Cook's Pest Control, Inc.. (Attachments: # 1 Exhibit Exhibits A−F, # 2 Exhibit Appendix A, # 3 Exhibit Certification)(Greaves, Mac) (Entered: 05/12/2010)
ORDER re: 99 MOTION for Protective Order and in the Alternative, Motion to Quash Deposition. If Pla wishes to file a response to this motion, he shall do so by 10:00 AM, CST, on 5/14/2010. Signed by Judge L Scott Coogler on 5/13/2010. (LIB) (Entered: 05/13/2010)
100 RESPONSE in Opposition re 99 MOTION for Protective Order and in the Alternative, Motion to Quash Deposition and Plaintiff's Motion to Compel Attendance at Deposition filed by Marion Waters. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Braxton, Toni) (Entered: 05/14/2010)
101 REPLY to Response to Motion re 99 MOTION for Protective Order and in the Alternative, Motion to Quash Deposition − Defendant's Reply to Plaintiff's Opposition to Motion for Protective Order filed by Cook's Pest Control, Inc.. (Attachments: # 1 Exhibit A)(Pittman, Julie) (Entered: 05/14/2010)
102 ORDER GRANTING IN PART AND DENYING IN PART 99 Motion for Protective Order and in the Alternative, Motion to Quash Deposition. Signed by Judge L Scott Coogler on 5/14/2010. (LIB) (Entered: 05/14/2010)
103 NOTICE by Cook's Pest Control, Inc. − Defendant's Objections to Plaintiff's Renotice of 30(b)(6) and 30 (b)(5) Request for Production of Documents (Greaves, Mac) (Entered: 05/20/2010)
104 Opposition to re 97 − Opposition to Plaintiff's Motion to Compel and Motion to Broaden Discovery filed by Cook's Pest Control, Inc.. (Attachments: # 1 Exhibit A)(Greaves, Mac) (Entered: 05/28/2010)
105 Supplemental MOTION to Compel Broader Discovery and Compliance With Court Order by Marion Waters. (Attachments: # 1 Exhibit 6, # 2 Exhibit 7, # 3 Exhibit 8, # 4 Exhibit 9, # 5 Exhibit Cook's Deposition)(Braxton, Toni) (Entered: 06/07/2010)
106 MOTION to Quash Subpoena Issued by Plaintiff to Carl Powell, III by Cook's Pest Control, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Greaves, Mac) (Entered: 06/07/2010)
107 RESPONSE in Opposition re 106 MOTION to Quash Subpoena Issued by Plaintiff to Carl Powell, III filed by Marion Waters. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Braxton, Toni) (Entered: 06/09/2010)
108 Opposition to Plaintiff's Supplemental Motion to Compel and Motion to Broaden Discovery filed by Cook's Pest Control, Inc.. (Attachments: # 1 Exhibit 1)(Greaves, Mac) (Entered: 06/09/2010)
Minute Entry for proceedings held before Judge L Scott Coogler: Motion Hearing held on 6/10/2010 re 97 Status Report and 105 Supplemental MOTION to Compel Broader Discovery and Compliance With Court Order filed by Marion Waters; court's rulings as stated on the record (Court Reporter Lindy Fuller.) (ADF) (Entered: 06/10/2010)
ORDER GRANTING IN PART AND DENYING IN PART 97 Motion to Compel Compliance and Motion to Broaden Discovery and 105 Supplemental MOTION to Compel and Broaden Discovery, as stated on the record today in open Court. Signed by Judge L Scott Coogler on 06/10/2010. (LIB) (Entered: 06/10/2010)

Case: 2:07-cv-394 As of: 03/10/2017 03:18 PM CST 11 of 13

09/14/2010
12/06/2010 12/07/2010 01/24/2011 04/21/2011 05/11/2011 05/13/2011 06/15/2011 08/29/2011 08/31/2011 09/01/2011
09/14/2011 09/14/2011 09/15/2011 10/05/2011 10/05/2011 10/05/2011

109 Transcript of Proceedings held on 6/10/2010, before Judge L. Scott Coogler. Court Reporter/Transcriber Lindy M. Fuller. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. NOTICE: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court forms/transcripts/Transcript Redaction Policy.pdf) See Transcript Redaction Policy Redaction Request due 10/5/2010. Redacted Transcript Deadline set for 10/15/2010. Release of Transcript Restriction set for 12/13/2010. (Attachments: # 1 certificate page) (98 pages)(BST, ) (Entered: 09/15/2010)
110 Joint MOTION Stay Pending Mediation by Marion Waters. (Braxton, Toni) (Entered: 12/06/2010)
ORDER GRANTING 110 Joint Motion to stay action for 60 days, pending mediation. Signed by Judge L Scott Coogler on 12/7/2010. (LIB) (Entered: 12/07/2010)
ORDER FINDING AS MOOT 106 Motion to Quash. Signed by Judge L Scott Coogler on 01/24/2011. (LIB) (Entered: 01/24/2011)
111 ORDER setting Telephone Status Conference for 5/11/2011 at 11:00 AM before Judge L Scott Coogler. See written order for call−in details. Signed by Judge L Scott Coogler on 4/21/2011. (LIB) (Entered: 04/21/2011)
Minute Entry for proceedings held before Judge L Scott Coogler: Telephone Conference held on 5/11/2011. (ADF) (Entered: 05/13/2011)
112 ORDER setting Telephone Conference for 6/15/2011 at 10:30 AM before Judge L Scott Coogler. See written order for call−in details. Signed by Judge L Scott Coogler on 5/13/2011. (LIB) (Entered: 05/13/2011)
Minute Entry for proceedings held before Judge L Scott Coogler: Telephone Conference held on 6/15/2011 re: case status and mediation dates. (ADF) (Entered: 06/15/2011)
113 ORDER. Telephone Status Conference set for 8/31/2011 at 1:00 PM before Judge L Scott Coogler. Parties to call as directed. Signed by Judge L Scott Coogler on 8/29/2011. (LIB) (Entered: 08/29/2011)
Minute Entry for proceedings held before Judge L Scott Coogler: Telephone Conference held on 8/31/2011. (ADF) (Entered: 09/01/2011)
114 ORDER setting Telephone Conference for Wednesday, 9/14/2011 at 1:30 PM in Hugo L Black US Courthouse, Birmingham, AL before Judge L Scott Coogler. Attys see order for call−in instructions Signed by Judge L Scott Coogler on 9/1/2011. (ADF) (Entered: 09/01/2011)
Minute Entry for proceedings held before Judge L Scott Coogler: Telephone Conference held on 9/14/2011. (PRW) (Entered: 09/14/2011)
115 ORDER. Status Conference set for 10/4/2011 at 1:00 PM in Hugo L Black US Courthouse, Birmingham, AL before Judge L Scott Coogler. Signed by Judge L Scott Coogler on 9/14/2011. (LIB) (Entered: 09/14/2011)
ORDER. Status Conference previously set for 10/4/2011 is RESET for 10/5/2011 at 1:00 PM in Hugo L Black US Courthouse, Birmingham, AL before Judge L Scott Coogler. Signed by Judge L Scott Coogler on 9/15/2011. (LIB) (Entered: 09/15/2011)
116 NOTICE of Appearance by Dent M Morton on behalf of Cook's Pest Control, Inc. (Morton, Dent) (Entered: 10/05/2011)
Minute Entry for proceedings held before Judge L Scott Coogler: Status Conference held on 10/5/2011. (ADF) (Entered: 10/05/2011)
117 ORDER setting hearing to consider preliminary approval of proposed settlement and approval of class notice. Hearing SET for 10/21/2011 at 10:30 AM in Federal Building, Tuscaloosa, AL before Judge L Scott Coogler. Signed by Judge L Scott

Case: 2:07-cv-394 As of: 03/10/2017 03:18 PM CST 12 of 13

10/12/2011
10/21/2011 10/31/2011 10/31/2011 11/03/2011 11/03/2011 01/05/2012
01/10/2012
01/18/2012
01/24/2012 01/26/2012 01/27/2012
04/11/2012 04/11/2012 04/12/2012 04/23/2012 04/27/2012 05/02/2012 05/03/2012

Coogler on 10/5/2011. (LIB) (LIB) (Entered: 10/05/2011)
ORDER. The parties shall email a copy of their settlement agreement and joint proposed class notice to the Court at coogler_chambers@alnd.uscourts.gov on or before 10/17/2011. Signed by Judge L Scott Coogler on 10/12/2011. (LIB) (Entered: 10/12/2011)
Minute Entry for proceedings held before Judge L Scott Coogler: Evidentiary Hearing held on 10/21/2011; Ct exhs admitted 1−3 (Court Reporter Lindy Fuller.) (ADF) (Entered: 10/25/2011)
118 Joint MOTION for Extension of Time by Cook's Pest Control, Inc.. (Morton, Dent) Modified on 11/1/2011 (ASL). (Entered: 10/31/2011)
ORDER granting 118 Motion for Extension of Time. Signed by Judge L Scott Coogler on 10/31/2011. (JBC) (Entered: 10/31/2011)
119 NOTICE of Appearance by Samuel M Hill on behalf of Marion Waters (Hill, Samuel) (Entered: 11/03/2011)
120 Joint MOTION for Settlement Preliminary Approval of Agreement by Cook's Pest Control, Inc.. (Morton, Dent) (Entered: 11/03/2011)
Notice: The parties are NOTIFIED that the law clerk in THIS case may be reached at 205−542−1125 or Laura_Doheny@alnd.uscourts.gov. The parties are DIRECTED to NOT send COURTESY COPIES in THIS case unless instructed otherwise. (BST) (Entered: 01/05/2012)
121 ORDER re: 120 Joint MOTION for Settlement Preliminary Approval of Agreement. Telephone Conference SET for 1/19/2012 at 11:00 AM, CST, before Judge L Scott Coogler. Parties to discuss the issues outlined and call as directed. Signed by Judge L Scott Coogler on 1/10/2012. (LID) (Entered: 01/10/2012)
ORDER that the telephone conference scheduled for 11:00 AM on 01/19/2012 is hereby POSTPONED by one week, and will instead be held on 01/26/2012 at 11:00 AM. Counsel are to call 205−278−2186, access number 1124, prior to the start of the call. Signed by Judge L Scott Coogler on 01/18/2012. (SAM) (Entered: 01/18/2012)
122 Brief in Response to the Court's January 10, 2012 Order. (Morton, Dent) (Entered: 01/24/2012)
Minute Entry for proceedings held before Judge L Scott Coogler: Telephone Conference held on 1/26/2012 re: notice of settlement approval and fairness hrg date (ADF) (Entered: 01/26/2012)
123 ORDER GRANTING 120 Joint MOTION for Preliminary Approval of Settlement. Fairness Hearing set for 5/25/2012 at 9:00 AM in the New Federal Building, Tuscaloosa, AL, before Judge L Scott Coogler. Signed by Judge L Scott Coogler on 1/27/2012. (LID) (Entered: 01/27/2012)
124 Joint MOTION for Extension of Time to File Briefs in Support of Settlement Agreement by Cook's Pest Control, Inc.. (Morton, Dent) (Entered: 04/11/2012)
ORDER GRANTING 124 Joint Motion for Extension of Time. Signed by Judge L Scott Coogler on 4/11/2012. (LID) (Entered: 04/11/2012)
125 Joint MOTION to Amend/Correct 123 Order, Set Deadlines/Hearings, Terminate Motions by Cook's Pest Control, Inc.. (Middlebrooks, David) (Entered: 04/12/2012)
126 NOTICE by Cook's Pest Control, Inc. Submission of Declaration of Notice Compliance (Morton, Dent) (Entered: 04/23/2012)
127 ORDER GRANTING 125 Joint Motion to Amend Settlement Agreement. Signed by Judge L Scott Coogler on 4/27/2012. (LID) (Entered: 04/27/2012)
128 MOTION for Extension of Time (Unopposed) by Marion Waters. (Fisher, Samuel) (Entered: 05/02/2012)
ORDER GRANTING 128 Motion for Extension of Time. Signed by Judge L Scott Coogler on 5/3/2012. (LID) (Entered: 05/03/2012)

Case: 2:07-cv-394 As of: 03/10/2017 03:18 PM CST 13 of 13

05/10/2012 05/10/2012 05/10/2012 05/10/2012
05/23/2012 05/24/2012 05/25/2012 05/25/2012 05/30/2012
06/11/2012 06/12/2012 06/27/2012 07/05/2012
07/17/2012 07/17/2012 07/17/2012

129 Brief in Support of Approval of Class Settlement. (Morton, Dent) (Entered: 05/10/2012)
130 Evidentiary Material re: 129 Brief in Support of Approval of Settlement Agreement. (Attachments: # 1 Exhibit 1 − Declaration of Dent M. Morton, # 2 Exhibit 2 − Second Declaration of Loree Kovach)(Morton, Dent) (Entered: 05/10/2012)
131 Brief in Support of Final Approval of Class Settlement filed by Marion Waters. (Braxton, Toni) (Entered: 05/10/2012)
132 Evidentiary Material re: 131 Brief in Support of Final Approval of Class Settlement. (Attachments: # 1 Exhibit Declaration of Samuel Fisher, # 2 Exhibit Declaration of Tom Campbell, # 3 Exhibit Affidavit of Sam Hill, # 4 Exhibit Declaration of Marion Waters, # 5 Exhibit Declaration of Harry Hopkins)(Braxton, Toni) (Entered: 05/10/2012)
ORDER Telephone Conference set for 5/24/2012 at 2:00 PM before Judge L Scott Coogler.The parties are directed to call 205−278−2186, pin 1120. Signed by Judge L Scott Coogler on 5/23/2012. (LID) (Entered: 05/23/2012)
Minute Entry for proceedings held before Judge L Scott Coogler: Telephone Conference held on 5/24/2012. (ADF) (Entered: 05/24/2012)
133 MOTION for Leave to File Re−Notice For Attorney's Fees by Marion Waters. (Campbell, Thomas) (Entered: 05/25/2012)
Minute Entry for proceedings held before Judge L Scott Coogler: Fairness Hearing held on 5/25/2012; no objections; further dates for notices set out on the record. (Court Reporter Lindy Fuller.) (ADF) (Entered: 05/30/2012)
134 ORDER GRANTING 133 MOTION for Leave to File Re−Notice For Attorney's Fees filed by Marion Waters; parties to send notice of the motion and the total amount of atty fees and expenses sought to all claimants; notices of objection to the motion must be received by the Court by 7/2/12; Evidentiary Hearing set for 7/5/2012 09:00 AM in Federal Building, Tuscaloosa, AL before Judge L Scott Coogler regarding motion for approval of atty fees and expenses; Signed by Judge L Scott Coogler on 5/30/2012. (BST, ) (Entered: 05/30/2012)
135 NOTICE by Marion Waters Filing Receipts for Reimburseable Expenses (Attachments: # 1 Exhibit A − Receipts)(Campbell, Thomas) (Entered: 06/11/2012)
136 NOTICE by Marion Waters to Supplement Request for Attorney's Fees and Expenses (Attachments: # 1 Supplement To Request for Attorney's Fees and Expenses)(Fisher, Samuel) (Entered: 06/12/2012)
137 Opposition to 136 , 135 by non party Melba Coble Bond. (KGE, ) (Entered: 06/27/2012)
Minute Entry for proceedings held before Judge L Scott Coogler: Motion Hearing held on 7/5/2012 re 133 MOTION for Leave to File Re−Notice For Attorney's Fees filed by Marion Waters; written order to be entered by court. (Court Reporter Leah Turner.) (ADF) (Entered: 07/05/2012)
138 MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 7/17/12. (KGE, ) (Entered: 07/17/2012)
139 CONSENT DECREE. Signed by Judge L Scott Coogler on 7/17/12. (KGE, ) (Entered: 07/17/2012)
140 FINAL JUDGMENT in accordance with the Memorandum of Opinion and Consent Decree entered, this case is DISMISSED w/prej, subject to the court's continuing jurisdiction to reopen the action to enforce the Consent Decree or Settlement Agreement; Class Counsel is AWARDED attys fees, costs, and expenses in the amount of $928,831.55, to be paid out of the Settlement Fund in accordance with the terms oulined in the Consent Decree. Signed by Judge L Scott Coogler on 7/17/12. (KGE, ) (Entered: 07/17/2012)