Case 6:05-cv-01165-JTM Document 4 Filed 06/01/05 Page 1 of 24

1

2

3

4

5

UNITED STATES DISTRICT COURT

6

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

7

8 SOLOMON WILLIAMS, et al.

9

Plaintiffs,

10

v.

11 THE BOEING COMPANY, et al.

12

Defendants.

13

NO. C98-761P
ORDER ON CLASS CERTIFICATION

14

This matter comes before the Court on the parties’ cross-motions on class certification. (Dkt. 15

Nos. 674, 738). Having reviewed the pleadings and supporting materials and having heard oral 16

argument, the Court GRANTS Plaintiffs’ motion in part and certifies the following class: 17

African-American salaried employees employed by Heritage Boeing1 from June 6,

18

1994 to the present, excluding executives and SPEEA Techs, seeking injunctive relief

for racial discrimination in compensation and promotions. 19

It is further ordered that the litigation of the disparate treatment and disparate impact claims 20

under Title VII will be bifurcated into a liability phase and a remedial phase. This order certifies only 21

the liability phase and the injunctive relief portion of the remedial phase. 22

23

24 1 “Heritage Boeing” refers to The Boeing Company before it acquired additional companies in
25 the late 1990s and 2000.
26 ORDER ON CLASS CERTIFICATION – 1

Case 6:05-cv-01165-JTM Document 4 Filed 06/01/05 Page 2 of 24

1

The liability phase will consist of a jury trial to determine liability on the disparate treatment

2 claim and a bench trial to determine liability on the disparate impact claim. If liability is found on

3 either claim, the Court will then order injunctive relief as necessary.

4

The Court does not see the wisdom in ruling on certification of the back pay or punitive

5 damages claims at this stage of the proceedings. If liability is found under either claim, the Court will

6 revisit the question of certifying the back pay and punitive damages portions of the remedial phase.

7

Certification of subclasses of the African-American hourly employees’ promotions claim may

8 be appropriate. However, based on the record, the Court cannot determine what the appropriate

9 subclasses might be. Therefore, the Court DENIES without prejudice certification of the African-

10 American hourly employees’ promotion claim.

11

PROCEDURAL BACKGROUND

12

In 1998, African-American employees of Boeing filed a nationwide class action against

13 Boeing alleging three federal claims (and various state law claims not at issue here). Their federal

14 claims alleged racial discrimination in: promotions for salaried and hourly employees (“promotions

15 claim”), retaliation, hostile work environment. This putative class included African-American

16 employees working at all of Boeing’s facilities nationwide, including those of two recently acquired

17 companies Rockwell International and McDonnell Douglas Corporation.

18

Before any motions to certify the class were filed, Plaintiffs and Boeing reached a proposed

19 Consent Decree. A group of Plaintiffs objected. On September 30, 1999, Judge Coughenour

20 considered but rejected the objections, certified the class for settlement purposes, and approved the

21 Consent Decree. (Dkt. No. 447). In certifying the class, the district court held that Fed. R. Civ. P.

22 23(a)’s four requirements of numerosity, commonality, typicality, and adequacy of representation were

23 satisfied. Judge Coughenour’s order certified the class under Rule 23(b)(2) on the grounds that the

24 primary purpose of the lawsuit was to obtain injunctive relief. The Consent Decree certified a (b)(2)

25

26 ORDER ON CLASS CERTIFICATION – 2

Case 6:05-cv-01165-JTM Document 4 Filed 06/01/05 Page 3 of 24

1 and a (b)(3) class.2 The (b)(2) class, certified for equitable relief, was defined as all African-Americans

2 employed by Boeing from the beginning of the applicable limitations periods until the expiration of the

3 decree. The (b)(3) class, certified for monetary relief, was limited to African-Americans employed

4 from the beginning of the applicable limitations periods until the preliminary approval date of the

5 decree. Stanton v. Boeing Co., 327 F.3d 938, 947-48 (9th Cir. 2003).

6

The objectors appealed the approval of the settlement. The Ninth Circuit affirmed the

7 certification of the class for settlement purposes but reversed the district court’s approval of the

8 settlement on fairness grounds. Id. at 945. The court held that Rule 23(a)’s class certification

9 requirements were satisfied. It noted, however, that there were “some concerns, largely relating to

10 litigation management, as to whether the case could be maintained as a class action if the litigation

11 continues.” Id. at 953-60.

12

After the case was remanded, Plaintiffs amended their complaint to add claims for racial

13 discrimination in compensation of salaried employees (“salary compensation claim”) and discrimination

14 in overtime for hourly employees (“overtime claim”). They allege violations of the Civil Rights Act of

15 1866, 42 U.S.C. § 1981, and Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq., as amended

16 by the Civil Rights Act of 1991. (The named Plaintiffs in their individual capacities also allege various

17 state common law claims.) (Second Amended Compl., ¶¶ 116-54). In their Second Amended

18 Complaint, Plaintiffs seek declaratory and injunctive relief, equitable monetary relief including back

19 and front pay, and compensatory and punitive damages.

20

In sum, Plaintiffs now allege racial discrimination in: 1) promotions for salaried and hourly

21 employees, 2) compensation for salaried employees, 3) overtime for hourly employees, 4) retaliation,

22 and 5) hostile work environment. They seek class certification of only two of these claims:

23 promotions for salaried and hourly employees and compensation for salaried employees. In support of

24 2 There appears to be a discrepancy between Judge Coughenour’s order and the Consent
25 Degree regarding which Rule 23(b) category of class was certified.
26 ORDER ON CLASS CERTIFICATION – 3

Case 6:05-cv-01165-JTM Document 4 Filed 06/01/05 Page 4 of 24

1 the promotions and the salary compensation claims, they assert disparate treatment and disparate

2 impact theories of liability. They seek certification under Rule 23(b)(2) to obtain injunctive relief,

3 back pay, and punitive damages. In the alternative, they seek a hybrid certification so that punitive

4 damages could be obtained as a Rule 23(b)(3) class. Further, it appears from Plaintiffs’ briefing that

5 they do not seek certification of their § 1981 claim (all of their arguments focused on disparate

6 treatment and impact under Title VII).

7

The proposed class consists of approximately 15,000 members, residing in Alabama,

8 California, Kansas, Missouri, Nebraska, Oklahoma, Pennsylvania, and Washington. (Second Amended

9 Compl., ¶ 47). Boeing estimates that the class as proposed by Plaintiffs would include up to 22,000

10 members. Plaintiffs propose certification of a class comprised of all African-Americans employed by

11 Heritage Boeing from June 6, 1994 to the present and all African-Americans employed by non-

12 heritage Boeing from the time Boeing acquired various companies to the present. They do not

13 propose any subclasses.

14

FACTUAL BACKGROUND

15

Over the course of the proposed class period, Boeing acquired three companies (collectively,

16 “non-Heritage Boeing”): 1) Rockwell International (later named Boeing North American, Inc.

17 (“BNA”)), acquired in December, 1996, 2) McDonnell Douglas Corporation (“MDC”), acquired in

18 August, 1997, and 3) portions of Hughes Electronics (“Hughes”), acquired in January, 2000. BNA

19 had facilities in southern California and Tulsa, Oklahoma. MDC had facilities in southern California,

20 St. Louis, Missouri, and Arizona. Hughes had facilities in southern California.

21

Boeing presents evidence that it did not immediately change the personnel practices and

22 policies used at BNA, MDC, and Hughes when it acquired these companies. BNA followed different

23 compensation practices and guidelines, including using its own job classification system, with salary

24 ranges for each classification, and salary planning practices, with salary ranges and a formula to

25 determine increases, until 2000. It was bound by collective bargaining agreements (“CBAs”) that

26 ORDER ON CLASS CERTIFICATION – 4

Case 6:05-cv-01165-JTM Document 4 Filed 06/01/05 Page 5 of 24

1 Rockwell International and various unions had entered (it is not clear how long these CBAs

2 governed). MDC retained its own job classification system until 1999. Until as late as 2001, it was

3 bound by CBAs that it had entered with various unions prior to the acquisition. Hughes used its own

4 personnel practices and procedures, including promotion and compensation rate structures until

5 March, 2003.

6

Boeing is currently divided into different business units: Boeing Commercial Airplanes,

7 Integrated Defense Systems (a Space & Communications unit and a Military Aircraft & Missile unit

8 were merged into this integrated defense unit in 2002), a Shared Services Group that provides a wide

9 variety of support services to the two major business units, and a few smaller business units (e.g.

10 Phantom Works, doing research and development, and the Company Headquarters). As of 1998,

11 Boeing Commercial Airplanes was located in Puget Sound, Tulsa, Wichita, and Long Beach.

12 Integrated Defense Systems was located in Kent, southern California, St. Louis, Arizona, Philadelphia,

13 and Wichita. The Shared Services Group was located in Seattle, southern California, St. Louis, and

14 Wichita.

15

ANALYSIS

16

To qualify for certification as a class, Plaintiffs must satisfy the requirements set out in Rule

17 23(a) and the class must fall under one of the categories outlined in Rule 23(b).

18 I. Rule 23(a)

19

Rule 23(a) requires that the plaintiffs show that 1) the putative class is numerous, 2) there are

20 common questions of law and fact, 3) the claims of the named plaintiffs are typical of those of the

21 absent class members, and 4) the named plaintiffs and counsel will adequately protect the interests of

22 the absent class members.

23

Here, the Ninth Circuit affirmed class certification for settlement purposes. In doing so, the

24 court noted that “when, as here, the parties have entered into a settlement agreement before the

25 district court certifies the class, reviewing courts must pay ‘undiluted, even heightened,’ attention to

26 ORDER ON CLASS CERTIFICATION – 5

Case 6:05-cv-01165-JTM Document 4 Filed 06/01/05 Page 6 of 24

1 class certification requirements.” Stanton, 327 F.3d at 952 (quoting Amchem Prods. Inc. v. Windsor,

2 521 U.S. 591, 620 (1997)). The Ninth Circuit analyzed each of the four requirements in Rule 23(a)

3 and found that the class satisfied all of them.

4

First, the court found that numerosity was easily satisfied because the Plaintiff-class on appeal

5 had 15,000 members. Id. at 953. Here, the Plaintiff-class is equally numerous.

6

In discussing commonality, the court noted that the class

7

is broad and diverse. It encompasses some 15,000 employees, from a wide range of

positions both salaried and hourly, who are employed at Boeing facilities located in 27

8

different states. . . . [T]he district court found[] that the large class is united by a

complex of company-wide discriminatory practices against African-Americans. . . .

9

[T]he breadth and consistency of class counsel’s initial evidence [of company-wide

discriminatory practices] places the district court’s finding of commonality well within

10

that court’s discretion.

11 Id. at 953-54. The court concluded that Boeing’s acquisition of BNA and MDC during the class

12 period, which brought employees from BNA and MDC into the class, did not undermine commonality.

13 While “[s]ome of the class’s historical evidence from BNA and MDC employees may extend to before

14 the mergers, . . . the kernel of the class complaint is that a complex of discriminatory practices

15 pervades Boeing today and in the recent past. The fact of the mergers does not bar a finding of

16 commonality.” Id. at 954 (emphasis in original). Further, Plaintiffs produced evidence of centralized

17 decision making, which, according to the Ninth Circuit, trumped the fact that some employment

18 decisions were made locally. Id. at 956. Still, the court noted that the district court could have

19 certified sub-classes rather than one class so as to assure commonality. Id.

20

The court concluded that the named Plaintiffs were sufficiently typical of the absent class

21 members because the named Plaintiffs included salaried and hourly employees, management and line-

22 workers, union and non-union, as well as employees from all of Boeing’s locations. Id. at 957. The

23 court also found that the named Plaintiffs and class counsel adequately represented the class members.

24 Id. at 957-58.

25

26 ORDER ON CLASS CERTIFICATION – 6

Case 6:05-cv-01165-JTM Document 4 Filed 06/01/05 Page 7 of 24

1

To the extent that the currently proposed class is the same as or smaller than the class that

2 was before the Ninth Circuit on appeal, the teaching of Stanton is that Rule 23(a)’s four requirements

3 for class certification are met. See Amchem, 521 U.S. at 620 (courts must pay “undiluted, even

4 heightened,” attention to class certification requirements when certifying a settlement class). Plaintiffs,

5 however, seek to enlarge the class in three ways: first, by adding the salary compensation claim3

6 (which could bring in additional salaried employee class members to whom the other claims did not

7 apply); second, by including African-American employees from Hughes, which Boeing had not

8 acquired when the Consent Decree was approved, and; third, by changing the start date in the class

9 definition. The class approved by Judge Coughenour included African-Americans who began working

10 at “the beginning of the applicable limitations periods”; the currently proposed class would include

11 African-Americans who began working as early as June 6, 1994. Plaintiffs conceded at oral argument

12 that this change in the start date could bring in additional class members.

13

While the proposed class is potentially larger than it was on appeal, the Court finds that there

14 is no reason why the addition of the salary compensation claim or the modified start date would

15 change the Ninth Circuit’s 23(a) analysis.4 Therefore, this Court adopts the Ninth Circuit’s Rule 23(a)

16 analysis and concludes that Rule 23(a)’s requirements have been met, notwithstanding the additional

17 claim and modified start date.

18 II. Rule 23(b)

19

Plaintiffs seek certification of a nationwide class under Rule 23(b)(2) for injunctive relief,

20 monetary equitable relief of back pay, and punitive damages. In the alternative, they seek (b)(2)

21 certification for injunctive relief and back pay and (b)(3) certification for punitive damages.

22 3 This Court recently held that Plaintiffs did not allege the salary compensation claim in their
23 original or First Amended Complaints (filed before the Consent Decree was approved). (Dkt. No. 793).
24 4 Because the Court excludes the employees from Hughes from the class, the potential
25 problem presented by adding these new class members is moot.
26 ORDER ON CLASS CERTIFICATION – 7

Case 6:05-cv-01165-JTM Document 4 Filed 06/01/05 Page 8 of 24

1 Rule 23(b)(2) provides for certification when “the party opposing the class has acted or refused to act

2 on grounds generally applicable to the class, thereby making appropriate final injunctive relief . . . with

3 respect to the class as a whole.” A Rule 23(b)(2) class is intended for situations when broad class-

4 wide injunctive relief is necessary to redress group-wide injury. Robinson v. Metro-North Commuter

5 R.R. Co., 267 F.3d 147, 162 (2d Cir. 2001).

6

The main consideration in determining whether a class should be certified under Rule 23(b)(2)

7 or (3) is whether the predominate relief sought is injunctive or monetary. Rule 23(b)(2) classes can

8 include claims for monetary relief so long as the predominate relief sought is injunctive. Moliski v.

9 Gleich, 318 F.3d 937, 947 (9th Cir. 2003). Here, Plaintiffs seek certification to obtain injunctive relief,

10 back pay, and punitive damages. As a threshold issue, back pay is an equitable remedy and therefore

11 falls within the ambit of Rule 23(b)(2). See Gotthardt v. Nat’l R.R. Passenger Corp., 191 F.3d 1148,

12 1153 (9th Cir. 1999); Allison v. Citgo Petroleum Corp., 151 F.3d 402, 415 (5th Cir. 1998) (noting

13 that back pay could be sought in a (b)(2) class action “because, as an equitable remedy similar to other

14 forms of affirmative injunctive relief permitted in (b)(2) class actions, it [is] an integral component of

15 Title VII’s ‘make whole’ remedial scheme”) (citing Pettway v. Am. Cast Iron Pipe Co., 494 F.2d 211,

16 252, 257 (5th Cir. 1974)). Therefore, the relevant question here is whether Plaintiffs primarily seek

17 injunctive and equitable relief or punitive damages.

18

In Moliski, the Ninth Circuit rejected utilizing a bright-line rule in determining which form of

19 relief predominates and instead directed the district court to examine the facts and circumstances of

20 each case, specifically the intent of the plaintiffs in bringing the suit. Id. at 949-50. The Second

21 Circuit applied a similar standard in Robinson, in which African-American employees sued their

22 employer for employment discrimination, alleging both disparate treatment and disparate impact and

23 seeking certification under Rule 23(b)(2). The employer argued that certification under Rule 23(b)(2)

24 was inappropriate because plaintiffs also sought monetary damages. The court rejected this bright-line

25 approach, holding that the inclusion of monetary damages in the types of relief sought does not

26 ORDER ON CLASS CERTIFICATION – 8

Case 6:05-cv-01165-JTM Document 4 Filed 06/01/05 Page 9 of 24

1 automatically make monetary damages predominate. Instead, the court pointed to two considerations

2 that the district court on remand should look to in determining what form of relief predominated: 1)

3 would the plaintiffs have likely brought suit to obtain injunctive relief even if they had no prospect of a

4 monetary recovery, and 2) would injunctive relief be reasonably necessary and appropriate if the

5 plaintiffs were to succeed on the merits. Robinson, 267 F.3d at 164.

6

Further, if a court finds that injunctive relief predominates and certifies a (b)(2) class, the

7 court has the discretionary power under Rule 23(d)(2) to require notice and the right to opt out when

8 adjudicating the monetary relief aspects of the action. As such, the court can protect the due process

9 rights of the absent class members. Moliski, 318 F.3d at 947-48.

10

Here, these two considerations favor a (b)(2) class. Plaintiffs present declarations from

11 numerous named Plaintiffs stating that their primary objective in this action is injunctive relief.

12 Further, if Plaintiffs succeed on the merits, injunctive relief remedying Boeing’s discriminatory

13 employment practices would be both reasonably necessary and appropriate. Plaintiffs contend that,

14 because Boeing’s company-wide policies and practices allow and foster racial discrimination, only

15 company-wide injunctive relief can remedy the discrimination.5 (Plfs’ Mot. at 24). Boeing counters

16 that there is no policy applicable to the class as a whole for the court to enjoin. Defendant’s argument

17 on this point is not persuasive. If Plaintiffs succeed under either the disparate treatment or disparate

18 impact claim, they will have necessarily shown that there was a discriminatory company-wide policy or

19 practice for which class-wide injunctive relief will be appropriate and necessary. See Califano v.

20 Yamasaki, 442 U.S. 682, 702 (1979) (“the scope of injunctive relief is dictated by the extent of the

21 violation established”).

22

23

5 Plaintiffs point to the Ninth Circuit’s observation in Stanton that Plaintiffs’ counsel had

gathered evidence through interviews, documentation, and Boeing’s internal studies of affirmative 24 action issues to demonstrate that discriminatory practices at Boeing are widespread and entrenched,

and that the breadth and consistency of this evidence supported a finding of commonality. Stanton, 25 327 F.3d at 954.

26 ORDER ON CLASS CERTIFICATION – 9

Case 6:05-cv-01165-JTM Document 4 Filed 06/01/05 Page 10 of 24

1

The Court is not persuaded by Boeing’s arguments that monetary relief predominates. First,

2 Boeing contends that 60% of the proposed class members no longer work at Boeing and therefore

3 they could only want monetary relief. (It may actually be less than 60% because after Boeing made

4 this assertion Plaintiffs restricted the proposed class to exclude employees who worked for BNA,

5 MDC, or Hughes but left before those companies were acquired.) Even if Boeing’s contention is true,

6 this case was originally filed in 1998. In all likelihood, a higher percentage of the proposed class

7 worked for Boeing in 1998. The mere fact that this case has been in litigation for so many years

8 during which the economy has changed and Boeing has laid off many employees (not to mention

9 others who have retired) cannot be held against Plaintiffs and provides no reason to assume that their

10 motivation has changed from the time they originally filed suit.

11

Second, Boeing argues that Plaintiffs’ request for back pay, front pay, compensatory and

12 punitive damages shows that monetary damages predominate. This argument is belied by the fact that

13 Plaintiffs do not seek certification to obtain compensatory damages and back pay/front pay is equitable

14 relief that falls under (b)(2).

15

Third, Boeing argues that Plaintiffs’ failure to point to any specific injunctive relief that they

16 want makes it impossible to tell if injunctive relief predominates. Boeing, however, has not pointed to

17 any authority that requires Plaintiffs to outline in detail their sought-after injunctive relief at this early

18 stage in order to show that injunctive relief is their primary goal in bringing the lawsuit. Apart from

19 Boeing’s argument, the Court initially questioned whether the injunctive relief agreed to in the Beck v.

20 Boeing settlement addressing gender discrimination accomplishes the same goals by the same means as

21 what Plaintiffs seek here such that injunctive relief is not necessary in this case. (See Beck v. Boeing,

22 CV00-301P, Consent Decree). At oral argument, Plaintiffs indicated that they seek broader relief than

23 was obtained in Beck. To support this position, Plaintiffs presented at oral argument a multi-part

24 proposal regarding needed injunctive relief.

25

26 ORDER ON CLASS CERTIFICATION – 10

Case 6:05-cv-01165-JTM Document 4 Filed 06/01/05 Page 11 of 24

1

In sum, the Court finds that certification under Rule 23(b)(2) is appropriate. However, the

2 Court finds that management and prudential issues necessitate limiting the class as described below.

3 III. Manageability

4

The Ninth Circuit’s decision in Stanton did not discuss class certification under Rule 23(b).

5 However, the Supreme Court made clear in Amchem that class certification for settlement purposes

6 requires meeting all of Rule 23's requirements except for Rule 23(b)(3)(D)’s manageability

7 requirement. Amchem, 521 U.S. at 620. Based on this principle and because Boeing supported

8 certification under both Rule 23(b)(2) and (3) in seeking approval of the Consent Decree, Plaintiffs

9 argue that Boeing is judicially estopped from arguing against certification now except as to

10 manageability. The Seventh Circuit confronted a similar situation in Carnegie v. Household Int’l, Inc.,

11 376 F.3d 656 (7th Cir. 2004). There, the parties sought and obtained certification and settlement

12 approval at the same time, the settlement was reversed on appeal, and defendants then argued on

13 remand that certification was inappropriate. The Seventh Circuit held that defendants were precluded

14 by the doctrine of judicial estoppel from challenging certification of a settlement class because they

15 had previously supported it and had benefitted by it. Id. at 660-61. The court noted however that

16 defendants could challenge the manageability of the class. Id. at 661. Language in the Ninth Circuit’s

17 Stanton decision supports this approach. The court stated “[a]lthough we have some concerns, largely

18 relating to litigation management, as to whether the case could be maintained as a class action if the

19 litigation continues, the district court did not abuse its discretion in certifying the case for settlement

20 purposes pursuant to Rule 23.” Stanton, 327 F.3d at 953. Boeing did not respond to Plaintiffs’

21 judicial estoppel argument, but nonetheless framed its argument in terms of manageability.

22

Manageability is relevant for Rule 23(b)(2) classes as well as Rule 23(b)(3) classes,

23 notwithstanding the fact that the rule does not explicitly require an analysis of manageability in

24 certifying a Rule 23(b)(2) class. See Dukes v. Wal-Mart Stores Inc., 222 F.R.D. 137, 173 (N.D. Cal.

25

26 ORDER ON CLASS CERTIFICATION – 11

Case 6:05-cv-01165-JTM Document 4 Filed 06/01/05 Page 12 of 24

1 2004) (applying the manageability requirement to a 23(b)(2) class because manageability is “implicit in

2 any type of class certification”) (citing Robinson, 267 F.3d at 164).

3

Plaintiffs allege that Boeing had and still has company-wide policies and practices granting

4 local managers excessive subjectivity in determining promotions for salaried and hourly employees and

5 compensation for salaried employees, which has allowed and even fostered racial discrimination.

6 Plaintiffs further allege that Boeing knew that its promotions and salary compensation policies and

7 practices adversely affected African-American employees, but that Boeing failed to remedy the

8 problem. According to Plaintiffs, these company-wide policies and practices are the basis for

9 nationwide class certification for the promotions and salary compensation claims. In contrast, Boeing

10 argues that there is no basis to certify a nationwide or even a Puget Sound-based class because its

11 promotion and salary compensation practices and policies are too diverse over Boeing’s different

12 business units, job categories, locations, and collective bargaining agreements. As such, Boeing

13 maintains that the class would not be manageable.

14

Plaintiffs assert both disparate treatment and disparate impact claims. Disparate treatment

15 claims assert that the employer utilizes a pattern or practice of intentional discrimination which is the

16 employer’s standard operating procedure. Robinson, 267 F.3d at 158 (citing International Broth. of

17 Teamsters v. U.S., 431 U.S. 324, 366 (1977)). In contrast, disparate impact claims assert that the

18 employer has a facially neutral policy or practice that causes a disparate impact on a protected group,

19 even if the employer has no intent to discriminate. Robinson, 267 F.3d at 160 (citing Griggs v. Duke

20 Power Co., 401 U.S. 424, 432 (1971)). Disparate impact liability is premised on the idea that “some

21 employment practices, adopted without a deliberately discriminatory motive, may in operation be

22 functionally equivalent to intentional discrimination.” Watson v. Forth Worth Bank & Trust, 487 U.S.

23 977, 987 (1988). Generally, litigation of both disparate treatment and disparate impact claims are

24 divided into two phases: liability and remedial. Robinson, 267 F.3d at 158. (There are two important

25 features of disparate treatment claims that are absent for disparate impacts claims: 1) punitive damages

26 ORDER ON CLASS CERTIFICATION – 12

Case 6:05-cv-01165-JTM Document 4 Filed 06/01/05 Page 13 of 24

1 are available, and 2) either party may request a jury trial. Here, Plaintiffs seek punitive damages and

2 have requested a jury trial.)

3

A. Manageability of the Liability Phase of the Disparate Treatment Claim

4

At the liability phase, plaintiffs must provide evidence sufficient to establish a prima facie case

5 of a pattern or practice of intentional discrimination. In class actions, plaintiffs usually present both

6 statistical evidence and anecdotal testimony from class members. The focus is “on matters relevant to

7 the class as a whole . . . .” Dukes, 222 F.R.D. at 174. Plaintiffs need not present evidence during the

8 liability phase that each member of the class was a victim of the employer’s discriminatory policy or

9 practice. Teamsters, 431 U.S. at 360; see Beck v. Boeing, 60 Fed. Appx. 38, 39 (9th Cir. 2003). If

10 plaintiffs succeed in making a prima facie case, the burden shifts to the defendant employer either to

11 prove that plaintiffs’ evidence is inaccurate or insignificant, or to present evidence of legitimate non-

12 discriminatory reasons for the disparate treatment. Teamsters, 431 U.S. at 360; Domingo v. New

13 England Fish Co., 727 F.2d 1429, 1435 (9th Cir. 1984). Because plaintiffs need not prove that each

14 member of the class was a victim of the discriminatory policy and instead present evidence applicable

15 to the class as a whole, defendant’s rebuttal should likewise focus on class-wide evidence, not on

16 individual employment decisions. Id.; see Beck, 60 Fed. Appx. at 39. “The point is that at the liability

17 stage of a pattern-or-practice trial the focus will not be on individual [employment] decisions, but on a

18 pattern of discriminatory decision making.” Teamsters, 431 U.S. at 360 n.46 (emphasis added). In

19 Beck, the Ninth Circuit noted that this meant that Boeing could not defeat class certification of the

20 liability phase by arguing that it is entitled to introduce individualized evidence that each of its

21 employment decisions was motivated by a legitimate nondiscriminatory reason. 60 Fed. Appx. at 39.

22

Plaintiffs contend that there is evidence applicable to a nationwide class of Boeing’s practices

23 of intentional discrimination in promotions for hourly and salaried employees and in compensation for

24 salaried employees. This evidence can be broken down into three general categories: statistical

25

26 ORDER ON CLASS CERTIFICATION – 13

Case 6:05-cv-01165-JTM Document 4 Filed 06/01/05 Page 14 of 24

1 analysis, Boeing’s internal studies of equal employment opportunity issues, and anecdotal evidence by

2 named representatives.

3

i. Claims by Salaried Employees

4

Plaintiffs’ statistical expert, Dr. Bernard Siskin, maintains that African-American salaried

5 employees have historically received, to a statistically significant degree, lower pay and fewer

6 promotions than whites.6 To analyze compensation for salaried employees, Dr. Siskin aggregates

7 salaried employees into the following groups: 1) exempt/non-exempt employees, 2) managers, 3)

8 engineers, and 4) SPEEA Techs. (Siskin Decl., Tables 1-4). He analyzed how each of these groups

9 fared in different Boeing “entities” (which consist primarily of Heritage Boeing, BNA, MDC, and BSS

10 (formerly Hughes)). He concludes that for each of the first three groups, there were statistically

11 significant disparities for years 1995, 1999, 2000, 2001, 2002, and 2003 (he did not analyze 1996,

12 1997, or 1998). To analyze promotion shortfalls, Dr. Siskin aggregates salaried employees into the

13 following groups: 1) exempt employees, 2) non-exempt employees, 3) engineers, and 4) SPEEA

14 Techs. (Id., Tables 6-10). He analyzed how each of these groups fared in different Boeing “entities”

15 for the period 1995-2003. He concludes that there are statistically significant promotion shortfalls

16 experienced by African-American employees for a majority of the Boeing entities.

17

Boeing challenges Dr. Siskin’s statistical analysis and conclusions as not credible. According

18 to Boeing, Dr. Siskin wrongly ignored the different levels of workers in each of these groups, which

19 correspond to the different level of work performed. These differences are represented by Boeing’s

20 Salaried Job Classification (“SJC”) system.7 For example, Boeing contends that Dr. Siskin ignored the

21 different SJC level of engineers. As support, Boeing points to a decision by Judge Lasnik in Nouri v.

22 6 Dr. Siskin did not find adverse salary or promotional disparities for African-American
23 SPEEA Techs (certain technical workers employed in the Puget Sound). (See Siskin Decl., Table 4). For this reason, SPEEA Tech employees are excluded from the class.
24 7 The Court notes, however, that Boeing’s internal studies analyzing salaries and promotions
25 of minorities and women (discussed below) did not aggregate by SJC levels.
26 ORDER ON CLASS CERTIFICATION – 14

Case 6:05-cv-01165-JTM Document 4 Filed 06/01/05 Page 15 of 24

1 Boeing, CV99-1227L, in which a class of Asian-American engineers relied on a statistical analysis by

2 Dr. Siskin to support their disparate treatment and disparate impact claims against their employer

3 Boeing. After the jury trial on the disparate treatment claims, Judge Lasnik ruled on the disparate

4 impact claim. In that ruling, he found fault with Dr. Siskin’s analysis because Judge Lasnik concluded

5 that SJC levels needed to be taken into account in determining whether the class was disparately

6 impacted in their salaries. “Memorandum of Decision on Disparate Impact Claim” at 2-3 (June 4,

7 2004).

8

While this Court may or may not ultimately reach the same conclusion as Judge Lasnik, it

9 would be improper to import his conclusion into this class certification analysis. He reached that

10 conclusion in the final merits stage of the case, not during class certification. Regardless of the merits

11 of Boeing’s argument, “[s]tatistical dueling” is “not relevant to the [class] certification determination.”

12 Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 292 (2d Cir. 1999). Even if Boeing’s

13 challenge is fatal to Plaintiffs’ case at the merits stage, “it is improper to advance a decision on the

14 merits to the class certification stage.” Stanton, 327 F.3d at 954 (quotation and citation omitted).

15

Additionally, Plaintiffs point to evidence that purportedly shows that Boeing had company-

16 wide policies and practices regarding salaries and promotions, which provided only minimal guidelines

17 but essentially gave all discretion to local managers.8 (Berman Decl., Ex. 23). Boeing’s compensation

18 policy or “philosophy” was to determine salaries based on performance. As of 1999, Boeing issued

19

20

8 Boeing argues that giving managers excessive subjectivity cannot provide the basis for

disparate treatment or disparate impact liability because “subjectivity” is not an employment policy or

21 practice. (Defs’ Resp. at 6-7). While it is true that the existence of a policy granting subjectivity or discretion to individual managers is not in and of itself discriminatory, courts have recognized that the

22 use of subjectivity is an employment practice that can be used in a discriminatory manner. Watson v.

Forth Worth Bank & Trust, 487 U.S. 977, 990-91 (1988); General Telephone v. Falcon, 457 U.S.

23 147, 159 n.15 (1982). But see Coleman v. Quaker Oats Co., 232 F.3d 1271, 1285 (9th Cir. 2000)

(“While a subjective evaluation system can be used as cover for illegal discrimination, subjective 24 evaluations are not unlawful per se and their relevance to proof of a discriminatory intent is weak.”)

(quotation and citation omitted). Even if a policy of granting excessive subjectivity to local managers 25 is of “weak” relevance in proving discrimination, it is a sufficient basis to support class certification.

26 ORDER ON CLASS CERTIFICATION – 15

Case 6:05-cv-01165-JTM Document 4 Filed 06/01/05 Page 16 of 24

1 annual “Salary Review Process Management Guidelines” for salary planning which directed managers

2 to determine salaries based on performance. (Id., Exs. 25-28). Beyond these general guidelines, local

3 managers working in “Salary Review Groups” had discretion to set salaries. Boeing had similar

4 policies regarding promotions that, according to Plaintiffs, placed few restrictions on managers. (Id.,

5 Exs. 36-38).

6

A Boeing DAS/PAT team created in the late 1990s studied discrepancies in compensation,

7 promotions, and other employment practices affecting salaried and hourly employed minorities and

8 women. The DAS/PAT team identified company-wide causes of those discrepancies.9 (Id., Exs. 2-12,

9 21-22). Plaintiffs maintain that additional evidence shows that Boeing executives knew of the

10 disparate impact on African-American employees, yet failed to take remedial measures. (Id., Exs.13-

11 16). According to Plaintiffs, this shows that the upper echelon of the corporation was at least

12 complicit in allowing discriminatory practices to continue.

13

The Court finds that a class of all African-American salaried employees of Heritage Boeing

14 nationwide is warranted. Plaintiffs’ theory of the case is premised on their ability to prove that there

15 was a practice of discrimination that permeated all divisions and levels of Boeing nationwide, and that,

16 at the highest levels of the corporation, Boeing knew that racial discrimination was occurring and did

17 nothing or not enough to remedy the problem. Liability will hinge on this central factual question.

18 While Boeing may attempt to present evidence on rebuttal that “job-related criteria guide[s]

19 compensation and promotions decisions,” (Defs’ Resp. at 6), this does not undermine the central

20 factual question upon which Plaintiffs’ theory of the case hinges.

21

To rebut Plaintiffs’ case, Boeing can attack the merits of Plaintiffs’ statistics. This “statistical

22 dueling” will be no less manageable for a nationwide class than it would be for a regional class or a

23

24

9 Boeing challenges the import of these studies, arguing that the DAS/PAT study was

incomplete, based on limited data, etc. This argument goes to the merits of this claim, not class 25 certification.

26 ORDER ON CLASS CERTIFICATION – 16

Case 6:05-cv-01165-JTM Document 4 Filed 06/01/05 Page 17 of 24

1 class consisting of only one business unit. While this may call on the jury to evaluate complex

2 statistical evidence presented by each side’s expert, it is not uncommon to require juries to answer

3 such complex factual questions.

4

Boeing’s argument that “the liability phase will require examination of tens of thousands of

5 individual compensation and promotions decisions,” (Defs’ Resp. at 3), is without merit. As noted

6 above, the liability phase is not the stage at which Boeing will argue that each individual employment

7 decision was taken for legitimate non-discriminatory reasons. Because the evidence during the liability

8 phase focuses on whether Boeing used a pattern of discriminatory decision making, Boeing is

9 “expected to respond to plaintiffs’ pattern and practice claim on a class-wide basis.” Dukes, 222

10 F.R.D. at 174 (citing Teamsters, 431 U.S. at 360 n.46).

11

The Court excludes from the class non-Heritage Boeing African-American employees because

12 the Court finds that proving liability for the practices that occurred at these entities after they were

13 acquired by Boeing would be unmanageable. Even after Boeing acquired each of these companies,

14 they continued to use their own employment and personnel practices for a number of years: MDC until

15 1999 even though it was acquired in 1997, BNA until 2000 even though it was acquired in 1997, and

16 Hughes until 2003 even though it was acquired in 2000. Moreover, it appears that the conversion to

17 using Boeing’s practices and policies occurred over a period of time rather than at one definitive

18 moment. Different practices and policies were adopted at different times. For example, Boeing

19 asserts that these entities retained their own job classification systems until Boeing standardized

20 classifications in 1999. Yet, BNA still used its own salary planning practices until 2000. (Defs’ Ex.

21 43 (Culp Decl., ¶ 8)). Including employees of these non-Heritage Boeing entities would lead to

22 litigation of an unmanageable number of corollary issues regarding when different policies were

23 brought in line with Boeing’s and what degree of oversight or control Boeing exercised during this

24 transition period. Similarly, there would be factual issues unique to these employees regarding their

25 salary compensation claim. The salaries of the class members who worked for these entities when

26 ORDER ON CLASS CERTIFICATION – 17

Case 6:05-cv-01165-JTM Document 4 Filed 06/01/05 Page 18 of 24

1 Boeing acquired them were set by these entities before Boeing acquired them, which is directly

2 relevant to their compensation claim since the initial determination of their salaries were made before

3 acquisition. All of these issues would bear directly on Plaintiffs’ ability to prove Boeing’s liability for

4 the practices and policies at those facilities. Not only would these issues present manageability

5 problems in terms of discovery and dispositive motions, but more significantly, they would present

6 significant manageability problems at the jury trial. The volume of the evidence alone would be

7 unmanageable.

8

The Court notes that its holding here does not leave the non-Heritage Boeing African-

9 American employees without alternatives. The Ninth Circuit noted in Stanton that “Boeing is

10 responsible for the employment practices of all its sub-parts.” 327 F.3d at 954. As Plaintiffs point

11 out, Boeing’s internal studies regarding pay and promotion disparities included MDC and BNA such

12 that Boeing executives knew of the compensation and promotion disparities at these facilities and

13 failed to remedy the problem. While Boeing may ultimately be responsible for the practices at non-

14 Heritage Boeing facilities, that fact does not lessen the significant manageability problems that

15 including these entities would present.

16

The Court’s holding that manageability necessitates carving out non-Heritage Boeing

17 employees does not undermine the rationale behind the certification of nationwide class of Heritage

18 Boeing salaried employees. The claims by the Heritage Boeing employees do not present the

19 contentious timing issues described above.

20

ii. Claims by Hourly Employees

21

The claims by hourly employees present unique issues which the Court must address

22 separately. Promotions of hourly employees are governed by CBAs. According to Boeing, there are

23 currently 65 different CBAs connected to 65 local chapters of approximately 20 different unions

24 operating in Boeing’s facilities. Plaintiffs contend that, even though there are and were different CBAs

25 applicable for different sets of hourly employees, the rules for promotions were similar across Boeing

26 ORDER ON CLASS CERTIFICATION – 18

Case 6:05-cv-01165-JTM Document 4 Filed 06/01/05 Page 19 of 24

1 because they imposed few restrictions on local managers’ discretion. Boeing argues that there is no

2 policy of subjectivity for awarding promotions to hourly employees because the CBAs prescribe

3 objective criteria and preclude subjective decision making. (Defs’ Resp. at 6). Apart from the merits

4 of each side’s argument, determining liability will necessarily require analysis of the relevant CBAs to

5 determine how promotions for hourly employees were to be determined under the different CBAs.

6 Because there are 65 different CBAs currently in place, plus any previous CBAs that were used at any

7 of the facilities during the class period, grouping all of the hourly employees together in one class to

8 assert their promotions claim would be unmanageable.

9

Nonetheless, it may be appropriate to certify subclasses for this claim. It may be the case that

10 each CBA covers a significant enough number of African-American hourly employees such that

11 different subclasses of hourly employees would be possible. However, the Court cannot determine

12 based on the materials submitted what those subclasses might be. For example, the Court has not

13 found anything in the record identifying the number of putative class members governed by each of the

14 CBAs. Because the Court was not provided with sufficient information to create subclasses of hourly

15 employees by CBA, it cannot do so.

16

Lastly, Boeing did not dispute the proposed start date in its response. Therefore, the Court

17 will certify the class with the start date for Heritage Boeing employees as proposed by Plaintiffs.

18 However, the Court will modify the start date in the class definition as needed.

19

B. Manageability of the Remedial Phase of the Disparate Treatment Claim

20

If plaintiffs are successful in the liability phase, the case then enters the remedial phase. Here,

21 if Plaintiffs are successful, the necessity of class-wide injunctive relief will outweigh any manageability

22 problems that might arise. Therefore, the Court certifies the injunctive relief portion of the remedial

23 phase.

24

If plaintiffs seek back pay, each plaintiff enjoys the benefit of a presumption that “any

25 particular employment decision, during the period in which the discriminatory policy was in force, was

26 ORDER ON CLASS CERTIFICATION – 19

Case 6:05-cv-01165-JTM Document 4 Filed 06/01/05 Page 20 of 24

1 made in pursuit of that policy.” Teamsters, 431 U.S. at 362. The defendant employer has the burden

2 of demonstrating that the individual plaintiff was subject to the adverse employment practice for

3 legitimate non-discriminatory reasons. Id. If the employer is unsuccessful, the individual plaintiff is

4 entitled to equitable relief of back pay. Robinson, 267 F.3d at 160.

5

Plaintiffs assert that certification of the remedial phase is appropriate because Dr. Siskin has

6 devised a formula to determine back pay for promotion and compensation shortfalls on a class-wide

7 basis and to allocate it to individual class members. (See Siskin Decl., ¶¶ 19-21, 28). In contrast,

8 Boeing argues that it will introduce evidence that each challenged employment decision with respect

9 to each individual class member was taken for lawful non-discriminatory purposes. This will be an

10 individualized and fact-specific inquiry and as such, Boeing argues, it will be unmanageable for 22,000

11 class members. (Defs’ Resp. at 4).

12

Courts have used formulas to determine and allocate back pay. In Domingo, the Ninth Circuit

13 held that back pay could and should be calculated on a class-wide basis using a formula given the

14 nature of the discrimination at issue, not withstanding the traditional practice of determining individual

15 back pay awards. Domingo, 727 F.2d at 1444. Because the employer in Domingo had no objective

16 criteria for hiring, recruitment, or promotions, and determining back pay would have called for a

17 “quagmire of hypothetical judgments,” the court found that a class-wide approach to determining back

18 pay was needed. Id. (citing Pettway, 494 F.2d at 259).

19

In a more recent case, a district court certified a class of women employees of Wal-Mart

20 stores nationwide alleging gender discrimination in promotions and pay. The court certified almost all

21 of the remedial phase of the disparate treatment claim, relying in large part on Domingo. Dukes, 222

22 F.R.D. at 175-86. The parties there made similar arguments as the parties here do. Id. at 175. The

23 district court noted that individual hearings would be not only unmanageable but unfruitful because it

24 would have been impossible to determine which class members would actually have been promoted

25 (since not all of them could have been). Therefore, the use of a formula was appropriate so long as

26 ORDER ON CLASS CERTIFICATION – 20

Case 6:05-cv-01165-JTM Document 4 Filed 06/01/05 Page 21 of 24

1 each class member could show that she met the qualifications for the promotion and was interested in

2 being promoted. However, the court limited the use of the formula to instances when there was

3 objective data regarding each claimant’s qualifications (which there was because of Wal-Mart’s

4 comprehensive informational technology system tracking information on each employee) and interest

5 (which there was only for promotional opportunities that were posted on Wal-Mart’s system, but

6 which did not exist for jobs that were not posted). As such, the court certified only those back pay

7 claims for promotions for which such data was available. The court denied certification of back pay

8 claims where such data was not available because it concluded that determining individual back pay in

9 those instances would have been unmanageable. The court also certified the claims for back pay for

10 compensation because there was objective data on the amount class members would have earned if not

11 for Wal-Mart’s discriminatory policies.

12

While Dukes’ analysis of this issue is attractive, it is as yet an untested analysis. Therefore,

13 the Court finds that it is prudent to refrain from deciding that issue at this stage in the proceedings.

14 The Court does not know if the same type of objective data exists in this case. Moreover, once the

15 liability phase has been concluded, the Court will be in a better position to determine whether

16 certification is appropriate.

17

Lastly, certification of the punitive damages claim depends on how the Court handles back

18 pay. In Beck, this Court certified a two-phase trial: phase one under Rule 23(b)(2) for determining

19 liability and injunctive relief and phase two under Rule 23(b)(3) for determining punitive damages.

20 The Court denied certification of the back pay claim. The Ninth Circuit affirmed certification for

21 determining liability and injunctive relief, but reversed certification for determining punitive damages,

22 on the grounds that disparate treatment liability does not automatically entitle every class member to

23 punitive damages. Rather, to receive punitive damages, each class member must have suffered actual

24 harm as a result of defendant’s unlawful behavior. Because the back pay claim was not certified,

25 nothing in phase one would have established individual harm. 60 Fed. Appx. at 39-40. Consequently,

26 ORDER ON CLASS CERTIFICATION – 21

Case 6:05-cv-01165-JTM Document 4 Filed 06/01/05 Page 22 of 24

1 unless the Court certifies the back pay claim in this case, it would be inappropriate to certify the

2 punitive damages claim. The Court determines that, like the back pay claim, it is prudent refrain from

3 deciding this issue until the liability phase has concluded.

4

In sum, the Court certifies the liability phase and the injunctive relief portion of the remedial

5 phase of the disparate treatment claim and will withhold from ruling on certification of the back pay

6 and punitive damages portions of the remedial phase of the disparate treatment claim. The Second

7 Circuit in Robinson recommended following such a course. It noted that even if the remedial phase

8 proved uncertifiable on remand, the district court should bifurcate the liability and remedial phases of

9 the disparate treatment claim and certify the liability phase because it would “reduce the range of

10 issues in dispute and promote judicial economy.” 267 F.3d at 167-68.

11

C. Disparate Impact Claim

12

To allege disparate impact, plaintiffs must first make a prima facie showing that the employer

13 uses an employment policy or practice that causes a disparate impact on a protected group. § 2000e-

14 2(k); Watson, 487 U.S. at 994-95. Showing causation is central to success on this claim; merely

15 showing that “there is a bottom line racial imbalance is insufficient.” Brown v. Coach Stores Inc., 163

16 F.3d 706, 712 (2d Cir. 2001). Generally, plaintiffs rely on statistical proof which must show that the

17 disparity is significant or substantial and that it is caused by the challenged employment practice.

18 Bouman v. Block, 940 F.2d 1211, 1225 (9th Cir. 1991).

19

If plaintiffs succeed in making a prima facie case, the burden shifts to the defendant employer

20 to show either that plaintiffs’ statistical evidence is flawed, that the challenged employment practice

21 did not cause the disparity, or that the challenged practice is job related and consistent with a business

22 necessity. § 2000e-2(k); Robinson, 267 F.3d at 161 (citing In re Employment Discrimination Litig.,

23 198 F.3d 1305, 1313 (11th Cir. 1999)). To show a business necessity for a policy or practice of

24 granting discretion, the employer “would have to argue that the subjectivity of the [challenged

25 practice] is job-related--in other words, that something about the position requires the selector to

26 ORDER ON CLASS CERTIFICATION – 22

Case 6:05-cv-01165-JTM Document 4 Filed 06/01/05 Page 23 of 24

1 make a subjective evaluation of the applicant's abilities.” Mozee v. Am. Commercial Marine Serv.

2 Co., 940 F.2d 1036, 1050 (7th Cir. 1991).

3

If the defendant employer succeeds in showing that it has a business necessity justifying the

4 practice, the burden shifts back to plaintiffs to show that there are alternative policies or practices that

5 would satisfy the business necessity but without causing the disparate impact. § 2000e-2(k);

6 Robinson, 267 F.3d at 161. If plaintiffs ultimately prevail, the court may then fashion injunctive relief.

7

As in pattern or practice disparate treatment claims, if plaintiffs seek back pay, the case then

8 enters a remedial phase in which each plaintiff must show that he or she was adversely affected by the

9 challenged practice. Defendant employer can rebut by showing that a legitimate non-discriminatory

10 reason existed for the adverse action. Id. at 162.

11

Many of the same arguments and evidence discussed above apply regarding manageability of

12 the liability and remedial phases. There is one key difference however. The 1991 amendments to Title

13 VII provided for the right to a jury trial when plaintiffs allege disparate treatment and seek punitive or

14 compensatory damages. Plaintiffs have requested a jury trial. This difference has important

15 manageability implications when plaintiffs allege both disparate treatment and disparate impact. When

16 a factual question is common to both legal and equitable claims in the same action, the jury must make

17 its factual findings on the legal claim before the court can rule on the equitable claim. Dairy Queen,

18 Inc. V. Wood, 369 U.S. 469, 472-73 (1963); Beacon Theaters, Inc. v. Westover, 359 U.S. 500, 510-

19 11 (1952). Therefore, when a disparate treatment claim seeking punitive damages is pled with a

20 disparate impact claim, both claims may be tried at the same time, but the Court will not make any

21 factual findings on the disparate impact claim until the jury has made its findings on the disparate

22 treatment claim. For any overlapping factual issues, the Court must adhere to the jury’s findings.

23

The Court certifies the liability phase and the injunctive relief portion of the remedial phase of

24 the disparate impact claim. As discussed above, the Court will withhold ruling on the back pay

25 portion of the remedial phase until the conclusion of the liability phase.

26 ORDER ON CLASS CERTIFICATION – 23

Case 6:05-cv-01165-JTM Document 4 Filed 06/01/05 Page 24 of 24

1

CONCLUSION

2

The Court GRANTS Plaintiffs’ motion in part and certifies the following class:

3

African-American salaried employees employed by Heritage Boeing from June 6, 1994

to the present, excluding executives and SPEEA Techs, seeking injunctive relief for

4

racial discrimination in compensation and promotions.

5

Certification of subclasses of the African-American hourly employees’ promotions claim may

6 be appropriate. However, based on the record, the Court cannot determine what the appropriate

7 subclasses might be. Therefore, the Court DENIES without prejudice certification of the African-

8 American hourly employees’ promotion claim.

9

It is further ordered that the litigation of the disparate treatment and disparate impact claims

10 under Title VII will be bifurcated into a liability phase and a remedial phase. This order certifies only

11 the liability phase and the injunctive relief portion of the remedial phase.

12

The liability phase will consist of a jury trial to determine liability on the disparate treatment

13 claim and a bench trial to determine liability on the disparate impact claim. If liability is found on

14 either claim, the Court will then order injunctive relief as necessary.

15

If liability is found under either claim, the Court will revisit the question of certifying the back

16 pay and punitive damages portions of the remedial phase.

17

The clerk is directed to provide copies of this order to all counsel of record.

18

Dated: January 21, 2005

19

/s/ Marsha J. Pechman

Marsha J. Pechman

20

United States District Judge

21

22

23

24

25

26 ORDER ON CLASS CERTIFICATION – 24

 
 Case 2:98-cv-00761-MJP Document 651 Filed 06/11/2004 Page 1 of 31

1

The Honorable Marsha J. Pechman

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

8

AT SEATTLE

9

SOLOMON WILLIAMS, et al.,

10

11
v.

Plaintiffs,

12

THE BOEING COMPANY, et al.,

13

Defendants. 14

No. C98-761P
SECOND AMENDED CLASS ACTION COMPLAINT
JURY TRIAL DEMANDED

15

16

I. NATURE OF THE CASE

17

1. Plaintiffs bring this action individually and on behalf of all African-Americans

18 similarly situated, seeking relief from systemic discriminatory employment practices by The

19 Boeing Company, Boeing North American, Inc., and McDonnell Douglas Corporation.

20

2. The plaintiffs and the Class have been treated differently than similarly situated

21 Caucasian co-workers. The plaintiffs and the Class have been denied, based on their race,

22 desirable job assignments, promotional opportunities, management positions, training, equal pay,

23 overtime, comparable retention ratings, bonuses and other benefits of employment. Defendants

24 have deterred African-American employees from seeking promotions, management positions and

25 desirable job assignments or overtime; failed to select African-Americans for desirable job

26 assignments; failed to effectively enforce policies prohibiting race discrimination; and retaliated

SECOND AMENDED CLASS ACTION COMPLAINT - 1 -
Case No. C98-761P
1669.10 0074 BSC.DOC

BOSTON Los ANGELES PHOENIX SEATTLE
1301 FIfTH AVENUE, SUIlE 2900. SEATrLE, WA 98101 TELEPHONE (206) 623·7292 • FACSIMILE (206) 623-<>59.

Case 2:98-cv-00761-MJP Document 651 Filed 06/11/2004 Page 2 of 31

1 against African-American employees who have protested Defendants' discriminatory policies,

2 patterns, andl.or practices.

3

3. Defendants have consistently ignored complaints about these unlawful work

4 conditions, inadequately investigated African-Americans' complaints, and failed to implement

5 steps that would eliminate these unlawful working conditions.

6

4. Defendants' internal surveys, and the studies of their hired consultants, show race

7 discrimination against African-Americans in Boeing's promotion, pay and other practices.

8

5. While Boeing has strongly worded anti-discrimination policies, and many of its

9 employees honor the rights of their African-American co-workers, far too many of its managerial

10 and supervisory employees are not effectively policed, are rarely disciplined for violating the

11 rights of African-Americans, and ignore Defendants' stated policies and make employment

12 decisions disadvantageous to African-Americans. When management or co-workers are

13 disciplined for violating African-Americans' rights, the discipline is often too lenient to deter

14 future illegal conduct. It is common knowledge at Boeing that if African-Americans complain

15 about co-worker or managerial misconduct, they may be ostracized and denied meaningful future

16 employment opportunities at Boeing. African-Americans, rather than perpetrators, frequently

17 are punished by being reassigned to jobs and places that under-utilize their skills and make future

18 advancement even more difficult.

19

6. Co-workers frequently verbally harass their African-American co-workers with

20 derogatory words such as "nigger" and "coon," which has fostered a hostile work environment.

21

7. In failing adequately to protect the rights of its African-American workers, and in

22 pennitting an environment in which their self-esteem and value are questioned, Defendants have

23 injured not only their African-American workers but their families and loved ones as well; have

24 denied their spouses, loved ones, and children the income due these family units; and, in doing

25 so, have impaired their emotional relationships with their spouses, loved ones, and children.

26

SECOND AMENDED CLASS ACTION COMPLAINT - 2 -
Case No. C98-761P
1669.10 0074 Bse.Doe

BOSTON Los ANGELES PHOENIX SEATTLE
130] FIFTH AVENUE, SUITE 2900. SEATTLE, WA 98101 TELEPHONE (206) 623·7292 • FACSIMILE (206) 623-0594

Case 2:98-cv-00761-MJP Document 651 Filed 06/11/2004 Page 3 of 31

1

II. JURISDICTION AND VENUE

2

8. This court has jurisdiction pursuant to 28 U.S.C. § 1331, 1343, and 1367, and 42

3 U.S.C. § 2000e-5(f)(3).

4

9. Venue lies in this district pursuant to 28 U.S.C. § 1391.

5

III. THE PARTIES

6

10. The plaintiffs are African-American who have suffered racially discriminatory

7 employment policies and practices at the hands of the defendants and their predecessors-in-

8 interest (collectively "Defendants"). The plaintiffs comprise both hourly and salaried workers.

9 They are qualified persons who have been denied the opportunity for promotion, equal pay, and

10 overtime, who have been injured because of low retention ratings, who have been laid off

11 unfairly, who have been subjected to a hostile work environment, and/or who have been

12 retaliated against because of Defendants' policies and practices of racial discrimination.

13

11. Plaintiff Solomon Williams resides in King County, Washington. Mr. Williams is

14 an employee of defendant Boeing, or one of its subsidiaries, in Auburn.

15

12. Plaintiff William Bell resides in Pierce County, Washington. Mr. Bell is an

16 employee of defendant Boeing in Auburn, Washington.

17

13. Plaintiff Kevin Biglow resides in Segwick County, Kansas. Mr. Biglow is

18 employed at defendant Boeing, or one of its subsidiaries, in Wichita.

19

14. Plaintiff David Brawley resides in King County, Washington. Mr. Brawley is an

20 employee of defendant Boeing, or one of its subsidiaries, in Seattle.

21

15. Plaintiff Rhonda Capps resides in Pierce County, Washington. ·Mr. Capps is an

22 employee of defendant Boeing, or one of its subsidiaries, in Seattle.

23

16. Plaintiff Carol Calender resides in Florissant, Missouri. Ms. Calender is an

24 employee of defendant Boeing, or one of its subsidiaries, in St. Louis.

25

17. Plaintiff Mary Dean resides in Segwick County, Kansas. Ms. Dean is an

26 employee of defendant Boeing, or one of its subsidiaries, in Wichita.

SECOND AMENDED CLASS ACTION COMPLAINT - 3 -
Case No_ C98-761P
1669.!O 0074 BSC.DOC

BOSTON Los ANGELES PHOENIX SEATTLE
1301 FIFTH AVENUE, SUITE 2900. SEATTl.E, WA 98101 TELEPHONE (206) 623-7292 • FACSIMILE (206) 623-0594

Case 2:98-cv-00761-MJP Document 651 Filed 06/11/2004 Page 4 of 31

1

18. Plaintiff Michael Eckles resides in Pierce County, Washington. Mr. Eckles is an

2 employee of defendant Boeing, or one of its subsidiaries, in Auburn.

3

19. Plaintiff Cynthia Evans resides in Pierce County, Washington. Ms. Evans is an

4 employee of defendant Boeing, or one of its subsidiaries, in Auburn.

5

20. Plaintiff Doreen Ferguson resides in Pierce County, Washington. Ms. Ferguson is

6 an employee of defendant Boeing, or one of its subsidiaries, in Auburn.

7

21. Plaintiff Mara Ferrari resides in King County, Washington. Ms. Ferrari is an

8 employee of defendant Boeing, or one of its subsidiaries, in Renton.

9

22. Plaintiff Terry Fisher resides in Segwick County, Kansas. Ms. Fisher is an

10 employee of defendant Boeing, or one of its subsidiaries, in Wichita.

11

23. Plaintiff Charles Jones resides in Segwick County, Kansas. Mr. Jones is an

12 employee of defendant Boeing, or one of its subsidiaries, in Wichita.

13

24. Plaintiff Tim Jones resides in St. Charles County, Missouri. Mr. Jones is an

14 employee of defendant Boeing, or one of its subsidiaries, in St. Louis.

15

25. Plaintiff Wendy Kelly resides in King County, Washington. Ms. Kelly is an

16 employee of defendant Boeing, or one of its subsidiaries, in Everett.

17

26. Plaintiff Theodoshia Knauls resides in Tulsa, Oklahoma. Ms. Knauls is employed

18 at defendant Boeing, or one of its subsidiaries, in Tulsa.

19

27. Plaintiff Myron Knight resides in King County, Washington. Mr. Knight is an

20 employee of defendant Boeing, or one of its subsidiaries, in Renton.

21

28. PlaintiffVerlene Maholmes resides in Segwick County, Kansas. Ms. Maholmes

22 is an employee of defendant Boeing, or one of its subsidiaries, in Wichita.

23

29. Plaintiff Michael Marion resides in St. Louis, Missouri. Mr. Marion is employed

24 at defendant Boeing, or one of its subsidiaries, in St. Louis.

25

30. Plaintiff Shirley Miller resides in King County, Washington. Ms. Miller is an

26 employee of defendant Boeing, or one of its subsidiaries, in Auburn.

SECOND AMENDED CLASS ACTION COMPLAINT - 4 -
Case No. C98-761P
1669.10 0074 BSC.DOC

BOSTON Los ANGELES PHOENIX SEATTLB
1301 FIITH AVENUE, SUITE 2900. SEATTLE, WA 98101 TELEPHONE (206) 623-7292 • FACSIMILE (206) 623-059>

Case 2:98-cv-00761-MJP Document 651 Filed 06/11/2004 Page 5 of 31

1

31. Plaintiff Ronnie Mitchell resides in Tulsa, Oklahoma. Mr. Mitchell is employed

2 at defendant Boeing, or one of its subsidiaries, in Tulsa.

3

32. Plaintiff Evalean Moore resides in St. Louis, Missouri. Ms. Moore is an

4 employee of defendant Boeing, or one of its subsidiaries, in St. Louis.

5

33. Plaintiff David Roberts resides in Segwick County, Kansas. Mr. Roberts is an

6 employee of defendant Boeing, or one of its subsidiaries, in Wichita.

7

34. Plaintiff Eleanor Staton resides in King County, Washington. Ms. Staton is an

8 employee of defendant Boeing, or one of its subsidiaries, in Renton.

9

35. Plaintiff Clarence Thompson resides in King County, Washington.

10 Mr. Thompson is an employee of defendant Boeing, or one of its subsidiaries, in Everett.

11

36. Plaintiff Brian Todd resides in Los Angeles County, California. Mr. Todd is an

12 employee of defendant Boeing, or one of its subsidiaries, in Huntington Beach.

13

37. Plaintiff Beverly Trotter resides in Segwick County, Kansas. Ms. Trotter is

14 employed at defendant Boeing, or one of its subsidiaries, in Wichita.

15

38. Plaintiff Ralph Wilson resides in Tulsa, Oklahoma. Mr. Wilson is employed at

16 defendant Boeing, or one of its subsidiaries, in Tulsa.

17

39. Plaintiff Willie Wilson resides in Tulsa County, Oklahoma. Mr. Wilson is an

18 employee of defendant Boeing, or one of its subsidiaries, in Tulsa.

19

40. Plaintiff Deborah Woods resides in King County, Washington. Ms. Woods is an

20 employee of defendant Boeing, or one of its subsidiaries, in Auburn.

21

41. Defendant The Boeing Company ("Boeing") is a Delaware corporation doing

22 business in Alabama, California, Kansas, Missouri, Oklahoma, Pennsylvania, Washington, and

23 other states. Boeing is engaged in interstate commerce and employs approximately 238,000

24 persons in the United States, primarily providing aircraft, aerospace and related technology, and

25 other products. Unless stated otherwise, references to defendant Boeing include all of its

26 successors, predecessors, affiliates and subsidiaries.

SECOND AMENDED CLASS ACTION COMPLAINT - 5 -
Case No. C98-761P
1669.10 0074 BSC.DOC

BOSTON Los ANGELES PHOENIX SEATTLE
1301 FIFTH AVENUE, SUITE 2900. SEATTLE, WA 98101 TELEPHONE (206) 623-7292. FACSIMILE (206) 623-0594

Case 2:98-cv-00761-MJP Document 651 Filed 06/11/2004 Page 6 of 31

1

42. Defendant Boeing North American, Inc. ("BNA") is a Delaware corporation and

2 wholly-owned subsidiary of the defendant Boeing doing business in California, Washington, and

3 other states. It is engaged in interstate commerce and employs thousands of persons in the

4 United States. It and defendant Boeing are liable jointly and severally for all the violations

5 alleged herein with regard to plaintiffs and the Class employed at facilities owned or operated in

6 whole or in part by BNA. Unless stated otherwise, references to defendant BNA include its

7 successors, predecessors, affiliates and subsidiaries. BNA and Boeing are jointly and severally

8 liable for the discriminatory practices and policies ofBNA's predecessors-in-interest to the

9 extent they employed any of the plaintiffs or Class members.

10

43. Defendant McDonnell Douglas Corporation ("MDC") is a Maryland corporation

11 and wholly-owned subsidiary of Boeing doing business in California, Missouri, Washington and

12 other states. It and defendant Boeing are liable jointly and severally for all the violations alleged

13 herein with respect to plaintiffs and the Class employed at facilities owned or operated in whole

14 or in part by MDC. Unless stated otherwise, references to MDC include its successors,

15 predecessors, affiliates and subsidiaries. MDC is engaged in interstate commerce and employs

16 thousands of persons in the United States. MDC and Boeing are jointly and severally liable for

17 the discriminatory practices and policies of MDC's predecessors-in-interest to the extent they

18 employed any of the plaintiffs or the Class.

19

IV. CLASS ALLEGATIONS

20

44. Plaintiffs sue on their own behalf and, with the exception of one named plaintiff,

21 on behalf ofa class of persons pursuant to Fed. R. Civ. P. 23(b)(2) and (b)(3).1

22

45. Plaintiffs bring Counts I and II of this complaint on behalf of a Class, defined as

23 all African-Americans who have been employed by Defendants or any of their operating

24

25
1 Class counsel will not proffer Mary Dean as a class representative, but she is nonetheless a Class member.
26 Class counsel do not represent Ms. Dean individually but are preserving her rights as to her individual claims by
preserving her position as a named plaintiff.

SECOND AMENDED CLASS ACTION COMPLAINT - 6 -
Case No. C98-761P

1669.10 0074 BSC.DOC

BOSTON Los ANGELES PHOENIX SEATTLE
1301 FIfTH AVENUE, SUITE 2900. SEATTLE, WA 98101 TELEPHONE (206) 623-7292 • FACSIMILE (206) 623-0594

Case 2:98-cv-00761-MJP Document 651 Filed 06/11/2004 Page 7 of 31

1 divisions or subsidiaries at any time and for any length of time during the period from June 6,

2 1994, to present ("Class Period").

3

46. Plaintiffs seek class certification only with respect to their claims for violation of

4 Title VII of the Civil Rights Act of 1964, as amended, and violation of 42 U.S.C. § 1981, as

5 amended.

6

47. There are approximately 15,000 Class members, residing in Alabama, California,

7 Kansas, Missouri, Nebraska, Oklahoma, Pennsylvania and Washington, among other places.

8 The Class is so numerous and geographically distributed that joinder of all Class members is

9 impracticable.

10

48. Questions of fact and law common to the Class include, among others:

11

a. whether African-Americans have not obtained the promotions, salary,

12 overtime, retention ratings, and job opportunities obtained by equally or less qualified white

13 employees, and were being laid off at a higher rate than equally or less qualified Caucasians;

14

b. whether Defendants' conduct alleged in this complaint violates Title VII

15 of the Civil Rights Act of 1964, as amended, and 42 U.S.C. § 1981, as amended;

16

c. whether Defendants have intentionally carried out racially discriminatory

17 policies and practices alleged in this complaint;

18

d. whether Defendants' policies and practices have resulted in disparate

19 impact on the basis of race;

20

e. whether Defendants' policies and practices are consistent with business

21 necessity

22

f.

whether Plaintiffs and the members of the Class are entitled to back pay,

23 benefits and lost wages, and if so, in what amounts;

24

g. whether Plaintiffs and the members of the Class have sustained damage

25 and, if so, in what amounts; and

26

SECOND AMENDED CLASS ACTION COMPLAINT - 7 -
Case No. C98-761P
1669.10 0074 BSC.DOC

BOSTON Los ANGELES PHOENIX SEATTLE
1301 FIfTH AVENUE, SUITE 2900. SEATTLE, WA 98101 TELEPHONE (206) 623-7292. FACSIMILE (206) 623-0594

Case 2:98-cv-00761-MJP Document 651 Filed 06/11/2004 Page 8 of 31

1

h. whether Defendants' current policies and practices affecting Plaintiffs and

2 Class members should be eliminated and replaced by new policies and practices and,.if so, which

3 ones.

4

49. Plaintiffs' claims are typical of the claims of the Class members.

5

50. Plaintiffs and Class counsel will fairly and adequately protect the interests of the

6 Class.

7

51. Defendants have acted/refused to act and are acting/refusing to act on grounds

8 generally applicable to the Class, thereby making appropriate final injunctive or corresponding

9 declaratory relief with respect to the Class as a whole.

10

52. Common questions of fact and law predominate over questions affecting only

11 individual members.

12

53. A class action is superior to other available methods for the fair and efficient

13 adjudication of this controversy.

14

54. There are no unusual difficulties likely to be encountered in the management of

15 this litigation as a class action.

16

55. Notice to the Class (if deemed necessary) may be accomplished inexpensively,

17 efficiently and in a manner best designed to protect the due process rights of all Class members

18 by means of written notices supplied through Defendants' system of communication with their

19 employees.

20

v. FACTUAL ALLEGATIONS

21

56. During the Class Period, approximately 15,000 African-American have worked

22 for defendants. Defendants have perpetrated a company-wide pattern and practice of illegal

23 racial discrimination against African-American workers.

24 A. Boeing Executives Have Ignored Longstanding Knowledge of Racial Discrimination

25

57. Boeing executives at its Chicago (formerly Seattle) headquarters have had

26
longstanding knowledge of racial discrimination across the company's facilities, and failed to

SECOND AMENDED CLASS ACTION COMPLAINT - 8 -
Case No. C98-761P

1669.10 0074 BSC.DOC

BOSTON Los ANGELES PHOENIX SEATTLE 1301 FIFTH AVENUE, SUITE 2900. SEATTLE, WA 98101
TELEPHONE (206) 623-7292. FACSIMILE (206) 623-0594

Case 2:98-cv-00761-MJP Document 651 Filed 06/11/2004 Page 9 of 31

1 take any serious action. Boeing has engaged in this discrimination intentionally and with malice,

2 reckless .disregard, or deliberate ignorance of the federal and state rights of its African-American

3 workers.

4

58. At least since 1995, Boeing periodically performed internal analyses of disparities

5 in salaries between Caucasians and African-Americans and other gender, racial or ethnic groups.

6 These analyses often disclosed that African-Americans were paid less than their Caucasian

7 counterparts at Boeing.

8

59. An internal Boeing e-mail dated January 9, 1998 also revealed findings of racial

9 bias in a Boeing internal survey of affirmative action issues. In the e-mail, a Seattle management

10 official, Gary Hart, reported as follows:

11

A survey of Boeing's affirmative issues were found to be as

follows: 12

Subject Areas

13

Hiring practices

Finding Racial bias

Pay practices

Gender Bias

14

Promotion practices

Gender and racial bias

15

Peer working environment

Race issues

Hart reported that Boeing recognized that "[o]ur behaviors have to change to a focus on 16

evaluating what people are doing to accomplish the job they were hired to do, not evaluating 17

their appearance, or method of expressing themselves." 18

19

60. African-Americans employed in salaried positions have received lower salaries

20 than equally or less qualified Caucasians. The observed salary differences were constantly

adverse to protected groups, including African-Americans. 21

22

61. Despite this purported recognition, racial discrimination at Boeing continued

23 unabated. The perception at various Boeing sites was that race and/or gender influenced career

progress. In November 1999, Boeing entered into a settlement of racial and gender 24

25 discrimination charges with the U.S. Department of Labor. In the settlement, Boeing agreed to

26 make across-the-board salary adjustments for minorities, conduct internal monitoring, and report

SECOND AMENDED CLASS ACTION COMPLAINT - 9 -
Case No. C98-761P
1669.100074 BSC.DOC

BOSTON Los ANGBLBS PHOBNIX SBATTLB
1301 FIfTH AVENUE, SUITE 2900. SEATTLE, WA 98101 TELEPHONE (206) 623-7292. FACSIMILE (206) 623-0594

Case 2:98-cv-00761-MJP Document 651 Filed 06/11/2004 Page 10 of 31

1 its results to the Department of Labor. In addition, Boeing agreed to create a $4.5 million pool

2 of funds to pay back pay and salary adjustments to salaried and executive minority and female

3 employees who had been victims of salary inequities. Under the settlement, Boeing also was

4 required to track the race and gender ofjob applicants and maintain the criteria used in

5 generating candidates for openings. Yet these changes did not bring Caucasian and African-

6 Americans at Boeing to a level of parity with respect to compensation, promotions, and other

7 employment benefits.

8 B. 9

Boeing's Facilities Follow Common Compensation, Promotion, and Other Employment Policies and Practices

10

62. Boeing's compensation policies were centrally formulated at Boeing's

headquarters in Seattle, Washington. These policies were common in important respects across 11

its facilities nationwide. 12

13

63. Boeing's website affirmed the commonality of its compensation policies for

14 salaried employees. It stated:

15

The salary planning processes used for the company's four salary payrolls are fundamentally very similar, based on a single

16

company-wide compensation philosophy for salaried payrolls. The fact that actual implementation schemes for the four payrolls have

17

been tailored to the unique characteristics of each payroll, and go by different names, can sometimes create the false impression of

18

fundamental differences where none exists.

19

64. The central factor for the salary-planning process used by Boeing was that salary

20 was based on the employee's performance relative to other employees performing similar work.

21 Boeing also had two corollary policies: that it would manage salaries, not raises, and that

22 salaries were set within an approved range that represented the employee's market value.

23

65. Promotion policies for non-management employees also were common in critical

24 respects across Boeing's facilities nationwide. Boeing incorporated specific controls into its

25 promotion policies for first-level management selection process to guard against excessive

26 subjectivity by the promoting official. Yet, it imposed no such controls on its promotion policies

SECOND AMENDED CLASS ACTION COMPLAINT - 10 -
Case No. C98-761P
1669.10 0074 BSC.DOC

BOSTON Los ANGELES PHOENIX SEATTLE
1301 FIfTH AVENUE, SUI1E 2900. SEATTLE, WA 98101 TELEPHONE (206) 623-7292 • FACSIMILE (206) 623-0594

Case 2:98-cv-00761-MJP Document 651 Filed 06/11/2004 Page 11 of 31

1 for non-management positions, whether for competitive promotions for salaried employees,

2 competitive promotions for hourly employees, or non-competitive promotions for salaried

3 employees. This resulted in managers having the freedom to follow their own rules in selection

4 for promotions and often fostered an "old boy" system and favoritism that adversely affected

5 African-American candidates.

6

66. For example, for non-management positions, Boeing's policy stated that a

7 manager must post - or advertise - job vacancies. However, this policy was subject to numerous

8 exceptions, and the exceptions often swallowed the rule. These exceptions left managers with

9 broad discretion in deciding when to post and when not to post and enabled them to direct

10 promotions to friends and family, resulting in racial discrimination.

11

67. Career progression was minimal for minorities, including African-Americans,

12 who did not advance to management positions. African-Americans were kept at lower-level jobs

13 longer than other similarly situated workers, in spite of the fact that these African-American

14 employees were qualified and applied for advancement. The experiences of the plaintiffs and

15 Class members were typical. African-Americans watched as co-workers were promoted above

16 them. Often African-Americans trained co-workers who later became their superiors. When

17 these African-Americans complained about promotions being based on race, not on job-related

18 criteria, Boeing management responded they can "hire who they want."

19

68. Boeing did not maintain uniform rules at its sites governing which candidates

20 were interviewed or what to ask the candidates.

21

69. Further, African-Americans employees found it much more difficult than their

22 similarly situated Caucasian co-workers to obtain training necessary to compete for promotions.

23 For example, African-Americans were told that training classes were "full," when they applied

24 for admission, but these same classes accommodated Caucasians who later sought admission.

25 African-Americans were told that certain training classes were necessary for advancement.
26

SECOND AMENDED CLASS ACTION COMPLAINT - 11 -
Case No. C98-761P
1669.10 0074 SSG.DOC

BOSTON Los ANGELES PHOENIX SEATTLE
1301 FIfTH AVENUE, SUITE 2900. SEATILE, WA 98101 TELEPHONE (206) 623-7292 • FACSIMILE (206) 623-0594

Case 2:98-cv-00761-MJP Document 651 Filed 06/11/2004 Page 12 of 31

1 However, the same training requirements were not applied to similarly qualified Caucasians

2 seeking a promotion.

3

70. Boeing headquarters also failed to impose review procedures for promotion

4 selections at its sites to ensure accountability. In addition, the Company failed to prescribe

5 written criteria for selection decisions. These two failings again resulted in promoting officials

6 having wide discretion to use whatever selection criteria they wished and fostered favoritism that

7 inured to the benefit of Caucasians.

8

71. African-Americans started their careers at Boeing at a financial disadvantage.

9 There were racial differences in initial pay code assignments. And, starting salaries for

10 experienced new hires were generally lower for minorities and women. For example, African-

11 American engineers "received, on average, lower starting salaries than Caucasians in the

12 Northwest." The differences in starting salaries tended to track with employees throughout their

13 careers and therefore, African Americans starting low, stayed low. In fact, racial differentials in

14 salaries were generally larger and more statistically significant for longer-term employees than

15 shorter-term employees. Minorities and women typically continued to maintain lower paying

16 jobs.

17

72. African-Americans were often not paid according to their assigned tasks. Boeing

18 management channeled African-Americans to lower-paying positions, but often expected these

19 employees to perform higher-level tasks. However, if a Caucasian performed higher-level work,

20 he or she typically was promoted with increased pay. Boeing's salary planning processes often

21 increased these disparities in pay. For minorities, like African-Americans, salary planning

22 created significant differences in salaries.

23

73. African-Americans received lower retention ratings than equally or less qualified

24 Caucasians. Lower retention ratings made African-Americans more susceptible to lay-off. Also,

25 lower retention ratings hindered African-Americans' eligibility for certain other benefits.

26

SECOND AMENDED CLASS ACTION COMPLAINT - 12 -
Case No. C98-761P
1669.10 0074 BSC.DOC

BOSTON Los ANGELES PHOENIX SEATTLE
1301 FIfTH AVENUE, SUITE 2900. SEATILE, WA 9810) TELEPHONE (206) 623-7292. FACSIMILE (206) 623-0594

Case 2:98-cv-00761-MJP Document 651 Filed 06/11/2004 Page 13 of 31

1 African-Americans were laid-off at a disproportionately higher rate than their Caucasian

2 counterparts.

3

74. African-Americans were subjected to a racially hostile work environment at

4 Boeing that included, but was not limited to, racial slurs, crude and racist drawings, and other

5 intimidating tactics. For example, e-mails were circulated with derogatory statements, such as

6 "We need to Kill All Niggers." African-Americans observed documents containing racial slurs,

7 such as "KKK," "Niggerlover," "African Boys," and "Happy Nigger Day." Some of these

8 documents went so far as to depict a hangman's noose. Other comments African-Americans

9 were subjected to on a regular basis included "picking cotton," "Sambo," "nigger pick that up,"

10 and "chicken shit niggers." The racially hostile work environment was not only created by

11 Caucasian co-workers, but also by Caucasian management-level employees. Boeing

12 management allowed the racially hostile work environments to flourish unabated.

13 C.
14

Boeing's Employment Policies Have Allowed Managers to Exercise Excessive Subjectivity and Fostered Pay and Promotion Decisions That Discriminate Against African-Americans

15

75. The excessive subjectivity permitted by Boeing's employment rules and

16 procedures resulted in managers giving benefits to friends and family and promoted an "old boy"

17 network that adversely affected African-Americans.

18

76. The excessive subjectivity given to managers by Boeing's employment

19 procedures was exhibited in numerous areas, including the following:

20

(1) No rules governed the practices of Boeing's salary review groups, by

21

which Caucasian and African-American employees salaries and pay raises were set;

22

(2) No fixed rules governed whether job openings were advertised;

23

(3) No fixed rules prescribed whether selecting officials must interview job

24

candidates;

25

(4) No fixed rules prescribed what selecting officials could ask job candidates

26

in interviews;

SECOND AMENDED CLASS ACTION COMPLAINT - 13 -
Case No. C98-761P
1669.10 0074 BSC.DOC

BOSTON Los ANGELES PHOENIX SEATTLE
1301 FIITH AVENUE, SUITE 2900. SEATTLE. WA 98101 TELEPHONE (206) 623·7292. FACSIMILE (206) 623-0594

Case 2:98-cv-00761-MJP Document 651 Filed 06/11/2004 Page 14 of 31

1

(5) No written criteria existed for promotion or hiring selection decisions;

2

(6) No Boeing headquarters' procedures existed for review of promotion

3

decisions; and

4

(7) No meaningful guidance circumscribed managers' discretion in giving

5

non-competitive increases in salary and pay grade.

6

77. In addition, African-Americans employed in hourly positions have received fewer

7 overtime opportunities and less overtime pay than similar Caucasians. Boeing has failed to

8 impose any objective standards or guidelines for the way that managers assign overtime to

9 hourly workers. As a consequence, managers have assigned overtime on the basis of friendships,

10 relationships, and an "old boy's network" that has worked to the disadvantage of African-

11 Americans.

12

78. This excessive subjectivity denied plaintiffs and the Class the same compensation,

13 promotions, and employment benefits as Boeing made available to Caucasians and violated their

14 rights under federal and state law.

15 D. 16

Boeing Has Failed to Address African-American Employees' Complaints of Racial Discrimination

17

79. Reports to Boeing of adverse impact andlor treatment regarding promotion,

training, compensation, overtime, demotions, terminations, and hostile work environment go 18

19 unheeded; are simply ignored or responded to with a form denial; investigated only in a cursory

20 fashion; andlor the remedial measures are ineffective. The defendants used inconsistent EEO

Investigation Guidelines in reviewing complaints by the African-American employees that they 21

22 are treated differently than Caucasians. Some African-Americans experienced retaliation for

23 asserting complaints of racial discrimination. In spite of official statements that defendants

24 support equal treatment for African-Americans, the message clearly communicated to workers is

25 that racial discrimination against African-Americans is standard operating procedure, and will

26 not generally result in any significant, adverse employment action.

SECOND AMENDED CLASS ACTION COMPLAINT - 14 -
Case No. C98-761P
1669.100074 BSC.DOC

BOSTON Los ANGELES PHOENIX SEATTLB
1301 FIFTH AVENUE, SUITE 2900. SEATTLE, WA 98101 TELEPHONE (206) 623-7292 • FACSIMILE (206) 623-0594

Case 2:98-cv-00761-MJP Document 651 Filed 06/11/2004 Page 15 of 31

1

80. Indeed, before 1995 and thereafter, African-American employees have

2 complained to defendants that they have not been treated equally as similarly situated

3 Caucasians.

4 E.
5

Boeing's Tolerance of Racial Discrimination Has Infected All Aspects of Its Employment Practices Affecting African-Americans

6

81. Boeing has pursued, condoned, acquiesced in, and/or failed to eliminate

7 continuing policies and/or patterns or practices that, though often facially neutral, have adversely

8 impacted defendants' African-American employees and/or that have the intent and effect of

denying African-Americans equal job opportunities and conditions of employment. These 9

policies or practices include, without limitation: 10

11

(1) failing and/or refusing to implement or enforce and follow a uniform

12

posting procedure to ensure that all employees have or had equal notice ofjob openings

and promotions; 13

14

(2) failing and refusing to establish and/or enforce a uniform and unbiased

15

process by which Caucasian and African-American employees can apply and compete

equally for promotions, training opportunities, and overtime; 16

17

(3) using a forced curve for compensation, retention, and termination

decisions; 18

19

(4) failing to conduct meaningful performance reviews and informing

employees about how to improve their performance; 20

21

(5) preselecting employees for promotions and favorable work opportunities;

22

(6) promoting individuals into managerial and supervisory positions without

23

determining or attempting to evaluate whether they are racially-biased;

24

(7) promoting racially-biased individuals into managerial and supervisory

positions; 25

26

SECOND AMENDED CLASS ACTION COMPLAINT - 15 -
Case No. C98-761P
1669.100074 aSC.DOC

BOSTON Los ANGELES PHOENIX SEATTLB
1301 FIFTH AVENUE, SUITE 2900. SEATILE, WA 98101 TELEPHONE (206) 623-7292. FACSIMILE (206) 623-0594

Case 2:98-cv-00761-MJP Document 651 Filed 06/11/2004 Page 16 of 31

1

(8) relying upon subjective, racially-biased and/or arbitrary criteria used by a

2

predominately Caucasian managerial work force in making job assignment,

3

compensation, overtime, training, termination, and promotional decisions;

4

(9) failing and refusing to consider African-American employees for desirable

5

work assignments, promotions and management positions on the same basis as Caucasian

6

employees are considered;

7

(10) discouraging and deterring African-American employees from applying

8

for desirable assignments, promotions and management positions for which they are

9

qualified;

10

(11) failing and refusing to provide African-American employees with the

11

necessary work experience and training to qualify them for more desirable positions on

12

the same basis as Caucasian employees are provided with such experience and training;

13

(12) paying African-American employees less than similarly situated

14

Caucasian employees;

15

(13) retaliating against or permitting others to retaliate against African-

16

American employees who protest the defendants' discriminatory policies and/or patterns

17

or practices;

18

(14) demoting African-American employees or reclassifying their jobs when

19

similarly situated Caucasians do not experience the same degree of demotions or

20

reclassifications;

21

(15) assigning African-American employees retention ratings that are more

22

disadvantageous to them than those assigned to similarly situated Caucasian employees;

23

and, because of those ratings, there are a disproportionate and unfair number of African-

24

American terminations;

25

26

SECOND AMENDED CLASS ACTION COMPLAINT - 16 -
Case No. C98-761P
1669. JO 0074 BSC.DOC

BOSTON Los ANGELES PHOENIX SEATTLE
1301 FIfTH AVENUE, SUITE 2900. SEATTLE, WA 98101 TELEPHONE (206) 623-7292 • FACSIMILE (206) 623-0594

Case 2:98-cv-00761-MJP Document 651 Filed 06/11/2004 Page 17 of 31

1

(16) subjecting African-American employees to different and more rigorous

2

requirements in order to be eligible for promotional or other job opportunities than those

3

to which Caucasians are subjected;

4

(17) failing to provide African-American employees with timely and accurate

5

notice of employment opportunities;

6

(18) subjecting African-American employees to a sexually hostile and sexually

7

harassing work environment;

8

(19) denying African-Americans overtime and the more desirable work hours

9

and work shifts;

10

(20) failing to implement effective anti-discrimination investigation and

11

penalty programs; and

12

(21) failing to monitor and correct the practices of their employees, which

13

adversely impact African-American employees.

14

82. Defendants' pattern and practice of illegal employment racial discrimination has

15 persisted for decades, and continues to the present date, both with regard to the plaintiffs and the

16 Class.

17

83. Defendants' pattern and practice of racial discrimination has injured plaintiffs and

18 the Class in various ways. By failing to promote plaintiffs and other African-Americans,

19 subjecting them to a hostile work environment, and subjecting them to different terms and,

20 conditions of employment, Boeing has at the very least cost the plaintiffs and the Class

21 significant income and benefits to which they are entitled. But the injuries are not limited to

22 sums appearing on a pay stub. The racial discrimination has devalued the plaintiffs and the Class

23 by telling them they are not worth as much as Caucasians. This has caused immense harm,

24 including physical and emotional pain and suffering.

25

26

SECOND AMENDED CLASS ACTION COMPLAINT - 17 -
Case No. C98-761P
1669,100074 BSC.DOC

BOSTON Los ANGELES PHOENIX SEATTLE
1301 FIFTH AVENUE, SUITE 2900. SEAlTLE, WA 98101 TELEPHONE (206) 623-7292. FACSIMILE (206) 623-0594

Case 2:98-cv-00761-MJP Document 651 Filed 06/11/2004 Page 18 of 31

1 F. 2

Each Plaintiff Has Experienced Unlawful Treatment as a Result of Defendants' Corporate Policies

84. Each Plaintiff has experienced racially based discriminatory treatment. 3

85. Solomon Williams has worked for Boeing since 1978. He remained at Grade 8 4

for several years although he had more seniority and is more qualified than similarly situated 5

Caucasians who were promoted ahead of him. When Mr. Williams was finally given a 6

promotion to Grade 10, he was required to commute from Federal Way, Washington, to Everett,

7

Washington, although the Caucasian employees were promoted within the plant. Mr. Williams' 8

failure to receive promotions occurred in spite of the fact that Mr. Williams has a number of 9

certificates for training and a higher degree of knowledge than his supervisors. Boeing has failed 10

to promote Mr. Williams, and has subjected him to different conditions of employment than his 11

Caucasian coworkers, based on race. 12

86. William Bell has worked for Boeing for more than 15 years. He has applied for 13

various promotions but was not promoted. Similarly situated Caucasian coworkers were 14

promoted ahead of him, although all had less seniority. In addition, Mr. Bell has been subjected 15

to a hostile work environment, including receiving a picture of a lynching and has been subject 16

to different terms and conditions than his Caucasian coworkers, based on race. 17

87. Eleanor Staton has worked for Boeing for more than 18 years. She has applied 18

for at least 15 promotions but has been denied all promotions based upon race. Boeing has failed 19

to promote Ms. Staton, and has subjected her to different conditions of employment than her
20

Caucasian coworkers, based on race. 21

88. Shirley Miller has worked for Boeing for more than 12 years. She applied for
22

Grade 5, 6, and 7 positions, all of which she has been denied on the basis ofrace. On July 2, 23

1997 Ms. Miller was offered and accepted an Expediter position as a Grade 3, but when she

24

came back from vacation it was filled by a Caucasian coworker, who had less seniority than 25

Ms. Miller, and the same expediter position was upgraded to Grade 5. When Ms. Miller was 26

SECOND AMENDED CLASS ACTION COMPLAINT - 18 -
Case No. C98-761P
1669.10 0074 BSC.DOC

BOSTON Los ANGELES PHOENIX SEATTLE
1301 FIfTH AVENUE, SIDTE 2900. SEATILE, WA 98)01 TELEPHONE (206) 623-7292. FACSIMILE (206) 623-0594

Case 2:98-cv-00761-MJP Document 651 Filed 06/11/2004 Page 19 of 31

1 finally promoted to Grade 5 she was forced to change shifts and buildings, unlike other

2 Caucasian workers with substantially similar seniority and qualifications. Boeing has failed to

3 promote Ms. Miller, and has subjected her to different conditions of employment than her

4 Caucasian coworkers, based on race.

5

89. Deborah Woods has worked for Boeing for more than 20 years. Ms. Woods

6 submitted at least 10 ERT's (Employee Request for Transfer) in the late 1990's. When she was

7 finally offered a promotion it was with restrictions. Two Caucasians with less seniority and

8 experience were offered a similar promotion with no restrictions. Eventually, the two Caucasian

9 promoted employees were bumped back from grade 8 to grade 6. Boeing has failed to promote

10 Ms. Woods, and has subjected her to different terms and conditions of employment than her

11 Caucasian coworkers, based on race.

12

90. Wendy Kelly has worked for Boeing for more than 20 years. Although she has

13 been a temporary supervisor longer than anyone else in such a position, numerous similarly

14 situated but less qualified Caucasians (e.g., those with a lower score on supervisory placement

15 examinations) were promoted to permanent supervisor. Boeing has failed to promote Ms. Kelly,

16 and has subjected her to different conditions of employment than her Caucasian coworkers,

17 based on race.

18

91. Myron Knight worked for Boeing for 10 years with a 5-year layoff. Although he

19 applied for numerous promotions, he was never promoted, even though other similarly situated

20 Caucasian workers received promotions. Mr. Knight was also subjected to various racial slurs

21 by Caucasian supervisors, which he reported to Boeing management. Boeing, however, took no

22 remedial action against those supervisors. As a result of a physical assault on him by a

23 Caucasian supervisor, Mr. Knight was put on disability leave for a month. No action was taken

24 against the supervisor. Boeing has failed to promote Mr. Knight, and has subjected him to

25 different conditions of employment than his Caucasian coworkers, based on race.

26

SECOND AMENDED CLASS ACTION COMPLAINT - 19 -
Case No. C98-761P
1669.10 0074 BSC.DOC

BOSTON Los ANGELES PHOENIX SEATTLB
1301 FIITH AVENUE, SUITE 2900. SEATTLE, WA 98101 TELEPHONE (206) 623-7292. FACSIMILE (206) 623-0594

Case 2:98-cv-00761-MJP Document 651 Filed 06/11/2004 Page 20 of 31

1

92. Michael Eckles has worked for Boeing for more than 25 years. When Mr. Eckles

2 applied for promotion to a Grade 10 planning position, Caucasian workers who had been trained

3 by Mr. Eckles were given the positions, although they had less experience. Mr. Eckles applied

4 for two planning jobs in 1997, which he was denied. When a number of Caucasian employees

5 were selected from Mr. Eckles' department and neighboring departments for training to become

6 programmers, Mr. Eckles was excluded, although he was equally or more qualified than these

7 employees. Boeing has failed to promote Mr. Eckles, and has subjected him to different

8 conditions of employment than his Caucasian coworkers, based on race.

9

93. Clarence Thompson has worked for Boeing for more than 20 years. After

10 Mr. Thompson applied for promotion to three lead positions, similarly situated Caucasians with

11 less seniority were given these positions. Mr. Thompson was told by his supervisor that ifit

12 were up to the supervisor, Mr. Thompson would never be promoted. Boeing has failed to

13 promote Mr. Thompson, and has subjected him to different conditions of employment than his

14 Caucasian coworkers, based on race.

15

94. Doreen Ferguson has worked for Boeing for more than 20 years. When she

16 applied for a lead position in the maintenance stores, Boeing failed to promote her by simply

17 closing the job title and making a lateral transfer which prevented her from getting the upgrade.

18 The job was eventually offered to a less-qualified Caucasian worker with less seniority.

19 Ms. Ferguson has also been subjected to a racially hostile work environment by her supervisors.

20 Boeing has failed to promote Ms. Ferguson, and has subjected her to different conditions of

21 employment than her Caucasian coworkers, based on race.

22

95. Cynthia Evans has worked for Boeing for 19 years. Ms. Evans was not chosen to

23 fill a vacant, lead position because her Caucasian supervisor did not want Ms. Evans to be a

24 leader although she was the most senior person in her area. Instead, a less senior Caucasian

25 worker was treated as the de facto lead. When the lead position was finally filled, the job was

26 given to a less qualified Caucasian who was designated a Grade 5. It was then decided that the

SECOND AMENDED CLASS ACTION COMPLAINT - 20 -
Case No. C98-761P
1669.100074 BSC.DOC

BOSTON Los ANGELES PHOENIX SEATTLE
1301 FIFTH AVENUE, SUITE 2900. SEATTLE, WA 98101 TELEPHONE (206) 623·7292 • FACSIMILE (206) 623·0594

Case 2:98-cv-00761-MJP Document 651 Filed 06/11/2004 Page 21 of 31

1 worker's Grade 5 position must be removed because Boeing would then have to give Ms. Evans

2 a Grade 7. Two weeks later, the worker was offered a Grade 5 position in another area. After

3 Ms. Evans complained to Boeing, she was finally promoted to a Grade 7. Soon thereafter,

4 Ms. Evans' position was eliminated by Boeing on a pretextual basis. Ms. Evans has also been

5 subjected to racial slurs and she reported those to Boeing. No corrective action was taken.

6 Ms. Evans has been denied on the job training which she requested, although similarly situated

7 Caucasian workers were given such training. Boeing has failed to promote Ms. Evans, and has

8 subjected her to different conditions of employment than her Caucasian coworkers, based on

9 race.

10

96. Willie Wilson has worked for Boeing for more than 20 years. Mr. Wilson was

11 not promoted because, among other things, positions for which he was qualified were filled by

12 Caucasians before the jobs were posted. Mr. Wilson has applied for a supervisory position,

13 which was filled by a less qualified Caucasian. Boeing has failed to promote Mr. Wilson, and

14 has subjected him to different conditions of employment than his Caucasian coworkers, based on

15 race.

16

97. Mary Dean worked for Boeing for more than 15 years before retiring. Ms. Dean

17 applied for supervisory positions that were given to Caucasians with no prior supervisory skills

18 or experience and with no work experience in the areas in which they were promoted. Boeing

19 failed to promote Ms. Dean, and subjected her to different conditions of employment than her

20 Caucasian coworkers, based on race. Ms. Dean is not being proffered as a class representative.

21

98. Brian Todd has worked for Boeing for more than 15 years. He applied for

22 promotions in the late 1990's. On several occasions, a similarly situated Caucasian worker with

23 less seniority was promoted over Mr. Todd. Mr. Todd has also been subjected to racial

24 harassment, against which Boeing refused to take action. Boeing has failed to promote

25 Mr. Todd, and has subjected him to different conditions of employment than his Caucasian

26 coworkers, based on race.

SECOND AMENDED CLASS ACTION COMPLAINT - 21 -
Case No. C98-761P
1669.100074 BSC.DOC

BOSTON Los ANGELBS PHOBNIX SEATTLB
1301 FIFTH AVENUE, SUITE 2900. SEAlTLE, WA 98101 TELEPHONE (206) 623-7292. FACSIMILE (206) 623-0594

Case 2:98-cv-00761-MJP Document 651 Filed 06/11/2004 Page 22 of 31

1

99. Tim Jones has worked for Boeing for several years. Mr. Jones has applied for at

2 least seven promotions, but he has not been promoted, although similarly situated Caucasians

3 with less experience and seniority were promoted over him. In 1998, Mr. Jones was racially

4 harassed, including being called the epithet "nigger," from a Caucasian coworker. Although the

5 coworker was the instigator of the harassment, Mr. Jones received significantly harsher

6 discipline than did his harasser. Boeing has failed to promote Mr. Jones, and has subjected him

7 to different conditions of employment than his Caucasian coworkers, based on race.

8

100. David Brawley has worked for Boeing since 1979. He was laid off for six years

9 and returned to full time employment in 1988. He has been a grade 6 for the past ten years. He

10 has applied for grade 8 positions for several years. Caucasian employees with less experience

11 and seniority were promoted to a grade 8. Mr. Brawley has been denied training opportunities,

12 provided limited assignments, and excluded from promotional opportunities, despite his

13 qualifications as a jig builder. Mr. Brawley has a number of employee certificates. He has filed

14 internal and external EEO charges and as a result has been the subject of retaliation. He has been

15 subjected to different conditions of employment based on race.

16

101. Mara Ferrari has worked for Boeing since 1986. She was a manager (PC7) but

17 was reclassified to a lesser position after her maternity leave. Ms. Ferrari applied for several

18 promotions. She was slated for a promotion, but was later forced into a lesser position. The

19 position was given to a Caucasian female, who was the daughter of the Deputy Vice President of

20 BCAG. This person has less seniority and no experience in the organization. As to several other

21 positions for which Ferrari applied, they were filled by people who did not have to interview or

22 the job was not posted andlor no interview opportunity was given to Ms. Ferrari. Ms. Ferrari has

23 been denied all promotions based upon race. Boeing has failed to promote Ms. Ferrari, and has

24 subjected her to different conditions of employment and retaliation, based on race.

25

102. Rhonda Capps has worked for Boeing since 1976. Ms. Capps is a Senior

26 Engineer. She has applied for promotions that were given to Caucasians who had less

SECOND AMENDED CLASS ACTION COMPLAINT - 22 -
Case No. C98-761P
1669.10 0074 BSC.DOC

BOSTON Los ANGELES PHOENIX SEATTLE
1301 FIITH AVENUE, smTE 2900. SEATTLE, WA 98101 TELEPHONE (206) 623-7292. FACSIMILE (206) 623-0594

Case 2:98-cv-00761-MJP Document 651 Filed 06/11/2004 Page 23 of 31

1 qualifications or fewer years of experience. She has been subjected to different terms and

2 conditions of employment than her Caucasian. coworkers, based on race.

3

103. Charles Jones was employed by Boeing from 1988 to 1993. He was laid off in

4 1993. He was a Methods Analyst. While employed by Boeing, Mr. Jones sought and was

5 denied several promotions. Since 1993, he has applied for several vacancies with Boeing for

6 which he was fully qualified and wrongfully denied employment. His denial of rehire has been

7 ongoing and continuous; Caucasian employees with less experience and seniority were rehired.

8 Boeing has failed to reinstate Mr. Jones and has subjected him to different conditions of

9 employment, than his Caucasian coworkers, based on race.

10

104. David Roberts has worked for Boeing in Wichita since 1976. He applied for

11 several promotions from 1989 through 1998. He applied for Grade 8 positions. No less than

12 eight Caucasian employees with less experience and seniority were given Grade 8 positions.

13 Mr. Roberts has been subjected to racial slurs by supervisors, he has been retaliated against.

14 Boeing has failed to promote Mr. Roberts, and has subjected him to different conditions of

15 employment than his Caucasian coworkers, based on race.

16

105. Verlene Maholmes has worked for Boeing since 1978. She applied for several

17 promotions. Caucasians with less seniority and experience were given promotions. Boeing has

18 failed to promote Ms. Maholmes, and has subjected her to different conditions of employment

19 than her Caucasian coworkers, based on race.

20

106. Terry Fisher has worked for Boeing since 1978. She is the only African-

21 American welder in the Facilities Department. Over the course of twenty years and still

22 continuing, Ms. Fisher has been denied several promotions that were given to Caucasian

23 coworkers with less seniority and experience. She has been the victim of racial slurs. She has

24 been subjected to a hostile work environment. Ms. Fisher has been subjected to different

25 conditions of employment than her Caucasian coworkers, based on race.

26

SECOND AMENDED CLASS ACTION COMPLAINT - 23 -
Case No. C98-761P
1669.100074 BSC.DOC

BOSTON Los ANGELES PHOENIX SEATTLB
1301 FlfTII AVENUE, SUITE 2900. SEATILE, WA 98101 lELEPHONE (206) 623-7292. FACSIMILE (206) 623-0594

Case 2:98-cv-00761-MJP Document 651 Filed 06/11/2004 Page 24 of 31

1 1

107. Mark Anderson has worked for Boeing since 1986. He has been denied several

2 promQtions that were given to Caucasians with less experience and seniority. He has been

3 subjected to racial harassment and disciplined and suspended for having complained of racial

4 discrimination. Mr. Anderson has been retaliated against and subjected to different conditions of

5 employment than his Caucasian coworkers, based on race.

6

108. Carol Calender has worked for Boeing since 1995. She has applied for promotion

7 and been denied. She trained a Caucasian female who became a full-time employee and was

8 promoted three grades higher than Ms. Calender, even though Ms. Calender had more experience

9 and seniority. Boeing has failed to promote Ms. Calender, and has subjected her to different

10 conditions of employment than her Caucasian coworkers, based on race.

11

109. Michael Marion worked for Boeing from 1984 to 2000. He applied for

12 promotions but was kept in the F-15 Final Assembly Department, while Caucasians with less

13 experience and seniority were promoted. Mr. Marion was denied promotions and was subjected

14 to different conditions of employment based on race.

15

110. Beverly Trotter began working for Boeing in 1974. She was a computer operator

16 before being laid off. She applied for several promotions, but Caucasians with less experience

17 and seniority were given the promotions. She trained several Caucasian managers' sons who

18 were given promotions over her. She has been subjected to different conditions of employment

19 based on race.

20

111. Evalean Moore has worked for Boeing since 1968. Ms. Moore has applied for

21 several promotions. In August of 1998, she applied for a superintendent position for which she

22 has not received a response. Currently, she is a manufacturing engineer. Caucasian employees

23 with less experience and less seniority have been given the positions Ms. Moore applied for.

24 Several of those promoted Caucasian employees were trained by Ms. Moore, who has been

25 subjected to different conditions of employment based on race.

26

SSEECCOONNDD AAMMEENNDDEEDD CCLLAASSSS AACCTTIIOONN CCOOMMPPLLAAIINNTT -- 24 -
CCaassee NNoo.. CC9988--776611PP
11666699..110000007744BBSSCC..DDOOCC

BBOOSSTTOONN LLooss AANNGGEELLEESS PPHHOOEENNIIXX SSEEAATTTTLLEE
11330011 FFIIFFTTHHAAVVEENNUUEE. . SSUUIITTEE22990000..SSEEAATTTTLLEE, ,WWAA9988110011 ""rrnnLLEEPPHHOONNEE((220066))662233--77229922..FFAACCSSIIMMIILLEE((220066))662233--00559944

Case 2:98-cv-00761-MJP Document 651 Filed 06/11/2004 Page 25 of 31

1 1

111122.. TThheeooddoosshhiiaa KKnnaauullss hhaass wwoorrkkeedd ffoorr BBooeeiinngg ssiinnccee 11998855.. SShhee iiss aann aaccccoouunnttiinngg

22 aassssoocciiaattee.. SShhee hhaass aapppplliieedd ffoorr sseevveerraall pprroommoottiioonnss.. IInn mmoosstt ccaasseess,, sshhee wwaass nnoott eevveenn ggiivveenn aann

33 iinntteerrvviieeww.. CCaauuccaassiiaannss wwiitthh lleessss eexxppeerriieennccee aanndd sseenniioorriittyy aarree ggiivveenn tthhee pprroommoottiioonnss.. MMs. KKnnaauullss

4 has been subjected to different conditions of employment based on race.

5

113. Ronnie Mitchell has worked for Boeing in Oklahoma since 1984. He is a

6 machinist. He has applied for at least two promotions. A Caucasian who had severe disciplinary

7 problems was given the position. Mitchell had at least as much experience and seniority. This

8 Caucasian employee has now become Mr. Mitchell's supervisor. This same employee has

9 physically assaulted Mitchell and another African American employee. Mitchell has been

10 subjected to different conditions of employment based on race.

11

114. Kevin Biglow has worked for Boeing since 1989. He is a System Configuration

12 Specialist. He has applied for promotions and Caucasians with less experience and seniority

13 were given the positions. He has been subjected to different conditions of employment based on

14 race.

15

115. Ralph Wilson has worked for Boeing since 1980. He is a toolmaker who has also

16 been on assignment in Seattle. Mr. Wilson has applied for promotions. Caucasians with less

17 experience and seniority have been given the promotions. Wilson has been subjected to different

18 conditions of employment based on race.

19

FIRST CAUSE OF ACTION

20

VIOLATION OF 42 U.S.C. § 1981

21

116. Plaintiffs incorporate the preceding paragraphs as if fully set forth herein.

22

117. This Count is brought on behalf of Plaintiffs and all members of the Class.

23

118. Defendants have denied Plaintiffs and all members of the Class the same right to

24 make and enforce contracts as enjoyed by white citizens employed by Defendants, including

25 rights involving the making, performance, modification, and termination of contracts with

26 Defendants aand thee eennjoyment oof aall benefitss,, pprriivviilleeggeess,, tteerrmmss,, aand ccoonnddiittiioonnss oofftthhaatt

SSEECCOONNDD AAMMEENNDDEEDD CCLLAASSSS AACCTTIIOONN CCOOMMPPLLAAIINNTT -- 2255 --
CCaassee NNoo.. CC9988--776611PP
11666699..110000007744BBSSCC..DDOOCC

BBOOSSTTOONN LLooss AANNGGEELLEESS PPHHOOEENNIIXX SSEEAATTTTLLEE
11330011FFIFIFTTHHAAVVEENNUUEE,, SSUUIITTEE22990000..SSEEAATTTTLLEE,,WWAA9988110011 TTEELLEEPPHHOONNEE((220066))662233··77229922 ••FFAACCSSIIMMIILLEE((220066))662233--00559944

Case 2:98-cv-00761-MJP Document 651 Filed 06/11/2004 Page 26 of 31

1 relationship, in violation of the Civil Rights Act of 1866,42 U.S.C. § 1981, as amended. The

2 Class members have suffered both disparate impact and disparate treatment as a result of

3 Defendants' wrongful conduct.

4

119. In the employment practices described above, Defendants intentionally engaged

5 in discriminatory practices with malice or with reckless indifference to the federally protected

6 rights of Plaintiffs and the members of the Class, entitling Plaintiffs and the members of the

7 Class to punitive damages.

8

120. By reason of the continuous nature of Defendants' discriminatory conduct,

9 persistent throughout the employment of Plaintiffs and the Class members, Plaintiffs and the

10 members of the Class are entitled to application of the continuing violations doctrine to all

11 violations alleged herein.

12

121. As a result of Defendants' conduct alleged in this complaint, Plaintiffs and the

13 members of the Class have suffered and continue to suffer harm, including but not limited to lost

14 earnings, lost benefits, and other financial loss, as well as humiliation, embarrassment, emotional

15 and physical distress, and mental anguish.

16

122. By reason of Defendants' discrimination, Plaintiffs and members of the Class are

17 entitled to all legal and equitable remedies available for violations of section 1981, as amended,

18 including an award of punitive damages.

19

123. Attorneys' fees should be awarded under 42 U.S.c. § 1988.

20

SECOND CAUSE OF ACTION

21

RACIAL DISCRIMINATION IN VIOLATION OF TITLE VII

22

OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED

23

124. Plaintiffs incorporate the preceding paragraphs as if fully set forth herein.

24

125. This Count is brought on behalf of Plaintiffs and all members of the Class.

25

126. Defendants have discriminated against Plaintiffs and members ofthe Class in

26 violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., as amended by the Civil

SECOND AMENDED CLASS ACTION COMPLAINT - 26 -
Case No. C98-761P
1669.100074 Bse.Doe

BOSTON Los ANGBLBS PHOBNIX SBATTLE
1301 FIFTH AVENUE, SUITE 2900. SEATTLE, WA 98101 TELEPHONE (206) 623-7292. FACSIMILE (206) 623-0594

Case 2:98-cv-00761-MJP Document 651 Filed 06/11/2004 Page 27 of 31

1 Rights Act of 1991, by subjecting them to different treatment on the basis of their race. The

2 Class members have suffered both disparate impact and disparate treatment as a result of

3 Defendant's wrongful conduct.

4

127. In the employment practices described above, Defendants intentionally engaged

5 in discriminatory practices with malice or with reckless indifference to the federally protected

6 rights of Plaintiffs and the members of the Class, entitling Plaintiffs and the members of the

7 Class to punitive damages.

8

128. By reason of the continuous nature of Defendants' discriminatory conduct,

9 persistent throughout the employment of Plaintiffs and the Class members, Plaintiffs and the

10 members of the Class are entitled to application of the continuing violations doctrine to all

11 violations alleged herein.

12

129. As a result of Defendants' conduct alleged in this complaint, Plaintiffs and the

13 members of the Class have suffered and continue to suffer harm, including but not limited to lost

14 earnings, lost benefits, and other financial loss, as well as humiliation, embarrassment, emotional

15 and physical distress, and mental anguish.

16

130. By reason of Defendants' discrimination, Plaintiffs and members of the Class are

17 entitled to all legal and equitable remedies available for violations of 42 U.S.C. § 2000e et seq,

18 as amended by the Civil Rights Act of 1991, including an award of punitive damages.

19

131. Attorneys' fees should be awarded under 42 U.S.C. § 2000e-5(k).

20

TIDRD CAUSE OF ACTION

21

NEGLIGENT MISREPRESENTATIONIFRAUDIDETRIMENTAL

RELIANCEIPROMISSORY ESTOPPEL 22

132. Plaintiffs incorporate the preceding paragraphs as if fully set forth herein. 23

133. This Count is brought on behalf of Plaintiffs only, not members of the Class. 24

134. In their affirmative action plans, equal employment policies, and other materials, 25

Defendants have made oral and written representations of fact to Plaintiffs regarding their 26

SECOND AMENDED CLASS ACTION COMPLAINT - 27 -
Case No. C98-761P
1669.10 0074 BSC.DOC

BOSTON Los ANGELES PHOENIX SEATTLE
1301 FIITH AVENUE, SUITE 2900. SEATTLE, WA 98101 TELEPHONE (206) 623-7292 • FACSIMILE (206) 623-0594

Case 2:98-cv-00761-MJP Document 651 Filed 06/11/2004 Page 28 of 31

11 ttrreeaattmmeenntt ooffeemmppllooyyeeeess,, iinncclluuddiinngg bbuutt nnoott lliimmiitteedd ttoo aassssuurraanncceess tthhaatt AAffrriiccaann--AAmmeerriiccaannss wwoouulldd

22 aanndd wwiillll hhaavvee tthhee ssaammee eemmppllooyymmeenntt ooppppoorrttuunniittiieess aass ootthheerrss..

3 3

113355.. TThheessee rreepprreesseennttaattiioonnss wweerree mmaatteerriiaallllyy ffaalse, aanndd wweerree kknnoowwnn oorr sshhoouulldd hhaavvee bbeeeenn

4 known by Defendants to be false.

5

136. Defendants made these misrepresentations intending to induce reliance by

6 Plaintiffs.

7

137. The Plaintiffs reasonably relied on these misrepresentations, and altered their

8 conduct in reliance on those misrepresentations.

9

138. Defendants' conduct has directly and proximately caused Plaintiffs to suffer

10 damages including, but not limited to, lost past and future earnings, lost benefits, emotional and

11 physical distress, and pain and suffering, in amounts to be proven at trial.

12

FOURTH CAUSE OF ACTION

13

BREACH OF CONTRACT

14

139. Plaintiffs incorporate the preceding paragraphs as if fully set forth herein.

15

140. This Count is brought on behalf of Plaintiffs only, not members of the Class.

16

141. Defendants have made oral and written representations to Plaintiffs regarding

17 their treatment of employees, including but not limited to assurances that African-Americans

18 would and will have the same employment opportunities as others.

19

142. Defendants' representations constitute binding terms of the contracts of

20 employment with Plaintiffs.

21

143. Defendants have breached their employment contracts with Plaintiffs.

22

144. Defendants' breach of contract has directly and proximately caused Plaintiffs to

23 suffer damages including, but not limited to, lost past and future earnings, lost benefits and

24 consequential damages, in amounts to be proven at trial.

25

26

SSEECCOONNDD AAMMEENNDDEEDD CCLLAASSSS AACCTTIIOONN CCOOMMPPLLAAIINNTT -- 2288 --
CCaassee NNoo.. CC9988--776611PP
11666699..110000007744aaSSCC..DDOOCC

BBOOSSTTOONN LLooss AANNGGEELLEESS PPHHOOEENNIIXX SSEEAATTTTLLEE
11330011FFIIffTTHHAAVVEENNUUEE,, SSUUIITTEE22990000..SSEEAATTTTLLEE,,WWAA9988110011 TTEELLEEPPHHOONNEE((220066))662233--77229922..FFAACCSSIIMMIILLEE((220066))662233--00SS9944

Case 2:98-cv-00761-MJP Document 651 Filed 06/11/2004 Page 29 of 31

1

FIFTH CAUSE OF ACTION

2

BREACH OF CONTRACT

3

145. Plaintiffs incorporate the preceding paragraphs as if fully set forth herein.

4

146. This Count is brought on behalf of Plaintiffs only, not members of the Class.

5

147. Defendants have entered into numerous contracts with the United States

6 government.

7

148. Defendants have materially breached their government contracts in discriminating

8 against the Plaintiffs and members of the Class.

9

149. Plaintiffs are intended beneficiaries of the government contracts with Defendants.

10

150. Defendants' breach of contract has directly and proximately caused Plaintiffs to

11 suffer damages including, but not limited to, lost past and future earnings, lost benefits and

12 consequential damages.

13

SIXTH CAUSE OF ACTION

14

BREACH OF CONTRACT

15

151. Plaintiffs incorporate the preceding paragraphs as if fully set forth herein.

16

152. This Count is brought on behalf of Plaintiffs only, not members of the Class.

17

153. Defendants' relationships with certain Plaintiffs are controlled by Collective

18 Bargaining Agreements ("CBAs"). These CBAs, or some of them, prohibit discrimination on

19 the basis of race and national origin.

20

154. Defendants have breached the CBAs with their discriminatory practices.

21 Defendants' breach of the CBAs has directly and proximately caused some Plaintiffs to suffer

22 damages including, but not limited to, lost past and future earnings, lost benefits, emotional and

23 physical distress, and pain and suffering, in amounts to be proven at trial.

24

VI. PRAYER FOR RELIEF

25 WHEREFORE, Plaintiffs, on their own behalf and on behalf ofthe Class, pray for relief

26 as follows:

SECOND AMENDED CLASS ACTION COMPLAINT - 29 -
Case No. C98-761P

1669.10 0074 BSC.DOC

BOSTON Los ANGELES PHOENIX SEATTLE
1301 FIITH AVENUE, SUITE 2900. SEATILE, WA 98101 TELEPHONE (206) 623-7292. FACSIMILE (206) 623-0594

Case 2:98-cv-00761-MJP Document 651 Filed 06/11/2004 Page 30 of 31

1

A. For an order declaring that the practices and policies of Defendants set forth in

2 this complaint violate the rights of Plaintiffs and members of the Class under title VII of the .

3 Civil Rights Act of 1964, as amended, and 42 U.S.C. § 1981, as amended;

4

B. For injunctive and equitable relief restraining Defendants from illegally

5 discriminating against Plaintiffs and the Class, providing Plaintiffs and the Class the benefits that

6 they would have received but for the illegal discrimination of the Defendants, and ordering

7 Defendants to restrain from retaliation against Plaintiffs, the members ofthe Class, or any other

8 person for participating in or supporting this litigation in any manner;

9

C. For judgment against the Defendants and in favor of Plaintiffs and the members

10 of the Class for all equitable monetary relief available under the law, including but not limited to

11 back pay and front pay in amounts to be determined at trial;

12

D. For judgment against the Defendants and in favor of Plaintiffs and the members

13 of the Class for all compensatory and punitive damages available under the law, in amounts to be

14 determined at trial;

15

E. For an award of attorneys' fees and costs to the extent permitted by law;

16

F. For pre-judgment and post-judgment interest;

17

G. For such other and further relief as the Court deems just and equitable; and

18

H. For an order retaining jurisdiction for five years or until such earlier time as the

19 Court is satisfied that Defendants have remedied the practices and policies set forth in this

20 complaint and determined to be in full compliance with the law.

21

22

23

24

25

26

SECOND AMENDED CLASS ACTION COMPLAINT - 30 -
Case No. C98-761P
1669.10 0074 SSC.DOC

BOSTON Los ANGELES PHOENIX SEATTLE
1301 FIITH AVENUE, SUITE 2900. SEATTLE, WA 98101 TELEPHONE (206) 623·7292 • FACSIMILE (206) 623·0594

Case 2:98-cv-00761-MJP Document 651 Filed 06/11/2004 Page 31 of 31

1

DATED: May 28,2004

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

sf Steve W. Berman Steve W. Berman, WSBA No. 12536 Craig R. Spiegel, WSBA No. 31955
HAGENS BERMAN LLP 1301 Fifth Avenue, Suite 2900 Seattle, WA 98101 Telephone: (206) 623-7292 Fax: (206) 623-0594 Email: steve@hagens-berman.com
craig@hagens-berman.com
Lead Counsel for Plaintiffs and the Class
Alan B. Epstein SPECTOR GADON & ROSEN 1635 Market Street, 7th Floor Philadelphia, PA 19103 Telephone: (215) 241-8888 Fax: (215) 241-8844 Email: aepstein@lawsgr.com
Counsel for individual plaintiffs Kevin Biglow and Beverly Trotter
Harish Bharti LAW OFFICES OF HARISH BHARTI & ASSOCIATES, LLC 5516 17th Ave. Northwest Seattle, WA 98107 Telephone: (206) 706-6400 Facsimile: (206) 706-6401 Email: bharti@lawyer.com
Co-Counsel for individual plaintiff Eleanor Staton
Mary Ruth Mann LAW OFFICES OF MARY R. MANN & ASSOCIATES Historic Broderick Bldg. 615 2nd Ave., Suite 760 Seattle, WA 98104 Telephone: (206) 587-2700 Facsimile: (206) 587-0262 Email: mrmann@eskimo.com
Co-Counsel for individual plaintiff Eleanor Staton

SECOND AMENDED CLASS ACTION COMPLAINT - 31 -
Case No. C98-761P
1669.100074 BSC.DOC

BOSTON Los ANGELES PHOENIX SEATTLE
1301 FIFTH AVENUE, SUITE 2900. StATILE, WA 98101 TELEPHONE (206) 623-1292. FACSIMILE (206) 623-<>594

 
 United States District Court
WESTERN DISTRICT OF WASHINGTON

SOLOMON WILLIAMS, et aI., Plaintiffs,
v.
THE BOEING COMPANY, et aI., Defendants.

JUDGMENT IN A CIVIL CASE
CASE NO. C98-761 P C98-430P

The claims of the named Plaintiffs in these consolidated cases have been fully and finally resolved. IT IS ORDERED AND ADJUDGED as follows:
(I) The claims ofKevin Biglow. David Bmwley, Rhonda Capps, Michael Eckles, DoreenFerguson, Mam Ferrari, Terry Fisher, Charles Jones, David Roberts, Solomon Williams, and Debomh Woods are and have been DISMISSED WITH PREJ UDICE and final judgment is entered in favor of Defendants as to each of them.
(2) The claims of Donald Ballard, William Bell, Leo Briggs, Mary Byrd, Carol Calender, Ellis Cameron, Mary Carter, Armstor Clayton, Kwesi Damani, Katherine Dator, Inez Davis, Cynthia Evans, Joe Gibson, Carolyn Guest, Geraldine Guyton, Ebony Harding, Regina Harris, DebraHaynes, Della Jameson, Earl Johnson, Sandra Jones, Tim Jones, Wendy Kelly, Shirley (Miller) King, Theodoshia Knauls, Myron Knight, L)'lID Leufroy, Earlie Lyons, Verlene Maholmes, Michael Marion, Fred McAfee, Ronnie Mitchell, Evalean Moore, Fred Odom, Everett Peterson, Larry Potts, Tony Prescott, Fawn Proctor, Robert Riggs, Jackie Robinson, Diane Sharpe, Virginia Smith, Eleanor Staton, Clarence Thompson, Brian Todd, Beverly Trotter, Robert Vaughn, Eric Waters, Ralph Wilson, and Willie Wilson are and have been DISMISSED WITHOUT PREJUDICE.
(3) The claims of Mary Dean have been severed trom case number C98-761P and transferred to the District of Kansas. (Dk!. Nos. 824, 866).

Dated:

l , May

2007

BRUCE RIFKIN, Clerk of Court

111111111111111111111111111111111111111111111 1111111111111111111111111111111 1111
98_CY_00761-JGM

By, Deputy Clerk

 
 Case 2:98-cv-00761-MJP Document 793 Filed 01/10/2005 Page 1 of 11

1

2

3

4

5

6

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

7

AT SEATTLE

8 SOLOMON WILLIAMS, et al.,

9

Plaintiffs,

10

v.

11 THE BOEING COMPANY, et al.

12

Defendants.

13

No. C98-761P
ORDER GRANTING DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

14 This matter comes before the Court on Defendants’ Motion for Partial Summary Judgment.
15 (Dkt. No. 772). Having reviewed the pleadings and supporting materials, the Court GRANTS
16 Defendants’ motion and DISMISSES Plaintiffs’ 42 U.S.C. § 1981 claim of discrimination in
17 compensation for salaried employees based on acts or conduct prior to June 11, 2000. Plaintiffs
18 Second Amended Complaint is the first time they allege a claim for racial discrimination in
19 compensation for salaried employees. As such, the four-year statute of limitations for § 1981 claims
20 applies and any claims relating to conduct or actions prior to June 11, 2000 (four years before the
21 Second Amended Complaint was filed) are time-barred. Contrary to Plaintiffs’ assertion, Boeing is
22 not judicially estopped from seeking summary judgment on this issue by virtue of the Consent Decree.
23 The Consent Decree was directed at rectifying discrimination in promotions, retaliation, and a hostile
24 work environment; it was not directed at discrimination in compensation of salaried employees.
25

ORDER - 1

Case 2:98-cv-00761-MJP Document 793 Filed 01/10/2005 Page 2 of 11

1 Likewise, Plaintiffs’ compensation claim does not relate back under Fed. R. Civ. P. 15(c) to Plaintiffs’

2 original or First Amended Complaint. Plaintiffs did not allege facts in those complaints that Boeing

3 discriminated in terms of compensation. The compensation claim does not arise out of the same

4 operative facts as the promotions, retaliation, and hostile work environment claims that Plaintiffs

5 alleged in their original and First Amended Complaints.

6

BACKGROUND

7

Plaintiffs filed a Complaint against Boeing on June 4, 1998, alleging racial discrimination in

8 promotions, training, retaliation, and a hostile work environment. (Dkt. No. 1) They filed a First

9 Amended Complaint on November 4, 1998, alleging these same forms of racial discrimination (the

10 amended complaint added additional named representatives and Defendants). (Dkt. No. 93).

11

In August, 1999, Plaintiffs served Boeing a discovery request with interrogatories and requests

12 for production of documents. Boeing responded in September, 1999, asserting general and specific

13 objections to many of the requests for production.

14

Plaintiffs did not file a motion to compel. Any emerging discovery disputes were cut short

15 because later in September, 1999, the parties entered a Consent Decree. Judge Coughenour approved

16 the Consent Decree. In 2003, the Ninth Circuit reversed on fairness grounds and remanded. Stanton

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

18

On June 11, 2004, Plaintiffs filed a Second Amended Complaint, alleging racial discrimination

19 in compensation for salaried employees, overtime for hourly employees, as well as promotions,

20 retaliation, and a hostile work environment. (Dkt. No. 651).

21

Boeing moves for partial summary judgment, seeking dismissal of Plaintiffs’ 42 U.S.C. § 1981

22 claim of discrimination in compensation for salaried employees based on acts or conduct prior to June

23 11, 2000. Boeing contends that this claim for acts before June 11, 2000 is barred by the four-year

24 statute of limitations and that this claim does not relate back to Plaintiffs’ original or First Amended

25 Complaints.

ORDER - 2

Case 2:98-cv-00761-MJP Document 793 Filed 01/10/2005 Page 3 of 11

1

ANALYSIS

2

Summary judgment is not warranted if a material issue of fact exists for trial. Warren v. City

3 of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995), cert. denied, 516 U.S. 1171 (1996). The underlying

4 facts are viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus.

5 Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “Summary judgment will not lie if . . . the

6 evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v.

7 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party moving for summary judgment has the

8 burden to show initially the absence of a genuine issue concerning any material fact. Adickes v. S.H.

9 Kress & Co., 398 U.S. 144, 159 (1970). However, once the moving party has met its initial burden,

10 the burden shifts to the nonmoving party to establish the existence of an issue of fact regarding an

11 element essential to that party’s case, and on which that party will bear the burden of proof at trial.

12 Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). To discharge this burden, the nonmoving

13 party cannot rely on its pleadings, but instead must have evidence showing that there is a genuine issue

14 for trial. Id. at 324. Additionally, “at the summary judgment stage the judge’s function is not . . . to

15 weigh the evidence . . . but to determine whether there is a genuine issue for trial.” Liberty Lobby,

16 477 U.S. at 249.

17

The statute of limitations for actions under 42 U.S.C. § 1981 is four years. 28 U.S.C. §

18 1658(a). Plaintiffs’ Second Amended Complaint alleging racial discrimination in compensation of

19 salaried employees was filed June 11, 2004. Therefore, Plaintiffs’ salary compensation claim can

20 extend to events only as far back as June 11, 2000. Plaintiffs argue that salary compensation claim can

21 include actions or conduct going as far back as June, 1994 because: 1) Boeing is judicially estopped

22 from arguing that Plaintiffs failed to allege the salary compensation claim earlier, and 2) Plaintiffs’

23 salary compensation claim relates back under Rule 15(c) to their original complaint filed in 1998.

24 Neither argument is persuasive.

25 I. Judicial Estoppel

ORDER - 3

Case 2:98-cv-00761-MJP Document 793 Filed 01/10/2005 Page 4 of 11

1

Plaintiffs assert that Boeing should be judicially estopped from arguing that Plaintiffs did not

2 allege salary discrimination in 1998 on the grounds that Boeing acknowledged in the Consent Decree

3 that Plaintiffs had alleged salary discrimination and then sought and obtained (temporarily) court

4 approval of that Consent Decree. Boeing counters that it consistently took the position until Plaintiffs

5 filed their Second Amended Complaint that Plaintiffs’ claims were limited to the promotion,

6 retaliation, and hostile work environment claim, and that the Consent Decree merely contained a

7 standard broad release of all possible and related claims of discrimination, but that nothing in the

8 injunctive or monetary relief portions of the Consent Decree addressed any salary discrimination

9 claims specifically.

10

A party is judicially estopped from asserting a certain position if that party previously and

11 successfully asserted the contrary position. This is especially true when doing so would prejudice the

12 opposing party. New Hampshire v. Maine, 532 U.S. 742, 749 (2001). The purpose of the doctrine is

13 to “protect the integrity of the judicial process.” Id. (quotation and citation omitted). Application of

14 the doctrine is appropriate when: 1) the party’s current position is “clearly inconsistent” with its earlier

15 position, 2) the party was successful in persuading a court to accept its earlier position, and 3) the

16 party would obtain an unfair advantage or impose an unfair detriment on the opposing party if not

17 estopped. Id. at 750-51. The court may consider additional facts specific to the factual context at

18 hand.

19

The “Litigation Background” section of the Consent Decree stated that:

20

The Plaintiffs in the Alleged Class Action contend that Boeing has engaged in a policy

or pattern or practice of unlawful Discrimination . . . in respect to promotions within

21

the hourly ranks, promotions from hourly positions into managerial and other salaried

positions, promotions among salaried positions, training, education, skills and career

22

development, performance appraisals, transfers, compensation, discharge, discipline and

other terms, benefits and conditions of employment.

23

(Berman Decl., Ex. 7 at 6). Plaintiffs point to this language and the fact that the district court

24

approved the Consent Decree and argue that Boeing successfully represented to the Court that

25

ORDER - 4

Case 2:98-cv-00761-MJP Document 793 Filed 01/10/2005 Page 5 of 11

1 Plaintiffs had alleged the salary compensation claim, which is “clearly inconsistent” with the position

2 Boeing is asserting in the instant motion. Boeing counters that it never attempted to persuade the

3 Court that Plaintiffs had alleged a salary compensation claim and that the reference to it in the

4 Consent Decree is “merely . . . a laundry list of possible claims.” (Defs’ Reply at 6).

5

Despite the fact that the above-quoted Consent Decree language refers to a compensation

6 claim alleged by Plaintiffs, the Court is not persuaded that this language alone judicially estops

7 Boeing. The Consent Decree released Boeing from any and all claims, “known or unknown” by class

8 members “which arise out of or are related to . . . any conduct . . . allegedly constituting Race

9 Discrimination under Title VII . . . .” (Berman Decl., Ex. 7 at 12). As such, the Consent Decree

10 included a broad release of all possible racial discrimination claims, whether pled in the complaint or

11 not. It is standard practice for a party to attempt to protect itself from all possible related claims both

12 pled and not pled as a condition for settling. More telling in this instance is the fact that the injunctive

13 and equitable relief portion of the Consent Decree specifically referred to training and information

14 regarding promotions and prevention of racial harassment, but made no reference to compensation.

15 (Id. at 16-25). Likewise, the monetary relief portion set out a “point system” for allocating funds,

16 which specifically referred to promotions, but made no reference to compensation. (Id. at 25-30).

17 The questionnaire on the claim form, which class members were to fill out to receive a portion of the

18 monetary damages, asked about the class member’s experiences regarding promotions, racial

19 harassment, and retaliation, but did not ask about compensation. (Id, Ex. B to Consent Decree).

20

In light of the absence of any relief regarding compensation, Boeing’s current position that

21 Plaintiffs never asserted a salary compensation claim until they filed their Second Amended Complaint

22 is not “clearly inconsistent” with the position Boeing took in the Consent Decree. In sum, nothing in

23 the Consent Decree judicially estops Boeing from obtaining partial summary judgment on the salary

24 compensation claim.

25 II. Relation Back Under Rule 15(c)

ORDER - 5

Case 2:98-cv-00761-MJP Document 793 Filed 01/10/2005 Page 6 of 11

1

Rule 15(c) provides that an amendment to a pleading relates back to the date of the original

2 pleading when “the claim . . . asserted in the amended pleading arose out of the conduct, transaction,

3 or occurrence set forth or attempted to be set forth in the original pleading.” Rule 15(c)(2). In

4 determining whether a new claim relates back under this provision, the court should consider

5 “whether the original and amended pleadings share a common core of operative facts so that the

6 adverse party has fair notice of the transaction, occurrence, or conduct called into question.” Martell

7 v. Trilogy Limited, 872 F.2d 322, 325 (9th Cir. 1989). One indication that the new claim that arises

8 out of the same operative facts is if the plaintiff will rely on the same evidence to prove the new claim

9 that will be used to prove the originally pled claim. Percy v. San Francisco Gen. Hosp., 841 F.2d

10 975, 978 (9th Cir. 1988). Because Rule 15(c) is “intimately connected with the policy of the statute

11 of limitations,” the rule requires that the defendant have notice of the particular set of facts on which

12 the new claim is based. Id. at 979 (citing the Rule 15 Advisory Committee Notes to the 1966

13 Amendment). In sum, the relevant factors in determining relation back are: 1) whether the new claim

14 is based on the same operative facts as the claims in the original complaint, 2) whether the new claim

15 will be proven by the same evidence as the original claims, and 3) whether the defendant had notice of

16 the facts that form the basis of the new claim.

17

A. Same Operative Facts and Same Evidence to Prove New Claim

18

The facts supporting Plaintiffs’ claim for discrimination in salary compensation will likely

19 focus on a statistical comparison of African-American employees’ salaries and their white

20 counterparts’ salaries, as well as the criteria used in setting salaries. In contrast, the facts supporting

21 Plaintiffs’ claim for discrimination in promotions will likely focus on a statistical comparison of the

22 number of promotions that African-Americans applied for and received (or were qualified for but did

23 not receive) and those of their white counterparts, as well as the selection criteria for awarding

24

25

ORDER - 6

Case 2:98-cv-00761-MJP Document 793 Filed 01/10/2005 Page 7 of 11

1 promotions. Not only are the core operative facts different, but the evidence that Plaintiffs will rely

2 on to prove the salary compensation claim will be different.1

3

Additionally, Plaintiffs’ Second Amended Complaint contains factual assertions to support the

4 salary compensation claim that were not asserted in the original or First Amended Complaints.

5 Neither the original Complaint nor the First Amended Complaint ever specifically alleged

6 discrimination in compensation for salaried employees or any facts showing discrimination in

7 compensation. The mere fact that the named representatives included salaried employees does not

8 establish that they alleged discrimination in compensation. The factual allegations relating to these

9 individual salaried employees specifically refer to discrimination in promotions and a hostile work

10 environment, but do not refer to discrimination in compensation. (Compl., ¶¶ 53, 59, 61; First Am.

11 Compl., ¶¶ 75, 80, 82, 87-88, 94, 96-98). The general factual allegations in both complaints

12 specifically refer to discrimination in promotions, training necessary to compete for promotions,

13 retaliation, and a hostile work environment. (Compl., ¶¶ 39-42, 47; First Am. Compl., ¶¶ 58-61, 66,

14 68). The only explicit reference to compensation or pay is in one paragraph: “Senior management at

15 Boeing/defendant employers is well aware that there is a company-wide pattern and practice of racial

16 discrimination in promotion, pay and other areas.” (Compl., ¶ 43; First Am. Compl., ¶ 62). In

17 contrast, the Second Amended Complaint alleges many facts that specifically and explicitly relate to

18 the salary compensation claim. (Second Am. Compl., ¶¶ 58, 60, 63-64, 71-72, 76, 78-79, 81).

19

The comparison of the factual assertions in the original and First Amended Complaints with

20 the Second Amended Complaints highlights that fact that the compensation claim does not arise out

21 of the same operative facts as the promotions, training, retaliation, or hostile work environment

22 claims.

23

24

1 This is true even if other evidence that Plaintiffs will rely on, such as Boeing’s internal

studies regarding adverse impacts on minority employees regarding compensation, promotions, and 25 other criteria, is the same for both the salary compensation claim and the promotions claim.

ORDER - 7

Case 2:98-cv-00761-MJP Document 793 Filed 01/10/2005 Page 8 of 11

1

B. Notice of the Facts That Are the Basis of the Salary Compensation Claim

2

As highlighted above, the numerous factual allegations in the original and First Amended

3 Complaints are squarely directed at discrimination in promotions, training, retaliation, and a hostile

4 work environment. This, plus the absence of any factual assertions relating to compensation,

5 especially in the paragraphs detailing the discrimination suffered by the salaried named representatives

6 belies any notion that one passing general reference to discrimination in pay is sufficient to have put

7 Boeing on notice that facts relating to compensation of salaried employees would be at issue. Any

8 alleged discrimination in compensation of salaried employees cannot be said to have been brought to

9 Boeing’s attention by the allegations in the original or First Amended Complaints.

10

Plaintiffs point to more vague language in the original and First Amended Complaints to argue

11 that their allegations were broad enough to have encompassed the salary compensation discrimination

12 claim, and that Boeing was therefore on notice that salary compensation would be at issue. The

13 original and First Amended Complaints both repeatedly referred to Boeing having subjected African-

14 Americans to “different terms and conditions of employment” or “different treatment on the basis of

15 their race.” (Compl., ¶¶ 27, 47, 66, 71; First Am. Compl., ¶¶ 46, 49, 68).2 However, in describing

16 the “Nature of the Case” and the “Class Allegations” in the original and First Amended Complaints,

17 Plaintiffs specifically referred to racial discrimination in promotions, retaliation, and a hostile work

18 environment, but did not refer anywhere to pay or compensation. (Compl., ¶¶ 2-4, 27, 30; First Am.

19 Compl., ¶¶ 2-4, 46, 49). The only exception is a reference in the “Nature of the Case” section in the

20 First Amended Complaint, which states that “plaintiffs are qualified persons who have been denied the

21 opportunity for promotion and pay increases, who have been subjected to a hostile work

22 environment, and/or have been retaliated against . . . .” (First Am. Compl., ¶ 2). In this context, it is

23

24

2 Similarly, the factual assertions for the individual representative salaried employees allege

that Boeing subjected them to “different conditions of employment.” (Compl., ¶¶ 53, 59, 61; First 25 Am. Compl. ¶¶ 75, 80, 82, 87-88, 94, 96-98)

ORDER - 8

Case 2:98-cv-00761-MJP Document 793 Filed 01/10/2005 Page 9 of 11

1 more reasonable to interpret “pay increases” as increases that would have accompanied promotions,

2 not as equality of pay with white employees.

3

Given the specificity of the promotions, retaliation, and hostile work environment claims

4 throughout the complaints, this single ambiguous reference together with repeated references to

5 discrimination in “terms and conditions of employment” cannot be said to have put Boeing on notice

6 that Plaintiffs were also alleging discrimination in salary compensation. See Barcume v. City of Flint,

7 819 F. Supp. 631, 637-38 (E.D. Mich. 1993) (court held that new claims of sexual harassment and

8 disparate treatment did not relate back to claims of discrimination in hiring, promotions, and other

9 “terms and conditions of employment” because the new claims were based on different facts and there

10 was no notice to defendant that the “terms and conditions of employment” claim was for any violation

11 other than those explicitly alleged in the original complaint). Plaintiffs have not pointed to any case

12 where such language was sufficient to permit a new claim of discrimination to relate back. To hold

13 otherwise would be to imply that alleging discrimination in the “terms and conditions” of employment

14 is sufficient to put the employer on notice that every aspect of employment relating to the plaintiffs is

15 potentially at issue; it would relieve the plaintiffs of having to specify at the outset what type of

16 discrimination they allegedly suffered. Further, it would permit relation back of all possible

17 employment claims and would thereby undermine the policy interests that statute of limitations further

18 and upon which the relation back doctrine rests.

19

Plaintiffs assert that their initial discovery requests (before the parties entered the Consent

20 Decree) provided Boeing with notice that they intended to challenge Boeing’s practices with respect

21 to compensation for salaried employees. Plaintiffs requested production of documents relating to the

22 number of salaried employees, describing how salaries were determined, and any studies or reports

23 analyzing compensation of African-Americans (in addition to studies or reports analyzing promotions

24 or terminations of African-Americans). (Berman Decl., Ex. 4, Request Nos. 6, 19, 25). Boeing

25 objected to the requests on the grounds that they were overly broad and that, because the requests

ORDER - 9

Case 2:98-cv-00761-MJP Document 793 Filed 01/10/2005 Page 10 of 11

1 were for confidential information, Boeing would not produce the requested documents until a

2 protective order could be entered. In response to the request to produce studies or reports, Boeing

3 stated that there were no non-privileged documents that were responsive to this request.3 (See Ex. 4

4 at 8:12-19, 10:9-16, Request Nos. 3, 6, 18, 19, 25). Regardless of whether Boeing’s objections were

5 specific enough, requesting information about compensation of salaried employees cannot be said to

6 have created a salary compensation claim when it was not alleged in the complaint.

7

Lastly, Plaintiffs argue that Boeing acknowledged in the Consent Decree that Plaintiffs had

8 alleged discrimination in compensation for salaried employees. This argument is similar to that in the

9 judicial estoppel section. As discussed above, while the “Litigation Background” section of the

10 Consent Decree did include compensation as one of Plaintiffs’ claims in addition to the promotions

11 and training claims, the relief awarded in the Consent Decree focused on promotions, retaliation, and

12 hostile work place. Further, this same sentence refers to claims for discrimination in discharge and

13 discipline, neither of which is purportedly alleged in the original or First Amended Complaints. Given

14 this, together with Boeing’s attempt to protect itself through this Consent Decree by insulating itself

15 from any future race discrimination claims, even ones not plead by Plaintiffs, this reference to

16 compensation did not put Boeing on notice that Plaintiffs had alleged in their original or First

17 Amended Complaint discrimination in compensation.

18

CONCLUSION

19

The Court GRANTS Defendants’ Motion for Partial Summary Judgment and DISMISSES

20 Plaintiffs’ 42 U.S.C. § 1981 claim of discrimination in compensation for salaried employees based on

21 acts or conduct prior to June 11, 2000. The four-year statute of limitations for § 1981 claims bars

22 any claims relating to conduct or actions prior to June 11, 2000 because Plaintiffs’ Second Amended

23 3 Plaintiffs further argue that Boeing’s PAT study was responsive and that Boeing failed to
24 include it on Boeing’s privilege log. Whether this is true or not, it is not relevant to whether Boeing
had notice through Plaintiffs’ discovery requests that Plaintiffs were alleging discrimination in 25 compensation of salaried employees.

ORDER - 10

Case 2:98-cv-00761-MJP Document 793 Filed 01/10/2005 Page 11 of 11

1 Complaint, filed on June 11, 2004, is the first time Plaintiffs allege a claim for racial discrimination in

2 compensation for salaried employees. Plaintiffs’ compensation claim does not relate back under Rule

3 15(c) to Plaintiffs’ original or First Amended Complaint. Likewise, the principle of judicial estoppel

4 does not require a different result.

5

The clerk is directed to provide copies of this order to all counsel of record.

6

Dated: January 10, 2005

7

/s/ Marsha J. Pechman

8

Marsha J. Pechman

United States District Judge

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

ORDER - 11

 
 Case 2:98-cv-00761-MJP Document 447 Filed 09/30/1999 Page 1 of 14

1
2

3

4 5

1 ~/1t~; 6I GElEDD

i
LENTERED _RECEIVED

6

SEP 3 tl 1999

7

;..rSfAnUl

~LERK U S DISTRICT COURT

8

',,"STERN OIST~ICT OfW~S~I~GTON

,:y

DEPUTY

9

UNITED STATES DISTRICT COURT

10

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

I11I

12 SOLOMON WILLIAMS, et aI.,

Plaintiffs,

v.

THE BOEING COMPANY, et aI.,

-

Defendants.

CASE NO. C98-761C ORDER

INTRODUCTION
This is an employment discrimination case brought by a group of African-Americans against the 19
Boeing Company. The parties have agreed to enter into a consent decree which would settle the case.
20
For the settlement to proceed, however, the Court must (i) certify that the case meets the requirements 21
for a class action outlined in Fed. R. Civ. P. 23(a) and (b), and (ii) approve the terms of the settlement as
22
fair and reasonable under Fed. R. Civ. P. 23(e). Having reviewed extensive briefing on these issues by 23
the parties and by objecting members of the class, and having heard oral argument at two hearings, the
24
Court now finds and rules as follows. 25
26 ORDER-Il

Case 2:98-cv-00761-MJP Document 447 Filed 09/30/1999 Page 2 of 14

1

The Court has heard a series of powerful arguments in opposition to the consent decree from

2 objectors in this case. Several consider the amount of damages awarded to be an insult. And even more

3 view Boeing's promises of future reforms with skepticism. The Court finds it difficult to reconcile these

4 compelling personal statements with the more positive view of the settlement expressed by the Reverend

5 Jesse Jackson and other experts. As with any settlement, it is likely that the parties will be dissatisfied

6 with at least some of the compromises made. In the class action context, however, there is an increased

7 risk that members of the class will feel cheated by the terms ofa settlement which does not respond to

8 their individual assessment of the claim. Indeed, there is an argument to be made that cases involving

9 personal feelings as strong as those present here are always better resolved as individual cases than they

10 are as a class action.

II

The Court rejects this conclusion because there are important advantages to class-wide resolution

12 in this type of dispute. First, there is no guarantee that a plaintiff will fare better in an individual suit

13 than they will under the consent decree, as Boeing's recent series of victories in individual race

14 discrimination cases demonstrates. More significantly, the decree's broad injunctive provisions are the

15 product of class-wide treatment of the problem, and should be an effective means of addressing

16 company policies of the sort alleged here. Finally, this settlement has a greater chance of fostering a

17 cooperative relationship between Boeing and its African-American employees than would a series of

18 protracted individual disputes. This last point must be a crucial consideration for anyone who is

19 primarily interested in future race relations within the company, as both the plaintiffs and the objectors

20 maintain they are here.

21

For these reasons, and for the reasons described below, the Court concludes that the class should

22 be certified and that the proposed consent decree should be approved as a fair and reasonable settlement

23 of these claims.

24

25

26 ORDER-2

Case 2:98-cv-00761-MJP Document 447 Filed 09/30/1999 Page 3 of 14

I

ANALYSIS

2 1. Certification ofthe Class

3

For the Court to certify the class in this case, it must find that the four requirements of Fed. R.

4 Civ. P. 23(a) are met, and that the case fits into at least one ofthe three categories of class action

5 described in Rule 23(b). In a case like this one where the parties have presented the Court with a

6 settlement agreement for approval prior to certification of the class, the Court must analyze relevant

7 class certification questions with a heightened level of scrutiny. Amchem Products Inc. v. Windsor, 521

8 U.S, 591, 620 (1997).

9

The first requirement of Rule 23(a), that the number of class members be so great that joining

10 them all would be impracticable, is easily met here. There is no dispute that the class includes thousands

II of Boeing employees and that it is not feasible to name them all as individual plaintiffs.

12

Next, the Rule requires that there be questions of law or fact common to the class. Not all legal

13 and factual issues need be identical among the class members; a single common issue is sufficient to

14 satisfy the requirement. In employment discrimination class actions, the commonality requirement is

15 not met by a bare allegation that members of a particular race suffer discriminatory treatment. Rather,

16 the plaintiffs must allege a specific discriminatory practice common to the class, General Telephone Co.

17 of Southwest v, Falcon, 457 UU.SS, 147, 158 (1982).

18

The plaintiffs allege that the root of Boeing's race discrimination problems are company-wide

19 policies which encourage favoritism among groups of white workers, and which tend to exclude

20 African-Americans. The effects of these policies are alleged to be particularly manifest in the

21 company's internal promotion and discharge decisions.' The plaintiffs have provided affidavits from

22

23

'There is arguably some tension between class certification based on company-wide policies

affecting promotions and lay offs, and the consent decree's effect of discharging all race discrimination

24 claims against Boeing by African-American employees whether the claims are based on these policies or

not. Evidence presented by the plaintiffs, and not contradicted by the objectors, indicates that these

25 policies are, in fact, the primary source of the employees' discrimination claims. Also the opt-out

26 ORDER-3

Case 2:98-cv-00761-MJP Document 447 Filed 09/30/1999 Page 4 of 14

1 numerous Boeing employees describing the effects of these policies and internal memoranda from the

2 company explaining that the responsibility for race related employment policies rests with the Seattle

3 corporate office. And at the hearing, both the supporters of the consent decree and the objectors spoke

4 forcefully of institutional problems with race discrimination. These allegations clearly raise class-wide

5 legal and factual issues sufficient to satisfy the requirement of the Rule. See Falcon, 451 U.S. at 159

6 n.15.

7

Rule 23(a)'s next requirement is that the named members of the proposed class have claims that

8 are typical of the class as a whole. This requirement is intended to guarantee that advocacy of the named

9 class members' interests will also advance the claims of absent class members. The Court, therefore,

10 considers any significant factual variations among class members under the typicality prong.

11

Insuring that the claims of the named plaintiffs are typical can be difficult in a case with a factual

12 context as complex as this one. Boeing is one of the world's largest corporations with several major

13 sub-divisions, two of which had been independent companies until their recent mergers with Boeing.

14 The class as defined by the parties includes all African-American employees in any type of position who

15 has worked for any of these entities during the claims period.2

16

The named plaintiffs in this case include a very broadly selected cross-section of the different

17 categories of Boeing employees. Salaried and hourly, management and line-worker, union and non-

18 union are all represented, as are each of the major geographic hubs of Boeing's operations and each of

19 the pre-merger companies. Particularly in a case in which the requested relief applies evenly to the

20 various sub-groups, this cross-section of Boeing employees suffices to insure that the interests of these

21 sub-groups have been adequately represented, and meets the typicality requirement of Rule 23(a).

22
23 provision, which allows any class member to preserve a claim for individual resolution ifhe or she feels that the damages provision of the decree would not provide adequate compensation, protects class
24 members who have exceptional or particularly egregious claims.

25

2 This period varies depending on the class member's state of residence.

26 ORDER-4

Case 2:98-cv-00761-MJP Document 447 Filed 09/30/1999 Page 5 of 14

1

Finally, Rule 23(a) requires that the named class members and their counsel are able to provide

2 adequate representation to protect the interests of the absent class members. This requirement overlaps

3 with the typicality and commonality issues, and also allows the Court to consider any other indication

4 that the named plaintiffs may not protect the interests of unnamed class members.

5

Several of the objectors have alleged that plaintiff's counsel are corrupt or are not competent to

6 represent the plaintiffs in such a complex suit. The Court rejects these allegations. The objectors have

7 failed to provide any proof to support charges of fraud and collusion by the plaintiffs' attorneys beyond

8 hearsay reports of the sort of negotiations that occur whenever a settlement agreement is reached in a

9 complex class action case. And the suggestion that plaintiffs' counsel is not competent to take on this

10 case is belied by the result they have achieved. Despite Boeing's recent success in defending race

11 discrimination suits, the plaintiffs here have gotten the company to agree to make damages payments in

12 an amount comparable to other large class action race discrimination cases, and have crafted an

13 innovative set of injunctive provisions intended to solve the traditionally intractable problem of

14 institutionalized favoritism leading to racism. The suggestion that this result displays anything less than

15 excellent legal ability or unwavering commitment to the plaintiffs' claims is insupportable.

16

Rule 23(a)(4) also requires the Court to consider any conflicts of interest among class members.

17 When class certification is presented in the context of a settlement agreement, the Court must be

18 particularly careful in scrutinizing any potential conflicts. Counsel for some of the objectors argues that

19 Boeing's size and the range of employee groups covered by the decree creates conflicts. They fail,

20 however, to identify a substantive issue for which there is a conflict of interest between two or more sets

21 of employees. Given that the named plaintiffs include representatives of each major employee sub-

22 group, and that the requested relief applies equally throughout the class, the Court finds that there are no

23 conflicts between class members sufficient to defeat certification.

24

The final requirement for class certification is that the case must fit into one of the three

25 categories described in Rule 23(b). The second category pennits certification of a claim when the

26 ORDER-5

Case 2:98-cv-00761-MJP Document 447 Filed 09/30/1999 Page 6 of 14

plaintiffs are seeking injunctive relief in response to a course of action that the defendant has taken

2 toward the entire class. This provision was intended to cover class complaints of civil rights violations

3 such as this case. Even if a class action includes a claim for damages, it may be maintained under this

4 provision if a request for an injunction is a major part of the suit. Probe v. State Teachers' Retirement

5 System, 780 F.2d 776, 780 (9th Cir. 1986).

6

There can be no argument that it is appropriate to certify the class in this case under the

7 injunctive relief provision of Rule 23(b). The plaintiffs--and most of the objectors--maintain that the

8 primary focus of this suit has been the implementation of changes in Boeing's employment policies.

9 This is a traditional civil rights claim for injunctive relief and thus clearly meets the requirements of

10 Rule 23(b).

11

The objectors raise some additional arguments against certification which do not fit neatly under

12 any ofthe above provisions. First, they allege that defining the class by referring to the statute of

13 limitations from employees' current states of residence improperly eliminates many potential class

14 members who would bring suit in the state where they worked instead of the state where they live. The

15 parties explanation that the use of the state of residence simplifies the process for identifying class

16 members is sufficient to meet this objection. The Court also notes that any individual who is omitted

17 from the class as a result of this definition would not have their claim extinguished by the decree and

18 thus could bring an individual suit in any proper forum. The objectors' arguments that the class is not

19 proper because requirements for proceeding under Title VII were not met and because certain of the

20 class representatives have been recently promoted by Boeing are also without merit.

21

Having found that the requirements of Rule 23(a) and (b) have been met, the Court certifies the

22 class and proceeds to consider the fairness of the proposed consent decree.

23 2. Fairness of the Decree.

24

Fed. R. Civ. P. 23 (e) provides that any agreement in settlement of a class action claim must be

25 approved by the Court. There is a strong judicial policy favoring settlement of class actions. Early

26 ORDER-6

Case 2:98-cv-00761-MJP Document 447 Filed 09/30/1999 Page 7 of 14

1 settlements not only conserve the resources of the Courts, but also those of the parties, leaving more to

2 devote to the problems raised by the claim. Also the parties know more about the claims than the Court

3 or a jury would be able to learn during litigation, and thus are in a better position to negotiate an

4 appropriate remedy.

5

As an initial matter, the Court must verify that the procedure for notifying class members ofthe

6 settlement was adequate. In this case, the parties used two forms of notice previously approved by the

7 Court, one mailed to each identifiable class member, and one published in major newspapers covering

8 the regions where class members were most likely to be found. The only significant challenge to the

9 adequacy of the notice in this case is a complaint that the paragraphs were confusingly misnumbered in

10 the original mailing. This defect was quickly cured, however, and a corrected notice was sent to each

11 individual who received the first mailing. The Court finds this notice procedure to be adequate and

12 proceeds to consider the terms of the consent decree.

13

Despite the preference for settlements, Courts must independently verify that a class action

14 consent decree is fair, adequate and reasonable. The Ninth Circuit has identified eight factors for district

15 courts to consider when approving a class action settlement: (1) the strength of the plaintiffs' case; (2)

16 the risk, expense, complexity, and likely duration offurther litigation; (3) the risk of maintaining class

17 action status throughout the trial; (4) the amount offered in settlement; (5) the extent of discovery

18 completed and stage of proceedings; (6) the experience and views of counsel; (7) the presence of a

19 government participant; (8) the reaction of class members to the proposed settlement. Hanlon v.

20 ChrYsler Corporation, 150 F.3d 1011, 1026 (9th Cir. 1998).

21

The Court reviews the first three factors together. The strengths ofthe plaintiffs' claims and the

22 risks of future litigation are clearly related questions. Boeing has faced a series of individual race

23 discrimination law suits in recent years and has won every one. Although the number ofnarned

24 plaintiffs in this case and the descriptions of their experiences lend credence to their allegations,

25 discrimination cases are notoriously difficult to prove, particularly when they are based on failures to

26 ORDER-7

Case 2:98-cv-00761-MJP Document 447 Filed 09/30/1999 Page 8 of 14

1 promote or other discretionary decisions. There is also some risk that the class certified by the Court

2 would not survive a challenge by Boeing, which might, for example, be able to demonstrate after more

3 extensive discovery that the class claims are too individual to meet the commonality and typicality

4 requirements. Finally, there is no doubt that continued litigation would be enormously burdensome and

5 expensive for the plaintiffs as well as for Boeing. The price of discovery alone in a nationwide class

6 action such as this one is almost always measured in millions of dollars. The objectors raise no serious

7 challenges to these points, and the Court fmds that these factors all strongly favor adopting the consent

8 decree.

9

The fourth factor is the heart of the matter-the amount of the settlement. This case involves

10 substantial injunctive provisions as well as a damages award and the Court must consider both sets of

11 remedies. The damages payments will total approximately $6.6 million, consisting of two separate

12 funds: approximately $3.25 million to be divided among the named plaintiffs and other individually

13 identified recipients who assisted in the litigation, and approximately $3.4 million to be distributed

14 among other class members according to a claims processing procedure. The awards to the named

15 parties range between $5,000 and $50,000. The average award to this group will be approximately

16 $16,500. The average award to members of the second group will be approximately $1,000.' Boeing

17 has presented evidence that dollars per class member and dollars per claim filed in this case are

18 comparable to settlement payments in other recent employment discrimination class actions. Although

19 the objectors quibble with Boeing's method of determining these figures, they have not presented any

20 evidence to suggest that the amount of payments appear inadequate or unfair when compared with the

21 other cases. The objectors also have not rebutted Boeing's contention that the vast majority of the

22 claims are for failure to promote or other actions rarely involving substantial damages.

23

24

'The awards to unnamed class members are difficult to predict because of uncertainty regarding

the nature of the claims. Also, all of the amounts in this paragraph will vary depending on the final

25 number of opt-outs and other factors.

26 ORDER-S

Case 2:98-cv-00761-MJP Document 447 Filed 09/30/1999 Page 9 of 14

1

More problematic is the disparity between the awards to the named plaintiffs and individually

2 identified recipients and the awards to absent class members. The Court has considered this disparity

3 carefully because excessive payments to named class members can be an indication that the agreement

4 was reached through fraud or collusion. After reviewing the record, however, the Court concludes that
5 there is nothing improper about the damages awards under the decree in this case. There are 264 named
6 members of the class and individually identified recipients who will receive the larger awards.4 This is a

7 very large group to have been brought in-line behind an allegedly collusive agreement. More

8 importantly, this is the group of class members identified by plaintiffs' counsel as having the strongest

9 claims and thus as providing the strongest foundation for the lawsuit. Because they have the strongest

10 claims it is fair that they would receive the largest awards. Also awards to named class members and

11 others assisting in the prosecution of a class action are generally significantly larger than awards to

12 unnamed class members to compensate the first group for the time and risks taken by involving

13 themselves in the litigation. For these reasons, the Court concludes that the awards to the named parties

14 are not excessive.

15

One of the awards to an individually identified recipient draws substantial criticism from some of

16 the objectors. Mr. Cordell Bolder was awarded $13,000 though the parties now admit he is not a

17 member of the class. Mr. Bolder was employed by Boeing for a period, but was laid off in 1992,

18 sufficiently long ago that he is not included in the class definition. Mr. Boulder did subsequently apply

19 for a position with Boeing and was rejected, but claims by non-employees for discrimination-in-hiring

20 are not encompassed within the decree. The objectors maintain that the plaintiffs' counsel arranged for

21 the award to Mr. Bolder in order to gain the support of his mother, Ms. Mary Dean, who is an influential

22 class representative. Class counsel maintains that Mr. Bolder provided them with substantial

23 information about his potential discrimination-in-hiring claim, and about his experiences with Boeing in

24

25

4Before adjusting for opt-outs.

26 ORDER-9

Case 2:98-cv-00761-MJP Document 447 Filed 09/30/1999 Page 10 of 14

I general, and that the award reflects this contribution. Although the Court considers the award to Mr.

2 Bolder unfortunate, it is not persuaded by the objectors' claims of fraud, and declines to reject the entire

3 decree based on this single error.

4

As a final factor supporting the damages provision of the consent decree, the Court notes that the

5 opt-out provision allowed any member of the class to preserve an individual claim.' Notice was

6 provided to all class members by mail and by publication of the effects of the suit, and information about

7 the claims process was readily available from the Clerk of the Court and from other sources. Any

8 individual who believed that the damages he or she is likely to receive under the decree are inadequate

9 could opt-out and file an individual suit. The decree provides that the statute of limitations period for

10 such claims would be tolled during the pendency of the class action suit. This protection, as well as the

11 other factors described above, leads the Court to conclude that the provisions for monetary relief in the

12 decree are adequate, fair, and reasonable.

13

The injunctive provisions of the decree focus on improving the chances for African-American

14 employees to succeed within the company. The distribution of information about promotion

15 opportunities will be improved, changes will be made in the procedure for resolving discrimination

16 related complaints, and free legal advice will be available to assist class members who feel that they

17 have been discriminated against by the company.

18

Several of the objectors have criticized these provisions as toothless and insist that they will have

19 no genuine impact. The Court is convinced otherwise. The injunctive provisions present a novel and

20 potentially effective response to the problem ofrace discrimination caused by insular social groups

21 within a company. Although it is possible that the injunction's effectiveness could be diminished if

22 Boeing fails to implement it aggressively, at least two factors indicate that this outcome is unlikely. The

23

24

' The parties have asked the Court to determine which opt-outs were timely filed. In order to

avoid compromising the protection provided by the opt-out provision, the Court finds that all requests to

25 opt-out received by the Clerk of the Court on or before April 30, 1999 should be considered effective.

26 ORDER-IO

Case 2:98-cv-00761-MJP Document 447 Filed 09/30/1999 Page 11 of 14

cooperative process which led to the agreement, and the provision for oversight of the decree by.

2 independent observers and, if necessary, by the Court suggest that the decree will lead to genuine

3 improvements in Boeing's internal race relations.

4

Certainly among the most important evidence supporting the injunctive provisions in the decree

5 is the approval of several disinterested experts in race discrimination, the Reverend Jesse Jackson first

6 among them. Some of the objectors in this case have charged that the Reverend Jackson's endorsement

7 was purchased with a donation to one of his organizations. The discovery taken in this case apparently

8 failed to uncover any substantial evidence supporting the allegation, a result that should surprise no one

9 familiar with the Reverend Jackson's efforts to fight race discrimination. The Court considers his

10 meeting with Boeing officials and subsequent endorsement of the decree to be a very strong indication

II that Boeing is sincere in its response to this suit, and that the decree provides a fair and reasonable

12 resolution of the claims.

13

Next, the Court considers the extent of discovery and the stage of proceedings. Settlement

14 agreements that are presented prior to class certification are to be considered with particular care because

15 they are more likely to be a product of collusion and because they have not been negotiated by court-

16 approved representatives. The Court has exercised this scrutiny and finds no evidence of collusion. In

17 addition, the Court notes that unlike many other class actions, the plaintiffs here did not file a complaint

18 having already agreed to a settlement. On the contrary, this case was contentiously litigated for a

19 substantial period prior to the settlement negotiations. And the plaintiffs' counsel spent a great amount

20 oftime preparing the case before it was filed. The nature and quality of this work gives every indication

21 that plaintiffs' counsel intended to pursue these claims vigorously until they reached a satisfactory result;
22 and is wholly inconsistent with the suggestion that the attorneys planned to sacrifice the plaintiffs'

23 claims in exchange for a large fee award. It also indicates that the plaintiffs' counsel had obtained

24 sufficient evidence to understand the strength of the claims despite the lack offormal discovery. The

25 Court concludes that although settlements at this stage must be scrutinized carefully, there are also

26 ORDER-II

Case 2:98-cv-00761-MJP Document 447 Filed 09/30/1999 Page 12 of 14

1 factors present here that mitigate some of the most troublesome aspects of such agreements.

2

The experience and views of counsel are additional factors supporting the decree. Both Boeing's

3 attorneys and the plaintiffs' attorneys have substantial experience litigating employment discrimination

4 claims. Their analysis of the strengths and weaknesses of the plaintiffs' case are likely to be accurate.

5 Each side has presented forceful arguments in favor of the decree. The Court finds no reason to doubt

6 the sincerity of these arguments and concludes that this factor also supports adopting the decree.

7

There has been no involvement of a government agency in the prosecution of this suit or the

8 negotiation of the decree. The Equal Employment Opportunity Commission has issued right to sue

9 letters to several of the named plaintiffs. Although this suggests that there may be merit to these claims,

10 it does not alter the Court's view of the decree.

11

The final factor is the content of the objections brought by class members. The most common of

12 these objections are that the injunctive provisions will produce no genuine change, and that the damages

13 provisions are inadequate. The Court has addressed these contentions above, and will only add that the

14 mere possibility of a better settlement is not sufficient grounds for finding the agreement unfair.

15 "Settlement is the offspring of compromise; the question we address is not whether the final product

16 could be prettier, smarter or snazzier, but whether it is fair, adequate and free from collusion." Hanlon v.

17 ChrYsler Comoration, 150 F.3d 1011, 1027 (9th Cir. 1998).

18

Objectors also complain that Boeing fails to admit that it discriminated and does not apologize.

19 Their concern may be understandable, but a refusal to admit discrimination is an almost universal

20 element of this type of settlement. Particularly when the defendant faces the threat of additional suits on

21 similar claims, as Boeing does, for example, frcm members of other races, it is simply unrealistic to

22 expect the company to compromise itself by admitting liability here. The lack of an apology is not,

23 therefore, a sufficient reason to ignore the concessions Boeing has made and declare the agreement

24 unreasonable.

25

Although the sheer number of objections filed was significant, between six and eleven percent of

26 ORDER-12

Case 2:98-cv-00761-MJP Document 447 Filed 09/30/1999 Page 13 of 14

I the class according to calculations by Boeing, this alone is no reason to reject the decree. Any _

2 settlement agreement of for this type of claim will generate a large number of objections, particularly

3 when the objectors are organized by a competing law firm.6 In the final analysis, it is the content of the

4 objections and not their number which detennine whether or not the decree should be adopted. Because

5 these objections have failed to overcome the parties' evidence in support of the decree, the Court finds

6 that its terms are fair, adequate, and reasonable.

7

Finally, the Court must approve the award of attorneys' fees. Under the decree, Boeing will pay

8 class counsel $3.1 million for its work through the approval of the decree. Class counsel will receive an

9 additional $750,000 for supervising the implementation of the decree and other post-approval work. A

10 second plaintiffs firm which had filed a similar class action suit against Boeing in Philadelphia is to

I I receive $200,000. The Ninth Circuit has approved the use of either a percentage of the recovery or the

12 loadstar, or hourly billing, method of determining the reasonableness of a fee award. Here, the parties

13 defend the proposed award under the percentage method. The total damages awarded by the decree are

14 approximately $6.5 million. The parties have put a value on the injunctive provisions by estimating

15 their cost to Boeing at $3.65 million. Adding in the attorneys' fees of$4.05 million establishes a total

16 fund of$14.2 million. The attorneys' fees amount to approximately 28% of this fund. This is close to

17 the benchmark amount of25% and the Court finds the award to be reasonable given the nature of the

18 case, the risks to the plaintiffs' counsel's firm, and the amount of pre-filing and post-settlement work

19 performed.

20

21

22

23

24 6The Court notes that the number of objectors who chose to opt-out is substantially lower than
25 the figure which would permit Boeing to reject the decree.

26 ORDER-13

Case 2:98-cv-00761-MJP Document 447 Filed 09/30/1999 Page 14 of 14

1

CONCLUSION

2

It is clear that the factors outlined above support Court approval of the consent decree. The

3 agreement as a whole provides a fair, adequate, and reasonable resolution of the plaintiffs' claims in this

4 case, and there is no credible evidence of fraud or collusion. The Court, having already determined that

5 the class should be certified, now ~proves the decree.

':Jf)-l:-

6

SO ORDERED this.:21L day of September, 1999.

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26 ORDER-14

 
 1 2

3

4

5

6

7

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

8

AT SEATTLE

9
10 11 12 13
~ 14
'\.J 15
.~ J 16 17 ~ 18 19 20 21 22

WILLIAMS, et al., Plaintiffs,
v.
THE BOEING COMPANY, Defendant.

)

)

)

)

CASE NO. C98-761C

~

MINUTE ORDER

~

)

)

)

The following Minute Order is made by direction of the Court, the Honorable John C. Coughenour, ChiefUnited States District Judge:
The parties' joint motion for approval ofform ofnotice to class members is GRANTED. The Court approves both the content ofthe notice to objectors and the parties' proposed method of notification.
DATED this ~ day ofJune, 1999.
BRUCE RIFKIN, Clerk

23

24

25

26

27

28 MINUTE ORDER -- 1

 
 Case 2:98-cv-00761-MJP Document 915 Filed 11/04/2005 Page 1 of 17

1

2

3

4

5

UNITED STATES DISTRICT COURT

6

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

7

8 SOLOMON WILLIAMS, et al.

9

Plaintiffs,

10

v.

11 THE BOEING COMPANY, et al.

12

Defendants.

13

NO. C98-761P
ORDER ON BOEING’S MOTION FOR PARTIAL SUMMARY JUDGMENT ON PLAINTIFFS’ COMPENSATION DISCRIMINATION CLAIM AND TO DECERTIFY THE CLASS AS TO THAT CLAIM

14

15

This matter comes before the Court on Defendant Boeing Company’s motion for partial

16 summary judgment on Plaintiffs’ compensation discrimination claim and to decertify the class as to

17 that claim. (Dkt. No. 890). In this motion, Boeing argues: (1) the Court should enter summary

18 judgment on the class compensation discrimination claim; and (2) in the alternative, the Court should

19 enter summary judgment on the named Plaintiffs’ individual compensation discrimination claims and

20 decertify the class as to the compensation claim because the individual named Plaintiffs lack standing

21 to maintain individual claims of compensation discrimination and cannot satisfy the typicality or

22 adequacy of representation requirements of Fed. R. Civ. P. 23(a). Having reviewed the papers and

23 pleadings submitted by the parties and having heard oral argument on this matter, the Court hereby

24 GRANTS Boeing’s motion in part.

25

26 ORDER - 1

Case 2:98-cv-00761-MJP Document 915 Filed 11/04/2005 Page 2 of 17

1

The Court GRANTS Boeing’s request for summary judgment on individual compensation

2 discrimination claims of named Plaintiffs Kevin Biglow, Rhonda Capps, Doreen Ferguson, Mara

3 Ferrari, and Beverly Trotter. The Court further GRANTS Boeing’s motion to decertify the

4 compensation discrimination class that had been previously certified in January 2005.

5

Because the Court has concluded that the compensation discrimination class should be

6 decertified, it would not be appropriate or necessary for the Court to issue a ruling on the merits of the

7 class-wide allegations of compensation discrimination by Boeing. Therefore, Boeing’s request for

8 summary judgment on the class compensation discrimination claim is STRICKEN as moot.

9

This order does not affect the class claim for discrimination in promotions. Trial will go

10 forward on the class promotion discrimination claim as scheduled on December 5, 2005.

11

Background

12

This case was originally filed in 1998 has a long procedural history, which the Court previously

13 set forth in its January 21, 2005 order on class certification. (Dkt. No. 800). The Court will not

14 repeat the procedural background except to highlight facts and rulings that are pertinent to the

15 pending motion.

16

Plaintiffs’ original and first amended complaints in this action were filed in 1998 and alleged

17 racial discrimination against African-Americans in promotions, as well as claims for retaliation and

18 hostile work environment. Before any motions to certify the class were filed, Plaintiffs and Boeing

19 reached a proposed Consent Decree. In September 1999, Judge Coughenour certified the class for

20 settlement purposes and approved the Consent Decree. In certifying the class, Judge Coughenour held

21 that Fed. R. Civ. P. 23(a)’s four requirements of numerosity, commonality, typicality, and adequacy of

22 representation were satisfied.

23

Objectors appealed the approval of the settlement. In Staton v. Boeing, 327 F.3d 938 (9th Cir.

24 2003), the Ninth Circuit upheld the district court’s determination that the class certification

25

26 ORDER - 2

Case 2:98-cv-00761-MJP Document 915 Filed 11/04/2005 Page 3 of 17

1 requirements of Rule 23(a) had been satisfied, but reversed the district court’s approval of the

2 settlement on fairness grounds. The case was then remanded and ultimately transferred to this Court.

3

In June 2004, the Court granted Plaintiffs leave to file a Second Amended Complaint (SAC)

4 that included claims for racial discrimination in compensation of salaried employees. (Dkt. No. 651).

5 In their brief in support of this motion, Plaintiffs maintained that the SAC did not add any new causes

6 of action. (Dkt. No. 639). Although Boeing did not oppose Plaintiffs’ motion for leave to amend,

7 Boeing disputed that the SAC did not add any new causes of action. In particular, Boeing asserted

8 that the SAC “alleges for the first time claims involving issues of alleged ‘compensation

9 discrimination.’” (Dkt. No. 645).

10

On January 7, 2005, the Court heard oral argument from the parties on class certification.

11 In their class certification brief, Plaintiffs argued that no additional analysis regarding Rule 23(a)’s

12 requirements was necessary in light of the Ninth Circuit’s ruling in Staton, which found that the class

13 certified for settlement purposes in 1999 satisfied the requirements of Rule 23(a). (Dkt. No. 674 at

14 22). Boeing did not dispute that assertion. However, at oral argument the Court asked the parties:

15

[O]ne of the things that concerns me is that the plaintiffs want to jump over the 23(a)

requirements but it also appears to me that they have expanded the class, and so I want to

16

know if you are going to expand the class do we need to go back and go through the 23(a)

criteria for . . . at least the portion of the class that is expanding?

17

(Dkt. No. 898 at 3). Plaintiffs indicated that it was not necessary to address Rule 23(a) requirement.

18

Id. at 6-7. Although Boeing stated that “[w]e think that the 23(a) issues are on the table,” Boeing did

19

not offer any specific argument with respect to Plaintiffs’ ability to satisfy Rule 23(a) requirements for

20

either the promotion or compensation discrimination claims. Id. at 83-84.

21

On January 21, 2005, the Court issued a class certification order that certified the following

22

class under Fed. R. Civ. P. 23(b)(2):

23

24

25

26 ORDER - 3

Case 2:98-cv-00761-MJP Document 915 Filed 11/04/2005 Page 4 of 17

1

African-American salaried employees employed by Heritage Boeing1 from June 6, 1994 to the

present, excluding executive and SPEEA Techs, seeking injunctive relief for racial

2

discrimination in compensation and promotions.

3 (Dkt. No. 800 at 1). Because the certified class was limited to “Heritage” Boeing salaried employees,

4 Boeing maintains and Plaintiffs do not dispute that only five of the Plaintiffs named in the Second

5 Amended Complaint are included within the certified class: Kevin Biglow, Rhonda Capps, Doreen

6 Ferguson, Mara Ferrari, and Beverly Trotter (hereinafter, the “named Plaintiffs”).

7

In the class certification order, the Court addressed Rule 23(a) criteria in light of the addition

8 of Plaintiffs’ compensation discrimination claim as follows:

9

To the extent that the currently proposed class is the same as or smaller than the class that was

before the Ninth Circuit on appeal, the teaching of Staton is that Rule 23(a)’s four

10

requirements for class certification are met. Plaintiffs, however, seek to enlarge the class . . .

by adding the salary compensation claim (which could bring in additional salaried employee

11

class members to whom the other claims did not apply) . . . .

12

While the proposed class is potentially larger than it was on appeal, the Court finds that there is

no reason why the addition of the salary compensation claim . . . would change the Ninth

13

Circuit’s 23(a) analysis. Therefore, this Court adopts the Ninth Circuit’s Rule 23(a) analysis

and concludes that Rule 23(a)’s requirements have been met, notwithstanding the additional

14

claim . . . .

15 Id. at 7 (citations and footnotes omitted).

16

By separate orders in early 2005, the Court granted a motion by Boeing to dismiss Plaintiffs’

17 compensation discrimination claims to the extent such claims are based on acts or conduct prior to

18 May 28, 2000. (Dkt. Nos. 793 & 817). In granting the motion, the Court found that Plaintiffs’

19 Second Amended Complaint represented the first time that a claim for racial discrimination in

20 compensation for salaried employees had been alleged. (Dkt. No. 793). Because it was undisputed

21 that Plaintiffs’ claims for compensation discrimination could be brought only under 42 U.S.C. § 1981,

22 the Court found that the four year statute of limitations for § 1981 claims applied and was tolled by

23 the submission of the Second Amendment Complaint on May 28, 2004.

24 1 “Heritage Boeing” refers to the Boeing Company before it acquired additional companies in
25 the late 1990s and 2000.
26 ORDER - 4

Case 2:98-cv-00761-MJP Document 915 Filed 11/04/2005 Page 5 of 17

1

In the pending motion, Boeing argues: (1) that summary judgment should be entered on the

2 class compensation discrimination claim; and (2) in the alternative, summary judgment should be

3 entered on the named Plaintiffs’ individual compensation discrimination claims and the class should be

4 decertified as to the compensation discrimination claim because the named Plaintiffs lack standing to

5 maintain such claims as individuals and cannot satisfy the typicality or adequacy of representation

6 prongs of Rule 23(a).

7

Analysis

8 1. The Named Plaintiffs’ Individual Compensation Discrimination Claims

9

Boeing argues that there is no evidence (or even allegation) that any of the named Plaintiffs

10 themselves suffered racial discrimination in compensation after May 28, 2000. Therefore, Boeing

11 argues that the named Plaintiffs lack standing to maintain individual compensation discrimination

12 claims. Boeing also asserts that if the named Plaintiffs lack standing, they cannot serve as

13 representatives for a compensation discrimination class. The Court regards these arguments as

14 threshold issues that must be resolved before reaching Boeing’s argument that summary judgment

15 should be entered as to the class compensation discrimination claim.

16

A. Standing Requirements

17

Standing is a jurisdictional issue that may be raised at any time. United States v. Viltrakis, 108

18 F.3d 1159, 1160 (9th Cir.1997). To have standing to maintain a claim, a plaintiff must at a minimum

19 satisfy the “actual injury” component of the standing doctrine. Casey v. Lewis, 4 F.3d 1516, 1519

20 (9th Cir. 1993). This element “requires an injury to be ‘real and immediate,’ not merely ‘conjectural’

21 or ‘hypothetical.’” Id. (citations omitted).

22

In the context of a class action, “[a]t least one named plaintiff must satisfy the actual injury

23 component of standing in order to seek relief on behalf of himself or the class.” Id. (emphasis in

24 original). In cases where multiple claims are asserted, “it is not enough that a named plaintiff can

25 establish a case or controversy between himself and the defendant by virtue of having standing as to

26 ORDER - 5

Case 2:98-cv-00761-MJP Document 915 Filed 11/04/2005 Page 6 of 17

1 just one of many claims he wishes to assert.” Griffin v. Dugger, 823 F.2d 1476, 1483 (11th Cir.

2 1987). Instead, “each claim must be analyzed separately, and a claim cannot be asserted on behalf of a

3 class unless at least one named plaintiff has suffered the injury that gives rise to that claim.” Id.

4

B. Standing of the Named Plaintiffs to Maintain Individual Compensation Discrimination

Claims

5

Boeing argues that the five named Plaintiffs “admit that they themselves have not suffered

6

compensation discrimination” during the relevant liability period (post-May 28, 2000). (Opening Brief

7

at 2). As such, Boeing argues that the named Plaintiffs lack standing to maintain such claims as

8

individuals. Boeing has introduced the following evidence with respect to the named Plaintiffs:

9

* Doreen Ferguson testified at her deposition that from 2001-2005, she cannot say that her

10

supervisors discriminated against her in setting her salary because she is African American.

(Shapiro Cohen Decl., Ex. 1, at 562:25-563:14). When asked whether she felt that her

11

compensation in 2000 was in any way discriminatory based on her race, she testified “[f]or me,

because I have nothing to compare it to, I’m thinking this is good. I also work with someone,

12

a white male, who received 1,500, and he thought it was an insult, and he quit the company

because he thought it was an insult, his merit raise. So, I really have nothing to base anything

13

on. I think when I get any kind of an increase I’m doing well, but that’s because I really don’t

have anything to compare it with, so I think I’m fine. But if I was to listen to other people,

14

they’re not happy with what they’re receiving.” Id. at 567:12-24.

15 * 16

Mara Ferrari, when asked whether she had any complaints against Boeing in terms of discrimination since 1999, testified “no, I have not had any complaints.” (Shapiro Cohen Decl., Ex. 2 at 58:12-16).

17 * 18

Rhonda Capps has not worked at Boeing since 1999. (Shapiro Cohen Decl. Ex. 3). Plaintiffs do not dispute that Ms. Capps cannot maintain a compensation discrimination claim after May 28, 2000. (Opp. Brief at 17, n.7).

19 * 20 21 22 23 24

Kevin Biglow had summary judgment entered against him by a federal district court in Kansas on November 29, 2001 on discrimination claims against Boeing, including compensation claims. (Shapiro Cohen Decl., Ex. 6). When asked whether he believed that he had been discriminated against in terms of compensation since November 2001, Mr. Biglow testified “I believe that I have been discriminated against and my compensation has been affected because of management’s manipulation of denying me promotions which affects my salary.” (Shapiro Cohen Decl., Ex. 4 at 249:5-12). When Mr. Biglow was later asked “[t]o the extent you have been discriminated against in compensation, it is tied to these promotions that you did not get; is that right?” He responded “I believe that my salary has been affected because of the opportunities that – the promotional opportunities were denied.” Id. at 252:10-18.

25

26 ORDER - 6

Case 2:98-cv-00761-MJP Document 915 Filed 11/04/2005 Page 7 of 17

1* 2

Beverly Trotter answered “no” when asked “whether you contend that Boeing discriminated against you in terms of compensation after May of 2000?” (Shapiro Cohen Decl., Ex. 6 at 182:17-23).

3

Boeing presents strong evidence that none of the named Plaintiffs have demonstrated standing

4 to maintain an individual claim for compensation discrimination after May 28, 2000. Ms. Capps

5 clearly lacks standing because she was not working for Boeing during that period, while Ms. Ferrari

6 and Ms. Trotter indicated that they have no complaints about compensation discrimination during the

7 relevant period. Similarly, Ms. Ferguson’s testified that she could not say that she had been

8 discriminated against in terms of compensation since 2000. Boeing asserts that Ms. Ferguson, who

9 works as a Library Specialist C and earns $55,022, is currently the highest paid person in the Library

10 Specialist position at any level nationwide. Finally, Mr. Biglow’s deposition testimony indicates that

11 his salary complaints arise from allegations that Boeing has discriminated against him in promotions.

12 Since a promotion discrimination claim is distinct from a claim that he was paid less than similarly-

13 situated white employees for doing the same work, this testimony supports Boeing’s contention that

14 Mr. Biglow lacks standing to maintain a compensation discrimination claim.

15

Plaintiffs argue that regardless of the merits of the named Plaintiffs’ individual claims for

16 compensation discrimination, the named Plaintiffs “had standing to allege in the Second Amended

17 Complaint that they suffered pay discrimination in the post-May 2000 time period.” (Opp. Brief at

18 20). Plaintiffs point to the Ninth Circuit’s ruling in Harmsen v. Smith, 693 F.2d 932 (9th Cir. 1982),

19 which noted:

20

[S]tanding must be determined from the pleadings rather than from the liability actually

imposed. . . . . Standing ordinarily does not depend on the merits of a plaintiff’s contentions;

21

the requirement is based upon a separate determination that the plaintiffs have made

“allegations of demonstrable, particularized injury.” As we have stated, “failure of proof as to

22

the named plaintiffs would not bar maintenance of the class action or entry of judgment

awarding relief to the members of the class.”

23

Id. at 942-43 (citations omitted).

24

25

26 ORDER - 7

Case 2:98-cv-00761-MJP Document 915 Filed 11/04/2005 Page 8 of 17

1

In its reply brief, Boeing argues that Harmsen is not applicable because “[h]ere, the named

2 plaintiffs make no allegations that they suffered compensation discrimination in the amended

3 complaint.” (Reply Brief at 10). Because this argument was raised in Boeing’s reply brief, the Court

4 asked Plaintiffs to address this assertion at oral argument. Plaintiffs pointed to sections of the SAC

5 that allege discrimination by Boeing in compensation. Plaintiffs argue that under the notice pleading

6 requirements of Fed. R. Civ. P. 8(a), these allegations were sufficient to state individual claims for

7 compensation discrimination for the named Plaintiffs.

8

The SAC includes a number of allegations of compensation discrimination by Boeing against

9 African-Americans. However, in terms of specific allegations of discrimination regarding the named

10 Plaintiffs, the SAC alleges:

11

94. Doreen Ferguson has worked for Boeing for more than 20 years. When she applied for

a lead position in the maintenance stores, Boeing failed to promote her by simply

12

closing the job title and making a lateral transfer which prevented her from getting the

upgrade. The job was eventually offered to a less-qualified Caucasian worker with less

13

seniority. Ms. Ferguson has also been subject to a racially hostile work environment by

her supervisors. Boeing has failed to promote Ms. Ferguson, and has subjected her to

14

different conditions of employment than her Caucasian coworkers, based on race.

15

101. Mara Ferrari has worked for Boeing since 1986. She was a manager (PC7) but was

reclassified to a lesser position after her maternity leave. Ms. Ferrari applied for several

16

promotions. She was slated for a promotion, but was later forced into a lesser position.

The position was given to a Caucasian female, who was the daughter of the Deputy

17

Vice President of BCAG. This person has less seniority and no experience in the

organization. As to several other positions for which Ferrari applied, they were filled

18

by people who did not have to interview or the job was not posted and/or no interview

opportunity was given to Ms. Ferrari. Ms. Ferrari has been denied all promotions

19

based upon race. Boeing has failed to promote Ms. Ferrari, and has subjected her to

different conditions of employment and retaliation, based on race.

20

102. Rhonda Capps has worked for Boeing since 1976. Ms. Capps is a Senior Engineer.

21

She has applied for promotions that were given to Caucasians who had less

qualifications or fewer years of experience. She has been subjected to different terms

22

and conditions of employment than her Caucasian coworkers, based on race.

23

110. Beverly Trotter began working for Boeing in 1974. She was a computer operator

before being laid off. She applied for several promotions, but Caucasians with less

24

experience and seniority were given the promotions. She trained several Caucasian

managers’ sons who were given promotions over her. She has been subjected to

25

different conditions of employment based on race.

26 ORDER - 8

Case 2:98-cv-00761-MJP Document 915 Filed 11/04/2005 Page 9 of 17

1

114. Kevin Biglow has worked for Boeing since 1989. He is a System Configuration

Specialist. He has applied for promotions and Caucasians with less experience and

2

seniority were given the positions. He has been subjected to different conditions of

employment based on race.

3

(Dkt. No. 651). In sum, these allegations for each named Plaintiff focus on promotion discrimination

4

(and for Ms. Ferguson and Ms. Ferrari, allegations of hostile work environment and retaliation,

5

respectively), with no mention of compensation discrimination. These are not “demonstrable,

6

particularized” allegations of injury from compensation discrimination.

7

In any case, Boeing is challenging the standing of the named Plaintiffs at the summary

8

judgment stage of the litigation. In Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992), the

9

Supreme Court indicated that the elements of standing “are not mere pleading requirements but rather

10

an indispensable part of the plaintiff’s case,” and therefore each element of standing “must be

11

supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e.,

12

with the manner and degree of evidence required at the successive stages of the litigation.” As the

13

Court in Lujan noted:

14

At the pleading stage, general factual allegations of injury resulting from the defendant’s

15

conduct may suffice, for on a motion to dismiss we “presum[e] that general allegations

embrace those specific facts that are necessary to support the claim.” In response to a

16

summary judgment motion, however, the plaintiff can no longer rest on such “mere

allegations,” but must “set forth” by affidavit or other evidence “specific facts” which for

17

purposes of the summary judgment motion will be taken to be true.

18 Id. at 561 (internal citations omitted).

19

In response to Boeing’s motion, the named Plaintiffs have not offered affidavits or other

20 evidence that, even if taken as true, would show that they themselves have suffered injury after May

21 28, 2000 due to compensation discrimination. Plaintiffs argue that Ms. Ferguson and Mr. Biglow

22 cannot be expected know whether they have been discriminated against in terms of salary because they

23 do not know what their co-workers are paid. Plaintiffs also argue that the named Plaintiffs’ testimony

24 in response to deposition questioning should not be regarded as a concession that they have no viable

25 claim as a matter of law. However, these arguments overlook Plaintiffs’ obligation on a motion for

26 ORDER - 9

Case 2:98-cv-00761-MJP Document 915 Filed 11/04/2005 Page 10 of 17

1 summary judgment to produce affidavits or other evidence that they have themselves suffered injury as

2 a result of compensation discrimination.

3

Therefore, the Court grants Boeing’s motion for partial summary judgment with respect to the

4 individual compensation discrimination claims of the named Plaintiffs. The named Plaintiffs have not

5 demonstrated standing to maintain such individual claims during the relevant liability period.

6

C. Ability of the Named Plaintiffs to Serve as Class Representatives for a Compensation

Discrimination Class

7

Boeing argues that because the named Plaintiffs lack standing to maintain individual

8

compensation discrimination claims during the relevant liability period, the named Plaintiffs necessarily

9

cannot satisfy Rule 23(a)(3)’s requirement that a class representative’s claims must be typical of the

10

claims of the class. Boeing also maintains that the named Plaintiffs’ lack of standing to maintain

11

individual compensation discrimination claims renders them inadequate class representatives for such

12

claims under Rule 23(a)(4). As Boeing notes, “[i]t should be obvious that there cannot be adequate

13

typicality between a class and a named representative unless the named representative has individual

14

standing to raise the legal claims for the class.” Prado-Steiman v. Bush, 221 F.3d 1266, 1279 (11th

15

Cir. 2000).

16

However, Plaintiffs argue that even if the named Plaintiffs do not have claims for damages due

17

to compensation discrimination, they nonetheless have standing to seek injunctive relief directed at

18

compensation discrimination at Boeing. At oral argument, Plaintiffs also cited Rossini v. Ogilvy &

19

Mather, Inc., 798 F.2d 590 (2d Cir. 1986), and General Telephone Co. of the Southwest v. Falcon,

20

457 U.S. 147 (1982), to support their argument that the named Plaintiffs may serve as representatives

21

for a compensation discrimination class even if they do not have individual compensation

22

discrimination claims.

23

24

25

26 ORDER - 10

Case 2:98-cv-00761-MJP Document 915 Filed 11/04/2005 Page 11 of 17

1

i. Standing To Seek Injunctive Relief

2

Plaintiffs argue that the “three named plaintiffs who currently work for Heritage Boeing – Ms.

3 Ferguson, Ms. Ferrari and Mr. Biglow – have standing to seek an injunction, regardless of whether

4 they have damage claims during the limitations period.” (Opp. Brief at 17). To support their

5 argument, Plaintiffs cite Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 171 (2d Cir. 2001).

6

Robinson is not analogous to the situation here. In Robinson, the plaintiffs alleged race

7 discrimination on behalf of a class and sought both injunctive and monetary relief. Id. at 155. While

8 pursuing the litigation, the named plaintiffs entered into a settlement stipulation in which they agreed

9 only to “participate as named plaintiffs and/or class representatives . . . in support of the class claims

10 and/or [to] receive any class-wide injunctive relief,” “but not [to seek] individual relief of any kind,”

11 including monetary relief. Id. at 171. The defendant argued that as a result of this settlement

12 stipulation, Plaintiffs could not serve as adequate representatives for the class, since they had agreed

13 not to pursue claims for damages. The court rejected that argument.

14

Unlike here, there was no question in Robinson that the named plaintiffs had standing in the

15 first instance to pursue their claims; instead, the question was whether the named plaintiffs could serve

16 as adequate class representatives after they had settled their individual monetary claims with

17 defendant. Robinson cannot be read to provide that named plaintiffs in a class action may seek

18 injunctive relief to remedy injuries that they have not experienced themselves.

19

ii. Rossini and Falcon

20

Although not cited in their briefing, at oral argument Plaintiffs pointed to Rossini v. Ogilvy &

21 Mather, Inc., 798 F.2d 590 (2d Cir. 1986), a case in which the Second Circuit held that a named

22 plaintiff who alleged discrimination in transfers could serve as a representative for a class asserting

23 claims for discrimination in promotion and training. The Rossini court found that the named plaintiff

24 offered evidence that, if believed, indicated that the employer “discriminated ‘in the same general

25

26 ORDER - 11

Case 2:98-cv-00761-MJP Document 915 Filed 11/04/2005 Page 12 of 17

1 fashion’ against [the named plaintiff] in her quest for transfer and against other class members seeking

2 training or promotion.” Id. at 598.

3

Rossini turned on the Supreme Court’s ruling in General Telephone Co. of the Southwest v.

4 Falcon, 457 U.S. 147 (1982) (“Falcon”), which addressed the ability of a named plaintiff who allegedly

5 experienced one form of discrimination to maintain an “across-the-board” challenge to other forms of

6 alleged discrimination by an employer. In Falcon, the named plaintiff alleged that he had experienced

7 discrimination in promotions. He also sought to maintain class claims for discrimination in hiring. The

8 Falcon Court noted that Rule 23(a) requirements “effectively ‘limit the class claims to those fairly

9 encompassed by the named plaintiff’s claims.’” Id. at 156 (internal citation omitted). The Court found

10 that the named plaintiff’s claim for discrimination in promotions did not fairly encompass the class

11 claims for discrimination in hiring, noting that “[t]he mere fact that an aggrieved private plaintiff is a

12 member of an identifiable class or persons of the same race or national origin is insufficient to establish

13 his standing to litigate on their behalf all possible claims of discrimination against a common

14 employer.” Id. at 159 n.15. The Falcon Court also emphasized that a “rigorous analysis” must be

15 conducted to ensure satisfaction of Rule 23(a)’s requirements. Id. at 161. The Court found that the

16 trial court had erred by failing “to evaluate carefully the legitimacy of the named plaintiff’s plea that he

17 is a proper class representative under Rule 23(a)” and stated that “actual, not presumed, conformance

18 with Rule 23(a) remains . . . indispensable.” Id. at 160.

19

Falcon clearly limits the ability of named plaintiffs in discrimination cases to bring “across-the-

20 board” class actions against employers. However, as the court in Rossini noted, “[t]he Falcon Court

21 did not hold that a plaintiff asserting one particular type of employment discrimination claim can never

22 represent a class of employees asserting other types.” Rossini, 798 F.2d at 597. As such, the named

23 Plaintiffs are not necessarily barred from representing a compensation discrimination class, even if they

24 do not have such claims as individuals. Nonetheless, Falcon teaches that under Rule 23(a), class

25 claims must be limited to those “fairly encompassed” by the named Plaintiffs claims. Falcon, 457 U.S.

26 ORDER - 12

Case 2:98-cv-00761-MJP Document 915 Filed 11/04/2005 Page 13 of 17

1 at 156. In addition, Falcon emphasizes the need for a “rigorous analysis” to ensure that Rule 23(a)

2 requirements are met; compliance with Rule 23(a) may not be presumed. Id. at 160-61.

3

In this case, no “rigorous analysis” of the named Plaintiffs ability to satisfy Rule 23(a)

4 requirements for the class compensation discrimination claim asserted in the Second Amended

5 Complaint has ever occurred. Instead, Plaintiffs argued at the class certification stage of the

6 proceedings that Rule 23(a) analysis was not necessary. Because Boeing did not dispute that

7 assertion, compliance with Rule 23(a) was effectively presumed, based on the Ninth Circuit’s decision

8 in Staton upholding Judge Coughenour’s determination in 1999 that Rule 23(a) requirements had been

9 satisfied for the settlement class. This presumption of compliance with Rule 23(a) was not

10 appropriate. Although the Staton court upheld the 1999 certification of a broad class for settlement

11 purposes, the certification of that class in 1999 did not concern the compensation discrimination claim

12 first alleged in 2004 in the Second Amended Complaint – a claim that is limited to acts or conduct

13 after May 28, 2000. Under these circumstances, the compensation discrimination class should not

14 have been certified without a rigorous analysis showing that the named Plaintiffs satisfied the

15 requirements of Rule 23(a) for the newly-asserted compensation discrimination claim.

16

It should also be noted that the Court has determined that the compensation claim “does not

17 arise out of the same operative facts as the promotions [claim].” (Dkt. No. 793 at 7). The Court

18 made this determination in ruling on Boeing’s motion for partial summary judgment to restrict the

19 compensation claim, on statute of limitations grounds, to those based on acts or conduct after May 28,

20 2000. In analyzing whether the compensation claims alleged for the first time in the Second Amended

21 Complaint related back to the promotion claims asserted in the earlier complaints, the Court found that

22 “[n]ot only are the core operative facts different, but the evidence that Plaintiffs will rely on to prove

23 the salary compensation claim will be different” from the promotion claim. Id. In light of this ruling,

24 it would be incongruous to find that compensation discrimination claims first alleged in the Second

25

26 ORDER - 13

Case 2:98-cv-00761-MJP Document 915 Filed 11/04/2005 Page 14 of 17

1 Amended Complaint are “fairly encompassed” by the promotion discrimination claims previously

2 asserted by Plaintiffs. See Falcon, 457 U.S. at 156.

3

Therefore the Court finds that the named Plaintiffs have not demonstrated their ability to serve

4 as representatives for the compensation discrimination class under the principles of Falcon or Rossini.

5

6 2. Decertification Request

7

“Even after a certification order is entered, the judge remains free to modify it in the light of

8 subsequent developments in the litigation.” Falcon, 457 U.S. at 160. Boeing argues that the

9 compensation class should be decertified because the named Plaintiffs lack standing to maintain

10 individual compensation discrimination claims and cannot satisfy the typicality and adequacy of

11 representation prongs of Rule 23(a) for a compensation class. The Court agrees that decertification of

12 the compensation discrimination class is warranted.

13

Plaintiffs indicated at oral argument that they would request leave to amend the operative

14 complaint in order to address standing or Rule 23(a) concerns. Plaintiffs also indicated in a letter sent

15 to the Court following oral argument that they are “prepared to immediately file . . . a motion for

16 intervention by an absent class member with a post-May 2000 compensation claim if the Court deems

17 it necessary and proper” and maintained that “the compensation class should not be decertified without

18 [Plaintiffs’] first being permitted to file a motion for intervention.” (Dkt. No. 909). In response,

19 Boeing submitted a letter to the Court indicating its opposition to granting either leave to amend or to

20 intervene. (Dkt. No. 910).

21

The Court sees no basis to grant leave to amend the Second Amended Complaint. In the most

22 recent scheduling order issued in this matter, the Court set a deadline of July 18, 2005 for filing

23 amended pleadings. (Dkt. No. 646). Furthermore, since this litigation has been pending for seven

24 years, leave to amend would cause undue delay in the proceedings.

25

26 ORDER - 14

Case 2:98-cv-00761-MJP Document 915 Filed 11/04/2005 Page 15 of 17

1

The Court also finds that decertification should not be delayed to permit intervention by absent

2 class members. The Ninth Circuit’s decision in Lierboe v. State Farm Mutual Automobile Insurance

3 Co., 350 F.3d 1018 (9th Cir. 2003), is instructive on this point. In Lierboe, the district court initially

4 certified a class, but it was subsequently determined that the named plaintiff did not have a valid claim

5 from the outset of the litigation. The Ninth Circuit noted that if the plaintiff “initially had a viable . . .

6 claim that later became moot, then our law in an appropriate case would permit substituting proper

7 class representatives to allow the suit to proceed.” Id. at 1023 n.6. However, the court found:

8

[B]ecause this is not a mootness case, in which substitution or intervention might have been

possible, we remand this case to the district court with instructions to dismiss. We are

9

persuaded by the Seventh Circuit’s approach in an analogous case, Foster v. Center Township

of LaPorte County, 798 F.2d 237, 244-45 (7th Cir. 1986), which held that where the sole

10

named plaintiff “never had standing” to challenge a township’s poor-relief eligibility guidelines,

and where “she never was a member of the class she was named to represent,” the case must

11

be remanded with instructions to dismiss.

12 Id. at 1023.

13

Similarly, this is not a case where the named Plaintiffs initially had viable compensation

14 discrimination claims during the relevant liability period that subsequently became moot. Instead, the

15 named Plaintiffs have not demonstrated standing in the first instance to maintain such claims.

16 Under these circumstances, decertification of the compensation discrimination class is warranted and

17 intervention would not be appropriate. See, e.g., Lidie v. State of California, 478 F.2d 552, 555 (9th

18 Cir. 1973) (“where the original plaintiffs were never qualified to represent the class, a motion to

19 intervene represents a back-door attempt to begin the action anew, and need not be granted”); see also

20 McClune v. Shamah, 593 F.2d 482, 486 (3d Cir. 1979) (“A motion for intervention under Rule 24 is

21 not an appropriate device to cure a situation in which plaintiffs may have stated causes of action that

22 they have no standing to litigate.”).

23

24

25

26 ORDER - 15

Case 2:98-cv-00761-MJP Document 915 Filed 11/04/2005 Page 16 of 17

1 3. Motion for Partial Summary Judgment on the Class Claim for Compensation Discrimination

2

Because the Court is ordering decertification of the compensation class, it would not be

3 necessary or appropriate for the Court to reach Boeing’s request for summary judgment on the class

4 compensation discrimination claim.

5

6 4. Notice to Absent Class Members

7

The Court finds that notice of the decertification of the compensation discrimination class

8 should be sent to absent class members. See Culver v. City of Milwaukee, 277 F.3d 908, 914-15 (7th

9 Cir. 2002). Class counsel shall prepare notice for the Court’s approval within seven days of the date

10 of this order.

11

12

Conclusion

13

The named Plaintiffs lack standing to maintain individual compensation discrimination claims

14 against Boeing after May 28, 2000, which is the relevant liability period for such claims in this

15 litigation. Therefore, the Court GRANTS Boeing’s request for summary judgment on the individual

16 compensation discrimination claims of named Plaintiffs Kevin Biglow, Rhonda Capps, Doreen

17 Ferguson, Mara Ferrari, and Beverly Trotter.

18

The Court also GRANTS Boeing’s motion to decertify the compensation discrimination class

19 that was certified in January 2005. Because the named Plaintiffs lack standing to maintain individual

20 compensation discrimination claims, they do not satisfy the typicality requirements of Rule 23(a) and

21 cannot serve as class representatives for this claim. See, e.g., Prado-Steiman v. Bush, 221 F.3d 1266,

22 1279 (11th Cir. 2000) (“It should be obvious that there cannot be adequate typicality between a class

23 and a named representative unless the named representative has individual standing to raise the legal

24 claims for the class.”).

25

26 ORDER - 16

Case 2:98-cv-00761-MJP Document 915 Filed 11/04/2005 Page 17 of 17

1

Because the Court has concluded that the compensation discrimination class should be

2 decertified, it would not be appropriate or necessary for the Court to issue a ruling on the merits of the

3 class-wide allegations of compensation discrimination by Boeing. Therefore, Boeing’s request for

4 summary judgment on the class compensation discrimination claim is STRICKEN as moot.

5

The Court’s order does not preclude absent class members from pursuing compensation

6 discrimination claims against Boeing, either as individuals or as a putative class action. In addition,

7 this order does not affect the class claim alleging discrimination in promotions by Boeing. Trial on the

8 class promotion discrimination claim will go forward as scheduled on December 5, 2005.

9

The clerk is directed to send copies of this order to all counsel of record.

10

Dated: November 4, 2005

11

12

s/Marsha J. Pechman

Marsha J. Pechman

13

United States District Judge

14

15

16

17

18

19

20

21

22

23

24

25

26 ORDER - 17

 
 Case 2:98-cv-00761-MJP Document 1042 Filed 02/06/2006 Page 1 of 1

United States District Court

WESTERN DISTRICT O~l~HINGTON

._._.._._-_-flOilEDDG£D

- ~ECENED
~

Hr,' 6 2006

SOLOMON WILLIAMS, et w..;t~~'uAP8l""~OE,I:SA,Tr{R'lI·.Cl'l CW'QAI",lf"ll,"OMG'oEl'UlIUDGMENT IN A CIVIL CASE

"
Plaintiffs

v.

CASE NO. C98-761 P

THE BOEING COMPANY, et al.,

Defendants.

_x_ --.X....

Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.
Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED: Pursuant to Rule 54(b). jl,ldgment is entered in favor of Defendant as to all claims alleged by all members of the class certified in the Court's order of January 21, 2005
(and amended on January 28, 2005). The Court finds that there is no just reason to dElI$y enny of
jl,ldgment a$ to those claims.

Dated:

February 6, ;2006

BRUCE RIFKIN, Clerk of Court

By, Deput~ Clerk

111111111111111111111111111111111111111111111 11111111111111111111111111111111111
9H·CV-4Ml761,IGM

 
 Case 2:98-cv-00761-MJP Document 1046 Filed 03/07/2006 Page 1 of 36

1

The Honorable Marsha J. Pechman

2

3

4

5

6

7

8

9

UNITED STATES DISTRICT COURT, WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

10

11 SOLOMON WILLIAMS; and all persons similarly situated,
12 Plaintiffs,
13 v.
14 THE BOEING COMPANY, et al.,
15 Defendants.
16

No. C98-761P NOTICE OF APPEAL

17

18

Notice is hereby given that Mara Ferrari, Rhonda Capps, Kevin Biglow, Doreen

19 Ferguson and Beverly Trotter, plaintiffs in the above named case on behalf of themselves and all

20 others similarly situated, hereby appeal to the United States Court of Appeals for the Ninth

21 Circuit from the final judgment entered in this action on February 6, 2006 [Dkt. #1042], from the
22 Order Granting Defendants’ Motion for Partial Summary Judgment [Dkt. # 793], entered on 23
January 10, 2005, from the Order Denying in Part and Granting in Part Plaintiffs’ Motion for 24
Reconsideration of Order Granting Partial Summary Judgment and Granting Plaintiffs’ Motion 25 26 to Strike [Dkt. # 817], entered on February 15, 2005, and from the Order on Boeing’s Motion for

NOTICE OF APPEAL – 1 Case No. C98-761P
001669-12 87666 V1

• 1301 FIFTH AVENUE, SUITE 2900 SEATTLE, WA 98101 TELEPHONE (206) 623-7292 • FACSIMILE (206) 623-0594

Case 2:98-cv-00761-MJP Document 1046 Filed 03/07/2006 Page 2 of 36

1 Partial Summary Judgment on Plaintiffs’ Compensation Discrimination Claim and to Decertify

2 the Class as to That Claim [Dkt. #915], entered on November 4, 2005. A copy of all Orders and
3 the Judgment are attached to this Notice.
4

5

DATED: March 7, 2006

6 HAGENS BERMAN SOBOL SHAPIRO LLP
7

8

By: s/ Craig R. Spiegel

Craig R. Spiegel, WSBA #31955

9

Steve W. Berman

Ivy D. Arai

10

1301 Fifth Avenue, Suite 2900

Seattle WA 98101

11

Telephone: (206) 623-7292

Fax: (206) 623-0594

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

NOTICE OF APPEAL – 2 Case No. C98-761P
001669-12 87666 V1

• 1301 FIFTH AVENUE, SUITE 2900 SEATTLE, WA 98101 TELEPHONE (206) 623-7292 • FACSIMILE (206) 623-0594

Case 2:98-cv-00761-MJP Document 1046 Filed 03/07/2006 Page 3 of 36
Oes s 2-08 o:s 90761 MJP D: :'11"11 et 1042 Filed 02;'90t2006 Plge'i:f 1

United States District Court
WES__T__fE_i_Rl_ENlOODDGI£SDTR- ~ ICT-O~~ECEll'~IE~.OHINGTON

FFl1, .» 6 2006

SOLOMON WILLIAMS, et We!i~~~~Ku1P\1sliSDE.I:tS1>.TTRIiLIllEeG.rTc~0r',"Ii"ll'AliHINGT~UlJUDGMENT IN A CIVIL CASE
sV

Plaintiffs
v.

CASE NO. C98-761 P

THE BOEING COMPANY, et al.,

Defendants.

_x_ -.lL

Jury Verdict. This Bction came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.
Deci$ion by Court. This Bction came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED: Pursuant to Rule 541bl. jl,ldgrYIel1t is entered In favor of Defendant as to all claims alleged by all members of the class certified in the Court's order of January 21, 2005 (and amended on Januarv 20, 20051. The Court finds that there is no just reason to dEll$ly enlry of judgMent tilt to those claims.

Dated:

February 6, 2006

BRUCE RIFKIN, Clerk of Court

By, Deput~ Clerk

1111111,1,_111111111111111 11111111., 1IIII1II III1I1II 111111111111111111111111111
9H·CV-00761 ...JGM

Case 2:98-cv-00761-MJP Document 1046 Filed 03/07/2006 Page 4 of 36 Case 2:98-cv-00761-MJP Document 793 Filed 01/10/2005 Page 1 of 11

1
2

3

4
5

6

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

7

AT SEATTLE

8 SOLOMON WILLIAMS, et aI.,

9

Plaintiffs,

10

v.

11 THE BOEING COMPANY, et aI.

12

Defendants.

13

No. C98-761P
ORDER GRANTING DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT

14 This matter comes before the Court on Defendants' Motion for Partial Summary Judgment.
15 (Dkt. No. 772). Having reviewed the pleadings and supporting materials, the Court GRANTS
16 Defendants' motion and DISMISSES Plaintiffs' 42 U.S.c. § 1981 claim of discrimination in
17 compensation for salaried employees based on acts or conduct prior to June 11, 2000. Plaintiffs
18 Second Amended Complaint is the first time they allege a claim for racial discrimination in
19 compensation for salaried employees. As such, the four-year statute oflimitations for § 1981 claims
20 applies and any claims relating to conduct or actions prior to June 11,2000 (four years before the
21
22 Second Amended Complaint was filed) are time-barred. Contrary to Plaintiffs' assertion, Boeing is 23 not judicially estopped from seeking summary judgment on this issue by virtue ofthe Consent Decree.
The Consent Decree was directed at rectifYing discrimination in promotions, retaliation, and a hostile 24
work environment; it was not directed at discrimination in compensation of salaried employees. 25

ORDER-J

Case 2:98-cv-00761-MJP Document 1046 Filed 03/07/2006 Page 5 of 36 Case 2:98-cv-00761-MJP Document 793 Filed 01/10/2005 Page 2 of 11

1 Likewise, Plaintiffs' compensation claim does not relate back under Fed. R. Civ. P. 15(c) to Plaintiffs'

2 original or First Amended Complaint. Plaintiffs did not allege facts in those complaints that Boeing

3 discriminated in terms of compensation. The compensation claim does not arise out of the same

4 operative facts as the promotions, retaliation, and hostile work environment claims that Plaintiffs

5 alleged in their original and First Amended Complaints.

6

BACKGROUND

7

Plaintiffs filed a Complaint against Boeing on June 4, 1998, alleging racial discrimination in

8 promotions, training, retaliation, and a hostile work environment. (Dkt. No.1) They filed a First

9 Amended Complaint on November 4, 1998, alleging these same forms of racial discrimination (the

10 amended complaint added additional named representatives and Defendants). (Dkt. No. 93).

11

In August, 1999, Plaintiffs served Boeing a discovery request with interrogatories and requests

12 for production of documents. Boeing responded in September, 1999, asserting general and specific

13 objections to many ofthe requests for production.

14

Plaintiffs did not file a motion to compel. Any emerging discovery disputes were cut short

15 because later in September, 1999, the parties entered a Consent Decree. Judge Coughenour approved

16 the Consent Decree. In 2003, the Ninth Circuit reversed on fairness grounds and remanded. Stanton

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

18

On June 11,2004, Plaintiffs filed a Second Amended Complaint, alleging racial discrimination

19 in compensation for salaried employees, overtime for hourly employees, as well as promotions,

20 retaliation, and a hostile work environment. (Dkt. No. 651).

21

Boeing moves for partial summary judgment, seeking dismissal of Plaintiffs' 42 U.S.c. § 1981

22 claim of discrimination in compensation for salaried employees based on acts or conduct prior to June

23 11, 2000. Boeing contends that this claim for acts before June 11, 2000 is barred by the four-year

24 statute oflimitations and that this claim does not relate back to Plaintiffs' original or First Amended

25 Complaints.

ORDER-2

Case 2:98-cv-00761-MJP Document 1046 Filed 03/07/2006 Page 6 of 36 Case 2:98-cv-00761-MJP Document 793 Filed 01/10/2005 Page 3 of 11

1

ANALYSIS

2

Summary judgment is not warranted if a material issue offact exists for trial. Warren v. City

3 of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995), cert. denied, 516 U.S. 1171 (1996). The underlying

4 facts are viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus.

5 Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "Summary judgment will not lie if ... the

6 evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v.

7 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party moving for summary judgment has the

8 burden to show initially the absence of a genuine issue concerning any material fact. Adickes v. S.H.

9 Kress & Co., 398 U.S. 144, 159 (1970). However, once the moving party has met its initial burden,

10 the burden shifts to the nonmoving party to establish the existence of an issue of fact regarding an

11 element essential to that party's case, and on which that party will bear the burden ofproof at trial.

12 Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). To discharge this burden, the nonmoving

13 party cannot rely on its pleadings, but instead must have evidence showing that there is a genuine issue

14 for trial. Id. at 324. Additionally, "at the summary judgment stage the judge's function is not ... to

15 weigh the evidence ... but to determine whether there is a genuine issue for trial." Liberty Lobby,

16 477 U.S. at 249.

17

The statute of limitations for actions under 42 U.S.c. § 1981 is four years. 28 U.S.c. §

18 1658(a). Plaintiffs' Second Amended Complaint alleging racial discrimination in compensation of

19 salaried employees was filed June 11, 2004. Therefore, Plaintiffs' salary compensation claim can

20 extend to events only as far back as June 11, 2000. Plaintiffs argue that salary compensation claim can

21 include actions or conduct going as far back as June, 1994 because: 1) Boeing is judicially estopped

22 from arguing that Plaintiffs failed to allege the salary compensation claim earlier, and 2) Plaintiffs'

23 salary compensation claim relates back under Rule 15(c) to their original complaint filed in 1998.

24 Neither argument is persuasive.

25 I. Judicial Estoppel

ORDER-3

Case 2:98-cv-00761-MJP Document 1046 Filed 03/07/2006 Page 7 of 36 Case 2:98-cv-00761-MJP Document 793 Filed 01/10/2005 Page 4 of 11

1

Plaintiffs assert that Boeing should be judicially estopped from arguing that Plaintiffs did not

2 allege salary discrimination in 1998 on the grounds that Boeing acknowledged in the Consent Decree

3 that Plaintiffs had alleged salary discrimination and then sought and obtained (temporarily) court

4 approval ofthat Consent Decree. Boeing counters that it consistently took the position until Plaintiffs

5 filed their Second Amended Complaint that Plaintiffs' claims were limited to the promotion,

6 retaliation, and hostile work environment claim, and that the Consent Decree merely contained a

7 standard broad release of all possible and related claims of discrimination, but that nothing in the

8 injunctive or monetary relief portions ofthe Consent Decree addressed any salary discrimination

9 claims specifically.

l O A party is judicially estopped from asserting a certain position ifthat party previously and

11 successfully asserted the contrary position. This is especially true when doing so would prejudice the

12 opposing party. New Hampshire v. Maine, 532 U.S. 742, 749 (2001). The purpose ofthe doctrine is

13 to "protect the integrity ofthe judicial process." Id. (quotation and citation omitted). Application of

14 the doctrine is appropriate when: 1) the party's current position is "clearly inconsistent" with its earlier

15 position, 2) the party was successful in persuading a court to accept its earlier position, and 3) the

16 party would obtain an unfair advantage or impose an unfair detriment on the opposing party if not

17 estopped. Id. at 750-51. The court may consider additional facts specific to the factual context at

18 hand.

19

The "Litigation Background" section ofthe Consent Decree stated that:

20

The Plaintiffs in the Alleged Class Action contend that Boeing has engaged in a policy

or pattern or practice ofunlawful Discrimination ... in respect to promotions within

21

the hourly ranks, promotions from hourly positions into managerial and other salaried

positions, promotions among salaried positions, training, education, skills and career

22

development, performance appraisals, transfers, compensation, discharge, discipline and

other terms, benefits and conditions of employment.

23

(Berman Dec1., Ex. 7 at 6). Plaintiffs point to this language and the fact that the district court

24

approved the Consent Decree and argue that Boeing successfully represented to the Court that

25

ORDER-4

Case 2:98-cv-00761-MJP Document 1046 Filed 03/07/2006 Page 8 of 36 Case 2:98-cv-00761-MJP Document 793 Filed 01/10/2005 Page 5 of 11

1 Plaintiffs had alleged the salary compensation claim, which is "clearly inconsistent" with the position

2 Boeing is asserting in the instant motion. Boeing counters that it never attempted to persuade the

3 Court that Plaintiffs had alleged a salary compensation claim and that the reference to it in the

4 Consent Decree is "merely ... a laundry list ofpossible claims." (Defs' Reply at 6).

5

Despite the fact that the above-quoted Consent Decree language refers to a compensation

6 claim alleged by Plaintiffs, the Court is not persuaded that this language alone judicially estops

7 Boeing. The Consent Decree released Boeing from any and all claims, "known or unknown" by class

8 members ''which arise out of or are related to ... any conduct ... allegedly constituting Race

9 Discrimination under Title VII ...." (Berman Decl., Ex. 7 at 12). As such, the Consent Decree

10 included a broad release of all possible racial discrimination claims, whether pled in the complaint or

11 not. It is standard practice for a party to attempt to protect itself from all possible related claims both 12 pled and not pled as a condition for settling. More telling in this instance is the fact that the injunctive

13 and equitable relief portion ofthe Consent Decree specifically referred to training and information

14 regarding promotions and prevention of racial harassment, but made no reference to compensation.

15 (Id. at 16-25). Likewise, the monetary relief portion set out a "point system" for allocating funds,

16 which specifically referred to promotions, but made no reference to compensation. (ld. at 25-30).

17 The questionnaire on the claim form, which class members were to fill out to receive a portion ofthe

18 monetary damages, asked about the class member's experiences regarding promotions, racial

19 harassment, and retaliation, but did not ask about compensation. (ld, Ex. B to Consent Decree).

20

In light ofthe absence of any relief regarding compensation, Boeing's current position that

21 Plaintiffs never asserted a salary compensation claim until they filed their Second Amended Complaint

22 is not "clearly inconsistent" with the position Boeing took in the Consent Decree. In sum, nothing in

23 the Consent Decree judicially estops Boeing from obtaining partial summary judgment on the salary 24 compensation claim.

25 II. Relation Back Under Rule 15(c)

ORDER-5

Case 2:98-cv-00761-MJP Document 1046 Filed 03/07/2006 Page 9 of 36 Case 2:98-cv-00761-MJP Document 793 Filed 01/10/2005 Page 6 of 11

1

Rule 15(c) provides that an amendment to a pleading relates back to the date ofthe original

2 pleading when "the claim ... asserted in the amended pleading arose out ofthe conduct, transaction,

3 or occurrence set forth or attempted to be set forth in the original pleading." Rule 15(c)(2). In

4 determining whether a new claim relates back under this provision, the court should consider

5 ''whether the original and amended pleadings share a common core of operative facts so that the

6 adverse party has fair notice ofthe transaction, occurrence, or conduct called into question." Martell

7 v. Trilogy Limited, 872 F.2d 322,325 (9th Cir. 1989). One indication that the new claim that arises 8 out ofthe same operative facts is ifthe plaintiffwill rely on the same evidence to prove the new claim

9 that will be used to prove the originally pled claim. Percy v. San Francisco Gen. Hosp., 841 F.2d 10 975,978 (9th Cir. 1988). Because Rule 15(c) is "intimately connected with the policy ofthe statute

11 oflimitations," the rule requires that the defendant have notice ofthe particular set offacts on which 12 the new claim is based. Id. at 979 (citing the Rule 15 Advisory Committee Notes to the 1966

13 Amendment). In sum, the relevant factors in determining relation back are: 1) whether the new claim 14 is based on the same operative facts as the claims in the original complaint, 2) whether the new claim

15 will be proven by the same evidence as the original claims, and 3) whether the defendant had notice of 16 the facts that form the basis of the new claim.

17

A. Same Operative Facts and Same Evidence to Prove New Claim

18

The facts supporting Plaintiffs' claim for discrimination in salary compensation will likely

19 focus on a statistical comparison of African-American employees' salaries and their white

20 counterparts' salaries, as well as the criteria used in setting salaries. In contrast, the facts supporting

21 Plaintiffs' claim for discrimination in promotions will likely focus on a statistical comparison ofthe

22 number ofpromotions that African-Americans applied for and received (or were qualified for but did

23 not receive) and those of their white counterparts, as well as the selection criteria for awarding 24

25

ORDER-6

Case 2:98-cv-00761-MJP Document 1046 Filed 03/07/2006 Page 10 of 36 Case 2:98-cv-00761-MJP Document 793 Filed 01/10/2005 Page 7 of 11

1 promotions. Not only are the core operative facts different, but the evidence that Plaintiffs will rely

2 on to prove the salary compensation claim will be different.l

3

Additionally, Plaintiffs' Second Amended Complaint contains factual assertions to support the

4 salary compensation claim that were not asserted in the original or First Amended Complaints.

5 Neither the original Complaint nor the First Amended Complaint ever specifically alleged

6 discrimination in compensation for salaried employees or any facts showing discrimination in

7 compensation. The mere fact that the named representatives included salaried employees does not

8 establish that they alleged discrimination in compensation. The factual allegations relating to these

9 individual salaried employees specifically refer to discrimination in promotions and a hostile work

10 environment, but do not refer to discrimination in compensation. (CompI., ~~ 53,59,61; First Am.

11 Compi., ~~ 75, 80, 82, 87-88, 94, 96-98). The general factual allegations in both complaints

12 specifically refer to discrimination in promotions, training necessary to compete for promotions,

13 retaliation, and a hostile work environment. (Compi., ~~ 39-42,47; First Am. CompI., ~~ 58-61,66,

14 68). The only explicit reference to compensation or pay is in one paragraph: "Senior management at

15 Boeing/defendant employers is well aware that there is a company-wide pattern and practice ofracial

16 discrimination in promotion, pay and other areas." (Compi., ~ 43; First Am. Compi., ~ 62). In

17 contrast, the Second Amended Complaint alleges many facts that specifically and explicitly relate to

18 the salary compensation claim. (Second Am. Compi., ~~ 58,60,63-64, 71-72, 76, 78-79, 81).

19

The comparison ofthe factual assertions in the original and First Amended Complaints with

20 the Second Amended Complaints highlights that fact that the compensation claim does not arise out

21 of the same operative facts as the promotions, training, retaliation, or hostile work environment

22 claims.

23

24

1 This is true even if other evidence that Plaintiffs will rely on, such as Boeing's internal

studies regarding adverse impacts on minority employees regarding compensation, promotions, and 25 other criteria, is the same for both the salary compensation claim and the promotions claim.

ORDER-7

Case 2:98-cv-00761-MJP Document 1046 Filed 03/07/2006 Page 11 of 36 Case 2:98-cv-00761-MJP Document 793 Filed 01/10/2005 Page 8 of 11

1

B. Notice ofthe Facts That Are the Basis ofthe Salary Compensation Claim

2

As highlighted above, the numerous factual allegations in the original and First Amended

3 Complaints are squarely directed at discrimination in promotions, training, retaliation, and a hostile

4 work environment. This, plus the absence of any factual assertions relating to compensation,

5 especially in the paragraphs detailing the discrimination suffered by the salaried named representatives

6 belies any notion that one passing general reference to discrimination in pay is sufficient to have put

7 Boeing on notice that facts relating to compensation of salaried employees would be at issue. Any

8 alleged discrimination in compensation of salaried employees cannot be said to have been brought to

9 Boeing's attention by the allegations in the original or First Amended Complaints.

10

Plaintiffs point to more vague language in the original and First Amended Complaints to argue

11 that their allegations were broad enough to have encompassed the salary compensation discrimination

12 claim, and that Boeing was therefore on notice that salary compensation would be at issue. The

13 original and First Amended Complaints both repeatedly referred to Boeing having subjected African-

14 Americans to "different terms and conditions of employment" or "different treatment on the basis of

15 their race." (CompI., ~~ 27,47,66,71; First Am. CompI., ~~ 46,49,68).2 However, in describing

16 the "Nature ofthe Case" and the "Class Allegations" in the original and First Amended Complaints,

17 Plaintiffs specifically referred to racial discrimination in promotions, retaliation, and a hostile work

18 environment, but did not refer anywhere to payor compensation. (CompI., ~~ 2-4, 27, 30; First Am.

19 CompI., ~~ 2-4, 46, 49). The only exception is a reference in the ''Nature ofthe Case" section in the

20 First Amended Complaint, which states that "plaintiffs are qualified persons who have been denied the

21 opportunity for promotion and pay increases, who have been subjected to a hostile work

22 environment, and/or have been retaliated against ...." (First Am. CompI., ~ 2). In this context, it is

23

24

2 Similarly, the factual assertions for the individual representative salaried employees allege

that Boeing SUbjected them to "different conditions of employment." (CompI., ~~ 53, 59, 61; First

25 Am. Compi. ~~ 75,80,82,87-88,94,96-98)

ORDER-8

Case 2:98-cv-00761-MJP Document 1046 Filed 03/07/2006 Page 12 of 36 Case 2:98-cv-00761-MJP Document 793 Filed 01/10/2005 Page 9 of 11

1 more reasonable to interpret "pay increases" as increases that would have accompanied promotions,

2 not as equality of pay with white employees.

3

Given the specificity ofthe promotions, retaliation, and hostile work environment claims

4 throughout the complaints, this single ambiguous reference together with repeated references to

5 discrimination in ''terms and conditions of employment" cannot be said to have put Boeing on notice

6 that Plaintiffs were also alleging discrimination in salary compensation. See Barcume v. City of Flint,

7 819 F. Supp. 631, 637-38 (E.D. Mich. 1993) (court held that new claims of sexual harassment and

8 disparate treatment did not relate back to claims of discrimination in hiring, promotions, and other

9 ''terms and conditions of employment" because the new claims were based on different facts and there

10 was no notice to defendant that the ''terms and conditions of employment" claim was for any violation

11 other than those explicitly alleged in the original complaint). Plaintiffs have not pointed to any case

12 where such language was sufficient to permit a new claim of discrimination to relate back. To hold

13 otherwise would be to imply that alleging discrimination in the ''terms and conditions" of employment

14 is sufficient to put the employer on notice that every aspect of employment relating to the plaintiffs is

15 potentially at issue; it would relieve the plaintiffs ofhaving to specifY at the outset what type of

16 discrimination they allegedly suffered. Further, it would permit relation back of all possible

17 employment claims and would thereby undermine the policy interests that statute oflimitations further

18 and upon which the relation back doctrine rests.

19

Plaintiffs assert that their initial discovery requests (before the parties entered the Consent

20 Decree) provided Boeing with notice that they intended to challenge Boeing's practices with respect

21 to compensation for salaried employees. Plaintiffs requested production of documents relating to the

22 number of salaried employees, describing how salaries were determined, and any studies or reports

23 analyzing compensation of African-Americans (in addition to studies or reports analyzing promotions

24 or terminations ofAfrican-Americans). (Berman Decl., Ex. 4, Request Nos. 6, 19,25). Boeing

25 objected to the requests on the grounds that they were overly broad and that, because the requests

ORDER-9

Case 2:98-cv-00761-MJP Document 1046 Filed 03/07/2006 Page 13 of 36 Case 2:98-cv-00761-MJP Document 793 Filed 01/10/2005 Page 10 of 11

1 were for confidential information, Boeing would not produce the requested documents until a

2 protective order could be entered. In response to the request to produce studies or reports, Boeing

3 stated that there were no non-privileged documents that were responsive to this request.3 (See Ex. 4

4 at 8:12-19, 10:9-16, Request Nos. 3, 6, 18, 19,25). Regardless of whether Boeing's objections were

5 specific enough, requesting information about compensation of salaried employees cannot be said to

6 have created a salary compensation claim when it was not alleged in the complaint.

7

Lastly, Plaintiffs argue that Boeing acknowledged in the Consent Decree that Plaintiffs had

8 alleged discrimination in compensation for salaried employees. This argument is similar to that in the

9 judicial estoppel section. As discussed above, while the "Litigation Background" section ofthe

10 Consent Decree did include compensation as one ofPlaintiffs' claims in addition to the promotions

11 and training claims, the relief awarded in the Consent Decree focused on promotions, retaliation, and

12 hostile work place. Further, this same sentence refers to claims for discrimination in discharge and

13 discipline, neither of which is purportedly alleged in the original or First Amended Complaints. Given

14 this, together with Boeing's attempt to protect itself through this Consent Decree by insulating itself

15 from any future race discrimination claims, even ones not plead by Plaintiffs, this reference to

16 compensation did not put Boeing on notice that Plaintiffs had alleged in their original or First

17 Amended Complaint discrimination in compensation.

18

CONCLUSION

19

The Court GRANTS Defendants' Motion for Partial Summary Judgment and DISMISSES

20 Plaintiffs' 42 U.S.c. § 1981 claim of discrimination in compensation for salaried employees based on

21 acts or conduct prior to June 11, 2000. The four-year statute oflimitations for § 1981 claims bars

22 any claims relating to conduct or actions prior to June 11, 2000 because Plaintiffs' Second Amended

23
3 Plaintiffs further argue that Boeing's PAT study was responsive and that Boeing failed to 24 include it on Boeing's privilege log. Whether this is true or not, it is not relevant to whether Boeing
had notice through Plaintiffs' discovery requests that Plaintiffs were alleging discrimination in 25 compensation of salaried employees.

ORDER -10

Case 2:98-cv-00761-MJP Document 1046 Filed 03/07/2006 Page 14 of 36 Case 2:98-cv-00761-MJP Document 793 Filed 01/10/2005 Page 11 of 11

1 Complaint, filed on June 11, 2004, is the first time Plaintiffs allege a claim for racial discrimination in

2 compensation for salaried employees. Plaintiffs' compensation claim does not relate back under Rule

3 15(c) to Plaintiffs' original or First Amended Complaint. Likewise, the principle ofjudicial estoppel 4 does not require a different result.

5

The clerk is directed to provide copies ofthis order to all counsel of record.

6

Dated: January 10, 2005

7

lsi Marsha 1. Pechman

8

Marsha J. Pechman

United States District Judge

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

ORDER-ll

Case 2:98-cv-00761-MJP Document 1046 Filed 03/07/2006 Page 15 of 36 Case 2:98-cv-00761-MJP Document 817 Filed 02/15/2005 Page 1 of 6

1

2

3

4

5

6

7

8

9

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

10

AT SEATTLE

11 SOLOMON WILLIAMS, et aI.,

12

Plaintiffs,

13

v.

14 THE BOEING COMPANY, et aI.,

15

Defendants.

16

17

18

No. C98-761P
ORDER DENYING IN PART AND GRANTING IN PART PLAINTIFFS' MOTION FOR RECONSIDERATION OF ORDER GRANTING PARTIAL SUMMARY JUDGMENT AND GRANTING PLAINTIFFS' MOTION TO STRIKE

19

This matter comes before the Court on Plaintiffs' Motion for Reconsideration ofOrder

20 Granting Summary Judgment. (Dkt. No. 794). Having reviewed the pleadings and supporting

21 materials, including Defendants' response to Plaintiffs' motion for reconsideration, the Court DENIES

22 in part and GRANTS in part Plaintiffs' motion for reconsideration.

23

In its Order Granting Defendants' Motion for Partial Summary Judgment ("Order"), the Court

24 held that Plaintiffs' salary compensation claim is barred for conduct or actions prior to June 11,2000.

25

ORDER-J

Case 2:98-cv-00761-MJP Document 1046 Filed 03/07/2006 Page 16 of 36 Case 2:98-cv-00761-MJP Document 817 Filed 02/15/2005 Page 2 of 6

1 (Dkt. No. 793). Plaintiffs request that the Court amend its Order such to bar the salary compensation

2 claim for conduct or actions prior to February 26, 1996. Plaintiffs argue that: 1) the statute of

3 limitations cannot have run from January 22, 1999 until April 29, 2003 while the settlement agreement

4 was on appeal, and 2) the limitations period stopped running on May 28, 2004 rather than June 11,

5 2004.

6

The Court denies Plaintiffs' motion as to their fIrst argument and grants their motion as to their

7 second argument. Equitable tolling does not apply to Plaintiffs' salary discrimination claim. Class

8 actions toll the statute oflimitations only for the claims pled, not for different or additional claims

9 added later such as the salary discrimination claim. Further, Plaintiffs were not barred from bringing a

10 salary discrimination claim against Boeing while the Consent Decree was on appeal. Plaintiffs' second

11 argument, however, is well taken. Therefore, the Court AMENDS its Order to bar the salary

12 compensation claim for conduct or actions prior to May 28,2000.

13

Plaintiffs fIled a Motion to Strike Boeing's Surreply. (Dkt. No. 809). The Court GRANTS

14 Plaintiffs' motion to strike Boeing's surreply because Boeing did not comply with the Local Rules in 15 fIling the surreply.

16

ANALYSIS

17

Motions for reconsideration are warranted ifthe moving party shows either that the Court

18 committed manifest error in the prior ruling or there are new facts or legal authority that could not

19 have been brought to the court's attention earlier with reasonable diligence. Plaintiffs assert that it

20 would be clear error not to amend the Court's Order as it proposes.

21 I. Equitable Tolling While the Consent Decree Was On Appeal

22

Plaintiffs contend that the statute of limitations cannot have run from the date Judge

23 Coughenour approved the Consent Decree to the date ofthe Ninth Circuit's mandate reversing

24 (January 22, 1999 until April 29, 2003) because Plaintiffs were barred from suing Boeing for salary

25

ORDER-2

Case 2:98-cv-00761-MJP Document 1046 Filed 03/07/2006 Page 17 of 36 Case 2:98-cv-00761-MJP Document 817 Filed 02/15/2005 Page 3 of 6

1 discrimination during that time. According to Plaintiffs, this time period must be tolled under 2 equitable tolling principles.

3

Equitable tolling is applied sparingly. Irwin v. Department of Veterans Affairs, 498 U.S. 89,

4 96 (1990). Equitable tolling is appropriate ''where the claimant has actively pursued his judicial

5 remedies by filing a defective pleading during the statutory period, or where the complainant has been

6 induced or tricked by his adversary's misconduct into allowing the filing deadline to pass. We have

7 generally been much less forgiving in receiving late filings where the claimant failed to exercise due 8 diligence in preserving his legal rights." Id.

9

Class actions raise unique issues regarding equitable tolling. The commencement of a class

10 action suspends the statute oflimitations for all asserted class members. Crown, Cork & Seal Co., 11 Inc. v. Parker, 462 U.S. 345, 350 (1983); American Pipe & Constr. Co. v. Utah, 414 U.S. 538, 554 12 (1974). This is true whether the class is eventually certified or denied certification. Totsi v. City of

13 Los Angeles, 754 F.2d 1485, 1488 (9th Cir. 1985). Tolling the statute oflimitations in these 14 circumstances furthers the notice function of limitations periods because "a class complaint notifies the

15 defendants ... ofthe substantive claims being brought against them ...." Crown, Cork & Seal, 462 16 U.S. at 353 (citing American Pipe, 414 U.S. at 555). However, allowing equitable tolling of claims

17 that are different from those asserted in the class complaint would undermine this important notice

18 function. As Justice Powell cautioned in his concurrence in Crown, Cork & Seal, the tolling rule of 19 American Pipe "should not be read . . . as leaving a plaintiff free to raise different or peripheral claims

20 following denial of class status." 462 U.S. at 354 (Powell, J., concurring). To do so would abuse 21 American Pipe's "generous tolling rule." Id.

22

Here, the statute oflimitations for the salary discrimination claim would only be tolled if

23 Plaintiffs' original Complaint or First Amended Complaint had included that claim. In the Court's

24 Order, the Court concluded that Plaintiffs had not asserted a salary discrimination claim in the original 25

ORDER-3

Case 2:98-cv-00761-MJP Document 1046 Filed 03/07/2006 Page 18 of 36 Case 2:98-cv-00761-MJP Document 817 Filed 02/15/2005 Page 5 of 6

1 on all members ofthe Seattle Class and will bar any person who is a member ofthe Settlement Class

2 from seeking relief from Boeing ... for any and all claims of alleged employment discrimination

3 because ofrace ...." (Order Preliminarily Approving Proposed Consent Decree, Ex. 4 at 7 (Dkt. No.

4 111) (emphasis added)). Based on this language, the Consent Decree was not in effect while on

5 appeal. Therefore, Plaintiffs would not have violated the Consent Decree by asserting a salary

6 discrimination claim while the Consent Decree was on appeal and Boeing could not have successfully

7 asserted an affirmative defense that the Claim had been released pursuant to the Consent Decree. In

8 short, unlike the IRS in Young, Plaintiffs were not legally prevented from filing a lawsuit alleging a

9 salary discrimination claim. Likewise, because the Consent Decree did not bar Plaintiffs from bringing

10 their salary discrimination claim while it was on appeal, Boeing is not estopped from asserting the 11 limitations defense now.

12

Lastly, Plaintiffs argue in their reply that the settlement class was certified for all claims and

13 therefore, under Totsi, the statute oflimitations was tolled while the Consent Decree was on appeal.

14 This argument is unpersuasive because the Court concluded in its Order that the Consent Decree did

15 not include a claim for salary discrimination. The fact that it included a release of any and all possible

16 racial discrimination claims by African-Americans, which necessarily included a salary discrimination

17 claim, is not the same as alleging a salary discrimination claim.

18 II. The Correct Date When the Limitations Period Stopped

19

Plaintiffs' argument that the limitations period stopped running on May 28, 2004 when they

20 filed their Motion for Leave to File a Second Amended Complaint, rather than June 11, 2004 when

21 they filed the Second Amended Complaint is well taken. Boeing did not respond to this argument. By

22 filing their Motion for Leave to File a Second Amended Complaint on May 28, 2004, Boeing was on

23 notice as ofthat date that Plaintiffs intended to allege a salary compensation claim.

24

CONCLUSION

25

ORDER-5

Case 2:98-cv-00761-MJP Document 1046 Filed 03/07/2006 Page 19 of 36 Case 2:98-cv-00761-MJP Document 817 Filed 02/15/2005 Page 6 of 6

1

The Court DENIES in part and GRANTS in part Plaintiffs' motion for reconsideration. The

2 Court AMENDS its Order to bar the salary compensation claim for conduct or actions prior to May

3 28,2000.

4

The clerk is directed to provide copies ofthis order to all counsel of record.

5

Dated: February 15, 2005

6

/s/ Marsha J. Pechman

7

Marsha J. Pechman

United States District Judge 8

9 10

11

12

13

14

15

16

17 18

19

20

21

22

23

24

25

ORDER-6

Case 2:98-cv-00761-MJP Document 1046 Filed 03/07/2006 Page 20 of 36 Case 2:98-cv-00761-MJP Document 915 Filed 11/04/2005 Page 1 of 17

1

2

3

4

5

UNITED STATES DISTRICT COURT

6

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

7

8 SOLOMON WILLIAMS, et al.

9

Plaintiffs,

10

v.

11 THE BOEING COMPANY, et al.

12

Defendants.

13

NO. C98-761P
ORDER ON BOEING'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON PLAINTIFFS' COMPENSATION DISCRIMINATION CLAIM AND TO DECERTIFY THE CLASS AS TO THAT CLAIM

14

15

This matter comes before the Court on Defendant Boeing Company's motion for partial

16 summary judgment on Plaintiffs' compensation discrimination claim and to decertifY the class as to

17 that claim. (Dkt. No. 890). In this motion, Boeing argues: (1) the Court should enter summary

18 judgment on the class compensation discrimination claim; and (2) in the alternative, the Court should 19 enter summary judgment on the named Plaintiffs' individual compensation discrimination claims and 20 decertifY the class as to the compensation claim because the individual named Plaintiffs lack standing 21 to maintain individual claims of compensation discrimination and cannot satisfY the typicality or 22 adequacy of representation requirements of Fed. R. Civ. P. 23(a). Having reviewed the papers and 23 pleadings submitted by the parties and having heard oral argument on this matter, the Court hereby 24 GRANTS Boeing's motion in part. 25

26 ORDER-I

Case 2:98-cv-00761-MJP Document 1046 Filed 03/07/2006 Page 21 of 36 Case 2:98-cv-00761-MJP Document 915 Filed 11/04/2005 Page 2 of 17

1

The Court GRANTS Boeing's request for summary judgment on individual compensation

2 discrimination claims of named Plaintiffs Kevin Biglow, Rhonda Capps, Doreen Ferguson, Mara

3 Ferrari, and Beverly Trotter. The Court further GRANTS Boeing's motion to decertify the

4 compensation discrimination class that had been previously certified in January 2005.

5

Because the Court has concluded that the compensation discrimination class should be

6 decertified, it would not be appropriate or necessary for the Court to issue a ruling on the merits of the

7 class-wide allegations of compensation discrimination by Boeing. Therefore, Boeing's request for

8 summary judgment on the class compensation discrimination claim is STRICKEN as moot.

9

This order does not affect the class claim for discrimination in promotions. Trial will go

10 forward on the class promotion discrimination claim as scheduled on December 5,2005.

11

Background

12

This case was originally filed in 1998 has a long procedural history, which the Court previously

13 set forth in its January 21,2005 order on class certification. (Dkt. No. 800). The Court will not

14 repeat the procedural background except to highlight facts and rulings that are pertinent to the

15 pending motion.

16

Plaintiffs' original and frrst amended complaints in this action were filed in 1998 and alleged

17 racial discrimination against African-Americans in promotions, as well as claims for retaliation and

18 hostile work environment. Before any motions to certify the class were filed, Plaintiffs and Boeing

19 reached a proposed Consent Decree. In September 1999, Judge Coughenour certified the class for

20 settlement purposes and approved the Consent Decree. In certifying the class, Judge Coughenour held

21 that Fed. R. Civ. P. 23(a)'s four requirements of numerosity, commonality, typicality, and adequacy of 22 representation were satisfied.

23

Objectors appealed the approval of the settlement. In Staton v. Boeing, 327 F.3d 938 (9th Cir.

24 2003), the Ninth Circuit upheld the district court's determination that the class certification

25

26 ORDER-2

Case 2:98-cv-00761-MJP Document 1046 Filed 03/07/2006 Page 22 of 36 Case 2:98-cv-00761-MJP Document 915 Filed 11/04/2005 Page 3 of 17

1 requirements of Rule 23(a) had been satisfied, but reversed the district court's approval of the

2 settlement on fairness grounds. The case was then remanded and ultimately transferred to this Court.

3

In June 2004, the Court granted Plaintiffs leave to file a Second Amended Complaint (SAC)

4 that included claims for racial discrimination in compensation of salaried employees. (Dkt. No. 651).

5 In their brief in support of this motion, Plaintiffs maintained that the SAC did not add any new causes

6 of action. (Dkt. No. 639). Although Boeing did not oppose Plaintiffs' motion for leave to amend,

7 Boeing disputed that the SAC did not add any new causes of action. In particular, Boeing asserted

8 that the SAC "alleges for the first time claims involving issues of alleged 'compensation

9 discrimination.'" (Dkt. No. 645).

10

On January 7,2005, the Court heard oral argument from the parties on class certification.

11 In their class certification brief, Plaintiffs argued that no additional analysis regarding Rule 23(a)'s

12 requirements was necessary in light of the Ninth Circuit's ruling in Staton, which found that the class

13 certified for settlement purposes in 1999 satisfied the requirements of Rule 23(a). (Dkt. No. 674 at

14 22). Boeing did not dispute that assertion. However, at oral argument the Court asked the parties:

15

[O]ne of the things that concerns me is that the plaintiffs want to jump over the 23(a)

requirements but it also appears to me that they have expanded the class, and so I want to

16

know if you are going to expand the class do we need to go back and go through the 23(a)

criteria for ... at least the portion of the class that is expanding?

17

(Dkt. No. 898 at 3). Plaintiffs indicated that it was not necessary to address Rule 23(a) requirement. 18

Id. at 6-7. Although Boeing stated that "[w]e think that the 23(a) issues are on the table," Boeing did 19

not offer any specific argument with respect to Plaintiffs' ability to satisfy Rule 23(a) requirements for 20

either the promotion or compensation discrimination claims. Id. at 83-84. 21

On January 21, 2005, the Court issued a class certification order that certified the following 22

class under Fed. R. Civ. P. 23(b)(2): 23

24

25

26 ORDER - 3

Case 2:98-cv-00761-MJP Document 1046 Filed 03/07/2006 Page 23 of 36 Case 2:98-cv-00761-MJP Document 915 Filed 11/04/2005 Page 4 of 17

1

African-American salaried employees employed by Heritage Boeingl from June 6, 1994 to the

present, excluding executive and SPEEA Techs, seeking injunctive relief for racial

2

discrimination in compensation and promotions.

3 (Dkt. No. 800 at 1). Because the certified class was limited to "Heritage" Boeing salaried employees,

4 Boeing maintains and Plaintiffs do not dispute that only five of the Plaintiffs named in the Second

5 Amended Complaint are included within the certified class: Kevin Biglow, Rhonda Capps, Doreen

6 Ferguson, Mara Ferrari, and Beverly Trotter (hereinafter, the "named Plaintiffs").

7

In the class certification order, the Court addressed Rule 23(a) criteria in light of the addition

8 of Plaintiffs' compensation discrimination claim as follows:

9

To the extent that the currently proposed class is the same as or smaller than the class that was

before the Ninth Circuit on appeal, the teaching of Staton is that Rule 23(a)'s four

10

requirements for class certification are met. Plaintiffs, however, seek to enlarge the class ...

by adding the salary compensation claim (which could bring in additional salaried employee

11

class members to whom the other claims did not apply) ....

12

While the proposed class is potentially larger than it was on appeal, the Court finds that there is

no reason why the addition of the salary compensation claim ... would change the Ninth

13

Circuit's 23(a) analysis. Therefore, this Court adopts the Ninth Circuit's Rule 23(a) analysis

and concludes that Rule 23(a)'s requirements have been met, notwithstanding the additional

14

claim ....

15 Id. at 7 (citations and footnotes omitted).

16

By separate orders in early 2005, the Court granted a motion by Boeing to dismiss Plaintiffs'

17 compensation discrimination claims to the extent such claims are based on acts or conduct prior to

18 May 28,2000. (Dkt. Nos. 793 & 817). In granting the motion, the Court found that Plaintiffs'

19 Second Amended Complaint represented the first time that a claim for racial discrimination in

20 compensation for salaried employees had been alleged. (Dkt. No. 793). Because it was undisputed

21 that Plaintiffs' claims for compensation discrimination could be brought only under 42 U.S.c. § 1981,

22 the Court found that the four year statute oflimitations for § 1981 claims applied and was tolled by

23 the submission of the Second Amendment Complaint on May 28, 2004.

24 1 "Heritage Boeing" refers to the Boeing Company before it acquired additional companies in
25 the late 1990s and 2000. 26 ORDER-4

Case 2:98-cv-00761-MJP Document 1046 Filed 03/07/2006 Page 24 of 36 Case 2:98-cv-00761-MJP Document 915 Filed 11/04/2005 Page 5 of 17

1

In the pending motion, Boeing argues: (1) that summary judgment should be entered on the

2 class compensation discrimination claim; and (2) in the alternative, summary judgment should be

3 entered on the named Plaintiffs' individual compensation discrimination claims and the class should be

4 decertified as to the compensation discrimination claim because the named Plaintiffs lack standing to

5 maintain such claims as individuals and cannot satisfy the typicality or adequacy of representation

6 prongs of Rule 23(a).

7

Analysis

8 1. The Named Plaintiffs' Individual Compensation Discrimination Claims

9

Boeing argues that there is no evidence (or even allegation) that any of the named Plaintiffs

10 themselves suffered racial discrimination in compensation after May 28, 2000. Therefore, Boeing

11 argues that the named Plaintiffs lack standing to maintain individual compensation discrimination

12 claims. Boeing also asserts that if the named Plaintiffs lack standing, they cannot serve as

13 representatives for a compensation discrimination class. The Court regards these arguments as

14 threshold issues that must be resolved before reaching Boeing's argument that summary judgment

15 should be entered as to the class compensation discrimination claim.

16

A. Standing Requirements

17

Standing is a jurisdictional issue that may be raised at any time. United States v. Viltrakis, 108

18 F.3d 1159, 1160 (9th Cir.1997). To have standing to maintain a claim, a plaintiff must at a minimum

19 satisfy the "actual injury" component of the standing doctrine. Casey v. Lewis, 4 F.3d 1516, 1519

20 (9th Cir. 1993). This element "requires an injury to be 'real and immediate,' not merely 'conjectural'

21 or 'hypothetical.'" Id. (citations omitted).

22

In the context of a class action, "[a] t least one named plaintiff must satisfy the actual injury

23 component of standing in order to seek relief on behalf of himself or the class." Id. (emphasis in

24 original). In cases where mUltiple claims are asserted, "it is not enough that a named plaintiff can

25 establish a case or controversy between himself and the defendant by virtue of having standing as to

26 ORDER -5

Case 2:98-cv-00761-MJP Document 1046 Filed 03/07/2006 Page 25 of 36 Case 2:98-cv-00761-MJP Document 915 Filed 11/04/2005 Page 6 of 17

1 just one of many claims he wishes to assert." Griffm v. Dugger, 823 F.2d 1476, 1483 (11th Cir.

2 1987). Instead, "each claim must be analyzed separately, and a claim cannot be asserted on behalf of a

3 class unless at least one named plaintiff has suffered the injury that gives rise to that claim." Id.

4

B. Standing of the Named Plaintiffs to Maintain Individual Compensation Discrimination

Claims

5

Boeing argues that the five named Plaintiffs "admit that they themselves have not suffered

6

compensation discrimination" during the relevant liability period (post-May 28,2000). (Opening Brief

7

at 2). As such, Boeing argues that the named Plaintiffs lack standing to maintain such claims as

8

individuals. Boeing has introduced the following evidence with respect to the named Plaintiffs:

9

*
10

Doreen Ferguson testified at her deposition that from 2001-2005, she cannot say that her supervisors discriminated against her in setting her salary because she is African American.

(Shapiro Cohen Decl., Ex. 1, at 562:25-563:14). When asked whether she felt that her

11

compensation in 2000 was in any way discriminatory based on her race, she testified "[f]or me,

because I have nothing to compare it to, I'm thinking this is good. I also work with someone,

12

a white male, who received 1,500, and he thought it was an insult, and he quit the company

because he thought it was an insult, his merit raise. So, I really have nothing to base anything

13

on. I think when I get any kind of an increase I'm doing well, but that's because I really don't

have anything to compare it with, so I think I'm fine. But if! was to listen to other people,

14

they're not happy with what they're receiving." Id. at 567:12-24.

15 *
16
17 *
18
19 *
20 21 22 23 24

Mara Ferrari, when asked whether she had any complaints against Boeing in terms of discrimination since 1999, testified "no, I have not had any complaints." (Shapiro Cohen Decl., Ex. 2 at 58:12-16).
Rhonda Capps has not worked at Boeing since 1999. (Shapiro Cohen Decl. Ex. 3). Plaintiffs do not dispute that Ms. Capps cannot maintain a compensation discrimination claim after May 28, 2000. (Opp. Brief at 17, n.7).
Kevin Biglow had summary judgment entered against him by a federal district court in Kansas on November 29, 2001 on discrimination claims against Boeing, including compensation claims. (Shapiro Cohen Decl., Ex. 6). When asked whether he believed that he had been discriminated against in terms of compensation since November 2001, Mr. Biglow testified "I believe that I have been discriminated against and my compensation has been affected because of management's manipulation of denying me promotions which affects my salary." (Shapiro Cohen Decl., Ex. 4 at 249:5-12). When Mr. Biglow was later asked "[t]o the extent you have been discriminated against in compensation, it is tied to these promotions that you did not get; is that right?" He responded "I believe that my salary has been affected because of the opportunities that - the promotional opportunities were denied." Id. at 252: 10-18.

25

26 ORDER-6

Case 2:98-cv-00761-MJP Document 1046 Filed 03/07/2006 Page 26 of 36 Case 2:98-cv-00761-MJP Document 915 Filed 11/04/2005 Page 7 of 17

1 *
2

Beverly Trotter answered "no" when asked "whether you contend that Boeing discriminated against you in terms of compensation after May of 2000?" (Shapiro Cohen Dec!., Ex. 6 at 182:17-23).

3

Boeing presents strong evidence that none of the named Plaintiffs have demonstrated standing

4 to maintain an individual claim for compensation discrimination after May 28,2000. Ms. Capps

5 clearly lacks standing because she was not working for Boeing during that period, while Ms. Ferrari

6 and Ms. Trotter indicated that they have no complaints about compensation discrimination during the

7 relevant period. Similarly, Ms. Ferguson's testified that she could not say that she had been

8 discriminated against in terms of compensation since 2000. Boeing asserts that Ms. Ferguson, who

9 works as a Library Specialist C and earns $55,022, is currently the highest paid person in the Library

10 Specialist position at any level nationwide. Finally, Mr. Biglow's deposition testimony indicates that

11 his salary complaints arise from allegations that Boeing has discriminated against him in promotions.

12 Since a promotion discrimination claim is distinct from a claim that he was paid less than similarly-

13 situated white employees for doing the same work, this testimony supports Boeing's contention that

14 Mr. Biglow lacks standing to maintain a compensation discrimination claim.

15

Plaintiffs argue that regardless of the merits of the named Plaintiffs' individual claims for

16 compensation discrimination, the named Plaintiffs "had standing to allege in the Second Amended

17 Complaint that they suffered pay discrimination in the post-May 2000 time period." (Opp. Brief at

18 20). Plaintiffs point to the Ninth Circuit's ruling in Harmsen v. Smith, 693 F.2d 932 (9th Cir. 1982),

19 which noted:

20

[S]tanding must be determined from the pleadings rather than from the liability actually

imposed. . . .. Standing ordinarily does not depend on the merits of a plaintiff s contentions;

21

the requirement is based upon a separate determination that the plaintiffs have made

"allegations of demonstrable, particularized injury." As we have stated, "failure of proof as to

22

the named plaintiffs would not bar maintenance of the class action or entry of judgment

awarding relief to the members of the class."

23

Id. at 942-43 (citations omitted).

24

25

26 ORDER-7

Case 2:98-cv-00761-MJP Document 1046 Filed 03/07/2006 Page 27 of 36 Case 2:98-cv-00761-MJP Document 915 Filed 11/04/2005 Page 8 of 17

1

In its reply brief, Boeing argues that Harmsen is not applicable because "[h]ere, the named

2 plaintiffs make no allegations that they suffered compensation discrimination in the amended

3 complaint." (Reply Brief at 10). Because this argument was raised in Boeing's reply brief, the Court

4 asked Plaintiffs to address this assertion at oral argument. Plaintiffs pointed to sections of the SAC

5 that allege discrimination by Boeing in compensation. Plaintiffs argue that under the notice pleading

6 requirements of Fed. R. Civ. P. 8(a), these allegations were sufficient to state individual claims for

7 compensation discrimination for the named Plaintiffs.

8

The SAC includes a number of allegations of compensation discrimination by Boeing against

9 African-Americans. However, in terms of specific allegations of discrimination regarding the named

10 Plaintiffs, the SAC alleges:

11

94. Doreen Ferguson has worked for Boeing for more than 20 years. When she applied for

a lead position in the maintenance stores, Boeing failed to promote her by simply

12

closing the job title and making a lateral transfer which prevented her from getting the

upgrade. The job was eventually offered to a less-qualified Caucasian worker with less

13

seniority. Ms. Ferguson has also been subject to a racially hostile work environment by

her supervisors. Boeing has failed to promote Ms. Ferguson, and has subjected her to

14

different conditions of employment than her Caucasian coworkers, based on race.

15

101. Mara Ferrari has worked for Boeing since 1986. She was a manager (PC7) but was

reclassified to a lesser position after her maternity leave. Ms. Ferrari applied for several

16

promotions. She was slated for a promotion, but was later forced into a lesser position.

The position was given to a Caucasian female, who was the daughter of the Deputy

17

Vice President of BCAG. This person has less seniority and no experience in the

organization. As to several other positions for which Ferrari applied, they were filled

18

by people who did not have to interview or the job was not posted and/or no interview

opportunity was given to Ms. Ferrari. Ms. Ferrari has been denied all promotions

19

based upon race. Boeing has failed to promote Ms. Ferrari, and has subjected her to

different conditions of employment and retaliation, based on race.

20

102. Rhonda Capps has worked for Boeing since 1976. Ms. Capps is a Senior Engineer.

21

She has applied for promotions that were given to Caucasians who had less

qualifications or fewer years of experience. She has been subjected to different terms

22

and conditions of employment than her Caucasian coworkers, based on race.

23

110. Beverly Trotter began working for Boeing in 1974. She was a computer operator

before being laid off. She applied for several promotions, but Caucasians with less

24

experience and seniority were given the promotions. She trained several Caucasian

managers' sons who were given promotions over her. She has been subjected to

25

different conditions of employment based on race.

26 ORDER- 8

Case 2:98-cv-00761-MJP Document 1046 Filed 03/07/2006 Page 28 of 36 Case 2:98-cv-00761-MJP Document 915 Filed 11/04/2005 Page 9 of 17

1

114. Kevin Biglow has worked for Boeing since 1989. He is a System Configuration

Specialist. He has applied for promotions and Caucasians with less experience and

2

seniority were given the positions. He has been subjected to different conditions of

employment based on race.

3

(Dkt. No. 651). In sum, these allegations for each named Plaintiff focus on promotion discrimination

4

(and for Ms. Ferguson and Ms. Ferrari, allegations of hostile work environment and retaliation,

5

respectively), with no mention of compensation discrimination. These are not "demonstrable,

6

particularized" allegations of injury from compensation discrimination.

7

In any case, Boeing is challenging the standing of the named Plaintiffs at the summary

8

judgment stage ofthe litigation. In Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992), the

9

Supreme Court indicated that the elements of standing "are not mere pleading requirements but rather

10

an indispensable part of the plaintiff s case," and therefore each element of standing "must be

11

supported in the same way as any other matter on which the plaintiff bears the burden of proof, i. e.,

12

with the manner and degree of evidence required at the successive stages of the litigation." As the

13

Court in Lujan noted:

14

At the pleading stage, general factual allegations of injury resulting from the defendant's

15

conduct may suffice, for on a motion to dismiss we "presum[e] that general allegations

embrace those specific facts that are necessary to support the claim." In response to a

16

summary judgment motion, however, the plaintiff can no longer rest on such "mere

allegations," but must "set forth" by affidavit or other evidence "specific facts" which for

17

purposes of the summary judgment motion will be taken to be true.

18 Id. at 561 (internal citations omitted).

19

In response to Boeing's motion, the named Plaintiffs have not offered affidavits or other

20 evidence that, even if taken as true, would show that they themselves have suffered injury after May

21 28, 2000 due to compensation discrimination. Plaintiffs argue that Ms. Ferguson and Mr. Biglow

22 cannot be expected know whether they have been discriminated against in terms of salary because they

23 do not know what their co-workers are paid. Plaintiffs also argue that the named Plaintiffs' testimony

24 in response to deposition questioning should not be regarded as a concession that they have no viable

25 claim as a matter of law. However, these arguments overlook Plaintiffs' obligation on a motion for

26 ORDER-9

Case 2:98-cv-00761-MJP Document 1046 Filed 03/07/2006 Page 29 of 36 Case 2:98-cv-00761-MJP Document 915 Filed 11/04/2005 Page 10 of 17

1 summary judgment to produce affidavits or other evidence that they have themselves suffered injury as

2 a result of compensation discrimination.

3

Therefore, the Court grants Boeing's motion for partial summary judgment with respect to the

4 individual compensation discrimination claims of the named Plaintiffs. The named Plaintiffs have not

5 demonstrated standing to maintain such individual claims during the relevant liability period.

6

c. Ability of the Named Plaintiffs to Serve as Class Representatives for a Compensation

Discrimination Class

7

Boeing argues that because the named Plaintiffs lack standing to maintain individual

8

compensation discrimination claims during the relevant liability period, the named Plaintiffs necessarily

9

cannot satisfy Rule 23(a)(3)'s requirement that a class representative's claims must be typical of the

10

claims of the class. Boeing also maintains that the named Plaintiffs' lack of standing to maintain

11

individual compensation discrimination claims renders them inadequate class representatives for such

12

claims under Rule 23(a)(4). As Boeing notes, "[ilt should be obvious that there cannot be adequate

13

typicality between a class and a named representative unless the named representative has individual

14

standing to raise the legal claims for the class." Prado-Steiman v. Bush, 221 F.3d 1266, 1279 (11th

15

Cir.2000).

16

However, Plaintiffs argue that even if the named Plaintiffs do not have claims for damages due

17

to compensation discrimination, they nonetheless have standing to seek injunctive relief directed at

18

compensation discrimination at Boeing. At oral argument, Plaintiffs also cited Rossini v. Ogilvy &

19

Mather, Inc., 798 F.2d 590 (2d Cir. 1986), and General Telephone Co. of the Southwest v. Falcon,

20

457 U.S. 147 (1982), to support their argument that the named Plaintiffs may serve as representatives

21

for a compensation discrimination class even if they do not have individual compensation

22

discrimination claims.

23

24

25

26 ORDER - 10

Case 2:98-cv-00761-MJP Document 1046 Filed 03/07/2006 Page 30 of 36 Case 2:98-cv-00761-MJP Document 915 Filed 11/04/2005 Page 11 of 17

1

i.

Standing To Seek Injunctive Relief

2

Plaintiffs argue that the "three named plaintiffs who currently work for Heritage Boeing - Ms.

3 Ferguson, Ms. Ferrari and Mr. Biglow - have standing to seek an injunction, regardless of whether

4 they have damage claims during the limitations period." (Opp. Brief at 17). To support their

5 argument, Plaintiffs cite Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 171 (2d Cir. 2001).

6

Robinson is not analogous to the situation here. In Robinson, the plaintiffs alleged race

7 discrimination on behalf of a class and sought both injunctive and monetary relief. Id. at 155. While 8 pursuing the litigation, the named plaintiffs entered into a settlement stipulation in which they agreed

9 only to "participate as named plaintiffs and/or class representatives ... in support of the class claims

10 and/or [to] receive any class-wide injunctive relief," "but not [to seek] individual relief of any kind,"

11 including monetary relief. Id. at 171. The defendant argued that as a result of this settlement

12 stipulation, Plaintiffs could not serve as adequate representatives for the class, since they had agreed

13 not to pursue claims for damages. The court rejected that argument.

14

Unlike here, there was no question in Robinson that the named plaintiffs had standing in the

15 fIrst instance to pursue their claims; instead, the question was whether the named plaintiffs could serve 16 as adequate class representatives after they had settled their individual monetary claims with

17 defendant. Robinson cannot be read to provide that named plaintiffs in a class action may seek

18 injunctive relief to remedy injuries that they have not experienced themselves.

19

ll.

Rossini and Falcon

20

Although not cited in their briefIng, at oral argument Plaintiffs pointed to Rossini v. Ogilvy &

21 Mather, Inc., 798 F.2d 590 (2d Cir. 1986), a case in which the Second Circuit held that a named

22 plaintiff who alleged discrimination in transfers could serve as a representative for a class asserting

23 claims for discrimination in promotion and training. The Rossini court found that the named plaintiff 24 offered evidence that, if believed, indicated that the employer "discriminated 'in the same general

25

26 ORDER -II

Case 2:98-cv-00761-MJP Document 1046 Filed 03/07/2006 Page 31 of 36 Case 2:98-cv-00761-MJP Document 915 Filed 11/04/2005 Page 12 of 17

1 fashion' against [the named plaintiff] in her quest for transfer and against other class members seeking

2 training or promotion." Id. at 598.

3

Rossini turned on the Supreme Court's ruling in General Telephone Co. ofthe Southwest v.

4 Falcon, 457 U.S. 147 (1982) ("Falcon"), which addressed the ability of a named plaintiff who allegedly

5 experienced one form of discrimination to maintain an "across-the-board" challenge to other forms of

6 alleged discrimination by an employer. In Falcon, the named plaintiff alleged that he had experienced

7 discrimination in promotions. He also sought to maintain class claims for discrimination in hiring. The

8 Falcon Court noted that Rule 23(a) requirements "effectively 'limit the class claims to those fairly

9 encompassed by the named plaintiff's claims.'" Id. at 156 (internal citation omitted). The Court found

10 that the named plaintiff's claim for discrimination in promotions did not fairly encompass the class

11 claims for discrimination in hiring, noting that "[t]he mere fact that an aggrieved private plaintiff is a

12 member of an identifiable class or persons of the same race or national origin is insufficient to establish

13 his standing to litigate on their behalf all possible claims of discrimination against a common

14 employer." Id. at 159 n.15. The Falcon Court also emphasized that a "rigorous analysis" must be

15 conducted to ensure satisfaction of Rule 23(a)'s requirements. Id. at 161. The Court found that the

16 trial court had erred by failing "to evaluate carefully the legitimacy of the named plaintiff's plea that he

17 is a proper class representative under Rule 23(a)" and stated that "actual, not presumed, conformance

18 with Rule 23(a) remains ... indispensable." Id. at 160.

19

Falcon clearly limits the ability of named plaintiffs in discrimination cases to bring "across-the-

20 board" class actions against employers. However, as the court in Rossini noted, "[t]he Falcon Court

21 did not hold that a plaintiff asserting one particular type of employment discrimination claim can never

22 represent a class of employees asserting other types." Rossini, 798 F.2d at 597. As such, the named

23 Plaintiffs are not necessarily barred from representing a compensation discrimination class, even if they

24 do not have such claims as individuals. Nonetheless, Falcon teaches that under Rule 23(a), class

25 claims must be limited to those "fairly encompassed" by the named Plaintiffs claims. Falcon, 457 U.S.

26 ORDER - 12

Case 2:98-cv-00761-MJP Document 1046 Filed 03/07/2006 Page 32 of 36 Case 2:98-cv-00761-MJP Document 915 Filed 11/04/2005 Page 13 of 17

1 at 156. In addition, Falcon emphasizes the need for a "rigorous analysis" to ensure that Rule 23(a)

2 requirements are met; compliance with Rule 23(a) may not be presumed. Id. at 160-61.

3

In this case, no "rigorous analysis" of the named Plaintiffs ability to satisfy Rule 23(a)

4 requirements for the class compensation discrimination claim asserted in the Second Amended

5 Complaint has ever occurred. Instead, Plaintiffs argued at the class certification stage of the

6 proceedings that Rule 23(a) analysis was not necessary. Because Boeing did not dispute that

7 assertion, compliance with Rule 23(a) was effectively presumed, based on the Ninth Circuit's decision

8 in Staton upholding Judge Coughenour's determination in 1999 that Rule 23(a) requirements had been

9 satisfied for the settlement class. This presumption of compliance with Rule 23(a) was not

10 appropriate. Although the Staton court upheld the 1999 certification of a broad class for settlement

11 purposes, the certification of that class in 1999 did not concern the compensation discrimination claim

12 first alleged in 2004 in the Second Amended Complaint - a claim that is limited to acts or conduct

13 after May 28, 2000. Under these circumstances, the compensation discrimination class should not

14 have been certified without a rigorous analysis showing that the named Plaintiffs satisfied the

15 requirements of Rule 23(a) for the newly-asserted compensation discrimination claim.

16

It should also be noted that the Court has determined that the compensation claim "does not

17 arise out of the same operative facts as the promotions [claim]." (Dkt. No. 793 at 7). The Court

18 made this determination in ruling on Boeing's motion for partial summary judgment to restrict the

19 compensation claim, on statute oflimitations grounds, to those based on acts or conduct after May 28,

20 2000. In analyzing whether the compensation claims alleged for the first time in the Second Amended

21 Complaint related back to the promotion claims asserted in the earlier complaints, the Court found that

22 "[n]ot only are the core operative facts different, but the evidence that Plaintiffs will rely on to prove

23 the salary compensation claim will be different" from the promotion claim. Id. In light of this ruling,

24 it would be incongruous to find that compensation discrimination claims first alleged in the Second

25

26 ORDER -13

Case 2:98-cv-00761-MJP Document 1046 Filed 03/07/2006 Page 33 of 36 Case 2:98-cv-00761-MJP Document 915 Filed 11/04/2005 Page 14 of 17

1 Amended Complaint are "fairly encompassed" by the promotion discrimination claims previously

2 asserted by Plaintiffs. See Falcon, 457 U.S. at 156.

3

Therefore the Court finds that the named Plaintiffs have not demonstrated their ability to serve

4 as representatives for the compensation discrimination class under the principles of Falcon or Rossini.

5

6 2. Decertification Request

7

"Even after a certification order is entered, the judge remains free to modify it in the light of

8 subsequent developments in the litigation." Falcon, 457 U.S. at 160. Boeing argues that the

9 compensation class should be decertified because the named Plaintiffs lack standing to maintain

10 individual compensation discrimination claims and cannot satisfy the typicality and adequacy of

11 representation prongs of Rule 23(a) for a compensation class. The Court agrees that decertification of

12 the compensation discrimination class is warranted.

13

Plaintiffs indicated at oral argument that they would request leave to amend the operative

14 complaint in order to address standing or Rule 23(a) concerns. Plaintiffs also indicated in a letter sent

15 to the Court following oral argument that they are "prepared to immediately file ... a motion for

16 intervention by an absent class member with a post-May 2000 compensation claim if the Court deems

17 it necessary and proper" and maintained that "the compensation class should not be decertified without

18 [Plaintiffs'] first being permitted to file a motion for intervention." (Dkt. No. 909). In response,

19 Boeing submitted a letter to the Court indicating its opposition to granting either leave to amend or to

20 intervene. (Dkt. No. 910).

21

The Court sees no basis to grant leave to amend the Second Amended Complaint. In the most

22 recent scheduling order issued in this matter, the Court set a deadline of July 18, 2005 for filing

23 amended pleadings. (Dkt. No. 646). Furthermore, since this litigation has been pending for seven

24 years, leave to amend would cause undue delay in the proceedings.

25

26 ORDER-14

Case 2:98-cv-00761-MJP Document 1046 Filed 03/07/2006 Page 34 of 36 Case 2:98-cv-00761-MJP Document 915 Filed 11/04/2005 Page 15 of 17

1

The Court also fmds that decertification should not be delayed to pennit intervention by absent

2 class members. The Ninth Circuit's decision in Lierboe v. State Farm Mutual Automobile Insurance

3 Co., 350 F.3d 1018 (9th Cir. 2003), is instructive on this point. In Lierboe, the district court initially

4 certified a class, but it was subsequently detennined that the named plaintiff did not have a valid claim

5 from the outset of the litigation. The Ninth Circuit noted that if the plaintiff "initially had a viable ...

6 claim that later became moot, then our law in an appropriate case would pennit substituting proper

7 class representatives to allow the suit to proceed." Id. at 1023 n.6. However, the court found:

8

[B]ecause this is not a mootness case, in which substitution or intervention might have been

possible, we remand this case to the district court with instructions to dismiss. We are

9

persuaded by the Seventh Circuit's approach in an analogous case, Foster v. Center Township

of LaPorte County, 798 F.2d 237, 244-45 (7th Cir. 1986), which held that where the sole

10

named plaintiff "never had standing" to challenge a township's poor-relief eligibility guidelines,

and where "she never was a member of the class she was named to represent," the case must

11

be remanded with instructions to dismiss.

12 Id. at 1023.

13

Similarly, this is not a case where the named Plaintiffs initially had viable compensation

14 discrimination claims during the relevant liability period that subsequently became moot. Instead, the

15 named Plaintiffs have not demonstrated standing in the first instance to maintain such claims.

16 Under these circumstances, decertification of the compensation discrimination class is warranted and

17 intervention would not be appropriate. See, e.g., Lidie v. State of California, 478 F.2d 552,555 (9th

18 Cir. 1973) ("where the original plaintiffs were never qualified to represent the class, a motion to

19 intervene represents a back-door attempt to begin the action anew, and need not be granted"); see also

20 McClune v. Shamah, 593 F.2d 482,486 (3d Cir. 1979) ("A motion for intervention under Rule 24 is

21 not an appropriate device to cure a situation in which plaintiffs may have stated causes of action that

22 they have no standing to litigate.").

23

24

25

26 ORDER - 15

Case 2:98-cv-00761-MJP Document 1046 Filed 03/07/2006 Page 35 of 36 Case 2:98-cv-00761-MJP Document 915 Filed 11/04/2005 Page 16 of 17

1 3. Motion for Partial Summary Judgment on the Class Claim for Compensation Discrimination

2

Because the Court is ordering decertification of the compensation class, it would not be

3 necessary or appropriate for the Court to reach Boeing's request for summary judgment on the class

4 compensation discrimination claim.

5

6 4. Notice to Absent Class Members

7

The Court finds that notice of the decertification of the compensation discrimination class

8 should be sent to absent class members. See Culver v. City of Milwaukee, 277 F.3d 908,914-15 (7th

9 Cir.2002). Class counsel shall prepare notice for the Court's approval within seven days ofthe date

10 of this order.

11

12

Conclusion

13

The named Plaintiffs lack standing to maintain individual compensation discrimination claims

14 against Boeing after May 28, 2000, which is the relevant liability period for such claims in this

15 litigation. Therefore, the Court GRANTS Boeing's request for summary judgment on the individual

16 compensation discrimination claims of named Plaintiffs Kevin Biglow, Rhonda Capps, Doreen

17 Ferguson, Mara Ferrari, and Beverly Trotter.

18

The Court also GRANTS Boeing's motion to decertify the compensation discrimination class

19 that was certified in January 2005. Because the named Plaintiffs lack standing to maintain individual

20 compensation discrimination claims, they do not satisfy the typicality requirements of Rule 23(a) and

21 cannot serve as class representatives for this claim. See, e.g., Prado-Steiman v. Bush, 221 F.3d 1266,

22 1279 (lIth Cir. 2000) ("It should be obvious that there cannot be adequate typicality between a class

23 and a named representative unless the named representative has individual standing to raise the legal

24 claims for the class.").

25

26 ORDER-16

Case 2:98-cv-00761-MJP Document 1046 Filed 03/07/2006 Page 36 of 36 Case 2:98-cv-00761-MJP Document 915 Filed 11/04/2005 Page 17 of 17

1

Because the Court has concluded that the compensation discrimination class should be

2 decertified, it would not be appropriate or necessary for the Court to issue a ruling on the merits of the

3 class-wide allegations of compensation discrimination by Boeing. Therefore, Boeing's request for

4 summary judgment on the class compensation discrimination claim is STRICKEN as moot.

5

The Court's order does not preclude absent class members from pursuing compensation

6 discrimination claims against Boeing, either as individuals or as a putative class action. In addition,

7 this order does not affect the class claim alleging discrimination in promotions by Boeing. Trial on the

8 class promotion discrimination claim will go forward as scheduled on December 5,2005.

9

The clerk is directed to send copies of this order to all counsel of record.

10

Dated: November 4, 2005

11

12

slMarsha J. Pechman

Marsha J. Pechman

13

United States District Judge

14 15

16

17

18

19

20

21

22

23

24

25

26 ORDER-I7

 
 1

2

3

4

5

UNITED STATES DISTRICT COURT

6

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

7

8 SOLOMON WILLIAMS, et al.,

9

10

v.

Plaintiffs,

No. C98-761P No. C98-430P

11 THE BOEING COMPANY, et al.,

12

Defendants.

13

ORDER ON DEFENDANT BOEING’S AMENDED MOTION FOR ENTRY OF FINAL JUDGMENT AND CONFIRMATION OF DISMISSAL OF NAMED PLAINTIFFS’ CLAIMS

14

15 On March 22, 2007, the Court issued an order dismissing the individual claims of the
16 remaining named Plaintiffs in these consolidated cases. (Dkt. No. 1103). Consistent with the Court’s
17 directions in the March 22nd order, Defendant Boeing Company has filed a motion for entry of final
18 judgment and confirmation of dismissal of named Plaintiffs’ claims. (Dkt. No. 1113). No opposition
19 to Boeing’s motion has been filed. Having reviewed Boeing’s motion, as well as the balance of the
20 record in these consolidated cases, the Court finds and ORDERS as follows:
21 (1) The claims of the named Plaintiffs in case numbers C98-761P and C98-430P have been
22 dismissed, either with prejudice or without prejudice. Therefore, the Court GRANTS Boeing’s
23 motion for entry of final judgment and confirmation of dismissal of named Plaintiffs’ claims.
24

25

ORDER - 1

1

(2) The claims of Kevin Biglow, David Brawley, Rhonda Capps, Michael Eckles, Doreen

2 Ferguson, Mara Ferrari, Terry Fisher, Charles Jones, David Roberts, Solomon Williams, and Deborah

3 Woods are and have been DISMISSED WITH PREJUDICE and final judgment may be entered in

4 favor of Defendants as to each of them.

5

(3) The claims of Donald Ballard, William Bell, Leo Briggs, Mary Byrd, Carol Calender,

6 Ellis Cameron, Mary Carter, Armstor Clayton, Kwesi Damani, Katherine Dator, Inez Davis, Cynthia

7 Evans, Joe Gibson, Carolyn Guest, Geraldine Guyton, Ebony Harding, Regina Harris, Debra Haynes,

8 Della Jameson, Earl Johnson, Sandra Jones, Tim Jones, Wendy Kelly, Shirley (Miller) King,

9 Theodoshia Knauls, Myron Knight, Lynn Leufroy, Earlie Lyons, Verlene Maholmes, Michael Marion,

10 Fred McAfee, Ronnie Mitchell, Evalean Moore, Fred Odom, Everett Peterson, Larry Potts, Tony

11 Prescott, Fawn Proctor, Robert Riggs, Jackie Robinson, Diane Sharpe, Virginia Smith, Eleanor

12 Staton, Clarence Thompson, Brian Todd, Beverly Trotter, Robert Vaughn, Eric Waters, Ralph

13 Wilson, and Willie Wilson are and have been DISMISSED WITHOUT PREJUDICE.

14

(4) The claims of Mary Dean were previously severed from case number C98-761P and

15 transferred to the District of Kansas. (Dkt. Nos. 824, 866).

16

(5) The Clerk is directed to enter a final judgment in these two consolidated cases. The

17 Court will provide the Clerk with the form of judgment to be entered.

18

(6) The Clerk is directed to send copies of this order to all counsel of record and to

19 CLOSE these consolidated cases.

20

Dated: May 4, 2007.

21

s/Marsha J. Pechman

Marsha J. Pechman

22

United States District Judge

23

24

25

ORDER - 2

 
 1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

8

9 SOLOMON WILLIAMS, et al.,

10

Plaintiffs,

11

v.

12 THE BOEING COMPANY, et al.,

13

Defendants.

No. C98-761P
ORDER DISMISSING CERTAIN CLAIMS WITHOUT PREJUDICE AND DIRECTING ENTRY OF JUDGMENT UNDER RULE 54(B)

14 Based on the stipulation of the parties (Dkt. No. 1039) and the Court’s review of the
15 record, the Court hereby finds and ORDERS as follows:
16 (1) By stipulation of the parties, all claims asserted by the following named plaintiffs
17 are dismissed without prejudice: Carolyn Calendar; Theodoshia Knauls; Michael Marion; Ronnie
18 Mitchell; Evalean Moore; Brian Todd; Ralph Wilson; and Willie Wilson.
19 (2) Pursuant to Rule 54(b), the Court finds that there is no just reason to delay the
20 entry of judgment in favor of Defendant as to all claims alleged by all members of the class
21 certified in the Court’s order of January 21, 2005 (Dkt. No. 800) and amended on January 28,
22 2005 (Dkt. No. 807).1 The clerk is directed to enter judgment in favor of Defendant as to these 23

24 1 This order should not be construed as directing judgment in favor of Defendant as to
25 any compensation discrimination claims of absent class members. Because the Court subsequently decertified the class as to compensation discrimination claims (Dkt. No. 915), the
26 compensation discrimination claims of absent class members have not been adjudicated.
ORDER PAGE – 1

1 claims.

2

(3) The parties are directed to file a joint status report no later than March 1, 2006

3 that addresses the claims of the remaining named plaintiffs and any class that they purport to

4 represent.

5

The clerk is directed to send copies of this order to all counsel of record.

6

Dated: February 3, 2006.

7

s/Marsha J. Pechman

8

Marsha J. Pechman

United States District Judge

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

ORDER PAGE – 2

 
 Williams v. Boeing Co.
United States District Court for the Western District of Washington January 17, 2006, Decided ; January 17, 2006, Filed No. C98-761P

Reporter: 2006 U.S. Dist. LEXIS 3417; 97 Fair Empl. Prac. Cas. (BNA) 1111

SOLOMON WILLIAMS, et al., Plaintiffs, v. THE BOEING HARRELL CONNELL DESPER, HUNTER & PAULEY,

COMPANY, et al., Defendants.

SEATTLE, WA; Steven J Toll, OHEN MILSTEIN

HAUSFELD & TOLL, WASHINGTON, DC; Steve W.

Prior History: Williams v. Boeing Co., 2005 U.S. Dist. Berman, HAGENS BERMAN SOBOL, SHAPIRO LLP,

LEXIS 46813 (W.D. Wash., Dec. 2, 2005)

SEATTLE, WA.

Counsel: [*1] For Solomon Williams, Plaintiff: Bruce A Harrell, Oscar Edward Desper, III, HARRELL CONNELL DESPER, HUNTER & PAULEY, SEATTLE, WA; Steven J Toll, Christine E Webber, COHEN MILSTEIN HAUSFELD & TOLL, WASHINGTON, DC; Craig R Spiegel, Ivy D Arai, Jeffrey Todd Sprung, Steve W. Berman, HAGENS BERMAN SOBOL, SHAPIRO LLP, SEATTLE, WA.
For Eleanor Staton, Shirley Miller, Myron Knight, Donald W Ballard, William Bell, Mary Dean, Brian Todd, David Brawley, Mara Ferrari, Rhonda Capps, Charles Jones, David Roberts, Verlene Maholmes, Terry Fisher, Plaintiffs: Oscar Edward Desper, III, HARRELL CONNELL DESPER, HUNTER & PAULEY, SEATTLE, WA; Steven J Toll, COHEN MILSTEIN HAUSFELD & TOLL, WASHINGTON, DC; Steve W. Berman, HAGENS BERMAN SOBOL, SHAPIRO LLP, SEATTLE, WA.
For Deborah Woods, Wendy Kelly, Michael Eckles, Doreen Ferguson, Cynthia Evans, Willie Wilson, Tim Jones, Carol Calender, individually and on behalf of all others similarly situated, Evalean Moore, Ralph Wilson, Ronnie Mitchell, Theodeshia Knauls, Michael Marion, Plaintiffs: Oscar Edward Desper, III, HARRELL CONNELL DESPER, HUNTER & PAULEY, SEATTLE, WA; Steven J Toll, COHEN MILSTEIN HAUSFELD & TOLL, WASHINGTON, DC; Ivy D Arai, Jeffrey [*2] Todd Sprung, Steve W. Berman, HAGENS BERMAN SOBOL, SHAPIRO LLP, SEATTLE, WA.
For Clarence Thompson, Plaintiff: Craig R Spiegel, Steve W. Berman, Jeffrey Todd Sprung, HAGENS BERMAN SOBOL, SHAPIRO LLP, SEATTLE, WA. Oscar Edward Desper, III, HARRELL CONNELL DESPER, HUNTER & PAULEY, SEATTLE, WA; Steven J Toll, OHEN MILSTEIN HAUSFELD & TOLL, WASHINGTON, DC.
For Beverly Trotter, Kevin Biglow, Plaintiffs: Alan B Epstein, SPECTOR GADON & ROSEN, PHILADELPHIA, PA; Christine E Webber, Joseph Marc Sellers, COHEN MILSTEIN HAUSFELD & TOLL, WASHINGTON, DC; Oscar Edward Desper, III,

For Hattie L Irving, Plaintiff: Ivy D Arai, Jeffrey Todd Sprung, Steve W. Berman, HAGENS BERMAN SOBOL, SHAPIRO LLP, SEATTLE, WA; Steven J Toll, COHEN MILSTEIN HAUSFELD & TOLL, WASHINGTON, DC.
For Jackie Robison, Della Alexander, Lynn Leufroy, Mary Byrd, Lucretia Smith, Sandra Jones, Billynda Anderson, Eleanor Staten, Kenneth Ponder, Sharon M Jenkins, Artie Johnson, Plaintiffs: Mary R Mann, MARY RUTH MANN & ASSOCIATES, SEATTLE, [*3] WA; Steven J Toll, COHEN MILSTEIN HAUSFELD & TOLL, WASHINGTON, DC; Steve W. Berman, HAGENS BERMAN SOBOL, SHAPIRO LLP, SEATTLE, WA.
For Martha Ybarra, Plaintiff: Pro se, KENT, WA; Mary R Mann, MARY RUTH MANN & ASSOCIATES, SEATTLE, WA; Steven J Toll, COHEN MILSTEIN HAUSFELD & TOLL, WASHINGTON, DC; Steve W. Berman, HAGENS BERMAN SOBOL, SHAPIRO LLP, SEATTLE, WA.
For Rhonda E Randle, Anetha Lewis, John D Britt, Barbara A Taylor, Plaintiffs: Harish Bharti, SEATTLE, WA; Mary R Mann, MARY RUTH MANN & ASSOCIATES, SEATTLE, WA; Steve W. Berman, HAGENS BERMAN SOBOL, SHAPIRO LLP, SEATTLE, WA.
For Northwest Sheet Metal Workers Supplemental Pension Trust, Western Washington Sheet Metal Training Trust, Plaintiffs: Mark E. Brennan, RTNEHART ROBBLEE & HANNAH, SEATTLE, WA.
For All Plaintiffs, Plaintiff: Craig R Spiegel, Steve W. Berman, HAGENS BERMAN SOBOL, SHAPIRO LLP, SEATTLE, WA.
For Boeing Company, Defendant: Barbara Berish Brown, C Geoffrey Weirich, PAUL, HASTINGS, JANOFSKY & WALKER, WASHINGTON, DC; Boyd A Byers, FOULSTON & SIEFKIN, WICHITA, KS; Jeffrey Alan Hollingsworth, Kevin J Hamilton, PERKINS COIE, SEATTLE, WA; Michael Reiss, Sheehan H Sullivan

2006 U.S. Dist. LEXIS 3417, *3

Page 2 of 4

Weiss, DAVIS WRIGHT [*4] TREMAINE (SEA), SEATTLE, WA; Eric B Martin, Harry James Franklyn A plaintiff seeking to establish a prima facie case of disparate Korrell, III, DAVIS WRIGHT TREMAINE LLP, SEATTLE, impact must:

WA. (1) show a significant disparate impact on a

For Boeing North American Inc, a Delaware corp.,

protected class or [*6] group; (2) identify the

McDonnell Douglas Corporation, a Maryland corporation,

specific employment practices or selection criteria at

Defendants: Eric B Martin, DAVIS WRIGHT TREMAINE

issue; and (3) show a causal relationship between the

LLP, SEATTLE, WA.

challenged practices or criteria and the disparate

Judges: Marsha J. Pechman, United States District Judge.

impact.Hemmings v. Tidyman's Inc., 285 F.3d 1174, 1190 (9th Cir. 2002). The Civil Rights Act of 1991

Opinion by: Marsha J. Pechman

also provides that "if the complaining party can demonstrate to the court that the elements of a

respondent's decisionmaking process are not capable

Opinion

of separation for analysis, the decisionmaking process may be analyzed as one employment

FINDINGS OF FACT AND CONCLUSIONS OF LAW ON

practice." 42 U.S.C. § 2000e-2(k)(1)(B)(i).

DISPARATE IMPACT CLAIM

Findings of Fact

In this class action, Plaintiffs allege that the Boeing Company has engaged in a pattern or practice of race discrimination in promotions against African-Americans in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981.

1. Plaintiffs have not demonstrated that the elements of Boeing's decisionmaking process are not capable of separation for analysis.

Plaintiffs allege both disparate treatment and disparate impact claims. The certified class includes African-American salaried employees employed by "Heritage Boeing" 1 from June 6, 1994 to the present, excluding executives and certain technical workers, seeking injunctive relief for racial discrimination in promotions.

2. Plaintiffs identified several employment practices in their proposed findings of fact and conclusions of law that allegedly caused a disparate impact on class members with respect to promotions: (1) subjective decision-making in the promotion process; (2) unstructured interview processes; (3) failure to monitor for adverse impact of promotion processes;

[*5] This matter was tried from December 5, 2005 to and (4) failure to maintain an applicant tracking system. December 19, 2005. Plaintiffs' Section 1981 and disparate (Dkt. [*7] No. 1029 at 26-28).

treatment claims were tried to a jury, while the disparate impact claim was tried to the Court. The jury rendered a Employment Practices at Issue

verdict in favor of Defendant on December 21, 2005.

3. The Court finds that Boeing did not have an undisciplined

Plaintiffs' disparate impact claim is based on allegations that Boeing had facially neutral employment practices that caused a significant disparate impact on members of the class with respect to promotions. Unlike a disparate treatment claim, Plaintiffs are not required to prove intentional discrimination in order to prevail on a disparate impact claim. As a result, the jury's verdict in favor of Defendant does not foreclose Plaintiffs' disparate impact claim.

system of subjective decision-making in promotions. Plaintiffs introduced evidence that there has been a degree of subjectivity in decision-making regarding promotions at Heritage Boeing during the class period. In general, the company placed significant discretion regarding promotion decisions at the level of the individual employee's manager. However, Boeing also had written promotion guidelines in place during the class period, as well as policies that permitted an employee who believed that he or she was

Having considered the testimony and evidence admitted at trial and the arguments of counsel, the Court finds that Plaintiffs have not proved their disparate impact claim by a preponderance of the evidence. Therefore, judgment on this claim will be entered in favor of Defendant.

denied a promotion to complain to the company's Equal Employment Opportunity organization, which could initiate investigations and provide for corrective action where warranted. Therefore, while there was a degree of subjectivity in decision-making regarding promotions, the system was not excessively subjective.

Framework for Analysis

1 "Heritage Boeing" refers to the Boeing Company before it acquired additional companies in the late 1990s and 2000.

2006 U.S. Dist. LEXIS 3417, *7

Page 3 of 4

4. Boeing did not have a policy that required the use of received a promotion during the entire class period. Boeing's

"structured interviews" during the class period; that is, methods of attempting to mark when a promotion had

managers were not required to identify questions in advance occurred changed over the class period [*10] and were based

of an interview and to ask the same set of questions to all on different criteria.

candidates for [*8] a job or promotion. However, structured

interviews were used at Boeing in some situations during the 12. The named Plaintiffs testified to various criteria that they

class period.

subjectively used to identify a promotion. These criteria

include greater opportunities, more responsibility, or better

5. Boeing did not consistently monitor the effects of its pay. No consistent definition of the term "promotion" was

promotions policies on African-Americans during the entire ever put forth and no consistent data collection capture these

class period.

varying concepts.

6. Boeing did not consistently maintain an accurate applicant tracking system during the entire class period.
Disparate Impact

13. The Court does not regard the "Prom_Ind" indicator as a consistent or accurate data marker for promotions at Heritage Boeing during the entire class period, particularly for the period before 2001.

7. To attempt to gauge disparities in promotions between class members and similarly-situated Caucasian employees during the class period, Plaintiffs offered statistical analyses by Janice Fanning Madden, Ph.D., while Defendant offered an analysis by Michael Ward, Ph.D.
Promotions Data
8. In the earlier part of the class period, Boeing's data system used a series of 77 "transaction codes" to capture transfer or reclassification transactions. These codes were input by or at the direction of human resources employees who reviewed the transaction paperwork and selected the code that they believed was appropriate for the transaction. The multiple codes were subject to the interpretations of individual human resources employees and the transaction codes were not designed to match the subjective beliefs [*9] of the managers and employees involved. As a result, these transactions codes did not necessarily identify transfers that employees or managers would have regarded as "promotions."
9. In 2001, Boeing introduced a new data marker called the "Prom_Ind" indicator. This indicator is a "Y/N" marker in a specific data field, with "Y" indicating a "promotion." Boeing attempted to "push back" the "Prom_Ind" indicator through its historical data to mark promotions that had occurred before the indicator was adopted in 2001. However, this effort did not consistently "push back" the "Prom_Ind" indicator to mark job actions that may have constituted promotions before 2001.
10. In 2002, Boeing adopted a new data rule that specified the precise circumstances under which a promotion would be indicated. The criteria adopted in 2002 for marking promotions are not the same as the criteria that had been used before to indicate promotions.

Dr. Madden's Analyses
14. Dr. Madden performed a multiple pools analysis, as well as probit regression analyses, to attempt to assess disparities in promotions between class members and similarly-situated Caucasian employees. Based on her analyses, Dr. Madden concluded there was a statistically significant disparity between the promotion rates of class members and similarlysituated Caucasian employees at Heritage Boeing between 1995-2004.
15. The Court does not find Dr. Madden's analyses to be persuasive. In conducting her analyses, Dr. Madden relied exclusively on the "Prom_Ind" indicator to determine when promotions [*11] had occurred. Because the "Prom_Ind" indicator was not always an accurate or consistent measure of when a promotion had actually occurred, Dr. Madden's use of this indicator negatively impacts the reliability of her analyses. Although Dr. Madden relied on a data indicator that Boeing itself had developed, the fact that Boeing developed the "Prom_Ind" indicator does not prove that the indicator is accurate. In particular, Boeing was not able to consistently and accurately "push back" the "Prom_Ind" indicator in its data files to mark promotions that had occurred prior to the introduction of the indicator in 2001.
16. Dr. Madden's multiple pools and regression analyses also do not necessarily compare promotions for similarly-situated employees. The multiple pools constructed by Dr. Madden tend to group together employees with dissimilar circumstances and locations. Similarly, the job aggregation groups utilized by Dr. Madden in her regression analyses tend to group together employees with dissimilar circumstances who would not have been candidates for similar promotions.
Dr. Ward's Analysis

11. The Court finds that Boeing did not use one consistent 17. Dr. Ward's analysis used "career growth," measured by

method to indicate in its data files when an employee had

salary progress, as a proxy [*12] for promotion. Dr. Ward

2006 U.S. Dist. LEXIS 3417, *12

Page 4 of 4

employed this "career growth" methodology because he concluded that the "Prom_Ind" indicator was not sufficiently accurate to use in measuring promotions. Dr. Ward constructed employee cohorts matching class members to the Caucasian employees who started at the same time in the same job in the same state with a comparable salary, and then tracked those cohorts over time. In general, Dr. Ward's results do not show a statistically significant disadvantage to the

1. The beginning of the liability period for Plaintiffs' disparate impact claim is July 1997. It should be noted that Boeing states that the disparate impact claim relates to the time period from July 1997 to present, while Plaintiffs assert that the liability period runs from August 10, 1997 to present. Given the minor difference in the parties' positions, the Court uses the earlier date.

class members with respect to their "career progress," as

measured by salary growth.

2. Plaintiffs must satisfy the following elements to establish a

prima facie case of disparate impact under Title VII:

18. The Court finds Dr. Ward's analysis to be more probative than Dr. Madden's. To be sure, Dr. Ward's analysis is imperfect because it analyzes "career growth" in terms of salary, rather than discrete acts of promotion. An employee who receives a salary increase does not necessarily receive a promotion, while all promotions do not come with an increase in salary. Nonetheless, Dr. Ward's analysis provides some evidence of how the careers of class members progressed

(1) show a significant disparate impact on a protected class or group; (2) identify the specific employment practices or selection criteria at issue; and (3) [*14] show a causal relationship between the challenged practices or criteria and the disparate impact.Hemmings v. Tidyman's Inc., 285 F.3d 1174, 1190 (9th Cir. 2002).

compared to similarly-situated Caucasian employees.

3. Based on the findings of fact set forth above, the Court

Conclusion

concludes that Plaintiffs have not established a prima face case of disparate impact. Plaintiffs have not proved by a

19. The Court finds that Plaintiffs have not demonstrated a preponderance of the evidence that there was a significant

significant disparate [*13] impact for class members with disparate impact on class members with respect to promotions respect to promotions. Plaintiffs' evidence of disparate impact during the liability period. Plaintiffs also have not

is based on Dr. Madden's analyses, which the Court does not demonstrated a causal connection between any specific

find persuasive.

employment practices and any alleged disparate impact.

Causation

Therefore, judgment on the disparate impact claim will be entered in favor of Defendant.

20. The Court finds that Plaintiffs have not demonstrated a causal link between any of the specific employment practices identified and any alleged disparate impact on class members in terms of promotions. Neither Dr. Madden's analyses nor other evidence introduced at trial provided such a connection.
Conclusions of Law

The clerk is directed to send copies of this order to all counsel of record. Dated: January 17, 2006. Marsha J. Pechman United States District Judge

 
 CLOSED, CONSOL, REOPEN
U.S. District Court United States District Court for the Western District of Washington (Seattle)
CIVIL DOCKET FOR CASE #: 2:98−cv−00761−MJP

Williams, et al v. Boeing Company, et al Assigned to: Judge Marsha J. Pechman Demand: $0 Member case: (View Member Case) Case in other court: 06−35196
99−36086(McClallamInvesto Cause: 42:1983 Civil Rights (Employment Discrimination)
Plaintiff

Date Filed: 06/04/1998 Date Terminated: 05/04/2007 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Solomon Williams TERMINATED: 01/09/2007

represented by Oscar Edward Desper , III 501 E ROY ST. SEATTLE , WA 98112 206−931−2905 Email: odesper2@hotmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven J Toll COHEN MILSTEIN SELLERS &TOLL LLC 1100 NEW YORK AVENUE NW STE 500 WEST WASHINGTON , DC 20005 202−408−4600 Email: stoll@cohenmilstein.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Bruce A Harrell CONNELL CORDOVA HUNTER &GAUTSCHI PLLC 1325 4TH AVE STE 1500 SEATTLE , WA 98101−2359 206−583−0050 Email: bharrell@seattlecounsel.com TERMINATED: 01/04/2007

Christine E Webber COHEN MILSTEIN SELLERS &TOLL LLC 1100 NEW YORK AVENUE NW STE 500 WEST WASHINGTON , DC 20005 202−408−4600 Fax: FAX 1−202−408−4699 Email: cwebber@cohenmilstein.com ATTORNEY TO BE NOTICED

Craig R Spiegel HAGENS BERMAN SOBOL SHAPIRO LLP (WA) 1918 8th AVE STE 3300 SEATTLE , WA 98101 206−623−7292 Fax: FAX 623−0594

Plaintiff Eleanor Staton TERMINATED: 03/22/2007
Plaintiff Shirley Miller TERMINATED: 01/09/2007

Email: craigs@hbsslaw.com ATTORNEY TO BE NOTICED
Ivy D Arai HAGENS BERMAN SOBOL SHAPIRO LLP (WA) 1918 8th AVE STE 3300 SEATTLE , WA 98101 206−623−7292 Fax: 206−623−0594 Email: ivy@hbsslaw.com ATTORNEY TO BE NOTICED
Jeffrey Todd Sprung HAGENS BERMAN SOBOL SHAPIRO LLP (WA) 1918 8th AVE STE 3300 SEATTLE , WA 98101 206−623−7292 Fax: FAX 623−0594 Email: jeff@hbsslaw.com ATTORNEY TO BE NOTICED
Steve W. Berman HAGENS BERMAN SOBOL SHAPIRO LLP (WA) 1918 8th AVE STE 3300 SEATTLE , WA 98101 206−623−7292 Email: steve@hbsslaw.com ATTORNEY TO BE NOTICED
represented by Mary R Mann MARY RUTH MANN &ASSOCIATES 615 2ND AVE SUITE 760 BRODERICK BLDG SEATTLE , WA 98104−2203 206−587−2700 Email: mrmann@mrmannlaw.com LEAD ATTORNEY
Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J Toll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED
represented by Oscar Edward Desper , III (See above for address) LEAD ATTORNEY

Plaintiff Deborah Woods TERMINATED: 01/09/2007
Plaintiff Wendy Kelly TERMINATED: 01/09/2007
Plaintiff Myron Knight TERMINATED: 02/06/2007

ATTORNEY TO BE NOTICED
Steven J Toll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED
represented by Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J Toll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ivy D Arai (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Todd Sprung (See above for address) ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED
represented by Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J Toll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ivy D Arai (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Todd Sprung (See above for address) ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED
represented by Craig R Spiegel (See above for address)

Plaintiff Michael Eckles TERMINATED: 01/09/2007
Plaintiff Donald W Ballard TERMINATED: 03/22/2007
Plaintiff William Bell TERMINATED: 01/09/2007

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J Toll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED
represented by Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J Toll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ivy D Arai (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Todd Sprung (See above for address) ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED
represented by Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J Toll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED
represented by Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Clarence Thompson TERMINATED: 01/09/2007
Plaintiff Doreen Ferguson TERMINATED: 01/09/2007
Plaintiff

Steven J Toll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED
represented by Craig R Spiegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J Toll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey Todd Sprung (See above for address) ATTORNEY TO BE NOTICED
represented by Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J Toll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ivy D Arai (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Todd Sprung (See above for address) ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED
represented by

Cynthia Evans TERMINATED: 01/09/2007
Plaintiff Willie Wilson TERMINATED: 02/03/2006
Plaintiff Mary Dean TERMINATED: 05/18/2005

Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J Toll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ivy D Arai (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Todd Sprung (See above for address) ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED
represented by Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J Toll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ivy D Arai (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Todd Sprung (See above for address) ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED
represented by Mary Dean 2138 White Oak Circle Witcha, KS 67207 PRO SE
Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J Toll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Brian Todd TERMINATED: 02/03/2006
Plaintiff Tim Jones TERMINATED: 01/08/2007
Plaintiff David Brawley TERMINATED: 01/26/2007

Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED
represented by Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J Toll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED
represented by Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J Toll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ivy D Arai (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Todd Sprung (See above for address) ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED
represented by Craig R Spiegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J Toll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address)

Plaintiff Mara Ferrari TERMINATED: 01/09/2007
Plaintiff Rhonda Capps TERMINATED: 01/09/2007
Plaintiff Charles Jones TERMINATED: 01/09/2007
Plaintiff

ATTORNEY TO BE NOTICED
represented by Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J Toll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ivy D Arai (See above for address) ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED
represented by Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J Toll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ivy D Arai (See above for address) ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED
represented by Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J Toll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ivy D Arai (See above for address) ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED

David Roberts TERMINATED: 01/09/2007
Plaintiff Verlene Maholmes TERMINATED: 03/22/2007
Plaintiff Terry Fisher TERMINATED: 01/09/2007
Plaintiff Carol Calender individually and on behalf of all others similarly situated TERMINATED: 02/03/2006

represented by Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J Toll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ivy D Arai (See above for address) ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED
represented by Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J Toll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED
represented by Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J Toll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ivy D Arai (See above for address) ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED
represented by Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J Toll (See above for address)

Plaintiff Evalean Moore TERMINATED: 02/03/2006
Plaintiff Ralph Wilson TERMINATED: 02/03/2006

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ivy D Arai (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Todd Sprung (See above for address) ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED
represented by Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J Toll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ivy D Arai (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Todd Sprung (See above for address) ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED
represented by Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J Toll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ivy D Arai (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Todd Sprung (See above for address) ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Ronnie Mitchell TERMINATED: 02/03/2006
Plaintiff Theodeshia Knauls TERMINATED: 02/03/2006
Plaintiff Beverly Trotter TERMINATED: 01/09/2007

represented by Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J Toll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ivy D Arai (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Todd Sprung (See above for address) ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED
represented by Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J Toll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ivy D Arai (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Todd Sprung (See above for address) ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED
represented by Alan B Epstein SPECTOR GADON &ROSEN 1635 MARKET ST 7TH FL SEVEN PENN CTR PHILADELPHIA , PA 19103 215−241−8888 Email: aepstein@lawsgr.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christine E Webber (See above for address) LEAD ATTORNEY

Plaintiff Kevin Biglow TERMINATED: 01/09/2007
Plaintiff

ATTORNEY TO BE NOTICED
Joseph Marc Sellers COHEN MILSTEIN HAUSFELD &TOLL 1100 NEW YORK AVE NW WEST TOWER STE 500 WASHINGTON , DC 20005−3934 202−408−4600 Fax: FAX 1−202−408−4699 Email: jsellers@cohenmilstein.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J Toll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED
represented by Alan B Epstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christine E Webber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph Marc Sellers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J Toll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ivy D Arai (See above for address) ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED

Michael Marion TERMINATED: 02/03/2006
Plaintiff Hattie L Irving TERMINATED: 12/22/2006
Plaintiff Jackie Robison TERMINATED: 12/22/2006
Plaintiff

represented by Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J Toll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ivy D Arai (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Todd Sprung (See above for address) ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED
represented by Ivy D Arai (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey Todd Sprung (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J Toll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Mary R Mann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J Toll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED
represented by

Della Alexander TERMINATED: 12/22/2006
Plaintiff Martha Ybarra TERMINATED: 12/22/2006
Plaintiff Lynn Leufroy TERMINATED: 03/22/2007
Plaintiff Mary Byrd TERMINATED: 03/22/2007

Mary R Mann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J Toll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED
represented by Mary R Mann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J Toll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED
represented by Mary R Mann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J Toll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED
represented by Mary R Mann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J Toll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Lucretia Smith TERMINATED: 12/22/2006
Plaintiff Sandra Jones TERMINATED: 03/22/2007
Plaintiff Billynda Anderson TERMINATED: 12/22/2006
Plaintiff Eleanor Staten TERMINATED: 03/22/2007

represented by Mary R Mann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J Toll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED
represented by Mary R Mann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J Toll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED
represented by Mary R Mann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J Toll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED
represented by Mary R Mann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J Toll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address)

Plaintiff Kenneth Ponder TERMINATED: 12/22/2006
Plaintiff Sharon M Jenkins TERMINATED: 12/22/2006
Plaintiff Artie Johnson TERMINATED: 12/22/2006
Plaintiff Rhonda E Randle TERMINATED: 12/22/2006

ATTORNEY TO BE NOTICED
represented by Mary R Mann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J Toll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED
represented by Mary R Mann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J Toll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED
represented by Mary R Mann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J Toll (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED
represented by Harish Bharti 6701 37TH AVE NW SEATTLE , WA 98117 206−819−5484 Email: bharti@lawyer.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary R Mann (See above for address) LEAD ATTORNEY

Plaintiff Anetha Lewis TERMINATED: 12/22/2006
Plaintiff John D Britt TERMINATED: 12/22/2006
Plaintiff Barbara A Taylor TERMINATED: 12/22/2006
Plaintiff Northwest Sheet Metal Workers Supplemental Pension Trust TERMINATED: 12/22/2006

ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED
represented by Harish Bharti (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary R Mann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED
represented by Harish Bharti (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary R Mann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED
represented by Harish Bharti (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary R Mann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED
represented by Mark E. Brennan ROBBLEE BRENNAN &DETWILER 2101 FOURTH AVE STE 200 SEATTLE , WA 98121−2392 206−467−6700 Email: mbrennan@unionattorneysnw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Western Washington Sheet Metal Training Trust TERMINATED: 12/22/2006
Plaintiff All Plaintiffs
Plaintiff Eric Waters TERMINATED: 03/22/2007
Plaintiff Robert Vaughn TERMINATED: 03/22/2007
Plaintiff Diane Sharpe TERMINATED: 03/22/2007
Plaintiff Larry Potts TERMINATED: 03/22/2007
Plaintiff Fred L McAfee TERMINATED: 03/22/2007
Plaintiff Jackie Robinson TERMINATED: 03/22/2007
Plaintiff

represented by Mark E. Brennan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Craig R Spiegel (See above for address) LEAD ATTORNEY
Steve W. Berman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mary R Mann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by

Everett Peterson TERMINATED: 03/22/2007
Plaintiff Tony Prescott TERMINATED: 03/22/2007
Plaintiff Virginia Smith TERMINATED: 03/22/2007
Plaintiff Regina Harris TERMINATED: 03/22/2007
Plaintiff Debra Hayes TERMINATED: 03/22/2007
Plaintiff Della Jameson TERMINATED: 03/22/2007
Plaintiff Earl Johnson TERMINATED: 03/22/2007
Plaintiff Catherine Dator TERMINATED: 03/22/2007
Plaintiff Ellis Cameron TERMINATED: 03/22/2007
Plaintiff Armstor Clayton TERMINATED: 03/22/2007

Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Joe Gibson TERMINATED: 03/22/2007
Plaintiff Geraldine Guyton TERMINATED: 03/22/2007
Plaintiff Ebony Harding TERMINATED: 03/22/2007
Plaintiff Leo Briggs TERMINATED: 03/22/2007
Plaintiff Earlie Lyons TERMINATED: 03/22/2007
Plaintiff Mary Carter TERMINATED: 03/22/2007
Plaintiff Inez Davis TERMINATED: 03/22/2007
Plaintiff Carolyn Guest TERMINATED: 03/22/2007
Plaintiff Kwesi Damani TERMINATED: 03/22/2007
Plaintiff Robert Riggs TERMINATED: 03/22/2007

represented by Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Fred Odom TERMINATED: 03/22/2007
Plaintiff Fawn Proctor TERMINATED: 03/22/2007
V. Defendant Boeing Company

represented by Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Oscar Edward Desper , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Barbara Berish Brown PAUL, HASTINGS, JANOFSKY &WALKER 1299 PENNSYLVANIA AVE NW STE 1000 WASHINGTON , DC 20004 202−508−9500 Fax: FAX 1−202−508−9700 Email: barbarabrown@paulhastings.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Boyd A Byers FOULSTON &SIEFKIN 1551 NORTH WATERFRONT PARKWAY STE 100 WICHITA , KS 67206 316−291−9716 Email: bbyers@foulston.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
C Geoffrey Weirich PAUL HASTINGS JANOFSKY &WALKER 600 PEACHTREE STREET NE STE 2400 ATLANTA , GA 30308−2222 404−815−2400 Fax: FAX 1−404−815−2424 Email: geoffweirich@paulhastings.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey Alan Hollingsworth PERKINS COIE 1201 3RD AVE STE 4800 SEATTLE , WA 98101−3099 206−583−8888 Fax: FAX 583−8500 Email: JHollingsworth@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Reiss

DAVIS WRIGHT TREMAINE (SEA) 1201 THIRD AVENUE SUITE 2200 SEATTLE , WA 98101−3045 206−622−3150 Fax: FAX 628−7699 Email: mikereiss@dwt.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Boris Gaviria DAVIS WRIGHT TREMAINE (BELL) 777 108TH AVE NE STE 2300 SYMETRA BELLEVUE , WA 98004−5149 425−646−6100 Email: borisgaviria@dwt.com ATTORNEY TO BE NOTICED
Elizabeth A Sullivan 12920 SE 38TH STREET BELLEVUE , WA 98006 206−622−3150 Fax: FAX 628−7699 TERMINATED: 12/31/2003
Eric B Martin MCGUIRE WOODS LLP (RICHMOND VA) ONE JAMES CENTER 901 EAST CARY ST RICHMOND , VA 23219−4030 804−775−1129 Fax: 804−698−2149 Email: EMartin@McGuireWoods.com TERMINATED: 01/04/2007
Rebecca Shapiro Cohen US ATTORNEY'S OFFICE (SEA) 700 STEWART ST STE 5220 SEATTLE , WA 98101−1271 206−553−6526 Fax: 206−553−4073 Email: rebecca.cohen@usdoj.gov TERMINATED: 01/25/2006
Robert F Porcarelli DAVIS WRIGHT TREMAINE 10500 NE 8TH ST STE 1800 BELLEVUE , WA 98004−4300 425−646−6100 Fax: FAX 425−646−6199 Email: robertporcarelli@dwt.com TERMINATED: 08/08/2005
Sheehan H Sullivan Weiss DAVIS WRIGHT TREMAINE (SEA) 1201 THIRD AVENUE SUITE 2200 SEATTLE , WA 98101−3045 206−757−8152 Fax: 206−757−7700 Email: sheehansullivanweiss@dwt.com

Defendant Boeing North American Inc a Delaware corp.
Defendant McDonnell Douglas Corporation a Maryland corporation

TERMINATED: 01/04/2007
Sonja Lengnick PERKINS COIE 1201 3RD AVE STE 4800 SEATTLE , WA 98101−3099 206−583−8888 Fax: FAX 583−8500 Email: SLengnick@perkinscoie.com TERMINATED: 06/10/2004
Harry James Franklyn Korrell , III DAVIS WRIGHT TREMAINE (SEA) 1201 THIRD AVENUE SUITE 2200 SEATTLE , WA 98101−3045 206−622−3150 Email: harrykorrell@dwt.com ATTORNEY TO BE NOTICED
Kevin J Hamilton PERKINS COIE (SEA) 1201 3RD AVE STE 4800 SEATTLE , WA 98101−3099 206−359−8741 Email: KHAMILTON@PERKINSCOIE.COM ATTORNEY TO BE NOTICED
represented by Eric B Martin (See above for address) TERMINATED: 01/04/2007 ATTORNEY TO BE NOTICED
Michael Reiss (See above for address) ATTORNEY TO BE NOTICED
represented by Eric B Martin (See above for address) TERMINATED: 01/04/2007 ATTORNEY TO BE NOTICED

Date Filed 06/04/1998 06/08/1998 06/18/1998 06/18/1998 06/24/1998

#

Docket Text

1 COMPLAINT (Summons(es) issued) Receipt # 251454 (MD) (Entered: 06/05/1998)

2 RETURN OF SERVICE of summons and complaint executed upon defendant Boeing Company on 6/4/98 (MD) (Entered: 06/09/1998)

3 ATTORNEY APPEARANCE for defendant Boeing Company by Michael Reiss (MD) (Entered: 06/22/1998)

4 AFFIDAVIT OF SERVICE by defendant of attorney appearance [3−1] (MD) (Entered: 06/22/1998)

5 ANSWER to complaint [1−1] by defendant Boeing Company (dktclk) (Entered: 06/25/1998)

07/02/1998
07/02/1998 07/23/1998 07/27/1998 07/27/1998 07/27/1998 07/27/1998 07/27/1998 07/27/1998 07/27/1998
07/29/1998 07/29/1998 07/30/1998 07/30/1998 08/04/1998
08/05/1998 08/05/1998 08/10/1998

6 APPLICATION/ORDER by Deputy Clerk allowing atty Barbara Barish Brown to appear pro hac vice on behalf of dft Boeing Co. Receipt no 251909 (cc: counsel, Judge, MR) (RS) (Entered: 07/02/1998)
7 APPLICATION/ORDER by Deputy Clerk allowing atty C Geoffrey Weirich to appear pro hac vice on behalf of dft Boeing Co. Receipt no 251909 (cc: counsel, Judge, MR) (RS) (Entered: 07/02/1998)
8 REQUEST by defendant for conf of counsel (RS) (Entered: 07/28/1998)
9 MOTION by plaintiffs for protective order and an order scheduling a pretrial conf NOTED FOR 8/14/98 (RS) (Entered: 07/28/1998)
10 NOTICE by plaintiff that the following is NOTED FOR 8/14/98 motion for protective order and an order scheduling a pretrial conf (RS) (Entered: 07/28/1998)
11 MEMORANDUM by plaintiff in support of motion for protective order and an order scheduling a pretrial conf [9−1] (RS) (Entered: 07/28/1998)
12 DECLARATION of Oscar Desper III by plaintiff re motion for protective order and an order scheduling a pretrial conf [9−1] (RS) (Entered: 07/28/1998)
LODGED ORDER: re: motion for protective order and an order scheduling a pretrial conf [9−1] (RS) (Entered: 07/28/1998)
13 MOTION by plaintiffs to shorten time on motion for protective order and an order scheduling a pretrial conf [9−1] NOTED FOR 7/31/98 (RS) (Entered: 07/28/1998)
14 MINUTE ORDER: by Judge William L. Dwyer Case reassigned to Judge Barbara J. Rothstein. All future pleadings shall bear the cause number C98−761R (cc: counsel, Judges, MR) (RS) (Entered: 07/28/1998)
15 RESPONSE by defendant to motion for protective order [9−1] (KERR) (Entered: 07/29/1998)
16 DECLARATION of Michael Reiss by defendant re: motion response [15−1] (Exhibits A−K Attached) (KERR) (Entered: 07/29/1998)
17 REPLY by plaintiffs TO RESPONSE to motion for protective order and an order scheduling a pretrial conf [9−1] (KERR) (Entered: 07/30/1998)
18 DECLARATION of Oscar E Desper III by plaintiffs in support of motion reply [17−1] (Exhibits A−C Attached) (KERR) (Entered: 07/30/1998)
19 ORDER TRANSFERRING CASE by Judge Barbara J. Rothstein and GRANTING pltfs' motion for protective order [9−1] Case reassigned to Judge John C. Coughenour as related to C98−430C. JCC will schedule a pretrial conference to discuss the coordination of discovery (cc: counsel, BJR, JCC, JM, MR) (KERR) (Entered: 08/04/1998)
20 NOTICE OF HEARING: ; status conference set for 9:00 9/22/98 (cc: all counsel) (dktclk) (Entered: 08/05/1998)
21 PROCEDURAL ORDER re discovery and depositions by Judge John C. Coughenour (cc: counsel, Judge) (dktclk) (Entered: 08/05/1998)
22 REQUEST (LETTER) by defendant Boeing Company for a conference of cnsl to resolve a number of issues re C98−430 &C98−761 (PM) (Entered: 08/11/1998)

08/12/1998 08/13/1998 08/13/1998 08/13/1998 08/13/1998 08/13/1998 08/18/1998 08/24/1998 08/24/1998 08/27/1998
08/27/1998 08/27/1998 09/02/1998 09/08/1998 09/08/1998 09/08/1998 09/10/1998
09/10/1998
09/10/1998
09/11/1998

23 LETTER by plaintiffs re letter of 8/7/98 from defts re status conference (dktclk) (Entered: 08/12/1998)
24 MOTION by plaintiff to stay class certification proceedings NOTED FOR 8/28/98 (dktclk) (Entered: 08/13/1998)
25 MEMORANDUM by plaintiff in support of motion to stay class certification proceedings [24−1] (dktclk) (Entered: 08/13/1998)
LODGED ORDER: re: motion to stay class certification proceedings [24−1] (dktclk) (Entered: 08/13/1998)
26 AFFIDAVIT OF SERVICE by plaintiff of motion to stay class certification proceedings [24−1] (dktclk) (Entered: 08/13/1998)
LODGED ORDER: re: motion to stay class certification proceedings [24−1] (dktclk) (Entered: 08/14/1998)
27 MINUTE ORDER: by Judge John C. Coughenour ; status conf reset for 9:00 9/29/98 (cc: counsel, Judge) (RS) (Entered: 08/18/1998)
28 RESPONSE (MEMORANDUM IN OPPOSITION) by defendant Boeing Company to motion to stay class certification proceedings [24−1] (RS) (Entered: 08/25/1998)
29 DECLARATION of Michael Reiss by defendant Boeing Company re: motion response [28−1] (RS) (Entered: 08/25/1998)
30 MINUTED ORDER TO SHOW CAUSE: by Judge John C. Coughenour directing parties to show cause within 10 days of entry of this Order why case C98−430C and C98−761C should not be consolidated (cc: counsel, Judge) (RS) (Entered: 08/27/1998)
31 REPLY by plaintiffs TO RESPONSE to motion to stay class certification proceedings [24−1] (RS) (Entered: 08/28/1998)
32 DECLARATION of Oscar Desper III by plaintiff re: motion reply [31−1] (RS) (Entered: 08/28/1998)
33 MINUTE ORDER: by direction of Judge John C. Coughenour GRANTING Plaintiff's motion to stay class certification proceedings [24−1] (cc: counsel, Judge) (dktclk) (Entered: 09/02/1998)
34 RESPONSE by plaintiffs re: order to show cause [30−1] (dktclk) (Entered: 09/09/1998)
35 AFFIDAVIT OF SERVICEi by messenger by plaintiffs of response [34−1] (dktclk) (Entered: 09/09/1998)
36 RESPONSE by defendant Boeing Company order to show cause [0−0] (dktclk) (Entered: 09/09/1998)
38 MOTION by defendant Boeing Company to dismiss certain class claims; to sever the individual claims of four named pltf;s and for a protective order concerning discovery as to all such claims; OA REQ'D NOTED FOR 10/2/98 (dktclk) (Entered: 09/15/1998)
39 MEMORANDUM by defendant Boeing Company in support of motion to dismiss certain class claims; to sever the individual claims of four named pltf's; and for a protective order concerning discovery as to all such claims; OA REQ'D [38−1] (dktclk) (Entered: 09/15/1998)
40 DECLARATION of James Johnson and Steven Kundinger by defendant Boeing Company re motion to dismiss certain class claims; to sever the individual claims of four named pltf's; and for a protective order concerning discovery as to all such claims; OA REQ'D [38−1] (dktclk) (Entered: 09/15/1998)
37 MINUTE ORDER: by direction of Judge John C. Coughenour: In response to the Court's 8/27/98 order to show cause the parties have

09/11/1998
09/25/1998
09/28/1998 09/28/1998 09/28/1998 09/28/1998 09/28/1998 09/28/1998
09/28/1998
09/28/1998 09/28/1998 09/28/1998 09/28/1998 09/28/1998 09/28/1998 09/28/1998 09/28/1998 09/28/1998 09/28/1998 09/28/1998

agreed that proceedings in C98−430C should be stayed. The Court hereby STAYS the proceedings in C98−430C pending the resolution of the class certification motion in C98−761C. [0−0] (cc: counsel, Judge) (dktclk) (Entered: 09/11/1998)
41 PRAECIPE: by defendant Boeing Company re: motion to dismiss certain class claims, etc.to replace page 1 of motion [38−1] (page 1 replace per praecipe) (dktclk) (Entered: 09/15/1998)
42 PROPOSED CASE MANAGEMENT ORDER THROUGH CLASS CERTIFICATION MOTION by defendant Boeing Company (dktclk) (Entered: 09/28/1998)
PROPOSED Stipulation re Confidentiality &Agreed Protective Order (dktclk) (Entered: 09/28/1998)
43 MOTION by plaintiffs to file amended complaint NOTED FOR 10/16/98 (dktclk) (Entered: 09/28/1998)
44 MEMORANDUM by plaintiff in support of motion to file amended complaint [43−1] (dktclk) (Entered: 09/28/1998)
LODGED ORDER: re: motion to file amended complaint [43−1] (dktclk) (Entered: 09/28/1998)
45 AFFIDAVIT OF SERVICE by plaintiff of motion to file amended complaint [43−1] (dktclk) (Entered: 09/28/1998)
46 RESPONSE by plaintiffs to motion to dismiss certain class claims; to sever the individual claims of four named pltf;s and for a protective order concerning discovery as to all such claims [38−1] (dktclk) (Entered: 09/28/1998)
47 DECLARATION w/ Exhibits A−T attached of Oscar E. Despar, III by plaintiffs re: motion response [46−1](exhibits filed in 2 expando folders) (dktclk) Modified on 09/29/1998 (Entered: 09/28/1998)
48 DECLARATION of Solomon Williams by plaintiffs re: motion response [46−1] (dktclk) (Entered: 09/28/1998)
49 DECLARATION of William E. Bell by plaintiffs re: motion response [46−1] (dktclk) (Entered: 09/28/1998)
50 DECLARATION of Michael R. Eckles by plaintiffs re: motion response [46−1] (dktclk) (Entered: 09/28/1998)
51 DECLARATION of Mara M. Ferrari by plaintiffs re: motion response [46−1] (dktclk) (Entered: 09/28/1998)
52 DECLARATION of Rhonda W. Capps by plaintiffs re: motion response [46−1] (dktclk) (Entered: 09/28/1998)
53 DECLARATION of Brian Todd by plaintiffs re: motion response [46−1] (dktclk) (Entered: 09/28/1998)
54 DECLARATION of Henry F. Butler by plaintiffs re: motion response [46−1] (dktclk) (Entered: 09/28/1998)
55 DECLARATION of Willie Meeks by plaintiffs re: motion response [46−1] (dktclk) (Entered: 09/28/1998)
56 DECLARATION of Kevin L. Biglow by plaintiffs re: motion response [46−1] (dktclk) (Entered: 09/28/1998)
57 DECLARATION of Beverly A. Trotter by plaintiffs re: motion response [46−1] (dktclk) (Entered: 09/28/1998)
58 DECLARATION of Carl E. Williams by plaintiffs re: motion response [46−1] (dktclk) (Entered: 09/28/1998)

09/28/1998 09/28/1998 09/28/1998 09/28/1998 09/28/1998 09/28/1998 09/28/1998 09/28/1998 09/28/1998 09/28/1998 09/29/1998
09/30/1998
09/30/1998
10/09/1998 10/15/1998 10/20/1998 10/22/1998 10/22/1998 10/22/1998

59 DECLARATION of Margaret R. Austell by plaintiffs re: motion response [46−1] (dktclk) (Entered: 09/28/1998)
60 DECLARATION of Jerome Greene by plaintiffs re: motion response [46−1] (dktclk) (Entered: 09/28/1998)
61 DECLARATION of J.F. Bradford by plaintiffs re: motion response [46−1] (dktclk) (Entered: 09/28/1998)
62 DECLARATION of Emmalee Anderson by plaintiffs re: motion response [46−1] (dktclk) (Entered: 09/28/1998)
63 DECLARATION of Curtis G. English by plaintiffs re: motion response [46−1] (dktclk) (Entered: 09/28/1998)
64 DECLARATION of Donald Powell by plaintiffs re: motion response [46−1] (dktclk) (Entered: 09/28/1998)
65 DECLARATION of Evalean Moore by plaintiffs re: motion response [46−1] (dktclk) (Entered: 09/28/1998)
66 DECLARATION of Willie Wilson by plaintiffs re: motion response [46−1] (dktclk) (Entered: 09/28/1998)
LODGED ORDER: Denying deft's motion to dismiss certain class claims, etc. (dktclk) (Entered: 09/28/1998)
67 AFFIDAVIT OF SERVICE by plaintiffs of motion response [46−1] (dktclk) (Entered: 09/28/1998)
68 MINUTES/STATUS CONFERENCE: JCC; Dep Clerk: J. Mahnke; CR: Caroline Castle; Cnsl present: Desper/McKay; Reiss/Brown; Weirich/Sullivan.; status conference called. Cnsl heard. Pltf's motion for class certification is to be filed by 4/5/99. Opposition due in 30 days &any reply due w/in 2 weeks. Remaining discovery matters will be referred to Magistrate Judge Martinez. (dktclk) Modified on 09/30/1998 (Entered: 09/30/1998)
69 MINUTE ORDER: by direction of Judge John C. Coughenour: The Court has set a deadline of 4/5/99 for filing pltfs motion to certify a class. The court refers all discovery matters related to the parties preparation of this motion to Magistrate Judge Martinez. (cc: counsel, Judge,RSM) (dktclk) (Entered: 09/30/1998)
70 LETTER by defendant Boeing Company to confirm STRIKING motion to dismiss certain class claims; to sever the individual claims of four named pltf;s and for a protective order concerning discovery as to all such claims; OA REQ'D [38−1] (dktclk) (Entered: 09/30/1998)
71 ATTORNEY APPEARANCE for defendant Boeing Company by Jeffrey Alan Hollingsworth (dktclk) (Entered: 10/15/1998)
PROPOSED Stipulation re Confidentiality and Agreed Protective Order (dktclk) (Entered: 10/15/1998)
72 STIPULATION re CONDIFENTIALITY AND AGREED PROTECTIVE ORDER by Judge John C. Coughenour : (cc: all counsel,JCC) (dktclk) (Entered: 10/20/1998)
74 MOTION by defendant Boeing Company to compel discovery NOTED FOR 11/6/98 (dktclk) (Entered: 10/26/1998)
75 MEMORANDUM by defendant Boeing Company in support of motion to compel discovery [74−1] (dktclk) (Entered: 10/26/1998)
76 DECLARATION of Elizabeth A. Sullivan by defendant Boeing Company re motion to compel discovery [74−1] (dktclk) (Entered: 10/26/1998)

10/22/1998 10/23/1998 10/23/1998 10/23/1998 11/02/1998 11/02/1998 11/02/1998 11/02/1998 11/02/1998 11/02/1998 11/02/1998 11/02/1998 11/02/1998 11/02/1998 11/02/1998 11/02/1998

77 Proposed Case Management Order through Class Certification Motion by defendant Boeing Company w/ letter of 10/22/98 attached (dktclk) Modified on 10/30/1998 (Entered: 10/26/1998)
73 STIPULATION and ORDER by Judge John C. Coughenour :IT IS ORDERED that pltfs shall have leave to file an amended complaint in the form of that proposed in pltf's motion to amend filed 9/28/98. (cc: counsel, Judge) (dktclk) (Entered: 10/23/1998)
78 LETTER by plaintiffs in response to Boeing's 10/22/98 letter to the court (dktclk) Modified on 10/30/1998 (Entered: 10/26/1998)
79 AFFIDAVIT OF SERVICE by plaintiffs re designation of attorney/notice of appearance unde 28 USC 1407 (dktclk) (Entered: 11/02/1998)
80 MOTION by defendant Boeing Company to dismiss pltfs' 5th and 6th causes of action OA REQ'D NOTED FOR 12/4/98 (RS) (Entered: 11/03/1998)
81 MEMORANDUM by defendant Boeing Company in support of motion to dismiss pltfs' 5th and 6th causes of action [80−1] (RS) (Entered: 11/03/1998)
82 MOTION by defendant Boeing Company to dismiss the class claims and to sever the individual claims that cannot be included in any class certified in this case OA REQ'D NOTED FOR 12/4/98 (RS) (Entered: 11/03/1998)
83 MEMORANDUM by defendant Boeing Company in support of motion to dismiss the class claims and to sever the individual claims that cannot be included in any class certified in this case [82−1] (RS) (Entered: 11/03/1998)
84 DECLARATION of Steve Kundinger by defendant Boeing Company re motion to dismiss the class claims and to sever the individual claims that cannot be included in any class certified in this case [82−1] (RS) (Entered: 11/03/1998)
85 DECLARATION of Gary Phelps by defendant Boeing Company re motion to dismiss the class claims and to sever the individual claims that cannot be included in any class certified in this case [82−1] (RS) (Entered: 11/03/1998)
86 DECLARATION of David Heath by defendant Boeing Company re motion to dismiss the class claims and to sever the individual claims that cannot be included in any class certified in this case [82−1] (RS) (Entered: 11/03/1998)
87 DECLARATION of James Johnson by defendant Boeing Company re motion to dismiss the class claims and to sever the individual claims that cannot be included in any class certified in this case [82−1] (filed in expando folder) (RS) (Entered: 11/03/1998)
88 DECLARATION of Kathryn Brown by defendant Boeing Company re motion to dismiss the class claims and to sever the individual claims that cannot be included in any class certified in this case [82−1]. (filed in expando folder) (RS) (Entered: 11/03/1998)
89 LETTER from Oscar Desper as a follow−up response to Boeing cnsl's 10/22/98 letter (RS) (Entered: 11/03/1998)
90 RESPONSE (MEMORANDUM IN OPPOSITION) by plaintiffs to motion to compel discovery [74−1] (RS) (Entered: 11/03/1998)
91 DECLARATION of Oscar Desper by plaintiff re: motion response [90−1] (RS) (Entered: 11/03/1998)

11/04/1998 11/04/1998
11/04/1998 11/05/1998 11/10/1998 11/10/1998 11/12/1998 11/13/1998 11/18/1998 11/18/1998 11/20/1998 11/24/1998 11/30/1998
12/04/1998 12/04/1998 12/14/1998 12/14/1998 12/16/1998 12/16/1998

92 AFFIDAVIT OF SERVICE by plaintiff of motion response [90−1] (dktclk) (Entered: 11/05/1998)
93 FIRST AMENDED COMPLAINT [1−1] by plaintiff; jury demand; terminating pla William Bell; adding the following plas: David Brawley, Mara Ferrari, Rhonda Capps, Charles Jones, David Roberts, Verlene Maholmes, Terry Fisher, Carol Calender, Evalean Moore, Ralph Wilson, Ronnie Mitchell, Theodeshia Knauls, Beverly Trotter, Kevin Biglow, Michael Marion; adding defts: Boeing North American Inc.; McDonell Douglass Corporation (dktclk) Modified on 11/05/1998 (Entered: 11/05/1998)
94 PRAECIPE: by plaintiffs to issue summons (iss'd) (dktclk) (Entered: 11/05/1998)
95 REPLY BRIEF by defendant Boeing Company IN SUPPORT OF motion to compel discovery [74−1] (dktclk) (Entered: 11/05/1998)
96 MINUTE ORDER: by direction of Magistrate Judge Ricardo S. Martinez ; status conference set before Magistrate Martinez at 9:00am on 11/20/98 (cc: counsel, Judge) (dktclk) (Entered: 11/12/1998)
97 RETURN OF SERVICE of summons and complaint executed upon defendant Boeing N American on 11/5/98 (dktclk) (Entered: 11/13/1998)
98 ACCEPTANCE/ACKNOWLEDGEMENT OF SERVICE of summons and complaint by defendant Boeing N American, defendant McDonnell Douglas on 11/6/98 (dktclk) (Entered: 11/13/1998)
99 RETURN OF SERVICE of summons and complaint executed upon defendant McDonnell Douglas on 11/5/98 (dktclk) (Entered: 11/13/1998)
100 LETTER by defendant Boeing Company re case management schedule &pending discovery (dktclk) (Entered: 11/20/1998)
PROPOSED Case Management Order Through Class Certification Month (dktclk) (Entered: 11/20/1998)
101 ANSWER to first amended class action complaint [93−1] by defendant Boeing Company (dktclk) (Entered: 11/23/1998)
102 LETTER to Court from parties re: need more time for discovery schedule (dktclk) (Entered: 11/25/1998)
103 WITHDRAWAL by defendant Boeing Company of motion to dismiss the class claims and to sever the individual claims that cannot be included in any class certified in this case [82−1] and dft Boeing's motion to compel discovery [74−1] (RS) (Entered: 11/30/1998)
104 LETTER by plaintiffs re case management schedule (dktclk) (Entered: 12/09/1998)
105 LETTER by plaintiffs re proposed case management schedule (dktclk) (Entered: 12/09/1998)
106 LETTER of 12/14/98 from deft re case management order (dktclk) (Entered: 12/17/1998)
109 NOTICE OF HEARING: by the MDL 1260 Panel in Fort Myers Florida. Hearing set for 1/29/99. (courtesy copy) (RS) (Entered: 01/04/1999)
107 LETTER of 12/4/98 by defendant re case management order (dktclk) (Entered: 12/17/1998)
PROPOSED Case Management Schedule through class certification motion &order (dktclk) (Entered: 12/17/1998)

12/16/1998
01/22/1999 01/22/1999 01/22/1999 01/25/1999
02/02/1999
02/23/1999
02/25/1999 02/27/1999 03/01/1999 03/04/1999 03/05/1999 03/06/1999 03/06/1999 03/09/1999 03/11/1999 03/12/1999 03/13/1999 03/15/1999 03/15/1999

108 MINUTE ORDER: by Magistrate Judge Ricardo S. Martinez: Upon the joint request of counsel, the date for filing a proposed case manaement schedule is hereby extended to 12/23/98. (cc: counsel, Judge) (dktclk) (Entered: 12/17/1998)
110 JOINT MOTION requesting preliminary approval of proposed consent decree (dktclk) (Entered: 01/22/1999)
LODGED ORDER: re: motion requesting preliminary approval of proposed consent decree [110−1] (dktclk) (Entered: 01/22/1999)
PROPOSED Consent Decree re: motion requesting preliminary approval of proposed consent decree [110−1] (FILED IN EXPANDO #4) (dktclk) Modified on 03/24/1999 (Entered: 01/22/1999)
111 ORDER by Judge John C. Coughenour GRANTING motion requesting preliminary approval of proposed consent decree [110−1]. A hearing (the "Fairness Hearing") shall be held at 8:30am on 5/26/99 (cc: counsel, Judge) (dktclk) Modified on 02/01/1999 (Entered: 01/25/1999)
112 ORDER DEEMING MOTION WITHDRAWN AND VACATING THE JANUARY 29, 1999 HEARING, In re: MDL−1260, panel has been notified that parties have reached an agreement that will resolve all three actions, movants now withdraw their Section 1407 motion (dktclk) (Entered: 02/02/1999)
113 PRAECIPE: by plaintiffs to file amended exhibit A to the proposed consent decree filed 1/22/99. re: document lodged [0−0] (attached to proposed consent decree per praecipe) (dktclk) Modified on 03/24/1999 (Entered: 02/23/1999)
114 LETTER for Emerson Jeter stating he wishes to opt out of the monetary portion of settlement (dktclk) (Entered: 03/01/1999)
115 LETTER from Linder R. Parker opting out of the monetary portion of the settlement (VK) (Entered: 03/04/1999)
116 LETTER from Ruth Tyler rejecting this settlement offer (VK) (Entered: 03/04/1999)
117 LETTER from Valerie Jo Dorsey stating she wishes to opt out of the monetary portion of the settlement. (dktclk) (Entered: 03/05/1999)
118 LETTER from Juliet Michelle Dejean wishing to opt out of the monetary portion of the settlement. (dktclk) (Entered: 03/06/1999)
119 LETTER from Charles Pope wishing to opt out of the monetary portion. (dktclk) (Entered: 03/10/1999)
120 LETTER from Antionette M. Bailey wishing to opt out of monetary portion of settlement. (dktclk) (Entered: 03/10/1999)
121 LETTER from Mary Louise Stevens wishing to opt out of monetary settlement. (dktclk) (Entered: 03/10/1999)
122 LETTER by Larry E. Fisher opting out of the monetary portion of the settlement of this case. (CL) (Entered: 03/11/1999)
123 LETTER from Karen Felicia Johnson − wishing to opt out of the monetary portion of the settlement. (dktclk) (Entered: 03/15/1999)
124 Copy of letter sent to OScar Desper by Leo Evans requesting claim form to beome part of this class action (dktclk) (Entered: 03/16/1999)
125 LETTER from Philbert White wishing to be excluded from the monetary settlement (dktclk) (Entered: 03/16/1999)
126 LETTER from Ademola D. Martin wishing to be excluded from the monetary settlement. (dktclk) (Entered: 03/16/1999)

03/16/1999 03/17/1999 03/19/1999 03/19/1999 03/19/1999 03/20/1999
03/22/1999 03/22/1999 03/22/1999 03/22/1999 03/22/1999 03/23/1999 03/24/1999 03/25/1999 03/25/1999 03/26/1999 03/26/1999 03/26/1999 03/30/1999 03/30/1999 03/31/1999 04/01/1999 04/01/1999

127 LETTER from Joanna Gamble requesting to opt out of the monetary settlement. (dktclk) (Entered: 03/16/1999)
128 LETTER from Rudolphus Lefbre wishing to opt out of monetary settlement (dktclk) (Entered: 03/18/1999)
129 LETTER from Michael K. Porterfield wishing to opt out of monetary portion of settlement. (dktclk) (Entered: 03/24/1999)
131 LETTER from Anthony Trumane Witherspoon wishing to opt of out monetary portion of settlement. (dktclk) (Entered: 03/24/1999)
132 LETTER from Avon Jones wishing to opt of out monetary portion of settlement (dktclk) (Entered: 03/24/1999)
130 LETTER from Jameel Al−Hakeem Fand Muhammad wishing to opt out of monetary portion of the settlement. (dktclk) (Entered: 03/24/1999)
133 LETTER from Carolyn E. Dilworth wishing to opt out of monetary portion of settlement (dktclk) (Entered: 03/24/1999)
134 LETTER from Linda M Dulds wishing to opt out of the monetary portion of the settlement. (dktclk) (Entered: 03/24/1999)
135 LETTER from Idella Teague wishing to opt out of monetary settlement (dktclk) (Entered: 03/24/1999)
137 LETTER from Frank Weaver wishing to opt out of monetary portion of settlement (dktclk) (Entered: 03/24/1999)
138 LETTER from Stanley Blasingame wishing to opt out of monetary portion of settlement (dktclk) (Entered: 03/24/1999)
139 LETTER from Ronald Thomas wishing to opt of monetary portion of settlement (dktclk) (Entered: 03/26/1999)
136 LETTER from Hillery Jones wishing to opt out of monetary portion of settlement (dktclk) (Entered: 03/24/1999)
140 LETTER from Antonio Esters Sr wishing to opt out of monetary portion of settlement (dktclk) (Entered: 03/26/1999)
141 LETTER from wishing to opt out of monetary portion of settlement (dktclk) (Entered: 03/26/1999)
145 LETTER from Traci Jean Hammond wishing to opt out of the monetary portion of the settlement (dktclk) (Entered: 04/02/1999)
146 LETTER from James Troup wishing to opt out of the monetary portion of the settlement (dktclk) (Entered: 04/02/1999)
147 LETTER from Traci Jean Hammond wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/02/1999)
143 LETTER from Valinda A. Hanks wishing to out of the monetary portion of the settlement (dktclk) (Entered: 04/02/1999)
144 LETTER from Vella Renee Sillah wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/02/1999)
142 LETTER from Lorraine M. Stevens wishing to opt out of the monetary portion of the settlement (dktclk) (Entered: 04/02/1999)
148 LETTER from Valinda Hanks objecting to the Consent Decree (dktclk) (Entered: 04/05/1999)
149 LETTER from Gloria Stallworth wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/05/1999)

04/01/1999 04/02/1999 04/03/1999 04/05/1999 04/05/1999 04/05/1999 04/05/1999 04/05/1999 04/05/1999 04/05/1999 04/05/1999 04/05/1999 04/05/1999 04/05/1999 04/05/1999 04/05/1999 04/05/1999 04/05/1999 04/06/1999 04/06/1999 04/06/1999 04/06/1999 04/06/1999 04/06/1999

150 LETTER from Vella Renee Sillaw objecting to the consent decree (dktclk) (Entered: 04/05/1999)
151 LETTER from Stephen E. Broussard wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/05/1999)
152 LETTER from John E. Doyle wishing to opt out of the monetary portion of the settlement. (dktclk) (Entered: 04/05/1999)
153 LETTER from Erma L. Young wishing to opt of of monetary portion of the settlement (dktclk) (Entered: 04/05/1999)
154 LETTER from Reginald E. Newburn wishing to opt out of monetary portion of the settlement (dktclk) (Entered: 04/05/1999)
155 LETTER from Reginald Newburn wishing to opt out of monetary portion of the settlement. (dktclk) (Entered: 04/05/1999)
156 LETTER from Bertha Lipsey Alexander wishing to opt out of the monetary portion of the settlement (dktclk) (Entered: 04/05/1999)
157 LETTER from James Leslie Walker wishing to opt out of the monetary portion of the settlement (dktclk) (Entered: 04/05/1999)
158 LETTER from Charles E. Murrary wishing to opt out of the monetary portion of the settlement (dktclk) (Entered: 04/05/1999)
159 LETTER from Althea Haygood wishing to opt out of the monetary portion of the settlement (dktclk) (Entered: 04/05/1999)
160 LETTER from Lowanda Jean Patton wishing to opt out of the monetary portion of the settlement (dktclk) (Entered: 04/05/1999)
161 LETTER from P. James Drake wishing to opt out of the monetary portion of the settlement (dktclk) (Entered: 04/05/1999)
162 LETTER from Danell F. Hill wishing to opt out of the monetary portion of the settlement (dktclk) (Entered: 04/05/1999)
163 LETTER from Bruce Allison Tillery wishing to opt out of the monetary portion of the settlement (dktclk) (Entered: 04/05/1999)
164 LETTER from Bruce Allison objecting to the Consent Decree (dktclk) (Entered: 04/05/1999)
165 LETTER from Doris Ann Lenox wishing to opt out of the monetary portion of the settlement (dktclk) (Entered: 04/05/1999)
166 REQUEST by Gary Grant wishing to opt out of the monetary portion of the settlement (dktclk) (Entered: 04/05/1999)
167 LETTER from Jacqueline L. Kaigler wishing to opt out of the monetary portion of the settlement (dktclk) (Entered: 04/05/1999)
168 LETTER from Helen L. Ellison wishing to opt out of monetary portion of the settlement (dktclk) (Entered: 04/06/1999)
169 LETTER from James Jones, Jr. wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/06/1999)
170 LETTER from Earlene W. Jones wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/06/1999)
171 LETTER from Begley Ellison wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/06/1999)
172 LETTER from Winifred L. Williams wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/06/1999)
173 LETTER from Fred L. Brown wishing to opt out of the monetary portion of settlement (dktclk) (Entered: 04/06/1999)

04/06/1999 04/06/1999 04/06/1999 04/06/1999 04/06/1999 04/06/1999 04/06/1999 04/06/1999 04/06/1999 04/06/1999 04/06/1999 04/07/1999 04/07/1999 04/07/1999 04/07/1999 04/08/1999 04/08/1999 04/08/1999 04/08/1999 04/08/1999 04/08/1999 04/08/1999 04/08/1999 04/08/1999

174 LETTER from Lawrence Andrews wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/06/1999)
175 LETTER from Ida M. Battles wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/06/1999)
176 LETTER from Marshall Battles, Sr. wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/06/1999)
177 LETTER Roy T. Wells wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/06/1999)
178 LETTER from Etha Marie Reagous wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/06/1999)
179 LETTER from jacqueline Lynn Johnson wishing to opt out of the monetary portion of the settlement (dktclk) (Entered: 04/06/1999)
180 LETTER from Kent Nelson Copridge wishing to opt out of the monetary portion of settlement (dktclk) (Entered: 04/06/1999)
181 LETTER from Ray A. Bates wishing to opt out of the monetary portion of settlement (dktclk) (Entered: 04/06/1999)
182 LETTER from Rezell Wheaton wishing to opt out of the monetary portion of the settlement (dktclk) (Entered: 04/06/1999)
183 LETTER from Alice Stewart wishing to opt out of the monetary portion of settlement (dktclk) (Entered: 04/06/1999)
184 LETTER from Henry F. Butler wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/06/1999)
185 LETTER from Willie Edwards wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/13/1999)
186 LETTER from Eva Mae Herring wishing to opt out of the monetary portion of settlement (dktclk) (Entered: 04/13/1999)
187 LETTER from paul Booker wishing to opt out of the monetary portion of the settlement (dktclk) (Entered: 04/13/1999)
188 LETTER frm Eleanor Staten wishin to opt out of the monetary portion of the settlement (dktclk) (Entered: 04/13/1999)
189 LETTER from Daniv Lee Gains wishing to opt out of the monetary portion of settlement (dktclk) (Entered: 04/13/1999)
190 LETTER from Jeff Wade Jr wishing to opt out of the monetary portion of settlement (dktclk) (Entered: 04/13/1999)
191 LETTER from Andre H. Styles wishing to opt out of the monetary portion of settlement (dktclk) (Entered: 04/13/1999)
192 LETTER from Floyd E. Wade wishing to opt out of the monetary portion of settlement (dktclk) (Entered: 04/13/1999)
193 LETTER from Clayton Martin Jr wishing to opt out of the monetary portion of settlement (dktclk) (Entered: 04/13/1999)
194 LETTER from Norman Hall, Jr wishing to opt out of the monetary portion of settlement (dktclk) (Entered: 04/13/1999)
195 LETTER from Anthony Moulden wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/13/1999)
196 LETTER from Larry Edward Sharphier wishing to opt out of the monetary portion of settlement (dktclk) (Entered: 04/13/1999)
197 LETTER from Fred Washington wishing to opt out of the monetary portion of settlement (dktclk) (Entered: 04/13/1999)

04/08/1999 04/08/1999 04/08/1999 04/08/1999 04/08/1999 04/08/1999 04/08/1999 04/08/1999 04/08/1999 04/08/1999 04/09/1999 04/09/1999 04/09/1999 04/09/1999 04/09/1999 04/09/1999 04/09/1999 04/09/1999 04/09/1999 04/10/1999 04/10/1999 04/10/1999 04/10/1999 04/10/1999

198 LETTER from Nivette Grace Marie Richett wishing to opt out of the monetary portion of settlement (dktclk) (Entered: 04/13/1999)
199 LETTER from Wilbert Grant Burgress wishing to opt out of the monetary portion of settlement (dktclk) (Entered: 04/13/1999)
200 LETTER from Edmund McClain wishing to opt out of the monetary portion of settlement (dktclk) (Entered: 04/13/1999)
201 LETTER from Sheila Buglow wishing to opt out of the monetar portion of settlement (dktclk) (Entered: 04/14/1999)
202 LETTER from Elvin L Staples, Jr. wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
203 LETTER from Harry Sullivan wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
204 LETTER from Frances Slater wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
205 LETTER from Yvonne Delphlene Pittard wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
206 LETTER from Barbara Jean Lucas wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
207 LETTER from Eddie Blanchard wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
208 LETTER from Seymor A. Mitchell wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
209 LETTER from Aulon Cranston Turner Jr. wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
210 LETTER from Betty Shackelford wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
211 LETTER from R. Miller Adams wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
212 LETTER from Lawrence Allan wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
213 LETTER from Ricky K. Burns wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
214 LETTER from Alan L. Parker Sr wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
215 LETTER from Leonard Mc Farthey wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
216 LETTER from Willie Sears wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
217 LETTER from Belinda A. Ellis wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
218 LETTER from Paulette Mullens wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
219 LETTER from Hattie Irving wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
220 LETTER from Charles Russell, Jr wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
221 LETTER from Melba Jean Chaplin wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)

04/10/1999 04/10/1999 04/12/1999 04/12/1999 04/12/1999 04/12/1999 04/12/1999 04/12/1999 04/12/1999 04/12/1999 04/12/1999 04/12/1999 04/12/1999 04/12/1999 04/12/1999 04/12/1999 04/12/1999 04/12/1999 04/12/1999 04/12/1999 04/12/1999 04/12/1999 04/12/1999 04/12/1999

222 LETTER from Brenda Beudreaux wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
223 LETTER from Alvin Allen Jr wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
224 LETTER from Larry Mumford wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
225 LETTER from Robert Smith wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
226 LETTER from Geneva Thompsen wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
227 LETTER from Harold Booker wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
228 LETTER from Andre Anderson wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
229 LETTER from Shalonda D. Webb wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
230 LETTER from William Edward Moore wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
231 LETTER from Tisia Ranea Ogisi wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
232 LETTER from Robert Eugene Robinson Sr wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
233 LETTER from Jolomi O. Ogisi wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
234 LETTER from Donna N. Scott wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
235 LETTER from Kevin Cary Euice wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
236 LETTER from Shelvy Brown wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
237 LETTER from Robert Lee Richmond wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
238 LETTER from Johnny Floyd Owens wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
239 LETTER from Alice Miniweather wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
240 LETTER from Erica Lenise Owens wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
241 LETTER from Lynn B. Leufroy wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
242 LETTER from Mark E. Clay wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
243 LETTER from Frank Edward Wilson III wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
244 LETTER from Tywanna F. Thompson wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
245 LETTER from John F. Thompson wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)

04/13/1999 04/13/1999 04/13/1999 04/13/1999 04/13/1999 04/13/1999 04/13/1999 04/13/1999 04/13/1999 04/13/1999 04/14/1999 04/14/1999 04/14/1999 04/14/1999 04/15/1999 04/15/1999 04/15/1999 04/15/1999 04/15/1999 04/15/1999 04/15/1999 04/15/1999 04/15/1999 04/15/1999

246 LETTER from Melvin Fortson Jr wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
247 LETTER from Christine Denice Forston wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
248 LETTER from Slyvester Williams II wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
249 LETTER from A.W. McClain wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
250 LETTER from Johnnie paul Brooks wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
251 LETTER from Murn A.J. Miller Jr wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
252 LETTER from Earl W. Chester wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
253 LETTER from Warren Keith Pyles wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
254 LETTER from Betty Childers wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
255 LETTER from Ronson R. Daniels wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
256 LETTER from Johnny Carter wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
257 LETTER from Alice L.Wagoner wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
258 LETTER from Harold Crichton wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
259 LETTER from Debbie Ann Davidson wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/14/1999)
260 LETTER from Debra Robinson wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/15/1999)
261 LETTER from Bruce Maurice Price wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/15/1999)
262 LETTER from Jly Munford wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/15/1999)
263 LETTER from Connie DeBerry wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/15/1999)
264 LETTER from William Robinson wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/15/1999)
265 LETTER from Cecelia Daniels wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/15/1999)
266 LETTER from Hilda Heflin wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/15/1999)
267 LETTER from Bobbie L. Ruff wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/15/1999)
268 LETTER from Tony Sumler wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/15/1999)
269 LETTER from Lewis Wesson wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/15/1999)

04/15/1999 04/15/1999 04/15/1999 04/15/1999 04/15/1999 04/15/1999 04/16/1999 04/16/1999 04/16/1999 04/16/1999 04/16/1999 04/17/1999 04/17/1999 04/17/1999 04/17/1999 04/17/1999 04/17/1999 04/17/1999 04/17/1999 04/17/1999 04/17/1999 04/17/1999 04/17/1999 04/17/1999

270 LETTER from Eartha Green wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/15/1999)
271 LETTER from Rosie Black wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/15/1999)
272 LETTER from Lucretia W. Smith wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/15/1999)
273 LETTER from Walter F. Green Jr wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/15/1999)
274 REQUEST by Bettena Rosezell Washington wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/15/1999)
275 REQUEST by Olivia Durr Allen wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/15/1999)
276 LETTER from Gbohham A. Harrison wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/20/1999)
277 LETTER from Charles H. Moore wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/20/1999)
278 LETTER from Glenn A. Green wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/20/1999)
279 LETTER from Yolanda Brooks wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/20/1999)
280 LETTER from Mabeline Walker wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/20/1999)
281 LETTER from Jimmy Goodsen wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/21/1999)
282 LETTER from Ford Carr wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/21/1999)
283 LETTER from Myrna J. Ingram wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/21/1999)
284 LETTER from Noses E. Greasham wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/21/1999)
285 LETTER from Timothy Raynolds wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/21/1999)
286 LETTER from Anthony Robert Thompson wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/21/1999)
287 LETTER from Vernis Evert wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/21/1999)
288 LETTER from Naomi J. Cobb wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/21/1999)
289 LETTER from Jonathan Antonio Winstead wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/21/1999)
290 LETTER from Linda Glover Hudson wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/21/1999)
291 LETTER from Woodrow H. Kroll wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/21/1999)
292 LETTER from Robert Lee Hood wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/21/1999)
293 LETTER from Carl James Binford wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/21/1999)

04/17/1999 04/17/1999 04/17/1999 04/19/1999 04/19/1999 04/19/1999 04/19/1999 04/19/1999 04/19/1999 04/19/1999 04/19/1999 04/19/1999 04/19/1999 04/19/1999 04/19/1999 04/19/1999 04/19/1999 04/19/1999 04/19/1999 04/19/1999 04/19/1999 04/19/1999 04/19/1999 04/19/1999

294 LETTER from Mary Louise Johnson wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/21/1999)
295 LETTER from Vanessa Atkins wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/21/1999)
296 LETTER from Michael Childers wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/21/1999)
297 LETTER from Patricia Denise Chapman wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/22/1999)
298 LETTER from Pamela Berry wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/22/1999)
299 LETTER from Darryl K. Williams wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/22/1999)
300 LETTER from Peggy R. Dawson wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/22/1999)
301 LETTER from Clayton Crawford wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/22/1999)
302 LETTER from Antonio Giles wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/22/1999)
303 LETTER from Edna Burnett wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/22/1999)
304 LETTER from Diana Kaye Brewer wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/22/1999)
305 LETTER from Randal Smart wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/22/1999)
306 LETTER from LaRonda Childers wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/22/1999)
307 LETTER from Melvyn J. Johnson wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/22/1999)
308 LETTER from Hellen Marie Dean wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/22/1999)
309 LETTER from Eddie C. Dunley wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/22/1999)
310 LETTER from Belynda Anderson wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/22/1999)
311 LETTER from Ernest Harris wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/22/1999)
312 LETTER from Simmione Gumbs wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/22/1999)
313 LETTER from Carne Brown/Canada wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/22/1999)
314 LETTER from Wynella Jean Vann wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/22/1999)
315 LETTER from Ina M. VanArsdale wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/22/1999)
316 LETTER from Charles W. Coleman wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/22/1999)
317 LETTER from John Bridgewater wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/22/1999)

04/19/1999 04/19/1999 04/19/1999 04/19/1999 04/19/1999 04/19/1999 04/19/1999 04/19/1999 04/19/1999 04/19/1999 04/19/1999 04/19/1999 04/19/1999 04/22/1999 04/22/1999 04/23/1999 04/23/1999 04/23/1999 04/23/1999 04/23/1999
05/04/1999
05/04/1999

318 LETTER from Shirley Jean Pearson wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/22/1999)
319 LETTER from Roderick LaMark Hill wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/22/1999)
320 LETTER from Margie L. Walker wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/22/1999)
321 LETTER from Norma Brigewater wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/22/1999)
322 LETTER from Clayton Crawford wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/22/1999)
323 LETTER from Jessica Jackson wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/22/1999)
324 LETTER from Anthony McFarlin wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/22/1999)
325 LETTER from Augustine Duttz wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/22/1999)
326 LETTER from Doratine Johnson wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/22/1999)
327 LETTER from Sara Liggins wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/22/1999)
328 LETTER from Phillip Bruce Hutchins wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/22/1999)
329 LETTER from Maceo Edgar Bridgewater wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/22/1999)
330 DECLARATION in support of Proposed Consent Decree by Henry L. Hunter (dktclk) (Entered: 04/23/1999)
331 ATTORNEY APPEARANCE by Justin B Zaug (dktclk) (Entered: 04/23/1999)
332 AFFIDAVIT OF SERVICE of attorney appearance [331−1] (dktclk) (Entered: 04/23/1999)
333 ATTORNEY APPEARANCE by Mary E. Roberts &Alan Epstein (dktclk) (Entered: 04/23/1999)
334 OBJECTIONS to proposed consent decree (FILED IN EXPANDO) (dktclk) (Entered: 04/23/1999)
335 EXHIBITS 1−45 re McClam−Brown Objectors Volume 1 (FILED IN EXPANDO) (dktclk) (Entered: 04/23/1999)
336 EXHIBITS 46−86 re McClam−Brown Objectors Exhibits Volume 2 (FILED IN EXPANDO) (dktclk) (Entered: 04/23/1999)
337 NOTICE by Lizzie L. Coleman−Baxtrom filed by aty Justin B. Zaug wishing to opt out of monetary portion of settlement (dktclk) (Entered: 04/26/1999)
ENT−Letters re objections/opt out filed from 4/20/99 forward− filed in Expandos 5−8 by date. **NOTE: Expando 6 &7 contain McClam−Brown objections with names that are not included on the list of names in docket # 338. (dktclk) Modified on 05/04/1999 (Entered: 05/04/1999)
338 LIST of names re objections/opt out letters received from 4/20/99 forward (Original letters filed in Expandos 5−8). Letters received prior to 4/20/99 are individual docket entries. (dktclk) Modified on 05/04/1999 (Entered: 05/04/1999)

05/10/1999 05/10/1999 05/10/1999
05/10/1999 05/10/1999 05/10/1999 05/10/1999 05/17/1999 05/17/1999
05/17/1999 05/17/1999
05/17/1999
05/17/1999
05/17/1999 05/17/1999
05/17/1999

339 MOTION by McClam−Brown Objectors for leave to conduct discovery &to continue fairness hearing NOTED FOR 5/28/99(dktclk) Modified on 05/11/1999 (Entered: 05/11/1999)
340 MEMORANDUM in support of motion for leave to conduct discovery &to continue fairness hearing [339−1] (dktclk) (Entered: 05/11/1999)
341 MOTION by Nadine McClam−Brown, Ronald Clarke, Darla John, Lawrence King, Larry McIntosh, Constance E. Perry−Rose, &Shomide Tokunbo to intervene NOTED FOR 5/28/99 (dktclk) (Entered: 05/11/1999)
342 MEMORANDUM in support of motion to intervene [341−1] (dktclk) (Entered: 05/11/1999)
343 FIRST SUPPLEMENTAL MEMORANDUM of the McClam−Brown Objectors in support of objections (dktclk) (Entered: 05/11/1999)
LODGED ORDER: re: motion for leave to conduct discovery &to continue fairness hearing [339−1] (dktclk) (Entered: 05/11/1999)
LODGED ORDER: re: motion to intervene [341−1] (dktclk) (Entered: 05/11/1999)
344 MOTION by plaintiffs for leave to file an overlength memorandum in support of motion for final approval of the consent decree NOTED FOR 6/4/99 (dktclk) Modified on 05/18/1999 (Entered: 05/18/1999)
345 MOTION by plaintiffs to shorten time on motion for leave to file an overlength memorandum in support of motion for final approval of the consent decree [344−1] NOTED FOR 5/19/99 (dktclk) (Entered: 05/18/1999)
LODGED ORDER: re: motion for leave to file an overlength memorandum in support of motion for final approval of the consent decree [344−1] (dktclk) (Entered: 05/18/1999)
LODGED ORDER: re: motion to shorten time on motion for leave to file an overlength memorandum in support of motion for final approval of the consent decree [344−1] [345−1] (dktclk) (Entered: 05/18/1999)
346 AFFIDAVIT OF SERVICE by plaintiffs of motion to shorten time on motion for leave to file an overlength memorandum in support of motion for final approval of the consent decree [344−1] [345−1], of motion for leave to file an overlength memorandum in support of motion for final approval of the consent decree [344−1] (dktclk) (Entered: 05/18/1999)
347 MOTION by defendant Boeing Company, defendant McDonnell Douglas for leave to file an overlength memorandum in support of motion for final approval of the consent decree NOTED FOR 6/4/99 (dktclk) (Entered: 05/18/1999)
LODGED ORDER: re: motion for leave to file an overlength memorandum in support of motion for final approval of the consent decree [347−1] (dktclk) (Entered: 05/18/1999)
348 MOTION by defendant Boeing Company, defendant McDonnell Douglas to shorten time on motion for leave to file an overlength memorandum in support of motion for final approval of the consent decree [347−1] NOTED FOR 5/19/99 (dktclk) (Entered: 05/18/1999)
LODGED ORDER: re: motion to shorten time on motion for leave to file an overlength memorandum in support of motion for final approval of the consent decree [347−1] [348−1] (dktclk) (Entered: 05/18/1999)

05/19/1999 05/19/1999
05/20/1999 05/20/1999 05/21/1999 05/21/1999 05/21/1999 05/21/1999 05/21/1999 05/21/1999 05/21/1999 05/21/1999 05/21/1999 05/21/1999 05/21/1999 05/21/1999 05/21/1999 05/21/1999

349 LETTER by plaintiff David Brawley re consent decree (dktclk) (Entered: 05/20/1999)
350 McClam−Brown Objectors' RESPONSE to motion to shorten time on motion for leave to file an overlength memorandum in support of motion for final approval of the consent decree [347−1] [348−1], motion for leave to file an overlength memorandum in support of motion for final approval of the consent decree [347−1] (dktclk) (Entered: 05/20/1999)
351 LETTER from atty Alan B Esptein re 5/26/99 hearing (dktclk) (Entered: 05/20/1999)
352 MINUTE ORDER: by Chief Judge John C. Coughenour GRANTING pltfs' and dfts' motions to shorten time and underlying motions to file overlength briefs. (cc: counsel, Judge) (RS) (Entered: 05/21/1999)
353 MEMORANDUM by plaintiffs in support of motion to approve settlement (dktclk) (Entered: 05/24/1999)
354 APPLICATION by plaintiffs for allowance of reasonable attys fees &costs (dktclk) (Entered: 05/24/1999)
355 DECLARATION of William T. McKay by plaintiffs re application motion for allowance of reasonable attys fees &costs [354−1] (dktclk) (Entered: 05/24/1999)
356 DECLARATION of Jean E. Huffington by plaintiff re application motion for allowance of reasonable attys fees &costs [354−1] (dktclk) (Entered: 05/24/1999)
357 DECLARATION of Jerry R. McNaul by plaintiffs re application motion for allowance of reasonable attys fees &costs [354−1] (dktclk) (Entered: 05/24/1999)
358 DECLARATION of Oscar E. Desper, III by plaintiffs re application motion for allowance of reasonable attys fees &costs [354−1] (dktclk) (Entered: 05/24/1999)
359 DECLARATION of Bruce A. Harrell by plaintiffs re application motion for allowance of reasonable attys fees &costs [354−1] (dktclk) (Entered: 05/24/1999)
360 EXHIBITS to plaintiffs memorandum in support of motion to approve settlement re: memorandum (Volume 1 (exhibits 1−30) [353−1] (FILED IN EXPANDO) (dktclk) (Entered: 05/24/1999)
361 EXHIBITS to plaintiffs memorandum in support of motion to approve settlement re: memorandum (Volumes 2−4 exhibits A−E) [353−1] (dktclk) (Entered: 05/24/1999)
362 EXHIBITS to plaintiffs memorandum in support of motion to approve settlement re: memorandum (Volumes 2−4 exhibits F−J) [353−1] (dktclk) (Entered: 05/24/1999)
363 EXHIBITS to plaintiffs memorandum in support of motion to approve settlement re: memorandum (Volumes 2−4 exhbits K−P) [353−1] (dktclk) (Entered: 05/24/1999)
364 AFFIDAVIT OF SERVICE by plaintiffs of memorandum [353−1], etc. (dktclk) (Entered: 05/24/1999)
365 JOINT MOTION for final approval of the consent decree NOTED FOR 5/26/99 (dktclk) (Entered: 05/24/1999)
366 MEMORANDUM by defendant Boeing in support of motion for final approval of the consent decree [365−1] (dktclk) Modified on 05/24/1999 (Entered: 05/24/1999)

05/21/1999 05/24/1999 05/24/1999 05/24/1999 05/24/1999 05/24/1999 05/24/1999 05/24/1999 05/24/1999 05/25/1999 05/25/1999 05/25/1999 05/26/1999 05/26/1999 05/26/1999 05/26/1999
05/27/1999

367 DECLARATION AND EXHIBITS by defendant Boeing Company re motion for final approval of the consent decree [365−1] (FILED IN EXPANDO) (dktclk) (Entered: 05/24/1999)
368 LETTER from U.S. Dept of Labor re pending consent decree (dktclk) (Entered: 05/24/1999)
369 MEMORANDUM IN OPPOSITION (RESPONSE) by defendant Boeing Company to motion for leave to conduct discovery &to continue fairness hearing [339−1] (dktclk) (Entered: 05/26/1999)
370 MEMORANDUM IN OPPOSITION (RESPONSE) by defendant Boeing Company to motion to intervene [341−1] (dktclk) (Entered: 05/26/1999)
371 RESPONSE by plaintiffs to McClam−Brown Objectors' motion to intervene [341−1], motion for leave to conduct discovery &to continue fairness hearing [339−1] (dktclk) (Entered: 05/26/1999)
372 ERRATA by plaintiffs to memorandum [353−1] (dktclk) (Entered: 05/26/1999)
373 CORRECTED DECLARATION of Bruce A. Harrell regarding declaration [359−1] (dktclk) (Entered: 05/26/1999)
374 CORRECTED DECLARATION of Oscar E. Desper,III regarding motion to approve settlement &application for approval of fees &costs (dktclk) (Entered: 05/26/1999)
375 CORRECTED MEMORANDUM by plaintiffs in support of motion to approve settlement memorandum [353−1] (dktclk) (Entered: 05/26/1999)
376 ERRATA by defendant Boeing Company (dktclk) (Entered: 05/26/1999)
377 LETTER from Anita Coby re consent decree (dktclk) (Entered: 05/26/1999)
379 LETTER from Larry Booker re objection to consent decree (dktclk) (Entered: 05/26/1999)
378 LETTER from Rowana K. Riggs re consent decree (dktclk) (Entered: 05/26/1999)
380 SECOND SUPPLEMENTAL MEMORANDUM of the McClam−Brown Objectors in support of their objections (dktclk) (Entered: 05/27/1999)
381 McClam−Brown Objectors' REPLY IN SUPPORT OF motion for leave to conduct discovery &to continue fairness hearing [339−1] (dktclk) (Entered: 05/27/1999)
382 MINUTES/FAIRNESS HEARING: JCC; Dep Clerk: J. Mahnke; CR: Laurene Kelly; Cnsl present: Weinrich/Knapp/Reiss/Desper/Harrell/Huffington/Burr/Epstein / Garfinkel/Roberts/Frank. Called, cnsl heard. Court hears from parties who are from out of state that have objections. Court will allow briefing on the Class Certification issue. Pltf's memorandum due 8/2/99; response due 8/16/99. reply due 8/19/99. A certification/fairness hearing is set on 9/23/99 at 9:00am. Mr. Epstein will be allowed to conduct depositions, limited to 2 hours of Dean, Bolder, Condit, Smith &Desper. Any objectors to the proposed settlemnent who filed a timely, non−frivolous, notice w/ the Court must file a written notice of their request to be heard orally by 8/30/99. , In−court hrg set for 9:00 9/23/99 (dktclk) (Entered: 05/27/1999)
383 TRANSCRIPT of proceedings for the following date(s): 5/26/99 (Re: Reporter's Transcript of Proceedings) CR initials: L. Kelly (dktclk)

05/28/1999 06/01/1999 06/16/1999 06/16/1999 06/16/1999 06/16/1999 06/16/1999
06/17/1999 06/17/1999 06/23/1999
06/23/1999
06/24/1999 07/06/1999 07/06/1999 07/06/1999
07/12/1999 07/14/1999 07/14/1999 07/14/1999 07/14/1999 07/15/1999

(Entered: 05/27/1999)
384 LETTER filed by Doris Janell Clark wishing to opt out of monetary portion of settlement (dktclk) (Entered: 06/01/1999)
385 LETTER from Michael Emanuel Mitchell wishing to opt out (dktclk) (Entered: 06/03/1999)
386 JOINT MOTION for approval of notice NOTED FOR 7/2/99 (dktclk) (Entered: 06/16/1999)
LODGED ORDER: re: motion for approval of notice [386−1] (dktclk) (Entered: 06/16/1999)
387 MOTION to shorten time on motion for approval of notice [386−1] NOTED FOR 6/18/99 (dktclk) (Entered: 06/16/1999)
LODGED ORDER: re: motion to shorten time on motion for approval of notice [386−1] [387−1] (dktclk) (Entered: 06/16/1999)
388 LETTER by defendant Boeing Company re: motion for final approval of the consent decree; be advised page 6 of Mr. Weirch's declaration contained a textual error. [365−1] (dktclk) (Entered: 06/18/1999)
389 LETTER from Myra Garth Swoope re Boeing (dktclk) (Entered: 06/21/1999)
390 LETTER from Darryl Williams re Boeing (dktclk) (Entered: 06/21/1999)
391 ORDER by Chief Judge John C. Coughenour GRANTING parties' joint motion to shorten time on motion for approval of notice [386−1] [387−1], the underlying joint motion for approval of notice [386−1] is noted for 6/22/99 (cc: counsel, Judge) (RS) (Entered: 06/23/1999)
392 MINUTE ORDER: by Chief Judge John C. Coughenour GRANTING parties' joint motion for approval of notice [386−1] (cc: counsel, Judge) (RS) (Entered: 06/23/1999)
393 LETTER from Barbara Taylor re objection of the decree (dktclk) (Entered: 06/30/1999)
394 LETTER from Vera Locke re claim (dktclk) (Entered: 07/06/1999)
395 LETTER from Allen Evans re notice of hearing (dktclk) (Entered: 07/06/1999)
396 LETTER from Mary Vasser informing the court of discontent w/ the proposed issues stated in the settlement. (dktclk) (Entered: 07/06/1999)
397 LETTER from Terri M. Bean re consent decree (dktclk) (Entered: 07/14/1999)
398 LETTER from Barbara A. Taylor objection to proposed decree (dktclk) (Entered: 07/15/1999)
399 LETTER by defendant Boeing Company re depositions and briefing schedule (dktclk) (Entered: 07/15/1999)
400 LETTER by defendant Boeing re request to establish briefing schedule (dktclk) (Entered: 07/15/1999)
401 LETTER by plaintiffs re discovery issues. (dktclk) (Entered: 07/15/1999)
402 LETTER from atty Alan Epstein re letter addressed to the court (dktclk) (Entered: 07/15/1999)

07/15/1999 07/21/1999
07/26/1999 07/27/1999 07/27/1999 08/02/1999 08/02/1999 08/02/1999 08/02/1999 08/05/1999 08/05/1999 08/10/1999 08/16/1999 08/16/1999 08/16/1999 08/16/1999 08/16/1999 08/16/1999 08/19/1999 08/19/1999

403 OBJECTIONS by plaintiffs to document discovery (dktclk) (Entered: 07/20/1999)
404 MINUTE ORDER: by direction of Chief Judge John C. Coughenour: The parties have expressed some confusion concrning the Ct's ruling on the McCalam−Brown objectors' motion to take discovery &to intervene. The Ct granted the motion to take discovery to the limited extent outlined at the 5/29/99 hearing, and denied the motion in all other respects. The motion to intervene is DENIED. [341−1], [339−1] (cc: counsel, Judge) (dktclk) (Entered: 07/21/1999)
405 PRAECIPE: to file attached from Larry Neal Potts (dktclk) (Entered: 07/29/1999)
406 LETTER from Ann Williams re consent decree (dktclk) (Entered: 07/29/1999)
407 LETTER by defendant Boeing Company re status of issues raied in letter from various counsel dated 7/14 &7/15/99. (dktclk) (Entered: 07/29/1999)
408 MOTION by plaintiff to certify class action NOTED FOR 8/20/99 (not noted−notified cnsl) (MD) (Entered: 08/03/1999)
409 MEMORANDUM by plaintiff in support of motion to certify class action [408−1] (MD) (Entered: 08/03/1999)
LODGED ORDER: re: motion to certify class action [408−1] (MD) (Entered: 08/03/1999)
410 DECLARATION of Oscar E. Desper III re motion to certify class action [408−1] w/attachments and placed in expando (MD) (Entered: 08/03/1999)
411 LETTER from Bruce Carter, dated 7/29/99 re: will not be able to attend hearing set for Sept 23, l999 etc (MD) (Entered: 08/09/1999)
412 LETTER from Fred E. Odom III, filed on 8/5/99 re: consent decree (MD) (Entered: 08/09/1999)
413 MEMORANDUM: file review set for 10/7/99 (RS) Modified on 08/11/1999 (Entered: 08/11/1999)
414 RESPONSE by defendant to motion to certify class action [408−1] (dktclk) (Entered: 08/17/1999)
415 EXHIBIT 1 to deft's re: motion response [414−1] (dktclk) (Entered: 08/17/1999)
416 McClam−Brown Objectors' RESPONSE to motion to certify class action [408−1] (dktclk) (Entered: 08/17/1999)
417 APPENDIX to McClam−Brown Objectors' motion response Volume 1 of 3 (A−624 − 1013) [416−1] (FILED IN EXPANDO) (dktclk) (Entered: 08/17/1999)
418 APPENDIX to McClam−Brown Objectors response Volume 2 of 3 (A−624−1013) [416−1] (FILED IN EXPANDO) (dktclk) (Entered: 08/17/1999)
419 APPENDIX to McClam−Brown Objectors' response Volume 3 of 3 (A−1014 − 1330) [416−1] (FILED IN EXPANDO) (dktclk) (Entered: 08/17/1999)
420 REPLY BRIEF by plaintiffs re motion to certify class action [408−1] (dktclk) (Entered: 08/20/1999)
421 MacClam−Brown Objections' REPLY to motion to certify class action [408−1] (dktclk) (Entered: 08/20/1999)

08/20/1999 08/20/1999 08/21/1999 08/26/1999 08/26/1999 08/26/1999 08/27/1999 08/27/1999 08/27/1999 08/27/1999 08/27/1999 08/28/1999 08/30/1999 08/30/1999 08/30/1999 08/30/1999 08/31/1999 09/10/1999 09/10/1999 09/20/1999 09/23/1999 09/23/1999 09/23/1999

422 LETTER from Paula King Booker requesting to be heard on 9/23/99 hearing (dktclk) (Entered: 08/26/1999)
423 LETTER from Yvonne Pittard requesting to be heard at 9/23/99 hearing (dktclk) (Entered: 08/26/1999)
424 LETTER from Kevin C. Guice requesting to be heard at the 9/23/99 hearing (dktclk) (Entered: 08/26/1999)
425 LETTER from Otis Kelly requesting to be heard at the 9/23/99 hearing/request for review (dktclk) (Entered: 08/26/1999)
426 LETTER from Dennis Harris requesting to be heard at the 9/23/99 hearing (dktclk) (Entered: 08/26/1999)
427 LETTER from Nadine McClam−Brown requesting to be heard at the 9/23/99 hearing (dktclk) (Entered: 08/26/1999)
428 LETTER from Dennis requesting to be heard orally at the 9/23/99 hearing. (dktclk) (Entered: 08/27/1999)
429 LETTER from Reginald P. Jenkins requesting to be heard at the 9/23/99 hearing (dktclk) (Entered: 08/27/1999)
430 LETTER from Kevin Lee Biglow requesting to be heard at the 9/23/99 hearing (dktclk) (Entered: 08/30/1999)
431 LETTER from Beverly Ann Trotter requesting permission to speak at the 9/23/99 hearing (dktclk) (Entered: 08/30/1999)
432 LETTER from F.D. Rasp requesting permission to speak at the 9/23/99 hearing (dktclk) (Entered: 08/30/1999)
433 LETTER from Paul Coston Jr requesating permission to speak at the 9/23/99 hearing (dktclk) (Entered: 08/30/1999)
434 LETTER from ? Butc? requesting permission to be heard at the 9/23/99 hearing (dktclk) (Entered: 08/30/1999)
435 LETTER from Ann Dyas requesting permission to speak at the 9/23/99 hearing (dktclk) (Entered: 08/30/1999)
436 PRAECIPE: filed by Larry Patt? requesting permission to speak at the 9/23/99 hearing (dktclk) (Entered: 08/31/1999)
437 LETTER from Fred L. McAfee requsating permission to speak at the 9/23/99 hearing (dktclk) (Entered: 08/31/1999)
438 LETTER from Martha R. Ybarra requesting permission to speak at the 9/23/99 hearing (dktclk) (Entered: 08/31/1999)
439 LETTER from everly Valledor wishing to opt out of settlement (dktclk) (Entered: 09/13/1999)
440 Letter from Bobby Wesley re information on settlement (dktclk) (Entered: 09/13/1999)
441 REQUEST for oral argument filed by Rowana Riggs (dktclk) (Entered: 09/22/1999)
442 TRANSCRIPT DESIGNATION and Ordering Form for dates: 9/23/99 (dktclk) (Entered: 09/24/1999)
443 McClam − Brown Objectors Additional Exhibits re: Class Certification and Fairness Issues (dktclk) (Entered: 09/24/1999)
444 MINUTES: STATUS CONFERENCE; JCC: Dep Clerk: J. Mahnke; CR: Laurene Kelly; Cnsl present: Harrell/Desper; Huffington/Reiss;Weirich/Knapp/O'Neil; Epstein. Called, cnsl heard. The Ct will issue a written decision. ; ; ; status hrg held 9:00 11/20/98 , In−court hrg held 9:00 9/23/99 (dktclk) (Entered: 09/24/1999)

09/23/1999
09/28/1999
09/30/1999
09/30/1999 10/04/1999
10/04/1999 10/19/1999 10/21/1999 10/29/1999
10/29/1999
11/03/1999 11/15/1999 11/17/1999 11/17/1999 11/17/1999 11/17/1999 11/17/1999 11/17/1999 11/27/1999 11/29/1999 11/29/1999 12/02/1999

445 MEMORANDUM by defendant Boeing Company in support of motion for final approval of the consent decree [365−1] (dktclk) (Entered: 09/24/1999)
446 McClam−Brown Objectors' THIRD SUPPLEMENT to their objections to the proposed consent decree (dktclk) (Entered: 09/28/1999)
447 ORDER by Chief Judge John C. Coughenour: The Ct certifies the class and approves the Consent Decree including the provisions for attyorneys fees. [408−1], [365−1], [354−1], [80−1] (cc: counsel, Judge) (dktclk) (Entered: 09/30/1999)
ENT− Case terminated (dktclk) (Entered: 09/30/1999)
448 CONSENT DECREE by Chief Judge John C. Coughenour (cc: counsel, Judge, Jgm. Book) Entered on: 10/4/99 (FILED IN EXPANDO # 4 (dktclk) Modified on 10/04/1999 (Entered: 10/04/1999)
449 LETTER from Izora Liggins objecting to proposed settlement offer (dktclk) (Entered: 10/04/1999)
450 LETTER from Darryl Williams (RS) (Entered: 10/21/1999)
451 LETTER from Barry Wesley re settlement (dktclk) (Entered: 10/25/1999)
452 NOTICE OF APPEAL (99−36086) by the "McClam−Brown Objectors" from Dist. Court decision [447−1] (cc: CCA, JCC, counsel) (dktclk) Modified on 11/16/1999 (Entered: 11/03/1999)
APPEAL FEE RECEIVED: Appellants McClam−Brown Objectors paid fee in amount of $ 105.00 ( Receipt 262907) (dktclk) (Entered: 11/03/1999)
APPEAL NOTIFICATION packet sent to CCA (cc: cnsl) (dktclk) (Entered: 11/03/1999)
NOTIFICATION by Circuit Court of Appellate Docket Number 99−36086 (McClallam Investors) (dktclk) (Entered: 11/16/1999)
453 MOTION by plaintiffs to require a cost bond OA REQ'D NOTED FOR 12/3/99 (RS) (Entered: 11/19/1999)
454 NOTICE by plaintiff that the following is NOTED FOR 12/3/99 :motion to require a cost bond OA REQ'D (RS) (Entered: 11/19/1999)
455 MEMORANDUM by plaintiff in support of motion to require a cost bond [453−1] (RS) (Entered: 11/19/1999)
456 DECLARATION of Evalean Moore by plaintiff re motion to require a cost bond [453−1] (RS) (Entered: 11/19/1999)
457 DECLARATION of Oscar Desper III by plaintiff re motion to require a cost bond [453−1] (RS) (Entered: 11/19/1999)
LODGED ORDER: re: motion to require a cost bond [453−1] (RS) (Entered: 11/19/1999)
ENT−Civil Appeals Docketing Statement forwarded to Mediator's Office in Seattle. (dktclk) (Entered: 12/07/1999)
458 RESPONSE by defendant to motion to require a cost bond OA REQ'D [453−1] (VK) (Entered: 12/01/1999)
459 RESPONSE by plaintiff Staton to motion to require a cost bond OA REQ'D [453−1] (VK) (Entered: 12/01/1999)
460 REPLY by plaintiffs TO RESPONSE to motion to require a cost bond [453−1] (MH) (Entered: 12/07/1999)

12/02/1999 12/06/1999 12/13/1999 12/16/1999 12/17/1999 12/21/1999 12/23/1999 01/07/2000 01/19/2000 01/19/2000 01/22/2000 01/25/2000 02/02/2000 02/03/2000 03/14/2000
03/23/2000
04/06/2000 04/06/2000 04/10/2000 08/30/2000

461 LETTER from Joyce Appleton−Harris re: opt out (MH) (Entered: 12/07/1999)
462 RESPONSE by defendant Boeing Company to motion to require a cost bond [453−1] (MH) (Entered: 12/07/1999)
463 LETTER from Henry Butler re: opt out (KERR) (Entered: 12/16/1999)
464 LETTER from Alvin Allen Jr re: Opt out letter (MD) (Entered: 12/21/1999)
465 LETTER from Alice Stewart re opting out (RS) (Entered: 12/26/1999)
466 LETTER by Etha Rehgans re: Ltr of 11−19−99 Statute of Limitations &Opt−Out filing (PV) (Entered: 12/27/1999)
467 LETTER from Rozell Wheaton re; Statute of Limitations Ltr dated 11/19/99 (PV) (Entered: 12/28/1999)
468 ORDER by Chief Judge John C. Coughenour DENYING pla's motion to require a cost bond [453−1] (cc: counsel, Judge) (MH) (Entered: 01/10/2000)
469 MOTION by plaintiffs for reimbursement of admin costs and fees under settlement agreement NOTED FOR 2/4/00 (RS) (Entered: 01/21/2000)
470 DECLARATION of Oscar Desper III by plaintiff re motion for reimbursement of admin costs and fees under settlement agreement [469−1] (RS) (Entered: 01/21/2000)
471 LETTER from Alan B. Epstein re plas' request for reimbursement of costs and fees (MH) (Entered: 01/25/2000)
472 LETTER from Leonard Utley re claim (MH) (Entered: 01/26/2000)
473 SUPPLEMENTAL MEMORANDUM by plaintiffs in support of motion for reimbursement of admin costs and fees under settlement agreement [469−1] (RS) (Entered: 02/04/2000)
474 REPLY by defendant to McClam−Brown letter/objectors' response to pltfs' mtn for reimbursement of administrative costs and fees under settlement agreement [471−1] (KERR) (Entered: 02/04/2000)
476 ORDER (CCA 99−36086) Appellant's motion to file a brf that exceeds the type−volume limitation is granted in part. Within 21 days from the date of this order, appellants shall file an opening brf not exceeding 15,4000 words. The Clerk shall amend the docket to reflect that Solomon Williams, et al. are plaintiffs−appellees. Appellants' opening brf is now due 3/31/00; the answering brf is due 5/1/00; and the optional reply brf is due 14 days from service of the answering brf. (dktclk) (Entered: 03/27/2000)
475 MINUTE ORDER: by Chief Judge John C. Coughenour GRANTING pla's motion for reimbursement of admin costs and fees under settlement agreement [469−1] (cc: counsel, Judge) (MH) (Entered: 03/23/2000)
477 LETTER from Barry L. Wesley re settlement (MH) (Entered: 04/10/2000)
478 COPY OF LETTER from Judge John Coughenour addressed to Barry L. Wesley re settlement (MH) (Entered: 04/10/2000)
479 LETTER by Barry L. Wesley re claim forms. (CL) (Entered: 04/27/2000)
480 MOTION by defendant Boeing N American for order for issuance of an order directing the parties to arbitration NOTED FOR 9/15/00 (MD) (Entered: 09/05/2000)

08/30/2000 09/08/2000 09/08/2000 09/08/2000 09/08/2000 09/08/2000 09/11/2000 09/11/2000 09/11/2000 09/20/2000 09/25/2000 09/25/2000 10/19/2000
03/28/2001 05/24/2001 11/03/2001
12/05/2002 05/12/2003 05/12/2003 05/12/2003

LODGED ORDER: re: motion for order for issuance of an order directing the parties to arbitration [480−1] (MD) (Entered: 09/05/2000)
481 MOTION by plaintiff for order directing parties to mediation NOTED FOR 9/29/00 (dktclk) (Entered: 09/13/2000)
482 NOTICE by plaintiff that the following is NOTED FOR 9/29/00 motion for order directing parties to mediation (dktclk) (Entered: 09/13/2000)
483 MEMORANDUM by plaintiff in support of motion for order directing parties to mediation [481−1] (dktclk) (Entered: 09/13/2000)
484 DECLARATION of Oscar E. Desper III by plaintiff re motion for order directing parties to mediation [481−1] (dktclk) (Entered: 09/13/2000)
LODGED ORDER: re: motion for order directing parties to mediation [481−1] (dktclk) (Entered: 09/13/2000)
485 MOTION by plaintiffs for issuance of an order directing parties to mediation NOTED FOR 9/29/00 (CL) (Entered: 09/13/2000)
486 RESPONSE by plaintiffs to motion for order for issuance of an order directing the parties to arbitration [480−1] (CL) (Entered: 09/13/2000)
LODGED ORDER DENYING DFT'S MTN DIRECTING THE PARTIES TO ARBITRATION [480−1] (CL) (Entered: 09/13/2000)
CERTIFICATE OF RECORD Transmitted to USCA (cc: all counsel) (SH) (Entered: 09/20/2000)
487 RESPONSE by defendants to motion for issuance of an order directing parties to mediation [485−1] (KERR) (Entered: 09/25/2000)
LODGED ORDER: re: motion response [487−1] re: pltfs' mtn for iss of an order directing the parties to mediation (KERR) (Entered: 09/25/2000)
488 ORDER by Chief Judge John C. Coughenour GRANTING IN PART AND DENYING IN PART pltfs' motion for issuance of an order directing parties to mediation; the parties are ordered to submit their dispute over selection of the Consent Decree Consultand to arbitration. (cc: counsel, Judge) (dktclk) (Entered: 10/19/2000)
CLERK'S RECORD ON APPEAL transmitted to Circuit (JK) (Entered: 03/28/2001)
489 TRANSCRIPT of proceedings for the following date(s): 9/23/99 (Re: Motion for class action[452−1] ) CR initials: L. Kelly (JK) (Entered: 05/24/2001)
490 NOTICE OF CHANGE OF ADDRESS of Lawrence Group Inc., formely named, Judgment Purchase Corporation. (phone call placed to above named advising attorney Alan Zimmerman, not admitted or pro hac vice)(cc: CCA) (SA) Modified on 11/14/2001 (Entered: 11/14/2001)
491 LETTER by plaintiffs requesting "when will the courts make a decision" (LS) (Entered: 12/09/2002)
492 ATTORNEY APPEARANCE for plaintiff Hattie L Irving by Steve Berman, Jeffrey T. Sprung and Ivy D. Arai (LS) (Entered: 05/13/2003)
493 REQUEST FOR STATUS CONFERENCE by plaintiff Hattie L Irving (LS) (Entered: 05/13/2003)
494 AFFIDAVIT OF SERVICE by plaintiff Hattie L Irving request [493−1], attorney appearance [492−1] (LS) (Entered: 05/13/2003)

05/23/2003 05/27/2003 05/27/2003 05/29/2003 05/29/2003 05/29/2003 05/29/2003 06/03/2003 06/09/2003 06/09/2003 06/09/2003 06/09/2003 06/09/2003
06/09/2003
06/09/2003
06/09/2003
06/09/2003

495 RESPONSE by defendant Boeing Company, et al re: request [493−1], re: attorney appearance [492−1] (LS) (Entered: 05/27/2003)
496 MANDATE (99−36086) from Circuit Court of Appeals REVERSING and REMANDING DECISION of the District Court [Appeal [452−1] (cc: all counsel, JCC) (SA) (Entered: 05/28/2003)
497 COSTS taxed in the amount of $9849.00 for Appellant(s) against Appellee Boeing Company (cc: counsel, JCC, crtrm dep.) (SA) (Entered: 05/28/2003)
498 MOTION by plaintiff Hattie L Irving for appointment of lead counsel for plaintiffs and the putative class NOTED FOR 6/13/03 (LS) (Entered: 06/02/2003)
499 DECLARATION of Steve W. Berman by plaintiff Hattie L Irving re motion for appointment of lead counsel for plaintiffs the putative class [498−1] (LS) (Entered: 06/02/2003)
LODGED ORDER: re: GRANTING plaintiff Hattit Irving's motion for appointment of lead counsel for plaintiffs and the putative class [498−1] (LS) (Entered: 06/02/2003)
500 AFFIDAVIT OF SERVICE by plaintiff Hattie L Irving motion for appointment of lead counsel for plaintiffs and the putative class [498−1] (LS) (Entered: 06/02/2003)
RECORD ON APPEAL returned from U.S. Court of Appeals (vol. 1−14, exp. 1−14) FILED ON TOP SHELF NEAR 1998 CASES. (SA) (Entered: 06/03/2003)
501 RESPONSE by plaintiffs' to plaintiff Hattie Irvings' motion for appointment of lead counsel for plaintiffs and the putative class [498−1] (LS) (Entered: 06/10/2003)
502 DECLARATION of Oscar E. Desper III by plaintiffs re: motion response [501−1] (LS) (Entered: 06/10/2003)
LODGED ORDER: re: motion response [501−1] (LS) (Entered: 06/10/2003)
503 AFFIDAVIT OF SERVICE by plaintiffs motion response [501−1], etc (LS) (Entered: 06/10/2003)
504 RESPONSE to pla Hattie Irving's motion for appointment of lead counsel for plaintiffs and the putative class [498−1] by two firms, Law Offices of Harish Bharti and Associates, LLC and Law Officies of Mary Ruth Mann and Associates (LS) Modified on 06/10/2003 (Entered: 06/10/2003)
506 DECLARATION of Martin S. Garfinkel by plaintiff Kevin Biglow, plaintiff Beverly Trotter re cross−motion for appointment of lead counsel OA Req'd [505−1] and response to motion (LS) (Entered: 06/10/2003)
507 DECLARATION of Joseph M. Sellers by plaintiff Kevin Biglow, plaintiff Beverly Trotter re motion for appointment of lead counsel OA Req'd [505−1], re: motion response [505−1] (LS) (Entered: 06/10/2003)
508 DECLARATION of Alan B. Epstein by plaintiff Kevin Biglow, plaintiff Beverly Trotter re motion for appointment of lead counsel OA Req'd [505−1], re: motion response [505−1] (LS) (Entered: 06/10/2003)
LODGED ORDER: re: GRANTING cross−motion for appointment of lead counsel OA Req'd [505−1] (LS) (Entered: 06/10/2003)

06/09/2003 06/09/2003 06/09/2003 06/10/2003
06/12/2003 06/12/2003 06/12/2003 06/16/2003
06/16/2003 06/16/2003
06/16/2003 06/23/2003
06/23/2003 06/23/2003 06/23/2003 06/23/2003

509 APPLICATION by plaintiff Beverly Trotter, plaintiff Kevin Biglow AND ORDER admitting Joseph M Sellers pro hac vice. Receipt # 311436 (cc: counsel, Judge) (LS) (Entered: 06/13/2003)
510 APPLICATION by plaintiff Beverly Trotter, plaintiff Kevin Biglow AND ORDER admitting Christine E Webber pro hac vice. Receipt # 311436 (cc: counsel, Judge) (LS) (Entered: 06/13/2003)
511 APPLICATION by plaintiff Beverly Trotter, plaintiff Kevin Biglow AND ORDER admitting Alan B Epstein pro hac vice. Receipt # 311437 (cc: counsel, Judge) (LS) (Entered: 06/13/2003)
505 RESPONSE to Irving [498−1] Motion for Appointment of Lead Cunsel, and CROSS−MOTION by plaintiff Beverly Trotter and Kevin Biglow for appointment of lead counsel OA Req'd NOTED FOR 6/27/03 (LS) Additional attachment(s) added on 7/8/2003 (LS, ). Modified on 5/9/2005 (LT, ). (Entered: 06/10/2003)
512 REPLY by plaintiff Hattie L Irving TO RESPONSE to motion for appointment of lead counsel for plaintiffs and the putative class [498−1] (LS) (Entered: 06/13/2003)
513 SUPPLEMENTAL DECLARATION of Steve W. Berman by plaintiff Hattie L Irving IN SUPPORT OF re: motion reply [512−1] (LS) (Entered: 06/13/2003)
514 AFFIDAVIT OF SERVICE by plaintiff Hattie L Irving motion reply [512−1] (LS) (Entered: 06/13/2003)
515 NOTICE of Appearance by attorney Mary R. Mann on behalf of Plaintiffs Della Alexander, Billynda Anderson, Mary Byrd, Sharon M Jenkins, Artie Johnson, Sandra Jones, Lynn Leufroy, Kenneth Ponder, Jackie Robison, Lucretia Smith, Eleanor Staten, Martha Ybarra (LS, ) (Entered: 06/23/2003)
516 NOTICE of Change of Address by Mary R. Mann (LS, ) (Entered: 06/23/2003)
517 DECLARATION of Mary Ruth Mann re: Appointment of Class Counsel by Plaintiffs Della Alexander, Billynda Anderson, Mary Byrd, Sharon M Jenkins, Artie Johnson, Sandra Jones, Lynn Leufroy, Kenneth Ponder, Jackie Robison, Lucretia Smith, Eleanor Staten, Martha Ybarra. (LS, ) (Entered: 06/23/2003)
518 APPLICATION/ORDER FOR ADMISSION OF STEVEN J. TOLL PRO HAV VICE by Plaintiffs Receipt # 603619. (Attachments: # 1 Declaration of Steven J. Toll# 2 Order Approving Application for PHV)(LS, ) (Entered: 06/25/2003)
519 NOTICE of Appearance by attorney Ivy D Arai, Steve W. Berman, Jeffrey Todd Sprung on behalf of Plaintiffs Carol Calender, Michael Eckles, Cynthia Evans, Doreen Ferguson, Tim Jones, Wendy Kelly, Theodeshia Knauls, Michael Marion, Ronnie Mitchell, Evalean Moore, Solomon Williams, Ralph Wilson, Willie Wilson, Deborah Woods (LS, ) (Entered: 07/01/2003)
520 CERTIFICATE OF SERVICE by Plaintiffs re 519 Notice of Appearance by Attorney,. (LS, ) (Entered: 07/01/2003)
521 OPPOSITION/RESPONSE to Cross−Motion of Trotter Plaintiffs for appointment of lead counsel filed by Williams plaintiffs re 505 Motion for Miscellaneous Relief (LS, ) (Entered: 07/01/2003)
522 DECLARATION of Steve W. Berman IN OPPOSITION to cross−motion for appointment of lead counsel filed by Plaintiffs re 521 Response to Motion (LS, ) (Entered: 07/01/2003)
523 DECLARATION of Evalean Moore IN OPPOSITION to cross−motion for appointment of lead counsel filed by Plaintiffs re 521

06/23/2003 06/23/2003 06/23/2003 06/25/2003 06/26/2003 06/26/2003 06/26/2003 06/27/2003 06/27/2003
07/01/2003 07/15/2003
07/21/2003 07/24/2003 07/29/2003 08/12/2003

Response to Motion (LS, ) (Entered: 07/01/2003)
524 DECLARATION of Solomon Williams IN OPPOSITION TO Cross−motion for appointment of lead counsel filed by Plaintiffs re 521 Response to Motion (LS, ) (Entered: 07/01/2003)
525 DECLARATION of Willie Wilson IN OPPOSITION TO CROSS MOTION FOR APPOINTMENT OF LEAD COUNSEL filed by Plaintiffs re 521 Response to Motion (LS, ) (Entered: 07/01/2003)
526 CERTIFICATE OF SERVICE by Plaintiffs re 521 Response to Motion, 522 Declaration, 523 Declaration, 524 Declaration, 525 Declaration. (LS, ) (Entered: 07/01/2003)
527 REPLY to Response to Motion filed by Plaintiff Beverly Trotter re 505 Motion for Miscellaneous Relief (Attachments: # 1 Exhibits 1−15# 2 Certificate of Service)(EW, ) (Entered: 07/07/2003)
528 REPLY IN SUPPORT OF CROSS−MOTION OF TROTTER PLAINTIFFS FOR APPOINTMENT OF LEAD COUNSEL filed by Plaintiffs re 505 Motion for Miscellaneous Relief (LS, ) (Entered: 07/08/2003)
529 SECOND JOSEPH M. SELLERS declaration filed by Plaintiffs 505 Motion for Miscellaneous Relief (LS, ) (Entered: 07/08/2003)
530 DECLARATION of STEVEN J. TOLL IN SUPPORT of Cross−Motion of Trotter Plaintiffs for appointment of lead counsel filed by Plaintiffs re 505 Motion for Miscellaneous Relief (LS, ) (Entered: 07/08/2003)
531 NOTICE of Appearance by attorney Craig R Spiegel, Steve W. Berman, Jeffrey Todd Sprung on behalf of Plaintiff Clarence Thompson (LS, ) (Entered: 07/09/2003)
532 NOTICE OF JOINDER by Plaintiff Clarence Thompson JOINING 498 Motion to Appoint Hagens Berman Class Counsel and Opposition to Cross−Motion (Attachments: # 1 Certificate of Service)(LS, ) Additional attachment(s) added on 7/9/2003 (LS, ). (Entered: 07/09/2003)
533 NOTICE of Appearance of Harish Bharti, Mary Ruth Mann for Anetha Lewis and Rhonda E. Randle, plaintiffs (LS, ) (Entered: 07/09/2003)
534 ORDER granting 498 Motion for Appointment of lead counsel for plaintiffs and the putative class, granting 505 cross−motion of plaintiffs Beverly Trotter and Kevin Biglow for appointment of lead counsel. Court APPOINTS Hagens Berman LLP, Oscar Desper, and Harrell Connell Hunger Pauley and Gautschi PLLC as Co−Lead Counsel. by Judge John C Coughenour. (LS, ) (Entered: 07/16/2003)
535 Mail Returned as Undeliverable re 534 Order on Motion for Miscellaneous Relief, addressed to Oscar Edward Desper (LS, ) (Entered: 07/30/2003)
536 Mail Returned as Undeliverable re 534 Order on Motion for Appointment of lead counsel. (LS, ) (Entered: 07/31/2003)
537 NOTICE of Appearance of Harish Bharti and Mary Ruth Mann for plaintiffs Barbara A. Taylor and John D. Britt. (LS, ) (Entered: 08/05/2003)
538 MOTION for Entry of Pretrial Order Relating to Organization of Plaintiffs' Counsel by Plaintiff Solomon Williams, et. al. Noting Date 8/29/2003. (Attachments: # 1 Text of Proposed Order; # 2 Certificate of Service)(Temp4, ) (Entered: 08/18/2003)

08/12/2003
08/20/2003 08/20/2003 08/20/2003 08/20/2003 08/20/2003 08/20/2003 08/27/2003 08/28/2003
09/02/2003 09/11/2003 09/11/2003 09/11/2003 09/11/2003 09/13/2003

539 DECLARATION of Steve W. Berman filed by Plaintiff Solomon Williams, et. al. in support of 538 MOTION for Entry of Proposed Pretrial Order Relating to Organization of Plaintiffs' Counsel (Attachments: # 1 Certificate of Service)(Temp4, ) (Entered: 08/18/2003)
540 MOTION to Stay Discovery and Rule 16 Conference by Defendant Boeing Company. Noting Date 9/19/2003. (Reiss, Michael) (Entered: 08/20/2003)
541 DECLARATION of Michael Reiss filed by Defendant Boeing Company re 540 MOTION to Stay Discovery and Rule 16 Conference (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Reiss, Michael) (Entered: 08/20/2003)
542 AFFIDAVIT OF SERVICE by Defendant Boeing Company Motion to Continue Stay of Discovery/ Rule 16 Conference. (Reiss, Michael) (Entered: 08/20/2003)
543 RESPONSE to Motion and Declaration of Harish Bharti re 538 MOTION for Entry of Pretrial Order Relating to Organization of Plaintiffs' Counsel (Temp4, ) (Entered: 08/22/2003)
544 DECLARATION of Mary Ruth Mann in response to 538 MOTION for Entry of Pretrial Order Relating to Organization of Plaintiffs' Counsel (Temp4, ) (Entered: 08/22/2003)
545 CERTIFICATE OF SERVICE for 543 RESPONSE to Motion and Declaration of Harish Bharti, 544 DECLARATION of Mary Ruth Mann. (Temp4, ) (Entered: 08/22/2003)
546 MOTION for Entry of Order Confirming That Discovery is Not Stayed by Plaintiffs Solomon Williams, et. al. Noting Date 9/12/2003. (Attachments: # 1 Text of Proposed Order; # 2 Certificate of Service)(Temp4, ) (Entered: 08/28/2003)
547 REPLY to Response to Motion filed by Plaintiffs Solomon Williams, et. al. in support of 538 MOTION for Entry of Pretrial Order Relating to Organization of Plaintiffs' Counsel (Attachments: # 1 Text of Revised Proposed Order; # 2 Certificate of Service)(Temp4, ) (Entered: 08/29/2003)
548 NOTICE by Plaintiffs' that the following is RE−NOTED: 546 MOTION for Entry of Order Confirming That Discovery is Not Stayed Noting Date 9/19/2003. (LS, )Text Modified on 9/4/2003 (LS, ). (Entered: 09/04/2003)
549 MOTION to have Steve Berman Removed as Lead Attorney Due to his Conflict of Interest with Judge John C. Coughenour by Plaintiff Mary Dean. Noting Date 9/26/2003. (LS, ) (Entered: 09/12/2003)
550 MOTION for Recusal of Judge John C. Coughenour because of Conflict of Interest with Lawyer Steve Berman of the Law Firm of Hagens−Berman by Plaintiff Mary Dean. Noting Date 9/26/2003. (LS, ) (Entered: 09/12/2003)
552 MOTION to have Steve Berman removed as lead atty due to his conflict of interest with Judge Coughenour by Plaintiff Mary Dean (filing pro se). Noting Date 9/26/2003/not filed with noting date. (RS, ) (Entered: 09/17/2003)
553 MOTION for court to have Judge Coughenour to recuse himself from case no. C98−761C because of conflict of interest with lawyer Steve Berman by Plaintiff Mary Dean (filing pro se). Noting Date 9/26/2003/not filed with noting date. (RS, ) (Entered: 09/17/2003)
557 MOTION to Transfer Case ; motion not noted. (Attachments: # 1 Exhibit A# 2 Exhibits B − C# 3 Exhibits D)(LS, ) (Entered: 09/22/2003)

09/15/2003 09/15/2003 09/18/2003
09/18/2003 09/18/2003 09/22/2003 09/22/2003 09/22/2003 10/06/2003 10/09/2003 10/14/2003 10/15/2003

551 RESPONSE to Motion filed by Defendant Boeing Company re 546 MOTION for Entry of Order Confirming That Discovery is Not Stayed (Reiss, Michael) (Entered: 09/15/2003)
556 Plaintiffs' Opposition/RESPONSE to Defendant's 540 MOTION to Continue Stay of Discovery and Rule 16 Conference, filed by Plaintiff Solomon Williams.(Temp5, ) (Entered: 09/19/2003)
554 MINUTE ENTRY setting status conference:
The attorney who will be responsible for trying the case should attend the conference and be prepared to discuss the following matters at the conference: 1. The nature of the case, 2. The status of matters which are presently set before the Court, e.g., hearings, motions, etc., 3. The status of discovery and a time schedule for its completion, 4. A statement of any legal issues about which motions are contemplated and a possible briefing schedule, 5. An estimate of the number of days needed for trial, 6. Whether the case is jury or non−jury, 7. The date by which the case will be ready for trial, and 8. Settlement probabilities. Counsel for all parties are required to appear at the conference. If counsel office is outside of Seattle, arrangements can be made for telephonic participation in the conference. If counsel wish to make such arrangements, they should contact Julie Mahnke, Deputy Clerk at 206−553−4435. COUNSEL FOR THE PLAINTIFF IS DIRECTED TO NOTIFY ALL PARTIES OF THE DATE AND TIME OF THE SCHEDULED CONFERENCE. Status Conference set for 12/3/2003 09:00 AM before John C Coughenour. (JM,counsel) (Entered: 09/18/2003)
555 REPLY to Response to Motion filed by Defendant Boeing Company re 546 MOTION for Entry of Order Confirming That Discovery is Not Stayed (Reiss, Michael) (Entered: 09/18/2003)
558 REPLY in Support of Plaintiffs' 546 MOTION for Entry of Order Confirming That Discovery is Not Stayed filed by Plaintiff Solomon Williams (Temp5, ) (Entered: 09/23/2003)
559 RESPONSE to Motion filed by Plaintiffs Solomon Williams, et. al in opposition to 549 MOTION to Remove Lead Counsel (Attachments: # 1 Certificate of Service)(Temp4, ) (Entered: 09/24/2003)
560 RESPONSE to Motion filed by Plaintiffs Solomon Williams, et al. in opposition to 550 MOTION for Recusal (Attachments: # 1 Certificate of Service)(Temp4, ) (Entered: 09/24/2003)
561 DECLARATION of Steve W. Berman filed by Plaintiffs Solomon Williams, et al. in support of 559 Opposition to Motion to Remove Lead Counsel, and 560 Opposition to Motion for Recusal of the Court (Attachments: # 1 Certificate of Service)(Temp4, ) (Entered: 09/24/2003)
562 Letter from Plaintiff Mary A. Dean re 559 Response to Motion. (AF, ) (Entered: 10/10/2003)
564 Individually Identified Recipient Faith Bridgewater's MOTION to Have Oscar Desper and Bruce Harrell Removed as Co−Counsel because of a breach of attorney client confidentialty . Noting Date 10/24/2003. (LS, ) (Entered: 10/17/2003)
565 REPLY to Response to Motion filed by Plaintiff Mary Dean re 550 MOTION for Recusal of Judge Coughenhour. (LS, ) (Entered: 10/21/2003)
563 MINUTE ORDER: Judge John C Coughenour recuses himself from this matter. Case reassigned to Judge Marsha J. Pechman for all further proceedings by Judge John C Coughenour. (LS, ) (Entered: 10/15/2003)

10/29/2003 10/30/2003 11/04/2003 11/06/2003
11/06/2003 11/07/2003 11/07/2003 11/07/2003 11/07/2003 11/07/2003 11/07/2003 11/07/2003 11/07/2003 11/17/2003 11/17/2003 11/17/2003 11/21/2003 11/26/2003 11/26/2003 12/01/2003

566 NOTICE of Appearance by attorney Sonja Lengnick on behalf of Defendant Boeing Company (Lengnick, Sonja) (Entered: 10/29/2003)
567 SUPPLEMENT Memorandum in Support of Motion to Continue Stay of Discovery Pending Status Conference... by Defendant Boeing Company. (Reiss, Michael) (Entered: 10/30/2003)
568 Letter from Steve Berman providing an overview of litigation. (LS, ) (Entered: 11/05/2003)
569 ORDER striking 538 Motion for Entry of Pretrial Order, granting 540 Motion to Stay Discovery and for Conference, denying 546 Motion for entry of order confirming that discovery is not stayed, striking 549 Motion to remove Steve Berman as co−lead counsel, striking 550 Motion for Recusal of Judge Coughenour, striking 564 Motion to have Oscar Desper and Bruce Harrell Removed as Co−lead Counsel. By Judge Marsha J. Pechman. (RG) Modified on 11/10/2003 −mailed copies of order to individuals listed in order(MD, ). (Entered: 11/06/2003)
570 ORDER regarding use of CM/ECF system, by Judge Marsha J. Pechman. (Goldberg, Rachel) (Entered: 11/06/2003)
571 Letter from Ron Maholmes re: notice of attorney termination. (MD, ) (Entered: 11/10/2003)
572 Letter from Cordell W Bolder re: notice of attorney termination. (MD, ) (Entered: 11/10/2003)
573 Letter from Faith Bridgewater re: notice of attorney termination. (MD, ) (Entered: 11/10/2003)
574 Letter from Verlene Maholmes re: notice of attorney termination. (MD, ) (Entered: 11/10/2003)
575 Letter from David Roberts re: notice of attorney termination. (MD, ) (Entered: 11/10/2003)
576 Letter from Mary A Dean. (MD, ) (Entered: 11/10/2003)
577 Letter from Mary A Dean re: notice of attorney termination. (MD, ) (Entered: 11/10/2003)
578 Letter from Jimmie L Dean re: notice of attorney termination. (MD, ) (Entered: 11/10/2003)
579 MOTION for Reconsideration and/or Clarify Court's Order re Status of the Case by Defendant Boeing Company. Noting Date 12/5/2003. (Reiss, Michael) (Entered: 11/17/2003)
580 Letter from Roy Wells re: notice of attorney termination. (MD, ) (Entered: 11/18/2003)
581 Letter from FRED E ODOM AND LARRY N POTTS. (MD, ) (Entered: 11/20/2003)
583 MOTION to have Oscar Desper and Bruce Harrell removed as co−cnsl filed by Faith Bridgewater . Noting Date 12/12/2003. (Attachments: # 1 Exhibit B)(MD, ) (Entered: 12/01/2003)
582 MOTION in support of deft's motion for court to clarify and/or reconsider the court's order regarding the status of the case by Plaintiff Mary Dean. Noting Date 12/12/2003. (MD, ) (Entered: 12/01/2003)
585 MOTION IN SUPPORT by Plaintiff Mary Dean re 579 Defendant's MOTION for Court to Clarify and/or Reconsider the Court's Order Regarding the Status of the Case. (AF, ) (Entered: 12/08/2003)
584 MINUTE ORDER regarding Defendant's Motion to Clarify/Reconsider Court's Order and Individually Identified Recipient

12/01/2003 12/02/2003
12/02/2003 12/08/2003
12/08/2003 12/08/2003 12/08/2003 12/08/2003 12/08/2003 12/08/2003
12/08/2003
12/08/2003 12/08/2003 12/08/2003 12/08/2003
12/08/2003

Faith Bridgewater's Motion to have Oscar Desper and Bruce Harrell removed as co−counsel, by Judge Marsha J. Pechman. (Goldberg, Rachel) (Entered: 12/01/2003)
594 Letter from Alvin Allen re attorney termination. (AF, ) (Entered: 12/15/2003)
592 MOTION in support of Defendant's Motion for Court to Clarify and/or Reconsider the Court's Order Regarding the Status of the Case by Plaintiff Solomon Williams. Noting Date 1/23/2004. (AF, ) (Entered: 12/09/2003)
595 Letter from Judicial Panel on MDL re Order denying transfer. (AF, ) (Entered: 12/15/2003)
586 MOTION to Appoint Counsel Motion Of Trotter Plaintiffs For Appointment As Lead Counsel by Plaintiff Solomon Williams. Noting Date 12/8/2003. (Attachments: # 1 Declaration of Joseph M. Sellers# 2 Declaration of Alan B. Epstein# 3 Declaration of Harish Bharti# 4 Declaration of Martin Garfinkel# 5 Certificate of Service # 6 Proposed Order)(Webber, Christine) (Entered: 12/08/2003)
587 RESPONSE by Plaintiffs to Judge Pechman's Order for Appointment of Lead Counsel. (Attachments: # 1 Text of Proposed Order)(AF, ) (Entered: 12/09/2003)
588 DECLARATION of Oscar E. Desper III re 587 Response, by Plaintiffs. (AF, ) (Entered: 12/09/2003)
589 CERTIFICATE OF SERVICE by Plaintiffs re 587 Response, 588 Declaration. (AF, ) (Entered: 12/09/2003)
590 DECLARATION of Solomon Williams re 569 Order; by Plaintiff Solomon Williams. (AF, ) (Entered: 12/09/2003)
591 NOTICE to the Court that Plaintiff Mary Dean will appear pro se for 1/5/2004 Status Conference re 569 Order. (AF, ) (Entered: 12/09/2003)
597 RENEWED MOTION for Appointment of Hagens Berman LLP as Lead Counsel, by Plaintiffs Williams, et al. Noting Date 12/26/2003. (Attachments: # 1 Text of Proposed Order)(AF, ) (Entered: 12/17/2003)
598 DECLARATION of Steve W. Berman filed by Plaintiffs in support of 597 MOTION for Appointment of Hagens Berman LLP as Lead Counsel. (Attachments: # 1 Exhibit A−G# 2 Exhibit H−I# 3 Exhibit J# 4 Exhibit K−L)(AF, ) (Entered: 12/17/2003)
599 DECLARATION of Craig R. Spiegel filed by Plaintiffs in support of 597 MOTION for Appointment of Hagens Berman LLP as Lead Counsel. (AF, ) (Entered: 12/17/2003)
600 DECLARATION of Larry Kunzler filed by Plaintiffs in support of 597 MOTION for Appointment of Hagens Berman LLP as Lead Counsel. (AF, ) (Entered: 12/17/2003)
601 DECLARATION of Solomon Williams filed by Plaintiffs in support of 597 MOTION for Appointment of Hagens Berman LLP as Lead Counsel. (AF, ) (Entered: 12/17/2003)
602 NOTICE OF WITHDRAWAL OF MOTION by Plaintiff Solomon Williams; 592 Plaintiff William's Motion in Support of Defendant's Motion for Court to Clarify and/or Reconsider the Court's Order Regarding the Status of the Case is withdrawn. (AF, ) (Entered: 12/17/2003)
603 CERTIFICATE OF SERVICE by Plaintiff Solomon Williams re 601 Declaration, 602 Notice−Other,, 597 MOTION to Appoint Counsel,

12/09/2003 12/12/2003 12/13/2003 12/15/2003 12/16/2003 12/17/2003
12/22/2003 12/22/2003 12/29/2003 12/31/2003 01/02/2004

598 Declaration, 599 Declaration, 600 Declaration. (AF, ) (Entered: 12/17/2003)
593 MOTION for Additional Time to Select Lead Counsel by Petitioners. (AF, ) (Entered: 12/12/2003)
605 DECLARATION of Mary A. Dean in Opposition to Alan B. Epstein's Declaration of 586 Motion Of Trotter Plaintiffs For Appointment As Lead Counsel. (AF, ) (Entered: 12/22/2003)
606 RESPONSE by Plaintiff Mary Dean to Attorney Oscar Desper 587 Response to Judge Pechman's Order for Appointment of Lead Counsel. (AF, ) (Entered: 12/22/2003)
596 NOTICE of Related Case(s) by Defendant Boeing Company (Reiss, Michael) (Entered: 12/15/2003)
607 RESPONSE/ Motion in Opposition filed by Plaintiff Mary Dean to 593 Henry F. Butler, Warren K. Pyles and Throma A. Dyas Motion Asking Court for Additional Time to Select Lead Counsel. (AF, ) (Entered: 12/22/2003)
604 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman − Dep Clerk: Eileen Scollard; CR: Joe Roth; Pla Counsel: Stever Berman, Craig Speigel, Bruce Harrell, Oscar Depser, Joe Sellers, Steve Toll, Julie Goldsmith, Alan Epstein, Martin Garfinkle, Mary Dean appearing pro se, and Henry Butler, Warren Pyles, Throma Dyas appearing pro se; Def Counsel: Mike Reiss, Barbara Brown, Jeff Weirich, and Sonja Lengnick; Telephone Conference held on 12/17/2003. Pursuant to 28 U.S.C. Section 455, Judge Pechman disclosed that she has a conflict due to personal friendships with two attorneys who work for Schroeter, Goldmark &Bender, Janet Rice and Rebecca Roe, neither of whom signed the petition on behalf of Schroeter, Goldmark &Bender. The Judge indicated that she would not automatically recuse herself on this basis, but indicated that motions for recusal could be filed should any of the parties chose to do so. Such motions are due by noon, Monday, December 22. Any responses to such motions are due by noon, Wednesday, December 24. All motions and responses must be filed electronically. If no motions are filed, the Judge will issue an order appointing lead counsel sometime after noon on Monday, December 22. (Goldberg, Rachel) (Entered: 12/17/2003)
608 ORDER appointing lead counsel for Plaintiffs by Judge Marsha J. Pechman. (Goldberg, Rachel) (Entered: 12/22/2003)
611 Letter from Henry Butler &Warren K Pyles re: appt of lead cnsl. (MD, ) (Entered: 01/05/2004)
609 MINUTE ORDER regarding appointment of lead counsel by Judge Marsha J. Pechman. (Goldberg, Rachel) (Entered: 12/29/2003)
613 NOTICE OF WITHDRAWAL OF COUNSEL/NO LONGER EMPLOYED BY DAVIS WRIGHT TREMAINE: Attorney Elizabeth A Sullivan for Defendant Boeing Company, DELETED FROM MAILING LIST. (MD, ) (Entered: 01/12/2004)
610 STATUS REPORT by Plaintiffs Della Alexander, Billynda Anderson, Donald W Ballard, William Bell, Kevin Biglow, David Brawley, John D Britt, Mary Byrd, Carol Calender, Rhonda Capps, Mary Dean, Michael Eckles, Cynthia Evans, Doreen Ferguson, Mara Ferrari, Terry Fisher, Hattie L Irving, Sharon M Jenkins, Artie Johnson, Charles Jones, Sandra Jones, Tim Jones, Wendy Kelly, Theodeshia Knauls, Myron Knight, Lynn Leufroy, Anetha Lewis, Verlene Maholmes, Michael Marion, Shirley Miller, Ronnie Mitchell, Evalean Moore, Kenneth Ponder, Rhonda E Randle, David Roberts, Jackie Robison, Lucretia Smith, Eleanor Staten, Eleanor Staton, Barbara A Taylor,

01/02/2004 01/05/2004
01/14/2004
01/16/2004 01/18/2004 01/29/2004 01/29/2004 02/04/2004

Clarence Thompson, Brian Todd, Beverly Trotter, Solomon Williams, Ralph Wilson, Willie Wilson, Deborah Woods, Martha Ybarra. (Attachments: # 1 Certificate of Service)(Berman, Steve) (Entered: 01/02/2004)
614 MOTION and Memorandum for Reconsideration of Appointment of Hagens Berman as Lead Counsel, filed by Henry F. Butler and Warren K. Pyles. Noting Date 1/2/2004. (AF, ) (Entered: 01/13/2004)
612 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman − Dep Clerk: E Scollard; CR: J Roth; Pla Counsel: S Berman, et al; Def Counsel: M Reiss, et al; Status Conference held on 1/5/2004. Court hears from counsel and Pro SeDean. Hagens, Berman firm will remain lead firm. Pltf. Dean's exhibits 1 − 13 are marked &admitted. Issue of C98−430 &why it should not be consolidated. Counsel to meet &confer by 1/15/04. Counsel to choose mediator by 2/1/04. Court wants mediation to take place in July. Close of discovery to be February, 2005 with a September, 2005 trial date. Counsel to submit proposed schedule to the court in that range. Counsel to put a conference with the court in the scheduleabout every 60 days. Motion for class certification or management plan to be filed by August 1, 2004. Contact Counsel: Craig Speigle for pltfs.; Michael Reiss for defendants. (ES) (Entered: 01/09/2004)
615 MEMORANDUM Re Mary Dean's Desire to Appear Pro Se by Plaintiffs Della Alexander, Billynda Anderson, Donald W Ballard, William Bell, Kevin Biglow, David Brawley, John D Britt, Mary Byrd, Carol Calender, Rhonda Capps, Michael Eckles, Cynthia Evans, Doreen Ferguson, Mara Ferrari, Terry Fisher, Hattie L Irving, Sharon M Jenkins, Artie Johnson, Charles Jones, Sandra Jones, Tim Jones, Wendy Kelly, Theodeshia Knauls, Myron Knight, Lynn Leufroy, Anetha Lewis, Verlene Maholmes, Michael Marion, Shirley Miller, Ronnie Mitchell, Evalean Moore, Kenneth Ponder, Rhonda E Randle, David Roberts, Jackie Robison, Lucretia Smith, Eleanor Staten, Eleanor Staton, Barbara A Taylor, Clarence Thompson, Brian Todd, Beverly Trotter, Solomon Williams, Ralph Wilson, Willie Wilson, Deborah Woods, Martha Ybarra. (Attachments: # 1 Affidavit Declaration of Steve W. Berman# 2 Certificate of Service)(Spiegel, Craig) (Entered: 01/14/2004)
616 ORDER denying 614 Motion for Reconsideration by Judge Marsha J. Pechman. (Goldberg, Rachel) (Entered: 01/16/2004)
617 RESPONSE by Plaintiff Mary Dean re Appearing Pro Se at 612 Status Conference Hearing. (Attachments: # 1 Exh A−G# 2 Exh H−I)(Temp1, ) (Entered: 01/26/2004)
618 ORDER striking 583 Motion to have Oscar Desper and Bruce Harrell removed as co−counsel by Judge Marsha J. Pechman.(Goldberg, Rachel) (Entered: 01/29/2004)
619 ORDER on Plaintiff Mary Dean's status in this case, by Judge Marsha J. Pechman. (Goldberg, Rachel) (Entered: 01/29/2004)
620 STATUS REPORT by Plaintiffs Della Alexander, Billynda Anderson, Donald W Ballard, William Bell, Kevin Biglow, David Brawley, John D Britt, Mary Byrd, Carol Calender, Rhonda Capps, Mary Dean, Michael Eckles, Cynthia Evans, Doreen Ferguson, Mara Ferrari, Terry Fisher, Hattie L Irving, Sharon M Jenkins, Artie Johnson, Charles Jones, Sandra Jones, Tim Jones, Wendy Kelly, Theodeshia Knauls, Myron Knight, Lynn Leufroy, Anetha Lewis, Verlene Maholmes, Michael Marion, Shirley Miller, Ronnie Mitchell, Evalean Moore, Kenneth Ponder, Rhonda E Randle, David Roberts, Jackie Robison, Lucretia Smith, Eleanor Staten, Eleanor Staton, Barbara A Taylor, Clarence Thompson, Brian Todd, Beverly Trotter, Solomon Williams, Ralph Wilson, Willie Wilson, Deborah Woods, Martha Ybarra. (Attachments: # 1 Certificate of Service)(Berman, Steve) (Entered:

02/19/2004 03/09/2004 03/09/2004 03/24/2004
04/20/2004
04/21/2004 04/27/2004

02/04/2004)
621 TRANSCRIPT of Proceedings held on 1/5/04 before Judge Marsha J Pechman. Court Reporter: L. Kelly. (Attachments: # 1 pg 51−108)(SA) (Entered: 02/24/2004)
622 MINUTE ORDER regarding proposed schedule to be submitted by the parties, by Judge Marsha J. Pechman. (Goldberg, Rachel) (Entered: 03/09/2004)
623 Letter from Craig R. Spiegel to Judge Pechman. (Spiegel, Craig) (Entered: 03/09/2004)
624 REPORT [Proposed] Scheduling Order by Plaintiffs Della Alexander, Billynda Anderson, Donald W Ballard, William Bell, Kevin Biglow, David Brawley, John D Britt, Mary Byrd, Carol Calender, Rhonda Capps, Mary Dean, Michael Eckles, Cynthia Evans, Doreen Ferguson, Mara Ferrari, Terry Fisher, Hattie L Irving, Sharon M Jenkins, Artie Johnson, Charles Jones, Sandra Jones, Tim Jones, Wendy Kelly, Theodeshia Knauls, Myron Knight, Lynn Leufroy, Anetha Lewis, Verlene Maholmes, Michael Marion, Shirley Miller, Ronnie Mitchell, Evalean Moore, Kenneth Ponder, Rhonda E Randle, David Roberts, Jackie Robison, Lucretia Smith, Eleanor Staten, Eleanor Staton, Barbara A Taylor, Clarence Thompson, Brian Todd, Beverly Trotter, Solomon Williams, Ralph Wilson, Willie Wilson, Deborah Woods, Martha Ybarra, Defendants Boeing Company, Boeing North American Inc, McDonnell Douglas Corporation. (Attachments: # 1 Certificate of Service)(Berman, Steve) (Entered: 03/24/2004)
625 ORDER SETTING TRIAL DATE AND RELATED DATES; Length of Trial: 15−20. Jury Trial set for/will resume 10/3/2005 09:00 AM before Hon. Marsha J. Pechman. Joinder of Parties due by 5/18/2004; Expert Witness Disclosure due by 1/17/2005; Amended Pleadings due by 5/28/2004. Motions due by 3/3/2005; Discovery due by 3/13/2005; Dispositive motions due by 4/7/2005; Settlement conference to be held by 8/4/2005; 39.1 Settlement Report due by 7/8/2004. Motions in Limine due by 8/18/2005; Pretrial Order due by 9/20/2005; Pretrial Conference set for 9/22/2005 01:30 PM before Hon. Marsha J. Pechman. Trial briefs to be submitted by 9/26/2005; Voir dire/jury instructions due by 9/26/2005. STATUS CONFERENCE DATES SCHEDULED − 6/1/04 AT 4:00P.M.; 8/2/04 AT 4:00 P.M.; OCT 1, 2004 AT 1:30 P.M. by Judge Marsha J. Pechman. (MD, ) (Entered: 04/21/2004)
Set Deadlines/Hearings: SEE ORDER SETTING STATUS CONFERENCE DATES: In Chambers Conference set for 6/1/2004 04:00 PM before Hon. Marsha J. Pechman. In−court Hearing set for 8/2/2004 04:00 PM before Hon. Marsha J. Pechman. Scheduling Conference set for 10/1/2004 01:30 PM before Hon. Marsha J. Pechman. (MD, ) (Entered: 04/21/2004)
626 REVISED ORDER SETTING TRIAL DATE AND RELATED DATES; Length of Trial: 15−20 DAYS. Jury Trial set for/will resume 10/3/2005 09:00 AM before Hon. Marsha J. Pechman. Joinder of Parties due by 5/18/2004; Amended Pleadings due by 5/28/2004; class certification motion or proposed management plan due 8/5/04; certification motion to be noted for 8/27/04; Expert Witness Disclosure due by 1/17/2005; Motions due by 3/3/2005; Discovery due by 3/13/2005; Dispositive motions due by 4/7/2005; Settlement conference to be held by 8/4/2005; 39.1 Settlement Report due by 7/8/2005; Motions in Limine due by 8/18/2005; Pretrial Order due by 9/20/2005; Pretrial Conference set for 9/22/2005 01:30 PM before Hon. Marsha J. Pechman. Trial briefs to be submitted by 9/26/2005; Voir dire/jury instructions due by 9/26/2005; by Judge Marsha J. Pechman. (MD, ) (Entered: 04/27/2004)

05/18/2004 05/18/2004 05/19/2004 05/19/2004 05/19/2004 05/20/2004 05/21/2004 05/26/2004 05/26/2004 05/26/2004
05/26/2004
05/27/2004
05/28/2004

627 MINUTE ORDER setting the June 1, 2004 status confernce for 8:30 am, by Judge Marsha J. Pechman. (Goldberg, Rachel) (Entered: 05/18/2004)
628 Letter from Steve W. Berman to Honorable Marsha J. Pechman. (Berman, Steve) (Entered: 05/18/2004)
629 Letter from Michael Reiss Re Plaintiff's 5/18/04 Letter. (Reiss, Michael) (Entered: 05/19/2004)
630 MINUTE ORDER permitting Defendants to file a response to Plaintiffs' letter by May 20 at 5:00 pm, by Judge Marsha J. Pechman. (Goldberg, Rachel) (Entered: 05/19/2004)
631 MINUTE ORDER setting telephone conference on Plaintiffs' discovery dispute for May 27 at 9:00 am. Plaintiffs to initiate call. by Judge Marsha J. Pechman. (Goldberg, Rachel) (Entered: 05/19/2004)
632 Letter from Michael Reiss re 628 Letter Boeing's Response to Steve W. Berman's Letter dated May 18, 2004. (Reiss, Michael) (Entered: 05/20/2004)
633 Letter from Michael Reiss re 628 Letter Boeing's (REVISED) Response to Steve W. Berman's letter dated May 18, 2004. (Reiss, Michael) (Entered: 05/21/2004)
634 First MOTION for Protective Order RELATED TO PAT DOCUMENTS by Defendant Boeing Company. Noting Date 6/7/2004. (Reiss, Michael) (Entered: 05/26/2004)
635 CERTIFICATE OF SERVICE by Defendant Boeing Company re 634 First MOTION for Protective Order RELATED TO PAT DOCUMENTS. (Reiss, Michael) (Entered: 05/26/2004)
636 SEALED DOCUMENT by Defendant Boeing Company re 634 First MOTION for Protective Order RELATED TO PAT DOCUMENTS DECLARATION OF PAUL WELLS IN SUPPORT OF BOEING'S MOTION FOR PROTECTIVE ORDER. (Reiss, Michael) (Entered: 05/26/2004)
637 SEALED DOCUMENT by Defendant Boeing Company re 634 First MOTION for Protective Order RELATED TO PAT DOCUMENTS DECLARATION OF JON GEIER IN SUPPORT OF BOEING'S MOTION FOR PROTECTIVE ORDER. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H)(Reiss, Michael) (Entered: 05/26/2004)
638 MINUTE ENTRY for a telephone conference call held with Judge Marsha J. Pechman Dep Clerk: Eileen Scollard; CR: Laurene Kelly; Pla Counsel: Steve Berman, et al; Def Counsel: Michael Rice, et al; Status Conference held on 5/27/04. Re "PAT" documents, defendant will produce additional portions of the deposition transcripts, and after reviewingthese portions, plaintiffs will respond to defendant's motion for protective order. The parties agree to work out a briefing schedule for the motion for protective order, allowing the court enough time to rule on the motion before the scheduled mediation. As to the "DSA" documents, the parties will complete a stipulation regarding production. (ES) (Entered: 05/27/2004)
639 MOTION for Leave to File Second Amended Complaint by Plaintiffs Della Alexander, Billynda Anderson, Donald W Ballard, William Bell, Kevin Biglow, David Brawley, John D Britt, Mary Byrd, Carol Calender, Rhonda Capps, Mary Dean, Michael Eckles, Cynthia Evans, Doreen Ferguson, Mara Ferrari, Terry Fisher, Hattie L Irving, Sharon M Jenkins, Artie Johnson, Charles Jones, Sandra Jones, Tim Jones, Wendy Kelly, Theodeshia Knauls, Myron Knight, Lynn Leufroy, Anetha Lewis, Verlene Maholmes, Michael Marion, Shirley Miller, Ronnie Mitchell, Evalean Moore, Kenneth Ponder, Rhonda E Randle,

06/01/2004
06/02/2004 06/07/2004 06/07/2004 06/07/2004 06/08/2004
06/08/2004 06/09/2004
06/09/2004

David Roberts, Jackie Robison, Lucretia Smith, Eleanor Staten, Eleanor Staton, Barbara A Taylor, Clarence Thompson, Brian Todd, Beverly Trotter, Solomon Williams, Ralph Wilson, Willie Wilson, Deborah Woods, Martha Ybarra. Noting Date 6/9/2004. (Attachments: # 1 Exhibit A# 2 Proposed Order Granting Plaintiffs' Leave to File Second Amended Complaint# 3 Certificate of Service)(Berman, Steve) (Entered: 05/28/2004)
641 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman − Dep Clerk: Eileen Scollard; CR: Susan Palmerton; Pla Counsel: Steve Berman, et al; Def Counsel: Michael Rice, et al; Status Conference by telephone held on June 1, 2004. Discussion re delay in receiving data. Court adjusts trial date &related dates. New trial date is December 5, 2004. Amended scheduling order to be filed. Status conference scheduled for August 6, 2004 at 8:30 a.m.(ES) (Entered: 06/04/2004)
640 STIPULATION of parties and Proposed Order re: Production of DSA Information. (Attachments: # 1 Certificate of Service)(Berman, Steve) (Entered: 06/02/2004)
Set/Reset Hearings: Jury Trial set for 12/5/2004. Status Conference set for 8/6/2004 08:30 AM before Hon. Marsha J. Pechman. Per minute entry on 6/1/2004.(AF, ) (Entered: 06/07/2004)
642 NOTICE of Appearance by attorney Harry James Franklyn Korrell III on behalf of Defendant Boeing Company (Korrell, Harry) (Entered: 06/07/2004)
643 STIPULATION AND ORDER regarding production of DSA Information by Judge Marsha J. Pechman. (MD, ) (Entered: 06/08/2004)
644 AMENDED ORDER SETTING TRIAL DATE AND RELATED DATES; Length of Trial: 15−20 days. Jury Trial set for/will resume 12/6/2004 09:00 AM before Hon. Marsha J. Pechman. Joinder of Parties due by 7/2/2004; Amended Pleadings due by 7/12/2004; Expert Witness Disclosure due by 7/19/2004; Motions due by 7/23/2004; Discovery due by 8/8/2004; Dispositive motions due by 9/7/2004; Settlement conference to be held by 10/7/2004; 39.1 Settlement Report due by 11/6/2004; Motions in Limine due by 11/8/2004; Pretrial Order due by 11/22/2004; Pretrial Conference set for 11/23/2004 10:00 AM before Hon. Marsha J. Pechman. Trial briefs to be submitted by 12/1/2004; Voir dire/jury instructions due by 12/1/2004; by Judge Marsha J. Pechman. (MD, ) (Entered: 06/08/2004)
645 RESPONSE Defendant Boeing's Response to Plaintiffs' Motion to File Amended Complaint filed by Defendant Boeing Company re 639 MOTION for Leave to File Second Amended Complaint (Reiss, Michael) (Entered: 06/08/2004)
646 2ND AMENDED ORDER SETTING TRIAL DATE AND RELATED DATES; Length of Trial: 15−20 DAYS. Jury Trial set for/will resume 12/5/2005 09:00 AM before Hon. Marsha J. Pechman. Joinder of Parties due by 7/7/2004; Amended Pleadings due by 7/18/2004; Expert Witness Disclosure due by 6/8/2005; Motions due by 7/8/2005; Discovery due by 8/8/2005; Dispositive motions due by 9/6/2005; Settlement conference to be held by 10/6/2005; 39.1 Settlement Report due by 11/4/2005; Motions in Limine due by 11/7/2005; Pretrial Order due by 11/18/2005; Pretrial Conference set for 11/19/2004 03:15 PM before Hon. Marsha J. Pechman. Trial briefs to be submitted by 11/30/2005; Voir dire/jury instructions due by 11/30/2005; by Judge Marsha J. Pechman. (MD, ) (Entered: 06/09/2004)
647 STIPULATION and [Proposed] Order Regarding Deadline for Boeing's Response to Plaintiffs' Second Amended Complaint. (Reiss,

06/10/2004 06/10/2004
06/10/2004 06/11/2004 07/09/2004 07/12/2004 07/14/2004
07/14/2004 07/29/2004 08/03/2004

Michael) Modified text on 6/10/2004 (AF, ). (Entered: 06/09/2004)
648 NOTICE OF WITHDRAWAL AND SUBSTITUTION OF COUNSEL on behalf of Defendant Boeing Company. Kevin J Hamilton is substituted as counsel for Defendant. Attorney Sonja Lengnick terminated. (Hamilton, Kevin) (Entered: 06/10/2004)
649 ORDER GRANTING PLTF'S LEAVE TO FILE SECOND AMENDED COMPLAINT re 639 MOTION for Leave to File Second Amended Complaint filed by William Bell, David Roberts, Charles Jones, Solomon Williams, Deborah Woods, Eleanor Staton, Shirley Miller, Sandra Jones, Myron Knight, Michael Eckles, Donald W Ballard, Clarence Thompson, Doreen Ferguson, Cynthia Evans, Lynn Leufroy, Mary Byrd, Willie Wilson, Mary Dean, Brian Todd, Tim Jones, David Brawley, Mara Ferrari, Rhonda Capps, Verlene Maholmes, Terry Fisher, Carol Calender, Evalean Moore, Ralph Wilson, Ronnie Mitchell, Theodeshia Knauls, Beverly Trotter, Kevin Biglow, Michael Marion, Wendy Kelly, Hattie L Irving, Jackie Robison, Della Alexander, Martha Ybarra, Lucretia Smith, Billynda Anderson, Eleanor Staten, Kenneth Ponder, Sharon M Jenkins, Artie Johnson, Anetha Lewis, Rhonda E Randle, Barbara A Taylor, John D Britt by Judge Marsha J. Pechman. (MD, ) (Entered: 06/10/2004)
650 STIPULATION AND ORDER REGARDING DEADLINE FOR BOEING'S RESPONSE TO PLTF'S SECOND AMENDED COMPLAINT TO JULY 9, 2004 re 647 Stipulation by Judge Marsha J. Pechman. (MD, ) (Entered: 06/10/2004)
651 Second AMENDED Class Action COMPLAINT against all defendants, filed by Plaintiffs. (Attachments: # 1 Certificate of Service)(Berman, Steve) Modified text on 6/14/2004 (AF, ). (Entered: 06/11/2004)
652 ANSWER &Affirmative Defenses to 2nd Amended Complaint, by Boeing Company.(Reiss, Michael) Modified text on 7/13/2004 (AF, ). (Entered: 07/09/2004)
653 STIPULATION of parties re briefing schedule for Boeing's Motion for Protective Order re Production of PAT docs (and Order). (Reiss, Michael) (Entered: 07/12/2004)
654 SEALED DOCUMENT Plaintiffs Opposition to the Boeing Company's Motion for Protective Order Related to PAT Documents, filed by Plaintiffs re 634 First MOTION for Protective Order RELATED TO PAT DOCUMENTS, 636 Sealed Document, 637 Sealed Document. (Attachments: # 1 Declaration of Steve W. Berman In Opposition to the Boeing Company's Motion for Protective Order Related to PAT Documents# 2 Exhibit 1−10# 3 Exhibit 11−19# 4 Exhibit 20−21# 5 Exhibit 22−24# 6 Exhibit 25# 7 Exhibit 25A# 8 Exhibit 25B# 9 Exhibit 26−32# 10 Exhibit 33−37# 11 Certificate of Service)(Berman, Steve) Modified text on 7/15/2004 (AF, ). (Entered: 07/14/2004)
655 STIPULATION AND ORDER re briefing schedule for Boeing's motion for protective order related to production of PAT documents by Judge Marsha J. Pechman. (RS, ) (Entered: 07/16/2004)
656 NOTICE by Defendant Boeing Company that the following is RE−NOTED: 634 First MOTION for Protective Order RELATED TO PAT DOCUMENTS Noting Date 8/13/2004. (Reiss, Michael) (Entered: 07/29/2004)
657 SURREPLY to 656 Notice of Motion Re−Noted Plaintiffs' Surreply Requesting that Defendants' "Notice" Be Stricken by Plaintiffs Della Alexander, Billynda Anderson, Donald W Ballard, William Bell, Kevin Biglow, David Brawley, John D Britt, Mary Byrd, Carol Calender, Rhonda Capps, Mary Dean, Michael Eckles, Cynthia Evans,

08/05/2004 08/06/2004
08/11/2004 08/18/2004
08/18/2004 08/24/2004 08/25/2004 08/25/2004 08/25/2004 08/26/2004

Doreen Ferguson, Mara Ferrari, Terry Fisher, Hattie L Irving, Sharon M Jenkins, Artie Johnson, Charles Jones, Sandra Jones, Tim Jones, Wendy Kelly, Theodeshia Knauls, Myron Knight, Lynn Leufroy, Anetha Lewis, Verlene Maholmes, Michael Marion, Shirley Miller, Ronnie Mitchell, Evalean Moore, Kenneth Ponder, Rhonda E Randle, David Roberts, Jackie Robison, Lucretia Smith, Eleanor Staten, Eleanor Staton, Barbara A Taylor, Clarence Thompson, Brian Todd, Beverly Trotter, Solomon Williams, Ralph Wilson, Willie Wilson, Deborah Woods, Martha Ybarra. (Attachments: # 1 Certificate of Service)(Sprung, Jeffrey) (Entered: 08/03/2004)
658 SURREPLY filed by Defendant Boeing Company re 634 First MOTION for Protective Order RELATED TO PAT DOCUMENTS The Boeing Company's Response to Plaintiff's "Surreply" (Cohen, Rebecca) (Entered: 08/05/2004)
659 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman − Dep Clerk: Gail Glass; CR: Sue Palmerton; Pla Counsel: Craig Spiegel; Def Counsel: Mike Reiss; Status Conference held on 8/6/2004. The parties discussed Defendant's motion for a protective order. Court directed Defendant to file a reply by 8/11 outlining what disputes remain, specifically what documents Defendant asserts are privileged; Plaintiffs to file surreply by noon on 8/18. Each side's brief may be up to 15 pages in length. Court also set a schedule for class certification motions should mediation not resolve the case. The parties intend to file cross−motions. Opening motions are due 10/18 and are limited to 30 pages; responses are due 11/9 and are limited to 15 pages; replies will not be filed. Oral argument on these motions will be held on 11/19 from 9:00am−12:00pm, with a 15 min. break. The parties will divide argument time equally. (RG, ) (Entered: 08/06/2004)
660 REPLY, filed by Defendant Boeing Company, TO RESPONSE to 634 First MOTION for Protective Order RELATED TO PAT DOCUMENTS (Attachments: # 1 Exhibit)(Cohen, Rebecca) (Entered: 08/11/2004)
661 SEALED DOCUMENT Plaintiffs' Combined Opposition And Surreply to the Boeing Company's Motion for Protective Order Related to PAT Documents by Plaintiffs re 634 First MOTION for Protective Order RELATED TO PAT DOCUMENTS. (Attachments: # 1 Certificate of Service)(Berman, Steve) Modified TEXT on 8/25/2004 (AF, ). (Entered: 08/18/2004)
662 SEALED DOCUMENT Declaration of Ivy D. Arai in Opposition and Surreply to the Boeing Company's Motion for Protective Order Related to PAT Documents by Plaintiffs re 661 Sealed Document. (Berman, Steve) Modified TEXT on 8/25/2004 (AF, ). (Entered: 08/18/2004)
663 Letter from Steve W. Berman to Hon. Marsha J. Pechman. (Berman, Steve) (Entered: 08/24/2004)
664 MINUTE ORDER setting up telephone hearing for Monday, August 30, 2004 at 2:30 pm, by Judge Marsha J. Pechman. (RG, ) (Entered: 08/25/2004)
665 Letter from Michael Reiss to Judge Pechman responding to Mr. Berman's letter of 8/24/04. (Reiss, Michael) (Entered: 08/25/2004)
666 Letter from Mary A Dean re: no consent to negotiate in settlement talks or meditation. (MD, ) (Entered: 08/26/2004)
667 Letter from Michael Reiss to Judge Pechman regarding Mary Dean's letter of 8/22/04. (Reiss, Michael) (Entered: 08/26/2004)

08/26/2004 08/26/2004 09/01/2004 09/01/2004
09/20/2004 10/01/2004
10/18/2004 10/18/2004 10/18/2004
10/18/2004

668 Letter from Craig R. Spiegel re 666 Letter. (Spiegel, Craig) (Entered: 08/26/2004)
669 Letter from Mary A Dean. (MD, ) (Entered: 08/27/2004)
670 ORDER denying Defendant's motion for a protective order; by Judge Marsha J. Pechman. (RG, ) (Entered: 09/01/2004)
671 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman − Dep Clerk: Eileen Scollard; Law Clerk: Rachel Goldberg CR: Joseph Roth; Pla Counsel: Craig Speigel, et al; Def Counsel: Michael Reiss; Plaintiffs: M. Dean, S. Williams, C. Jones, D. Roberts, V. Madholmes. Telephone Conference held on 8/30/04. Discussion re ex−parte contact with counsel. Court directs plaintiffs counsel to have meeting with all class members. Counsel are to file a motion if they wish to approach the court for replacement of class representative named plaintiffs. (ES) (Entered: 09/01/2004)
672 TRANSCRIPT of Proceedings held on 6/1/04 Telephone Conference before Judge Marsha J. Pechman. Court Reporter: S. Palmerton. (SA, ) (Entered: 09/21/2004)
673 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman − Pla Counsel: Steve Berman; Def Counsel: Mike Reiss; CR: Susan Zielie;Status Conference held on 10/1/2004. This was one of a regular series of status conferences. Plaintiff asked to continue the date of oral argument on the class certification cross motions because of conflict with trial in a different case. Court deputy will contact the parties to move argument to either December 3 or 10, preferably in the morning. (RG, ) (Entered: 10/01/2004)
674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification.Oral Argument Requested. (Attachments: # 1 Proposed Order Certifying Class# 2 Proposed Order)(Berman, Steve) (Entered: 10/18/2004)
675 SEALED DOCUMENT MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff, RE 674 MOTION to Certify Class.(Berman, Steve) Modified text and related to Dkt. #674 on 10/19/2004 (AF, ). (Entered: 10/18/2004)
676 DECLARATION of Steve W. Berman in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Attachments: # 1 Exhibit 1# 2 Exhibit 13# 3 Exhibit 20# 4 Exhibit 23# 5 Exhibit 43# 6 Exhibit 44)(Berman, Steve) (Entered: 10/18/2004)
677 SEALED DOCUMENT Declaration of Steve Berman in Support of Class Certification [Exs 2−12, 14−19, 21−22, 24−42, 45−57 − Filed Under Seal] by Plaintiff All Plaintiffs re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested;. (Attachments: # 1 Exhibit 2# 2 Exhibit 3# 3 Exhibit 4# 4 Exhibit 5# 5 Exhibit 6 − Part 1# 6 Exhibit 6 − Part 2# 7 Exhibit 7 − Part 1# 8 Exhibit 7 − Part 2# 9 Exhibit 8# 10 Exhibit 9# 11 Exhibit 10# 12 Exhibit 11# 13 Exhibit 12# 14 Exhibit 14# 15 Exhibit 15# 16 Exhibit 16# 17 Exhibit 17# 18 Exhibit 18# 19 Exhibit 19# 20 Exhibit 21# 21 Exhibit 22# 22 Exhibit 24# 23 Exhibit 25# 24 Exhibit 26# 25 Exhibit 27# 26 Exhibit 28# 27 Exhibit 29# 28 Exhibit 30# 29 Exhibit 31# 30 Exhibit 32# 31 Exhibit 33# 32 Exhibit 34# 33 Exhibit 35# 34 Exhibit 36# 35 Exhibit 37# 36 Exhibit 38# 37 Exhibit 39# 38 Exhibit 40# 39 Exhibit 41# 40 Exhibit 42# 41 Exhibit 45# 42 Exhibit 46# 43 Exhibit

10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004

47# 44 Exhibit 48# 45 Exhibit 49# 46 Exhibit 50# 47 Exhibit 51# 48 Exhibit 52# 49 Exhibit 53# 50 Exhibit 54# 51 Exhibit 55# 52 Exhibit 56# 53 Exhibit 57)(Berman, Steve) (Entered: 10/18/2004)
678 DECLARATION of Bernard R. Siskin, Ph.D. re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
679 DECLARATION of Jerome Greene in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
680 DECLARATION of Roy T. Wells in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
681 DECLARATION of Kevin Biglow in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
682 DECLARATION of Donald Powell in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
683 DECLARATION of Jacquelyn Jones in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
684 DECLARATION of Eleanor Staten in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
685 DECLARATION of Fred Roseborough in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
686 DECLARATION of Tevis Carpenter in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)

10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004

687 DECLARATION of Barbara J. Miyamura in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
688 DECLARATION of Willie Wilson in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
689 DECLARATION of John Bridgewater in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
690 DECLARATION of Marsha A. Dixon in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
691 DECLARATION of Emma Jean Jones in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
692 DECLARATION of Lawrence Andrews in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
693 DECLARATION of Amelia Portis in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
694 DECLARATION of Mary Dean in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
695 DECLARATION of Valeria Hopson in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
696 DECLARATION of Eunice D. Houston in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification

10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004

[Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
697 DECLARATION of Hattie Irving in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
698 DECLARATION of Myron Knight in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
699 DECLARATION of Debra Luster in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
700 DECLARATION of Michael Marion In Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
701 DECLARATION of David Roberts in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
702 DECLARATION of Verlene E. Maholmes in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
703 DECLARATION of Johnny E. Alford in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
704 DECLARATION of Tommie King in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
705 DECLARATION of Warren Jay Smith, Sr. in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)

10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004

706 DECLARATION of Brian Todd in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
707 DECLARATION of Eric Hollins in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
708 DECLARATION of Denise Harris In Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
709 DECLARATION of Marshall Battles in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
710 DECLARATION of Earl Bland in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
711 DECLARATION of Wylo Berry in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
712 DECLARATION of Annie Williams in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
713 DECLARATION of Pamela Meeks in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
714 DECLARATION of Cherise Clayton in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
715 DECLARATION of Gregory Harden in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version]

10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004

Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
716 DECLARATION of Audrey Foster in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
717 DECLARATION of Sam A. Estelle, Jr. in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
718 DECLARATION of Alfred Beasley in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
719 DECLARATION of Margaret R. Austell−McDaniel in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
720 DECLARATION of Bertha Alexander in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
721 DECLARATION of Raymond Boyd in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
722 DECLARATION of Beverly A. Trotter in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
723 DECLARATION of Martha Ybarra in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
724 DECLARATION of Fred L. McAfee in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)

10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004

725 DECLARATION of Tamrra Ellingson In Support Of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
726 DECLARATION of Ricky Lambert In Support Of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
727 DECLARATION of Izora Liggins In Support Of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
728 DECLARATION of Jethro Fortenberry in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
729 DECLARATION of Alice Stewart in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
730 DECLARATION of Frank Moore in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
731 DECLARATION of Keefe Edwards in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
732 DECLARATION of Michael Eckles in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
733 DECLARATION of Luther Tyus in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
734 DECLARATION of Eugene E. Mason in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification

10/18/2004
10/18/2004
10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004
10/18/2004 10/18/2004 10/18/2004 10/18/2004

[Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
735 DECLARATION of Timothy J. Jones in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
736 DECLARATION of Carolyn Calender in Support of Class Certification re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 10/18/2004)
737 Letter from Michael Reiss to Judge Pechman re The Boeing Company's Motion to Deny Certification of Plaintiffs' Class (Dkt. # 738 ). (Reiss, Michael) Modified on 10/19/2004; related to Dkt. #738 (AF, ). (Entered: 10/18/2004)
738 MOTION The Boeing Company's Motion to Deny Certification of Plaintiffs' Class by Defendant Boeing Company. Noting Date 12/1/2004.Oral Argument Requested. (Reiss, Michael) (Entered: 10/18/2004)
739 EXHIBIT Index of Exhibits Submitted in Support of Motion to Deny Certification of Plaintiffs' Class by Defendant Boeing Company re 738 MOTION to Deny Certification of Plaintiffs' Class. (Reiss, Michael) Modified on 10/19/2004; related to Dkt. #738 (AF, ). (Entered: 10/18/2004)
740 EXHIBIT 1 − Summary of Evidence in Support of Motion to Deny Certification of Plaintiffs' Class by Defendant Boeing Company re 738 MOTION to Deny Certification of Plaintiffs' Class. (Reiss, Michael) Modified on 10/19/2004; related to #738 (AF, ). (Entered: 10/18/2004)
741 APPENDIX OF AUTHORITIES by Defendant Boeing Company re 738 MOTION to Deny Certification of Plaintiffs' Class. (Attachments: # 1 Appendix Authorities# 2 Appendix Authorities# 3 Appendix Authorities# 4 Appendix Authorities# 5 Appendix Authorities# 6 Appendix Authorities)(Reiss, Michael) Modified on 10/19/2004; related to Dkt. #738 (AF, ). (Entered: 10/18/2004)
742 APPENDIX OF AUTHORITIES (Continuation) by Defendant Boeing Company re 738 MOTION to Deny Certification of Plaintiffs' Class. (Attachments: # 1 Appendix Authorities# 2 Appendix Authorities# 3 Appendix Authorities)(Reiss, Michael) Modified on 10/19/2004; related to Dkt. #738 (AF, ). (Entered: 10/18/2004)
743 APPENDIX OVERVIEW by Defendant Boeing Company re 738 MOTION to Deny Certification of Plaintiffs' Class. (Reiss, Michael) Modified on 10/19/2004; related to Dkt. #738 (AF, ). (Entered: 10/18/2004)
744 APPENDIX PUTATIVE CLASS by Defendant Boeing Company re 738 MOTION to Deny Certification of Plaintiffs' Class. (Reiss, Michael) Modified on 10/19/2004; related to Dkt. #738 (AF, ). (Entered: 10/18/2004)
745 APPENDIX PUGET SOUND PRACTICES by Defendant Boeing Company re 738 MOTION to Deny Certification of Plaintiffs' Class. (Attachments: # 1 Appendix Puget Sound Practices# 2 Appendix Puget Sound Practices# 3 Appendix Puget Sound Practices# 4 Appendix Puget Sound Practices# 5 Appendix Puget Sound Practices)(Reiss, Michael) Modified on 10/19/2004; related to Dkt.

10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004
10/18/2004
10/18/2004

#738 (AF, ). (Entered: 10/18/2004)
746 APPENDIX PUGET SOUND PRACTICES (Continuation) by Defendant Boeing Company re 738 MOTION to Deny Certification of Plaintiffs' Class. (Attachments: # 1 Appendix Puget Sound Practices# 2 Appendix Puget Sound Practices# 3 Appendix Puget Sound Practices# 4 Appendix Puget Sound Practices# 5 Appendix Puget Sound Practices)(Reiss, Michael) Modified on 10/19/2004; related to Dkt. #738 (AF, ). (Entered: 10/18/2004)
747 APPENDIX PUGET SOUND PRACTICES (Continuation) by Defendant Boeing Company re 738 MOTION to Deny Certification of Plaintiffs' Class. (Attachments: # 1 Appendix Puget Sound Practices# 2 Appendix Puget Sound Practices)(Reiss, Michael) Modified on 10/19/2004; related to Dkt. #378 (AF, ). (Entered: 10/18/2004)
748 APPENDIX SOLOMON WILLIAMS by Defendant Boeing Company re 738 MOTION to Deny Certification of Plaintiffs' Class. (Reiss, Michael) Modified on 10/19/2004; related to Dkt. #738 (AF, ). (Entered: 10/18/2004)
749 APPENDIX WENDY KELLY by Defendant Boeing Company re 738 MOTION to Deny Certification of Plaintiffs' Class. (Reiss, Michael) Modified on 10/19/2004; related to Dkt. #738 (AF, ). (Entered: 10/18/2004)
750 APPENDIX WENDY KELLY (Continuation) by Defendant Boeing Company re 738 MOTION to Deny Certification of Plaintiffs' Class. (Reiss, Michael) Modified on 10/19/2004; related to Dkt. #738 (AF, ). (Entered: 10/18/2004)
751 APPENDIX STATISTICAL by Defendant Boeing Company re 738 MOTION to Deny Certification of Plaintiffs' Class. (Attachments: # 1 Appendix STATISTICS# 2 Appendix STATISTICS# 3 Appendix STATISTICS# 4 Appendix STATISTICAL# 5 Appendix STATISTICAL# 6 Appendix STATISTICAL)(Reiss, Michael) Modified on 10/19/2004; related to Dkt. #738 (AF, ). (Entered: 10/18/2004)
752 APPENDIX NATIONWIDE PRACTICES by Defendant Boeing Company re 738 MOTION to Deny Certification of Plaintiffs' Class. (Attachments: # 1 Appendix NATIONWIDE PRACTICES# 2 Appendix NATIONWIDE PRACTICES# 3 Appendix NATIONWIDE PRACTICES# 4 Appendix NATIONWIDE PRACTICES# 5 Appendix NATIONWIDE PRACTICES# 6 Appendix NATIONWIDE PRACTICES)(Reiss, Michael) Modified on 10/19/2004; related to Dkt. #738 (AF, ). (Entered: 10/18/2004)
753 APPENDIX NATIONWIDE PRACTICES (Continuation) by Defendant Boeing Company re 738 MOTION to Deny Certification of Plaintiffs' Class. (Attachments: # 1 Appendix NATIONWIDE PRACTICES# 2 Appendix NATIONWIDE PRACTICES# 3 Appendix NATIONWIDE PRACTICES# 4 Appendix NATIONWIDE PRACTICES# 5 Appendix NATIONWIDE PRACTICES# 6 Appendix NATIONWIDE PRACTICES)(Reiss, Michael) Modified on 10/19/2004; related to Dkt. #738 (AF, ). (Entered: 10/18/2004)
754 APPENDIX NATIONWIDE PRACTICES (Continuation) by Defendant Boeing Company re 738 MOTION to Deny Certification of Plaintiffs' Class. (Attachments: # 1 Appendix NATIONWIDE PRACTICES# 2 Appendix NATIONWIDE PRACTICES# 3 Appendix NATIONWIDE PRACTICES# 4 Appendix NATIONWIDE PRACTICES# 5 Appendix NATIONWIDE PRACTICES# 6 Appendix NATIONWIDE PRACTICES)(Reiss, Michael) Modified on 10/19/2004; related to Dkt. #738 (AF, ). (Entered: 10/18/2004)

10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/18/2004 10/19/2004

755 APPENDIX NATIONWIDE PRACTICES (Continuation) by Defendant Boeing Company re 738 MOTION to Deny Certification of Plaintiffs' Class. (Attachments: # 1 Appendix NATIONWIDE PRACTICES# 2 Appendix NATIONWIDE PRACTICES# 3 Appendix NATIONWIDE PRACTICES# 4 Appendix NATIONWIDE PRACTICES# 5 Appendix NATIONWIDE PRACTICES# 6 Appendix NATIONWIDE PRACTICES)(Reiss, Michael) Modified on 10/19/2004; related to Dkt. #738 (AF, ). (Entered: 10/18/2004)
756 APPENDIX NATIONWIDE PRACTICES (Continuation) by Defendant Boeing Company re 738 MOTION to Deny Certification of Plaintiffs' Class. (Attachments: # 1 Appendix NATIONWIDE PRACTICES# 2 Appendix NATIONWIDE PRACTICES# 3 Appendix NATIONWIDE PRACTICES# 4 Appendix NATIONWIDE PRACTICES# 5 Appendix NATIONWIDE PRACTICES# 6 Appendix NATIONWIDE PRACTICES)(Reiss, Michael) Modified on 10/19/2004; related to Dkt. #738 (AF, ). (Entered: 10/18/2004)
757 APPENDIX NATIONWIDE PRACTICES (Continuation) by Defendant Boeing Company re 738 MOTION to Deny Certification of Plaintiffs' Class. (Attachments: # 1 Appendix NATIONWIDE PRACTICES# 2 Appendix NATIONWIDE PRACTICES# 3 Appendix NATIONWIDE PRACTICES# 4 Appendix NATIONWIDE PRACTICES# 5 Appendix NATIONWIDE PRACTICES# 6 Appendix NATIONWIDE PRACTICES)(Reiss, Michael) Modified on 10/19/2004; related to Dkt. #738 (AF, ). (Entered: 10/18/2004)
758 APPENDIX NATIONWIDE PRACTICES (Continuation) by Defendant Boeing Company re 738 MOTION to Deny Certification of Plaintiffs' Class. (Attachments: # 1 NATIONWIDE PRACTICES# 2 Appendix NATIONWIDE PRACTICES# 3 Appendix NATIONWIDE PRACTICES# 4 Appendix NATIONWIDE PRACTICES# 5 Appendix NATIONWIDE PRACTICES# 6 Appendix NATIONWIDE PRACTICES)(Reiss, Michael) Modified on 10/19/2004; related to Dkt. #738 (AF, ). (Entered: 10/18/2004)
759 APPENDIX NATIONWIDE PRACTICES (Continuation) by Defendant Boeing Company re 738 MOTION to Deny Certification of Plaintiffs' Class. (Attachments: # 1 Appendix NATIONWIDE PRACTICES# 2 Appendix NATIONWIDE PRACTICES# 3 Appendix NATIONWIDE PRACTICES# 4 Appendix NATIONWIDE PRACTICES# 5 Appendix NATIONWIDE PRACTICES# 6 Appendix NATIONWIDE PRACTICES)(Reiss, Michael) Modified on 10/19/2004; related to Dkt. #738 (AF, ). (Entered: 10/18/2004)
760 APPENDIX NATIONWIDE PRACTICES(Continuation) by Defendant Boeing Company re 738 MOTION to Deny Certification of Plaintiffs' Class. (Attachments: # 1 Appendix NATIONWIDE PRACTICES# 2 Appendix NATIONWIDE PRACTICES# 3 Appendix NATIONWIDE PRACTICES# 4 Appendix NATIONWIDE PRACTICES)(Reiss, Michael) Modified on 10/19/2004; related to Dkt. #738 (AF, ). (Entered: 10/18/2004)
761 APPENDIX NATIONWIDE PRACTICES (Continuation) by Defendant Boeing Company re 738 MOTION to Deny Certification of Plaintiffs' Class. (Attachments: # 1 Appendix NATIONWIDE PRACTICES# 2 Appendix NATIONWIDE PRACTICES# 3 Appendix NATIONWIDE PRACTICES# 4 Appendix NATIONWIDE PRACTICES# 5 Appendix NATIONWIDE PRACTICES# 6 Appendix NATIONWIDE PRACTICES)(Reiss, Michael) Modified on 10/19/2004; related to Dkt. #738 (AF, ). (Entered: 10/19/2004)
762 APPENDIX NATIONWIDE PRACTICES (Continuation) by Defendant Boeing Company re 738 MOTION to Deny Certification of Plaintiffs' Class. (Attachments: # 1 Appendix NATIONWIDE PRACTICES# 2 Appendix NATIONWIDE PRACTICES# 3 Appendix NATIONWIDE PRACTICES# 4 Appendix NATIONWIDE

10/19/2004 10/19/2004 10/19/2004 10/19/2004 10/19/2004 10/19/2004 10/19/2004

PRACTICES# 5 Appendix NATIONWIDE PRACTICES# 6 Appendix NATIONWIDE PRACTICES)(Reiss, Michael) Modified on 10/19/2004; related to Dkt. #738 (AF, ). (Entered: 10/19/2004)
763 APPENDIX NATIONWIDE PRACTICES (Continuation) by Defendant Boeing Company re 738 MOTION to Deny Certification of Plaintiffs' Class. (Attachments: # 1 Appendix NATIONWIDE PRACTICES# 2 Appendix NATIONWIDE PRACTICES# 3 Appendix NATIONWIDE PRACTICES# 4 Appendix NATIONWIDE PRACTICES# 5 Appendix NATIONWIDE PRACTICES# 6 Appendix NATIONWIDE PRACTICES)(Reiss, Michael) Modified on 10/19/2004; related to Dkt. #738 (AF, ). (Entered: 10/19/2004)
764 APPENDIX NATIONWIDE PRACTICES (Continuation) by Defendant Boeing Company re 738 MOTION to Deny Certification of Plaintiffs' Class. (Attachments: # 1 Appendix NATIONWIDE PRACTICES# 2 Appendix NATIONWIDE PRACTICES# 3 Appendix NATIONWIDE PRACTICES# 4 Appendix NATIONWIDE PRACTICES# 5 Appendix NATIONWIDE PRACTICES# 6 Appendix NATIONWIDE PRACTICES)(Reiss, Michael) Modified on 10/19/2004; related to Dkt. #738 (AF, ). (Entered: 10/19/2004)
765 APPENDIX NATIONWIDE PRACTICES (Continuation) by Defendant Boeing Company re 738 MOTION to Deny Certification of Plaintiffs' Class. (Attachments: # 1 Appendix NATIONWIDE PRACTICES# 2 Appendix NATIONWIDE PRACTICES# 3 Appendix NATIONWIDE PRACTICES# 4 Appendix NATIONWIDE PRACTICES# 5 Appendix NATIONWIDE PRACTICES# 6 Appendix NATIONWIDE PRACTICES)(Reiss, Michael) Modified on 10/19/2004; related to Dkt. #738 (AF, ). (Entered: 10/19/2004)
766 APPENDIX NATIONWIDE PRACTICES (Continuation) by Defendant Boeing Company re 738 MOTION to Deny Certification of Plaintiffs' Class. (Attachments: # 1 Appendix NATIONWIDE PRACTICES# 2 Appendix NATIONWIDE PRACTICES# 3 Appendix NATIONWIDE PRACTICES# 4 Appendix NATIONWIDE PRACTICES# 5 Appendix NATIONWIDE PRACTICES# 6 Appendix NATIONWIDE PRACTICES)(Reiss, Michael) Modified on 10/19/2004; related to Dkt. #738 (AF, ). (Entered: 10/19/2004)
767 APPENDIX NATIONWIDE PRACTICES (Continuation) by Defendant Boeing Company re 738 MOTION to Deny Certification of Plaintiffs' Class. (Attachments: # 1 Appendix NATIONWIDE PRACTICES# 2 Appendix NATIONWIDE PRACTICES# 3 Appendix NATIONWIDE PRACTICES# 4 Appendix NATIONWIDE PRACTICES# 5 Appendix NATIONWIDE PRACTICES# 6 Appendix NATIONWIDE PRACTICES)(Reiss, Michael) Modified on 10/19/2004; related to Dkt. #738 (AF, ). (Entered: 10/19/2004)
768 APPENDIX NATIONWIDE PRACTICES (Continuation) by Defendant Boeing Company re 738 MOTION to Deny Certification of Plaintiffs' Class. (Attachments: # 1 Appendix NATIONWIDE PRACTICES# 2 Appendix NATIONWIDE PRACTICES# 3 Appendix NATIONWIDE PRACTICES# 4 Appendix NATIONWIDE PRACTICES# 5 Appendix NATIONWIDE PRACTICES# 6 Appendix NATIONWIDE PRACTICES)(Reiss, Michael) Modified on 10/19/2004; related to Dkt. #738 (AF, ). (Entered: 10/19/2004)
769 APPENDIX NATIONWIDE PRACTICES (Continuation) by Defendant Boeing Company re 738 MOTION to Deny Certification of Plaintiffs' Class. (Attachments: # 1 Appendix NATIONWIDE PRACTICES# 2 Appendix NATIONWIDE PRACTICES# 3 Appendix NATIONWIDE PRACTICES# 4 Appendix NATIONWIDE PRACTICES# 5 NATIONWIDE PRACTICES# 6 Appendix NATIONWIDE PRACTICES)(Reiss, Michael) Modified on 10/19/2004; related to Dkt. #738 (AF, ). (Entered: 10/19/2004)

10/19/2004
10/19/2004 10/21/2004 10/22/2004 10/22/2004 10/25/2004 11/04/2004 11/09/2004 11/09/2004 11/09/2004 11/09/2004

770 APPENDIX NATIONWIDE PRACTICES (Continuation) by Defendant Boeing Company re 738 MOTION to Deny Certification of Plaintiffs' Class. (Attachments: # 1 Appendix NATIONWIDE PRACTICES# 2 Appendix NATIONWIDE PRACTICES# 3 Appendix NATIONWIDE PRACTICES# 4 Appendix NATIONWIDE PRACTICES# 5 Appendix NATIONWIDE PRACTICES# 6 Appendix NATIONWIDE PRACTICES)(Reiss, Michael) Modified on 10/19/2004; related to Dkt. #738 (AF, ). (Entered: 10/19/2004)
771 APPENDIX NATIONWIDE PRACTICES (Continuation) by Defendant Boeing Company re 738 MOTION to Deny Certification of Plaintiffs' Class. (Attachments: # 1 Appendix NATIONWIDE PRACTICES# 2 Appendix NATIONWIDE PRACTICES# 3 Appendix NATIONWIDE PRACTICES)(Reiss, Michael) Modified on 10/19/2004; related to Dkt. #738 (AF, ). (Entered: 10/19/2004)
772 MOTION for Partial Summary Judgment by Defendant Boeing Company. Noting Date 11/12/2004. (Attachments: # 1 Exhibit Korrell Declaration# 2 Exhibit Corbell Declaration# 3 Exhibit Easley Declaration part 1# 4 Exhibit Easley Declaration part 2)(Sullivan, Sheehan) (Entered: 10/21/2004)
773 SEALED DOCUMENT Praecipe by Plaintiff All Plaintiffs re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification, 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested;. (Attachments: # 1 Certificate of Service)(Berman, Steve) (Entered: 10/22/2004)
774 PRAECIPE to attach document (Appendix A &Page 8 of Memorandum in Support of Class Certification) [Redacted Version] re 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification by Plaintiff All Plaintiffs. (Attachments: # 1 Certificate of Service)(Berman, Steve) (Entered: 10/22/2004)
775 NOTICE by Defendant Boeing Company that the following is RE−NOTED: 772 MOTION for Partial Summary Judgment Noting Date 11/19/2004. (Reiss, Michael) (Entered: 10/25/2004)
776 ORDER Setting Hearing on Motion 738 MOTION The Boeing Company's Motion to Deny Certification of Plaintiffs' Class, and 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification: Hearing set for 12/10/2004 09:00 AM before Hon. Marsha J. Pechman.(RG, ) (Entered: 11/04/2004)
777 REPLY, filed by Plaintiff All Plaintiffs, TO RESPONSE to 675 SEALED MOTION Plaintiffs' Memorandum in Support of Class Certification [Unredacted Version] Oral Argument Requested; (Attachments: # 1 Proposed Order [Proposed] Modified Order Granting Class Certification# 2 Proposed Order)(Berman, Steve) (Entered: 11/09/2004)
778 DECLARATION of Reply Declaration of Steve W. Berman re 777 Reply to Response to Motion, by Plaintiff All Plaintiffs. (Attachments: # 1 Errata Exhibits 1−3)(Berman, Steve) (Entered: 11/09/2004)
779 DECLARATION of Bernard R. Siskin, Ph.D re 777 Reply to Response to Motion, by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 11/09/2004)
780 RESPONSE, by Defendant Boeing Company, to 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification. (Attachments: # 1 # 2 # 3 Exhibit 1# 4 Exhibit A to Ward Response Declaration−Statistical Data (Compensation)# 5 Exhibit A−Continued# 6 Errata A−Continued# 7 Exhibit A−Continued# 8 Exhibit A−Continued# 9 Exhibit A−Continued# 10 Exhibit B to Ward Response Declaration−Statistical Date (Promotions)# 11 Exhibit B−Continued# 12 Exhibit B−Continued# 13

11/09/2004
11/09/2004
11/10/2004 11/15/2004 11/15/2004 11/18/2004

Exhibit B−Continued# 14 Exhibit B−Continued# 15 Exhibit C to Ward Response Declaration−Documents Relied Upon)(Reiss, Michael) (Entered: 11/09/2004)
781 RESPONSE, by Defendant Boeing Company, to 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification. (Attachments: # 1 Exhibit 2 Statistical figures (Figures 1−12)# 2 Errata 3−Declaration of Suzanne Fabricus# 3 Appendix Andrews# 4 Exhibit 4 Declaration (VI) of David Bowman# 5 Exhibit A to Bowman Declaration−Lawrence Andrews Fact Sheet# 6 Exhibit B to Bowman Declaration# 7 Appendix Staten# 8 Exhibit 5 Declaration (V) of David Bowman# 9 Errata 1 to Bowman Declaration−Eleanor Staten Fact Sheet# 10 Exhibit 2 to Bowman Declaration# 11 Exhibit 6 Declaration of Jeffrey Hollingsworth# 12 Exhibit 7 Declaration of Kevin Hamilton# 13 Exhibit 8 Declaration of Martin Pele Martinson# 14 Exhibit 9 Declaration of Elwood R. Sillifant# 15 Appendix Eckles# 16 Exhibit 10 Declaration of David Bowman# 17 Exhibit A to Bowman Declaration−Michael Eckles Fact Sheet# 18 Exhibit B to Bowman Declaration−Excerpts from Dep of Eckles# 19 Exhibit C to Bowman Declaration# 20 Exhibit D to Bowman Declaration# 21 Exhibit 11 Declaration of Gus Lindsey)(Reiss, Michael) (Entered: 11/09/2004)
782 RESPONSE, by Defendant Boeing Company, to 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification. (Attachments: # 1 Appendix Knight# 2 Exhibit 12 Declaration (II) of David Bowman# 3 Exhibit A to Bowman Declaration−Myron knight Fact Sheet# 4 Exhibit B to Bowman Declaration# 5 Exhibit C to Bowman Declaration# 6 Exhibit 13 Declaration of gus Lindsey# 7 Appendix Meeks# 8 Exhibit 14 Declaration (III) of David Bowman# 9 Exhibit A to Bowman Declaration−Pamela Meeks Fact Sheet# 10 Exhibit B to Bowman Declaration# 11 Exhibit 15 Declaration of Gus Lindsey# 12 Appendix Maholmes# 13 Exhibit 16 Declaration (IV) of David Bowman# 14 Exhibit A to Bowman Declaration−Verlene Maholmes Fact Sheet# 15 Exhibit B to Bowman Declaration# 16 Exhibit 17 Declaration of Joe Patrick# 17 Appendix Ybarra# 18 Exhibit 18 Declaration of Sheehan Sullivan Weiss# 19 Exhibit A to Weiss Declaration−Martha Ybarra Fact Sheet# 20 Exhibit B to Weiss Declaration# 21 Exhibit C to Weiss Declaration# 22 Appendix Mason# 23 Exhibit 19 Declaration of Daniel Berger# 24 Exhibit A to Berger Declaration−Eugene Mason Fact Sheet# 25 Exhibit 20 Declaration of Helen Jones# 26 Exhibit 21 Declaration of Joseph Clark# 27 Errata A to Clark Declaration# 28 Exhibit 22 Declaration of Elwood R. Sillifant)(Reiss, Michael) (Entered: 11/09/2004)
783 PRAECIPE to attach document (Color Copies of Appendix A) re 777 Reply to Response to Motion, by Plaintiff All Plaintiffs. (Attachments: # 1 Appendix A# 2 Certificate of Service)(Berman, Steve) (Entered: 11/10/2004)
784 RESPONSE, by Plaintiff All Plaintiffs, to 772 MOTION for Partial Summary Judgment. (Attachments: # 1 Certificate of Service)(Berman, Steve) (Entered: 11/15/2004)
785 DECLARATION of Steve W. Berman In Support of Plaintiffs' Opposition to Boeing's Motion for Partial Summary Judgment re 784 Response to Motion by Plaintiff All Plaintiffs. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Errata 4# 5 Exhibit 5# 6 Exhibit 6 part 1# 7 Exhibit 6 part 2# 8 Errata 6 part 3# 9 Exhibit 7 part 1# 10 Exhibit 7 part 2# 11 Exhibit 7 part 3)(Berman, Steve) (Entered: 11/15/2004)
786 REPLY, filed by Defendant Boeing Company, TO RESPONSE to 772 MOTION for Partial Summary Judgment (Attachments: # 1 Declaration of Michael Reiss)(Sullivan Weiss, Sheehan) Modified text

12/06/2004
12/10/2004 12/15/2004 12/15/2004 12/20/2004 12/30/2004 01/10/2005 01/11/2005
01/11/2005 01/11/2005
01/11/2005 01/18/2005 01/20/2005 01/21/2005 01/21/2005 01/24/2005

on 11/19/2004 (MD ). (Entered: 11/18/2004)
787 ORDER Setting Hearing on Motion 738 MOTION The Boeing Company's Motion to Deny Certification of Plaintiffs' Class, 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification: Motion Hearing set for 1/7/2005 09:00 AM before Hon. Marsha J. Pechman. by Judge Marsha J. Pechman. (RG, ) (Entered: 12/06/2004)
788 MINUTE ORDER regarding redacted and unredacted versions of Plaintiffs' Memorandum in Support of Class Certification and an October 15, 1998 protective order, by Judge Marsha J. Pechman. (RG, ) (Entered: 12/10/2004)
789 Letter from Steve W. Berman re 788 Minute Order Dated December 10, 2004. (Berman, Steve) (Entered: 12/15/2004)
790 Letter from Michael Reiss to Judge Pechman. (MD, ) (Entered: 12/17/2004)
791 Letter from Michael Reiss to Judge Pechman. (MD, ) (Entered: 12/21/2004)
792 ORDER regarding 1998 protective order, by Judge Marsha J. Pechman. (RG, ) (Entered: 12/30/2004)
793 ORDER granting 772 Defendants' Motion for Partial Summary Judgment by Judge Marsha J. Pechman.(RG, ) (Entered: 01/10/2005)
794 MOTION for Reconsideration re 793 Order on Motion for Partial Summary Judgment by Plaintiff All Plaintiffs. Noting Date 1/11/2005. (Attachments: # 1 Proposed Order [Proposed] Order On Reconsideration of Order Granting Partial Summary Judgment# 2 Certificate of Service Certificate of Service)(Berman, Steve) (Entered: 01/11/2005)
795 Letter from Steve W. Berman to Honorable Marsha J. Pechman. (Berman, Steve) (Entered: 01/11/2005)
796 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman − Dep Clerk: Eileen Scollard; Pla Counsel: Steve Berman, et al; Def Counsel: Michael Reiss, et al; CR: Laurene Kelly; Motion Hearing held on 1/7/05 (3 hrs) re 738 MOTION The Boeing Company's Motion to Deny Certification of Plaintiffs' Class filed by Boeing Company,, 674 MOTION to Certify Class Plaintiffs' Memorandum in Support of Class Certification filed by All Plaintiffs. Court hears argument andwill issue an order. (ES) (Entered: 01/11/2005)
797 Letter from Michael Reiss dated 1/11/05. (MD, ) (Entered: 01/12/2005)
798 MINUTE ORDER calling for response to Plaintiffs' Motion for Reconsideration by Judge Marsha J. Pechman. (RG, ) (Entered: 01/18/2005)
799 ORDER re Class Certification by Judge Marsha J. Pechman. (RG, ) Modified on 1/21/2005 to edit docket text (ECS, ). (Entered: 01/20/2005)
800 ORDER on 674 Plaintiffs' motion for class certification and 738 Defendants' motion to deny certification by Judge Marsha J. Pechman. (RG, ) (Entered: 01/21/2005)
801 PROPOSAL REGARDING INJUNCTIVE BRIEF by Class Plaintiffs(MD ) (Entered: 01/24/2005)
802 Letter from Steve W. Berman re 799 Order on Class Certification. (Berman, Steve) (Entered: 01/24/2005)

01/25/2005 01/25/2005 01/26/2005
01/27/2005 01/28/2005
01/28/2005 01/31/2005 01/31/2005
02/02/2005 02/02/2005
02/02/2005
02/11/2005
02/11/2005 02/11/2005 02/14/2005 02/14/2005 02/15/2005

803 RESPONSE, by Defendant Boeing Company, to 794 MOTION for Reconsideration re 793 Order on Motion for Partial Summary Judgment. (Reiss, Michael) (Entered: 01/25/2005)
804 Letter from Michael Reiss re Underlying Legal Theories dated 1/25/05. (Reiss, Michael) (Entered: 01/25/2005)
805 MOTION for Recusal and the removal of Steven Berman and Craig Speigel as class counsel's by Plaintiff Mary Dean. Noting Date 2/11/2005. (MD ) Modified on 1/27/2005 (MD, ). (Entered: 01/27/2005)
NOTICE of Docket Text Modification re 805 MOTION for Recusal: Correct note date is 2/11/05 (MD, ) (Entered: 01/27/2005)
806 REPLY, filed by Plaintiff All Plaintiffs, TO RESPONSE to 794 MOTION for Reconsideration re 793 Order on Motion for Partial Summary Judgment (Attachments: # 1 Certificate of Service Certificate of Service)(Berman, Steve) (Entered: 01/28/2005)
807 ORDER amending 800 class certification order by Judge Marsha J. Pechman. (RG, ) (Entered: 01/28/2005)
808 SURREPLY filed by Defendant Boeing Company re 794 MOTION for Reconsideration re 793 Order on Motion for Partial Summary Judgment (Reiss, Michael) (Entered: 01/31/2005)
809 MOTION Plaintiffs' Motion to Strike Boeing's Surreply in Opposition to Motion for Reconsideration re 808 Surreply by Plaintiff All Plaintiffs. Noting Date 1/28/2005. (Attachments: # 1 Certificate of Service Certificate of Service)(Berman, Steve) (Entered: 01/31/2005)
810 RESPONSE, by Plaintiff All Plaintiffs, to 805 MOTION for Recusal. (Attachments: # 1 Certificate of Service Certificate of Service)(Berman, Steve) (Entered: 02/02/2005)
811 DECLARATION of Steve W. Berman in Support of Plaintiffs' Opposition to Motion for Recusal and Removal of Counsel re 810 Response to Motion by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 02/02/2005)
812 DECLARATION of Craig R. Spiegel in Support of Plaintiffs' Opposition to Motion for Recusal and Removal of Counsel re 810 Response to Motion by Plaintiff All Plaintiffs. (Berman, Steve) (Entered: 02/02/2005)
813 REPLY, filed by Plaintiff Mary Dean, TO RESPONSE to 805 MOTION for Recusal and removal of counsel; Plaintiffs Dean's reply to counsel's motion to sever Mary Dean's action (MD, ) (Entered: 02/14/2005)
814 DECLARATION of Plaintiff Mary Dean filed by Plaintiff Mary Dean in support of re 805 MOTION for Recusal and removal of counsel's (MD, ) (Entered: 02/14/2005)
815 CERTIFICATE OF SERVICE by Plaintiff Mary Dean re 813 Reply to Response to Motion, 814 Declaration. (MD, ) (Entered: 02/14/2005)
816 SURREPLY filed by Plaintiff All Plaintiffs re 805 MOTION for Recusal (Attachments: # 1 Certificate of Service)(Berman, Steve) (Entered: 02/14/2005)
818 REPLY/RESPONSE, filed by Plaintiff Mary Dean, TO counsels surreply to strike Mary Dean's 805 MOTION for Recusal and removal of counsel's (MD, ) (Entered: 02/15/2005)
817 ORDER granting in part and denying in part 794 Motion for Reconsideration, granting 809 Motion to Strike by Judge Marsha J. Pechman.(RG, ) (Entered: 02/15/2005)

02/16/2005 02/16/2005 02/17/2005
02/17/2005
02/22/2005 02/25/2005 02/25/2005 02/28/2005 02/28/2005 02/28/2005
03/01/2005 03/01/2005 03/03/2005 03/03/2005
03/03/2005

819 ORDER REFERRING MOTION to Chief Judge Lasnik: 805 MOTION for Recusal filed by Mary Dean, by Judge Marsha J. Pechman. (MD ) (Entered: 02/16/2005)
820 NOTICE OF WITHDRAWAL OF COUNSEL: for Defendants Boeing Company, Boeing North American Inc, McDonnell Douglas Corporation. (Hartman, Rima) (Entered: 02/16/2005)
821 MOTION Plaintiffs' Motion and Memorandum in Support of Preliminary Approval of the Form and Content of Class Notice by Plaintiff All Plaintiffs. Noting Date 3/4/2005. (Attachments: # 1 Proposed Order # 2 Certificate of Service)(Berman, Steve) (Entered: 02/17/2005)
822 DECLARATION of Steve W. Berman in Support of 821 Motion to Approve Form and Content of Class Notice re MOTION Plaintiffs' Motion and Memorandum in Support of Preliminary Approval of the Form and Content of Class Notice by Plaintiff All Plaintiffs. (Attachments: # 1 Exhibit 1)(Berman, Steve) Modified on 3/4/2005, LINKED TO DOCUMENT #821 (KN, ). (Entered: 02/17/2005)
823 ORDER denying 805 Motion for Recusal. by Judge Robert S. Lasnik.(RS, ) (Entered: 02/22/2005)
824 ORDER denying 805 Plaintiff Mary Dean's Motion to Remove Lead Counsel and 810 severing Mary Dean's claims from this action, by Judge Marsha J. Pechman. (RG, ) (Entered: 02/25/2005)
825 MINUTE ORDER regarding law clerk assigned to the case by Judge Marsha J. Pechman. (RG, ) (Entered: 02/25/2005)
826 NOTICE by Plaintiff All Plaintiffs of Firm Name Change (Attachments: # 1 Certificate of Service)(Berman, Steve) (Entered: 02/28/2005)
827 RESPONSE, by Defendant Boeing Company, to 821 MOTION Plaintiffs' Motion and Memorandum in Support of Preliminary Approval of the Form and Content of Class Notice. (Attachments: # 1 Exhibit A, B, C, and D)(Reiss, Michael) (Entered: 02/28/2005)
828 DECLARATION of Michael Reiss in Support of Boeing's Response to Plaintiffs' Motion re Form and Content of Class Notice filed by Defendant Boeing Company re 821 MOTION Plaintiffs' Motion and Memorandum in Support of Preliminary Approval of the Form and Content of Class Notice (Reiss, Michael) (Entered: 02/28/2005)
829 NOTICE of Appearance by attorney Eric B Martin on behalf of Defendants Boeing Company, Boeing North American Inc, McDonnell Douglas Corporation (Martin, Eric) (Entered: 03/01/2005)
830 DECLARATION of Eric B. Martin Authenticating Documents filed by Defendant Boeing Company re 821 MOTION Plaintiffs' Motion and Memorandum in Support of Preliminary Approval of the Form and Content of Class Notice (Martin, Eric) (Entered: 03/01/2005)
831 MOTION Plaintiffs' Motion for Order Certifying Partial Summary Judgment Order For Appeal by Plaintiff All Plaintiffs. Noting Date 3/18/2005. (Attachments: # 1 Proposed Order # 2 Certificate of Service)(Spiegel, Craig) (Entered: 03/03/2005)
832 REPLY, filed by Plaintiff All Plaintiffs, TO RESPONSE to 821 MOTION Plaintiffs' Motion and Memorandum in Support of Preliminary Approval of the Form and Content of Class Notice (Attachments: # 1 Certificate of Service)(Berman, Steve) (Entered: 03/03/2005)
833 DECLARATION of Reply Declaration of Steve W. Berman In Support of 821 Motion for Approval of Form and Content of Class Notice re 832 Reply to Response to Motion by Plaintiff All Plaintiffs.

03/13/2005 03/14/2005 03/14/2005 03/14/2005 03/17/2005
03/25/2005 03/28/2005 03/29/2005 03/30/2005 03/30/2005 04/04/2005 04/04/2005
04/08/2005 04/12/2005 04/19/2005 04/21/2005 04/22/2005 04/25/2005 04/25/2005

(Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Berman, Steve) Modified on 3/4/2005 (KN, ). (Entered: 03/03/2005)
836 NOTICE by Plaintiff Mary Dean has not received from the Court a written decision about her motion on recusal and removal of class counsel. (MD ) (Entered: 03/15/2005)
834 MINUTE ORDER regarding Mary Dean's March 13, 2005 pleading by Judge Marsha J. Pechman. (RP, ) (Entered: 03/14/2005)
835 RESPONSE, by Defendant Boeing Company, to 831 MOTION Plaintiffs' Motion for Order Certifying Partial Summary Judgment Order For Appeal. (Reiss, Michael) (Entered: 03/14/2005)
837 REQUEST by Plaintiff Mary Dean for date correction − date change for note to calendar to 3/18/05 (MD, ) (Entered: 03/15/2005)
838 REPLY, filed by Plaintiff All Plaintiffs, TO RESPONSE to 831 MOTION Plaintiffs' Motion for Order Certifying Partial Summary Judgment Order For Appeal (Attachments: # 1 Certificate of Service)(Arai, Ivy) (Entered: 03/17/2005)
839 Letter from Steve W. Berman to Honorable Marsha J. Pechman. (Berman, Steve) (Entered: 03/25/2005)
841 MOTION for a change of venue by Plaintiff Mary Dean. Noting Date 4/1/2005. (MD, ) (Entered: 03/29/2005)
840 Letter from Michael Reiss responding to Mr. Berman's letter to the Court dated March 25 re status conference. (Reiss, Michael) (Entered: 03/29/2005)
842 RESPONSE, by Plaintiff All Plaintiffs, to 841 MOTION for a change of venue. (Attachments: # 1 Certificate of Service Certificate of Service)(Berman, Steve) (Entered: 03/30/2005)
843 RESPONSE, by Defendant Boeing Company, to 841 MOTION for a change of venue. (Cohen, Rebecca) (Entered: 03/30/2005)
844 MINUTE ORDER regarding status conference by Judge Marsha J. Pechman. (RP, ) (Entered: 04/04/2005)
845 REPLY/RESPONSE, filed by Plaintiff Mary Dean, TO Class Counsel Steve Berman Statement to 841 Mary Dean's MOTION for a change of venue and AFFIDAVIT of Verlene Maholmes (MD ) Modified on 4/6/2005 (DM, ). (Entered: 04/05/2005)
846 ORDER denying 831 Motion for Certification For Appeal by Judge Marsha J. Pechman.(RP, ) (Entered: 04/08/2005)
847 ORDER granting in part and denying in part 821 Motion for Preliminary Approval of Class Notice by Judge Marsha J. Pechman.(RP, ) (Entered: 04/12/2005)
848 Letter from Mary A Dean re: Plaintiff Mary A Dean's claims severed. (MD ) (Entered: 04/19/2005)
849 ORDER denying 841 Motion for change of venue by Judge Marsha J. Pechman.(RP) (Entered: 04/21/2005)
850 Letter from Steve W. Berman to Honorable Marsha J. Pechman. (Berman, Steve) (Entered: 04/22/2005)
851 Letter from Michael Reiss to Judge Pechman. (Reiss, Michael) (Entered: 04/25/2005)
852 Letter from Michael Reiss−See revised Page 5 to Judge Pechman. (Reiss, Michael) (Entered: 04/25/2005)

04/25/2005 04/26/2005 04/28/2005
04/28/2005
05/04/2005 05/05/2005 05/05/2005 05/06/2005 05/09/2005
05/09/2005 05/09/2005 05/10/2005 05/12/2005
05/18/2005
05/19/2005

853 Letter from Craig Spiegel to Judge Pechman re 851 Letter. (Spiegel, Craig) (Entered: 04/25/2005)
854 Letter from Michael Reiss to Judge Pechman. (Reiss, Michael) (Entered: 04/26/2005)
855 MOTION to Certify Class For Certification Of Subclass Of Non−Heritage Boeing Salaried Employees by Plaintiff All Plaintiffs. Noting Date 5/13/2005. (Attachments: # 1 Proposed Order # 2 Certificate of Service)(Spiegel, Craig) (Entered: 04/28/2005)
856 DECLARATION of Craig R. Spiegel In Support Of Plaintiffs' Motion For Certification Of Subclass filed by Plaintiff All Plaintiffs re 855 MOTION to Certify Class For Certification Of Subclass Of Non−Heritage Boeing Salaried Employees (Spiegel, Craig) (Entered: 04/28/2005)
858 Letter from Mary A Dean. (MD, ) (Entered: 05/05/2005)
857 Letter from Steve W. Berman re 847 Order on Motion for Miscellaneous Relief Re Opt Out Form. (Berman, Steve) (Entered: 05/05/2005)
859 Letter from Michael Reiss re Boeing's Proposed Opt Out Form. (Reiss, Michael) (Entered: 05/05/2005)
860 Letter from Steve W. Berman to Judge Pechman re: Class Notice. (Berman, Steve) (Entered: 05/06/2005)
861 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman − Dep Clerk: Eileen Scollard; Pla Counsel: Craig Spiegel, et al; Def Counsel: Michael Reiss, et al; CR: Joseph Roth; Time of Hearing: 30 mins.; Telephone Conference held on 5/6/05. Discussion re letters. Plaintiff's request for a 90 extension of trial schedule is denied. (ES) (Entered: 05/09/2005)
862 Letter from Craig R. Spiegel to Hon. Marsha J. Pechman. (Spiegel, Craig) (Entered: 05/09/2005)
864 RESPONSE, by Defendant Boeing Company, to 855 MOTION to Certify Class For Certification Of Subclass Of Non−Heritage Boeing Salaried Employees. (LMS, ) (Entered: 05/11/2005)
863 ORDER approving class notice, by Judge Marsha J. Pechman. (RP, ) (Entered: 05/10/2005)
865 REPLY, filed by Plaintiff All Plaintiffs, TO RESPONSE to 855 MOTION to Certify Class For Certification Of Subclass Of Non−Heritage Boeing Salaried Employees (Attachments: # 1 Certificate of Service)(Spiegel, Craig) (Entered: 05/12/2005)
866 ORDER TRANSFERRING VENUE OF SEVERED ACTION AS TO PLAINTIFF MARY DEAN'S CLAIMS TO US DISTRICT COURT FOR THE DISTRICT OF KANSAS, WICHITA DIVISION. by Judge Marsha J. Pechman. (MD) (Entered: 05/18/2005)
867 3RD AMENDED ORDER SETTING TRIAL DATE AND RELATED DATES; Length of Trial: *15−20 days*. Jury Trial is set for 12/5/2005 09:00 AM before Hon. Marsha J. Pechman. Joinder of Parties due by 7/7/2004; Amended Pleadings due by 7/18/2004; Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 6/8/2005; Motions due by 7/8/2005; Discovery completed by 8/8/2005; Dispositive motions due by 9/6/2005; Settlement conference to be held by 10/6/2005; 39.1 Settlement Report due by 11/4/2005; Motions in Limine due by 11/7/2005; Pretrial Order due by 11/17/2005; Pretrial Conference set for 11/18/2005 02:30 PM before Hon. Marsha J. Pechman. Trial briefs to be submitted by 11/30/2005; Proposed voir dire/jury instructions due by 11/30/2005; by Judge Marsha J. Pechman. (ES) (Entered: 05/19/2005)

05/26/2005 05/26/2005 05/27/2005
06/02/2005 06/03/2005
06/07/2005 06/09/2005 06/22/2005 07/22/2005 07/22/2005
07/28/2005 07/28/2005 07/28/2005
08/01/2005

868 STIPULATION and [Proposed] Order for 14−Day Extension of Deadlines Regarding Expert Rebuttal Witnesses by parties. (Attachments: # 1 Certificate of Service)(Spiegel, Craig) (Entered: 05/26/2005)
869 NOTICE re: order transferring venue of severed action to USDC of Kansas, Wichita Division re 866 Order. Mailed electronic copies contained on CD and copies of court file that is listed in Court Order (MD, ) (Entered: 05/26/2005)
870 STIPULATION AND ORDER for 14 day extension of deadlines regarding expert rebuttal witnesses re 868 Stipulation filed by All Plaintiffs, Discovery completed by 8/22/2005; Rebuttal Expert Disclosure/Reports due by 7/22/2005; by Judge Marsha J. Pechman. (MD, ) (Entered: 05/31/2005)
871 STIPULATION AND PROPOSED ORDER regarding submission of expert exhibits for trial by parties. (Reiss, Michael) (Entered: 06/02/2005)
872 STIPULATION AND ORDER REGARDING SUBMISSION OF EXPERT EXHIBITS FOR TRIAL re 871 Stipulation filed by Boeing Company, Initial Disclosure Deadline is 6/8/2005. Rebuttal Expert Disclosure/Reports due by 7/22/2005; by Judge Marsha J. Pechman. (MD ) (Entered: 06/03/2005)
873 RETURN RECEIPT (Green Card) re service by certified mail executed upon US District Court, Wichita, KS (LMS, ) (Entered: 06/08/2005)
874 ORDER denying 855 Motion to Certify SubClass of Non−Heritage Salaried Employees; signed by Judge Marsha J. Pechman.(SC, ) (Entered: 06/09/2005)
875 Letter from David Roberts re: conference. (MD ) (Entered: 06/22/2005)
876 MOTION for Protective Order Precluding Deposition of Absent Class Member Kelvin Biglow by Plaintiff All Plaintiffs. Noting Date 8/2/2005. (Attachments: # 1 Proposed Order # 2 Certificate of Service Certificate of Service)(Spiegel, Craig) (Entered: 07/22/2005)
877 DECLARATION of Ivy Arai in Support of Plaintiffs' Motion for Protective Order Precluding Deposition of Absent Class Member Kelvin Biglow filed by Plaintiff All Plaintiffs re 876 MOTION for Protective Order Precluding Deposition of Absent Class Member Kelvin Biglow (Attachments: # 1 Exhibit A−D)(Spiegel, Craig) (Entered: 07/22/2005)
878 OPPOSITION BRIEF re 876 MOTION for Protective Order Precluding Deposition of Absent Class Member Kelvin Biglow by Defendant Boeing Company. (Attachments: # 1 Proposed Order)(Cohen, Rebecca) (Entered: 07/28/2005)
879 DECLARATION of Karen Cline filed by Defendant Boeing Company re Opposition to 876 MOTION for Protective Order Precluding Deposition of Absent Class Member Kelvin Biglow (Cohen, Rebecca) Modified text on 8/2/2005 (LT, ). (Entered: 07/28/2005)
880 DECLARATION of Rebecca Shapiro Cohen filed by Defendant Boeing Company re Opposition to 876 MOTION for Protective Order Precluding Deposition of Absent Class Member Kelvin Biglow (Cohen, Rebecca) Modified text on 8/2/2005 (LT, ). (Entered: 07/28/2005)
881 REPLY, filed by Plaintiff All Plaintiffs, TO RESPONSE to 876 MOTION for Protective Order Precluding Deposition of Absent Class Member Kelvin Biglow (Attachments: # 1 Certificate of

08/02/2005 08/08/2005 08/08/2005 08/08/2005 08/08/2005 08/17/2005 08/18/2005 09/01/2005 09/01/2005
09/01/2005 09/01/2005 09/01/2005 09/01/2005 09/01/2005 09/01/2005

Service)(Spiegel, Craig) (Entered: 08/01/2005)
882 ORDER denying plaintiffs' 876 Motion for Protective Order precluding deposition of absent class member Kelvin Biglow by Judge Marsha J. Pechman.(RS, ) (Entered: 08/02/2005)
883 STIPULATION AND [PROPOSED] ORDER FOR EXTENSION OF DISCOVERY DEADLINES by parties. (Attachments: # 1 Certificate of Service)(Spiegel, Craig) (Entered: 08/08/2005)
884 MINUTE ORDER denying Pltf's request for a protective order; signed by Docket Clerk M. Duett at the direction of Judge Marsha J. Pechman. (SC, ) (Entered: 08/08/2005)
885 NOTICE OF WITHDRAWAL AND SUBSTITUTION OF COUNSEL on behalf of Defendant Boeing Company. Michael Reiss is substituted as counsel for Defendant. Attorney Robert F Porcarelli terminated. (Reiss, Michael) (Entered: 08/08/2005)
886 STIPULATION AND ORDER re 883 Stipulation filed by All Plaintiffs, Discovery completed by 8/8/2005; Rebuttal Expert Disclosure/Reports due by 8/22/2005; by Judge Marsha J. Pechman. (MD, ) (Entered: 08/09/2005)
887 Letter from Martha Ybarra. (MD ) (Entered: 08/18/2005)
888 APPLICATION by Defendant Boeing Company AND ORDER admitting Boyd A Byers for Boeing Company pro hac vice. Receipt # 853004. (MD ) (Entered: 08/18/2005)
889 Letter from Harry Korrell Regarding The Boeing Company's Motion for Partial Summary Judgment 890 . (Reiss, Michael) Modified on 9/2/2005 to create document link (ECS, ). (Entered: 09/01/2005)
890 MOTION for Partial Summary Judgment by Defendant Boeing Company. Noting Date 9/23/2005.Oral Argument Requested. (Attachments: # 1 Appendix 1 State of Undisputed Facts# 2 Appendix 2 Statistical Figures# 3 Appendix 3 Index of Documents)(Reiss, Michael) (Entered: 09/01/2005)
891 DECLARATION of Kathie Powell filed by Defendant Boeing Company re 890 MOTION for Partial Summary Judgment (Attachments: # 1 Exhibit B Part 1a# 2 Exhibit B Part 1b# 3 Exhibit B Part 2# 4 Exhibit B Part 3)(Reiss, Michael) (Entered: 09/01/2005)
892 DECLARATION of Julie Turnell filed by Defendant Boeing Company re 890 MOTION for Partial Summary Judgment (Reiss, Michael) (Entered: 09/01/2005)
893 DECLARATION of Dr. Joan G. Haworth filed by Defendant Boeing Company re 890 MOTION for Partial Summary Judgment (Reiss, Michael) (Entered: 09/01/2005)
894 DECLARATION of Dr. Michael Ward filed by Defendant Boeing Company re 890 MOTION for Partial Summary Judgment (Attachments: # 1 Appendix C Part 1# 2 Appendix C Part 2# 3 Appendix C Part 3)(Reiss, Michael) (Entered: 09/01/2005)
895 DECLARATION of Dr. Mary Baker filed by Defendant Boeing Company re 890 MOTION for Partial Summary Judgment (Reiss, Michael) (Entered: 09/01/2005)
896 DECLARATION of Rebecca Shapiro−Cohen filed by Defendant Boeing Company re 890 MOTION for Partial Summary Judgment (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6Exhibit # 7 Exhibit 8# 8 Exhibit 9# 9 Exhibit 10−13# 10 Exhibit 14−16)(Reiss, Michael) Modified text on 9/2/2005 (MD, ). (Entered: 09/01/2005)

09/01/2005 09/02/2005 09/19/2005 09/19/2005
09/19/2005
09/23/2005 09/23/2005 09/23/2005
09/23/2005 09/23/2005 10/06/2005 10/17/2005

897 CERTIFICATE OF SERVICE by Defendant Boeing Company re 894 Declaration, 895 Declaration, 889 Letter, 896 Declaration,, 890 MOTION for Partial Summary Judgment, 891 Declaration, 892 Declaration, 893 Declaration. (Reiss, Michael) (Entered: 09/01/2005)
898 TRANSCRIPT of Proceedings held on 1/7/05 before Judge Marsha J Pechman. Court Reporter: L. Kelly. (SA) (Entered: 09/08/2005)
899 SEALED DOCUMENT Plaintiffs' Opposition To Boeing's Motion For Partial Summary Judgment And To Decertify The Compensation Class by Plaintiffs Doreen Ferguson, Mara Ferrari, Rhonda Capps, Beverly Trotter, Kevin Biglow re 890 MOTION for Partial Summary Judgment. (Attachments: # 1 Certificate of Service)(Spiegel, Craig) (Entered: 09/19/2005)
900 SEALED DOCUMENT Spiegel Declaration and Exhibits 1−4 In Opposition To Boeing's Motion For Partial Summary Judgment by Plaintiffs Doreen Ferguson, Mara Ferrari, Rhonda Capps, Beverly Trotter, Kevin Biglow re 899 Sealed Document,. (Attachments: # 1 Exhibit Spiegel Declaration In Opposition To Boeing's Motion For Partial Summary Judgment And Decertification Exhibit 5# 2 Exhibit Spiegel Declaration In Opposition To Boeings Motion For Partial Summary Judgment Exhibit 6# 3 Exhibit Spiegel Declaration In Opposition To Boeing's Motion For Partial Summary Judgment Exhibits 7−12)(Spiegel, Craig) (Entered: 09/19/2005)
901 DECLARATION of Janice F. Madden, Ph.D. In Opposition To Boeing's Motion For Partial Summary Judgment filed by Plaintiffs Doreen Ferguson, Mara Ferrari, Rhonda Capps, Beverly Trotter, Kevin Biglow re 890 MOTION for Partial Summary Judgment (Attachments: # 1 Exhibit A to Madden Declaration# 2 Exhibit B to Madden Declaration# 3 Exhibit C to Madden Declaration part 1# 4 Exhibit C to Madden Declaration part 2# 5 Exhibit C to Madden Declaration part 3# 6 Exhibit D to Madden Declaration)(Spiegel, Craig) (Entered: 09/19/2005)
902 Letter from Michael Reiss re 890 MOTION for Partial Summary Judgment. (Korrell, Harry) (Entered: 09/23/2005)
903 REPLY, filed by Defendant Boeing Company, TO RESPONSE to 890 MOTION for Partial Summary Judgment (Korrell, Harry) (Entered: 09/23/2005)
904 Supplemental DECLARATION of Dr. Joan Haworth filed by Defendant Boeing Company re 890 MOTION for Partial Summary Judgment (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C Part 1# 4 Exhibit C Part 2# 5 Exhibit C Part 3# 6 Exhibit C Part 4# 7 Exhibit C Part 5# 8 Exhibit C part 6# 9 Exhibit C Part 7# 10 Exhibit C Part 8# 11 Exhibit C Part 9# 12 Exhibit C Part 10# 13 Exhibit C Part 11# 14 Exhibit D)(Korrell, Harry) Modified text on 9/26/2005 (LT, ). (Entered: 09/23/2005)
905 CERTIFICATE OF SERVICE by Defendant Boeing Company re 903 Reply to Response to Motion for Partial Summary Judgment. (Korrell, Harry) (Entered: 09/23/2005)
906 SURREPLY filed by Plaintiff All Plaintiffs re 890 MOTION for Partial Summary Judgment Plaintiffs' Surreply in Opposition to Boeing's Motion for Partial Summary Judgment and For Decertification of Compensation Class (Attachments: # 1 Certificate of Service Certificate of Service)(Spiegel, Craig) (Entered: 09/23/2005)
907 Letter from Michael Reiss to Judge Pecham enclosing iBriefs. (Reiss, Michael) (Entered: 10/06/2005)
908 MINUTE ORDER Motion Hearing set for 10/25/2005 at 10:00 AM before Hon. Marsha J. Pechman. by Judge Marsha J. Pechman. (DW)

10/25/2005 10/25/2005
10/25/2005
10/26/2005 10/26/2005 10/26/2005 10/31/2005 11/04/2005 11/16/2005 11/17/2005 11/17/2005
11/17/2005

(Entered: 10/17/2005)
909 Letter from Craig R. Spiegel to Honorable Marsha J. Pechman. (Spiegel, Craig) (Entered: 10/25/2005)
911 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman − Dep Clerk: Eileen Scollard; Law Clerk: David Ward. Pla Counsel: Craig Spiegel and Steve Berman; Def Counsel: Michael Reiss, Rebecca Cohen and Jeff Hollingsworth; CR: Susan Zielie; Time of Hearing: 1 hour; Motion Hearing held on 10/25/2005 re 890 MOTION for Partial Summary Judgment filed by Boeing Company. Court hears argument and will issue written decision. Status conference follows argument. (ES) (Entered: 10/26/2005)
913 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman − Dep Clerk: Eileen Scollard; Pla Counsel: Craig Spiegel and Steve Berman; Def Counsel: Michael Reiss, Rebecca Cohen and Jeff Hollingsworth; CR: Susan Zielie; Time of Hearing: 45 mins; Status Conference held on 10/25/05. Court and counsel discuss trial procedures. Mediation to be held on 11/14/05. Court directs counsel to meet and confer re MILs; to file them in unified format and to prioritize them. Counsel request a questionnaire be completed by jury pool. Counsel to submit questionnaire to the court by 11/22/05. Jury panel to complete questionnaire on 11/30/05. Jury empanelment scheduled to commence on 12/1/05. Trial to commence on 12/5/05 at 9:00 a.m.. Trial hours may be extended from normal trial hours. Trial calendar days are: 12/5−12/7/05; 12/12−12/15/05; 12/19−12/22/05. (ES) (Entered: 10/26/2005)
NOTICE of Docket Text Modification Mailing status for Attorney Michael Reiss corrected to allow electronic service (VB, ) (Entered: 10/26/2005)
910 Letter from Michael Reiss to Judge Pechman responding to Mr. Spiegel's letter of 10/25/05. (Reiss, Michael) (Entered: 10/26/2005)
912 Letter from Craig R. Spiegel re 910 Letter to Honorable Marsha J. Pechman. (Spiegel, Craig) (Entered: 10/26/2005)
914 MINUTE ORDER re filing of motions in limine by Judge Marsha J. Pechman. (DW) (Entered: 10/31/2005)
915 ORDER granting in part 890 Motion for Partial Summary Judgment by Judge Marsha J. Pechman.(DW) (Entered: 11/04/2005)
916 Letter from Steve W. Berman w/ attachment − [Proposed] Notice of Decertification of Class Action. (Attachments: # 1 [Proposed] Notice of Decertification of Class Action# 2 Certificate of Service)(Berman, Steve) (Entered: 11/16/2005)
917 MOTIONS IN LIMINE TO EXCLUDE TESTIMONY BY DR. WARD AS TO COHORT ANALYSIS; BOEINGS' OPPOSITION; AND PLAINTIFFS' REPLY by Plaintiff All Plaintiffs. Noting Date 11/17/2005. (Spiegel, Craig) (Entered: 11/17/2005)
918 ACCESS RESTRICTED, E−Govt Act, personal identifiers, see redaction # 958 , DECLARATION of CRAIG R. SPIEGEL filed by Plaintiff All Plaintiffs re 917 MOTIONS IN LIMINE TO EXCLUDE TESTIMONY BY DR. WARD AS TO COHORT ANALYSIS; BOEINGS' OPPOSITION; AND PLAINTIFFS' REPLY (Spiegel, Craig) Modified on 11/21/2005 (ECS, ). (Entered: 11/17/2005)
919 MOTIONS IN LIMINE to Exclude Expert Testimony of Shirley J. Wilcher by Defendant Boeing Company. (Attachments: # 1 Proposed Order # 2 Appendix Declaration of Boris Gaviria in Support of MIL# 3 Exhibit A, part 1 to Boris Gaviria Declaration# 4 Exhibit A, part 2, Boris Gaviria Declaration# 5 ACCESS RESTRICTED, E−Govt Act, personal identifiers, see redaction # 966 , Exhibit B to Boris Gaviria

11/17/2005 11/17/2005
11/17/2005 11/17/2005 11/17/2005 11/17/2005 11/17/2005 11/17/2005 11/17/2005 11/17/2005

Declaration# 6 Exhibit C to Boris Gaviria Declaration)(Reiss, Michael) Modified on 11/21/2005 (ECS, ). (Entered: 11/17/2005)
920 DECLARATION of MICHAEL WARD, Ph.D. IN SUPPORT OF BOEING'S OPPOSITION TO PLAINTIFFS' MOTIONS IN LIMINE filed by Plaintiff All Plaintiffs re 917 MOTIONS IN LIMINE TO EXCLUDE TESTIMONY BY DR. WARD AS TO COHORT ANALYSIS; BOEINGS' OPPOSITION; AND PLAINTIFFS' REPLY (Spiegel, Craig) (Entered: 11/17/2005)
921 ACCESS RESTRICTED, E−Govt Act, personal identifiers, see redaction # 965 , DECLARATION of MICHAEL REISS IN OPPOSITION TO PLAINTIFFS' MOTIONS IN LIMINE (NOS 2, 6 AND 7) filed by Plaintiff All Plaintiffs re 917 MOTIONS IN LIMINE TO EXCLUDE TESTIMONY BY DR. WARD AS TO COHORT ANALYSIS; BOEINGS' OPPOSITION; AND PLAINTIFFS' REPLY (Spiegel, Craig) Modified on 11/21/2005 (ECS, ). (Entered: 11/17/2005)
922 Supplemental DECLARATION of DECLARATION OF CRAIG R. SPIEGEL (PART 1) filed by Plaintiff All Plaintiffs re 917 MOTIONS IN LIMINE TO EXCLUDE TESTIMONY BY DR. WARD AS TO COHORT ANALYSIS; BOEINGS' OPPOSITION; AND PLAINTIFFS' REPLY (Spiegel, Craig) (Entered: 11/17/2005)
923 Supplemental DECLARATION of DECLARATION OF CRAIG R. SPIEGEL (PART 2) filed by Plaintiff All Plaintiffs re 917 MOTIONS IN LIMINE TO EXCLUDE TESTIMONY BY DR. WARD AS TO COHORT ANALYSIS; BOEINGS' OPPOSITION; AND PLAINTIFFS' REPLY (Spiegel, Craig) (Entered: 11/17/2005)
924 MOTIONS IN LIMINE TO BAR DR. HAWORTH FROM TESTIFYING ABOUT DR. WARD'S COHORT ANALYSIS; BOEING'S OPPOSITION; AND PLAINTIFFS' REPLY by Plaintiff All Plaintiffs. Noting Date 11/17/2005. (Attachments: # 1 Proposed Order)(Spiegel, Craig) (Entered: 11/17/2005)
925 DECLARATION of CRAIG R. SPIEGEL (PART 1) filed by Plaintiff All Plaintiffs re 924 MOTIONS IN LIMINE TO BAR DR. HAWORTH FROM TESTIFYING ABOUT DR. WARD'S COHORT ANALYSIS; BOEING'S OPPOSITION; AND PLAINTIFFS' REPLY (Spiegel, Craig) (Entered: 11/17/2005)
926 ACCESS RESTRICTED, E−Govt Act, personal identifiers, see redaction # 960 , DECLARATION of CRAIG R. SPIEGEL (PART 2) filed by Plaintiff All Plaintiffs re 924 MOTIONS IN LIMINE TO BAR DR. HAWORTH FROM TESTIFYING ABOUT DR. WARD'S COHORT ANALYSIS; BOEING'S OPPOSITION; AND PLAINTIFFS' REPLY (Spiegel, Craig) Modified on 11/21/2005 (ECS, ). (Entered: 11/17/2005)
927 DECLARATION of DR. JOAN HAWORTH IN SUPPORT OF BOEING'S RESPONSE TO PLAINTIFFS' SECOND AND SEVENTH MOTIONS IN LIMINE filed by Plaintiff All Plaintiffs re 924 MOTIONS IN LIMINE TO BAR DR. HAWORTH FROM TESTIFYING ABOUT DR. WARD'S COHORT ANALYSIS; BOEING'S OPPOSITION; AND PLAINTIFFS' REPLY (Spiegel, Craig) (Entered: 11/17/2005)
928 MOTIONS IN LIMINE TO BAR BOEING FROM CHALLENGING ITS OWN PROMOTION INDICATOR; BOEING'S OPPOSITION; AND PLAINTIFFS' REPLY by Plaintiff All Plaintiffs. Noting Date 11/17/2005. (Attachments: # 1 Proposed Order)(Spiegel, Craig) (Entered: 11/17/2005)
929 MOTIONS IN LIMINE TO EXCLUDE EVIDENCE ON OFCCP COMPLIANCE, NEGOTIATIONS, AND SETTLEMENT by Defendant

11/17/2005 11/17/2005
11/17/2005 11/17/2005 11/17/2005 11/17/2005 11/17/2005 11/17/2005 11/17/2005

Boeing Company. Noting Date 11/17/2005. (Hollingsworth, Jeffrey) (Entered: 11/17/2005)
930 ACCESS RESTRICTED, E−Govt Act, personal identifiers, see redaction # 959 , DECLARATION of CRAIG R. SPIEGEL filed by Plaintiff All Plaintiffs re 928 MOTIONS IN LIMINE TO BAR BOEING FROM CHALLENGING ITS OWN PROMOTION INDICATOR; BOEING'S OPPOSITION; AND PLAINTIFFS' REPLY (Spiegel, Craig) Modified on 11/21/2005 (ECS, ). (Entered: 11/17/2005)
931 ACCESS RESTRICTED, E−Govt Act, personal identifiers, see redaction # 961 , DECLARATION of MICHAEL REISS IN OPPOSITION TO PLAINTIFFS' MOTIONS IN LIMINE (NOS 2, 6 AND 7) filed by Plaintiff All Plaintiffs re 928 MOTIONS IN LIMINE TO BAR BOEING FROM CHALLENGING ITS OWN PROMOTION INDICATOR; BOEING'S OPPOSITION; AND PLAINTIFFS' REPLY (Spiegel, Craig) Modified on 11/21/2005 (ECS, ). (Entered: 11/17/2005)
932 DECLARATION of MICHAEL WARD, PH.D. IN SUPPORT OF BOEING'S OPPOSITION TO PLAINTIFFS' MOTIONS IN LIMINE filed by Plaintiff All Plaintiffs re 928 MOTIONS IN LIMINE TO BAR BOEING FROM CHALLENGING ITS OWN PROMOTION INDICATOR; BOEING'S OPPOSITION; AND PLAINTIFFS' REPLY (Spiegel, Craig) (Entered: 11/17/2005)
933 DECLARATION of Craig R. Spiegel in Support of Plaintiffs' Opposition to Defendants' Motion In Limine to Exclude Evidence on OFCCP Compliance filed by Defendant Boeing Company re 929 MOTIONS IN LIMINE TO EXCLUDE EVIDENCE ON OFCCP COMPLIANCE, NEGOTIATIONS, AND SETTLEMENT (Attachments: # 1 Declaration cont.)(Hollingsworth, Jeffrey) Modified to name attachment on 11/18/2005 (LT, ). (Entered: 11/17/2005)
934 Supplemental DECLARATION of CRAIG R. SPIEGEL filed by Plaintiff All Plaintiffs re 928 MOTIONS IN LIMINE TO BAR BOEING FROM CHALLENGING ITS OWN PROMOTION INDICATOR; BOEING'S OPPOSITION; AND PLAINTIFFS' REPLY (Spiegel, Craig) (Entered: 11/17/2005)
935 MOTIONS IN LIMINE to Exclude Testimony of Carmen Brown and Robin Green by Defendant Boeing Company. (Attachments: # 1 Proposed Order # 2 Appendix Declaration of Boris Gaviria in Support of MIL# 3 Appendix Declaration of Alan Scherkenbach in Support of MIL# 4 Appendix Declaration of Craig Spiegel in Support of Plaintiffs' Opposition to Defendants' MIL)(Reiss, Michael) (Entered: 11/17/2005)
936 DECLARATION of LEONARD A. CUPINGOOD, PH.D. filed by Plaintiff All Plaintiffs re 928 MOTIONS IN LIMINE TO BAR BOEING FROM CHALLENGING ITS OWN PROMOTION INDICATOR; BOEING'S OPPOSITION; AND PLAINTIFFS' REPLY (Spiegel, Craig) (Entered: 11/17/2005)
937 MOTIONS IN LIMINE TO EXCLUDE REFERENCES TO BECK ET AL. V. BOEING GENDER CLASS ACTION AND CONSENT DECREE by Defendant Boeing Company. Noting Date 11/17/2005. (Hollingsworth, Jeffrey) (Entered: 11/17/2005)
938 MOTIONS IN LIMINE TO BAR BOEING FROM AMENDING ITS PRETRIAL STATEMENT TO ADD WITNESSES AND EXHIBITS; BOEING'S OPPOSITION; AND PLAINTIFFS' REPLY by Plaintiff All Plaintiffs. Noting Date 11/17/2005. (Attachments: # 1 Proposed Order)(Spiegel, Craig) (Entered: 11/17/2005)

11/17/2005
11/17/2005 11/17/2005 11/17/2005 11/17/2005
11/17/2005
11/17/2005 11/17/2005 11/17/2005 11/17/2005 11/17/2005 11/17/2005 11/17/2005

939 DECLARATION of Craig R. Spiegel in Support of Plaintiffs' Opposition to Boeing's Motion in Limine to Exclude Boeing's Settlement Agreement in Beck v. Boeing filed by Defendant Boeing Company re 937 MOTIONS IN LIMINE TO EXCLUDE REFERENCES TO BECK ET AL. V. BOEING GENDER CLASS ACTION AND CONSENT DECREE (Hollingsworth, Jeffrey) (Entered: 11/17/2005)
940 DECLARATION of IVY D. ARAI filed by Plaintiff All Plaintiffs re 938 MOTIONS IN LIMINE TO BAR BOEING FROM AMENDING ITS PRETRIAL STATEMENT TO ADD WITNESSES AND EXHIBITS; BOEING'S OPPOSITION; AND PLAINTIFFS' REPLY (Spiegel, Craig) (Entered: 11/17/2005)
941 MOTIONS IN LIMINE TO EXCLUDE COMPENSATION ANALYSES AND RELATED MATERIALS by Defendant Boeing Company. Noting Date 11/17/2005. (Hollingsworth, Jeffrey) (Entered: 11/17/2005)
942 Letter from Michael Reiss re Boeing's Motions in Limine. (Reiss, Michael) (Entered: 11/17/2005)
943 ACCESS RESTRICTED, E−Govt Act, personal identifiers, see redaction # 962 , DECLARATION of JEFFREY A. HOLLINGSWORTH IN OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE filed by Plaintiff All Plaintiffs re 938 MOTIONS IN LIMINE TO BAR BOEING FROM AMENDING ITS PRETRIAL STATEMENT TO ADD WITNESSES AND EXHIBITS; BOEING'S OPPOSITION; AND PLAINTIFFS' REPLY (Spiegel, Craig) Modified on 11/21/2005 (ECS, ). (Entered: 11/17/2005)
944 DECLARATION of Craig R. Spiegel in Support of Plaintiffs' Opposition to Defendants' Motion In Limine to Exclude Compensation Analyses and Related Materials filed by Defendant Boeing Company re 941 MOTIONS IN LIMINE TO EXCLUDE COMPENSATION ANALYSES AND RELATED MATERIALS (Hollingsworth, Jeffrey) (Entered: 11/17/2005)
945 DECLARATION of CRAIG R. SPIEGEL filed by Plaintiff All Plaintiffs re 938 MOTIONS IN LIMINE TO BAR BOEING FROM AMENDING ITS PRETRIAL STATEMENT TO ADD WITNESSES AND EXHIBITS; BOEING'S OPPOSITION; AND PLAINTIFFS' REPLY (Spiegel, Craig) (Entered: 11/17/2005)
946 DECLARATION of Jeffrey A. Hollingsworth in Support of Boeing's Motions In Limine filed by Defendant Boeing Company re 941 MOTIONS IN LIMINE TO EXCLUDE COMPENSATION ANALYSES AND RELATED MATERIALS (Hollingsworth, Jeffrey) (Entered: 11/17/2005)
947 DESIGNATION OF DEPOSITION TRANSCRIPT by Defendant Boeing Company.(Reiss, Michael) (Entered: 11/17/2005)
948 DESIGNATION OF DEPOSITION TRANSCRIPT by Defendant Boeing Company.(Reiss, Michael) (Entered: 11/17/2005)
949 Proposed Pretrial Order by Plaintiff All Plaintiffs (Spiegel, Craig) (Entered: 11/17/2005)
950 MOTIONS IN LIMINE TO LIMIT TESTIMONY OF BOEING'S EXPERT LEONARD J. BIERMANN; BOEINGS' OPPOSITION; PLAINTIFFS' REPLY by Plaintiff All Plaintiffs. Noting Date 11/17/2005. (Attachments: # 1 Proposed Order)(Spiegel, Craig) (Entered: 11/17/2005)
951 DECLARATION of CRAIG R. SPIEGEL (PART 1) filed by Plaintiff All Plaintiffs re 950 MOTIONS IN LIMINE TO LIMIT TESTIMONY OF BOEING'S EXPERT LEONARD J. BIERMANN; BOEINGS'

11/17/2005
11/17/2005 11/17/2005 11/17/2005
11/17/2005 11/17/2005 11/18/2005 11/18/2005 11/18/2005 11/18/2005 11/18/2005 11/18/2005 11/18/2005 11/18/2005

OPPOSITION; PLAINTIFFS' REPLY (Spiegel, Craig) (Entered: 11/17/2005)
952 DECLARATION of CRAIG R. SPIEGEL (PART 2) filed by Plaintiff All Plaintiffs re 950 MOTIONS IN LIMINE TO LIMIT TESTIMONY OF BOEING'S EXPERT LEONARD J. BIERMANN; BOEINGS' OPPOSITION; PLAINTIFFS' REPLY (Spiegel, Craig) (Entered: 11/17/2005)
953 MOTIONS IN LIMINE TO EXCLUDE REFERENCE TO NOURI CASE; BOEING'S OPPOSITION; AND PLAINTIFFS' REPLY by Plaintiff All Plaintiffs. Noting Date 11/17/2005. (Attachments: # 1 Proposed Order)(Spiegel, Craig) (Entered: 11/17/2005)
954 DECLARATION of CRAIG R. SPIEGEL filed by Plaintiff All Plaintiffs re 953 MOTIONS IN LIMINE TO EXCLUDE REFERENCE TO NOURI CASE; BOEING'S OPPOSITION; AND PLAINTIFFS' REPLY (Spiegel, Craig) (Entered: 11/17/2005)
955 ACCESS RESTRICTED, E−Govt Act, personal identifiers, see redaction # 963 , DECLARATION of JEFFREY A. HOLLINGSWORTH IN OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE filed by Plaintiff All Plaintiffs re 953 MOTIONS IN LIMINE TO EXCLUDE REFERENCE TO NOURI CASE; BOEING'S OPPOSITION; AND PLAINTIFFS' REPLY (Spiegel, Craig) Modified on 11/21/2005 (ECS, ). (Entered: 11/17/2005)
956 Letter from Craig r. Spiegel to Judge Pechman. (Spiegel, Craig) (Entered: 11/17/2005)
957 CERTIFICATE OF SERVICE by Plaintiff All Plaintiffs. (Spiegel, Craig) (Entered: 11/17/2005)
958 REDACTION to 918 Declaration CRAIG R. SPIEGEL IN SUPPORT OF MOTION IN LIMINE TO EXCLUDE TESTIMONY BY DR. WARD AS TO COHORT ANALYSIS by Plaintiff All Plaintiffs. (Spiegel, Craig) (Entered: 11/18/2005)
959 REDACTION to 930 Declaration CRAIG R. SPIEGEL (PART 2) IN SUPPORT OF MOTION IN LIMINE TO BAR BOEING FROM CHALLENGING ITS OWN PROMOTION INDICATOR by Plaintiff All Plaintiffs. (Spiegel, Craig) (Entered: 11/18/2005)
960 REDACTION to 926 Declaration, of Craig R. Spiegel (Part 2) in Support of Plaintiffs' Motion In Limine to Bar Dr. Haworth from Testifying About Dr. Ward's Cohort Analysis by Plaintiff All Plaintiffs. (Spiegel, Craig) (Entered: 11/18/2005)
961 REDACTION to 931 Declaration, of MICHAEL REISS IN OPPOSITION TO PLAINTIFFS' MOTIONS IN LIMINE (NOS 2,6, AND 7) by Plaintiff All Plaintiffs. (Spiegel, Craig) (Entered: 11/18/2005)
962 REDACTION to 943 Declaration, JEFFREY A. HOLLINGSWORTH IN OPPOSITION TO PLAINTIFFS' MOTIONS IN LIMINE by Plaintiff All Plaintiffs. (Spiegel, Craig) (Entered: 11/18/2005)
963 REDACTION to 955 Declaration, JEFFREY A. HOLLINGSWORTH IN OPPOSITION TO PLAINTIFFS' MOTIONS IN LIMINE by Plaintiff All Plaintiffs. (Spiegel, Craig) (Entered: 11/18/2005)
964 ERRATA re 949 Proposed Pretrial Order by Defendants Boeing Company, Boeing North American Inc. (Williams, Nancy) (Entered: 11/18/2005)
965 REDACTION to 921 Declaration, MICHAEL REISS IN OPPOSITION TO PLAINTIFFS' MOTIONS IN LIMINE (NOS. 2, 6, AND 7) by Plaintiff All Plaintiffs. (Spiegel, Craig) (Entered: 11/18/2005)

11/18/2005
11/18/2005 11/18/2005 11/18/2005 11/18/2005 11/18/2005
11/18/2005 11/18/2005 11/18/2005 11/18/2005 11/18/2005
11/22/2005 11/23/2005 11/23/2005 11/28/2005 11/28/2005 11/28/2005 11/28/2005

966 REDACTION to Exhibit B of Declaration of Boris Gaviria in Support of MIL to Exclude Expert Testimony of Shirley Wilcher 919 by Defendant Boeing Company. (Reiss, Michael) Modified document link on 11/21/2005 (ECS, ). (Entered: 11/18/2005)
967 DESIGNATION OF DEPOSITION TRANSCRIPT by Plaintiff All Plaintiffs.(Spiegel, Craig) (Entered: 11/18/2005)
968 DESIGNATION OF DEPOSITION TRANSCRIPT by Plaintiff All Plaintiffs.(Spiegel, Craig) (Entered: 11/18/2005)
969 DESIGNATION OF DEPOSITION TRANSCRIPT by Plaintiff All Plaintiffs.(Spiegel, Craig) (Entered: 11/18/2005)
970 DESIGNATION OF DEPOSITION TRANSCRIPT by Plaintiff All Plaintiffs.(Spiegel, Craig) (Entered: 11/18/2005)
971 CERTIFICATE OF SERVICE by Plaintiff All Plaintiffs re 970 Designation of Deposition Transcript, 968 Designation of Deposition Transcript, 967 Designation of Deposition Transcript, 969 Designation of Deposition Transcript. (Spiegel, Craig) (Entered: 11/18/2005)
972 Proposed Pretrial Order by Plaintiff All Plaintiffs (Attachments: # 1 Certificate of Service)(Spiegel, Craig) (Entered: 11/18/2005)
973 DESIGNATION OF DEPOSITION TRANSCRIPT by Defendant Boeing Company.(Reiss, Michael) (Entered: 11/18/2005)
974 DESIGNATION OF DEPOSITION TRANSCRIPT by Defendant Boeing Company.(Reiss, Michael) (Entered: 11/18/2005)
975 AMENDED AGREED PRETRIAL ORDER by Judge Marsha J. Pechman. (Attachments: # 1 attachment pgs 38−73)(MD, ) (Entered: 11/21/2005)
979 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman − Dep Clerk: Eileen Scollard; Pla Counsel: Craig Spiegel; Def Counsel: Michael Reiss; Time of Hearing: 1 hr; Final Pretrial Conference held on 11/18/05. Jury Trial date: 12/5/05 at 9:00 a.m.. ELT: 11 days. Jury panel #: 12 jurors. Jury voir dire: 30/30 &15/15. Counsel to submit an agreed neutral statement of case. Proposed jury instructions due 11/28/05; Proposed jury questionnaire due 11/22/05. In Chambers Conference re proposed jury questionnaire scheduled for 11/28/05 at 2:30 p.m.; Jury instruction conference scheduled for 11/30/05 at 2:00 p.m..(ES) (Entered: 11/23/2005)
976 ERRATA re 975 Pretrial Order Defendants' Errata Sheet to Amended Agreed Pretrial Order by Defendants Boeing Company, Boeing North American Inc. (Williams, Nancy) (Entered: 11/22/2005)
977 DESIGNATION OF DEPOSITION TRANSCRIPT by Plaintiff All Plaintiffs. (Attachments: # 1 Certificate of Service)(Spiegel, Craig) (Entered: 11/23/2005)
978 DESIGNATION OF DEPOSITION TRANSCRIPT by Plaintiff All Plaintiffs.(Spiegel, Craig) (Entered: 11/23/2005)
980 Proposed Voir Dire by Defendant Boeing Company (Reiss, Michael) (Entered: 11/28/2005)
981 DESIGNATION OF DEPOSITION TRANSCRIPT by Plaintiff All Plaintiffs. (Attachments: # 1 Certificate of Service)(Spiegel, Craig) (Entered: 11/28/2005)
982 DESIGNATION OF DEPOSITION TRANSCRIPT by Plaintiff All Plaintiffs.(Spiegel, Craig) (Entered: 11/28/2005)
983 TRIAL BRIEF by Defendants Boeing Company, Boeing North American Inc (Hollingsworth, Jeffrey) (Entered: 11/28/2005)

11/28/2005 11/28/2005 11/30/2005 12/01/2005 12/01/2005 12/01/2005
12/01/2005 12/01/2005 12/02/2005 12/02/2005 12/02/2005 12/02/2005 12/02/2005 12/02/2005 12/02/2005 12/02/2005

984 Proposed Jury Instructions by Defendants Boeing Company, Boeing North American Inc Joint Instructions (Hollingsworth, Jeffrey) (Entered: 11/28/2005)
985 Proposed Jury Instructions by Defendants Boeing Company, Boeing North American Inc Joint Statement of Disputed Instructions (Hollingsworth, Jeffrey) (Entered: 11/28/2005)
986 DESIGNATION OF DEPOSITION TRANSCRIPT by Plaintiff All Plaintiffs. (Attachments: # 1 Certificate of Service)(Spiegel, Craig) (Entered: 11/30/2005)
987 Proposed Jury Instructions by Defendant Boeing Company (Supplemental Instruction) (Hollingsworth, Jeffrey) (Entered: 12/01/2005)
988 Proposed Jury Instructions by Plaintiff All Plaintiffs Re Definition Of Intent (Attachments: # 1 Certificate of Service)(Spiegel, Craig) (Entered: 12/01/2005)
989 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman − Dep Clerk: Eileen Scollard; Pla Counsel: Craig Spiegel et al; Def Counsel: Michael Reiss, et al; CR: Laurene Kelly; Time of Hearing: 2.5 hrs; Jury Trial begun on 12/1/05. Discussion with counsel re newspaper article.Prospective jurors #3, 25 and 38 are excused. Jury panel present. Qualification oath given. Voir dire by counsel. Pltfs. peremptory challenges: #5, #14, #20.Defts. peremptory challenges: 1, 13, 18. Jury panel: 2, 4, 7, 8, 11, 12, 15, 17, 19, 21, 22, 23. Empanelment oath given. Jurors excused to 12/5/05 at 9:00 a.m.. (ES) (Entered: 12/01/2005)
991 AFFIDAVIT OF SERVICE OF SUBPOENA upon Robin Greene served on November 28, 2005. (LT, ) (Entered: 12/02/2005)
992 AFFIDAVIT OF SERVICE OF SUBPOENA upon Carmen Brown served on November 26, 2005. (LT, ) (Entered: 12/02/2005)
990 DESIGNATION OF DEPOSITION TRANSCRIPT by Plaintiff All Plaintiffs. (Attachments: # 1 Certificate of Service)(Spiegel, Craig) (Entered: 12/02/2005)
993 ORDER denying 935 Motion in Limine to exclude testimony of Carmen Brown and Robin Green by Judge Marsha J. Pechman.(DW) (Entered: 12/02/2005)
994 ORDER granting 938 Motion in Limine to bar Boeing from amending its pretrial statement to add witnesses and exhibits. by Judge Marsha J. Pechman.(DW) (Entered: 12/02/2005)
995 ORDER denying 928 Motion in Limine to bar Boeing from challenging its own promotion indicator by Judge Marsha J. Pechman.(DW) (Entered: 12/02/2005)
996 ORDER granting 937 Motion in Limine to exclude references to Beck v. Boeing gender class action and consent decree by Judge Marsha J. Pechman.(DW) (Entered: 12/02/2005)
997 ORDER granting 953 Motion in Limine to exclude reference to Nouri case. by Judge Marsha J. Pechman.(DW) (Entered: 12/02/2005)
998 ORDER denying 917 Motion in Limine to exclude testimony by Dr. Ward as to cohort analysis. by Judge Marsha J. Pechman.(DW) (Entered: 12/02/2005)
999 ORDER denying 924 Motion in Limine to bar Dr. Haworth from testifying about Dr. Ward's cohort analysis. by Judge Marsha J. Pechman.(DW) (Entered: 12/02/2005)

12/02/2005 12/02/2005 12/02/2005 12/02/2005 12/02/2005 12/02/2005 12/05/2005 12/05/2005 12/05/2005
12/06/2005
12/07/2005
12/07/2005 12/09/2005 12/12/2005

1000 ORDER denying 941 Motion in Limine to exclude compensation analyses and related materials. By Judge Marsha J. Pechman.(DW) (Entered: 12/02/2005)

1001 ORDER denying 929 Motion in Limine to exclude evidence on OFCCP compliance, negotiations, and settlement by Judge Marsha J. Pechman.(DW) (Entered: 12/02/2005)

1002 ORDER denying 919 Motion in Limine to exclude expert testimony of Shirley Wilcher by Judge Marsha J. Pechman.(DW) (Entered: 12/02/2005)

1003 ORDER granting 950 Motion in Limine to limit testimony of Boeing's expert Leonard J. Biermann by Judge Marsha J. Pechman.(DW) (Entered: 12/02/2005)

1004 ERRATA re 975 Pretrial Order PLAINTIFFS ADDENDUM TO AMENDED AGREED PRETRIAL ORDER by Plaintiff All Plaintiffs. (Attachments: # 1 Certificate of Service)(Spiegel, Craig) (Entered: 12/02/2005)

1006 AFFIDAVIT OF SERVICE OF SUBPOENA upon Jackie Roberts served on November 30, 2005, filed by Plaintiffs. (LT, ) (Entered: 12/05/2005)

1005 MINUTE ORDER by Judge Marsha J. Pechman. (RP, ) (Entered: 12/05/2005)

1007 COURT'S PRELIMINARY Jury Instructions (MD, ) (Entered: 12/06/2005)

1008

MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman − Dep Clerk: Eileen Scollard; Pla Counsel: Craig Spiegel, et al; Def Counsel: Michael Reiss, et al; CR: Donna Hunter/Laurene Kelly; Time of Hearing: 5.5 hours; 2nd Day Jury Trialheld on 12/5/05. Jury present. Opening statements. Pltfs. witnesses: Shirley Wilcher, Marcella Fleming−Reed. Exhibits admitted: 10, 29, 33, 38,169, 170. Jury Trial continued 12/6/05 at 9:00 a.m. before Hon. Marsha J. Pechman. (ES) (Entered: 12/06/2005)

1009

MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman − Dep Clerk: Eileen Scollard; Pla Counsel: Craig Spiegel, et al; Def Counsel: Michael Reiss, et al; CR: Laurene Kelly; Time of Hearing: 5.5 hours; 3rd Day Jury Trial held on 12/6/05. Pla witnesses: Larry McKean(by dep), James Dagnon(by dep), Robin Leedy, Cynthia Evans, Jeffrey Janders, Mary Baker.Exhibits admitted: 11, 16, 18, 36, 39, 44, 59, 166, 224, 227, 401. Trial to resume on 12/7/05 at 9:00 a.m.. (ES) Modified on 12/19/2005 (ES). (Entered: 12/07/2005)

1010

MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman − Dep Clerk: Eileen Scollard; Pla Counsel: Craig Spiegel, et al; Def Counsel: Michael Reiss, et al; CR: Laurene Kelly; Time of Hearing: 6.0; 4th Day Jury rial held on 12/7/05. Pla witnesses:Mary Baker, Kevin Bigelow, Kathleen Lundquist, Marcella Fleming−Reed, Carmen Brown. Exhibits admitted: 30, 57, 72, 93, 122, 229, 230, 234, 251, 447, 450, 457.Jury trial to resume on 12/12/05 at 9:00 a.m.. (ES) Modified on 12/7/2005 (ES). (Entered: 12/07/2005)

1011 TRANSCRIPT of Proceedings held on 12/5/05 Opening Statement before Judge Marsha J Pechman. Court Reporter: D Hunter. (SA, ) (Entered: 12/09/2005)

1012 NOTICE − Form to propose written questions to witnesses (MD, ) (Entered: 12/12/2005)

1013 STIPULATION STIPULATED FACTS by parties. (Williams, Nancy) (Entered: 12/12/2005)

12/12/2005
12/13/2005
12/13/2005 12/14/2005 12/14/2005
12/15/2005 12/15/2005 12/15/2005
12/16/2005 12/16/2005 12/19/2005 12/19/2005

1014

MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman − Dep Clerk: Eileen Scollard; Pla Counsel: Craig Spiegel, et al; Def Counsel: Michael Reiss, et al; CR: Joseph Roth; Time of Hearing: 6.0 hours; Jury Trial held on 12/12/05. Opening statements by counsel re expert testimony. Pla witnesses: Leonard Cupingood, Janice Fanning−Madden, Joan Haworth. Exhbts admitted: 128, 130, 392. Cont'd to 12/13/05. (ES) (Entered: 12/13/2005)

1016

MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman − Dep Clerk: Eileen Scollard; Pla Counsel: Craig Spiegel, et al; Def Counsel: Michael Reiss, et al; CR: Joseph Roth/Laurene Kelly; Time of Hearing: 6 hours; 6th Day Jury Trial held on 12/13/05. Testimony for plaintiffs resume. Pla Witnesses: Dr. Joan Howarth, Dr. Michael Ward, Dr. Janice Fanning Madden. Exhibitsadmitted: 389, 413, 171, 498, 423. Findings of Fact and Conclusions of Law on disparate impact to be submitted.(ES) (Entered: 12/14/2005)

1017 NOTICE − Form to propose written questions to witnesses dated 12/13/05 (MD, ) (Entered: 12/15/2005)

1015 Proposed Jury Instructions by Defendant Boeing Company Defendants' Submission Regarding Additional Jury Instructions (Reiss, Michael) (Entered: 12/14/2005)

1018

MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman − Dep Clerk: Eileen Scollard/David Ward; Pla Counsel: Craig Spiegel, et al; Def Counsel: Michael Reiss, et al; CR: Joseph Roth; Time of Hearing: 6.5 hrs.; 7th Day Jury Trial held on 12/14/05. Juror #2 is excused for health reasons. Pla Witnesses: Rhonda Capps, Robin Green, Mara Ferrari. 11:55 a.m.Pla rests. Deft Witnesses: B.V. McGrue, Darrin Toth, James Kokoczka, Doreen Ferguson (by deposition). Exhibits adm: 97, 228, 236, 245, 256, 263, 264, 360, 363, 364, 365, 367, 368, 369, 370, 371, 372, 373, 384, 385, 386, 413, 416, 417,471, 478. Testimony. 3:45 p.m. Jury excused. Counsel present argument on motions to dismiss. 4:40 p.m. Court denies deft's motion to disimiss disparate treatment claim and takes under advisement deft's motion to dismiss disparate impact claim. Trial cont'd to 12/15/05. (ES) (Entered: 12/15/2005)

1019 Proposed Jury Verdict Form by Defendant Boeing Company (Reiss, Michael) (Entered: 12/15/2005)

1020 MEMORANDUM re Requirement of Intent in Disparate Treatment Cases by Defendant Boeing Company. (Reiss, Michael) (Entered: 12/15/2005)

1021

MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman − Dep Clerk: Eileen Scollard; Pla Counsel: Craig Spiegel, et al; Def Counsel: Michael Reiss, et al; CR: Joseph Roth; Time of Hearing: 6 hrs; 8th Day Jury Trial held on 12/15/05. Def testimony resumes. Def witnesses:Sue Webb Beyer, Julie Ann Turnell, Cyndee Evans. Exhibits admitted: 31, 67, 128 (tables only), 227, 241, 242, 418, 420, 421, 429, 435. Jury trial to resume on12/19/05 at 8:30 a.m.. (ES) (Entered: 12/16/2005)

1022 BRIEF Regarding Elements of a Prima Facie Disparate Impact Case by Defendant Boeing Company. (Hollingsworth, Jeffrey) (Entered: 12/16/2005)

1023 STIPULATION STIPULATED FACTS by parties. (Attachments: # 1 Certificate of Service)(Spiegel, Craig) (Entered: 12/16/2005)

1024 MEMORANDUM Regarding Intent Requirement In Disparate Treatment Claim by Plaintiff All Plaintiffs. (Attachments: # 1 Certificate of Service)(Spiegel, Craig) (Entered: 12/19/2005)

1028 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman − Dep Clerk: Eileen Scollard; Pla Counsel: Craig Spiegel, et

12/20/2005 12/20/2005 12/20/2005 12/20/2005 12/20/2005 12/20/2005 12/20/2005 12/20/2005 12/21/2005 12/22/2005
12/22/2005
01/17/2006 01/17/2006 01/24/2006 01/25/2006 02/03/2006

al; Def Counsel: Michael Reiss, et al; CR: Laurene Kelly; Time of Hearing: 6 hrs; 9th Day Jury Trial held on 12/19/05. 8:30 a.m. Counsel submit exceptions to the court's proposed jury instructions. Jury present. Def Witnesses: Kip Innes, Duane Wehking, Judith Clark. Exhibits: 133, 157, 438, 441−446, 461, 464. 12:00 p.m.. Both sides rest. 1:30 p.m. Court instructs the jury. Closing arguments. 3:45 p.m. Jury retires to begin deliberations. Hearing on def's motion re disparate impact is scheduled for 12/20/05 at 1:30 p.m.. Jury to continue deliberations on 12/20/05, 8:45 a.m.. (ES) (Entered: 12/20/2005)

1025 FINAL Jury Instructions − signed by Judge Marsha J Pechman(MD, ) (Entered: 12/20/2005)

1026 Proposed Jury Verdict Form (MD, ) (Entered: 12/20/2005)

1027 Proposed Findings of Fact by Defendant Boeing Company (Hollingsworth, Jeffrey) (Entered: 12/20/2005)

1029 Proposed Findings of Fact by Plaintiff All Plaintiffs (Attachments: # 1 Certificate of Service)(Spiegel, Craig) (Entered: 12/20/2005)

1032 ORDER RE: jury meals by Judge Marsha J. Pechman. (MD, ) (Entered: 12/22/2005)

1033 DEFENDANT'S Exhibit/Witness List (MD, ) (Entered: 12/22/2005)

1034 PLAINTIFFS' Exhibit/Witness List (MD, ) (Entered: 12/22/2005)

1035 SUPPLEMENTAL Exhibit List/Admitted Exhibits (MD, ) (Entered: 12/22/2005)

1036 JURY VERDICT (MD, ) (Entered: 12/22/2005)

1030

MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman − Dep Clerk: Eileen Scollard; Pla Counsel: Craig Spiegel, et al; Def Counsel: Michael Reiss, et al; CR: Laurene Kelly; Time of Hearing: 1 hr; 10th Day Jury Trial held on 12/20/05. 8:45 a.m. Jury present to resume deliberations. 1:30 p.m. Oral argument held on deft's motion re disparate impact.2:30 p.m. Court adjourns. (ES) Modified on 12/22/2005 (ES). (Entered: 12/22/2005)

1031

MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman − Dep Clerk: Eileen Scollard; Pla Counsel: Craig Spiegel, et al; Def Counsel: Michael Reiss, et al; CR: Laurene Kelly; Time of Hearing: 1 hr; 11th Day − Jury Trial completed on 12/21/05. Jury resumes deliberations. Jury Verdict: Jury finds in favor of defendant. Jury polled. Court to issue written decision on deft's motion re disparate impact the first or second week of January, 2006. (ES) Modified on 12/22/2005 (ES). (Entered: 12/22/2005)

1037 FINDINGS OF FACT AND CONCLUSIONS OF LAW re disparate impact claim; by Judge Marsha J. Pechman. (DW) (Entered: 01/17/2006)

1038 MINUTE ORDER Status Report due by 1/24/2006; by Judge Marsha J. Pechman. (DW) (Entered: 01/17/2006)

1039 JOINT STATUS REPORT filed by all parties.. (Hollingsworth, Jeffrey) (Entered: 01/24/2006)

1040 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Rebecca Shapiro Cohen for Defendant Boeing Company. (Reiss, Michael) (Entered: 01/25/2006)

1041 ORDER dismissing certain claims without prejudice and directing entry of judgment under Rule 54(b). Status Report due by 3/1/2006. By Judge Marsha J. Pechman. (DW) (Entered: 02/03/2006)

02/06/2006
02/27/2006 02/27/2006 03/01/2006 03/07/2006 03/07/2006 03/07/2006 03/07/2006 03/08/2006 03/08/2006 03/10/2006 03/10/2006
03/13/2006 04/04/2006

1042

JUDGMENT BY COURT/JURY VERDICT − IT IS ORDERED AND ADJUDGED: Pursuant to Rule 54(b), judgment is entered in favor of defendant as to all claims alleged by all members of the class certified in the Court's order of 1/21/05 (and amended on 1/28/05). The Court finds that there is no just reason to delay entry of judgment as to those claims. (MD, ) (Entered: 02/07/2006)

1043 MOTION FOR BILL OF COSTS AND NECESSARY DISBURSEMENTS by Defendant Boeing Company. Noting Date 3/10/2006. (Reiss, Michael) (Entered: 02/27/2006)

1044 DECLARATION of Michael Reiss filed by Defendant Boeing Company re 1043 MOTION FOR BILL OF COSTS AND NECESSARY DISBURSEMENTS (Reiss, Michael) (Entered: 02/27/2006)

1045 CERTIFICATE OF SERVICE by Defendant Boeing Company re 1043 MOTION FOR BILL OF COSTS AND NECESSARY DISBURSEMENTS, 1044 Declaration of Michael Reiss. (Reiss, Michael) (Entered: 03/01/2006)

1046 NOTICE OF APPEAL (06−35196) by Plaintiffs Doreen Ferguson, Mara Ferrari, Rhonda Capps, Beverly Trotter, Kevin Biglow. (Attachments: # 1 Certificate of Service)(Spiegel, Craig) Modified on 3/14/2006 to add Ninth Circuit case # (MKB). (Entered: 03/07/2006)

1047 Civil Appeals Docketing Statement, by Plaintiffs Doreen Ferguson, Mara Ferrari, Rhonda Capps, Beverly Trotter, Kevin Biglow, to be transmitted by Clerk to Circuit Court of Appeals. (Spiegel, Craig) (Entered: 03/07/2006)

Appeal Fees received: fee in the amount of $ 255 (receipt # 413989) re 1046 Notice of Appeal filed by Doreen Ferguson,, Mara Ferrari,, Rhonda Capps, Beverly Trotter,, Kevin Biglow, (LMK) (Entered: 03/08/2006)

1048 APPEAL NOTIFICATION packet sent to US Court of Appeals re 1046 Notice of Appeal (Attachments: # 1 Docket)(LMK) (Entered: 03/08/2006)

1049 JOINT STATUS REPORT filed by all parties.. (Reiss, Michael) (Entered: 03/08/2006)

1050 PRAECIPE to attach document (Attachments 1 and 2) Court Order and Spreadsheet re 1049 Joint Status Report by Defendant Boeing Company. (Attachments: # 1)(Reiss, Michael) (Entered: 03/08/2006)

USCA Case Number 06−35196 for 1046 Notice of Appeal filed by Doreen Ferguson, Mara Ferrari, Rhonda Capps, Beverly Trotter, Kevin Biglow. (MKB) (Entered: 03/14/2006)

1052

TIME SCHEDULE ORDER as to 1046 Notice of Appeal filed by Doreen Ferguson, Mara Ferrari, Rhonda Capps, Beverly Trotter, Kevin Biglow: Appellant shall notify Appellee regarding transcripts by 3/20/06; Appellee to notify Appellant regarding any additional transcripts by 3/28/06; Transcript designation due by 4/7/06; Transcript by court reporter due by 5/8/06; Appellants opening brief due by 6/26/06; Appellees response brief due by 7/24/06; Appellants optional reply brief due within 14 days of service of the response brief. (MKB) (Entered: 03/14/2006)

1051 ORDER granting 1043 Motion for Bill of Costs in the amount of $ 8,169.16 against Plaintiffs by Clerk U.S. District Court Bruce Rifkin.(Rifkin, Bruce) (Entered: 03/13/2006)

1054 TRANSCRIPT of proceedings filed for the following date(s): 12/13/05 before Judge Marsha J. Pechman, Court Reporter: Laurene Kelly. (Attachments: # 1 2nd part of transcript)(RS, ) (Entered: 04/07/2006)

04/07/2006 04/11/2006 04/11/2006 04/11/2006 04/11/2006 04/12/2006 04/21/2006
04/26/2006 05/11/2006 05/11/2006 05/18/2006 05/18/2006 05/26/2006 06/05/2006 06/05/2006

1053 TRANSCRIPT REQUEST by Plaintiff All Plaintiffs Requesting Attorney: Craig R. Spiegel. (Attachments: # 1 Certificate of Service)(Spiegel, Craig) (Entered: 04/07/2006)

1055 TRANSCRIPT of testimony of Drs. Cupingood, Madden &Haworth filed for the following date: Dec. 12, 2005 before Judge Marsha J. Pechman, (re 1046 Notice of Appeal) Court Reporter: Joseph F. Roth. (MKB) (Entered: 04/18/2006)

1056 TRANSCRIPT of testimony of Drs. Haworth &Ward filed for the following date: Dec. 13, 2005 (morning session) before Judge Marsha J. Pechman, (re 1046 Notice of Appeal) Court Reporter: Joseph F. Roth. (MKB) (Entered: 04/18/2006)

1057 TRANSCRIPT of testimony of Paul Wells filed for the following date: Dec. 15, 2005 before Judge Marsha J. Pechman, (re 1046 Notice of Appeal) Court Reporter: Joseph F. Roth. (MKB) (Entered: 04/18/2006)

1058 TRANSCRIPT of testimony of Judith Clark filed for the following date: Dec. 19, 2005 before Judge Marsha J. Pechman, (re 1046 Notice of Appeal) Court Reporter: Joseph F. Roth. (MKB) (Entered: 04/18/2006)

Set Hearing: Status Conference is scheduled for 4/21/06 at 9:00 a.m. in chambers before Hon. Marsha J. Pechman. (ES) (Entered: 04/12/2006)

1060

MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman − Dep Clerk: Eileen Scollard; Law Clerk: David Ward; Pla Counsel: Craig Spiegel, Ivy Arai, Oscar Despar, Bruce Harrell; Def Counsel: Michael Reiss, Jeff Hollingsworth, Boris Gaviria; CR: None; Time of Hearing: 45 mins; Status Conference held on 4/21/06. Discussion of original case: C98−430C.Counsel to file a motion to transfer that case to Judge Pechman, then file motionto consolidate/lift stay with Judge Pechman. (ES) (Entered: 04/27/2006)

1059 CERTIFICATE OF RECORD Transmitted to USCA (06−35196) re 1046 Notice of Appeal; No Transcripts Requested. (LMK) (Entered: 04/26/2006)

1061 MOTION for Judgment on Non−Salaried Class Claims by Defendant Boeing Company. Noting Date 6/2/2006. (Hollingsworth, Jeffrey) (Entered: 05/11/2006)

1062 PROPOSED ORDER (Unsigned) re 1061 MOTION for Judgment on Non−Salaried Class Claims (Hollingsworth, Jeffrey) (Entered: 05/11/2006)

1063 WITHDRAWAL of Motion by Defendant Boeing Company re 1061 MOTION for Judgment on Non−Salaried Class Claims filed by Boeing Company, (Letter to Judge Marsha Pechman) (Hollingsworth, Jeffrey) (Entered: 05/18/2006)

1064 MOTION to Dismiss Non−Salaried Class Claims by Defendant Boeing Company. Noting Date 6/9/2006. (Attachments: # 1 Proposed Order)(Hollingsworth, Jeffrey) (Entered: 05/18/2006)

1065 PRAECIPE to attach document re 1064 MOTION to Dismiss Non−Salaried Class Claims by Defendant Boeing Company. (Attachments: # 1)(Hollingsworth, Jeffrey) (Entered: 05/26/2006)

1066 STATEMENT of Non−Opposition to Motion to Dismiss Non−Salaried Class Claims by Plaintiff All Plaintiffs. (Attachments: # 1 Certificate of Service)(Spiegel, Craig) (Entered: 06/05/2006)

1067 STATEMENT of Non−Opposition to Motion to Dismiss Non−Salaried Class Claims by Plaintiff All Plaintiffs. (Attachments: # 1 Certificate of Service)(Spiegel, Craig) (Entered: 06/05/2006)

06/07/2006 06/15/2006 06/15/2006
10/31/2006 11/07/2006 12/01/2006 12/04/2006 12/22/2006
01/04/2007 01/04/2007 01/04/2007 01/05/2007 01/05/2007
01/05/2007 01/05/2007

1068 MOTION to Lift Stay and Consolidate Cases by Defendant Boeing Company. Noting Date 6/7/2006. (Attachments: # 1 Proposed Order)(Gaviria, Boris) (Entered: 06/07/2006)

1069 ORDER granting 1064 Defendants order dismissing non−salaried class claims with prejudice by Judge Marsha J. Pechman.(MD, ) (Entered: 06/15/2006)

1070

ORDER granting 1068 MOTION to Lift Stay and Consolidate Cases: The stay in Williams, et al. v. The Boeing Company, No. C98−430P is hereby lifted; and the case, Williams, et al v. The Boeing Company, No. C98−430P, is hereby CONSOLIDATED with the case Williams, et al. v. The Boeing Company, No. C98−761P, and its new case number will be C98−761P, by Judge Marsha J. Pechman. (LT, ) Modified text on 6/16/2006 (LT, ). (Entered: 06/16/2006)

1071 ORDER directing parties to submit Joint Status Report. Joint Status Report due by 12/1/2006; by Judge Marsha J. Pechman. (DW, ) (Entered: 10/31/2006)

CLERK'S RECORD ON APPEAL transmitted to US Court of Appeals re 1046 Notice of Appeal (Volume 1−13, Ex 1−14; rest of case is electronic). (LMK, ) (Entered: 11/07/2006)

1072 STATUS REPORT Joint by Defendant Boeing Company, Plaintiff All Plaintiffs. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Arai, Ivy) (Entered: 12/01/2006)

1073 SUPPLEMENT Submission to Joint Status Report by Defendant Boeing Company. (Reiss, Michael) (Entered: 12/04/2006)

1074

ORDER. Court directs parties to take actions regarding individual claims of named plaintiffs and to clarify representation of certain named plaintiffs. Court directs clerk to terminate certain parties and sets procedures for filing individual complaints. By Judge Marsha J. Pechman. (DW, ) (Entered: 12/22/2006)

1075 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Sheehan H Sullivan Weiss for Defendant Boeing Company. (Sullivan Weiss, Sheehan) (Entered: 01/04/2007)

1076 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Eric B Martin for Defendants Boeing Company, Boeing North American Inc, McDonnell Douglas Corporation. (Martin, Eric) (Entered: 01/04/2007)

1077 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Bruce A Harrell for Plaintiff Solomon Williams. (Harrell, Bruce) (Entered: 01/04/2007)

1078 MOTION AND PROPOSED ORDER to Dismiss Plaintiffs, Without Prejudiced (Unopposed Motion) by Defendant Boeing Company. Noting Date 1/5/2007. (Reiss, Michael) Modified text on 1/8/2007 (MD, ). (Entered: 01/05/2007)

1079

MOTION to Dismiss Party by Plaintiffs Doreen Ferguson, Mara Ferrari, Solomon Williams, Rhonda Capps, Charles Jones, David Roberts, Terry Fisher, Kevin Biglow, Deborah Woods, Michael Eckles. Noting Date 1/5/2007. (Attachments: # 1 Proposed Order)(Arai, Ivy) (Entered: 01/05/2007)

1080 CERTIFICATE OF SERVICE by Plaintiffs Doreen Ferguson, Mara Ferrari, Solomon Williams, Rhonda Capps, Charles Jones, David Roberts, Terry Fisher, Kevin Biglow, Deborah Woods, Michael Eckles re 1079 MOTION to Dismiss Party. (Arai, Ivy) (Entered: 01/05/2007)

1081 MOTION to Dismiss Party by Plaintiff Tim Jones. Noting Date 1/5/2007. (Attachments: # 1 Proposed Order)(Arai, Ivy) (Entered: 01/05/2007)

01/05/2007 01/05/2007 01/05/2007 01/08/2007 01/09/2007
01/09/2007
01/26/2007 01/26/2007 01/26/2007 01/26/2007 01/26/2007 02/02/2007 02/06/2007 02/20/2007

1082 CERTIFICATE OF SERVICE by Plaintiff Tim Jones re 1079 MOTION to Dismiss Party. (Arai, Ivy) (Entered: 01/05/2007)

1083 CERTIFICATE OF SERVICE by Plaintiffs Doreen Ferguson, Mara Ferrari, Solomon Williams, Rhonda Capps, Charles Jones, David Roberts, Terry Fisher, Kevin Biglow, Deborah Woods, Michael Eckles re 1079 MOTION to Dismiss Party. (Arai, Ivy) (Entered: 01/05/2007)

1084 CERTIFICATE OF SERVICE by Plaintiffs Doreen Ferguson, Mara Ferrari, Solomon Williams, Rhonda Capps, Charles Jones, David Roberts, Terry Fisher, Kevin Biglow, Deborah Woods, Michael Eckles re 1079 MOTION to Dismiss Party. (Arai, Ivy) (Entered: 01/05/2007)

1087 ORDER granting Plaintiff Tim Jones' 1081 Motion to Dismiss, without prejudice, by Judge Marsha J. Pechman.(LT, ) (Entered: 01/11/2007)

1085

ORDER GRANTING PLAINTIFFS' MOTION TO DISMISS WITHOUT PREJUDICE re 1079 MOTION to Dismiss Party filed by David Roberts, Charles Jones, Solomon Williams, Deborah Woods, Michael Eckles, Doreen Ferguson, Mara Ferrari, Rhonda Capps, Terry Fisher, Kevin Biglow, by Judge Marsha J. Pechman. (MD, ) (Entered: 01/10/2007)

1086

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS PLAINTIFFS WITHOUT PREJUDICE re 1078 MOTION to Dismiss Plaintiffs− Wm Bell, Cynthia Evans, Wendy Kelly, Shirley (Miller)King, Verlene Maholmes, Clarence Thompson and Beverly Trotter Without Prejudiced (Unopposed Motion) filed by Boeing Company, by Judge Marsha J. Pechman. (MD, ) (Entered: 01/10/2007)

1088 MOTION to Dismiss Party Plaintiffs' Unopposed Motion to Dismiss With Prejudice the Claims of Plaintiff Brawley by Plaintiff David Brawley. Noting Date 1/26/2007. (Attachments: # 1 Proposed Order)(Spiegel, Craig) (Entered: 01/26/2007)

1089 CERTIFICATE OF SERVICE by Plaintiff David Brawley re 1088 MOTION to Dismiss Party Plaintiffs' Unopposed Motion to Dismiss With Prejudice the Claims of Plaintiff Brawley. (Spiegel, Craig) (Entered: 01/26/2007)

1090 MOTION to Dismiss Party Plaintiffs' Motion to Dismiss Without Prejudice the Claims of Myron Knight by Plaintiff Myron Knight. Noting Date 2/16/2007. (Attachments: # 1 Proposed Order)(Spiegel, Craig) (Entered: 01/26/2007)

1091 CERTIFICATE OF SERVICE by Plaintiff Myron Knight re 1090 MOTION to Dismiss Party Plaintiffs' Motion to Dismiss Without Prejudice the Claims of Myron Knight. (Spiegel, Craig) (Entered: 01/26/2007)

1092 ORDER re 1088 MOTION to Dismiss Party Plaintiffs' Unopposed Motion to Dismiss With Prejudice the Claims of Plaintiff Brawley filed by David Brawley, by Judge Marsha J. Pechman. (MD, ) (Entered: 01/29/2007)

1093 RESPONSE, by Defendant Boeing Company, to 1090 MOTION to Dismiss Party Plaintiffs' Motion to Dismiss Without Prejudice the Claims of Myron Knight. (Reiss, Michael) (Entered: 02/02/2007)

1094 ORDER GRANTING re 1090 MOTION to Dismiss Party Plaintiffs' Motion to Dismiss Without Prejudice the Claims of Myron Knight without prejudice filed by Myron Knight, by Judge Marsha J. Pechman. (MD, ) (Entered: 02/06/2007)

1095 ORDER Granting motion to withdraw as counsel for pltf − Attorney Jean E Huffington and Wm T. McKay in case no. C98−430P. by Judge Marsha J. Pechman. (MD, ) (Entered: 02/21/2007)

02/23/2007 02/27/2007
02/27/2007
03/05/2007 03/06/2007 03/07/2007
03/07/2007
03/22/2007 03/28/2007 03/30/2007 04/04/2007 04/05/2007 04/11/2007

1096 ORDER to show cause why individual claims of remaining named plaintiffs should not be dismissed without prejudice; Show Cause Response due by 3/9/2007. by Judge Marsha J. Pechman. (DW, ) (Entered: 02/23/2007)

1097

NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Harish Bharti and Mary R Mann for Plaintiffs Eleanor Staton, Della Alexander, Martha Ybarra, Lynn Leufroy, Mary Byrd, Lucretia Smith, Sandra Jones, Billynda Anderson, Eleanor Staten, Kenneth Ponder, Sharon M Jenkins, Artie Johnson, Rhonda E Randle, Anetha Lewis, John D Britt, Barbara A Taylor, Jackie Robinson. (Mann, Mary) Modified on 2/27/2007 (JJT, ). Modified on 3/6/2007 − both counsel reinstated − termed in error(MD, ). (Entered: 02/27/2007)

1098

CERTIFICATE OF SERVICE by Plaintiffs Eleanor Staton, Della Alexander, Martha Ybarra, Lynn Leufroy, Mary Byrd, Lucretia Smith, Sandra Jones, Billynda Anderson, Eleanor Staten, Kenneth Ponder, Sharon M Jenkins, Artie Johnson, Rhonda E Randle, Anetha Lewis, John D Britt, Barbara A Taylor, Jackie Robinson re 1097 Notice of Withdrawal of Counsel. (Mann, Mary) (Entered: 02/27/2007)

1099 MINUTE ORDER striking 1097 notice of withdrawal of counsel by Judge Marsha J. Pechman. (DW, ) (Entered: 03/05/2007)

1100

MINUTE ORDER − M. Mann and Mr. Bharti have now been reinstated as counsel of record on the CM/ECF system, a copy of the Court's March 5, 2007 minute order is attached as "Appendix A" to this minute order re 1099 Minute Order by Judge Marsha J. Pechman. (MD, ) (Entered: 03/06/2007)

1101

MOTION to Withdraw as Attorney Mann and Hbarti by Plaintiffs Eleanor Staton, Jackie Robison, Della Alexander, Martha Ybarra, Lynn Leufroy, Mary Byrd, Lucretia Smith, Sandra Jones, Billynda Anderson, Eleanor Staten, Kenneth Ponder, Sharon M Jenkins, Artie Johnson, Rhonda E Randle, Anetha Lewis, John D Britt, Barbara A Taylor, Jackie Robinson. Noting Date 3/16/2007.(Mann, Mary) (Entered: 03/07/2007)

1102

DECLARATION re 1101 MOTION to Withdraw as Attorney Mann and Hbarti by Plaintiffs Eleanor Staton, Jackie Robison, Della Alexander, Martha Ybarra, Lynn Leufroy, Mary Byrd, Lucretia Smith, Sandra Jones, Billynda Anderson, Kenneth Ponder, Sharon M Jenkins, Artie Johnson, Rhonda E Randle, Anetha Lewis, John D Britt, Barbara A Taylor. (Mann, Mary) (Entered: 03/07/2007)

1103 ORDER dismissing individual claims of remaining plaintiffs without prejudice and directing Defendants to file motion for entry of final judgment; by Judge Marsha J. Pechman. (DW, ) (Entered: 03/22/2007)

1104 ORDER denying 1101 Motion to Withdraw as Attorney by Judge Marsha J. Pechman.(DW, ) (Entered: 03/28/2007)

1105 MOTION for Reconsideration and Modification of Court's Order of March 22, 2007 by Defendant Boeing Company. Noting Date 3/30/2007.(Reiss, Michael) (Entered: 03/30/2007)

1106 ORDER denying 1105 Motion for Reconsideration by Judge Marsha J. Pechman.(DW, ) (Entered: 04/04/2007)

1107 MINUTE ORDER extending date for filing motion for entry of final judgment to 4/12/2007; by Judge Marsha J. Pechman. (DW) (Entered: 04/05/2007)

1108 Proposed Order re MOTION for Final Judgment 1110 and Confirmation of Dismissal of Named Plaintiffs' Claims by Defendants Boeing Company, Boeing North American Inc. (Reiss, Michael) Modified on 4/12/2007 (ECS, ). (Entered: 04/11/2007)

04/11/2007
04/11/2007 04/12/2007 04/12/2007
04/12/2007
04/12/2007 04/12/2007 04/16/2007 05/04/2007 05/04/2007 06/05/2007 03/24/2008 03/27/2008

1109

E−Filing Error, Duplicate Entry to re−filed Motion at doc # 1110 ; MOTION for Judgment Boeing's Motion for Entry of Final Judgment and Confirmation of Dismissal of Named Plaintiffs' Claims; Exhibits Attached by Defendants Boeing Company, Boeing North American Inc. Noting Date 4/27/2007.(Reiss, Michael) Modified on 4/12/2007 (ECS, ). (Entered: 04/11/2007)

1110 MOTION for Final Judgment and Confirmation of Dismissal of Named Plaintiffs' Claims by Defendants Boeing Company, Boeing North American Inc. Noting Date 4/27/2007.(Reiss, Michael) Modified on 4/12/2007 (ECS, ). (Entered: 04/11/2007)

1111

PRAECIPE to attach document (Exhibits 1−3) re 1110 MOTION for Judgment Boeing's Motion for Entry of Final Judgment and Confirmation of Dismissal of Named Plaintiffs' Claims; Exhibits Attached by Defendants Boeing Company, Boeing North American Inc. (Reiss, Michael) (Entered: 04/12/2007)

NOTICE of Docket Text Modification re 1109 MOTION for Judgment Boeing's Motion for Entry of Final Judgment and Confirmation of Dismissal of Named Plaintiffs' Claims; Exhibits Attached, 1108 MOTION for Judgment Boeing's Motion for Entry of Final Judgment and Confirmation of Dismissal of Named Plaintiffs' Claims; Exhibits Attached : Corrected #1108 to denote the image is that of the Proposed order to Motion # 1110 ; Corrected #1109 to denote that is a duplicate motion to # 1110 ; removed two extra motions from the Court's calendar. (ECS, ) (Entered: 04/12/2007)

1112

DECLARATION of Mary Ruth Mann filed by Plaintiffs Della Alexander, Martha Ybarra, Lynn Leufroy, Mary Byrd, Sandra Jones, Billynda Anderson, Eleanor Staten, Kenneth Ponder, Sharon M Jenkins, Artie Johnson, Rhonda E Randle, Anetha Lewis, John D Britt, Barbara A Taylor, Jackie Robinson, Della Jameson re 1105 MOTION for Reconsideration and Modification of Court's Order of March 22, 2007 (Mann, Mary) (Entered: 04/12/2007)

1113

Amended MOTION for Judgment and Confirmation of Dismissal of Names Plaintififs' Claims by Defendant Boeing Company. (Attachments: # 1 Exhibit Exhibits 1−3# 2 Proposed Order Re: Entry of Final Judgment and Confirming Dismissal)Noting Date 4/27/2007.(Reiss, Michael) (Entered: 04/12/2007)

1114 MINUTE ORDER granting extension for Defendants to file proposed form of judgment by 4/16/2007 and providing that any amended motion for entry of final judgment must be filed by 4/12/2007; by Judge Marsha J. Pechman. (DW) (Entered: 04/12/2007)

1115 NOTICE Judgment in a Civil Case (Proposed) ; filed by Defendant Boeing Company. (Reiss, Michael) (Entered: 04/16/2007)

1116 ORDER granting 1113 Motion for Entry of Final Judgment and Confirmation of Dismissal of Named Plaintiffs' Claims; by Judge Marsha J. Pechman. (DW) (Entered: 05/04/2007)

1117 JUDGMENT BY COURT − The claims of the named plaintiffs in these consolidated cases have been fully and finally resolved.(MD, ) (Entered: 05/04/2007)

1118 NOTICE of Change of Address of Attorney Michael Reiss. Filed by Defendant Boeing Company. (Reiss, Michael) (Entered: 06/05/2007)

1119 MANDATE of USCA (06−35196) as to 1046 Notice of Appeal filed by Kevin Biglow, Beverly Trotter, Rhonda Capps, Mara Ferrari, Doreen Ferguson; The judgment of this Court, entered 02/27/08, takes effect this date. (LMK, ) (Entered: 03/25/2008)

Appeal Record Returned: (14 vol., 14 expando's) (SA, ) (Entered: 03/27/2008)

 
 General Docket United States Court of Appeals for the Ninth Circuit

Court of Appeals Docket #: 06-35196 Nature of Suit: 3442 Jobs Williams, et al v. The Boeing Company, et al Appeal From: U.S. District Court for Western Washington, Seattle Fee Status: Paid

Docketed: 03/08/2006 Termed: 02/27/2008

Case Type Information: 1) civil 2) private 3) null

Originating Court Information: District: 0981-2 : CV-98-00761-MJP Court Reporter: Laurene Kelly, Court Reporter Trial Judge: Marsha J. Pechman, District Judge Date Filed: 06/14/1998 Date Order/Judgment: 02/07/2006

Date NOA Filed: 03/08/2006

Prior Cases: 99-36086 Date Filed: 11/10/1999 Date Disposed: 11/26/2002 Disposition: 99-36086 Date Filed: 11/10/1999 Date Disposed: 04/29/2003 Disposition: Reversed, Remanded - Opinion

Current Cases: None
SOLOMON WILLIAMS Plaintiff,
MARA FERRARI Plaintiff - Appellant,
RHONDA CAPPS Plaintiff - Appellant,

Ivy D. Arai, Esquire, Attorney Direct: 206/623-7292 [COR LD Retained] Hagens Berman Sobol Shapiro LLP Ste 2900 1918 Eighth Ave. Seattle, WA 98101
Steve Berman, Attorney Direct: 206-623-7292 [COR LD NTC Retained] Hagens Berman Sobol Shapiro LLP Suite 3300 1918 Eighth Ave. Seattle, WA 98101
Craig R. Spiegel, Attorney Direct: 206-623-7292 [COR LD NTC Retained] Hagens Berman Sobol Shapiro LLP Suite 2900 1918 Eighth Ave. Seattle, WA 98101
Ivy D. Arai, Esquire, Attorney Direct: 206/623-7292 [COR LD Retained] (see above)

KEVIN BIGLOW Plaintiff - Appellant,
DOREEN FERGUSON Plaintiff - Appellant,

Steve Berman, Attorney Direct: 206-623-7292 [COR LD NTC Retained] (see above)
Craig R. Spiegel, Attorney Direct: 206-623-7292 [COR LD NTC Retained] (see above)
Ivy D. Arai, Esquire, Attorney Direct: 206/623-7292 [COR LD Retained] (see above)
Steve Berman, Attorney Direct: 206-623-7292 [COR LD NTC Retained] (see above)
Craig R. Spiegel, Attorney Direct: 206-623-7292 [COR LD NTC Retained] (see above)
Ivy D. Arai, Esquire, Attorney Direct: 206/623-7292 [COR LD Retained] (see above)
Steve Berman, Attorney Direct: 206-623-7292 [COR LD NTC Retained] (see above)
Craig R. Spiegel, Attorney Direct: 206-623-7292 [COR LD NTC Retained]

BEVERLY TROTTER Plaintiff - Appellant,
v. THE BOEING COMPANY
Defendant - Appellee,

(see above)
Ivy D. Arai, Esquire, Attorney Direct: 206/623-7292 [COR LD Retained] (see above)
Steve Berman, Attorney Direct: 206-623-7292 [COR LD NTC Retained] (see above)
Craig R. Spiegel, Attorney Direct: 206-623-7292 [COR LD NTC Retained] (see above)
Jeffrey A. Hollingsworth, Esquire, Attorney Direct: 206/359-8000 [COR LD NTC Retained] Perkins Coie LLP Suite 4800 1201 Third Avenue Seattle, WA 98101-3099
Michael Reiss, Esquire, Attorney Direct: 206-757-8130 [COR LD NTC Retained] Davis Wright Tremaine LLP 2200 1201 Third Avenue Seattle, WA 98101-3045
David C. Tarshes, Attorney Direct: 206-622-3150 [COR LD NTC Retained] Davis Wright Tremaine LLP Suite 2200

1201 Third Avenue Seattle, WA 98101-3045
Nancy Williams, Attorney Direct: 206-359-8473 [COR LD Retained] Perkins Coie LLP Suite 4800 1201 Third Avenue Seattle, WA 98101-3099

BOEING NORTH AMERICAN, INC., a Delaware corp. Jeffrey A. Hollingsworth, Esquire, Attorney

Defendant - Appellee,

Direct: 206/359-8000

[COR LD NTC Retained]

(see above)

Michael Reiss, Esquire, Attorney Direct: 206-757-8130 [COR LD NTC Retained] (see above)

David C. Tarshes, Attorney Direct: 206-622-3150 [COR LD NTC Retained] (see above)

Nancy Williams, Attorney Direct: 206-359-8473 [COR LD Retained] (see above)

MCDONNELL DOUGLAS CORPORATION Defendant - Appellee,

Jeffrey A. Hollingsworth, Esquire, Attorney Direct: 206/359-8000 [COR LD NTC Retained] (see above)
Michael Reiss, Esquire, Attorney Direct: 206-757-8130 [COR LD NTC Retained] (see above)

Nancy Williams, Attorney Direct: 206-359-8473 [COR LD Retained] (see above)

SOLOMON WILLIAMS, Plaintiff,
and MARA FERRARI; RHONDA CAPPS; KEVIN BIGLOW; DOREEN FERGUSON; BEVERLY TROTTER,
Plaintiffs - Appellants, v. THE BOEING COMPANY; BOEING NORTH AMERICAN, INC., a Delaware corp.; MCDONNELL DOUGLAS CORPORATION,
Defendants - Appellees.

03/08/2006
03/08/2006 03/08/2006

1 DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. CADS SENT (Y/N): N. setting schedule as follows: appellant's designation of RT is due 3/20/06,, ; appellee's designation of RT is due 3/28/06,, ; appellant shall order transcript by 4/7/06,, ; court reporter shall file transcript in DC by 5/8/06; certificate of record shall be filed by 5/15/06 ; appellant's opening brief is due 6/26/06,, ; appellees' brief is due 7/24/06,, ; appellants' reply brief is due w/in 14 days of svc of aple's brief. [06-35196] (KM)
2 Filed attorney for Appellant Civil Appeals Docketing Statement served on 3/7/06 (to CONFATT) [06-35196] [06-35196] (KM)
16 Prior case 99-36086 Rv/Rmd Opinion 4/29/03 dpl SST MSB ** TO ANY PANEL

03/09/2006
03/21/2006
06/20/2006 06/27/2006 07/14/2006 08/10/2006 08/16/2006 09/06/2006 09/19/2006 11/08/2006

PER MSB ** [06-35196] (MW)

3

Filed order CONFATT (LW) This case is under condsideration for inclusion in the mediation prgm. W/in 14 days of the date of this order, cnsl for all parties

are requested to inform the mediator of their clients' position. The existing

brfing sched remains in effect. [06-35196] (SB)

4

Filed order CONFATT ( CG) Case not selected for program. Counsel interested in obtaining settlement assistance or program information should contact

mediation office in Seattle. The brfing sched prev established by the court

remains in effect. [06-35196] (SB)

5

Filed notice of appearance dated 6/16/06 of Michael Reiss & David C. Tarshes for aples The Boeing Co, et al. [06-35196] (MF)

6 Filed original and 15 copies Appellants opening brief ( Informal: NO) 34 pages and five excerpts of record in 2 volumes; served on 6/26/06 [06-35196] (MF)

7

14 day oral extension by phone of time to file Appellee's brief. [06-35196] appellees' brief due 8/9/06,, ; appellants' reply brief due w/in 14 days of svc

of aple's brief. (KM)

8 Filed original and 15 copies appellee The Boeing Company, Boeing North, McDonnell Douglas's 61 pages brief, 5 suppl Exc. in 3 vols: ; served on 8/9/06 [06-35196] (GR)

11 14 day oral extension by phone of time to file Appellant's reply brief. [0635196] appellants' reply brief due 9/6/06,, ; (KM)

12

Filed original and 15 copies Appellants reply brief ( Informal: NO ) 29 pages & 5 copies of suppl excs in 1 vol; served on 9/6/06 with minor defcy: (Wrong

covers). Notified counsel. [06-35196] (MF)

14 Received Appellant Mara Ferrari satisfaction of (minor) brief deficiency. (Grey Covers) (RECORDS) [06-35196] (MF)

18 FILED CERTIFIED RECORD ON APPEAL IN 13 CLERKS RECORD, 14 EXPANDO FILES, AND 1 FOLDER OF MISC DOCUMENTS/ITEMS. [06-35196] (JR)

07/05/2007 07/27/2007 07/31/2007 08/09/2007 08/13/2007
11/01/2007 11/13/2007 11/15/2007 12/10/2007 12/11/2007 12/11/2007 12/11/2007 12/12/2007

19 Calendar check performed [06-35196] (XX)

20 Calendar materials being prepared. [06-35196] [06-35196] (XX)

21 CALENDARED: Seattle Oct 18 2007 9:00 a.m. Courtroom at Park Place, 4th Floor [06-35196] (TH)

22

Filed appellee The Boeing Company motion to continue hearing of case until November or December; served on 8/8/07 (PANEL) (RT)

25

Filed order (Deputy Clerk: jf) Aple's mtn for ext of argument date is GRANTED. This csse is hereby removed from the 10/18/07 calendar in Seattle

& shall be recalendared before the next available 3-judge panel in Seattle.

(PHONED/FAXED: 2:47) [06-35196] (MF)

26 Calendar check performed [06-35196] (XX)

27 Calendar materials being prepared. [06-35196] [06-35196] (XX)

28

CALENDARED: SEA Fri Jan 11, 2008 9:00 am Courtroom @ Park Place 21st Floor [06-35196] (XX)

30 Filed The Boeing Company additional citations, served on 12/7/07 PANEL [0635196] (GR)

32 Received Appellee excerpts of record in 1 volume (supplemental), lacks proof of service. PANEL [06-35196] (GR)

34

Filed The Boeing Company motion to supplement record on appeal served on 12/10/07 PANEL. (KKW)

35

Filed Appellee The Boeing Company's motion to dismiss the case . Served on 12/10/07 PANEL. [06-35196] (KKW)

36

Filed order (Deputy Clerk: jf) Plaintiff-aplts are directed to file a response to respondent's mtn to dismiss the appl for want of jurisdcition... The response

is due by 12/21/07 and is limited to no more than 10 pages. PHONED [06-

35196] (GR)

12/21/2007

37

Filed Appellant Mara Ferrari response not opposing appellee's motion to supplement record on appeal [34] served on 12/20/07 PANEL [06-35196]

(GR)

12/21/2007

38

Filed Appellant Mara Ferrari response to opposing dispositive motion to dismiss the case [35] [06-35196] 12/20/07 PANEL (GR)

12/21/2007

39

Filed Appellant Mara Ferrari et al's motion to suppl the excerpts of record or, in the alternative, request for judicial notice [06-35196] served on 12/20/07

[6381251] PANEL [06-35196] (GR)

12/21/2007

40 Received Appellant excerpts of record in 1 volumes; served on 12/20/07 PANEL [06-35196] (GR)

12/28/2007

42

Filed Appellee The Boeing Company response to supporting dispositive motion to dismiss the case [35] 12/27/07 PANEL (GR)

01/07/2008

44

Filed order ( Robert R. BEEZER, A. W. TASHIMA, Richard C. TALLMAN, ): Appellee's and aplt's unopposed mtns to supplement the excerpts of record

are granted. The addl supp excerpts of record 602-654 are part of the record

on appl and may be relied upon by the parties. [34] [39] FAXED PARTIES [06-

35196] (GR)

01/11/2008

45 ARGUED AND SUBMITTED TO Robert R. BEEZER, A. W. TASHIMA, Richard C. TALLMAN. [06-35196] (SB)

02/27/2008

49

FILED OPINION: AFFIRMED IN PART; DISMISSED IN PART AS MOOT. Each party shall bear its own costs. ( Terminated on the Merits after Oral Hearing;

Affirmed (in part) and Dismissed (in part) as moot; Written, Signed,

Published. Robert R. BEEZER; A. W. TASHIMA; Richard C. TALLMAN, author. )

FILED AND ENTERED JUDGMENT. [06-35196] (GR)

03/20/2008

50 MANDATE ISSUED. RRB, AWT and RCT (LC)

2 pg, 28.31 KB

 
 Volume 1 of 2
FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

ELEANOR STATON; BEVERLY



TROTTER; KEVIN BIGLOW,

Plaintiffs-Appellants,

SOLOMON WILLIAMS; SHIRLEY

MILLER; DEBORAH WOODS; WENDY

KELLY; MYRON KNIGHT; MICHAEL

ECKLES; DONALD BALLARD;

WILLIAM BELL, CLARENCE

THOMPSON; DOREEN FERGUSON;

CYNTHIA EVANS; WILLIE WILSON;

MARY DEAN; BRIAN TODD; TIM

JONES; DAVID BRAWLEY; MARA

FERRARI; RHONDA CAPPS; CHARLES

JONES; DAVID ROBERTS; VERLENE MAHOLMES; TERRY FISHER; CAROL



CALENDER; EVALEAN MOORE; RALPH

WILSON; RONNIE MITCHELL;

THEODESHIA KNAULS; MICHAEL

MARION,

Plaintiffs-Appellees,

NADINE MCCLAM-BROWN; CARLA

ABRAHAM; BERTHA ALEXANDER;

SHIRLEY ALLEN; BILLYNDA E.

ANDERSON; LAWRENCE ANDREWS;

DOROTHY J. AYERS; AVIS M.

BANKS; JIMMIE L. BANKS; JOYCE A.

BATES; RAY A. BATES; IDA M.

BATTLES;



No. 99-36086
D.C. No. CV-98-00761-JCC
OPINION

1

2

STATON v. BOEING

 MARSHALL BATTLES, SR.; TERRI M.

BEAN; ALFRED BEASLEY; VIVIAN

JEAN BELL; MARCIA L. BENFORD;

ROSIE J. BLACK; ADRIENNE BLAND;

THERESA BOZEMAN; BYRON

BRECKENRIDGE; JOHN BRIDGEWATER;

MACEO E. BRIDGEWATER; ANNIE

BROOKS; JOHNNIE PAUL BROOKS;

RONNIE BROWN; SIMON BROWN, JR.;

MARK A. BUFFORD; WILLIAM

BUMPERS; WILBERT G. BURGESS,

SR.; HENRY F. BUTLER; SOLOMAN

C. BUTTS; ELLIS CAMERON; HARRY

CARLIS; TEVIS CARPENTER; FORD

CARR; TAMU CHANDLER; BETTY

CHILDERS; MICHAEL CHILDERS;

RONALD CLARKE; MELCHESTER CLEMONS; GUNICE COLVIN; KENT



COPRIDGE; PAUL L. COSTON, JR.;

DEBRA F COULTER; CEPHAS L.

CURTIS; ANGELA C. CRAVENS;

JAMES CRUMP; PAULINE CRUMP;

TRACY CUNNINGHAM; GILBERT O.

DACE; CLARENCE DANCER; CHARLES

DANIELS; PATRICIA DAVIS; SAM

DAVIS; CHARLES L. DAVISON;

HELEN MARIE DEAN; EVONNE W.

DOGAN; JAMES E. DONALDSON;

TONIA DOWELL; ALICE DUNBAR;

ALLEN DUNBAR; THROMA ANN

DYAS; TERRY EDWARDS; BELINDA

ELLIS; BEZLEY ELLISON; JOSEPH

ELMORE; ABIODUN FANIMOKUN;

 SHARON FANTROY; ARCHIE FIELDS;

STATON v. BOEING

3

 HICKS FRANK; SHERLINE FRANKLIN;
ALLEN W. FRAZIER; MOSES E. GREASHAM; FREDDIE L. GRISBY; KEVIN C. GUICE; RODERICK W. GUICE; ROY E. HALL; CHARLES H. HARDEN; DENNIS HARRIS; DOROTHY HARRIS; LEON HARRIS; ROBERT L. HARRIS; WYLO HARVEY; ROSEMARIE W. HAUCK; ERIC D. HAYDEN; FREDRICK HIGHTOWER, JR.; CHARLES H. HILL; LARRY HOLLINS; THEODORE HOLT; DELORES HOOD; KAY M. HORTON; VERNA J. HOUSTON; PHILLIP BRUCE HUTCHINS; HATTIE L. IRVING; DELLA M. JAMISON; JOHNNIE L. JEFFERSON;
 REGINALD P. JENKINS; CONSTANCE
JOHNSON; DARLA JOHNSON; HERBERT G. JOHNSON; JAMES JOHNSON; KENNETH JOHNSON; SHARON E. JOHNSON; LECESTER JONES; PHYLLIS J. JONES; BROOKS S. KIMBROUGH; CLAUDETTE LAWSON; DORIS LENOX; LYNN B. LEUFROY; WALTER G. LEWELLEN; FREDERICK LIPSEY; HERBERT E. LOGAN, JR.; VIRGINIA G. LOGAN; PRESLEY T. LORANCE; ANTHONY L. LUCAS; WAYMOND MACONE; SELICIA MALLORY; MARK D. MATTHEWS; RAINARD C. MAYHEW; LARRY D. MCINTOSH; ALBERTO A. MCMILLER; HELEN D. MEDCAFE; GERALDINE MOORE;
 TENNIE MOORE; WADE MOORE, JR.;

4

STATON v. BOEING

STEPHEN R. MUNDINE; KATHERINE



NEAL; ARTHUR NEWTON;

JACQUELINE OSBORNE; LINDA M.

OUIDS; ERICKA L. OWENS; LEE E.

OWENS, JR.; LEROY PARKER; C.

EUGENE PASCHAL; SANDRA L.

PAYNE; STACY PAYNE; MARGARET

PEACH; ROBERT J. PEARSON;

DOUGLAS PEGUES; HERMAN L.

POOLE; ISAAC M. PORTER, JR.;

RHONDA RANDLE; JAMES RANSON,

SR.; ETHA REAGANS; RANCE H.

REED, JR.; TRESSA REED; BRENDA J.

RICHARDSON; CYNTHIA RIDGE;

 BETTIE RIDLEY; MELVIN L. RIDLEY;
JACKIE ROBINSON; ROBERT L.

ROBINSON II; LES L. ROGERS; FRED

ROSEBOROUGH; T.D. SANDERS;

DONNA N. SCOTT; HUEY L. SCOTT;

VINCE E. SEYMORE; MAURY J.

SHAW; WILLIAM L. SIMS; DAVID E.

SINGLETON; DAVID SKILLMAN; CLEO

P. SMITH; JOHN SMITH, JR.;

LUCRETIA SMITH; DAVID A.

STALLWORTH; MICHAEL STEVENS;

OCTAUIA STEVENS; CARL STOVALL;

JOYCE SULLIVAN; IDELLA TEAGUE;

ALPHONSO E. THOMPSON; ANTHONY

THOMPSON; DONNA THOMPSON; JOHN

F. THOMPSON; TYWANNA F.

THOMPSON; W.R. THOMPSON;



STATON v. BOEING

5

BENJAMIN F. TILLMAN; DAVID



TILLMAN; SHOMIDE TOKUNBO; ANITA

TRUITT; MICHAEL TURNER; ALAN

LADD TYSON; RACHEL FRAZIER-

VANN; JAMES L. WALKER; AARON

WASHINGTON; CECIL R.

WASHINGTON; ERIC C. WATERS;

CHARLES E. WEBB; SHANNON J.

WELDON; ROZELL WHEATON;

LEONARDO R. WHITE; ERNEST M.

WHITAKER; BOBBY L. WILLIAMS;

DARRYL WILLIAMS; DARYL D.

WILLIAMS; GLEN D. WILLIAMS, SR.;

KENNETH WAYNE WILLIAMS; LORRY

 WILLIAMS; SYLVESTER WILLIAMS, II;
WILBERT WILLIAMS; PATRICIA

WILSON; ALFRED M. WOODS;

MARTHA YBARRA; JACQUELYN L.

ZEIGLER,

Appellants,

v.

BOEING COMPANY, Defendant-Appellee,

and

BOEING NORTH AMERICAN, INC., a Delaware Corp; MCDONNELL DOUGLAS CORPORATION, a Maryland Corporation,
 Defendants.

Appeal from the United States District Court for the Western District of Washington
John C. Coughenour, District Judge, Presiding

6

STATON v. BOEING

Argued and Submitted May 9, 2001—Seattle, Washington

Filed November 26, 2002

Before: Donald P. Lay,* Stephen S. Trott and Marsha S. Berzon, Circuit Judges.

Opinion by Judge Berzon; Dissent by Judge Trott

*The Honorable Donald P. Lay, Senior Circuit Judge for the Eighth Circuit, sitting by designation.

10

STATON v. BOEING

COUNSEL
Alan B. Epstein, Spector Gadon & Rosen, P.C., Philadelphia, Pennsylvania, for the plaintiffs-objectors-appellants.
Bruce A. Harrell and Oscar E. Desper III, Harrell, Desper, Connell & Roesch, Seattle, Washington, and Charles K. Wiggins, Bainbridge, Washington, for the plaintiffs-appellees.
C. Geoffrey Weirich and Maureen E. O’Neill, Paul, Hastings, Janofsky & Walker LLP, Atlanta, Georgia, for the defendants-appellees.

OPINION
BERZON, Circuit Judge:
This case involves a consent decree in an employment discrimination class lawsuit. The action was brought in 1998 by a class of approximately 15,000 African-American employees

STATON v. BOEING

11

of the Boeing Company (“Boeing” or “the Company”) against the Company. The decree requires Boeing to pay $7.3 million in monetary relief to the class, less reversions and an opt-out credit,1 and releases Boeing from race discrimination-related and other claims. It further provides for certain injunctive relief, although much of this relief appears to be largely precatory in nature. Finally, the decree awards to the lawyers for the class (“class counsel”) $4.05 million in attorneys’ fees.2

A group of class members objected to the proposed consent decree, arguing that the class fails to meet the certification requirements of Fed. R. Civ. P. 23(a) (“Rule 23(a)”) for class actions and that the settlement contained in the decree is unfair, inadequate and unreasonable under Fed. R. Civ. P. 23(e) (“Rule 23(e)”). The district court approved the decree despite the objections, and the objectors appealed to this court. After oral argument, we requested supplemental briefs from the parties concerning the attorneys’ fees issues.

We hold that the district court acted within its discretion in certifying the case as a class action pursuant to Rule 23(a). We agree with the objectors, however, that the district court should not have approved the settlement agreement under Rule 23(e), because of several considerations relating to the award of attorneys’ fees and because of the structure of the damages payments established by the decree.

The parties negotiated the amount of attorneys’ fees as part of the settlement between the class and the Company. They included as a term of the proposed decree the amount of attorneys’ fees that class counsel would receive. The action falls under the terms of two fee-shifting statutes. By negotiating fees as an integral part of the settlement rather than applying

1After applying the reversion and opt-out provisions, the damages awarded by the decree amount to approximately $6.5 million.
2This amount includes $3.85 million in fees and costs to class counsel and $200,000 to objectors’ counsel.

12

STATON v. BOEING

to the district court to award fees from the fund created, Boeing and class counsel employed a procedure permissible if fees can be justified as statutory fees payable by the defendant.

Boeing and class counsel did not, however, seek to justify the attorneys’ fees on this basis but instead made a hybrid argument: They maintained that the award is an appropriate percentage of a putative “common fund” created by the decree even though common funds, as opposed to statutory fee-shifting agreements, usually do not isolate attorneys’ fees from the class award before an application is made to the court. The district court approved the fee on that common fund basis.

The incorporation of an amount of fees calculated as if there were a common fund as an integral part of the settlement agreement allows too much leeway for lawyers representing a class to spurn a fair, adequate and reasonable settlement for their clients in favor of inflated attorneys’ fees. We hold, therefore, that the parties to a class action may not include in a settlement agreement an amount of attorneys’ fees measured as a percentage of an actual or putative common fund created for the benefit of the class. Instead, in order to obtain fees justified on a common fund basis, the class’s lawyers must ordinarily petition the court for an award of fees, separate from and subsequent to settlement.

In order to assess the reasonableness of the attorneys’ fees awarded by the decree, the district court compared the amount of the fees to the amount of the putative common fund and determined what percentage of this fund the fee amount constituted. This comparison is a permissible procedure when a court is determining the reasonableness of fees taken from a genuine common fund. In conducting the comparison, however, the district court included in the value of the putative common fund the inexact and easily manipulable value of injunctive relief. Such relief should generally be excluded

STATON v. BOEING

13

from the value of a common fund when calculating the appropriate attorneys’ fee award, although the fact that counsel obtained injunctive relief in addition to monetary relief for their clients is a relevant circumstance to consider in determining what percentage of the fund is reasonable as fees. We hold further, therefore, that parties may not include an estimated value of injunctive relief in the amount of an actual or putative common fund for purposes of determining an award of attorneys’ fees.

Finally, the decree sets up a two-tiered structure for the distribution of monetary damages, awarding each class representative and certain other identified class members an amount of damages on average sixteen times greater than the amount each unnamed class member would receive. At least one person not a member of the class was provided a damages award. The record before us does not reveal sufficient justification either for the large differential in the amounts of damage awards or for the payment of damages to a nonmember of the class. On this ground as well, the district court abused its discretion in approving the settlement.

I. BACKGROUND

A. Lawsuit Filed and Settled

In September 1997, a group of African-American employees of the Company who believed that they were victims of race discrimination by Boeing consulted class counsel. Prior to the filing of this lawsuit, forty-three African-American Boeing employees filed a lawsuit in March 1998 in federal court in Seattle, Washington, alleging individual claims of race discrimination in violation of 42 U.S.C. § 1981 and the state anti-discrimination law, Wash. Rev. Code § 49.60 et seq. (the “Seattle individual action”). Several months later, in June 1998, sixteen Boeing employees, including twelve plaintiffs from the Seattle individual action, filed this class action in the same court. The employees again alleged violations of § 1981

14

STATON v. BOEING

and the state anti-discrimination law but sought to represent both themselves and other similarly-situated AfricanAmerican Boeing employees. The action alleged that Boeing’s promotion, compensation, and career development decisions were systematically discriminatory and that Boeing created and permitted a racially hostile work environment.

The plaintiffs amended their complaint on November 4, 1998. In the amended complaint thirty-two named plaintiffs seek to represent all African-American Boeing employees. The amended complaint alleges violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as well as violations of § 1981; it omits the state anti-discrimination claim but includes other state tort and contract causes of action. The named plaintiffs and over two hundred other Boeing employees each signed retainer agreements with class counsel. They agreed to pay class counsel an initial fee of $300 and to follow that payment with monthly payments of $200 each; the record contains several letters from class counsel to these individuals urging that the payments be brought up to date. Approximately $150,000 was raised in this manner.

Meanwhile, in July 1998, seven named plaintiffs filed a similar class action against Boeing in Philadelphia (the “Philadelphia class action”). The plaintiffs in this case moved in October 1998 to consolidate the two actions.

Soon thereafter, in early November, Boeing filed a motion to dismiss plaintiffs’ class claims. Also in November, class counsel and Boeing began settlement negotiations. Class counsel had met with numerous African-American Boeing employees before filing suit but almost no formal discovery had taken place by November. At the beginning of December, class counsel indicated frustration to their clients about the Company’s lack of responsiveness, characterizing “much of what Boeing has provided thus far as ‘junk,’ ” and adding that “Boeing has been unwilling to provide us with numerous doc-

STATON v. BOEING

15

uments we believe are pertinent to proving Boeing’s unlawful treatment of African Americans.” The negotiations nonetheless proceeded rapidly for such a large class action at this early stage of litigation, with the result that, in January 1999, Boeing and class counsel announced that they had agreed to settle the lawsuit. The parties filed motions in district court for class certification and for preliminary approval of a consent decree.

On January 25, 1999, the district court provisionally certified the class and preliminarily approved the consent decree. The preliminary approval order required the Company to provide approved notice of the proposed decree to class members through newspaper publication, distribution using the Company’s payroll system for present employees, and first-class mailings to former employees. Two distributions of the notices were ultimately required because the first notices published and mailed were improper and had to be corrected. The notices explained that Boeing would pay the attorneys’ fees and costs and reported the total sum of money Boeing would pay under the decree, the amount to be paid for monetary awards to members of the class, and the amount ascribed to injunctive relief. Neither version expressly identified the amount of attorneys’ fees provided in the proposed decree.

B. Proposed Consent Decree

The proposed consent decree purports to resolve this case, the Seattle individual action, and the Philadelphia class action. The decree releases Boeing from liability for claims brought by any of the Company’s African-American employees in exchange for certain monetary and injunctive relief. In particular, Boeing is released by all class members from all existing claims for race discrimination (under any of the various discrimination laws) and for “negligent misrepresentation, fraud, detrimental reliance, promissory estoppel, or breach of contract,” without regard to whether such claims are in any way related to the alleged race discrimination. The period covered

16

STATON v. BOEING

by the release is set according to the statute of limitations period of the state in which a class member resides and extends until the preliminary approval date of the decree. As a result, any claims arising before January 25, 1999 (the preliminary approval date) of the types covered by the decree and timely under the relevant state statute of limitations are barred.

The decree goes on to certify a settlement class pursuant to Fed. R. Civ. P. 23(b)(2) for purposes of equitable relief. That class consists of all African-Americans employed by Boeing from the beginning of the applicable limitations periods until the expiration of the decree (including new employees hired after the preliminary approval date of the decree). No opt-outs are allowed from the equitable relief class. The effect of this provision may be that no African-American employed by Boeing during the pertinent period, including new hires, can obtain any injunctive relief — reinstatement, promotion, or change in working conditions, for example — even if he or she opts out of the class for purposes of monetary relief and proves race discrimination in a separate action.3

For purposes of monetary relief, the decree approves a Settlement Class pursuant to Fed. R. Civ. P. 23(b)(3), consisting of African-American Boeing employees employed from the beginning of the applicable limitations periods until the preliminary approval date of the decree, and allows members of that class to opt out of the monetary relief provisions. By the cut-off date of April 30, 1999, about 500 class members had opted out, including six named plaintiffs.

The class receives a total monetary award of $7.3 million. Out of the approximately 15,000-member class, a group of

3It is possible that new hires are not so barred. The decree provides, in a separate provision, that nothing in the decree “bars any claims of members of the Settlement Class . . . based on or arising out of events occurring after the Preliminary Approval date.”

STATON v. BOEING

17

264 individuals4 — less than two percent of the class — made up of the named plaintiffs and other class members identified by class counsel as having actively participated in the litigation (together, the “individually identified recipients” or “IIRs”) is to receive $3.77 million, more than half the monetary award. The $3.77 million will be distributed among the IIRs in amounts established by class counsel, who credit the assistance of an independent claims adjuster for consultation on many, but not all, of the claims. There is ample evidence in the record that before retaining this claims adjuster class counsel extensively discussed specific award amounts with some IIRs. Moreover, the record indicates that class counsel made the final decisions concerning many of these designated payments.

The individual awards for the IIRs range from $5,000 to $50,000, with most of the class representatives receiving higher awards than the other IIRs, and average approximately $16,500. Based on our examination of records relating to the Wichita-based IIRs, the individuals singled out for IIR settlement payments are for the most part the same people who signed individual retainers with class counsel that obligated them to pay monthly fees.

The remaining $3.53 million of monetary relief is to be distributed to the rest of the class (the “unnamed class members”). To receive an award, unnamed class members must submit a claim form to an independent claims arbitrator (hired by class counsel and approved by the district court), who will verify the validity of the claims against Boeing’s records and designate awards according to a detailed point system laid out in the decree and applicable only to the unnamed class members. Some 3,400 class members filed claims, so the average payment each unnamed class member would receive is approximately $1,000.

4After opt-outs this group was reduced to 237 persons.

18

STATON v. BOEING

Boeing also agreed to pay $3.75 million to $3.85 million to class counsel for fees and expenses, as follow:

— $3 million for attorneys’ fees and costs (the parties agreed that class counsel had incurred approximately $126,000 in costs as of the preliminary approval date);

— up to $100,000 for explaining the decree to class members;5 and

— $750,000 for monitoring, administering, implementing, and defending the decree.

The decree also grants $200,000 to objectors’ counsel for their role in representing the putative class in the Philadelphia class action.

Finally, within three years of receiving final judicial approval of the decree, Boeing must spend an additional $3.65 million on expenses related to the approval and implementation of the decree. This $3.65 million would go toward the cost of providing notice to class members of the proposed settlement and toward the injunctive relief provided for in the decree, discussed below. The decree further provides that:

Such credited expenditures shall also include money spent by Boeing on diversity training and other programs designed to improve the cooperation between members of Boeing’s diverse workforce, to facilitate the advancement of African-Americans into firstlevel and higher-level management positions at Boeing, to prevent and/or resolve racial harassment concerns among the workforce, and/or to otherwise

5The full $100,000 has already been paid to class counsel, by order of the district court.

STATON v. BOEING

19

advance equal employment opportunity for AfricanAmerican employees of Boeing.

Nothing in the decree requires that the credited amount be in addition to any amount of money Boeing was already planning to spend on such matters. The timing of such expenditures is within Boeing’s discretion, although the parties expressed the expectation that half the funds would be spent between the preliminary approval date and the first anniversary of the final approval.

The decree’s injunctive provisions are to be in effect for the three years following final judicial approval of the decree. The injunctive relief provided for in the decree is as follows:

(1) Boeing will not discriminate based on race or retaliate against employees for opposing race discrimination or participating in efforts to eradicate it. These general provisions mirror statutory prohibitions. However, “Court enforcement of this Decree shall not be utilized as a method for class members to litigate entitlement to individual relief for claims of alleged Race Discrimination,” and individual complaints of race discrimination “shall not be considered to raise an issue of compliance or non-compliance with this decree.”

(2) Boeing will meet annually with a three-person advisory committee chosen from among the class members to discuss “Settlement Class members’ viewpoints and concerns.” The members of the committee will bear their own expenses for attending the meetings.

(3) Boeing will hire one or more consultants “to assist it in developing and assessing the success of alternative and/or supplemental human

20

STATON v. BOEING

resources systems designed to accomplish the objectives in this Section [describing the injunctive relief] of the Decree.” The consultant is to be chosen by Boeing and class counsel.6 The consultant is to investigate the degree to which the decree successfully addresses various of the class members’ concerns and to report back to Boeing and class counsel. Nothing in the decree requires Boeing to take any action in response to these reports or otherwise to take any action suggested by the consultant.

(4) Boeing — unilaterally — will develop and implement systems for providing information to hourly employees about the Company’s promotion systems and will develop and “pilot” a program designed to enable hourly employees to learn who received a particular promotion. Boeing is required to meet and confer with class counsel about the effectiveness of these programs once implemented but is not required to adopt any suggestions class counsel make or, with regard to the “pilot” promotion information program, to do anything more than “determine the feasibility of implementing that program, or comparable programs” throughout the Company.7

6The decree appears to provide — but is not lucid in this respect — that Boeing is to designate a group of three nominees from which the consultant will be selected, taking into consideration nominees proposed by plaintiffs.
7If Boeing decides that there are “significant impediments to implementing . . . programs” providing information about who received a particular promotion, Boeing is to “meet and confer with Class Counsel regarding alternative approaches.” Again, there is no requirement that Boeing actually implement any such alternative approaches.

STATON v. BOEING

21

(5) Similarly, Boeing will develop a system whereby qualified but unsuccessful candidates for discretionary promotions will receive feedback and be directed to training or other steps that would make the candidates more competitive. Class counsel are to “monitor” this process, with no provision for any dispute resolution mechanism should class counsel conclude that the system is inadequate or ineffective.

(6) With regard to filling opportunities for temporary promotions (useful in providing experience relevant to desirable positions), Boeing “shall identify informal systems” to permit candidates to know about and be considered for such opportunities, and shall “meet and confer” with class counsel regarding such informal systems and related complaints. There is no requirement that Boeing change its behavior in response to any suggestions or objections by class counsel or any class member.

(7) Boeing “presently plans” to expand its First Level Management Selection Process (FLMSP) to all its operations over the first two years of the decree. The FLMSP, thus far a pilot program at Heritage Boeing8 locations, attempts to create a standardized, fair process for selecting first-level managers. If “Boeing decides not to implement FLMSP in certain portions of the Company’s operations, Boeing will advise Class Counsel of the alternative selection methods which will be utilized in such operations,

8“Heritage Boeing” refers to the portion of the Company that existed before its purchase of the McDonnell Douglas Corporation and parts of Rockwell International.

22

STATON v. BOEING

and Class Counsel will provide feedback to Boeing regarding any systemic concerns about such alternative methods which they believe may impact upon the Settlement Class members.” Boeing can modify the FLMSP or eliminate it altogether; if it does so, Boeing must advise class counsel “and consider feedback provided by Class Counsel regarding such changes.”

(8) In 1998, in part in response to this litigation, Boeing developed new “Company-wide EEO Investigation Guidelines,” which, among other things, improve the time period for addressing internal discrimination complaints. Boeing will accept “feedback” from class counsel on the guidelines generally and on any modifications the company makes and “may” use the consultant’s services to refine these procedures.

(9) Boeing will continue the provisions of its existing harassment policy concerning race, or implement amended policies “reasonably designed to achieve the same effect” as the existing policy. Class counsel will have the opportunity to provide “feedback” on any modifications to that policy. However, “[i]ndividual [harassment] complaints shall not be considered to raise an issue of compliance or noncompliance with this Decree.”

C. Objections and Their Resolution

In April 1999, some members of the class filed objections to the proposed consent decree. The district court allowed limited discovery by the objectors, reviewed motions by all parties, and held two fairness hearings (but did not take any evidence at those hearings).

STATON v. BOEING

23

Among other matters, the objectors complained that class counsel could not have meaningfully assessed the value of class claims because of insufficient discovery; that the monetary relief was inadequate and unfairly distributed; that the injunctive relief would not result in concrete benefits to the class; that the court should not approve a single broad class, since the members of the putative class have divergent interests; that plaintiffs’ counsel are not fairly representing the plaintiffs because, inter alia, individual class members were promised monetary relief in order to secure their support of the decree; that the notice provided to class members was deficient; and that the fees awarded to class counsel are too high.

In partial response, most of the named plaintiffs and Boeing submitted summaries of allegedly comparable average monetary awards in other employment class actions; declarations of several experts, including the Reverend Jesse Jackson, praising the proposed decree (largely on the understanding that the decree would provide individual class members with free legal representation with regard to their employment issues at Boeing);9 and evidence that Boeing had vigorously contested race discrimination cases brought to trial against the Company, with victorious results that led class counsel, as stated in a declaration to the district court, to be “hard pressed to find anything that would support a nationwide victory over Boeing.”

In September 1999, the district court certified a settlement class and approved the decree. In its order approving the decree, the district court concluded that “there are important

9Similarly, the district court read the decree as providing that “free legal advice will be available to assist class members who feel that they have been discriminated against by the company.” In its memorandum in support of class certification, Boeing wrote that it “does not subscribe to as expansive an interpretation of Class Counsel’s post-decree monitoring responsibilities.”

24

STATON v. BOEING

advantages to class-wide resolution in this type of dispute.” The court cited Boeing’s past success in defending against individual claims of race discrimination; the court’s assessment of the effectiveness of the injunctive relief; and the cooperative nature of the settlement. It found no merit to the objectors’ qualms over the class’s certification. Plaintiffs’ “allegations clearly raise class-wide legal and factual issues sufficient to satisfy the [commonality] requirement.” Moreover, typicality was assured by the “broadly selected cross-section . . . of Boeing employees” serving as named plaintiffs. The court proceeded to certify the class.

Concerning the fairness of the decree, the district court emphasized “a strong judicial policy favoring settlement of class actions,” noting the conservation of resources for all concerned that leaves “more to devote to the problems raised by the claim.” The court approved the notice procedure followed by the parties and then conducted an analysis of the fairness, adequacy and reasonableness of the decree.

The “heart of the matter” according to the district court was the amount of the settlement; it reviewed the decree’s components and found that the objectors “have not presented any evidence to suggest that the amount of payments appear [sic] inadequate or unfair when compared with the other cases [cited by Boeing].” Further, the court decided that “the awards to the named parties are not excessive.” Without reviewing the proposed decree in any detail in its order, the district court concluded that the injunctive provisions are not “toothless,” but “present a novel and potentially effective response to the problem of race discrimination.” After rejecting categorically allegations of collusion between class counsel and Boeing, the court concluded, citing this court’s precedent, that “the mere possibility of a better settlement is not sufficient grounds for finding the agreement unfair.” As a final matter, the district court found the award of attorneys’ fees “to be reasonable given the nature of the case, the risks

STATON v. BOEING

25

to the plaintiffs’ counsel’s firm, and the amount of pre-filing and post-settlement work performed.”

II. DISCUSSION

This case presents difficult questions regarding the appropriate role of the courts in approving class action settlement decrees. The governing principles are clear, but their application is painstakingly fact-specific and hampered by the much greater knowledge of the parties as to the give-and-take of the bargaining process. Judicial review also takes place in the shadow of the reality that rejection of a settlement creates not only delay but also a state of uncertainty on all sides, with whatever gains were potentially achieved for the putative class put at risk. We are mindful of the value dialogue and cooperation have played in attempting to resolve this litigation and in aspiring to foster a spirit of future goodwill in the wake of an alleged systemic pattern of race discrimination.

To vindicate the settlement of such serious claims, however, judges have the responsibility of ensuring fairness to all members of the class presented for certification. Especially in the context of a case in which the parties reach a settlement agreement prior to class certification, courts must peruse the proposed compromise to ratify both the propriety of the certification and the fairness of the settlement. First, the district court must assess whether a class exists; “[s]uch 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.” Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 620 (1997). Second, the district court must carefully consider “whether a proposed settlement is fundamentally fair, adequate, and reasonable,” recognizing that “[i]t is the settlement taken as a whole, rather than the individual component parts, that must be examined for overall fairness. . . .” Hanlon v. Chrysler Corp. 150 F.3d 1011, 1026 (9th Cir. 1998) (citations omitted). When, as here, the parties have entered into a settle-

26

STATON v. BOEING

ment agreement before the district court certifies the class, reviewing courts “must pay ‘undiluted, even heightened, attention’ to class certification requirements. . . .” Id. at 1019 (quoting Amchem, 521 U.S. at 620). Moreover, concerns about the fairness of settlement agreements “warrant special attention when the record suggests that settlement is driven by fees; that is, when counsel receive a disproportionate distribution of the settlement. . . .” Id. at 1021.

In this case, the objectors contend that the lawsuit does not qualify for class action status under Rule 23(a). We review under the abuse of discretion standard a district court’s decision to certify a case as a class action. Armstrong v. Davis, 275 F.3d 849, 867 (9th Cir. 2001). Although we have some concerns, largely relating to litigation management, as to whether the case could be maintained as a class action if the litigation continues, the district court did not abuse its discretion in certifying the case for settlement purposes pursuant to Rule 23.

The objectors argue in the alternative that the district court should not have approved the settlement agreement under Rule 23(e). “We have repeatedly stated that the decision to approve or reject a settlement is committed to the sound discretion of the trial judge because he is exposed to the litigants, and their strategies, positions and proof.” Hanlon, 150 F.3d at 1026 (citation and internal quotation marks omitted). Nonetheless, the district court did in this case abuse that discretion. To repeat what this court had reason recently to state: “Although we are always cautious to reverse the . . . approval of a settlement agreement because of the time and effort dedicated by the parties and the district court, we are compelled to do so in this case because of the unjust terms of the decree.” Molski v. Gleich, 307 F.3d 1155, 1175 (9th Cir. 2002).

We address first the propriety of the class certification and then examine the district court’s decision to approve the settlement agreement.

STATON v. BOEING

27

A. Class Certification

Rule 23(a) establishes four prerequisites for class action litigation, which are: (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation. We examine each of these requirements in turn.

1. Numerosity

Rule 23(a)(1) requires that “the class is so numerous that joinder of all members is impracticable.” There is no dispute that the numerosity requirement is met in this case. The plaintiff class before us is approximately 15,000 in number.

2. Commonality

Rule 23(a)(2) requires that “there are questions of law or fact common to the class.” We stated in Hanlon that

Rule 23(a)(2) has been construed permissively. All questions of fact and law need not be common to satisfy the rule. The existence of shared legal issues with divergent factual predicates is sufficient, as is a common core of salient facts coupled with disparate legal remedies within the class.

150 F.3d at 1019.

The class in this case is broad and diverse. It encompasses some 15,000 employees, from a wide range of positions both salaried and hourly, who are employed at Boeing facilities located in 27 different states. Class counsel argue, and the district court found, that the large class is united by a complex of company-wide discriminatory practices against AfricanAmericans.

General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 157, 159 (1982), emphasizes that the fact “that racial discrim-

28

STATON v. BOEING

ination is by definition class discrimination,” cannot automatically convert a single allegation of race discrimination into “an across-the-board attack.” Though the commonality claim in this case is ambitious and therefore especially worthy of scrutiny, it is far from the theoretical extrapolation sought in Falcon. That case concerned only one named plaintiff who did not identify any other plaintiffs subjected to the treatment he claimed to have experienced.

By contrast, the record indicates that class counsel interviewed more than 1,300 Boeing employees from facilities across the country. Counsel have produced detailed documentation of discrimination experienced by more than 200 of these employees. Those named employees include salaried managers and hourly line-workers, union members and nonunion members, employees from all of Boeing’s major locations, and employees from two firms that Boeing recently acquired. Appellees also point to the results of an internal “survey of Boeing’s affirmative action issues,” distributed in an e-mail to Boeing senior management. The e-mail identified “racial bias” in the categories of hiring practices and promotion practices and “race issues” in the category of peer working environment as issues of concern at the Company.

In fact, the named plaintiffs and objectors share the contention that discriminatory practices at Boeing are widespread and entrenched. According to the district court, “both the supporters of the consent decree and the objectors spoke forcefully of institutional problems with race discrimination.” The court may not go so far, of course, as to judge the validity of these claims. “Although some inquiry into the substance of a case may be necessary to ascertain satisfaction of the commonality and typicality requirements of Rule 23(a), it is improper to advance a decision on the merits to the class certification stage.” Moore v. Hughes Helicopters, Inc., 708 F.2d 475, 480 (9th Cir. 1983), citing Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78 (1974). But the breadth and consistency

STATON v. BOEING

29

of class counsel’s initial evidence places the district court’s finding of commonality well within that court’s discretion.

Objectors also dispute the finding of commonality on three more specific grounds. First, objectors claim that common issues cannot link all African-American Boeing employees when two of Boeing’s subsidiaries are recent acquisitions. Boeing acquired the defense and space operations of Rockwell International in December 1996 (renaming them Boeing North America, hereinafter “BNA”), and the McDonnell Douglas Corporation (“MDC”) in August 1997. Employees from both these subsidiaries are among the class representatives. Their reported experiences are similar to the others’.

Boeing is responsible for the employment practices of all its sub-parts. The Company, for example, issued an “Equal Employment Opportunity” policy in July 1998, applicable to all Boeing organizations. This document stated that the “primary responsibility for implementing this policy rests with the senior management of the company.” Some of the class’s historical evidence from BNA and MDC employees may extend to before the mergers, but the kernel of the class complaint is that a complex of discriminatory practices pervades Boeing today and in the recent past. The fact of the mergers does not bar a finding of commonality.

Objectors also contest commonality on the ground that some class members were subject to collective bargaining agreements that laid out objective criteria for promotions. Objectors point to a comment in a footnote from the Falcon opinion:

Significant proof that an employer operated under a general policy of discrimination conceivably could justify a class of both applicants and employees if the discrimination manifested itself in hiring and promotion practices in the same general fashion, such as through entirely subjective decisionmaking

30

STATON v. BOEING

processes. In this regard it is noteworthy that Title VII prohibits discriminatory employment practices, not an abstract policy of discrimination.

Falcon, 457 U.S. at 159 n.15. This hypothetical class in Falcon’s footnote fifteen is both broader and narrower than the class before us. It is broader because the class here does not combine employees with applicants and does not allege discriminatory hiring. It is narrower because the class here complains of a complex of discriminatory practices that includes compensation, training, and work environment in addition to promotions. Union employees under objective promotion systems may have been immune to discrimination in promotion, but they could still have been affected by other alleged axes of discrimination.

We understand footnote fifteen of Falcon to present a demonstrative example rather than a limited exception to the overall skepticism toward broad discrimination class actions.10 That is, as we read Falcon, it does not generally ban all broad classes but rather precludes a class action that, on the basis of one form of discrimination against one or a handful of plaintiffs, seeks to adjudicate all forms of discrimination against all members of a group protected by Title VII, § 1981 or a similar statute.

Bouman v. Block, 940 F.2d 1211 (9th Cir. 1991), confirms our reading of Falcon. Bouman was a post-Falcon case in

10One Fifth Circuit opinion may reflect the latter approach. In Vuyanich v. Republic Nat’l Bank, 723 F.2d 1195 (5th Cir. 1984), that court overturned the certification of a class of women and African-American employees and applicants (which was divided into five subclasses). The decision relied in part on the existence of objective factors in the hiring process, referring to the comment in footnote fifteen as a “ ‘general policy of discrimination’ exception.” “The district court’s finding that the Bank relied on two objective inputs — education and experience — in its necessarily subjective hiring process . . . precludes reliance on this ‘general policy of discrimination’ exception.” Id. at 1199-1200.

STATON v. BOEING

31

which we upheld the certification of a class of female applicants for a sergeant’s position. Defendant Los Angeles County objected to the lack of an evidentiary hearing on the commonality question, citing Falcon. We noted that the district court had concluded “that there were common questions in that ‘plaintiff is attacking defendants’ discriminatory practices against females, and this is not just as it applied to plaintiff only.’ This statement identifies a common legal issue, discrimination against women, and a common factual problem, discrimination as applied in the Sheriff’s Department.” Id. at 1232. We found the Falcon concern inapplicable because class status was not sought on the basis of a single discriminatory practice “as it applied to plaintiff only.” Id. For similar reasons, Falcon does not bar a commonality finding in this case.

Third, objectors contend that decisionmaking at Boeing is too decentralized to permit a class that combines plaintiffs from disparate locales. Objectors rely for this argument on Doninger v. Pac. Northwest Bell, 564 F.2d 1304 (9th Cir. 1977), in which we upheld a district court’s denial of certification to an attempted class of female employees and applicants.

The primary reason class certification was inappropriate in Doninger was that the putative class would in large part have overlapped with the terms of a consent decree entered into by American Telephone and Telegraph and already applicable to Pacific Northwest Bell employees. “Substantial numbers” of the individuals who would have been class members had waived their claims and accepted relief under the preexisting decree. Id. at 1309.

Additionally, plaintiffs in Doninger wanted to rely, in the style that Falcon later rejected, on the experiences of a few individuals. Ruling on the commonality question, we found it significant that Pacific Northwest Bell was divided into six “establishments,” each with its own affirmative action pro-

32

STATON v. BOEING

gram, while “[a]ll of the named plaintiffs are employed in one of three establishments. . . .” Id. at 1310. We reasoned that “[s]ince different affirmative action programs, and thus possibly different patterns and practices, exist in each establishment, appellants would have considerable difficulty in adequately representing class members from the other three PNB establishments.” Id. at 1311 (footnote omitted).

The case before us does not present the problem of a preexisting consent decree. Moreover, its named plaintiffs come from a wide array of Boeing’s divisions.

As noted above, Boeing is responsible for the employment practices of all its units. Class counsel introduced evidence of centralized decisionmaking. The unsurprising fact that some employment decisions are made locally does not allow a company to evade responsibility for its policies. See, e.g., Bates v. United Parcel Serv., 204 F.R.D. 440, 446 (N.D. Cal. 2001); Morgan v. United Parcel Serv. of Am., 169 F.R.D. 349, 356 (E.D. Mo. 1996).

We conclude that the district court was within its discretion to find the commonality requirement of Rule 23(a)(2) met in this case. In so holding, we stress that we are applying an abuse of discretion standard. The district court in all likelihood could, also without abusing its discretion, have declined to certify the overall class in favor of certifying discrete subclasses, so as to assure commonality. As the district court noted, however, the objectors in this case, while pointing to many aspects of the consent decree with which they disagree, did not demonstrate that the certification of a broad class rather than subclasses compromised the interests of one or more of the groups of employees that might have had sufficiently cohesive interests to have been certified as a subclass. We later conclude that the consent decree did unfairly distribute the available funds among the members of the plaintiff class. But that unfair distribution did not reflect the same fault lines of potential conflict that the objectors maintain under-

STATON v. BOEING

33

mined the class action determination, namely the potential conflict among employees who work at different levels in the corporate hierarchy, among employees who work in different locations, and among employees who work for Heritage Boeing as opposed to those who work for the recently-merged units.

Although for the most part the same standards apply under Rule 23 in judging the propriety of a settlement class as apply in determining whether a class for trial purposes is appropriate, Amchem, 521 U.S. at 620-21, in judging the propriety of a settlement class, “close inspection of the settlement in that regard [is] altogether proper.” Id. at 620. The presence or absence of settlement terms that differentially affect the subgroups which objectors contend have potentially diverging interests is indicative of whether these alleged conflicts are in fact pertinent to the issues in the lawsuit. Cf. id. at 626-27 (noting that in the asbestos products liability case at issue “the terms of the settlement reflect essential allocation decisions” regarding the distribution of funds, terms that did not take into account “[t]he disparity between the currently injured and exposure-only categories of plaintiffs” regarding the relative desirability of immediate payments versus “an ample, inflation-protected fund for the future”); see also Molski, 307 F.3d at 1174 (looking at the consent decree to determine likelihood of collusiveness). Consequently, the district court acted within its discretion in declining to insist on subclasses and thereby potentially undo the settlement for reasons unlikely to have affected it.

3. Typicality

Rule 23(a)(3) requires that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Falcon noted that “[t]he commonality and typicality requirements of Rule 23(a) tend to merge.” 457 U.S. at 157 n.13. In this case, the district court explained that:

34

STATON v. BOEING

The named plaintiffs . . . include a very broadly selected cross-section of the different categories of Boeing employees. Salaried and hourly, management and line-worker, union and non-union are all represented, as are each of the major geographic hubs of Boeing’s operations and each of the premerger companies. Particularly in a case in which the requested relief applies evenly to the various subgroups, this cross-section of Boeing employees suffices to insure that the interests of these sub-groups have been adequately represented, and meets the typicality requirement of Rule 23(a).

Objectors do not dispute the breadth of representation, but complain that class counsel did not provide clear documentation that each job category had a class representative for each type of discrimination claim alleged.

That level of specificity is not necessary for class representatives to satisfy the typicality requirement. In Hanlon, we stated that “[u]nder the rule’s permissive standards, representative claims are ‘typical’ if they are reasonably coextensive with those of absent class members; they need not be substantially identical.” 150 F.3d at 1020. Typicality “does not mean that the claims of the class representative[s] must be identical or substantially identical to those of the absent class members.” 5 Herbert B. Newberg & Alba Conte, Newberg on Class Actions, § 24.25 at 24-105 (3d ed. 1992); see also Armstrong, 275 F.3d at 869. The district court here was within its discretion to find that the representatives’ claims are “reasonably coextensive with those of absent class members.” Hanlon, 150 F.3d at 1020.

4. Adequacy of Representation

Rule 23(a)(4) permits the certification of a class action only if “the representative parties will fairly and adequately protect the interests of the class.” To determine whether the represen-

STATON v. BOEING

35

tation meets this standard, we ask two questions: (1) Do the representative plaintiffs and their counsel have any conflicts of interest with other class members, and (2) will the representative plaintiffs and their counsel prosecute the action vigorously on behalf of the class? Hanlon, 150 F.3d at 1020; see also Molski, 307 F.3d at 1174 (quoting Crawford v. Honig, 37 F.3d 485, 487 (9th Cir. 1994), and stating a similar standard).

Counsel conducted broad research, assertedly interviewed some 1,300 employees, held many meetings with class members at various Boeing sites, and achieved some relief from a company that has historically been successful in defending against discrimination claims. See, e.g., Croker v. Boeing Co., 662 F.2d 975 (3d Cir. 1981) (court found against class on all issues of liability; nominal damages granted to individual plaintiffs; decision overruled on other, procedural grounds). Although we later question whether the settlement agreement, as opposed to class counsel’s pre-settlement activity, was the result of disinterested representation, that question is better dealt with as part of the substantive review of the settlement than under the Rule 23 inquiry. Otherwise, the preliminary class certification issue can subsume the substantive review of the class action settlement.11 The district court also permitted discovery on the allegations of outright collusion between class counsel and Boeing and concluded that there was no proof that collusion had occurred.12 The district court neither

11In Molski, we found inadequate representation under Rule 23(a)(4) primarily because of the different circumstances of the named plaintiff and some members of the class. We did look to the terms and circumstances of the ultimate agreement as confirmation of inadequate representation, but did not base the finding of inadequacy of representation on the substance of the agreement alone. 307 F.3d at 1174.
12Even when there is no direct proof of explicit collusion, there is always the possibility in class action settlements that the defendant, class counsel, and class representatives will all pursue their own interests at the expense of the class. For that reason, the absence of direct proof of collusion does not reduce the need for careful review of the fairness of the settlement, particularly those aspects of the settlement that could constitute inducements to the participants in the negotiation to forego pursuit of class interests. See p. 39, infra.

36

STATON v. BOEING

abused its discretion in finding that counsel’s representation was appropriately vigorous for purposes of class certification nor clearly erred in finding that there was no overt collusion.

With regard to the first of the two adequacy questions, objectors contend that a conflict arises from the facts that the class cuts across the levels of authority of Boeing employees and that, in particular, some class members supervise some of their fellow class members. This concern about classes that involve both supervisors and rank-and-file workers can be a valid one in some circumstances. In Wagner v. Taylor, 836 F.2d 578 (D.C. Cir. 1987), for example, the court affirmed a district court’s finding of inadequate representation because a representative plaintiff in a Title VII case purported to represent a broad class that included non-supervisory employees. Wagner was both a senior executive and the only representative of an attempted class of all grade GS-9 and above African-American employees of, and applicants to, the Interstate Commerce Commission. The court worried that “[s]upervisory employees are often inappropriate representatives of nonsupervisory employees because the structure of the workplace tends to cultivate distinctly different interests between the two groups. Although each group shares the interest in freedom from discrimination, potential conflicts may and do arise within a class including both.” Id. at 595 (footnotes omitted).

Wagner did not, however, adopt any per se rule concerning adequacy of representation where the class includes employees at different levels of an employment hierarchy. We decline to do so as well. The question whether employees at different levels of the internal hierarchy have potentially conflicting interests is context-specific and depends upon the particular claims alleged in a case.

Here, we do not find these workforce structure concerns to be dispositive. The named plaintiffs who are class representatives in this case include both supervisors and non-

STATON v. BOEING

37

supervisory employees. The district court found that objectors fail

to identify a substantive issue for which there is a conflict of interest between two or more sets of employees. Given that the named plaintiffs include representatives of each major employee sub-group, and that the requested relief applies equally throughout the class, the Court finds that there are no conflicts between class members sufficient to defeat certification.

“Plaintiffs attempting representation of nonsupervisory employees by supervisory employees . . . must offer evidence of coextensive interests or at least allege the existence of a general discriminatory policy.” Newberg and Conte, supra, § 24.42 at 24-170-71. Class counsel have met this burden here. The finding of adequacy was within the district court’s discretion.

B. The Settlement

1. General Principles

[1] “Fed. R. Civ. P. 23(e) requires the district court to determine whether a proposed settlement is fundamentally fair, adequate, and reasonable.” Hanlon, 150 F.3d at 1026 (citation omitted). The objectors contend that the settlement agreement fails to meet Rule 23(e)’s standards.

To determine whether a settlement agreement meets these standards, a district court must consider a number of factors, including: “the strength of plaintiffs’ case; the risk, expense, complexity, and likely duration of further litigation; the risk of maintaining class action status throughout the trial; the amount offered in settlement; the extent of discovery completed, and the stage of the proceedings; the experience and views of counsel; the presence of a governmental participant;

38

STATON v. BOEING

and the reaction of the class members to the proposed settlement.” Molski, 307 F.3d at 1172 (citation omitted); see also Officers for Justice v. Civil Serv. Comm’n of San Francisco, 688 F.2d 615, 625 (9th Cir. 1982) (noting that the list of factors is “by no means an exhaustive list of relevant considerations, nor have we attempted to identify the most significant factors”).

Despite this guidance, assessing the fairness, adequacy and reasonableness of the substantive terms of a settlement agreement can be challenging. As “the very essence of a settlement is compromise, ‘a yielding of absolutes and an abandoning of highest hopes,’ ” id. at 624 (citation omitted), review of the substantive terms of a consent decree — the total amount of damages awarded for example, or the precise terms of injunctive provisions — is often not productive. Courts cannot know the strength of ex ante legal claims and so are not privy to the relative strengths of the parties at the bargaining table. Nor can courts judge with confidence the value of the terms of a settlement agreement, especially one in which, as here, the settlement provides for injunctive relief.

At the same time, and critically for present purposes, there are real dangers in the negotiation of class action settlements of compromising the interests of class members for reasons other than a realistic assessment of usual settlement considerations such as the strength of their legal claims, the desire for immediate rather than delayed relief, and the costs of litigation. Incentives inhere in class-action settlement negotiations that can, unless checked through careful district court review of the resulting settlement, result in a decree in which “the rights of [class members, including the named plaintiffs] may not [be] given due regard by the negotiating parties.” Id. The class members are not at the table; class counsel and counsel for the defendants are. Unlike in the non-class action context, most of class counsel’s clients cannot be consulted individually about the terms of the settlement, nor is the resulting

STATON v. BOEING

39

decree submitted to the class members for approval (although there is an opportunity to object).

That the class representatives are available for consultation and approval is no solution, for two reasons: First, the class representatives have their own incentives to advance their interests at the expense of the class. Second, class counsel ultimately owe their fiduciary responsibility to the class as a whole and are therefore not bound by the views of the named plaintiffs regarding any settlement. See In re GMC Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 801 (3d Cir. 1995) (“Beyond their ethical obligations to their clients, class attorneys, purporting to represent a class, also owe the entire class a fiduciary duty once the class complaint is filed.”).

We have characterized these inherent dangers of class settlements as encompassing the possibility that “the agreement . . . is the product of fraud or overreaching by, or collusion between, the negotiating parties. . . .” Officers for Justice, 688 F.2d at 625; see also Hanlon, 150 F.3d at 1027. By so stating, we do not mean to indicate concern only with overt misconduct by the negotiators. The incentives for the negotiators to pursue their own self-interest and those of certain class members are implicit in the circumstances and can influence the result of the negotiations without any explicit expression or secret cabals. That is why district court review of class action settlements includes not only consideration of whether there was actual fraud, overreaching or collusion but, as well, substantive consideration of whether the terms of the decree are “fair, reasonable and adequate to all concerned.” Officers for Justice, 688 F.2d at 625.

Still, both the difficulties of judicial assessment of a compromise settlement, discussed above, and the rule that “[t]he district court’s final determination to approve the settlement should be reversed ‘only upon a strong showing that the district court’s decision was a clear abuse of discretion,’ ” Hanlon, 150 F.3d at 1027 (quoting In re Pac. Enters. Sec. Litig.,

40

STATON v. BOEING

47 F.3d 373, 377 (9th Cir. 1995)), circumscribe our inquiry on appeal into the fairness question. As a practical matter we will rarely overturn an approval of a class action consent decree on appellate review for substantive reasons unless the terms of the agreement contain convincing indications that the incentives favoring pursuit of self-interest rather than the class’s interests in fact influenced the outcome of the negotiations and that the district court was wrong in concluding otherwise. See Molski, 307 F.3d at 1171-72.

[2] Our inquiry therefore most usefully focuses primarily upon whether the particular aspects of the decree that directly lend themselves to pursuit of self-interest by class counsel and certain members of the class — namely, attorneys’ fees and the distribution of any relief, particularly monetary relief, among class members — strictly comport with substantive and procedural standards designed to protect the interests of class members. This is not to say that we do not consider the remaining terms of the settlement agreement as well. “It is the settlement taken as a whole, rather than the individual component parts, that must be examined for overall fairness,” and “[t]he settlement must stand or fall in its entirety.” Hanlon, 150 F.3d at 1026; see also Strong v. BellSouth Telecomms., 137 F.3d 844, 848 (5th Cir. 1998) (“To be enforceable, the Agreement require[s] the final approval of each federal court, pursuant to [Rule] 23(e). Any modification to the Agreement, whether by a party or a court, would render the Agreement void.”).

Where the other terms of a settlement raise questions not recognized by the district court concerning fairness and adequacy — as we conclude they do here — our scrutiny of the fees and damage distribution provisions should be all the more rigorous. But absent some glaring inequity in the remaining terms of the agreement missed in the district court’s inquiry, it will be rare that we will reverse a district court’s approval of a class action consent decree unless the

STATON v. BOEING

41

fee and relief provisions clearly suggest the possibility that class interests gave way to self-interest.

2. The Settlement as a Whole

In this case, we are somewhat uneasy, reading the settlement as a whole, about whether in reaching the settlement, class counsel adequately pursued the interests of the class as a whole. Provisions giving rise to this unease include the extent of Boeing’s release from liability, which includes any breach of contract action by any class member; the stipulation that the prohibition on race discrimination cannot be enforced in individual cases; the numerous instances in which Boeing is permitted to develop its own remedial schemes (and, in some instances, unilaterally to abandon such schemes as infeasible), with an obligation only to consult with class counsel but with no obligation to submit to any enforcement or dispute resolution mechanism if the schemes are unsatisfactory; the limited role for the consultant Boeing is required to hire; and the incorporation in the agreement of promotion and complaint programs Boeing had already developed and implemented, with no obligation on the part of the Company to continue those programs in their present form or alternatively to substitute programs of the same efficacy.13

Further, the district court did not entirely appreciate the limited scope of many of the injunctive provisions of the decree. For example, the court opined that “changes will be

13The racial harassment provisions of the proposed consent decree illuminate the defects in many of the other remedial sections: Unlike the promotion and complaint provisions, the section covering the harassment policy does contain some enforceable standards should Boeing choose to change its policy — “the amended policy [must have] the same import as the [present] Harassment Policy and [be] reasonably designed to achieve the same effect as the Harassment Policy in respect to preventing and remedying racial harassment.” Similar language is noticeably absent from all the other sections concerning the programs Boeing is to develop or has developed to remedy discrimination against the class.

42

STATON v. BOEING

made in the procedure for resolving discrimination related complaints.” (Emphasis added.) In fact, the changes in the complaint procedure had already been implemented, and, while the agreement indicates that the implementation appeared adequate, Boeing made no commitment in the decree to continue the same process in effect during the term of the agreement (or even to assure that any replacement process would be as effective as the present one).

We also note that, unlike the district court, we decline to rely in our assessment of the injunctive provisions upon “the approval of several disinterested experts in race discrimination, the Reverend Jesse Jackson first among them.” The experts’ positive assessments all rely heavily on the assertion that the decree provides all members of the class with three years of free legal assistance to, as one declaration put it, “review their employment history, review proposed or actual job opportunities, . . . assist them with job applications, and . . . challenge the selection of someone else for the jobs.” As noted above, Boeing has expressed its skepticism that the decree embodies any obligation on the part of class counsel to provide such free individualized legal assistance or on the part of Boeing to respond to such individualized representation by attorneys. Reading the decree carefully, we share that skepticism.

The attorneys’ fees provision provides $750,000 to class counsel for “monitoring, administration, implementation and defense of the Decree,” including, in particular, “Class Counsel’s time and expenses involved in the processing of claims under Section XI(c)(4) and the distribution of all monetary awards . . . including expenditures by Class Counsel in regard to compensating the Claims Arbitrator . . . .” That language hardly encompasses the individualized representation for future claims of discrimination the experts’ declarations assume. Nor does any provision in the decree specifically require Boeing to confer with class counsel about individuals’ promotion applications. It may be that class counsel, com-

STATON v. BOEING

43

mendably, intend to attempt to provide such individual representation, although nothing in the factual record indicates a commitment to do so. If so, $750,000 is unlikely to go very far in compensating class counsel for such representation, given the size of the class and the other representational duties for which the decree specifically earmarks the money. Since the experts’ understanding of the proposed settlement appears less than precise, the district court should not have relied so heavily upon those assessments, and we do not do so.

Despite all of the foregoing concerns, we would not overturn the district court’s determination to approve the settlement as fair were the release and injunctive provisions the only aspects of the decree that are troublesome. As the district court noted, plaintiffs’ risk of losing the case on the merits was quite high; Boeing had an unbroken history of prevailing in discrimination cases; maintaining the class action was not a foregone conclusion; promotion decisions, a primary focus of the litigation, are largely discretionary; and discovery was likely to be extremely expensive for the plaintiffs and class counsel, whose resources are undoubtedly more limited than those of Boeing. The total monetary relief provided in the proposed settlement agreement is not insubstantial, either in total or on a pro rata basis given the number of claimants, and the balance between retrospective and prospective relief is usually one for the litigants to determine. Nor do the injunctive provisions themselves raise any flags regarding favoritism for some members of the class over others. No class member is assured a promotion or any other future privilege not accorded to others, nor are certain groups of class members treated more favorably than others for purposes of future relief.

Additionally, we cannot say with the requisite certainty that the district court erred in concluding that “the cooperative process which led to the agreement, and the provisions for oversight of the decree by independent observers . . . will lead to genuine improvements in Boeing’s internal race relations.”

44

STATON v. BOEING

The district court was in a position to assess the level of good-
will between the parties at the point of settlement, as we are not.14

Furthermore, we are told that the decree in large part incorporates already-existing Boeing programs rather than creating new ones because Boeing determined once the lawsuit was filed to devise new, more effective promotion and complaint policies so as to avoid similar charges in the future. Although the failure of the consent decree to assure continuation of these same or equally effective programs in the future remains troubling, we cannot reject out of hand this explanation for crediting existent programs as part of the prospective relief attained by the proposed decree.

In short, the injunctive aspects of the proposed settlement neither directly reflect pursuit of self-interest by favored members of the class nor, standing alone, strike us as being so beyond the pale as a compromise of claims to merit reversal of the district court’s fairness assessment. At the same time, the questionable factors we have noted do suggest the possibility that class counsel and the IIRs could have agreed to relatively weak prospective relief because of other inducements offered to them in the course of the negotiations. We therefore scrutinize with particular care the aspects of the proposed settlement that provide monetary benefits directly to class counsel and to the IIRs: the attorneys’ fees and damages distribution provisions.15

14We stress once again that, as this case has not been litigated, we have no way of knowing whether there was in fact race discrimination in employment at Boeing.
15Also contributing to our determination to scrutinize the attorneys’ fees provisions with special care is the nature of the notice to the class with respect to fees. The class notice did not break out the amount of attorneys’ fees provided for in the settlement agreement, although an alert class member could have calculated those fees from the information provided.
Appellees admit that “with benefit of hindsight it would have been preferable if the formal notice to [the] class had included more specificity with

STATON v. BOEING

45

respect to the fee award.” They have not explained, however, why the decision was made to leave out that particular figure from the class notice while spelling out the total fund available to the class, the amount of monetary relief, and the value assigned to the injunctive relief.
Notice of the amount of fees serves as “adequate notice of class counsel’s interest in the settlement.” Torrisi v. Tucson Elec. Power Co., 8 F.3d 1370, 1375 (9th Cir. 1993); see also Goldenberg v. Marriott PLP Corp., 33 F. Supp. 2d 434, 441 (D. Md. 1998) (“[n]otice of the potential extent of attorneys fee awards is deemed essential because it allows class members to determine the possible influence of the fees on the settlement and to make informed decisions about their right to challenge the fee award.”). Where the class was informed of the amount of fees only indirectly and where the failure to give more explicit notice could itself be the result of counsel’s self-interest, the courts must be all the more vigilant in protecting the interests of class members with regard to the fee award.

STATON v. BOEING

47 Volume 2 of 2

52

STATON v. BOEING

3. Attorneys’ Fees
[3] a. Necessity of Scrutiny: Attorneys’ fees provisions included in proposed class action settlement agreements are, like every other aspect of such agreements, subject to the determination whether the settlement is “fundamentally fair, adequate, and reasonable.” Fed. R. Civ. P. 23(e). There is no exception in Rule 23(e) for fee provisions contained in proposed class action settlement agreements. Thus, to avoid abdicating its responsibility to review the agreement for the protection of the class, a district court must carefully assess the reasonableness of a fee amount spelled out in a class action settlement agreement. See, e.g., Piambino v. Bailey, 610 F.2d 1306, 1328 (5th Cir. 1980) (“the District Court abdicated its responsibility to assess the reasonableness of attorneys’ fees proposed under a settlement of a class action, and its approval of the settlement must be reversed on this ground alone”); Strong, 137 F.3d at 848-50; In re GMC, 55 F.3d at 819-20; Jones v. Amalgamated Warbasse Houses, Inc., 721 F.2d 881, 884 (2d Cir. 1983) (holding with regard to attorneys’ fees that “[t]he presence of an arms’ length negotiated

STATON v. BOEING

53

agreement among the parties weighs strongly in favor of approval, but such an agreement is not binding on the court.”).16

That the defendant in form agrees to pay the fees independently of any monetary award or injunctive relief provided to the class in the agreement does not detract from the need carefully to scrutinize the fee award. Ordinarily, “a defendant is interested only in disposing of the total claim asserted against it . . . the allocation between the class payment and the attorneys’ fees is of little or no interest to the defense . . . .” In re GMC, 55 F.3d at 819-20 (internal quotation marks and citation omitted); see also Evans v. Jeff D., 475 U.S. 717, 732, 734 (1986) (recognizing that “the possibility of a tradeoff between merits relief and attorney’s fees” is often implicit in class action settlement negotiations, because “[m]ost defendants are unlikely to settle unless the cost of the predicted judgment, discounted by its probability, plus the transaction costs of further litigation, are greater than the cost of the settlement package.”) (Emphasis added).

Given these economic realities, the assumption in scrutinizing a class action settlement agreement must be, and has always been, that the members of the class retain an interest in assuring that the fees to be paid class counsel are not unreasonably high. If fees are unreasonably high, the likelihood is that the defendant obtained an economically beneficial con-

16Jones held that a district court could, after reviewing the attorneys’ fees awarded as part of a class action settlement, reduce the amount of fees, apparently while retaining the binding nature of the remainder of the agreement. Such a procedure is not consistent with Evans v. Jeff D., 475 U.S. 717, 726-27 (1986), decided after Jones. Evans held that, with respect to attorneys’ fees provisions as with respect to any other provision, “the power to approve or reject a settlement negotiated by the parties before trial does not authorize the court to require the parties to accept a settlement to which they have not agreed. . . . Rule 23(e) does not give the court the power, in advance of trial, to modify a proposed consent decree and order its acceptance over either party’s objection.” (Footnote omitted). See also Hanlon, 150 F.3d at 1026 (stating, without exception, that “[t]he settlement must stand or fall in its entirety”).

54

STATON v. BOEING

cession with regard to the merits provisions, in the form of lower monetary payments to class members or less injunctive relief for the class than could otherwise have obtained. See Court Awarded Attorney Fees, Report of the Third Circuit Task Force, 108 F.R.D. 237, 266 (1985) (“When a large attorney’s fee means a smaller recovery to plaintiff, a significant conflict of interest between client and attorney is created. Even if the plaintiff’s attorney does not consciously or explicitly bargain for a higher fee at the expense of the beneficiaries, it is very likely that this situation has indirect or subliminal effects on the negotiations.”). In other words, the negotiation of class counsel’s attorneys’ fees is not exempt from the truism that there is no such thing as a free lunch.

[4] We have, in closely analogous contexts, recently so recognized. See Zucker v. Occidental Petroleum Corp., 192 F.3d 1323 (9th Cir. 1999); Lobatz v. U.S. West Cellular, 222 F.3d 1142 (9th Cir. 2000). In Zucker, for example, we stated that “[i]n a class action, whether the attorneys’ fees come from a common fund or are otherwise paid, the district court must exercise its inherent authority to assure that the amount and mode of payment of attorneys’ fees are fair and proper,” 192 F.3d at 1328 (emphasis added); see also id. at 1327 (“In a class action . . . [t]he absence of individual clients controlling the litigation for their own benefit creates opportunities for collusive arrangements in which defendants can pay the attorneys for the plaintiff class enough money to induce them to settle the class action for too little benefit to the class (or too much benefit to the attorneys, if the claim is weak but the risks to the defendants high).”). Similarly, in Lobatz, where the defendant had agreed that it would not contest a fee request of $1 million that was apart from the settlement fund, we noted that “[s]uch an agreement has the potential of enabling a defendant to pay class counsel excessive fees and costs in exchange for counsel accepting an unfair settlement on behalf of the class.” 222 F.3d at 1148.

The district court was therefore obligated to assure itself that the fees awarded in the agreement were not unreasonably

STATON v. BOEING

55

high, so as to ensure that the class members’ interests were not compromised in favor of those of class counsel.

[5] b. Substantive Scrutiny of Statutory Fees: Generally, litigants in the United States pay their own attorneys’ fees, regardless of the outcome of the proceedings. In order to encourage private enforcement of the law, however, Congress has legislated that in certain cases prevailing parties may recover their attorneys’ fees from the opposing side. When a statute provides for such fees, it is termed a “fee-shifting” statute. Under a fee-shifting statute, the court “must calculate awards for attorneys’ fees using the ‘lodestar’ method,” Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1149 n.4 (9th Cir. 2001), which involves “multiplying the number of hours the prevailing party reasonably expended on the litigation by a reasonably hourly rate,” Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir. 1996) and, “if circumstances warrant, adjust[ing] the lodestar to account for other factors which are not subsumed within it,” Ferland, 244 F.3d at 1149 n.4; see also Caudle v. Bristow Optical Co., 224 F.3d 1014, 1029 (9th Cir. 2000). The rules governing both reduction and enhancement have become increasingly refined over time, and we have therefore required careful explanations by district courts of statutory fee determinations.17

17See, e.g., City of Burlington v. Dague, 505 U.S. 557 (1992) (prohibiting pure contingency enhancements of the lodestar under fee-shifting statutes); Ferland, 244 F.3d at 1149, 1151 (holding that where the district court cuts substantially the number of hours compensated because of perceived inefficiency, the court must either “calibrate the number [of hours] chosen to demonstrable inefficiency in carrying out particular tasks” or provide an explanation of the level of reduction chosen); Caudle, 224 F.3d at 1029, 1029 n.11 (finding an abuse of discretion where the district court did not “explicitly follow [lodestar] procedures” and noting that a modest amount of recovery cannot be used to reduce a fee award below the lodestar); Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1049 (9th Cir. 2000) (concluding that the district court did not abuse its discretion in refusing to award fees for hours spent on discovery unrelated to the record); Guam Soc’y of Obstetricians & Gynecologists v. Ada, 100 F.3d

56

STATON v. BOEING

[6] Both Title VII, § 2000e, et seq., and § 1981 — the two federal statutes under which this suit was brought — have feeshifting provisions. See §2000e-5 (k) (“In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party . . . a reasonable attorney’s fee . . . .”); 42 U.S.C. § 1988 (“In any action or proceeding to enforce a provision of section[ ] 1981 . . . the court, in its discretion, may allow the prevailing party . . . a reasonable attorney’s fee . . . .”). The parties therefore could have negotiated an award of fees under § 2000e-5(k) and § 1988. Had they done so, the district court’s review would have focused on the reasonableness of the fee request under the lodestar calculation method. Were the amount of fees Boeing agreed to pay in the settlement agreement distinctly higher than the fees class counsel could have been awarded by the district court using the lodestar method, the court would almost surely have had to find the fees unreasonable. Absent some unusual explanation, a defendant would not agree in a class action settlement to pay out of its own pocket fees measurably higher than it could conceivably have to pay were the fee amount litigated, unless there was some non-fee benefit the defendant received thereby.

691, 697 (9th Cir. 1996) (“Dague left undisturbed earlier Supreme Court case law allowing a fee applicant to recover more than the lodestar figure where the applicant has met the burden of showing that such an adjustment is necessary to the determination of a reasonable fee.” (internal quotation marks and citations omitted)); Morales, 96 F.3d at 365 (vacating attorneys’ fee award because the exception to lodestar calculation for nominal damages cases in which the plaintiff’s success is de minimis did not apply); Gates v. Deukmejian, 987 F.2d 1392, 1398, 1400 (9th Cir. 1992) (rejecting the district court’s reduction of the lodestar based on the absence of “concise but clear” explanatory language to show that it did not “uncritically accept[ ] plaintiffs’ suggested reductions and fail[ ] independently to review the record”); Cunningham v. County of Los Angeles, 879 F.2d 481, 487, 489 (9th Cir. 1988) (holding four justifications for adjusting the lodestar improper because they are subsumed in the lodestar determination itself).

STATON v. BOEING

57

In fact, no lodestar-based scrutiny of the fees awarded class counsel in the settlement agreement ever took place. Boeing and class counsel did not attempt to explain the award of fees provided in the consent decree as negotiated under the applicable fee-shifting statutes. Further, the record as it stands would not have been sufficient for such an inquiry, as it contains only the barest estimate of hours expended, with no detail. Not even a summary of the billing records was submitted.

Of course, in the context of a settlement, the fees provided for in the agreement are as subject to compromise as are the merits provisions. Consequently, as Evans, 475 U.S. at 73435, made clear, the fee amount in a class action settlement agreement can be less than would be awarded by a court. And, since the proper amount of fees is often open to dispute and the parties are compromising precisely to avoid litigation, the court need not inquire into the reasonableness of the fees even at the high end with precisely the same level of scrutiny as when the fee amount is litigated. But here, there was no such inquiry at all. Nor is the record adequate for an inquiry, even one employing a less-than-stringent standard that recognizes the settlement context.

We are therefore in no position to determine whether the fees Boeing agreed to pay are reasonable lodestar fees under the applicable fee-shifting statutes and do not do so. On remand, the parties are free to attempt such justification, based on the principles outlined in this opinion and in the extensive lodestar fees case law.

c. The Common Fund Justification: Rather than justifying the attorneys’ fees provisions of the settlement agreement on the statutory fee-shifting basis that would properly have applied, the parties sought to justify the fee amount according to the principles applicable to common funds. They did so by constructing a hypothetical “fund” by adding together the amount of money Boeing would pay in damages

58

STATON v. BOEING

to members of the class under the agreement, the amount of fees provided to various counsel, the cost of the class action notices paid for by Boeing, and a gross amount of money ascribed to all the injunctive relief contained in the agreement. For clarity, we will call the total of all those monetary amounts the “putative fund,” for, as we shall see, it is not properly viewed as a common fund as that term is used in attorneys’ fees law. (We will continue, also for clarity, to call the doctrine by its usual name, “common fund.”) The parties portrayed the total fee award as 28% of the putative fund, and maintained that such a percentage is well within the percentage permitted under our common fund fee cases. The district court viewed the fee award as the parties requested and approved it, and the consent decree as a whole, on that basis. For several reasons, that approval was not appropriate.

i. Availability of common fund fees

Before we can decide whether the attempted common fund justification in this case was adequate, we must resolve whether the existence of potentially applicable fee-shifting statutory provisions precludes class counsel from recovering attorneys’ fees under the common fund doctrine. We conclude, as have the two other circuits that have addressed the issue,18 that there is no preclusion on recovery of common fund fees where a fee-shifting statute applies.

18See Brytus v. Spang & Co., 203 F.3d 238, 246-247 (3d Cir. 2000) (holding that common fund funds can be appropriate in both settled and litigated cases where statutory fees are available); Cook v. Niedert, 142 F.3d 1004 (7th Cir. 1998) (approving fees measured by common fund rather than statutory principles where statutory fees were available); Florin v. Nationsbank, 34 F.3d 560, 564 (7th Cir. 1994) (common fund principles “properly control a case which is initiated under a statute with a fee shifting provision, but is settled with the creation of a common fund.”); Skelton v. General Motors Corp., 860 F.2d 250, 256 (7th Cir. 1988) (“[W]hen a settlement fund is created in exchange for release of the defendant’s liability both for damages and for statutory attorneys’ fees, equitable fund principles must govern the court’s award of the attorneys’ fees.”); 1 Mary Francis Derfner and Arthur D. Wolf, Court Awarded Attorney Fees, ¶ 2.05[7] at 2-81 (2001) (“[T]he mere fact that a fee-shifting statute is implicated in the action does not ensure that fees will be awarded under that statute. . . . [F]ees may be taxed against the [settlement] fund under the common fund doctrine.” (citing Skelton and Florin)).

STATON v. BOEING

59

[7] Under the “common fund” doctrine, “a litigant or 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. Van Gemert, 444 U.S. 472, 478 (1980). The Supreme Court explained:

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. Jurisdiction over the fund involved in the litigation allows a court to prevent this inequity by assessing attorney’s fees against the entire fund, thus spreading fees proportionately among those benefited by the suit.

Id. (citation omitted). Thus, the common fund doctrine ensures that each member of the winning party contributes proportionately to the payment of attorneys’ fees. In contrast to fee-shifting statutes, which enable a prevailing party to recover attorneys’ fees from the vanquished party, the common fund doctrine permits the court to award attorneys’ fees from monetary payments that the prevailing party recovered in the lawsuit. Put another way, in common fund cases, a variant of the usual rule applies and the winning party pays his or her own attorneys’ fees; in fee-shifting cases, the usual rule is rejected and the losing party covers the bill. See generally Wininger v. SI Mgmt. L.P., 301 F.3d 1115 (9th Cir. 2002).

The procedures used to determine the amount of reasonable attorneys’ fees differ concomitantly in cases involving a common fund from those in which attorneys’ fees are sought under a fee-shifting statute. As in a statutory fee-shifting case, a district court in a common fund case can apply the lodestar method to determine the amount of attorneys’ fees. In common fund cases, however, the court can apply a risk multiplier when using the lodestar approach. See In re Wash. Pub. Power Supply Sys. Sec. Litig., 19 F.3d 1291, 1299 (9th Cir.

60

STATON v. BOEING

1994) (“WPPSS”) (“[The City of Burlington v. Dague, 505 U.S. 557 (1992)] rationale for barring risk multipliers in statutory fee cases does not operate to bar risk multipliers in common fund cases.”). A “multiplier” is a number, such as 1.5 or 2, by which the base lodestar figure is multiplied in order to increase (or decrease) the award of attorneys’ fees on the basis of such factors as the risk involved and the length of the proceedings.

[8] Alternatively, in a common fund case, the district court can determine the amount of attorneys’ fees to be drawn from the fund by employing a “percentage” method. See Hanlon, 150 F.3d at 1029 (“In ‘common fund’ cases where the settlement or award creates a large fund for distribution to the class, the district court has discretion to use either a percentage or lodestar method.”). As its name suggests, under the percentage method, “the court simply awards the attorneys a percentage of the fund. . . .” Id. “This circuit has established 25% of the common fund as a benchmark award for attorney fees.” Id.

That common fund fees can be awarded where statutory fees are available follows from the equitable nature of common fund fees. In Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240 (1975), the Court explained that 28 U.S.C. § 1923, a version of which was first enacted in 1853, limits the amount of attorneys’ fees that a prevailing party may recover from the loser, but does not prohibit the award of fees under the common fund doctrine. The Court stated:

In Trustees v. Greenough, 105 U.S. 527 (1882), the 1853 Act was read as not interfering with the historic power of equity to permit the trustee of a fund or property, or a party preserving or recovering a fund for the benefit of others in addition to himself, to recover his costs, including his attorneys’ fees, from the fund or property itself or directly from the other parties enjoying the benefit. That rule has been con-

STATON v. BOEING

61

sistently followed. . . . These exceptions are unquestionably assertions of inherent power in the courts to allow attorneys’ fees in particular situations, unless forbidden by Congress . . . .

Id. at 257-259. Thus, unless Congress has forbidden the application of the common fund doctrine in cases in which attorneys could potentially recover fees under the type of feeshifting statutes at issue here, the courts retain their equitable power to award common fund attorneys’ fees.

Congress did not explicitly forbid the use of the common fund doctrine in cases potentially involving § 2000e-5 and § 1988, and we see no reason to infer that it did so implicitly. The intent of the fee-shifting provisions at issue here is not countered by the application of common fund principles.

The fees available under a fee-shifting statute are part of the plaintiff’s recovery and are not dependent upon any explicit fee arrangements between the plaintiffs and their counsel. For that reason, contingent fee agreements between counsel and client are valid in cases where statutory fees are available. See Venegas v. Mitchell, 495 U.S. 82, 86-89 (1990). Common fund fees are essentially an equitable substitute for private fee agreements where a class benefits from an attorney’s work, so the same general principles outlined in Venegas should apply.

Application of the common fund doctrine to class action settlements does not compromise the purposes underlying fee shifting statutes. In settlement negotiations, the defendant’s determination of the amount it will pay into a common fund will necessarily be informed by the magnitude of its potential liability for fees under the fee-shifting statute, as those fees will have to be paid after successful litigation and could be treated at that point as part of a common fund against which the attorneys’ fees are measured. Conversely, the prevailing party will expect that part of any aggregate fund will go

62

STATON v. BOEING

toward attorneys’ fees and so can insist as a condition of settlement that the defendants contribute a higher amount to the settlement than if the defendants were to pay the fees separately under a fee-shifting statute.19

The district court did not, therefore, err in treating this case as one that could fall under the common fund doctrine rather than under the potentially applicable fee-shifting provisions, if the parties properly so agreed, the resulting fee was reasonable, and other requisites applicable to common fund fees were met.

The possibility that a prevailing party could recover fees either under the court’s equitable powers or under its statutory authority does not, however, give the parties or the court free rein once either the common fund or the statutory rubric is selected. Fees sought or awarded under a fee-shifting statute require the application of the standards and procedures crafted for such statutes, discussed above. Similarly, if the parties invoke common fund principles, they must follow common fund procedures and standards, designed to protect class

19The Seventh Circuit reasoned similarly in Florin:
The settlement agreement approved by the court provides that the defendants are released from potential liability for statutory attorney’s fees and that class counsel may instead petition the court for an award of fees from the settlement fund. Thus, the settlement agreement seems to anticipate that the amount paid by the defendants into the fund includes an unspecified sum for class counsel’s fees. An award of attorney’s fees from the fund would therefore be consistent with the goal of the fee-shifting provision to allow the offending party [to] bear the costs of the award . . . Furthermore, an award of fees from the settlement fund comports with the fee-shifting policy of enabling meritorious plaintiffs who would not otherwise be able to afford to bring a lawsuit . . . to pursue their claims.
34 F.3d at 564. See also Brytus, 203 F.3d at 246 (where there is a settlement in a case in which statutory fees are available, “consideration of the attorney’s fees was likely factored into the amount of settlement.”).

STATON v. BOEING

63

members when common fund fees are awarded. We turn next to the specific procedure employed in the negotiation and award of the attorneys’ fees in this case.

ii. Inclusion in the settlement of the attorneys’ fees

The parties negotiated the amount of attorneys’ fees awarded class counsel as a term of the settlement agreement and thus conditioned the merits settlement upon judicial approval of the agreed-upon fees. See Hanlon, 150 F.3d at 1026 (“Neither the district court nor this court ha[s] the ability to ‘delete, modify or substitute certain provisions.’ The settlement must stand or fall in its entirety.”) (citations omitted). By proceeding in this fashion with respect to attorneys’ fees and then attempting to justify the fees not as statutory fees but as common fund fees, the parties followed an irregular and, as we hold below, improper procedure.

[9] Under regular common fund procedure, the parties settle for the total amount of the common fund and shift the fund to the court’s supervision. The plaintiffs’ lawyers then apply to the court for a fee award from the fund. See Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268, 271 (9th Cir. 1989) (in a common fund case, “a court has control over the fund — even one created pursuant to a settlement, as here . . . and assesses the litigation expenses against the entire fund so that the burden is spread proportionally among those who have benefited.”) (citing Van Gemert, 444 U.S. at 478); see also Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1046 (9th Cir. 2002) (after approval of the settlement, class counsel applied to the district court for an award of attorneys’ fees); Cook, 142 F.3d at 1011 (“In common fund cases, after attorneys obtain a settlement for the class, they petition the court for compensation from the fund . . . .”); Florin, 34 F.3d at 563 (in a common fund case, “the defendant typically pays a specific sum into the court, in exchange for a release of its liability. The court then determines the amount of attorney’s fees that plaintiffs’ counsel may recover from this fund, thereby dimin-

64

STATON v. BOEING

ishing the amount of money that ultimately will be distributed to the plaintiff class.”).20

[10] In setting the amount of common fund fees, the district court has a special duty to protect the interests of the class. On this issue, the class’s lawyers occupy a position adversarial to the interests of their clients. The reason for the usual insistence upon judge-conferred common fund fees is that, as we have explained,

“Because in common fund cases the relationship between plaintiffs and their attorneys turns adversarial at the fee-setting stage, courts have stressed that when awarding attorneys’ fees from a common fund, the district court must assume the role of fiduciary for the class plaintiffs.” WPPSS, 19 F.3d at 1302. Accordingly, fee applications must be closely scrutinized. Rubber-stamp approval, even in the absence of objections, is improper.

Vizcaino, 290 F.3d at 1052. See also In re Coordinated Pretrial Proceedings in Petroleum Prods. Antitrust Litig., 109 F.3d 602, 608 (9th Cir. 1997) (“In a common fund case, the judge must look out for the interests of the beneficiaries, to make sure that they obtain sufficient financial benefit after the lawyers are paid. Their interests are not represented in the fee award proceedings by the lawyers seeking fees from the common fund.”).21

20On one occasion, we permitted a carefully conceived procedure to substitute for completely independent judicial determination of lodestarbased common fund fees. Hanlon, 150 F.3d at 1029 (fees were negotiated only after the merits agreement was concluded and a mediator present at the negotiations provided assurance to the court “that the fee was not the result of collusion or a sacrifice of the interests of the class” before the district judge reviewed the award using the lodestar, not percentage, method, “requiring class counsel to submit detailed evidence of their work on behalf of the class.”).
21In this connection, we note with concern a letter from class counsel to eleven named plaintiffs, apparently misdated September instead of

STATON v. BOEING

65

[11] When the ordinary procedure is not followed and instead the parties explicitly condition the merits settlement on a fee award justified on a common fund basis, the obvious risk arises that plaintiffs’ lawyers will be induced to forego a fair settlement for their clients in order to gain a higher award of attorneys’ fees. That risk is, if anything, exacerbated where, as here, the agreement provides for payment of fees by the defendant, as in a statutory fee-shifting situation, but the parties choose to justify the fee as coming from a putative common fund. Where that is the case, courts have to be alert to the possibility that the parties have adopted this hybrid course precisely because the fee award is in fact higher than could be supported on a statutory fee-shifting basis, yet the deal is so dependent upon class counsel receiving a greaterthan-lodestar amount of fees that the parties were not willing to give the court supervisory discretion to determine the distribution of the total settlement package between counsel and the class.

We recognize that in Evans, 475 U.S. at 720, the Court held that the parties to a class action may simultaneously negotiate merits relief and an award of attorneys’ fees under a feeshifting statute, and may condition the entire settlement upon a waiver of fees. The Court explained:

December 19, 1998. This letter stated that “with respect to attorneys fees, please know that the attorneys fees for work done up to date is [sic] $5 million. (This is one third of $15 million). We have agreed to petition the court for only $3 million, putting the extra $2 million in the pockets of our clients. . . . We have negotiated these amounts down in order to maximize the amount getting to our clients.” Yet counsel Harrell later declared that “the total attorney and paralegal time for each [sic] firm is 8,148 hours,” (emphasis added), while counsel Desper testified that class counsel’s hourly rates ranged between $175 and $225. The $5 million figure presented to the named plaintiffs as fees incurred to date in December 1998 thus appears to be a misrepresentation. Moreover, the actual settlement agreement, as noted, did not provide simply for a ceiling on the amount of fees counsel would seek in a petition to the court but conditioned the settlement upon approval of that amount.

66

STATON v. BOEING

[A] general proscription against negotiated waiver of attorney’s fees in exchange for a settlement on the merits would itself impede vindication of civil rights, at least in some cases, by reducing the attractiveness of settlement.

Id. at 732; see also id. at 733 (“If defendants are not allowed to make lump-sum offers that would, if accepted, represent their total liability, they would understandably be reluctant to make settlement offers.”) (quoting Marek v. Chesny, 473 U.S. 1, 6-7 (1985)). Thus, to facilitate settlement by providing defendants with assurances as to the limits of their liability exposure, the parties to a lawsuit may, in conjunction with their merits negotiation, properly negotiate statutory fees to be paid by the defendant.

The concern motivating the decision in Evans — that prohibiting simultaneous negotiations and agreements as to merits and fees will discourage settlements — simply does not exist, however, in a case, such as this one, in which the parties to the negotiations seek to justify attorneys’ fees as coming from a putative fund and to apply common fund principles. Usually, an agreement that provides lawyers fees on a common fund basis constitutes a “lump-sum” agreement, Evans, 475 U.S. at 733, one that enables defendants to know the precise extent of their liability regardless of the amount of attorneys’ fees eventually awarded from the fund. Thus, the parties could have simply agreed upon the total amount of the putative fund, as well as the damages and injunctive relief, and left the division of that fund as between the class and counsel to the district court, as is usual in common fund cases.22 Requiring the parties to so proceed or, in the alternative, to agree to a fee award as part of the settlement agreement in an amount no higher than could be justified by statutory fee-

22The description of the total amount of the fund need not take any particular form and could result from adding up separately-enumerated amounts in the agreement.

STATON v. BOEING

67

shifting principles, fully serves the defendant’s only legitimate interest in class counsel’s fee award. See In Re GMC, 55 F.3d at 819-820 (“[A] defendant is interested only in disposing of the total claim asserted against it . . . the allocation between the class payment and the attorneys’ fees is of little or no interest to the defense.” (internal quotation marks and citations omitted)); Florin, 34 F.3d at 562 n.1 (“The parties agreed that attorney’s fees were to come out of the settlement fund. Defendants have satisfied their obligation to pay into the settlement fund, and thus have no interest in the amount of fees class counsel want to extract from the fund.”). That requirement thereby provides the requisite impetus to settlement on the defendant’s part while protecting against a maldistribution of the total settlement package between the class and their counsel.

[12] Further, the effect of conditioning the settlement on a set amount of attorneys’ fees based on an actual or putative common fund can be to inhibit district courts from engaging in independent determinations of reasonable fees, as required by law. The parties’ all-or-nothing approach imposes pressure to approve otherwise acceptable and desirable settlements in spite of built-in attorneys’ fees provisions. While this same dynamic may exist where fees can be justified on a statutory fee basis, the more precise lodestar standards for adjudging the reasonableness of such fees, summarized above, make the influence of such pressure much less forceful.

[13] We hold, therefore, that in a class action involving both a statutory fee-shifting provision and an actual or putative common fund, the parties may negotiate and settle the amount of statutory fees along with the merits of the case, as permitted by Evans. In the course of judicial review, the amount of such attorneys’ fees can be approved if they meet the reasonableness standard when measured against statutory fee principles. Alternatively, the parties may negotiate and agree to the value of a common fund (which will ordinarily include an amount representing an estimated hypothetical

68

STATON v. BOEING

award of statutory fees) and provide that, subsequently, class counsel will apply to the court for an award from the fund, using common fund fee principles. In those circumstances, the agreement as a whole does not stand or fall on the amount of fees. Instead, after the court determines the reasonable amount of attorneys’ fees, all the remaining value of the fund belongs to the class rather than reverting to the defendant.

[14] The parties in this case did not follow either of these procedures, or any other that adequately protected the class from the possibility that class counsel were accepting an excessive fee at the expense of the class.23 The district court therefore erred in approving the consent decree.

iii. Injunctive relief as part of the district court’s putative fund

Even if the fee award had been determined in a procedurally proper way, approval of the amount of the attorneys’ fees on common fund principles would still have been mistaken as a matter of law, because the actual percentage award was much higher than the 28% the district court recognized.

In order for attorneys to obtain an award of fees from a common fund, the court must be able to: (1) sufficiently identify the class of beneficiaries; (2) accurately trace the benefits; and (3) shift the fee to those benefiting with some exactitude. Van Gemert, 444 U.S. at 478-79. “[T]he criteria are satisfied when each member of a certified class has an undisputed and

23By spelling out these alternatives, we do not mean to preclude all others. Rather, the parties have flexibility in negotiating class action settlement agreements, including the attorneys’ fee provisions. The alternatives outlined in the text are paradigms. Any variants, to be reasonable, would have to provide equivalent assurance that the inherent tensions among class representation, defendant’s interests in minimizing the cost of the total settlement package, and class counsel’s interest in fees are being adequately policed by the court.

STATON v. BOEING

69

mathematically ascertainable claim to part of a lump-sum judgment recovered on his behalf.” Id. at 479.

Under these requirements, the monetary relief for the plaintiff class (including attorneys’ fees) provided for in the consent decree could be converted as described above so as to qualify as a common fund from which class counsel could obtain an award of attorneys’ fees. The class consists of the approximately 15,000 African-American Boeing employees and so is sufficiently identifiable. The benefits from the monetary relief provided for in the decree would be distributed according to its terms and so can be accurately traced. Finally, the fees could be shifted with exactitude to the benefiting class if taken properly from the fund.

In approving the award of attorneys’ fees provided for in the consent decree, the district court employed the percentage method to determine that the award was fair. The court found that the fees constituted 28% of the putative fund, just above the 25% benchmark. To make this calculation, however, the court included in the amount of the putative fund an estimated value of $3.65 million for injunctive relief, the amount that the decree required Boeing to spend on approval and implementation of this component.

The district court erred by including in the putative fund the parties’ estimated value of the injunctive relief. That relief cannot be translated into anything resembling “an undisputed and mathematically ascertainable” amount for each class member. As noted, much of the injunctive relief included in the consent decree requires Boeing only to “meet and confer” with class counsel or to discuss certain issues. Although Boeing must participate in such conferences and discussions, there is no requirement that Boeing take any action with respect to what the Company learns. The conferences and discussions may not result in tangible dividends to class members. Moreover, a diversity consultant may not benefit the class in monetary terms equivalent to his or her cost.

70

STATON v. BOEING

In addition, some of the injunctive relief described in the consent decree consists of steps Boeing had apparently decided to take on its own, even before it entered the settlement. The decree also permits Boeing to credit expenditures toward the injunctive relief amount without regard to whether such expenditures are in addition to the cost of Boeing’s prior outlays for administering similar programs. Thus, although the injunctive relief (along with the cost of obtaining approval of the decree) is to cost Boeing $3.65 million, that amount of money cannot be accurately traced to the decree, let alone to the individual beneficiaries making up the class. Without the estimated value of the injunctive relief, the fund is reduced to only $10.55 million, and the fee award of $4.05 million constitutes 38% — well above the 25% benchmark — of the putative fund.

Indeed, the nature of injunctive relief means that it will rarely be amenable to “undisputed and mathematically ascertainable” evaluation. Precisely because the value of injunctive relieve is difficult to quantify, its value is also easily manipulable by overreaching lawyers seeking to increase the value assigned to a common fund.

We do not hold that a district court can never consider the value of injunctive relief in determining the reasonableness of a common fund fee. For instance, in Hanlon, 150 F.3d at 1029, we upheld the use of the common fund doctrine to award attorneys’ fees after the parties reached a settlement agreement under which Chrysler would replace defective latches on minivans that it had manufactured. Although the replacement of latches is injunctive in nature, the agreement bestowed upon each beneficiary a material benefit: precisely one replacement latch for each minivan owned. The court could therefore, with some degree of accuracy, value the benefits conferred. Even so, in Hanlon the district court used its valuation of the fund only as a cross-check of the lodestar amount, “reject[ing] the idea of a straight percentage recovery because of its uncertainty as to the valuation of the settle-

STATON v. BOEING

71

ment,” 150 F.3d at 1029, and it was on that basis that we affirmed the fee award.

We hold, therefore, that only in the rare instance in which the value of benefits deriving from injunctive relief can be accurately valued and traced to the beneficiaries may courts include such relief as part of the value of a common fund for purposes of applying the percentage method of determining fees.24 See Van Gemert, 444 U.S. at 478-79. When this is not the case, courts should consider the value of the injunctive relief obtained as a “relevant circumstance” in determining what percentage of the common fund class counsel should receive as attorneys’ fees, rather than as part of the fund itself. See Vizcaino, 290 F.3d at 1049. Alternatively, particularly where obtaining injunctive relief likely accounted for a significant part of the fees expended, courts can use the common fund version of the lodestar method either to set the fee award or as a cross-check to assist in the determination of how the “relevant circumstance” of the injunctive relief should affect a percentage award. See id. at 1050 (“Calculation of the lodestar, which measures the lawyers’ investment of time in the litigation, provides a check on the reasonableness of the percentage award.”).25

The district court did not employ either of these procedures

24Appellees cite cases in which fees have been awarded as a percentage of what they refer to as “non-monetary” benefits. But there is no appellate case cited that supports the fee award here. Two of the cases cited concerned not a common fund but the inapplicable common benefit doctrine. Mills v. Electric Auto-Lite Co., 396 U.S. 375, 392 (1970); Loring v. City of Scottsdale, 721 F.2d 274, 275 (9th Cir. 1983). And in Hanlon, supra, and Wing v. Asarco Inc., 114 F.3d 986, 990 (9th Cir. 1997), attorneys’ fees were calculated (as opposed to cross-checked) not by a common fund percentage approach but using the lodestar method.
25As Vizcaino notes, where attorneys’ fees are awarded on a common fund basis, “[t]he bar against risk multipliers . . . does not apply,” so the lodestar approach can include a risk multiplier. 290 F.3d at 1051; see also Florin, 34 F.3d at 564; WPPSS, 19 F.3d at 1299-1300.

72

STATON v. BOEING

here. Nor can we determine on the record before us that considering the injunctive relief as a “relevant circumstance” or employing the common fund lodestar method would have justified the award of $4.05 million as a reasonable fee. On this ground, also, the district court erred in approving the proposed attorneys’ fees award.

iv. Treatment of Costs of Litigation

In assessing the reasonableness of the fee award, the parties and the district court (1) included the pre-settlement costs of litigation — fairly low in this case, as the settlement occurred early in the lawsuit — as part of the fees awarded; but (2) included the cost incurred by Boeing for providing notices to the class of the settlement in the value of the injunctive relief, and therefore as part of the putative fund against which the reasonableness of the fees was measured.

The parties to the proposed settlement agreed to the inclusion of costs in the amount attributed to fees and the objectors, understandably, have not protested that inclusion. As all of those affected are content with that method of calculation and no class member’s interests are adversely affected, the district court had no cause to disapprove the attribution, nor do we.

The district court also did not abuse its discretion by including the cost of providing notice to the class of the proposed consent decree as part of its putative fund valuation, although the cost of providing two notices rather than one should not have been included. We have said that “the choice of whether to base an attorneys’ fee award on either net or gross recovery should not make a difference so long as the end result is reasonable. Our case law teaches that the reasonableness of attorneys’ fees is not measured by the choice of the denominator.” Powers v. Eichen, 229 F.3d 1249, 1258 (9th Cir. 2000). The post-settlement cost of providing notice to the class can reasonably be considered a benefit to the

STATON v. BOEING

73

class. Also, where, as here, it is the defendant who pays for the notice, we may assume that the inherent incentives to minimize the cost involved are sufficient. Additionally, the court’s supervision of the form of notice and the method of communication assures that the costs expended are contained. We conclude that where the defendant pays the justifiable cost of notice to the class — but not, as here, an excessive cost — it is reasonable (although certainly not required) to include that cost in a putative common fund benefiting the plaintiffs for all purposes, including the calculation of attorneys’ fees.

4. Awards to Named and Unnamed Class Members

One other aspect of the settlement agreement also raises serious concerns as to its fairness, adequacy and reasonableness. The 237 people who are IIRs (and have not opted out) would each receive, on average, sixteen times greater damages than each of the unnamed class members; the subgroup of IIRs who are class representatives would receive even more relative to the class as a whole. While a point-based formula is used to distribute the damages fund among the rest of the class members who make claims, no such objective standards were applied in determining who would be paid as an IIR or in what amount. We find no sufficient justification in the record for this differential in the amount of damage awards and the process for awarding them.

The district court “considered this disparity carefully because excessive payments to named class members can be an indication that the agreement was reached through fraud or collusion.” Indeed, “[i]f class representatives expect routinely to receive special awards in addition to their share of the recovery, they may be tempted to accept suboptimal settlements at the expense of the class members whose interests they are appointed to guard.” Weseley v. Spear, Leeds & Kellogg, 711 F. Supp. 713, 720 (E.D.N.Y. 1989); see also Women’s Comm. for Equal Employment Opportunity v. Nat’l

74

STATON v. BOEING

Broad. Co., 76 F.R.D. 173, 180 (S.D.N.Y. 1977) (“[W]hen representative plaintiffs make what amounts to a separate peace with defendants, grave problems of collusion are raised.”).

Although the district court expressed concern about the differential in damage awards, the court ultimately concluded that the settlement was reasonable, explaining that the named plaintiffs are “the group of class members identified by plaintiffs’ counsel as having the strongest claims and thus as providing the strongest foundation for the lawsuit. Because they have the strongest claims it is fair that they would receive the largest awards.” The record does not, however, support this explanation.

Class counsel represent that an individual became an IIR due to his or her willingness to step forward, risk retaliation, contribute to the attorneys’ costs, and assist in coordination of the lawsuit.26 The contention is that the individuals with the strongest claims were the most likely to participate in this manner. But that generalization greatly oversimplifies. Some further, considerably more direct evidence regarding the strength of the IIRs’ claims is necessary to justify the large disparities in damages.

The need for direct evidence supporting the representation that the IIRs had particularly strong claims is heightened

26For instance, a declaration by one of the class lawyers states that the named plaintiffs
were those who were willing to take the risk of appearing as named plaintiffs; being team leaders; assisting the regional groups in gathering documents, evidence, and identifying other witnesses; coordinating the information flow to and from class counsel; assisting in efforts to raise sums to pay for the cost of this litigation; and/or agreeing to come forward with their claims and be witnesses. In our minds, each of these people was in effect a class representative or at least prepared to be a class representative.

STATON v. BOEING

75

because the record suggests an alternative explanation for the selection of particular individuals as IIRs — their presettlement retention of class counsel and promise to contribute to counsel’s costs. Without contrary proof, the possibility that class counsel were simply rewarding with higher damages amounts those class members who had promised to contribute toward their costs during the pendency of the suit gains considerable plausibility.

Such special rewards for counsel’s individual clients are not permissible when the case is pursued as a class action. Generally, when a person “join[s] in bringing [an] action as a class action . . . he has disclaimed any right to a preferred position in the settlement.” Officers for Justice, 688 F.2d at 632. Were that not the case, there would be considerable danger of individuals bringing cases as class actions principally to increase their own leverage to attain a remunerative settlement for themselves and then trading on that leverage in the course of negotiations.

In In re Cont’l Ill. Sec. Litig., 962 F.2d 566, 571 (7th Cir. 1992) (hereinafter “Continental Illinois”), the Seventh Circuit approved of “incentive fees” to compensate named plaintiffs for the risks they take and their vanguard role in the class action. See id. (“Since without a named plaintiff there can be no class action, such compensation as may be necessary to induce him to participate in the suit could be thought the equivalent of the lawyers’ nonlegal but essential case-specific expenses, such as long-distance phone calls, which are reimbursable.”). Continental Illinois would not justify the damages distribution in this case, as the much higher awards in the consent decree went to a large group of class members, not only to the class representatives. The two hundred-odd IIRs who were not class representatives were not essential to the litigation, although they may have been helpful to it.

Further, we do not see how incentive payments for named plaintiffs or other members of the class active in the litigation

76

STATON v. BOEING

that bear no relation to the strength of their claims can be justified. Class members can certainly be repaid from any cost allotment for their substantiated litigation expenses, and identifiable services rendered to the class directly under the supervision of class counsel can be reimbursed as well from the fees awarded to the attorneys.27 See Missouri v. Jenkins, 491 U.S. 274, 285 (1989).

Similarly, if individual named plaintiffs or other class members demonstrate that they were in fact retaliated against — or at least make some credible allegation of past or possible future retaliation — based on their role in the lawsuit, higher damages awards for such individuals than for other members of the class would be justified. But any plaintiff assumes the risk of retaliation, and we hesitate to single out class representatives or other IIRs as entitled to special payments simply for undertaking such risk.

Further, singling out certain members of the class for higher payments without regard to the strength of their claims eliminates a critical check on the fairness of the settlement for the class as a whole. The individual class members who have actively participated in the litigation are the ones likely to be most aware of the dynamic at the negotiating table, the strength of the class claims, and the costs of pursuing the litigation. If they support the settlement agreement and are treated equally in that agreement with other class members making similarly strong claims, the likelihood that the settlement is forwarding the class’s interests to the maximum degree practically possible increases. If, on the other hand, the active members of the class can be provided with special “incentives” in the settlement agreement, they will be more concerned with maximizing those incentives than with judging

27According to class counsel, counsel will return to the IIRs the monies they paid under retainer agreements, so the damages awards do not cover those funds.

STATON v. BOEING

77

the adequacy of the settlement as it applies to class members at large.

All these concerns about incentive or risk payments to certain class members are exacerbated in this case by the allegation, and in one case (that of Cordell Bolder) the apparent reality, that IIR awards went to individuals who were not proper members of the class.28 Again, if those individuals rendered compensable services to the lawyers, then the lawyers should pay for those services from the amount of the fund properly awarded for costs or fees, as appropriate. But if one or more of these individuals is clearly not a member of the class and therefore not entitled to any damages award, any proposed decree should be approved only if the provision awarding that person or those persons damages is deleted. If, alternatively, an individual’s class membership is debatable, then the award to him or her can be considered an element of the compromise.

We conclude that the aspects of the settlement agreement pertaining to the distribution of the damages fund cannot stand on the present record. Because the very large differential in the amount of damages awards between the named and unnamed class members is not justified on this record, the district court abused its discretion in finding the settlement agreement to be fair, adequate and reasonable under Rule 23(e). We therefore reverse the judgment on this ground as well.

28Cordell Bolder is the son of a class representative whose support of the decree was important. Objectors also allege irregularities with respect to another IIR, Mr. Bolder’s stepfather, Jimmy Dean, as well as a class representative, Charles Jones. The district court had a responsibility to address each of these individuals’ proposed payments. Instead, its analysis did not go beyond stating that the “award to Mr. Bolder [was] unfortunate,” but not fraudulent. Having found that “the parties now admit that he is not a member of the class,” the court should have made approval of the decree contingent on its amendment to eliminate “this single error.”

78

STATON v. BOEING

III. CONCLUSION

Having determined that reversal is appropriate on several grounds, we need not consider the other arguments of the objectors.

On remand, the parties will have a choice concerning whether to attempt to justify the present proposed agreement under the principles outlined above or, instead, to renegotiate the aspects of the agreement we have indicated are questionable. If they choose the former course and are able to justify the damages distribution (which on the present record appears quite unlikely), they will then also have to substantiate the fee award using a lodestar calculation under the applicable feeshifting statutes rather than on a common fund basis.29 For the reasons stated, the fee as it stands cannot be justified on a common fund basis, and the court can only approve or disapprove the present agreement in its entirety. Thus, if the fee cannot be justified on the fee-shifting statutory basis, the entire agreement will have to be renegotiated.

If, alternatively (and more likely, given the seeming difficulty of justifying the current proposed decree), the parties decide to renegotiate and are able to present a revised settlement agreement to the district court, the court will of course need to reassess carefully the fairness of the settlement in accord with the standards we have explicated. If the parties negotiate a settlement fund and leave the attorneys’ fees to be determined by the court on a common fund basis, then the district court, upon petition by class counsel, will determine these fees under the common fund principles discussed above.

The decision of the district court approving the proposed consent decree is REVERSED and REMANDED for proceedings consistent with this opinion.

29In that case, the limitation on risk multipliers announced in Dague, supra, would apply.

STATON v. BOEING

79

TROTT, Circuit Judge, Dissenting:

As they always do, my conscientious colleagues display a thorough and scholarly grasp of the issues that arise in the settlement of class lawsuits. With all respect, however, I see this settlement and the district court’s approval of it in a different light. Thus, I respectfully dissent.

Three main worries, each of which in my view is just an illusion, appear to be driving the majority’s decision to reverse the district court’s approval of this consent decree: (1) the “possibility” that class counsel could have betrayed their clients in favor of their own fees; (2) that the “large differential” in the distribution of monetary awards between class representatives and certain identified class members, on one hand, and unnamed class members on the other, indicates something rotten in Denmark; and (3) that the district court inflated the $3.65 million value attached to the “largely precatory” injunctive relief. As I read this record, and as I shall attempt to demonstrate, these concerns have no foundation in fact or law.

Collusion

The Objectors correctly direct our attention to the rule that we have an obligation to police the settlement of class actions for evidence of collusion. See Fed. R. Civ. P. 23(e) (“A class action shall not be dismissed or compromised without the approval of the court . . . .”) “The purpose of this salutary requirement is to protect the nonparty members of the class from unjust or unfair settlements affecting their rights” as well as to minimize conflicts that “may arise between the attorney and the class, between the named plaintiffs and the absentees, and between various subclasses.” Piambino v. Bailey, 610 F.2d 1306, 1327-28 (5th Cir. 1980). We are to be cognizant of the “ ‘danger . . . that the lawyers might urge a class settlement at a low figure or on a less-than-optional basis in exchange for red-carpet treatment for fees.’ ” In re

80

STATON v. BOEING

General Motors Corp. Pick-Up Truck Fuel Products Liab. Litig., 55 F.3d 768, 819 (3d Cir. 1995) (quoting Weinberger v. Great Northern Nekoosa Corp., 925 F.2d 518, 524 (1st Cir. 1991)). In fact, this is the precise rationale fueling the Objectors’ challenge to the attorneys’ fees agreement: it suggests (1) that the attorneys “exploited the class action device to obtain merits large fees at the expense of the class,” and (2) that the representation was deficient.

Given the purpose of this rule, it occurs to me that if a class action merits settlement is not the product of collusion, the class et cetera has not been sold down the river in exchange for fees, and if the representation of the plaintiffs has been adequate, then the reasonableness of the fees presents itself in a different light, especially if the award is separate from the merits settlement of the case, as it is here. Thus, the first question for us is whether a showing has been made that the merits settlement suffers from some infirmity, suggesting in turn that the fees demonstrate a quid pro quo red carpet treatment in return for a betrayal of the client. I answer this question “no.”

The “possibility” of collusion in this case turns out under scrutiny to be a classic red herring. The district court carefully looked into this “possibility” and found nothing of the sort. The court allowed the Objectors to depose five individuals the Objectors claimed were participants in an alleged secret deal. These depositions uncovered no evidence of collusion, and they supported the proponent’s contention that there was no such evidence. At the end of the day on this important issue, the district court said:

Settlement agreements that are presented prior to class certification are to be considered with particular care because they are more likely to be a product of collusion and because they have not been negotiated by court-approved representatives. The Court has exercised this scrutiny and finds no evidence of collusion. In addition, the Court notes that unlike

STATON v. BOEING

81

many other class actions, the plaintiffs here did not file a complaint having already agreed to a settlement. On the contrary, this case was contentiously litigated for a substantial period prior to the settlement negotiations. And the plaintiffs’ counsel spent a great amount of time preparing the case before it was filed. The nature and quality of this work gives every indication that plaintiffs’ counsel intended to pursue these claims vigorously until they reached a satisfactory result; and is wholly inconsistent with the suggestion that the attorneys planned to sacrifice the plaintiffs’ claims in exchange for a large fee award. It also indicates that the plaintiffs’ counsel had obtained sufficient evidence to understand the strength of the claims despite the lack of formal discovery.

The majority is certainly correct when they conclude that “[t]he district court neither abused its discretion in finding that counsel’s representation was appropriately vigorous for purposes of class certification nor clearly erred in finding that there was no overt collusion”; but then my colleagues erroneously decide this case on mere fears of the possibility of collusion — for which the district court specifically looked and found to be non-existent. What does collusion or the possibility of collusion have to do with this case and this settlement? Nothing. But, the mere specter of collusion in cases like this ends up almost as a neurosis undoing this settlement — even though villainy is manifestly non-existent.

Furthermore, this case, like all such cases, is unique in its facts and circumstances, and the district court’s clear understanding of all of its aspects, as expressed in the court’s Order of approval, dated September 30, 1999, explain away the “troublesome” dimensions of the settlement over which my colleagues — and the Objectors — fret. Three of these circumstances are covered by the first three Hanlon factors the district court must — and did — independently verify to

82

STATON v. BOEING

determine that the consent decree is fair, adequate, and reasonable: (1) the strength of the plaintiffs’ case; (2) the risk, expense, complexity, and likely duration of further litigation; and (3) the risk of maintaining class action status throughout the trial. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998). The district court made the following findings and conclusions about these factors:

The Court reviews the first three factors together. The strengths of the plaintiffs’ claims and the risks of future litigation are clearly related questions. Boeing has faced a series of individual race discrimination law suits in recent years and has won every one. Although the number of named plaintiffs in this case and the descriptions of their experiences lend credence to their allegations, discrimination cases are notoriously difficult to prove, particularly when they are based on failures to promote or other discretionary decisions. There is also some risk that the class certified by the Court would not survive a challenge by Boeing, which might, for example, be able to demonstrate after more extensive discovery that the class claims are too individual to meet the commonality and typicality requirements. Finally, there is no doubt that continued litigation would be enormously burdensome and expensive for the plaintiffs as well as for Boeing. The price of discovery alone in a nationwide class action such as this one is almost always measured in millions of dollars. The objectors raise no serious challenges to these points, and the Court finds that these factors all strongly favor adopting the consent decree.

The record provides ample support for the district court’s understanding of these aspects of this complex litigation.

Accordingly, I conclude that there was no chicanery in this case, and the aspects of the consent decree to which the

STATON v. BOEING

83

Objectors point as telltales of trouble are clearly dealt with and adequately explained by counsel and the district court. Judge Berzon’s scholarly opinion is an excellent discussion of that for which we must always be vigilantly on the lookout in these cases, but in the end, none of it applies to this settlement. My conclusion in this regard drives my analysis of the reasonableness of the attorneys’ fees, as I later explain.

The Differences in Damage Awards

Next, there is my colleagues’ problem with the distribution of monetary awards. This, too, was addressed, explained, and adequately handled by the district court:

More problematic is the disparity between the awards to the named plaintiffs and individually identified recipients and the awards to absent class members. The Court has considered this disparity carefully because excessive payments to named class members can be an indication that the agreement was reached through fraud or collusion. After reviewing the record, however, the Court concludes that there is nothing improper about the damages awards under the decree in this case. There are 264 named members of the class and individually identified recipients who will receive the larger awards. This is a very large group to have been brought inline behind an allegedly collusive agreement. More importantly, this is the group of class members identified by plaintiffs’ counsel as having the strongest claims and thus as providing the strongest foundation for the lawsuit. Because they have the strongest claims it is fair that they would receive the largest awards. Also awards to named class members and others assisting in the prosecution of a class action are generally significantly larger than awards to unnamed class members to compensate the first group for the time and risks taken by involving

84

STATON v. BOEING

themselves in the litigation. For these reasons, the Court concludes that the awards to the named parties are not excessive.

* * *

As a final factor supporting the damages provision of the consent decree, the Court notes that the optout provision allowed any member of the class to preserve an individual claim. Notice was provided to all class members by mail and by publication of the effects of the suit, and information about the claims process was readily available from the Clerk of the Court and from other sources. Any individual who believed that the damages he or she is likely to receive under the decree are inadequate could optout and file an individual suit. The decree provides that the statute of limitations period for such claims would be tolled during the pendency of the class action suit. This protection, as well as the other factors described above, leads the Court to conclude that the provisions for monetary relief in the decree are adequate, fair, and reasonable.

The Value of the Injunction

With all respect, my colleagues inappropriately brush off a highly significant aspect of the record on which the district court explicitly relied in evaluating the value of this settlement, starting with the informed Declaration of Jesse Jackson who vouched in strong terms for its benefit to the affected employees. Here verbatim is what Reverend Jackson offered the district court in this regard:

In June 1998, I was asked if I would review the racial issues pertaining to The Boeing Company (“Boeing”) and, if I felt there was a problem, if I could offer some assistance. Before agreeing to do

STATON v. BOEING

85

so, I reviewed a substantial number of documents regarding promotional opportunities for African Americans at Boeing. I met many of the named plaintiffs in the class action to hear, first hand, what they perceive to be the roadblocks to equal opportunity at Boeing. I was impressed by the named plaintiffs, their candor, and their ability to articulate what they perceive to be the hurdles to equal opportunity. In conversations with them it was clear they were pursuing this litigation not for monetary gain for themselves or to receive a substantial monetary award for the class or particular individuals with grievous discriminatory claims but, instead, they were committed to trying to find a mechanism which would over time permit qualified minorities to have the jobs they deserved but only after full and fair competition with non-minorities. They were not looking for freebies but simply a fair opportunity to be considered and to be promoted on their own merits. After listening to these named plaintiffs, and after discussing the matter with McKAY HUFFINGTON HARRELL & DESPER (“Plaintiffs’ Class Counsel”), I agreed to participate in the process. I contacted senior management at Boeing and scheduled several meetings with them. I personally met with Phil Condit and other senior management officials. We openly and candidly discussed the racial issues at Boeing and they provided materials that I requested so that I could review the significance and magnitude of the issues at Boeing. After these meetings, I met with and worked with Plaintiffs’ Class Counsel and the named plaintiffs in defining the goals of this litigation, what could be achieved and how to achieve it. I have not been paid any compensation [for] my services and advice, nor have the organizations with which I am affiliated been paid anything for my services, and there have been no

86

STATON v. BOEING

promises of nor is there an expectation of payment in the future either for past or future services regarding this litigation or Boeing.

The proposed settlement in the Boeing litigation is, in my view, one that should make Boeing and its African American workers proud. It not only provides significant monetary relief, relative to the potential recovery for the class in this case, but advances the equal opportunity cause to a new and somewhat novel level. One might say that the proposed consent decree is even bold. To my knowledge no other employer has agreed to provide to its African-American employees, free of charge for three years, an outside, unaffiliated law firm with African American partners to review, assist, and advocate employment opportunities for African Americans. I know from my personal experience that there is no language in a policy, no committee, or any other of the traditional kinds of equitable relief in employment consent decrees that can even remotely come close to the efficacy of direct involvement by an independent advocate on behalf of a disenfranchised worker. Having a lawyer available to assist an African American worker to understand the employment process, the complaint process, and to challenge a failed promotional bid will, in my opinion, significantly increase the chances that that African American worker, and others like him or her, will be fairly promoted in the future. This consent decree may well become the model or template for future consent decrees. Providing a truly independent advocate to champion the cause for African American minority workers — as this consent decree does — may become the benchmark by which future employment class settlements are measured. I applaud Boeing for having the courage to provide such an advocate for its workers and

STATON v. BOEING

87

Plaintiffs’ Class Counsel for taking on the obligation and the significant financial risks that it entails.

As I said before, I’ve been involved in several race-related lawsuits including, but not limited to Texaco. In those, I worked with the African American workers, management teams, and the lawyers to resolve equal opportunity issues. There, as in this case, I facilitated the negotiation process and the settlements. From that experience, and my general experience in working with businesses on racial issues, I can say without qualification that the proposed settlement for the Boeing litigation is good for minority workers and I urge the Court to approve it.

(Emphasis added).

The Reverend Jackson’s opinion is just the beginning. An impressive array of experts also submitted declarations in favor of this settlement, experts simply unnamed and ignored by the majority.

Dr. Larry Davis, Ph.D., a chaired professor of racial and ethnic diversity at Washington University in St. Louis, Missouri, said about the proposed consent decree, and its forward-looking aspects:

This is truly a bold approach and, in my experience, would do more in the long run to advance the career opportunities of individual African-Americans at Boeing than any added verbiage to existing programs, than simply increasing their existing wages or salaries, or even giving them an automatic one-time promotion now. It provides a powerful enforcement device and information resource that is critically absent in most corporate environments. I would not be surprised if this aspect of the Boeing Consent Decree — that provides for a disinterested outside

88

STATON v. BOEING

law firm to assist the employer’s workers at no charge — becomes the role model or template for further employment discrimination cases. I encourage the Court to give favorable consideration to this component of the Proposed Consent Decree.

(Emphasis added).

Dr. Al Black, Ph.D., a senior lecturer of sociology at the University of Washington agreed:

This seems to be a novel approach to a historical problem — affirmative plans designed to defeat discrimination without an active enforcement division or monitoring group giving it real teeth. If such “monitor” provides free legal service to its constituents, reviews their employment history and applications for job opportunities, assists them with job applications, and investigates problems should opportunities become unlawfully denied, then tremendous results can occur. This can be a powerful enforcement vehicle and a tremendous opportunity for African American employees at Boeing. Such approach can have the effect of establishing real meaning to the affirmative action rhetoric commonly regurgitated by large corporations and not monitored or enforced.

Traditional affirmative action programs have established the right framework with which to begin building processes that equalize employment conditions. The success of these programs is largely dependent upon how they are implemented and monitored. I believe that a dedicated outside monitoring source would further tremendously the success of these types of programs.

Gary Smith, a senior partner with the Ivy Planning Group, a management consulting firm serving such clients as IBM,

STATON v. BOEING

89

Morgan Stanley, Xerox, the U.S. Postal Service, and Chase Manhattan Bank saw this settlement as did his professional counterparts:

Based on my professional judgement, there is incredible value in the creation of a system whereby employees have access to independent counsel, willing to devote their time and resources to measuring and monitoring the success of the employers’ commitment to diversity issues, and who are available to gather career related information for the worker, to assist in the maze of varying application or promotion criteria, and to confront the employer if the worker’s job/promotion application is wrongly rejected.

The success of any diversity initiative is dependent on how much the employer polices itself. In today’s corporate environment, effective diversity efforts are being moved beyond H.R. organizations and made the responsibility of line mangers. Human Resources and EEO resources are never sufficient. The management team will always choose to devote its limited resources and money to activities that more directly generate income. Putting these two phenomenon together means that even the best affirmative action plan cannot achieve optimal results. However, if an organization is willing to allow an outside firm to assist in these efforts, incredible value is bestowed upon the employee, with bottom line improvements being passed on to the organization.

Kerby Collins, the Internal Civil Rights Manager for the Washington State Department of Transportation was of a similar mind:

When and where internal complaint procedures and adequate monitoring responsibilities fail, as

90

STATON v. BOEING

claimed by the African American employees at The Boeing Company, I believe the most productive and powerful tool available to complainants, would be access to independent legal counsel charged with the responsibility of monitoring the organization’s compliance with the law, or in this case, a Consent Decree. While many organizations may not welcome this type of “policing” function, if organizations are willing to demonstrate this commitment, in the long run it will result in improved organizational behavior and in turn, profitability.

How my colleagues can choose to dismiss the evidence regarding the importance and real value of the injunctive relief against future job discrimination is beyond me. The majority seems simply — and inappropriately — to disbelieve class counsel when they say that “Boeing will also pay $750,000 to retain class counsel for three years after the settlement becomes final to provide free legal assistance to African-American employees seeking career advancement at Boeing.” There is absolutely nothing in this record, I repeat, nothing to suggest that we should not take class counsel at their word about their promises of free legal assistance to these employees, assistance paid for by Boeing.

My colleagues express similar concern about attaching value to what they dismiss as “changes already . . . implemented,” as though matters in the works somehow do not count, or have no value. Yet, they overlook why the changes which they discount came to pass. To quote Boeing in its brief to this court:

Objectors also attack certain elements of the equitable relief as “illusory” because they allegedly were not brought about through the class action litigation. This statement, however, is factually unfounded. The equitable relief provided by the Consent Decree was carefully tailored to address the concerns raised by

STATON v. BOEING

91

plaintiffs in the two Seattle lawsuits, which also were raised by many African-American employees during the period of threatened litigation that led up to those lawsuits. Thus, while some of the equitable relief may have been “in the works” prior to the effective date of the Consent Decree, that relief was clearly the result of the pressure brought to bear on Boeing by the lawsuits. Some background of the events leading up to the litigations helps illustrate this point.

In late 1996 and early 1997, two groups of African-American employees from Boeing’s Everett, Washington and Auburn, Washington facilities came forward and expressed concerns regarding alleged race discrimination. Boeing agreed to interview each employee who raised a complaint, consider common issues raised, and take appropriate action to address the concerns. These two groups grew to approximately 165 employees, and a number of those employees are now included in the Seattle Class Action as IIR’s.

The concerns — and litigation threats — expressed by the two groups centered around perceived unfairness in promotions, especially: (1) the ERT (“Employee Request for Transfer”) system used by Boeing as an element of selecting persons for promotions within the hourly ranks; (2) perceived unfairness in the selection of entry-level managers; and (3) perceived ineffectiveness of the EEO investigation and corrective action function. While Boeing did not believe that these systems were discriminatory, the company nevertheless began to develop improved processes in response to these concerns and threats of litigation. Equitable relief to address these concerns — as well as additional relief addressing other issues — is now found in the Con-

92

STATON v. BOEING

sent Decree. When a defendant takes voluntary action to address claims raised by plaintiffs in litigation, its actions are hardly considered “illusory” — under appropriate circumstances plaintiffs in such cases may be considered “prevailing parties” entitled to recover attorneys’ fees. See, e.g., Stivers v. Pierce, 71 F.3d 732, 751 (9th Cir. 1995) (citing Farrar v. Hobby, 506 U.S. 103 (1992)).

Attorneys’ Fees

My colleagues’ problems with the attorneys’ fees stem from getting lost in unfamiliar trees and a consequent failure to see the forest for what it is. This settlement promises clear future value to African-Americans working for one of our nation’s largest and most important employers. Measured against this value, much of which is intangible, the modest attorneys’ fees agreement appears to me on the record to be quite appropriate. As I have pointed out, it is a stand alone aspect of the settlement. In dollar terms, it does not subtract from the value of the settlement, which is only a small part of what the settlement accomplishes. The merits settlement itself was (1) free of collusion and chicanery, (2) generous in its opt-out provisions, (3) fair in its monetary provisions, (4) forthcoming in its look to the future, and (5) vigorously litigated. Nevertheless, the attorneys’ fees issue ends up as the proverbial tail wagging the dog to death, even though the dog is not a dog at all, but a viable solution to a serious problem demanding prompt resolution. If the settlement itself were truly suspicious and indicative of a betrayal, then a different approach might be in order; but if the settlement stands, in my view, so do these fees. It may not match up perfectly with other methods of measuring whether fees are appropriate, but no matter whether fees here are low or high, they do not subtract from the relief obtained by the plaintiffs. My colleagues say that the method used in this case to determine attorneys’ fees “allows too much leeway for lawyers representing a class to spurn a fair, adequate and reasonable settlement for their

STATON v. BOEING

93

clients in favor of inflated attorneys’ fees.” This problem is not part of this case, and I do not see how something that might have happened but did not must torpedo this hardbargained positive outcome. In the end, this case has been decided based on possibilities, not realities.

Conclusion

The standard of review we are bound to employ is highly differential, as it should be. As the majority admits, “We have repeatedly stated that the decision to approve or reject a settlement is committed to the sound discretion of the trial judge because he is exposed to the litigants, and their strategies, positions, and proof. Hanlon, 150 F.3d at 1026 (citation and internal quotation marks omitted). Accordingly, a district court’s final determination to approve the settlement should be reversed ‘only upon a strong showing that the district court’s decision was a clear abuse of discretion’ . . .” Hanlon, 150 F.3d at 1026 (quoting In re Pac. Enters. Sec. Lit., 47 F.3d 373, 377 (9th Cir. 1995)). Here, not only do the majority fail to adhere to this deferential standard, adopting instead a standard of “somewhat uneasy with the settlement as a whole”; but in my view, they do so in a case where the district court’s approval of the settlement and of the attorneys’ fees was clearly an appropriate exercise of discretion. The district court judge responsible for this case is highly experienced, capable, and astute, one over whose eyes no one pulls the wool. It is a rare settlement that will delight all parties, but this settlement has much to say for it. Accordingly, I dissent from a decision that will have the effect of unnecessarily delaying full implementation of this efficacious solution for four years — if not more — from the date the district court found it to be appropriate.

 
 Volume 1 of 2
FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

ELEANOR STATON; BEVERLY



TROTTER; KEVIN BIGLOW,

Plaintiffs-Appellants,

SOLOMON WILLIAMS; SHIRLEY

MILLER; DEBORAH WOODS; WENDY

KELLY; MYRON KNIGHT; MICHAEL

ECKLES; DONALD BALLARD;

WILLIAM BELL; CLARENCE THOMPSON; DOREEN FERGUSON;

No. 99-36086

CYNTHIA EVANS; WILLIE WILSON;

D.C. No.

MARY DEAN; BRIAN TODD; TIM

CV-98-00761-JCC

JONES; DAVID BRAWLEY; MARA

ORDER

FERRARI; RHONDA CAPPS; CHARLES

WITHDRAWING

JONES; DAVID ROBERTS; VERLENE MAHOLMES; TERRY FISHER; CAROL

 OPINION, FILING OPINION, AND

CALENDER; EVALEAN MOORE; RALPH

DENYING

WILSON; RONNIE MITCHELL;

REHEARING AND

THEODESHIA KNAULS; MICHAEL

REHEARING EN

MARION,

BANC AND

Plaintiffs-Appellees,

OPINION

NADINE MCCLAM-BROWN; CARLA

ABRAHAM; BERTHA ALEXANDER;

SHIRLEY ALLEN; BILLYNDA E.

ANDERSON; LAWRENCE ANDREWS;

DOROTHY J. AYERS; AVIS M.

BANKS; JIMMIE L. BANKS; JOYCE A.

BATES; RAY A. BATES; IDA M.

BATTLES;



5509

5510

STATON v. BOEING

 MARSHALL BATTLES, SR.; TERRI M.

BEAN; ALFRED BEASLEY; VIVIAN

JEAN BELL; MARCIA L. BENFORD;

ROSIE J. BLACK; ADRIENNE BLAND;

THERESA BOZEMAN; BYRON

BRECKENRIDGE; JOHN BRIDGEWATER;

MACEO E. BRIDGEWATER; ANNIE

BROOKS; JOHNNIE PAUL BROOKS;

RONNIE BROWN; SIMON BROWN, JR.;

MARK A. BUFFORD; WILLIAM

BUMPERS; WILBERT G. BURGESS,

SR.; HENRY F. BUTLER; SOLOMAN

C. BUTTS; ELLIS CAMERON; HARRY

CARLIS; TEVIS CARPENTER; FORD

CARR; TAMU CHANDLER; BETTY

CHILDERS; MICHAEL CHILDERS;

RONALD CLARKE; MELCHESTER CLEMONS; GUNICE COLVIN; KENT



COPRIDGE; PAUL L. COSTON, JR.;

DEBRA F COULTER; CEPHAS L.

CURTIS; ANGELA C. CRAVENS;

JAMES CRUMP; PAULINE CRUMP;

TRACY CUNNINGHAM; GILBERT O.

DACE; CLARENCE DANCER; CHARLES

DANIELS; PATRICIA DAVIS; SAM

DAVIS; CHARLES L. DAVISON;

HELEN MARIE DEAN; EVONNE W.

DOGAN; JAMES E. DONALDSON;

TONIA DOWELL; ALICE DUNBAR;

ALLEN DUNBAR; THROMA ANN

DYAS; TERRY EDWARDS; BELINDA

ELLIS; BEZLEY ELLISON; JOSEPH

ELMORE; ABIODUN FANIMOKUN;

 SHARON FANTROY; ARCHIE FIELDS;

STATON v. BOEING
 HICKS FRANK; SHERLINE FRANKLIN;
ALLEN W. FRAZIER; MOSES E. GREASHAM; FREDDIE L. GRISBY; KEVIN C. GUICE; RODERICK W. GUICE; ROY E. HALL; CHARLES H. HARDEN; DENNIS HARRIS; DOROTHY HARRIS; LEON HARRIS; ROBERT L. HARRIS; WYLO HARVEY; ROSEMARIE W. HAUCK; ERIC D. HAYDEN; FREDRICK HIGHTOWER, JR.; CHARLES H. HILL; LARRY HOLLINS; THEODORE HOLT; DELORES HOOD; KAY M. HORTON; VERNA J. HOUSTON; PHILLIP BRUCE HUTCHINS; HATTIE L. IRVING; DELLA M. JAMISON; JOHNNIE L. JEFFERSON;
 REGINALD P. JENKINS; CONSTANCE
JOHNSON; DARLA JOHNSON; HERBERT G. JOHNSON; JAMES JOHNSON; KENNETH JOHNSON; SHARON E. JOHNSON; LECESTER JONES; PHYLLIS J. JONES; BROOKS S. KIMBROUGH; CLAUDETTE LAWSON; DORIS LENOX; LYNN B. LEUFROY; WALTER G. LEWELLEN; FREDERICK LIPSEY; HERBERT E. LOGAN, JR.; VIRGINIA G. LOGAN; PRESLEY T. LORANCE; ANTHONY L. LUCAS; WAYMOND MACONE; SELICIA MALLORY; MARK D. MATTHEWS; RAINARD C. MAYHEW; LARRY D. MCINTOSH; ALBERTO A. MCMILLER; HELEN D. MEDCAFE; GERALDINE MOORE;
 TENNIE MOORE; WADE MOORE, JR.;

5511

5512

STATON v. BOEING

STEPHEN R. MUNDINE; KATHERINE



NEAL; ARTHUR NEWTON;

JACQUELINE OSBORNE; LINDA M.

OUIDS; ERICKA L. OWENS; LEE E.

OWENS, JR.; LEROY PARKER; C.

EUGENE PASCHAL; SANDRA L.

PAYNE; STACY PAYNE; MARGARET

PEACH; ROBERT J. PEARSON;

DOUGLAS PEGUES; HERMAN L.

POOLE; ISAAC M. PORTER, JR.;

RHONDA RANDLE; JAMES RANSON,

SR.; ETHA REAGANS; RANCE H.

REED, JR.; TRESSA REED; BRENDA J.

RICHARDSON; CYNTHIA RIDGE;

 BETTIE RIDLEY; MELVIN L. RIDLEY;
JACKIE ROBINSON; ROBERT L.

ROBINSON II; LES L. ROGERS; FRED

ROSEBOROUGH; T.D. SANDERS;

DONNA N. SCOTT; HUEY L. SCOTT;

VINCE E. SEYMORE; MAURY J.

SHAW; WILLIAM L. SIMS; DAVID E.

SINGLETON; DAVID SKILLMAN; CLEO

P. SMITH; JOHN SMITH, JR.;

LUCRETIA SMITH; DAVID A.

STALLWORTH; MICHAEL STEVENS;

OCTAUIA STEVENS; CARL STOVALL;

JOYCE SULLIVAN; IDELLA TEAGUE;

ALPHONSO E. THOMPSON; ANTHONY

THOMPSON; DONNA THOMPSON; JOHN

F. THOMPSON; TYWANNA F.

THOMPSON; W.R. THOMPSON;



STATON v. BOEING

5513

BENJAMIN F. TILLMAN; DAVID



TILLMAN; SHOMIDE TOKUNBO; ANITA

TRUITT; MICHAEL TURNER; ALAN

LADD TYSON; RACHEL FRAZIER-

VANN; JAMES L. WALKER; AARON

WASHINGTON; CECIL R.

WASHINGTON; ERIC C. WATERS;

CHARLES E. WEBB; SHANNON J.

WELDON; ROZELL WHEATON;

LEONARDO R. WHITE; ERNEST M.

WHITAKER; BOBBY L. WILLIAMS;

DARRYL WILLIAMS; DARYL D.

WILLIAMS; GLEN D. WILLIAMS, SR.;

KENNETH WAYNE WILLIAMS; LORRY

 WILLIAMS; SYLVESTER WILLIAMS, II;
WILBERT WILLIAMS; PATRICIA

WILSON; ALFRED M. WOODS;

MARTHA YBARRA; JACQUELYN L.

ZEIGLER,

Appellants,

v.

BOEING COMPANY, Defendant-Appellee,

and

BOEING NORTH AMERICAN, INC., a Delaware Corp; MCDONNELL DOUGLAS CORPORATION, a Maryland Corporation,
 Defendants.

Appeal from the United States District Court for the Western District of Washington
John C. Coughenour, District Judge, Presiding

5514

STATON v. BOEING

Argued and Submitted May 9, 2001—Seattle, Washington

Filed April 29, 2003

Before: Donald P. Lay,* Stephen S. Trott and Marsha S. Berzon, Circuit Judges.

Opinion by Judge Berzon; Dissent by Judge Trott

*The Honorable Donald P. Lay, Senior Circuit Judge for the Eighth Circuit, sitting by designation.

5518

STATON v. BOEING

COUNSEL
Alan B. Epstein, Spector Gadon & Rosen, P.C., Philadelphia, Pennsylvania, for the plaintiffs-objectors-appellants.
Bruce A. Harrell and Oscar E. Desper III, Harrell, Desper, Connell & Roesch, Seattle, Washington, and Charles K. Wiggins, Bainbridge, Washington, for the plaintiffs-appellees.
C. Geoffrey Weirich and Maureen E. O’Neill, Paul, Hastings, Janofsky & Walker LLP, Atlanta, Georgia, for the defendants-appellees.

ORDER
The panel majority opinion filed November 26, 2002, is withdrawn and the attached opinion is ORDERED filed.
With the filing of the attached opinion, a majority of the panel has voted to deny defendants/appellees’ petition for

STATON v. BOEING

5519

rehearing. Judge Berzon has voted to deny the plaintiffs/ appellees’ and defendants/appellees’ petitions for rehearing en banc and Judge Lay has so recommended. Judge Trott has voted to grant the petition for rehearing and to grant the petitions for rehearing en banc.

The full court was advised of the petitions for rehearing en banc. A judge of the court requested a vote on whether to rehear the matter en banc. The en banc request failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration.

The petition for rehearing and the petitions for rehearing en banc are DENIED.

OPINION
BERZON, Circuit Judge:
This case involves a consent decree in an employment discrimination class lawsuit. The action was brought in 1998 by a class of approximately 15,000 African-American employees of the Boeing Company (“Boeing” or “the Company”) against the Company. The decree requires Boeing to pay $7.3 million in monetary relief to the class, less reversions and an opt-out credit,1 and releases Boeing from race discrimination-related and other claims. It further provides for certain injunctive relief, although much of this relief appears to be largely precatory in nature. Finally, the decree awards to the lawyers for the class (“class counsel”) $4.05 million in attorneys’ fees.2
1After applying the reversion and opt-out provisions, the damages awarded by the decree amount to approximately $6.5 million.
2This amount includes $3.85 million in fees and costs to class counsel and $200,000 to objectors’ counsel.

5520

STATON v. BOEING

A group of class members objected to the proposed consent decree, arguing that the class fails to meet the certification requirements of Fed. R. Civ. P. 23(a) (“Rule 23(a)”) for class actions and that the settlement contained in the decree is unfair, inadequate and unreasonable under Fed. R. Civ. P. 23(e) (“Rule 23(e)”). The district court approved the decree despite the objections, and the objectors appealed to this court. After oral argument, we requested supplemental briefs from the parties concerning the attorneys’ fees issues.

We hold that the district court acted within its discretion in certifying the case as a class action pursuant to Rule 23(a). We agree with the objectors, however, that the district court should not have approved the settlement agreement under Rule 23(e), because of several considerations relating to the award of attorneys’ fees and because of the structure of the damages payments established by the decree.

The parties negotiated the amount of attorneys’ fees as part of the settlement between the class and the Company. They included as a term of the proposed decree the amount of attorneys’ fees that class counsel would receive. The action falls under the terms of two fee-shifting statutes. By negotiating fees as an integral part of the settlement rather than applying to the district court to award fees from the fund created, Boeing and class counsel employed a procedure permissible if fees can be justified as statutory fees payable by the defendant.

Boeing and class counsel did not, however, seek to justify the attorneys’ fees on this basis but instead made a hybrid argument: They maintained that the award is an appropriate percentage of a putative “common fund” created by the decree even though common funds, as opposed to statutory fee-shifting agreements, usually do not isolate attorneys’ fees from the class award before an application is made to the court. The district court approved the fee on that common fund basis.

STATON v. BOEING

5521

The incorporation of an amount of fees calculated as if there were a common fund as an integral part of the settlement agreement allows too much leeway for lawyers representing a class to spurn a fair, adequate and reasonable settlement for their clients in favor of inflated attorneys’ fees. We hold, therefore, that the parties to a class action may not include in a settlement agreement an amount of attorneys’ fees measured as a percentage of an actual or putative common fund created for the benefit of the class. Instead, in order to obtain fees justified on a common fund basis, the class’s lawyers must ordinarily petition the court for an award of fees, separate from and subsequent to settlement.

To assess the reasonableness of the attorneys’ fees awarded by the decree, the district court compared the amount of the fees to the amount of the putative common fund and determined what percentage of this fund the fee amount constituted. This comparison is a permissible procedure when a court is determining the reasonableness of fees taken from a genuine common fund. In conducting the comparison, however, the district court included in the value of the putative fund the parties’ inexact, and quite probably inflated, estimate of the value of the proposed injunctive relief. Such relief should generally be excluded from the value of a common fund when calculating the appropriate attorneys’ fees award, as the benefit of that relief to the class members is most often not sufficiently measurable. The fact that counsel obtained injunctive relief in addition to monetary relief for their clients is, however, a relevant circumstance to consider in determining what percentage of the fund is reasonable as fees. We hold further, therefore, that parties ordinarily may not include an estimated value of undifferentiated injunctive relief in the amount of an actual or putative common fund for purposes of determining an award of attorneys’ fees.

Finally, the decree sets up a two-tiered structure for the distribution of monetary damages, awarding each class representative and certain other identified class members an amount of

5522

STATON v. BOEING

damages on average sixteen times greater than the amount each unnamed class member would receive. At least one person not a member of the class was provided a damages award. The record before us does not reveal sufficient justification either for the large differential in the amounts of damage awards or for the payment of damages to a nonmember of the class. On this ground as well, the district court abused its discretion in approving the settlement.

I. BACKGROUND

A. Lawsuit Filed and Settled

In September 1997, a group of African-American employees of the Company who believed that they were victims of race discrimination by Boeing consulted class counsel. Prior to the filing of this lawsuit, forty-three African-American Boeing employees filed a lawsuit in March 1998 in federal court in Seattle, Washington, alleging individual claims of race discrimination in violation of 42 U.S.C. § 1981 and the state anti-discrimination law, Wash. Rev. Code § 49.60 et seq. (the “Seattle individual action”). Several months later, in June 1998, sixteen Boeing employees, including twelve plaintiffs from the Seattle individual action, filed this class action in the same court. The employees again alleged violations of § 1981 and the state anti-discrimination law but sought to represent both themselves and other similarly-situated AfricanAmerican Boeing employees. The action alleged that Boeing’s promotion, compensation, and career development decisions were systematically discriminatory and that Boeing created and permitted a racially hostile work environment.

The plaintiffs amended their complaint on November 4, 1998. In the amended complaint thirty-two named plaintiffs seek to represent all African-American Boeing employees. The amended complaint alleges violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as well as violations of § 1981; it omits the state anti-discrimination

STATON v. BOEING

5523

claim but includes other state tort and contract causes of action. The named plaintiffs and over two hundred other Boeing employees each signed retainer agreements with class counsel. They agreed to pay class counsel an initial fee of $300 and to follow that payment with monthly payments of $200 each; the record contains several letters from class counsel to these individuals urging that the payments be brought up to date. Approximately $150,000 was raised in this manner.

Meanwhile, in July 1998, seven named plaintiffs filed a similar class action against Boeing in Philadelphia (the “Philadelphia class action”). The plaintiffs in this case moved in October 1998 to consolidate the two actions.

Soon thereafter, in early November, Boeing filed a motion to dismiss plaintiffs’ class claims. Also in November, class counsel and Boeing began settlement negotiations. Class counsel had met with numerous African-American Boeing employees before filing suit but almost no formal discovery had taken place by November. At the beginning of December, class counsel indicated frustration to their clients about the Company’s lack of responsiveness, characterizing “much of what Boeing has provided thus far as ‘junk,’ ” and adding that “Boeing has been unwilling to provide us with numerous documents we believe are pertinent to proving Boeing’s unlawful treatment of African Americans.” The negotiations nonetheless proceeded rapidly for such a large class action at this early stage of litigation, with the result that, in January 1999, Boeing and class counsel announced that they had agreed to settle the lawsuit. The parties filed motions in district court for class certification and for preliminary approval of a consent decree.

On January 25, 1999, the district court provisionally certified the class and preliminarily approved the consent decree. The preliminary approval order required the Company to provide approved notice of the proposed decree to class members

5524

STATON v. BOEING

through newspaper publication, distribution using the Company’s payroll system for present employees, and first-class mailings to former employees. Two distributions of the notices were ultimately required because the first notices published and mailed were improper and had to be corrected. The notices explained that Boeing would pay the attorneys’ fees and costs and reported the total sum of money Boeing would pay under the decree, the amount to be paid for monetary awards to members of the class, and the amount ascribed to injunctive relief. Neither version expressly identified the amount of attorneys’ fees provided in the proposed decree.

B. Proposed Consent Decree

The proposed consent decree purports to resolve this case, the Seattle individual action, and the Philadelphia class action. The decree releases Boeing from liability for claims brought by any of the Company’s African-American employees in exchange for certain monetary and injunctive relief. In particular, Boeing is released by all class members from all existing claims for race discrimination (under any of the various discrimination laws) and for “negligent misrepresentation, fraud, detrimental reliance, promissory estoppel, or breach of contract,” without regard to whether such claims are in any way related to the alleged race discrimination. The period covered by the release is set according to the statute of limitations period of the state in which a class member resides and extends until the preliminary approval date of the decree. As a result, any claims arising before January 25, 1999 (the preliminary approval date) of the types covered by the decree and timely under the relevant state statute of limitations are barred.

The decree goes on to certify a settlement class pursuant to Fed. R. Civ. P. 23(b)(2) for purposes of equitable relief. That class consists of all African-Americans employed by Boeing from the beginning of the applicable limitations periods until the expiration of the decree (including new employees hired

STATON v. BOEING

5525

after the preliminary approval date of the decree). No opt-outs are allowed from the equitable relief class. The effect of this provision may be that no African-American employed by Boeing during the pertinent period, including new hires, can obtain any injunctive relief — reinstatement, promotion, or change in working conditions, for example — even if he or she opts out of the class for purposes of monetary relief and proves race discrimination in a separate action.3

For purposes of monetary relief, the decree approves a Settlement Class pursuant to Fed. R. Civ. P. 23(b)(3), consisting of African-American Boeing employees employed from the beginning of the applicable limitations periods until the preliminary approval date of the decree, and allows members of that class to opt out of the monetary relief provisions. By the cut-off date of April 30, 1999, about 500 class members had opted out, including six named plaintiffs.

The class receives a total monetary award of $7.3 million. Out of the approximately 15,000-member class, a group of 264 individuals4 — less than two percent of the class — made up of the named plaintiffs and other class members identified by class counsel as having actively participated in the litigation (together, the “individually identified recipients” or “IIRs”) is to receive $3.77 million, more than half the monetary award. The $3.77 million will be distributed among the IIRs in amounts established by class counsel, who credit the assistance of an independent claims adjuster for consultation on many, but not all, of the claims. There is ample evidence in the record that before retaining this claims adjuster class counsel extensively discussed specific award amounts with some IIRs. Moreover, the record indicates that class counsel

3It is possible that new hires are not so barred. The decree provides, in a separate provision, that nothing in the decree “bars any claims of members of the Settlement Class . . . based on or arising out of events occurring after the Preliminary Approval date.”
4After opt-outs this group was reduced to 237 persons.

5526

STATON v. BOEING

made the final decisions concerning many of these designated payments.

The individual awards for the IIRs range from $5,000 to $50,000, with most of the class representatives receiving higher awards than the other IIRs, and average approximately $16,500. Based on our examination of records relating to the Wichita-based IIRs, the individuals singled out for IIR settlement payments are for the most part the same people who signed individual retainers with class counsel that obligated them to pay monthly fees.

The remaining $3.53 million of monetary relief is to be distributed to the rest of the class (the “unnamed class members”). To receive an award, unnamed class members must submit a claim form to an independent claims arbitrator (hired by class counsel and approved by the district court), who will verify the validity of the claims against Boeing’s records and designate awards according to a detailed point system laid out in the decree and applicable only to the unnamed class members. Some 3,400 class members filed claims, so the average payment each unnamed class member would receive is approximately $1,000.

Boeing also agreed to pay $3.75 million to $3.85 million to class counsel for fees and expenses, as follow:

— $3 million for attorneys’ fees and costs (the parties agreed that class counsel had incurred approximately $126,000 in costs as of the preliminary approval date);

— up to $100,000 for explaining the decree to class members;5 and

5The full $100,000 has already been paid to class counsel, by order of the district court.

STATON v. BOEING

5527

— $750,000 for monitoring, administering, implementing, and defending the decree.

The decree also grants $200,000 to objectors’ counsel for their role in representing the putative class in the Philadelphia class action.

Finally, within three years of receiving final judicial approval of the decree, Boeing must spend an additional $3.65 million on expenses related to the approval and implementation of the decree. This $3.65 million would go toward the cost of providing notice to class members of the proposed settlement and toward the injunctive relief provided for in the decree, discussed below. The decree further provides that:

Such credited expenditures shall also include money spent by Boeing on diversity training and other programs designed to improve the cooperation between members of Boeing’s diverse workforce, to facilitate the advancement of African-Americans into firstlevel and higher-level management positions at Boeing, to prevent and/or resolve racial harassment concerns among the workforce, and/or to otherwise advance equal employment opportunity for AfricanAmerican employees of Boeing.

Nothing in the decree requires that the credited amount be in addition to any amount of money Boeing was already planning to spend on such matters. The timing of such expenditures is within Boeing’s discretion, although the parties expressed the expectation that half the funds would be spent between the preliminary approval date and the first anniversary of the final approval.

The decree’s injunctive provisions are to be in effect for the three years following final judicial approval of the decree. The injunctive relief provided for in the decree is as follows:

5528

STATON v. BOEING

(1) Boeing will not discriminate based on race or retaliate against employees for opposing race discrimination or participating in efforts to eradicate it. These general provisions mirror statutory prohibitions. However, “Court enforcement of this Decree shall not be utilized as a method for class members to litigate entitlement to individual relief for claims of alleged Race Discrimination,” and individual complaints of race discrimination “shall not be considered to raise an issue of compliance or non-compliance with this decree.”

(2) Boeing will meet annually with a three-person advisory committee chosen from among the class members to discuss “Settlement Class members’ viewpoints and concerns.” The members of the committee will bear their own expenses for attending the meetings.

(3) Boeing will hire one or more consultants “to assist it in developing and assessing the success of alternative and/or supplemental human resources systems designed to accomplish the objectives in this Section [describing the injunctive relief] of the Decree.” The consultant is to be chosen by Boeing and class counsel.6 The consultant is to investigate the degree to which the decree successfully addresses various of the class members’ concerns and to report back to Boeing and class counsel. Nothing in the decree requires Boeing to take any action in response to these reports or otherwise to take any action suggested by the consultant.

6The decree appears to provide — but is not lucid in this respect — that Boeing is to designate a group of three nominees from which the consultant will be selected, taking into consideration nominees proposed by plaintiffs.

STATON v. BOEING

5529

(4) Boeing — unilaterally — will develop and implement systems for providing information to hourly employees about the Company’s promotion systems and will develop and “pilot” a program designed to enable hourly employees to learn who received a particular promotion. Boeing is required to meet and confer with class counsel about the effectiveness of these programs once implemented but is not required to adopt any suggestions class counsel make or, with regard to the “pilot” promotion information program, to do anything more than “determine the feasibility of implementing that program, or comparable programs” throughout the Company.7

(5) Similarly, Boeing will develop a system whereby qualified but unsuccessful candidates for discretionary promotions will receive feedback and be directed to training or other steps that would make the candidates more competitive. Class counsel are to “monitor” this process, with no provision for any dispute resolution mechanism should class counsel conclude that the system is inadequate or ineffective.

(6) With regard to filling opportunities for temporary promotions (useful in providing experience relevant to desirable positions), Boeing “shall identify informal systems” to permit candidates to know about and be considered for

7If Boeing decides that there are “significant impediments to implementing . . . programs” providing information about who received a particular promotion, Boeing is to “meet and confer with Class Counsel regarding alternative approaches.” Again, there is no requirement that Boeing actually implement any such alternative approaches.

5530

STATON v. BOEING

such opportunities, and shall “meet and confer” with class counsel regarding such informal systems and related complaints. There is no requirement that Boeing change its behavior in response to any suggestions or objections by class counsel or any class member.

(7) Boeing “presently plans” to expand its First Level Management Selection Process (FLMSP) to all its operations over the first two years of the decree. The FLMSP, thus far a pilot program at Heritage Boeing8 locations, attempts to create a standardized, fair process for selecting first-level managers. If “Boeing decides not to implement FLMSP in certain portions of the Company’s operations, Boeing will advise Class Counsel of the alternative selection methods which will be utilized in such operations, and Class Counsel will provide feedback to Boeing regarding any systemic concerns about such alternative methods which they believe may impact upon the Settlement Class members.” Boeing can modify the FLMSP or eliminate it altogether; if it does so, Boeing must advise class counsel “and consider feedback provided by Class Counsel regarding such changes.”

(8) In 1998, in part in response to this litigation, Boeing developed new “Company-wide EEO Investigation Guidelines,” which, among other things, improve the time period for addressing internal discrimination complaints. Boeing will accept “feedback” from class counsel on the

8“Heritage Boeing” refers to the portion of the Company that existed before its purchase of the McDonnell Douglas Corporation and parts of Rockwell International.

STATON v. BOEING

5531

guidelines generally and on any modifications the company makes and “may” use the consultant’s services to refine these procedures.

(9) Boeing will continue the provisions of its existing harassment policy concerning race, or implement amended policies “reasonably designed to achieve the same effect” as the existing policy. Class counsel will have the opportunity to provide “feedback” on any modifications to that policy. However, “[i]ndividual [harassment] complaints shall not be considered to raise an issue of compliance or noncompliance with this Decree.”

C. Objections and Their Resolution

In April 1999, some members of the class filed objections to the proposed consent decree. The district court allowed limited discovery by the objectors, reviewed motions by all parties, and held two fairness hearings (but did not take any evidence at those hearings).

Among other matters, the objectors complained that class counsel could not have meaningfully assessed the value of class claims because of insufficient discovery; that the monetary relief was inadequate and unfairly distributed; that the injunctive relief would not result in concrete benefits to the class; that the court should not approve a single broad class, since the members of the putative class have divergent interests; that plaintiffs’ counsel are not fairly representing the plaintiffs because, inter alia, individual class members were promised monetary relief in order to secure their support of the decree; that the notice provided to class members was deficient; and that the fees awarded to class counsel are too high.

5532

STATON v. BOEING

In partial response, most of the named plaintiffs and Boeing submitted summaries of allegedly comparable average monetary awards in other employment class actions; declarations of several experts, including the Reverend Jesse Jackson, praising the proposed decree (largely on the understanding that the decree would provide individual class members with free legal representation with regard to their employment issues at Boeing);9 and evidence that Boeing had vigorously contested race discrimination cases brought to trial against the Company, with victorious results that led class counsel, as stated in a declaration to the district court, to be “hard pressed to find anything that would support a nationwide victory over Boeing.”

In September 1999, the district court certified a settlement class and approved the decree. In its order approving the decree, the district court concluded that “there are important advantages to class-wide resolution in this type of dispute.” The court cited Boeing’s past success in defending against individual claims of race discrimination; the court’s assessment of the effectiveness of the injunctive relief; and the cooperative nature of the settlement. It found no merit to the objectors’ qualms over the class’s certification. Plaintiffs’ “allegations clearly raise class-wide legal and factual issues sufficient to satisfy the [commonality] requirement.” Moreover, typicality was assured by the “broadly selected cross-section . . . of Boeing employees” serving as named plaintiffs. The court proceeded to certify the class.

Concerning the fairness of the decree, the district court emphasized “a strong judicial policy favoring settlement of

9Similarly, the district court read the decree as providing that “free legal advice will be available to assist class members who feel that they have been discriminated against by the company.” In its memorandum in support of class certification, Boeing wrote that it “does not subscribe to as expansive an interpretation of Class Counsel’s post-decree monitoring responsibilities.”

STATON v. BOEING

5533

class actions,” noting the conservation of resources for all concerned that leaves “more to devote to the problems raised by the claim.” The court approved the notice procedure followed by the parties and then conducted an analysis of the fairness, adequacy and reasonableness of the decree.

The “heart of the matter” according to the district court was the amount of the settlement; it reviewed the decree’s components and found that the objectors “have not presented any evidence to suggest that the amount of payments appear [sic] inadequate or unfair when compared with the other cases [cited by Boeing].” Further, the court decided that “the awards to the named parties are not excessive.” Without reviewing the proposed decree in any detail in its order, the district court concluded that the injunctive provisions are not “toothless,” but “present a novel and potentially effective response to the problem of race discrimination.” After rejecting categorically allegations of collusion between class counsel and Boeing, the court concluded, citing this court’s precedent, that “the mere possibility of a better settlement is not sufficient grounds for finding the agreement unfair.” As a final matter, the district court found the award of attorneys’ fees “to be reasonable given the nature of the case, the risks to the plaintiffs’ counsel’s firm, and the amount of pre-filing and post-settlement work performed.”

II. DISCUSSION

This case presents difficult questions regarding the appropriate role of the courts in approving class action settlement decrees. The governing principles are clear, but their application is painstakingly fact-specific and hampered by the much greater knowledge of the parties as to the give-and-take of the bargaining process. Judicial review also takes place in the shadow of the reality that rejection of a settlement creates not only delay but also a state of uncertainty on all sides, with whatever gains were potentially achieved for the putative class put at risk. We are mindful of the value dialogue and

5534

STATON v. BOEING

cooperation have played in attempting to resolve this litigation and in aspiring to foster a spirit of future goodwill in the wake of an alleged systemic pattern of race discrimination.

To vindicate the settlement of such serious claims, however, judges have the responsibility of ensuring fairness to all members of the class presented for certification. Especially in the context of a case in which the parties reach a settlement agreement prior to class certification, courts must peruse the proposed compromise to ratify both the propriety of the certification and the fairness of the settlement. First, the district court must assess whether a class exists; “[s]uch 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.” Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 620 (1997). Second, the district court must carefully consider “whether a proposed settlement is fundamentally fair, adequate, and reasonable,” recognizing that “[i]t is the settlement taken as a whole, rather than the individual component parts, that must be examined for overall fairness. . . .” Hanlon v. Chrysler Corp. 150 F.3d 1011, 1026 (9th Cir. 1998) (citations omitted). When, as here, the parties have entered into a settlement agreement before the district court certifies the class, reviewing courts “must pay ‘undiluted, even heightened, attention’ to class certification requirements. . . .” Id. at 1019 (quoting Amchem, 521 U.S. at 620). Moreover, concerns about the fairness of settlement agreements “warrant special attention when the record suggests that settlement is driven by fees; that is, when counsel receive a disproportionate distribution of the settlement. . . .” Id. at 1021.

In this case, the objectors contend that the lawsuit does not qualify for class action status under Rule 23(a). We review under the abuse of discretion standard a district court’s decision to certify a case as a class action. Armstrong v. Davis, 275 F.3d 849, 867 (9th Cir. 2001). Although we have some concerns, largely relating to litigation management, as to

STATON v. BOEING

5535

whether the case could be maintained as a class action if the litigation continues, the district court did not abuse its discretion in certifying the case for settlement purposes pursuant to Rule 23.

The objectors argue in the alternative that the district court should not have approved the settlement agreement under Rule 23(e). “We have repeatedly stated that the decision to approve or reject a settlement is committed to the sound discretion of the trial judge because he is exposed to the litigants, and their strategies, positions and proof.” Hanlon, 150 F.3d at 1026 (citation and internal quotation marks omitted). Nonetheless, the district court did in this case abuse that discretion. To repeat what this court had reason recently to state: “Although we are always cautious to reverse the . . . approval of a settlement agreement because of the time and effort dedicated by the parties and the district court, we are compelled to do so in this case because of the unjust terms of the decree.” Molski v. Gleich, 318 F.3d 937, 956 (9th Cir. 2003).

We address first the propriety of the class certification and then examine the district court’s decision to approve the settlement agreement.

A. Class Certification

Rule 23(a) establishes four prerequisites for class action litigation, which are: (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation. We examine each of these requirements in turn.

1. Numerosity

Rule 23(a)(1) requires that “the class is so numerous that joinder of all members is impracticable.” There is no dispute that the numerosity requirement is met in this case. The plaintiff class before us is approximately 15,000 in number.

5536

STATON v. BOEING

2. Commonality

Rule 23(a)(2) requires that “there are questions of law or fact common to the class.” We stated in Hanlon that

Rule 23(a)(2) has been construed permissively. All questions of fact and law need not be common to satisfy the rule. The existence of shared legal issues with divergent factual predicates is sufficient, as is a common core of salient facts coupled with disparate legal remedies within the class.

150 F.3d at 1019.

The class in this case is broad and diverse. It encompasses some 15,000 employees, from a wide range of positions both salaried and hourly, who are employed at Boeing facilities located in 27 different states. Class counsel argue, and the district court found, that the large class is united by a complex of company-wide discriminatory practices against AfricanAmericans.

General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 157, 159 (1982), emphasizes that the fact “that racial discrimination is by definition class discrimination,” cannot automatically convert a single allegation of race discrimination into “an across-the-board attack.” Though the commonality claim in this case is ambitious and therefore especially worthy of scrutiny, it is far from the theoretical extrapolation sought in Falcon. That case concerned only one named plaintiff who did not identify any other plaintiffs subjected to the treatment he claimed to have experienced.

By contrast, the record indicates that class counsel interviewed more than 1,300 Boeing employees from facilities across the country. Counsel have produced detailed documentation of discrimination experienced by more than 200 of these employees. Those named employees include salaried

STATON v. BOEING

5537

managers and hourly line-workers, union members and nonunion members, employees from all of Boeing’s major locations, and employees from two firms that Boeing recently acquired. Appellees also point to the results of an internal “survey of Boeing’s affirmative action issues,” distributed in an e-mail to Boeing senior management. The e-mail identified “racial bias” in the categories of hiring practices and promotion practices and “race issues” in the category of peer working environment as issues of concern at the Company.

In fact, the named plaintiffs and objectors share the contention that discriminatory practices at Boeing are widespread and entrenched. According to the district court, “both the supporters of the consent decree and the objectors spoke forcefully of institutional problems with race discrimination.” The court may not go so far, of course, as to judge the validity of these claims. “Although some inquiry into the substance of a case may be necessary to ascertain satisfaction of the commonality and typicality requirements of Rule 23(a), it is improper to advance a decision on the merits to the class certification stage.” Moore v. Hughes Helicopters, Inc., 708 F.2d 475, 480 (9th Cir. 1983), citing Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78 (1974). But the breadth and consistency of class counsel’s initial evidence places the district court’s finding of commonality well within that court’s discretion.

Objectors also dispute the finding of commonality on three more specific grounds. First, objectors claim that common issues cannot link all African-American Boeing employees when two of Boeing’s subsidiaries are recent acquisitions. Boeing acquired the defense and space operations of Rockwell International in December 1996 (renaming them Boeing North America, hereinafter “BNA”), and the McDonnell Douglas Corporation (“MDC”) in August 1997. Employees from both these subsidiaries are among the class representatives. Their reported experiences are similar to the others’.

Boeing is responsible for the employment practices of all its sub-parts. The Company, for example, issued an “Equal

5538

STATON v. BOEING

Employment Opportunity” policy in July 1998, applicable to all Boeing organizations. This document stated that the “primary responsibility for implementing this policy rests with the senior management of the company.” Some of the class’s historical evidence from BNA and MDC employees may extend to before the mergers, but the kernel of the class complaint is that a complex of discriminatory practices pervades Boeing today and in the recent past. The fact of the mergers does not bar a finding of commonality.

Objectors also contest commonality on the ground that some class members were subject to collective bargaining agreements that laid out objective criteria for promotions. Objectors point to a comment in a footnote from the Falcon opinion:

Significant proof that an employer operated under a general policy of discrimination conceivably could justify a class of both applicants and employees if the discrimination manifested itself in hiring and promotion practices in the same general fashion, such as through entirely subjective decisionmaking processes. In this regard it is noteworthy that Title VII prohibits discriminatory employment practices, not an abstract policy of discrimination.

Falcon, 457 U.S. at 159 n.15. This hypothetical class in Falcon’s footnote fifteen is both broader and narrower than the class before us. It is broader because the class here does not combine employees with applicants and does not allege discriminatory hiring. It is narrower because the class here complains of a complex of discriminatory practices that includes compensation, training, and work environment in addition to promotions. Union employees under objective promotion systems may have been immune to discrimination in promotion, but they could still have been affected by other alleged axes of discrimination.

STATON v. BOEING

5539

We understand footnote fifteen of Falcon to present a demonstrative example rather than a limited exception to the overall skepticism toward broad discrimination class actions.10 That is, as we read Falcon, it does not generally ban all broad classes but rather precludes a class action that, on the basis of one form of discrimination against one or a handful of plaintiffs, seeks to adjudicate all forms of discrimination against all members of a group protected by Title VII, § 1981 or a similar statute.

Bouman v. Block, 940 F.2d 1211 (9th Cir. 1991), confirms our reading of Falcon. Bouman was a post-Falcon case in which we upheld the certification of a class of female applicants for a sergeant’s position. Defendant Los Angeles County objected to the lack of an evidentiary hearing on the commonality question, citing Falcon. We noted that the district court had concluded “that there were common questions in that ‘plaintiff is attacking defendants’ discriminatory practices against females, and this is not just as it applied to plaintiff only.’ This statement identifies a common legal issue, discrimination against women, and a common factual problem, discrimination as applied in the Sheriff’s Department.” Id. at 1232. We found the Falcon concern inapplicable because class status was not sought on the basis of a single discriminatory practice “as it applied to plaintiff only.” Id. For similar reasons, Falcon does not bar a commonality finding in this case.

10One Fifth Circuit opinion may reflect the latter approach. In Vuyanich v. Republic Nat’l Bank, 723 F.2d 1195 (5th Cir. 1984), that court overturned the certification of a class of women and African-American employees and applicants (which was divided into five subclasses). The decision relied in part on the existence of objective factors in the hiring process, referring to the comment in footnote fifteen as a “ ‘general policy of discrimination’ exception.” “The district court’s finding that the Bank relied on two objective inputs — education and experience — in its necessarily subjective hiring process . . . precludes reliance on this ‘general policy of discrimination’ exception.” Id. at 1199-1200.

5540

STATON v. BOEING

Third, objectors contend that decisionmaking at Boeing is too decentralized to permit a class that combines plaintiffs from disparate locales. Objectors rely for this argument on Doninger v. Pac. Northwest Bell, 564 F.2d 1304 (9th Cir. 1977), in which we upheld a district court’s denial of certification to an attempted class of female employees and applicants.

The primary reason class certification was inappropriate in Doninger was that the putative class would in large part have overlapped with the terms of a consent decree entered into by American Telephone and Telegraph and already applicable to Pacific Northwest Bell employees. “Substantial numbers” of the individuals who would have been class members had waived their claims and accepted relief under the preexisting decree. Id. at 1309.

Additionally, plaintiffs in Doninger wanted to rely, in the style that Falcon later rejected, on the experiences of a few individuals. Ruling on the commonality question, we found it significant that Pacific Northwest Bell was divided into six “establishments,” each with its own affirmative action program, while “[a]ll of the named plaintiffs are employed in one of three establishments. . . .” Id. at 1310. We reasoned that “[s]ince different affirmative action programs, and thus possibly different patterns and practices, exist in each establishment, appellants would have considerable difficulty in adequately representing class members from the other three PNB establishments.” Id. at 1311 (footnote omitted).

The case before us does not present the problem of a preexisting consent decree. Moreover, its named plaintiffs come from a wide array of Boeing’s divisions.

As noted above, Boeing is responsible for the employment practices of all its units. Class counsel introduced evidence of centralized decisionmaking. The unsurprising fact that some employment decisions are made locally does not allow a com-

STATON v. BOEING

5541

pany to evade responsibility for its policies. See, e.g., Bates v. United Parcel Serv., 204 F.R.D. 440, 446 (N.D. Cal. 2001); Morgan v. United Parcel Serv. of Am., 169 F.R.D. 349, 356 (E.D. Mo. 1996).

We conclude that the district court was within its discretion to find the commonality requirement of Rule 23(a)(2) met in this case. In so holding, we stress that we are applying an abuse of discretion standard. The district court in all likelihood could, also without abusing its discretion, have declined to certify the overall class in favor of certifying discrete subclasses, so as to assure commonality. As the district court noted, however, the objectors in this case, while pointing to many aspects of the consent decree with which they disagree, did not demonstrate that the certification of a broad class rather than subclasses compromised the interests of one or more of the groups of employees that might have had sufficiently cohesive interests to have been certified as a subclass. We later conclude that the consent decree did unfairly distribute the available funds among the members of the plaintiff class. But that unfair distribution did not reflect the same fault lines of potential conflict that the objectors maintain undermined the class action determination, namely the potential conflict among employees who work at different levels in the corporate hierarchy, among employees who work in different locations, and among employees who work for Heritage Boeing as opposed to those who work for the recently-merged units.

Although for the most part the same standards apply under Rule 23 in judging the propriety of a settlement class as apply in determining whether a class for trial purposes is appropriate, Amchem, 521 U.S. at 620-21, in judging the propriety of a settlement class, “close inspection of the settlement in that regard [is] altogether proper.” Id. at 620. The presence or absence of settlement terms that differentially affect the subgroups which objectors contend have potentially diverging interests is indicative of whether these alleged conflicts are in

5542

STATON v. BOEING

fact pertinent to the issues in the lawsuit. Cf. id. at 626-27 (noting that in the asbestos products liability case at issue “the terms of the settlement reflect essential allocation decisions” regarding the distribution of funds, terms that did not take into account “[t]he disparity between the currently injured and exposure-only categories of plaintiffs” regarding the relative desirability of immediate payments versus “an ample, inflation-protected fund for the future”); see also Molski, 318 F.3d at 955-56 (looking at the consent decree to determine likelihood of collusiveness). Consequently, the district court acted within its discretion in declining to insist on subclasses and thereby potentially undo the settlement for reasons unlikely to have affected it.

3. Typicality

Rule 23(a)(3) requires that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Falcon noted that “[t]he commonality and typicality requirements of Rule 23(a) tend to merge.” 457 U.S. at 157 n.13. In this case, the district court explained that:

The named plaintiffs . . . include a very broadly selected cross-section of the different categories of Boeing employees. Salaried and hourly, management and line-worker, union and non-union are all represented, as are each of the major geographic hubs of Boeing’s operations and each of the premerger companies. Particularly in a case in which the requested relief applies evenly to the various subgroups, this cross-section of Boeing employees suffices to insure that the interests of these sub-groups have been adequately represented, and meets the typicality requirement of Rule 23(a).

Objectors do not dispute the breadth of representation, but complain that class counsel did not provide clear documenta-

STATON v. BOEING

5543

tion that each job category had a class representative for each type of discrimination claim alleged.

That level of specificity is not necessary for class representatives to satisfy the typicality requirement. In Hanlon, we stated that “[u]nder the rule’s permissive standards, representative claims are ‘typical’ if they are reasonably coextensive with those of absent class members; they need not be substantially identical.” 150 F.3d at 1020. Typicality “does not mean that the claims of the class representative[s] must be identical or substantially identical to those of the absent class members.” 5 Herbert B. Newberg & Alba Conte, Newberg on Class Actions, § 24.25 at 24-105 (3d ed. 1992); see also Armstrong, 275 F.3d at 869. The district court here was within its discretion to find that the representatives’ claims are “reasonably coextensive with those of absent class members.” Hanlon, 150 F.3d at 1020.

4. Adequacy of Representation

Rule 23(a)(4) permits the certification of a class action only if “the representative parties will fairly and adequately protect the interests of the class.” To determine whether the representation meets this standard, we ask two questions: (1) Do the representative plaintiffs and their counsel have any conflicts of interest with other class members, and (2) will the representative plaintiffs and their counsel prosecute the action vigorously on behalf of the class? Hanlon, 150 F.3d at 1020; see also Molski, 318 F.3d at 955 (quoting Crawford v. Honig, 37 F.3d 485, 487 (9th Cir. 1995), and stating a similar standard).

Counsel conducted broad research, assertedly interviewed some 1,300 employees, held many meetings with class members at various Boeing sites, and achieved some relief from a company that has historically been successful in defending against discrimination claims. See, e.g., Croker v. Boeing Co., 662 F.2d 975 (3d Cir. 1981) (court found against class on all issues of liability; nominal damages granted to individual

5544

STATON v. BOEING

plaintiffs; decision overruled on other, procedural grounds). Although we later question whether the settlement agreement, as opposed to class counsel’s pre-settlement activity, was the result of disinterested representation, that question is better dealt with as part of the substantive review of the settlement than under the Rule 23 inquiry. Otherwise, the preliminary class certification issue can subsume the substantive review of the class action settlement.11 The district court also permitted discovery on the allegations of outright collusion between class counsel and Boeing and concluded that there was no proof that collusion had occurred.12 The district court neither abused its discretion in finding that counsel’s representation was appropriately vigorous for purposes of class certification nor clearly erred in finding that there was no overt collusion.

With regard to the first of the two adequacy questions, objectors contend that a conflict arises from the facts that the class cuts across the levels of authority of Boeing employees and that, in particular, some class members supervise some of their fellow class members. This concern about classes that involve both supervisors and rank-and-file workers can be a valid one in some circumstances. In Wagner v. Taylor, 836 F.2d 578 (D.C. Cir. 1987), for example, the court affirmed a district court’s finding of inadequate representation because a

11In Molski, we found inadequate representation under Rule 23(a)(4) primarily because of the different circumstances of the named plaintiff and some members of the class. We did look to the terms and circumstances of the ultimate agreement as confirmation of inadequate representation, but did not base the finding of inadequacy of representation on the substance of the agreement alone. 318 F.3d at 955-56.
12Even when there is no direct proof of explicit collusion, there is always the possibility in class action settlements that the defendant, class counsel, and class representatives will all pursue their own interests at the expense of the class. For that reason, the absence of direct proof of collusion does not reduce the need for careful review of the fairness of the settlement, particularly those aspects of the settlement that could constitute inducements to the participants in the negotiation to forego pursuit of class interests. See p. 5548, infra.

STATON v. BOEING

5545

representative plaintiff in a Title VII case purported to represent a broad class that included non-supervisory employees. Wagner was both a senior executive and the only representative of an attempted class of all grade GS-9 and above African-American employees of, and applicants to, the Interstate Commerce Commission. The court worried that “[s]upervisory employees are often inappropriate representatives of nonsupervisory employees because the structure of the workplace tends to cultivate distinctly different interests between the two groups. Although each group shares the interest in freedom from discrimination, potential conflicts may and do arise within a class including both.” Id. at 595 (footnotes omitted).

Wagner did not, however, adopt any per se rule concerning adequacy of representation where the class includes employees at different levels of an employment hierarchy. We decline to do so as well. The question whether employees at different levels of the internal hierarchy have potentially conflicting interests is context-specific and depends upon the particular claims alleged in a case.

Here, we do not find these workforce structure concerns to be dispositive. The named plaintiffs who are class representatives in this case include both supervisors and nonsupervisory employees. The district court found that objectors fail

to identify a substantive issue for which there is a conflict of interest between two or more sets of employees. Given that the named plaintiffs include representatives of each major employee sub-group, and that the requested relief applies equally throughout the class, the Court finds that there are no conflicts between class members sufficient to defeat certification.

“Plaintiffs attempting representation of nonsupervisory employees by supervisory employees . . . must offer evidence

5546

STATON v. BOEING

of coextensive interests or at least allege the existence of a general discriminatory policy.” Newberg and Conte, supra, § 24.42 at 24-170-71. Class counsel have met this burden here. The finding of adequacy was within the district court’s discretion.

B. The Settlement

1. General Principles

[1] “Fed. R. Civ. P. 23(e) requires the district court to determine whether a proposed settlement is fundamentally fair, adequate, and reasonable.” Hanlon, 150 F.3d at 1026 (citation omitted). The objectors contend that the settlement agreement fails to meet Rule 23(e)’s standards.

To determine whether a settlement agreement meets these standards, a district court must consider a number of factors, including: “the strength of plaintiffs’ case; the risk, expense, complexity, and likely duration of further litigation; the risk of maintaining class action status throughout the trial; the amount offered in settlement; the extent of discovery completed, and the stage of the proceedings; the experience and views of counsel; the presence of a governmental participant; and the reaction of the class members to the proposed settlement.” Molski, 318 F.3d at 953 (citation omitted); see also Officers for Justice v. Civil Serv. Comm’n of San Francisco, 688 F.2d 615, 625 (9th Cir. 1982) (noting that the list of factors is “by no means an exhaustive list of relevant considerations, nor have we attempted to identify the most significant factors”).

Despite this guidance, assessing the fairness, adequacy and reasonableness of the substantive terms of a settlement agreement can be challenging. As “the very essence of a settlement is compromise, ‘a yielding of absolutes and an abandoning of highest hopes,’ ” id. at 624 (citation omitted), review of the substantive terms of a consent decree — the total amount of

STATON v. BOEING

5547

damages awarded for example, or the precise terms of injunctive provisions — is often not productive. Courts cannot know the strength of ex ante legal claims and so are not privy to the relative strengths of the parties at the bargaining table. Nor can courts judge with confidence the value of the terms of a settlement agreement, especially one in which, as here, the settlement provides for injunctive relief.

At the same time, and critically for present purposes, there are real dangers in the negotiation of class action settlements of compromising the interests of class members for reasons other than a realistic assessment of usual settlement considerations such as the strength of their legal claims, the desire for immediate rather than delayed relief, and the costs of litigation. Incentives inhere in class-action settlement negotiations that can, unless checked through careful district court review of the resulting settlement, result in a decree in which “the rights of [class members, including the named plaintiffs] may not [be] given due regard by the negotiating parties.” Id. The class members are not at the table; class counsel and counsel for the defendants are. Unlike in the non-class action context, most of class counsel’s clients cannot be consulted individually about the terms of the settlement, nor is the resulting decree submitted to the class members for approval (although there is an opportunity to object).

That the class representatives are available for consultation and approval is no solution, for two reasons: First, the class representatives have their own incentives to advance their interests at the expense of the class. Second, class counsel ultimately owe their fiduciary responsibility to the class as a whole and are therefore not bound by the views of the named plaintiffs regarding any settlement. See In re GMC Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 801 (3d Cir. 1995) (“Beyond their ethical obligations to their clients, class attorneys, purporting to represent a class, also owe the entire class a fiduciary duty once the class complaint is filed.”).

5548

STATON v. BOEING

We have characterized these inherent dangers of class settlements as encompassing the possibility that “the agreement . . . is the product of fraud or overreaching by, or collusion between, the negotiating parties. . . .” Officers for Justice, 688 F.2d at 625; see also Hanlon, 150 F.3d at 1027. By so stating, we do not mean to indicate concern only with overt misconduct by the negotiators. The incentives for the negotiators to pursue their own self-interest and those of certain class members are implicit in the circumstances and can influence the result of the negotiations without any explicit expression or secret cabals. That is why district court review of class action settlements includes not only consideration of whether there was actual fraud, overreaching or collusion but, as well, substantive consideration of whether the terms of the decree are “fair, reasonable and adequate to all concerned.” Officers for Justice, 688 F.2d at 625.

Still, both the difficulties of judicial assessment of a compromise settlement, discussed above, and the rule that “[t]he district court’s final determination to approve the settlement should be reversed ‘only upon a strong showing that the district court’s decision was a clear abuse of discretion,’ ” Hanlon, 150 F.3d at 1027 (quoting In re Pac. Enters. Sec. Litig., 47 F.3d 373, 377 (9th Cir. 1995)), circumscribe our inquiry on appeal into the fairness question. As a practical matter we will rarely overturn an approval of a class action consent decree on appellate review for substantive reasons unless the terms of the agreement contain convincing indications that the incentives favoring pursuit of self-interest rather than the class’s interests in fact influenced the outcome of the negotiations and that the district court was wrong in concluding otherwise. See Molski, 318 F.3d at 953-54.

[2] Our inquiry therefore most usefully focuses primarily upon whether the particular aspects of the decree that directly lend themselves to pursuit of self-interest by class counsel and certain members of the class — namely, attorneys’ fees and the distribution of any relief, particularly monetary relief,

STATON v. BOEING

5549

among class members — strictly comport with substantive and procedural standards designed to protect the interests of class members. This is not to say that we do not consider the remaining terms of the settlement agreement as well. “It is the settlement taken as a whole, rather than the individual component parts, that must be examined for overall fairness,” and “[t]he settlement must stand or fall in its entirety.” Hanlon, 150 F.3d at 1026; see also Strong v. BellSouth Telecomms., 137 F.3d 844, 848 (5th Cir. 1998) (“To be enforceable, the Agreement require[s] the final approval of each federal court, pursuant to [Rule] 23(e). Any modification to the Agreement, whether by a party or a court, would render the Agreement void.”).

Where the other terms of a settlement raise questions not recognized by the district court concerning fairness and adequacy — as we conclude they do here — our scrutiny of the fees and damage distribution provisions should be all the more rigorous. But absent some glaring inequity in the remaining terms of the agreement missed in the district court’s inquiry, it will be rare that we will reverse a district court’s approval of a class action consent decree unless the fee and relief provisions clearly suggest the possibility that class interests gave way to self-interest.

2. The Settlement as a Whole

In this case, we are somewhat uneasy, reading the settlement as a whole, about whether in reaching the settlement, class counsel adequately pursued the interests of the class as a whole. Provisions giving rise to this unease include the extent of Boeing’s release from liability, which includes any breach of contract action by any class member; the stipulation that the prohibition on race discrimination cannot be enforced in individual cases; the numerous instances in which Boeing is permitted to develop its own remedial schemes (and, in some instances, unilaterally to abandon such schemes as infeasible), with an obligation only to consult with class coun-

5550

STATON v. BOEING

sel but with no obligation to submit to any enforcement or dispute resolution mechanism if the schemes are unsatisfactory; the limited role for the consultant Boeing is required to hire; and the incorporation in the agreement of promotion and complaint programs Boeing had already developed and implemented, with no obligation on the part of the Company to continue those programs in their present form or alternatively to substitute programs of the same efficacy.13

Further, the district court did not entirely appreciate the limited scope of many of the injunctive provisions of the decree. For example, the court opined that “changes will be made in the procedure for resolving discrimination related complaints.” (Emphasis added.) In fact, the changes in the complaint procedure had already been implemented, and, while the agreement indicates that the implementation appeared adequate, Boeing made no commitment in the decree to continue the same process in effect during the term of the agreement (or even to assure that any replacement process would be as effective as the present one).

We also note that, unlike the district court, we decline to rely in our assessment of the injunctive provisions upon “the approval of several disinterested experts in race discrimination, the Reverend Jesse Jackson first among them.” The experts’ positive assessments all rely heavily on the assertion that the decree provides all members of the class with three years of free legal assistance to, as one declaration put it, “re-

13The racial harassment provisions of the proposed consent decree illuminate the defects in many of the other remedial sections: Unlike the promotion and complaint provisions, the section covering the harassment policy does contain some enforceable standards should Boeing choose to change its policy — “the amended policy [must have] the same import as the [present] Harassment Policy and [be] reasonably designed to achieve the same effect as the Harassment Policy in respect to preventing and remedying racial harassment.” Similar language is noticeably absent from all the other sections concerning the programs Boeing is to develop or has developed to remedy discrimination against the class.

STATON v. BOEING

5551

view their employment history, review proposed or actual job opportunities, . . . assist them with job applications, and . . . challenge the selection of someone else for the jobs.” As noted above, Boeing has expressed its skepticism that the decree embodies any obligation on the part of class counsel to provide such free individualized legal assistance or on the part of Boeing to respond to such individualized representation by attorneys. Reading the decree carefully, we share that skepticism.

The attorneys’ fees provision provides $750,000 to class counsel for “monitoring, administration, implementation and defense of the Decree,” including, in particular, “Class Counsel’s time and expenses involved in the processing of claims under Section XI(c)(4) and the distribution of all monetary awards . . . including expenditures by Class Counsel in regard to compensating the Claims Arbitrator . . . .” That language hardly encompasses the individualized representation for future claims of discrimination the experts’ declarations assume. Nor does any provision in the decree specifically require Boeing to confer with class counsel about individuals’ promotion applications. It may be that class counsel, commendably, intend to attempt to provide such individual representation, although nothing in the factual record indicates a commitment to do so. If so, $750,000 is unlikely to go very far in compensating class counsel for such representation, given the size of the class and the other representational duties for which the decree specifically earmarks the money. Since the experts’ understanding of the proposed settlement appears less than precise, the district court should not have relied so heavily upon those assessments, and we do not do so.

Despite all of the foregoing concerns, we would not overturn the district court’s determination to approve the settlement as fair were the release and injunctive provisions the only aspects of the decree that are troublesome. As the district court noted, plaintiffs’ risk of losing the case on the merits was quite high; Boeing had an unbroken history of prevailing

5552

STATON v. BOEING

in discrimination cases; maintaining the class action was not a foregone conclusion; promotion decisions, a primary focus of the litigation, are largely discretionary; and discovery was likely to be extremely expensive for the plaintiffs and class counsel, whose resources are undoubtedly more limited than those of Boeing. The total monetary relief provided in the proposed settlement agreement is not insubstantial, either in total or on a pro rata basis given the number of claimants, and the balance between retrospective and prospective relief is usually one for the litigants to determine. Nor do the injunctive provisions themselves raise any flags regarding favoritism for some members of the class over others. No class member is assured a promotion or any other future privilege not accorded to others, nor are certain groups of class members treated more favorably than others for purposes of future relief.

Additionally, we cannot say with the requisite certainty that the district court erred in concluding that “the cooperative process which led to the agreement, and the provisions for oversight of the decree by independent observers . . . will lead to genuine improvements in Boeing’s internal race relations.” The district court was in a position to assess the level of goodwill between the parties at the point of settlement, as we are not.14

Furthermore, we are told that the decree in large part incorporates already-existing Boeing programs rather than creating new ones because Boeing determined once the lawsuit was filed to devise new, more effective promotion and complaint policies so as to avoid similar charges in the future. Although the failure of the consent decree to assure continuation of these same or equally effective programs in the future remains troubling, we cannot reject out of hand this explanation for

14We stress once again that, as this case has not been litigated, we have no way of knowing whether there was in fact race discrimination in employment at Boeing.

STATON v. BOEING

5553

crediting existent programs as part of the prospective relief attained by the proposed decree.

In short, the injunctive aspects of the proposed settlement neither directly reflect pursuit of self-interest by favored members of the class nor, standing alone, strike us as being so beyond the pale as a compromise of claims to merit reversal of the district court’s fairness assessment. At the same time, the questionable factors we have noted do suggest the possibility that class counsel and the IIRs could have agreed to relatively weak prospective relief because of other inducements offered to them in the course of the negotiations. We therefore scrutinize with particular care the aspects of the proposed settlement that provide monetary benefits directly to class counsel and to the IIRs: the attorneys’ fees and damages distribution provisions.15

15Also contributing to our determination to scrutinize the attorneys’ fees provisions with special care is the nature of the notice to the class with respect to fees. The class notice did not break out the amount of attorneys’ fees provided for in the settlement agreement, although an alert class member could have calculated those fees from the information provided.
Appellees admit that “with benefit of hindsight it would have been preferable if the formal notice to [the] class had included more specificity with respect to the fee award.” They have not explained, however, why the decision was made to leave out that particular figure from the class notice while spelling out the total fund available to the class, the amount of monetary relief, and the value assigned to the injunctive relief.
Notice of the amount of fees serves as “adequate notice of class counsel’s interest in the settlement.” Torrisi v. Tucson Elec. Power Co., 8 F.3d 1370, 1375 (9th Cir. 1993); see also Goldenberg v. Marriott PLP Corp., 33 F. Supp. 2d 434, 441 (D. Md. 1998) (“Notice of the potential extent of attorneys fee awards is deemed essential because it allows class members to determine the possible influence of the fees on the settlement and to make informed decisions about their right to challenge the fee award.”). Where the class was informed of the amount of fees only indirectly and where the failure to give more explicit notice could itself be the result of counsel’s self-interest, the courts must be all the more vigilant in protecting the interests of class members with regard to the fee award.

STATON v. BOEING

5555 Volume 2 of 2

5560

STATON v. BOEING

3. Attorneys’ Fees
[3] a. Necessity of Scrutiny: Attorneys’ fees provisions included in proposed class action settlement agreements are, like every other aspect of such agreements, subject to the determination whether the settlement is “fundamentally fair, adequate, and reasonable.” Fed. R. Civ. P. 23(e). There is no exception in Rule 23(e) for fee provisions contained in proposed class action settlement agreements. Thus, to avoid abdicating its responsibility to review the agreement for the protection of the class, a district court must carefully assess the reasonableness of a fee amount spelled out in a class action settlement agreement. See, e.g., Piambino v. Bailey, 610 F.2d 1306, 1328 (5th Cir. 1980) (“the District Court abdicated its responsibility to assess the reasonableness of attorneys’ fees proposed under a settlement of a class action, and its approval of the settlement must be reversed on this ground alone”); Strong, 137 F.3d at 848-50; In re GMC, 55 F.3d at 819-20; Jones v. Amalgamated Warbasse Houses, Inc., 721 F.2d 881, 884 (2d Cir. 1983) (holding with regard to attorneys’ fees that “[t]he presence of an arms’ length negotiated

STATON v. BOEING

5561

agreement among the parties weighs strongly in favor of approval, but such an agreement is not binding on the court.”).16

That the defendant in form agrees to pay the fees independently of any monetary award or injunctive relief provided to the class in the agreement does not detract from the need carefully to scrutinize the fee award. Ordinarily, “a defendant is interested only in disposing of the total claim asserted against it . . . the allocation between the class payment and the attorneys’ fees is of little or no interest to the defense . . . .” In re GMC, 55 F.3d at 819-20 (internal quotation marks and citation omitted); see also Evans v. Jeff D., 475 U.S. 717, 732, 734 (1986) (recognizing that “the possibility of a tradeoff between merits relief and attorney’s fees” is often implicit in class action settlement negotiations, because “[m]ost defendants are unlikely to settle unless the cost of the predicted judgment, discounted by its probability, plus the transaction costs of further litigation, are greater than the cost of the settlement package.”) (Emphasis added).

Given these economic realities, the assumption in scrutinizing a class action settlement agreement must be, and has always been, that the members of the class retain an interest in assuring that the fees to be paid class counsel are not unreasonably high. If fees are unreasonably high, the likelihood is that the defendant obtained an economically beneficial con-

16Jones held that a district court could, after reviewing the attorneys’ fees awarded as part of a class action settlement, reduce the amount of fees, apparently while retaining the binding nature of the remainder of the agreement. Such a procedure is not consistent with Evans v. Jeff D., 475 U.S. 717, 726-27 (1986), decided after Jones. Evans held that, with respect to attorneys’ fees provisions as with respect to any other provision, “the power to approve or reject a settlement negotiated by the parties before trial does not authorize the court to require the parties to accept a settlement to which they have not agreed. . . . Rule 23(e) does not give the court the power, in advance of trial, to modify a proposed consent decree and order its acceptance over either party’s objection.” (Footnote omitted). See also Hanlon, 150 F.3d at 1026 (stating, without exception, that “[t]he settlement must stand or fall in its entirety”).

5562

STATON v. BOEING

cession with regard to the merits provisions, in the form of lower monetary payments to class members or less injunctive relief for the class than could otherwise have obtained. See Court Awarded Attorney Fees, Report of the Third Circuit Task Force, 108 F.R.D. 237, 266 (1985) (“When a large attorney’s fee means a smaller recovery to plaintiff, a significant conflict of interest between client and attorney is created. Even if the plaintiff’s attorney does not consciously or explicitly bargain for a higher fee at the expense of the beneficiaries, it is very likely that this situation has indirect or subliminal effects on the negotiations.”). In other words, the negotiation of class counsel’s attorneys’ fees is not exempt from the truism that there is no such thing as a free lunch.

[4] We have, in closely analogous contexts, recently so recognized. See Zucker v. Occidental Petroleum Corp., 192 F.3d 1323 (9th Cir. 1999); Lobatz v. U.S. West Cellular, 222 F.3d 1142 (9th Cir. 2000). In Zucker, for example, we stated that “[i]n a class action, whether the attorneys’ fees come from a common fund or are otherwise paid, the district court must exercise its inherent authority to assure that the amount and mode of payment of attorneys’ fees are fair and proper,” 192 F.3d at 1328 (emphasis added); see also id. at 1327 (“In a class action . . . [t]he absence of individual clients controlling the litigation for their own benefit creates opportunities for collusive arrangements in which defendants can pay the attorneys for the plaintiff class enough money to induce them to settle the class action for too little benefit to the class (or too much benefit to the attorneys, if the claim is weak but the risks to the defendants high).”). Similarly, in Lobatz, where the defendant had agreed that it would not contest a fee request of $1 million that was apart from the settlement fund, we noted that “[s]uch an agreement has the potential of enabling a defendant to pay class counsel excessive fees and costs in exchange for counsel accepting an unfair settlement on behalf of the class.” 222 F.3d at 1148.

The district court was therefore obligated to assure itself that the fees awarded in the agreement were not unreasonably

STATON v. BOEING

5563

high, so as to ensure that the class members’ interests were not compromised in favor of those of class counsel.

[5] b. Substantive Scrutiny of Statutory Fees: Generally, litigants in the United States pay their own attorneys’ fees, regardless of the outcome of the proceedings. In order to encourage private enforcement of the law, however, Congress has legislated that in certain cases prevailing parties may recover their attorneys’ fees from the opposing side. When a statute provides for such fees, it is termed a “fee-shifting” statute. Under a fee-shifting statute, the court “must calculate awards for attorneys’ fees using the ‘lodestar’ method,” Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1149 n.4 (9th Cir. 2001), which involves “multiplying the number of hours the prevailing party reasonably expended on the litigation by a reasonably hourly rate,” Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir. 1996) and, “if circumstances warrant, adjust[ing] the lodestar to account for other factors which are not subsumed within it,” Ferland, 244 F.3d at 1149 n.4; see also Caudle v. Bristow Optical Co., 224 F.3d 1014, 1029 (9th Cir. 2000). The rules governing both reduction and enhancement have become increasingly refined over time, and we have therefore required careful explanations by district courts of statutory fee determinations.17

17See, e.g., City of Burlington v. Dague, 505 U.S. 557 (1992) (prohibiting pure contingency enhancements of the lodestar under fee-shifting statutes); Ferland, 244 F.3d at 1149, 1151 (holding that where the district court cuts substantially the number of hours compensated because of perceived inefficiency, the court must either “calibrate the number [of hours] chosen to demonstrable inefficiency in carrying out particular tasks” or provide an explanation of the level of reduction chosen); Caudle, 224 F.3d at 1029, 1029 n.11 (finding an abuse of discretion where the district court did not “explicitly follow [lodestar] procedures” and noting that a modest amount of recovery cannot be used to reduce a fee award below the lodestar); Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1049 (9th Cir. 2000) (concluding that the district court did not abuse its discretion in refusing to award fees for hours spent on discovery unrelated to the record); Guam Soc’y of Obstetricians & Gynecologists v. Ada, 100 F.3d

5564

STATON v. BOEING

[6] Both Title VII, § 2000e, et seq., and § 1981 — the two federal statutes under which this suit was brought — have feeshifting provisions. See §2000e-5 (k) (“In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party . . . a reasonable attorney’s fee . . . .”); 42 U.S.C. § 1988 (“In any action or proceeding to enforce a provision of section[ ] 1981 . . . the court, in its discretion, may allow the prevailing party . . . a reasonable attorney’s fee . . . .”). The parties therefore could have negotiated an award of fees under § 2000e-5(k) and § 1988. Had they done so, the district court’s review would have focused on the reasonableness of the fee request under the lodestar calculation method. Were the amount of fees Boeing agreed to pay in the settlement agreement distinctly higher than the fees class counsel could have been awarded by the district court using the lodestar method, the court would almost surely have had to find the fees unreasonable. Absent some unusual explanation, a defendant would not agree in a class action settlement to pay out of its own pocket fees measurably higher than it could conceivably have to pay were the fee amount litigated, unless there was some non-fee benefit the defendant received thereby.

691, 697 (9th Cir. 1996) (“Dague left undisturbed earlier Supreme Court case law allowing a fee applicant to recover more than the lodestar figure where the applicant has met the burden of showing that such an adjustment is necessary to the determination of a reasonable fee.” (internal quotation marks and citations omitted)); Morales, 96 F.3d at 365 (vacating attorneys’ fee award because the exception to lodestar calculation for nominal damages cases in which the plaintiff’s success is de minimis did not apply); Gates v. Deukmejian, 987 F.2d 1392, 1398, 1400 (9th Cir. 1992) (rejecting the district court’s reduction of the lodestar based on the absence of “concise but clear” explanatory language to show that it did not “uncritically accept[ ] plaintiffs’ suggested reductions and fail[ ] independently to review the record”); Cunningham v. County of Los Angeles, 879 F.2d 481, 487, 489 (9th Cir. 1988) (holding four justifications for adjusting the lodestar improper because they are subsumed in the lodestar determination itself).

STATON v. BOEING

5565

In fact, no lodestar-based scrutiny of the fees awarded class counsel in the settlement agreement ever took place. Boeing and class counsel did not attempt to explain the award of fees provided in the consent decree as negotiated under the applicable fee-shifting statutes. Further, the record as it stands would not have been sufficient for such an inquiry, as it contains only the barest estimate of hours expended, with no detail. Not even a summary of the billing records was submitted.

Of course, in the context of a settlement, the fees provided for in the agreement are as subject to compromise as are the merits provisions. Consequently, as Evans, 475 U.S. at 73435, made clear, the fee amount in a class action settlement agreement can be less than would be awarded by a court. And, since the proper amount of fees is often open to dispute and the parties are compromising precisely to avoid litigation, the court need not inquire into the reasonableness of the fees even at the high end with precisely the same level of scrutiny as when the fee amount is litigated. But here, there was no such inquiry at all. Nor is the record adequate for an inquiry, even one employing a less-than-stringent standard that recognizes the settlement context.

We are therefore in no position to determine whether the fees Boeing agreed to pay are reasonable lodestar fees under the applicable fee-shifting statutes and do not do so. On remand, the parties are free to attempt such justification, based on the principles outlined in this opinion and in the extensive lodestar fees case law.

c. The Common Fund Justification: Rather than justifying the attorneys’ fees provisions of the settlement agreement on the statutory fee-shifting basis that would properly have applied, the parties sought to justify the fee amount according to the principles applicable to common funds. They did so by constructing a hypothetical “fund” by adding together the amount of money Boeing would pay in damages

5566

STATON v. BOEING

to members of the class under the agreement, the amount of fees provided to various counsel, the cost of the class action notices paid for by Boeing, and a gross amount of money ascribed to all the injunctive relief contained in the agreement. For clarity, we will call the total of all those monetary amounts the “putative fund,” for, as we shall see, it is not properly viewed as a common fund as that term is used in attorneys’ fees law. (We will continue, also for clarity, to call the doctrine by its usual name, “common fund.”) The parties portrayed the total fee award as 28% of the putative fund, and maintained that such a percentage is well within the percentage permitted under our common fund fee cases. The district court viewed the fee award as the parties requested and approved it, and the consent decree as a whole, on that basis. For several reasons, that approval was not appropriate.

i. Availability of common fund fees

Before we can decide whether the attempted common fund justification in this case was adequate, we must resolve whether the existence of potentially applicable fee-shifting statutory provisions precludes class counsel from recovering attorneys’ fees under the common fund doctrine. We conclude, as have the two other circuits that have addressed the issue,18 that there is no preclusion on recovery of common fund fees where a fee-shifting statute applies.

18See Brytus v. Spang & Co., 203 F.3d 238, 246-247 (3d Cir. 2000) (holding that common fund funds can be appropriate in both settled and litigated cases where statutory fees are available); Cook v. Niedert, 142 F.3d 1004 (7th Cir. 1998) (approving fees measured by common fund rather than statutory principles where statutory fees were available); Florin v. Nationsbank, 34 F.3d 560, 564 (7th Cir. 1994) (common fund principles “properly control a case which is initiated under a statute with a fee shifting provision, but is settled with the creation of a common fund.”); Skelton v. General Motors Corp., 860 F.2d 250, 256 (7th Cir. 1988) (“[W]hen a settlement fund is created in exchange for release of the defendant’s liability both for damages and for statutory attorneys’ fees, equitable fund principles must govern the court’s award of the attorneys’ fees.”); 1 Mary Francis Derfner and Arthur D. Wolf, Court Awarded Attorney Fees, ¶ 2.05[7] at 2-81 (2001) (“[T]he mere fact that a fee-shifting statute is implicated in the action does not ensure that fees will be awarded under that statute. . . . [F]ees may be taxed against the [settlement] fund under the common fund doctrine.” (citing Skelton and Florin)).

STATON v. BOEING

5567

[7] Under the “common fund” doctrine, “a litigant or 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. Van Gemert, 444 U.S. 472, 478 (1980). The Supreme Court explained:

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. Jurisdiction over the fund involved in the litigation allows a court to prevent this inequity by assessing attorney’s fees against the entire fund, thus spreading fees proportionately among those benefited by the suit.

Id. (citation omitted). Thus, the common fund doctrine ensures that each member of the winning party contributes proportionately to the payment of attorneys’ fees. In contrast to fee-shifting statutes, which enable a prevailing party to recover attorneys’ fees from the vanquished party, the common fund doctrine permits the court to award attorneys’ fees from monetary payments that the prevailing party recovered in the lawsuit. Put another way, in common fund cases, a variant of the usual rule applies and the winning party pays his or her own attorneys’ fees; in fee-shifting cases, the usual rule is rejected and the losing party covers the bill. See generally Wininger v. SI Mgmt. L.P., 301 F.3d 1115 (9th Cir. 2002).

The procedures used to determine the amount of reasonable attorneys’ fees differ concomitantly in cases involving a common fund from those in which attorneys’ fees are sought under a fee-shifting statute. As in a statutory fee-shifting case, a district court in a common fund case can apply the lodestar method to determine the amount of attorneys’ fees. In common fund cases, however, the court can apply a risk multiplier when using the lodestar approach. See In re Wash. Pub. Power Supply Sys. Sec. Litig., 19 F.3d 1291, 1299 (9th Cir.

5568

STATON v. BOEING

1994) (“WPPSS”) (“[The City of Burlington v. Dague, 505 U.S. 557 (1992)] rationale for barring risk multipliers in statutory fee cases does not operate to bar risk multipliers in common fund cases.”). A “multiplier” is a number, such as 1.5 or 2, by which the base lodestar figure is multiplied in order to increase (or decrease) the award of attorneys’ fees on the basis of such factors as the risk involved and the length of the proceedings.

[8] Alternatively, in a common fund case, the district court can determine the amount of attorneys’ fees to be drawn from the fund by employing a “percentage” method. See Hanlon, 150 F.3d at 1029 (“In ‘common fund’ cases where the settlement or award creates a large fund for distribution to the class, the district court has discretion to use either a percentage or lodestar method.”). As its name suggests, under the percentage method, “the court simply awards the attorneys a percentage of the fund. . . .” Id. “This circuit has established 25% of the common fund as a benchmark award for attorney fees.” Id.

That common fund fees can be awarded where statutory fees are available follows from the equitable nature of common fund fees. In Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240 (1975), the Court explained that 28 U.S.C. § 1923, a version of which was first enacted in 1853, limits the amount of attorneys’ fees that a prevailing party may recover from the loser, but does not prohibit the award of fees under the common fund doctrine. The Court stated:

In Trustees v. Greenough, 105 U.S. 527 (1882), the 1853 Act was read as not interfering with the historic power of equity to permit the trustee of a fund or property, or a party preserving or recovering a fund for the benefit of others in addition to himself, to recover his costs, including his attorneys’ fees, from the fund or property itself or directly from the other parties enjoying the benefit. That rule has been con-

STATON v. BOEING

5569

sistently followed. . . . These exceptions are unquestionably assertions of inherent power in the courts to allow attorneys’ fees in particular situations, unless forbidden by Congress . . . .

Alyeska Pipeline, 421 U.S. at 257-59. Thus, unless Congress has forbidden the application of the common fund doctrine in cases in which attorneys could potentially recover fees under the type of fee-shifting statutes at issue here, the courts retain their equitable power to award common fund attorneys’ fees.

Congress did not explicitly forbid the use of the common fund doctrine in cases potentially involving § 2000e-5 and § 1988, and we see no reason to infer that it did so implicitly. The intent of the fee-shifting provisions at issue here is not countered by the application of common fund principles.

The fees available under a fee-shifting statute are part of the plaintiff’s recovery and are not dependent upon any explicit fee arrangements between the plaintiffs and their counsel. For that reason, contingent fee agreements between counsel and client are valid in cases where statutory fees are available. See Venegas v. Mitchell, 495 U.S. 82, 86-89 (1990). Common fund fees are essentially an equitable substitute for private fee agreements where a class benefits from an attorney’s work, so the same general principles outlined in Venegas should apply.

Application of the common fund doctrine to class action settlements does not compromise the purposes underlying feeshifting statutes. In settlement negotiations, the defendant’s determination of the amount it will pay into a common fund will necessarily be informed by the magnitude of its potential liability for fees under the fee-shifting statute, as those fees will have to be paid after successful litigation and could be treated at that point as part of a common fund against which the attorneys’ fees are measured. Conversely, the prevailing party will expect that part of any aggregate fund will go

5570

STATON v. BOEING

toward attorneys’ fees and so can insist as a condition of settlement that the defendants contribute a higher amount to the settlement than if the defendants were to pay the fees separately under a fee-shifting statute.19

The district court did not, therefore, err in treating this case as one that could fall under the common fund doctrine rather than under the potentially applicable fee-shifting provisions, if the parties properly so agreed, the resulting fee was reasonable, and other requisites applicable to common fund fees were met.

The possibility that a prevailing party could recover fees either under the court’s equitable powers or under its statutory authority does not, however, give the parties or the court free rein once either the common fund or the statutory rubric is selected. Fees sought or awarded under a fee-shifting statute require the application of the standards and procedures crafted for such statutes, discussed above. Similarly, if the parties invoke common fund principles, they must follow common fund procedures and standards, designed to protect class

19The Seventh Circuit reasoned similarly in Florin:
The settlement agreement approved by the court provides that the defendants are released from potential liability for statutory attorney’s fees and that class counsel may instead petition the court for an award of fees from the settlement fund. Thus, the settlement agreement seems to anticipate that the amount paid by the defendants into the fund includes an unspecified sum for class counsel’s fees. An award of attorney’s fees from the fund would therefore be consistent with the goal of the fee-shifting provision to allow the offending party [to] bear the costs of the award . . . Furthermore, an award of fees from the settlement fund comports with the fee-shifting policy of enabling meritorious plaintiffs who would not otherwise be able to afford to bring a lawsuit . . . to pursue their claims.
34 F.3d at 564. See also Brytus, 203 F.3d at 246 (where there is a settlement in a case in which statutory fees are available, “consideration of the attorney’s fees was likely factored into the amount of settlement.”).

STATON v. BOEING

5571

members when common fund fees are awarded. We turn next to the specific procedure employed in the negotiation and award of the attorneys’ fees in this case.

ii. Inclusion in the settlement of the attorneys’ fees

The parties negotiated the amount of attorneys’ fees awarded class counsel as a term of the settlement agreement and thus conditioned the merits settlement upon judicial approval of the agreed-upon fees. See Hanlon, 150 F.3d at 1026 (“Neither the district court nor this court ha[s] the ability to ‘delete, modify or substitute certain provisions.’ The settlement must stand or fall in its entirety.”) (citations omitted). By proceeding in this fashion with respect to attorneys’ fees and then attempting to justify the fees not as statutory fees but as common fund fees, the parties followed an irregular and, as we hold below, improper procedure.

[9] Under regular common fund procedure, the parties settle for the total amount of the common fund and shift the fund to the court’s supervision. The plaintiffs’ lawyers then apply to the court for a fee award from the fund. See Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268, 271 (9th Cir. 1989) (in a common fund case, “a court has control over the fund — even one created pursuant to a settlement, as here . . . and assesses the litigation expenses against the entire fund so that the burden is spread proportionally among those who have benefited.”) (citing Van Gemert, 444 U.S. at 478); see also Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1046 (9th Cir. 2002) (after approval of the settlement, class counsel applied to the district court for an award of attorneys’ fees); Cook, 142 F.3d at 1011 (“In common fund cases, after attorneys obtain a settlement for the class, they petition the court for compensation from the fund . . . .”); Florin, 34 F.3d at 563 (in a common fund case, “the defendant typically pays a specific sum into the court, in exchange for a release of its liability. The court then determines the amount of attorney’s fees that plaintiffs’ counsel may recover from this fund, thereby dimin-

5572

STATON v. BOEING

ishing the amount of money that ultimately will be distributed to the plaintiff class.”).20

[10] In setting the amount of common fund fees, the district court has a special duty to protect the interests of the class. On this issue, the class’s lawyers occupy a position adversarial to the interests of their clients. The reason for the usual insistence upon judge-conferred common fund fees is that, as we have explained,

“Because in common fund cases the relationship between plaintiffs and their attorneys turns adversarial at the fee-setting stage, courts have stressed that when awarding attorneys’ fees from a common fund, the district court must assume the role of fiduciary for the class plaintiffs.” WPPSS, 19 F.3d at 1302. Accordingly, fee applications must be closely scrutinized. Rubber-stamp approval, even in the absence of objections, is improper.

Vizcaino, 290 F.3d at 1052. See also In re Coordinated Pretrial Proceedings in Petroleum Prods. Antitrust Litig., 109 F.3d 602, 608 (9th Cir. 1997) (“In a common fund case, the judge must look out for the interests of the beneficiaries, to make sure that they obtain sufficient financial benefit after the lawyers are paid. Their interests are not represented in the fee award proceedings by the lawyers seeking fees from the common fund.”).

20On one occasion, we permitted a carefully conceived procedure to substitute for completely independent judicial determination of lodestarbased common fund fees. Hanlon, 150 F.3d at 1029 (fees were negotiated only after the merits agreement was concluded and a mediator present at the negotiations provided assurance to the court “that the fee was not the result of collusion or a sacrifice of the interests of the class” before the district judge reviewed the award using the lodestar, not percentage, method, “requiring class counsel to submit detailed evidence of their work on behalf of the class.”).

STATON v. BOEING

5573

[11] When the ordinary procedure is not followed and instead the parties explicitly condition the merits settlement on a fee award justified on a common fund basis, the obvious risk arises that plaintiffs’ lawyers will be induced to forego a fair settlement for their clients in order to gain a higher award of attorneys’ fees. That risk is, if anything, exacerbated where, as here, the agreement provides for payment of fees by the defendant, as in a statutory fee-shifting situation, but the parties choose to justify the fee as coming from a putative common fund. Where that is the case, courts have to be alert to the possibility that the parties have adopted this hybrid course precisely because the fee award is in fact higher than could be supported on a statutory fee-shifting basis, yet the deal is so dependent upon class counsel receiving a greaterthan-lodestar amount of fees that the parties were not willing to give the court supervisory discretion to determine the distribution of the total settlement package between counsel and the class.

We recognize that in Evans, 475 U.S. at 720, the Court held that the parties to a class action may simultaneously negotiate merits relief and an award of attorneys’ fees under a feeshifting statute, and may condition the entire settlement upon a waiver of fees. The Court explained:

[A] general proscription against negotiated waiver of attorney’s fees in exchange for a settlement on the merits would itself impede vindication of civil rights, at least in some cases, by reducing the attractiveness of settlement.

Id. at 732; see also id. at 733 (“If defendants are not allowed to make lump-sum offers that would, if accepted, represent their total liability, they would understandably be reluctant to make settlement offers.”) (quoting Marek v. Chesny, 473 U.S. 1, 6-7 (1985)). Thus, to facilitate settlement by providing defendants with assurances as to the limits of their liability exposure, the parties to a lawsuit may, in conjunction with

5574

STATON v. BOEING

their merits negotiation, properly negotiate statutory fees to be paid by the defendant.

The concern motivating the decision in Evans — that prohibiting simultaneous negotiations and agreements as to merits and fees will discourage settlements — simply does not exist, however, in a case, such as this one, in which the parties to the negotiations seek to justify attorneys’ fees as coming from a putative fund and to apply common fund principles. Usually, an agreement that provides lawyers fees on a common fund basis constitutes a “lump-sum” agreement, Evans, 475 U.S. at 733, one that enables defendants to know the precise extent of their liability regardless of the amount of attorneys’ fees eventually awarded from the fund. Thus, the parties could have simply agreed upon the total amount of the putative fund, as well as the damages and injunctive relief, and left the division of that fund as between the class and counsel to the district court, as is usual in common fund cases.21 Requiring the parties to so proceed or, in the alternative, to agree to a fee award as part of the settlement agreement in an amount no higher than could be justified by statutory feeshifting principles, fully serves the defendant’s only legitimate interest in class counsel’s fee award. See In Re GMC, 55 F.3d at 819-820 (“[A] defendant is interested only in disposing of the total claim asserted against it . . . the allocation between the class payment and the attorneys’ fees is of little or no interest to the defense.” (internal quotation marks and citations omitted)); Florin, 34 F.3d at 562 n.1 (“The parties agreed that attorney’s fees were to come out of the settlement fund. Defendants have satisfied their obligation to pay into the settlement fund, and thus have no interest in the amount of fees class counsel want to extract from the fund.”). That requirement thereby provides the requisite impetus to settlement on the defendant’s part while protecting against a mald-

21The description of the total amount of the fund need not take any particular form and could result from adding up separately-enumerated amounts in the agreement.

STATON v. BOEING

5575

istribution of the total settlement package between the class and its counsel.

[12] Further, the effect of conditioning the settlement on a set amount of attorneys’ fees based on an actual or putative common fund can be to inhibit district courts from engaging in independent determinations of reasonable fees, as required by law. The parties’ all-or-nothing approach imposes pressure to approve otherwise acceptable and desirable settlements in spite of built-in attorneys’ fees provisions. While this same dynamic may exist where fees can be justified on a statutory fee basis, the more precise lodestar standards for adjudging the reasonableness of such fees, summarized above, make the influence of such pressure much less forceful.

[13] We hold, therefore, that in a class action involving both a statutory fee-shifting provision and an actual or putative common fund, the parties may negotiate and settle the amount of statutory fees along with the merits of the case, as permitted by Evans. In the course of judicial review, the amount of such attorneys’ fees can be approved if they meet the reasonableness standard when measured against statutory fee principles. Alternatively, the parties may negotiate and agree to the value of a common fund (which will ordinarily include an amount representing an estimated hypothetical award of statutory fees) and provide that, subsequently, class counsel will apply to the court for an award from the fund, using common fund fee principles. In those circumstances, the agreement as a whole does not stand or fall on the amount of fees. Instead, after the court determines the reasonable amount of attorneys’ fees, all the remaining value of the fund belongs to the class rather than reverting to the defendant.

[14] The parties in this case did not follow either of these procedures, or any other that adequately protected the class from the possibility that class counsel were accepting an excessive fee at the expense of the class.22 The district court therefore erred in approving the consent decree.

22By spelling out these alternatives, we do not mean to preclude all others. Rather, the parties have flexibility in negotiating class action settle-

5576

STATON v. BOEING

iii. Injunctive relief as part of the district court’s putative fund

Even if the fee award had been determined in a procedurally proper way, approval of the amount of the attorneys’ fees on common fund principles would still have been mistaken as a matter of law, because the actual percentage award was much higher than the 28% the district court recognized.

In order for attorneys to obtain an award of fees from a common fund, the court must be able to: (1) sufficiently identify the class of beneficiaries; (2) accurately trace the benefits; and (3) shift the fee to those benefiting with some exactitude. Van Gemert, 444 U.S. at 478-79. “[T]he criteria are satisfied when each member of a certified class has an undisputed and mathematically ascertainable claim to part of a lump-sum judgment recovered on his behalf,” whereas they are not satisfied when “litigants simply vindicate a general social grievance.” Id. at 479.

Under these requirements, the monetary relief for the plaintiff class (including attorneys’ fees) provided for in the consent decree could be converted as described above so as to qualify as a common fund from which class counsel could obtain an award of attorneys’ fees. The class consists of the approximately 15,000 African-American Boeing employees and so is sufficiently identifiable. The benefits from the monetary relief provided for in the decree would be distributed according to its terms and so can be accurately traced. Finally, the fees could be shifted with exactitude to the benefiting class if taken properly from the fund.

ment agreements, including the attorneys’ fee provisions. The alternatives outlined in the text are paradigms. Any variants, to be reasonable, would have to provide equivalent assurance that the inherent tensions among class representation, defendant’s interests in minimizing the cost of the total settlement package, and class counsel’s interest in fees are being adequately policed by the court.

STATON v. BOEING

5577

In approving the award of attorneys’ fees provided for in the consent decree, the district court employed the percentage method to determine that the award was fair. The court found that the fees constituted 28% of the putative fund, just above the 25% benchmark. To make this calculation, however, the court included in the amount of the putative fund an estimated value of $3.65 million for injunctive relief, the amount that the decree required Boeing to spend on approval and implementation of this component.

Although the injunctive relief falls somewhere between the permissible and the prohibited bases for fees set forth in Van Gemert — the relief neither produces “an undisputed and mathematically ascertainable” amount for each class member, nor merely “vindicate{s} a general social grievance” — we have no difficulty here deciding that the district court abused its discretion in counting the parties’ estimated value of that relief towards the putative fund.

The injunctive relief included in the consent decree requires Boeing only to “meet and confer” with class counsel or to discuss certain issues. Although Boeing must participate in such conferences and discussions, there is no requirement that Boeing take any action with respect to what the Company learns. The conferences and discussions may not result in tangible relief to class members. Moreover, a diversity consultant may not benefit the class to a degree commensurate with his or her cost.

Additionally, while the injunctive relief (along with the cost of obtaining approval of the decree) is to cost Boeing a fixed minimum amount, $3.65 million, some of the injunctive relief described in the consent decree consists of steps Boeing had apparently decided to take on its own, even before it entered the settlement. The decree also permits Boeing to credit expenditures towards the injunctive relief amount without regard to whether such expenditures are in addition to the cost of Boeing’s prior outlays for administering similar pro-

5578

STATON v. BOEING

grams. Thus, the true cost of the injunction to the defendant — and the true benefit to the plaintiff class — is a matter of speculation and may be far less than $3.65 million. That amount of money cannot be accurately traced to the decree, let alone to the beneficiaries making up the class. Without the estimated value of the injunctive relief, the fund is reduced to only $10.55 million, and the fee award of $4.05 million constitutes 38% — well above the 25% benchmark — of the putative fund.

We do not hold that a district court can never consider the value of injunctive relief in determining the reasonableness of a common fund fee. For instance, in Hanlon, 150 F.3d at 1029, we upheld the use of the common fund doctrine to award attorneys’ fees after the parties reached a settlement agreement under which Chrysler would replace defective latches on minivans that it had manufactured. Although the replacement of latches is injunctive in nature, the agreement bestowed upon each beneficiary a clearly measurable benefit: one replacement latch for each minivan owned. The court could therefore, with some degree of accuracy, value the benefits conferred. Even so, in Hanlon the district court used its valuation of the fund only as a cross-check of the lodestar amount, “reject[ing] the idea of a straight percentage recovery because of its uncertainty as to the valuation of the settlement,” id. at 1029, and it was on that basis that we affirmed the fee award.

Precisely because the value of injunctive relief is difficult to quantify, its value is also easily manipulable by overreaching lawyers seeking to increase the value assigned to a common fund. We hold, therefore, that only in the unusual instance where the value to individual class members of benefits deriving from injunctive relief can be accurately ascertained may courts include such relief as part of the value of a common fund for purposes of applying the percentage method of determining fees.23 See Van Gemert, 444 U.S. at

23Appellees cite cases in which fees have been awarded as a percentage of what they refer to as “non-monetary” benefits. But there is no appellate

STATON v. BOEING

5579

478-79. When this is not the case, courts should consider the value of the injunctive relief obtained as a “relevant circumstance” in determining what percentage of the common fund class counsel should receive as attorneys’ fees, rather than as part of the fund itself. See Vizcaino, 290 F.3d at 1049. Alternatively, particularly where obtaining injunctive relief likely accounted for a significant part of the fees expended, courts can use the common fund version of the lodestar method either to set the fee award or as a cross-check to assist in the determination of how the “relevant circumstance” of the injunctive relief should affect a percentage award. See id. at 1050 (“Calculation of the lodestar, which measures the lawyers’ investment of time in the litigation, provides a check on the reasonableness of the percentage award.”).24

The district court did not employ either of these procedures here. Nor can we determine on the record before us that considering the injunctive relief as a “relevant circumstance” or employing the common fund lodestar method would have justified the award of $4.05 million as a reasonable fee. On this ground, also, the district court erred in approving the proposed attorneys’ fees award.

iv. Treatment of Costs of Litigation

In assessing the reasonableness of the fee award, the parties

case cited that supports the fee award here. Two of the cases cited concerned not a common fund but the inapplicable common benefit doctrine. Mills v. Electric Auto-Lite Co., 396 U.S. 375, 392 (1970); Loring v. City of Scottsdale, 721 F.2d 274, 275 (9th Cir. 1983). And in Hanlon, supra, and Wing v. Asarco Inc., 114 F.3d 986, 990 (9th Cir. 1997), attorneys’ fees were calculated (as opposed to cross-checked) not by a common fund percentage approach but using the lodestar method.
24As Vizcaino notes, where attorneys’ fees are awarded on a common fund basis, “[t]he bar against risk multipliers . . . does not apply,” so the lodestar approach can include a risk multiplier. 290 F.3d at 1051; see also Florin, 34 F.3d at 564; WPPSS, 19 F.3d at 1299-1300.

5580

STATON v. BOEING

and the district court (1) included the pre-settlement costs of litigation — fairly low in this case, as the settlement occurred early in the lawsuit — as part of the fees awarded; but (2) included the cost incurred by Boeing for providing notices to the class of the settlement in the value of the injunctive relief, and therefore as part of the putative fund against which the reasonableness of the fees was measured.

The parties to the proposed settlement agreed to the inclusion of costs in the amount attributed to fees and the objectors, understandably, have not protested that inclusion. As all of those affected are content with that method of calculation and no class member’s interests are adversely affected, the district court had no cause to disapprove the attribution, nor do we.

The district court also did not abuse its discretion by including the cost of providing notice to the class of the proposed consent decree as part of its putative fund valuation, although the cost of providing two notices rather than one should not have been included. We have said that “the choice of whether to base an attorneys’ fee award on either net or gross recovery should not make a difference so long as the end result is reasonable. Our case law teaches that the reasonableness of attorneys’ fees is not measured by the choice of the denominator.” Powers v. Eichen, 229 F.3d 1249, 1258 (9th Cir. 2000). The post-settlement cost of providing notice to the class can reasonably be considered a benefit to the class. Also, where, as here, it is the defendant who pays for the notice, we may assume that the inherent incentives to minimize the cost involved are sufficient. Additionally, the court’s supervision of the form of notice and the method of communication assures that the costs expended are contained. We conclude that where the defendant pays the justifiable cost of notice to the class — but not, as here, an excessive cost — it is reasonable (although certainly not required) to include that cost in a putative common fund benefiting the

STATON v. BOEING

5581

plaintiffs for all purposes, including the calculation of attorneys’ fees.

4. Awards to Named and Unnamed Class Members

One other aspect of the settlement agreement also raises serious concerns as to its fairness, adequacy and reasonableness. The 237 people who are IIRs (and have not opted out) would each receive, on average, sixteen times greater damages than each of the unnamed class members; the subgroup of IIRs who are class representatives would receive even more relative to the class as a whole. While a point-based formula is used to distribute the damages fund among the rest of the class members who make claims, no such objective standards were applied in determining who would be paid as an IIR or in what amount. We find no sufficient justification in the record for this differential in the amount of damage awards and the process for awarding them.

The district court “considered this disparity carefully because excessive payments to named class members can be an indication that the agreement was reached through fraud or collusion.” Indeed, “[i]f class representatives expect routinely to receive special awards in addition to their share of the recovery, they may be tempted to accept suboptimal settlements at the expense of the class members whose interests they are appointed to guard.” Weseley v. Spear, Leeds & Kellogg, 711 F. Supp. 713, 720 (E.D.N.Y. 1989); see also Women’s Comm. for Equal Employment Opportunity v. Nat’l Broad. Co., 76 F.R.D. 173, 180 (S.D.N.Y. 1977) (“[W]hen representative plaintiffs make what amounts to a separate peace with defendants, grave problems of collusion are raised.”).

Although the district court expressed concern about the differential in damage awards, the court ultimately concluded that the settlement was reasonable, explaining that the named plaintiffs are “the group of class members identified by plain-

5582

STATON v. BOEING

tiffs’ counsel as having the strongest claims and thus as providing the strongest foundation for the lawsuit. Because they have the strongest claims it is fair that they would receive the largest awards.” The record does not, however, support this explanation.

Class counsel represent that an individual became an IIR due to his or her willingness to step forward, risk retaliation, contribute to the attorneys’ costs, and assist in coordination of the lawsuit.25 The contention is that the individuals with the strongest claims were the most likely to participate in this manner. But that generalization greatly oversimplifies. Some further, considerably more direct evidence regarding the strength of the IIRs’ claims is necessary to justify the large disparities in damages.

The need for direct evidence supporting the representation that the IIRs had particularly strong claims is heightened because the record suggests an alternative explanation for the selection of particular individuals as IIRs — their presettlement retention of class counsel and promise to contribute to counsel’s costs. Without contrary proof, the possibility that class counsel were simply rewarding with higher damages amounts those class members who had promised to contribute toward their costs during the pendency of the suit gains considerable plausibility.

25For instance, a declaration by one of the class lawyers states that the named plaintiffs
were those who were willing to take the risk of appearing as named plaintiffs; being team leaders; assisting the regional groups in gathering documents, evidence, and identifying other witnesses; coordinating the information flow to and from class counsel; assisting in efforts to raise sums to pay for the cost of this litigation; and/or agreeing to come forward with their claims and be witnesses. In our minds, each of these people was in effect a class representative or at least prepared to be a class representative.

STATON v. BOEING

5583

Such special rewards for counsel’s individual clients are not permissible when the case is pursued as a class action. Generally, when a person “join[s] in bringing [an] action as a class action . . . he has disclaimed any right to a preferred position in the settlement.” Officers for Justice, 688 F.2d at 632. Were that not the case, there would be considerable danger of individuals bringing cases as class actions principally to increase their own leverage to attain a remunerative settlement for themselves and then trading on that leverage in the course of negotiations.

In In re Cont’l Ill. Sec. Litig., 962 F.2d 566, 571 (7th Cir. 1992) (hereinafter “Continental Illinois”), the Seventh Circuit approved of “incentive fees” to compensate named plaintiffs for the risks they take and their vanguard role in the class action. See id. (“Since without a named plaintiff there can be no class action, such compensation as may be necessary to induce him to participate in the suit could be thought the equivalent of the lawyers’ nonlegal but essential case-specific expenses, such as long-distance phone calls, which are reimbursable.”). Continental Illinois would not justify the damages distribution in this case, as the much higher awards in the consent decree went to a large group of class members, not only to the class representatives. The two hundred-odd IIRs who were not class representatives were not essential to the litigation, although they may have been helpful to it.

We have, however, approved incentive awards of $5,000 each to the two class representatives of 5,400 potential class members in a settlement of $1.725 million. See In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 463 (9th Cir. 2000); see also In re US Bancorp Litig., 291 F.3d 1035, 1038 (8th Cir. 2002) (approving $2,000 incentive awards to five named plaintiffs out of a class potentially numbering more then 4 million in a settlement of $3 million); Cook, 142 F.3d at 1016 (approving, in the context of a recovery of more than $14 million, an incentive payment of $25,000 to one named plaintiff who “spent hundreds of hours with his attorneys and provided

5584

STATON v. BOEING

them with ‘an abundance of information’ ”); Continental Illinois, 962 F.2d at 571-72 (upholding a district court’s rejection of a proposed $10,000 award to a named plaintiff “for his admittedly modest services”); In re SmithKline Beckman Corp. Sec. Litig., 751 F.Supp. 525, 535 (E.D. Pa. 1990) (approving $5,000 awards for one named representative of each of nine plaintiff classes involving more than 22,000 claimants in a settlement of $22 million). In the proposed consent decree in this case, 29 named class representatives are designated to receive payments totaling $890,000. Compared to the three cases just mentioned, the different orders of magnitude in the present case concerning the number of named plaintiffs receiving incentive payments, the proportion of the payments relative to the settlement amount, and the size of each payment — here up to $50,000, with an average of more than $30,000 — are obvious. Nevertheless, named plaintiffs, as opposed to designated class members who are not named plaintiffs, are eligible for reasonable incentive payments. The district court must evaluate their awards individually, using “relevant factors includ[ing] the actions the plaintiff has taken to protect the interests of the class, the degree to which the class has benefitted from those actions, . . . the amount of time and effort the plaintiff expended in pursuing the litigation . . . and reasonabl[e] fear[s of] workplace retaliation.” Cook, 142 F.3d at 1016.

Additionally, class members can certainly be repaid from any cost allotment for their substantiated litigation expenses, and identifiable services rendered to the class directly under the supervision of class counsel can be reimbursed as well from the fees awarded to the attorneys.26 See Missouri v. Jenkins, 491 U.S. 274, 285 (1989). Similarly, if class members other than the named plaintiffs demonstrate that they were in fact retaliated against — or at least make some credible alle-

26According to class counsel, counsel will return to the IIRs the monies they paid under retainer agreements, so the damages awards do not cover those funds.

STATON v. BOEING

5585

gation of past or possible future retaliation — based on their role in the lawsuit, higher damages awards for such individuals than for other members of the class would be justified. But any plaintiff assumes the risk of retaliation, and we hesitate to single out non-named plaintiff IIRs as entitled to special payments simply for undertaking such risk.

Further, singling out a large group of non-named plaintiff class members for higher payments without regard to the strength of their claims eliminates a critical check on the fairness of the settlement for the class as a whole. Such individual class members who have actively participated in the litigation are the ones likely to be most aware of the dynamic at the negotiating table, the strength of the class claims, and the costs of pursuing the litigation. If they support the settlement agreement and are treated equally in that agreement with other class members making similarly strong claims, the likelihood that the settlement is forwarding the class’s interests to the maximum degree practically possible increases. If, on the other hand, such members of the class are provided with special “incentives” in the settlement agreement, they may be more concerned with maximizing those incentives than with judging the adequacy of the settlement as it applies to class members at large.

All these concerns about incentive or risk payments to certain class members are exacerbated in this case by the allegation, and in one case (that of Cordell Bolder) the apparent reality, that IIR awards went to individuals who were not proper members of the class.27 Again, if those individuals ren-

27Cordell Bolder is the son of a class representative whose support of the decree was important. Objectors also allege irregularities with respect to another IIR, Mr. Bolder’s stepfather, Jimmy Dean, as well as a class representative, Charles Jones. The district court had a responsibility to address each of these individuals’ proposed payments. Instead, its analysis did not go beyond stating that the “award to Mr. Bolder [was] unfortunate,” but not fraudulent. Having found that “the parties now admit that he is not a member of the class,” the court should have made approval of the decree contingent on its amendment to eliminate “this single error.”

5586

STATON v. BOEING

dered compensable services to the lawyers, then the lawyers should pay for those services from the amount of the fund properly awarded for costs or fees, as appropriate. But if one or more of these individuals is clearly not a member of the class and therefore not entitled to any damages award, any proposed decree should be approved only if the provision awarding that person or those persons damages is deleted. If, alternatively, an individual’s class membership is debatable, then the award to him or her can be considered an element of the compromise.

We conclude that the aspects of the settlement agreement pertaining to the distribution of the damages fund cannot stand on the present record. Because the very large differential in the amount of damages awards between the named and unnamed class members is not justified on this record, the district court abused its discretion in finding the settlement agreement to be fair, adequate and reasonable under Rule 23(e). We therefore reverse the judgment on this ground as well.

III. CONCLUSION

Having determined that reversal is appropriate on several grounds, we need not consider the other arguments of the objectors.

On remand, the parties will have a choice concerning whether to attempt to justify the present proposed agreement under the principles outlined above or, instead, to renegotiate the aspects of the agreement we have indicated are questionable. If they choose the former course and are able to justify the damages distribution (which on the present record appears quite unlikely), they will then also have to substantiate the fee award using a lodestar calculation under the applicable feeshifting statutes rather than on a common fund basis.28 For the

28In that case, the limitation on risk multipliers announced in Dague, supra, would apply.

STATON v. BOEING

5587

reasons stated, the fee as it stands cannot be justified on a common fund basis, and the court can only approve or disapprove the present agreement in its entirety. Thus, if the fee cannot be justified on the fee-shifting statutory basis, the entire agreement will have to be renegotiated.

If, alternatively (and more likely, given the seeming difficulty of justifying the current proposed decree), the parties decide to renegotiate and are able to present a revised settlement agreement to the district court, the court will of course need to reassess carefully the fairness of the settlement in accord with the standards we have explicated. If the parties negotiate a settlement fund and leave the attorneys’ fees to be determined by the court on a common fund basis, then the district court, upon petition by class counsel, will determine these fees under the common fund principles discussed above.

The decision of the district court approving the proposed consent decree is REVERSED and REMANDED for proceedings consistent with this opinion.

TROTT, Circuit Judge, Dissenting:
As they always do, my conscientious colleagues display a thorough and scholarly grasp of the issues that arise in the settlement of class lawsuits. With all respect, however, I see this settlement and the district court’s approval of it in a different light. Thus, I respectfully dissent.
Three main worries, each of which in my view is just an illusion, appear to be driving the majority’s decision to reverse the district court’s approval of this consent decree: (1) the “possibility” that class counsel could have betrayed their clients in favor of their own fees; (2) that the “large differential” in the distribution of monetary awards between class representatives and certain identified class members, on one

5588

STATON v. BOEING

hand, and unnamed class members on the other, indicates something rotten in Denmark; and (3) that the district court inflated the $3.65 million value attached to the “largely precatory” injunctive relief. As I read this record, and as I shall attempt to demonstrate, these concerns have no foundation in fact or law.

Collusion

The Objectors correctly direct our attention to the rule that we have an obligation to police the settlement of class actions for evidence of collusion. See Fed. R. Civ. P. 23(e) (“A class action shall not be dismissed or compromised without the approval of the court . . . .”) “The purpose of this salutary requirement is to protect the nonparty members of the class from unjust or unfair settlements affecting their rights” as well as to minimize conflicts that “may arise between the attorney and the class, between the named plaintiffs and the absentees, and between various subclasses.” Piambino v. Bailey, 610 F.2d 1306, 1327-28 (5th Cir. 1980). We are to be cognizant of the “ ‘danger . . . that the lawyers might urge a class settlement at a low figure or on a less-than-optimal basis in exchange for red-carpet treatment for fees.’ ” In re General Motors Corp. Pick-Up Truck Fuel Products Liab. Litig., 55 F.3d 768, 819 (3d Cir. 1995) (quoting Weinberger v. Great Northern Nekoosa Corp., 925 F.2d 518, 524 (1st Cir. 1991)). In fact, this is the precise rationale fueling the Objectors’ challenge to the attorneys’ fees agreement: it suggests (1) that the attorneys “exploited the class action device to obtain large fees at the expense of the class,” and (2) that the representation was deficient.

Given the purpose of this rule, it occurs to me that if a class action merits settlement is not the product of collusion, the class et cetera has not been sold down the river in exchange for fees, and if the representation of the plaintiffs has been adequate, then the reasonableness of the fees presents itself in a different light, especially if the award is separate from the

STATON v. BOEING

5589

merits settlement of the case, as it is here. Thus, the first question for us is whether a showing has been made that the merits settlement suffers from some infirmity, suggesting in turn that the fees demonstrate a quid pro quo red carpet treatment in return for a betrayal of the client. I answer this question “no.”

The “possibility” of collusion in this case turns out under scrutiny to be a classic red herring. The district court carefully looked into this “possibility” and found nothing of the sort. The court allowed the Objectors to depose five individuals the Objectors claimed were participants in an alleged secret deal. These depositions uncovered no evidence of collusion, and they supported the proponent’s contention that there was no such evidence. At the end of the day on this important issue, the district court said:

Settlement agreements that are presented prior to class certification are to be considered with particular care because they are more likely to be a product of collusion and because they have not been negotiated by court-approved representatives. The Court has exercised this scrutiny and finds no evidence of collusion. In addition, the Court notes that unlike many other class actions, the plaintiffs here did not file a complaint having already agreed to a settlement. On the contrary, this case was contentiously litigated for a substantial period prior to the settlement negotiations. And the plaintiffs’ counsel spent a great amount of time preparing the case before it was filed. The nature and quality of this work gives every indication that plaintiffs’ counsel intended to pursue these claims vigorously until they reached a satisfactory result; and is wholly inconsistent with the suggestion that the attorneys planned to sacrifice the plaintiffs’ claims in exchange for a large fee award. It also indicates that the plaintiffs’ counsel had obtained sufficient evidence to understand the

5590

STATON v. BOEING

strength of the claims despite the lack of formal discovery.

The majority is certainly correct when they conclude that “[t]he district court neither abused its discretion in finding that counsel’s representation was appropriately vigorous for purposes of class certification nor clearly erred in finding that there was no overt collusion”; but then my colleagues erroneously decide this case on mere fears of the possibility of collusion — for which the district court specifically looked and found to be non-existent. What does collusion or the possibility of collusion have to do with this case and this settlement? Nothing. But, the mere specter of collusion in cases like this ends up almost as a neurosis undoing this settlement — even though villainy is manifestly non-existent.

Furthermore, this case, like all such cases, is unique in its facts and circumstances, and the district court’s clear understanding of all of its aspects, as expressed in the court’s Order of approval, dated September 30, 1999, explain away the “troublesome” dimensions of the settlement over which my colleagues — and the Objectors — fret. Three of these circumstances are covered by the first three Hanlon factors the district court must — and did — independently verify to determine that the consent decree is fair, adequate, and reasonable: (1) the strength of the plaintiffs’ case; (2) the risk, expense, complexity, and likely duration of further litigation; and (3) the risk of maintaining class action status throughout the trial. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998). The district court made the following findings and conclusions about these factors:

The Court reviews the first three factors together. The strengths of the plaintiffs’ claims and the risks of future litigation are clearly related questions. Boeing has faced a series of individual race discrimination law suits in recent years and has won every one. Although the number of named plaintiffs in this case

STATON v. BOEING

5591

and the descriptions of their experiences lend credence to their allegations, discrimination cases are notoriously difficult to prove, particularly when they are based on failures to promote or other discretionary decisions. There is also some risk that the class certified by the Court would not survive a challenge by Boeing, which might, for example, be able to demonstrate after more extensive discovery that the class claims are too individual to meet the commonality and typicality requirements. Finally, there is no doubt that continued litigation would be enormously burdensome and expensive for the plaintiffs as well as for Boeing. The price of discovery alone in a nationwide class action such as this one is almost always measured in millions of dollars. The objectors raise no serious challenges to these points, and the Court finds that these factors all strongly favor adopting the consent decree.

The record provides ample support for the district court’s understanding of these aspects of this complex litigation.

Accordingly, I conclude that there was no chicanery in this case, and the aspects of the consent decree to which the Objectors point as telltales of trouble are clearly dealt with and adequately explained by counsel and the district court. Judge Berzon’s scholarly opinion is an excellent discussion of that for which we must always be vigilantly on the lookout in these cases, but in the end, none of it applies to this settlement. My conclusion in this regard drives my analysis of the reasonableness of the attorneys’ fees, as I later explain.

The Differences in Damage Awards

Next, there is my colleagues’ problem with the distribution of monetary awards. This, too, was addressed, explained, and adequately handled by the district court:

5592

STATON v. BOEING

More problematic is the disparity between the awards to the named plaintiffs and individually identified recipients and the awards to absent class members. The Court has considered this disparity carefully because excessive payments to named class members can be an indication that the agreement was reached through fraud or collusion. After reviewing the record, however, the Court concludes that there is nothing improper about the damages awards under the decree in this case. There are 264 named members of the class and individually identified recipients who will receive the larger awards. This is a very large group to have been brought inline behind an allegedly collusive agreement. More importantly, this is the group of class members identified by plaintiffs’ counsel as having the strongest claims and thus as providing the strongest foundation for the lawsuit. Because they have the strongest claims it is fair that they would receive the largest awards. Also awards to named class members and others assisting in the prosecution of a class action are generally significantly larger than awards to unnamed class members to compensate the first group for the time and risks taken by involving themselves in the litigation. For these reasons, the Court concludes that the awards to the named parties are not excessive.

***

As a final factor supporting the damages provision of the consent decree, the Court notes that the optout provision allowed any member of the class to preserve an individual claim. Notice was provided to all class members by mail and by publication of the effects of the suit, and information about the claims process was readily available from the Clerk of the Court and from other sources. Any individual who

STATON v. BOEING

5593

believed that the damages he or she is likely to receive under the decree are inadequate could optout and file an individual suit. The decree provides that the statute of limitations period for such claims would be tolled during the pendency of the class action suit. This protection, as well as the other factors described above, leads the Court to conclude that the provisions for monetary relief in the decree are adequate, fair, and reasonable.

The Value of the Injunction

With all respect, my colleagues inappropriately brush off a highly significant aspect of the record on which the district court explicitly relied in evaluating the value of this settlement, starting with the informed Declaration of Jesse Jackson who vouched in strong terms for its benefit to the affected employees. Here verbatim is what Reverend Jackson offered the district court in this regard:

In June 1998, I was asked if I would review the racial issues pertaining to The Boeing Company (“Boeing”) and, if I felt there was a problem, if I could offer some assistance. Before agreeing to do so, I reviewed a substantial number of documents regarding promotional opportunities for African Americans at Boeing. I met many of the named plaintiffs in the class action to hear, first hand, what they perceive to be the roadblocks to equal opportunity at Boeing. I was impressed by the named plaintiffs, their candor, and their ability to articulate what they perceive to be the hurdles to equal opportunity. In conversations with them it was clear they were pursuing this litigation not for monetary gain for themselves or to receive a substantial monetary award for the class or particular individuals with grievous discriminatory claims but, instead, they were committed to trying to find a mechanism which

5594

STATON v. BOEING

would over time permit qualified minorities to have the jobs they deserved but only after full and fair competition with non-minorities. They were not looking for freebies but simply a fair opportunity to be considered and to be promoted on their own merits. After listening to these named plaintiffs, and after discussing the matter with McKAY HUFFINGTON HARRELL & DESPER (“Plaintiffs’ Class Counsel”), I agreed to participate in the process. I contacted senior management at Boeing and scheduled several meetings with them. I personally met with Phil Condit and other senior management officials. We openly and candidly discussed the racial issues at Boeing and they provided materials that I requested so that I could review the significance and magnitude of the issues at Boeing. After these meetings, I met with and worked with Plaintiffs’ Class Counsel and the named plaintiffs in defining the goals of this litigation, what could be achieved and how to achieve it. I have not been paid any compensation [for] my services and advice, nor have the organizations with which I am affiliated been paid anything for my services, and there have been no promises of nor is there an expectation of payment in the future either for past or future services regarding this litigation or Boeing.

The proposed settlement in the Boeing litigation is, in my view, one that should make Boeing and its African American workers proud. It not only provides significant monetary relief, relative to the potential recovery for the class in this case, but advances the equal opportunity cause to a new and somewhat novel level. One might say that the proposed consent decree is even bold. To my knowledge no other employer has agreed to provide to its African-American employees, free of charge for three years, an outside, unaffiliated law firm with

STATON v. BOEING

5595

African American partners to review, assist, and advocate employment opportunities for African Americans. I know from my personal experience that there is no language in a policy, no committee, or any other of the traditional kinds of equitable relief in employment consent decrees that can even remotely come close to the efficacy of direct involvement by an independent advocate on behalf of a disenfranchised worker. Having a lawyer available to assist an African American worker to understand the employment process, the complaint process, and to challenge a failed promotional bid will, in my opinion, significantly increase the chances that that African American worker, and others like him or her, will be fairly promoted in the future. This consent decree may well become the model or template for future consent decrees. Providing a truly independent advocate to champion the cause for African American minority workers - as this consent decree does - may become the benchmark by which future employment class settlements are measured. I applaud Boeing for having the courage to provide such an advocate for its workers and Plaintiffs’ Class Counsel for taking on the obligation and the significant financial risks that it entails.

As I said before, I’ve been involved in several race-related lawsuits including, but not limited to Texaco. In those, I worked with the African American workers, management teams, and the lawyers to resolve equal opportunity issues. There, as in this case, I facilitated the negotiation process and the settlements. From that experience, and my general experience in working with businesses on racial issues, I can say without qualification that the proposed settlement for the Boeing litigation is good for minority workers and I urge the Court to approve it.

5596 (Emphasis added).

STATON v. BOEING

The Reverend Jackson’s opinion is just the beginning. An impressive array of experts also submitted declarations in favor of this settlement, experts simply unnamed and ignored by the majority.

Dr. Larry Davis, Ph.D., a chaired professor of racial and ethnic diversity at Washington University in St. Louis, Missouri, said about the proposed consent decree, and its forward-looking aspects:

This is truly a bold approach and, in my experience, would do more in the long run to advance the career opportunities of individual African-Americans at Boeing than any added verbiage to existing programs, than simply increasing their existing wages or salaries, or even giving them an automatic one-time promotion now. It provides a powerful enforcement device and information resource that is critically absent in most corporate environments. I would not be surprised if this aspect of the Boeing Consent Decree — that provides for a disinterested outside law firm to assist the employer’s workers at no charge — becomes the role model or template for further employment discrimination cases. I encourage the Court to give favorable consideration to this component of the Proposed Consent Decree.

(Emphasis added)

Dr. Al Black, Ph.D., a senior lecturer of sociology at the University of Washington agreed:

This seems to be a novel approach to a historical problem — affirmative plans designed to defeat discrimination without an active enforcement division or monitoring group giving it real teeth. If such

STATON v. BOEING

5597

“monitor” provides free legal service to its constituents, reviews their employment history and applications for job opportunities, assists them with job applications, and investigates problems should opportunities become unlawfully denied, then tremendous results can occur. This can be a powerful enforcement vehicle and a tremendous opportunity for African American employees at Boeing. Such approach can have the effect of establishing real meaning to the affirmative action rhetoric commonly regurgitated by large corporations and not monitored or enforced.

Traditional affirmative action programs have established the right framework with which to begin building processes that equalize employment conditions. The success of these programs is largely dependent upon how they are implemented and monitored. I believe that a dedicated outside monitoring source would further tremendously the success of these types of programs.

Gary Smith, a senior partner with the Ivy Planning Group, a management consulting firm serving such clients as IBM, Morgan Stanley, Zerox, the U.S. Postal Service, and Chase Manhattan Bank saw this settlement as did his professional counterparts:

Based on my professional judgement, there is incredible value in the creation of a system whereby employees have access to independent counsel, willing to devote their time and resources to measuring and monitoring the success of the employers’ commitment to diversity issues, and who are available to gather career related information for the worker, to assist in the maze of varying application or promotion criteria, and to confront the employer if the

5598

STATON v. BOEING

worker’s job/promotion application is wrongly rejected.

The success of any diversity initiative is dependent on how much the employer polices itself. In today’s corporate environment, effective diversity efforts are being moved beyond H.R. organizations and made the responsibility of line managers. Human Resources and EEO resources are never sufficient. The management team will always choose to devote its limited resources and money to activities that more directly generate income. Putting these two phenomenon [sic] together means that even the best affirmative action plan cannot achieve optimal results. However, if an organization is willing to allow an outside firm to assist in these efforts, incredible value is bestowed upon the employee, with bottom line improvements being passed on to the organization.

Kerby Collins, the Internal Civil Rights Manager for the Washington State Department of Transportation was of a similar mind:

When and where internal complaint procedures and adequate monitoring responsibilities fail, as claimed by the African American employees at The Boeing Company, I believe the most productive and powerful tool available to complainants, would be access to independent legal counsel charged with the responsibility of monitoring the organization’s compliance with the law, or in this case, a Consent Decree. While many organizations may not welcome this type of “policing” function, if organizations are willing to demonstrate this commitment, in the long run it will result in improved organizational behavior and in turn, profitability.

STATON v. BOEING

5599

How my colleagues can choose to dismiss the evidence regarding the importance and real value of the injunctive relief against future job discrimination is beyond me. The majority seems simply — and inappropriately — to disbelieve class counsel when they say that “Boeing will also pay $750,000 to retain class counsel for three years after the settlement becomes final to provide free legal assistance to African-American employees seeking career advancement at Boeing.” There is absolutely nothing in this record, I repeat, nothing to suggest that we should not take class counsel at their word about their promises of free legal assistance to these employees, assistance paid for by Boeing.

My colleagues express similar concern about attaching value to what they dismiss as “changes already . . . implemented,” as though matters in the works somehow do not count, or have no value. Yet, they overlook why the changes which they discount came to pass. To quote Boeing in its brief to this court:

Objectors also attack certain elements of the equitable relief as “illusory” because they allegedly were not brought about through the class action litigation. This statement, however, is factually unfounded. The equitable relief provided by the Consent Decree was carefully tailored to address the concerns raised by plaintiffs in the two Seattle lawsuits, which also were raised by many African-American employees during the period of threatened litigation that led up to those lawsuits. Thus, while some of the equitable relief may have been “in the works” prior to the effective date of the Consent Decree, that relief was clearly the result of the pressure brought to bear on Boeing by the lawsuits. Some background of the events leading up to the litigations helps illustrate this point.

In late 1996 and early 1997, two groups of African-American employees from Boeing’s Everett,

5600

STATON v. BOEING

Washington and Auburn, Washington facilities came forward and expressed concerns regarding alleged race discrimination. Boeing agreed to interview each employee who raised a complaint, consider common issues raised, and take appropriate action to address the concerns. These two groups grew to approximately 165 employees, and a number of those employees are now included in the Seattle Class Action as IIR’s.

The concerns — and litigation threats — expressed by the two groups centered around perceived unfairness in promotions, especially: (1) the ERT (“Employee Request for Transfer”) system used by Boeing as an element of selecting persons for promotions within the hourly ranks; (2) perceived unfairness in the selection of entry-level managers; and (3) perceived ineffectiveness of the EEO investigation and corrective action function. While Boeing did not believe that these systems were discriminatory, the company nevertheless began to develop improved processes in response to these concerns and threats of litigation. Equitable relief to address these concerns — as well as additional relief addressing other issues — is now found in the Consent Decree. When a defendant takes voluntary action to address claims raised by plaintiffs in litigation, its actions are hardly considered “illusory” — under appropriate circumstances plaintiffs in such cases may be considered “prevailing parties” entitled to recover attorneys’ fees. See, e.g., Stivers v. Pierce, 71 F.3d 732, 751 (9th Cir. 1995) (citing Farrar v. Hobby, 506 U.S. 103 (1992)).

Attorneys’ Fees

My colleagues’ problems with the attorneys’ fees stem from getting lost in unfamiliar trees and a consequent failure

STATON v. BOEING

5601

to see the forest for what it is. This settlement promises clear future value to African-Americans working for one of our nation’s largest and most important employers. Measured against this value, much of which is intangible, the modest attorneys’ fees agreement appears to me on the record to be quite appropriate. As I have pointed out, it is a stand alone aspect of the settlement. In dollar terms, it does not subtract from the value of the settlement, which is only a small part of what the settlement accomplishes. The merits settlement itself was (1) free of collusion and chicanery, (2) generous in its opt-out provisions, (3) fair in its monetary provisions, (4) forthcoming in its look to the future, and (5) vigorously litigated. Nevertheless, the attorneys’ fees issue ends up as the proverbial tail wagging the dog to death, even though the dog is not a dog at all, but a viable solution to a serious problem demanding prompt resolution. If the settlement itself were truly suspicious and indicative of a betrayal, then a different approach might be in order; but if the settlement stands, in my view, so do these fees. It may not match up perfectly with other methods of measuring whether fees are appropriate, but no matter whether fees here are low or high, they do not subtract from the relief obtained by the plaintiffs. My colleagues say that the method used in this case to determine attorneys’ fees “allows too much leeway for lawyers representing a class to spurn a fair, adequate and reasonable settlement for their clients in favor of inflated attorneys’ fees.” This problem is not part of this case, and I do not see how something that might have happened but did not must torpedo this hardbargained positive outcome. In the end, this case has been decided based on possibilities, not realities.

Conclusion

The standard of review we are bound to employ is highly deferential, as it should be. As the majority admits, “We have repeatedly stated that the decision to approve or reject a settlement is committed to the sound discretion of the trial judge because he is exposed to the litigants, and their strategies,

5602

STATON v. BOEING

positions, and proof. Hanlon, 150 F.3d at 1026 (citation and internal quotation marks omitted). Accordingly, a district court’s final determination to approve the settlement should be reversed ‘only upon a strong showing that the district court’s decision was a clear abuse of discretion’ . . .” Hanlon, 150 F.3d at 1026 (quoting In re Pac. Enters. Sec. Lit., 47 F.3d 373, 377 (9th Cir. 1995)). Here, not only do the majority fail to adhere to this deferential standard, adopting instead a standard of “somewhat uneasy with the settlement as a whole”; but in my view, they do so in a case where the district court’s approval of the settlement and of the attorneys’ fees was clearly an appropriate exercise of discretion. The district court judge responsible for this case is highly experienced, capable, and astute, one over whose eyes no one pulls the wool. It is a rare settlement that will delight all parties, but this settlement has much to say for it. Accordingly, I dissent from a decision that will have the effect of unnecessarily delaying full implementation of this efficacious solution for four years — if not more — from the date the district court found it to be appropriate.

 
 517 F.3d 1120 (2008)
Solomon WILLIAMS, Plaintiff, and Mara Ferrari; Rhonda Capps; Kevin Biglow; Doreen Ferguson; Beverly
Trotter, Plaintiffs-Appellants, v.
The BOEING COMPANY; Boeing North American, Inc., a Delaware corp.; McDonnell Douglas Corporation, Defendants-Appellees.
No. 06-35196.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted January 11, 2008. Filed February 27, 2008.
1121*1121 1122*1122 1123*1123 1124*1124 Steve W. Berman, Craig R. Spiegel (argued), Ivy D. Arai, Hagens Berman Sobol Shapiro LLP, Seattle, WA, for the appellants.
Michael Reiss (argued), David C. Tarshes, Kristina Silja Bennard, Davis Wright Tremaine LLP, Seattle, WA, for the appellee.
Before: ROBERT R. BEEZER, A. WALLACE TASHIMA, and RICHARD C. TALLMAN, Circuit Judges.
TALLMAN, Circuit Judge:
Nearly ten years ago, Plaintiffs filed suit against The Boeing Company ("Boeing") claiming that they had been discriminated against in their employment on the basis of their race. The case has a complicated procedural history and has, at times, involved a number of different claims and plaintiff classes. The issues on appeal are fairly narrow. Specifically, Plaintiffs allege that between June 4, 1994, and May 28, 2000, Boeing paid African-American salaried employees less than similarly situated Caucasian employees.
We address two separate questions. First, whether the named Plaintiffs had standing to challenge Boeing's allegedly discriminatory compensation practices for the period prior to May 28, 2000, in the district court and whether they continue to have standing on appeal. Second, whether the district court properly held that the pre-May 28, 2000, compensation discrimination claim is barred by the statute of limitation.
I
On June 4, 1998, sixteen individual plaintiffs filed a class action against Boeing alleging that they had "been denied the opportunity for promotion, . . . subjected to a hostile work environment, and . . . retaliated against because of Boeing's policy and practice of racial discrimination." In November 1998, the plaintiffs filed a First Amended Complaint, which included substantially the same factual allegations, named additional plaintiffs, and included additional causes of action for negligent misrepresentation and breach of contract. The five Plaintiffs named in this appeal — Mara Ferrari, Rhonda Capps, Kevin Biglow, Doreen Ferguson, and Beverly Trotter — were included in the First Amended Complaint.

In January 1999, before substantial discovery had been undertaken, the parties sought court approval of a class settlement. The district court certified a settlement class and approved the proposed Consent Decree. Several class members objected to the settlement and appealed the district court's order. In Staton v. Boeing Co., a prior panel of our court affirmed certification of the settlement class but rejected the Consent Decree. We determined that the distribution of proceeds between named and unnamed class members and the manner in which attorneys' fees were to be awarded did not meet the "fair, adequate, and reasonable" standard of Federal Rule of Civil Procedure 23(e). 327 F.3d 938, 959, 972, 974, 978 (9th Cir.2003).
On remand, Plaintiffs, represented by new lead counsel and before a different district judge, filed a Second Amended Complaint, which explicitly included a claim of compensation discrimination. The Second Amended Complaint included factual allegations relevant to the compensation discrimination claim, but did not include additional factual allegations on behalf of the individually named Plaintiffs.
In response to the Second Amended Complaint, Boeing moved for partial summary 1125*1125 judgment. Boeing argued Plaintiffs had not previously alleged compensation discrimination and, therefore, the statute of limitation barred a claim for conduct occurring more than four years before the Second Amended Complaint was filed. The district court granted partial summary judgment in favor of Boeing on January 10, 2005. The district court dismissed Plaintiffs' compensation discrimination claim "relating to conduct or actions prior to June 11, 2000 (four years before the Second Amended Complaint was filed)." On February 15, 2005, the district court denied Plaintiffs' Motion for Reconsideration, but amended its prior order to hold the limitation period ran from May 28, 2000, four years before Plaintiffs lodged their Second Amended Complaint, and not June 11, 2000, four years before the complaint was actually filed.[1]
At the same time Boeing was seeking partial summary judgment on the pre-2000 compensation discrimination claim, the parties were briefing the issue of class certification. On January 21, 2005, the district court certified a class of "African-American salaried employees employed . . . from June 6, 1994 to the present . . . seeking injunctive relief for racial discrimination in compensation and promotions." It is unclear why the district court certified a class including employees making a compensation discrimination claim from 1994 forward given that eleven days earlier it had determined that there was no viable claim for compensation discrimination arising between June 6, 1994, and May 28, 2000. Neither party contested this aspect of the class certification decision.
After the district court issued its certification order, Boeing again moved for partial summary judgment and argued that Plaintiffs' post-2000 compensation discrimination claim could not meet the legal standard required to prove a pattern and practice of disparate treatment under § 1981. In the alternative, Boeing sought dismissal of the individual Plaintiffs' post-2000 compensation discrimination claims for lack of standing and decertification of the compensation discrimination class.[2] The district court found that "the named Plaintiffs [did] not offer[ ] affidavits or other evidence that, even if taken as true, would show that they themselves have suffered injury after May 28, 2000 due to compensation discrimination" and therefore "[had] not demonstrated standing to maintain such individual claims during the relevant liability period." Because the named Plaintiffs all lacked standing to maintain individual compensation discrimination claims, the district court decertified the class with regard to the class claim.[3] The district 1126*1126 court also denied Plaintiffs' request for leave to move for intervention by an absent class member with a post-2000 compensation claim. Because the district court decertified the compensation discrimination class, it determined that "it would not be necessary or appropriate . . . to reach Boeing's request for summary judgment on the class compensation discrimination claim," and left open the possibility that absent class members could pursue "compensation discrimination against Boeing, either as individuals or as a putative class action."
In December 2005, Plaintiffs' class pattern and practice promotion discrimination claim was tried to a jury. The class disparate impact promotion discrimination claim was tried to the court. Both the jury and the court found in favor of Boeing. After trial, the district court directed entry of final judgment by the parties' stipulation under Rule 54(b) "as to all claims alleged by all members of the class" originally certified, specifically excluding compensation discrimination claims of absent class members. Plaintiffs then

appealed challenging only: 1) the district court's determination that the pre-2000 compensation discrimination claim is barred by the statute of limitation, and 2) the district court's order decertifying the class.
After this appeal had been fully briefed, the district court ordered the parties to submit a joint status report, indicating Plaintiffs Ferrari, Capps, Biglow, Ferguson, and Trotter "may have individual claims remaining." The parties responded, stating that Ferrari, Capps, Biglow, and Ferguson "informed plaintiffs' counsel that they do not wish to proceed with [their] claims on an individual basis." Trotter did not respond "as to whether . . . she wants to pursue . . . her claim[ ] on an individual basis, despite plaintiffs' counsel's repeated efforts to contact [her] by phone, letters and in some cases email." Pursuant to the proposal in the joint status report, Ferrari, Capps, Biglow, and Ferguson filed an unopposed motion to dismiss their remaining individual claims with prejudice, which the district court granted on January 8, 2007. The order contained the following sentence: "This Order does not affect these plaintiffs' rights to pursue an appeal (Ferrari, et al. v. The Boeing Co., No. 06-35196), which is pending in the Ninth Circuit." Trotter's claims were dismissed without prejudice the same day.
Almost a year later, and a month before oral argument was scheduled, Boeing moved to dismiss claiming that because Plaintiffs had dismissed their individual claims they lacked standing to pursue this appeal and the appeal was moot. At oral argument Boeing urged that Plaintiffs had never sufficiently demonstrated standing to challenge Boeing's pre-2000 compensation practices, requiring dismissal of their claim for lack of standing. Plaintiffs contended that the allegations in their Complaints were sufficient to establish standing on the pre-2000 compensation discrimination claim, that they had not abandoned that claim, and that the claims they had voluntarily dismissed were "only [the] remaining claims, i.e., their individual claims for discrimination in areas other than compensation."
II
Article III of the United States Constitution "requires a litigant to have 1127*1127 `standing' to invoke the power of a federal court." Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). To have standing, a "plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Id. at 751, 104 S.Ct. 3315. Although standing with regard to Plaintiffs' pre-2000 compensation discrimination claim was not an issue before the district court, "we have an independent obligation to examine our own and the district court's jurisdiction." See Rivas v. Rail Delivery Serv., Inc., 423 F.3d 1079, 1082 (9th Cir. 2005).
A
"At least one named plaintiff must satisfy the actual injury component of standing in order to seek relief on behalf of himself or the class." Casey v. Lewis, 4 F.3d 1516, 1519 (9th Cir.1993) (citing O'Shea v. Littleton, 414 U.S. 488, 494-95, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974)). This requires that the plaintiff demonstrate that "he has sustained or is imminently in danger of sustaining a direct injury as the result of the challenged conduct." Id. On a motion to dismiss, "general factual allegations of injury resulting from the defendant's conduct may suffice[because] we `presum[e] that general allegations embrace those specific facts that are necessary to support the claim.'" Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (quoting Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 889, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)) (second alteration in the original). Plaintiffs have met their burden here.
In the Second Amended Complaint Plaintiffs alleged that they had been denied equal pay based on their race. They claimed that there were "racial differences in initial pay code assignments," and that these "differences in starting salaries tended to track with employees throughout their careers." Plaintiffs also alleged that Boeing performed internal analyses of disparities in salaries, which "often disclosed that African-Americans were paid less than their Caucasian counterparts at Boeing." Each named Plaintiff is

an African-American employed by Boeing between 1994 and 2000 in a salaried position. Plaintiffs' allegations that they sustained a direct injury in the form of less pay as a result of Boeing's discriminatory compensation practices are sufficient on a motion to dismiss to establish their standing with regard to the pre-2000 compensation discrimination claim.[4] See United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 688-90, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973); Casey, 4 F.3d at 1519 & n. 2; Harmsen v. Smith, 693 F.2d 932, 942-43 (9th Cir.1982).
Boeing argues Plaintiffs lack standing because they did not offer specific, individualized factual allegations of pre-2000 1128*1128 compensation discrimination. "[E]ach element[of standing] must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Defenders of Wildlife, 504 U.S. at 561, 112 S.Ct. 2130. On a summary judgment motion challenging standing a plaintiff may not rest on "mere allegations, but must set forth by affidavit or other evidence specific facts" that demonstrate standing. See id. (quotation marks omitted).
Boeing moved for summary judgment for lack of standing on Plaintiffs' individual post-2000 compensation discrimination claims and the district court dismissed those claims because Plaintiffs failed to offer "affidavits or other evidence that, even if taken as true, would show that they themselves have suffered injury after May 28, 2000 due to compensation discrimination." But Boeing never moved for summary judgment for lack of standing on Plaintiffs' pre-2000 compensation discrimination claim. Instead, Boeing sought summary judgment on the ground that the pre-2000 claim was barred by the statute of limitation. Because Boeing did not move for summary judgment on standing grounds, Plaintiffs were never forced to come forward with "specific facts" to support their standing for the pre-2000 claim. See SCRAP, 412 U.S. at 690 n. 15, 93 S.Ct. 2405 (noting that the defendants "object[ed] to the fact that the allegations were not more precise," but stating that "[i]f the [defendants] thought that it was necessary to take evidence, or if they believed summary judgment was appropriate, they could have moved for such relief").
The district court determined that the pre-2000 compensation discrimination claim was barred by the statute of limitation before Plaintiffs were given the opportunity to present evidence in support of the claim.[5] Plaintiffs' allegations of compensation discrimination in the Second Amended Complaint, although not detailed or extensive, are "concrete and particularized," and "fairly traceable" to Boeing's allegedly discriminatory compensation practices. Their injury, unequal pay, would likely be redressed by a favorable decision. Absent a specific challenge requiring Plaintiffs to come forward with proof to substantiate their claim of injury, the allegations were sufficient to confer standing and, accordingly, jurisdiction lies in the district court to enter the partial summary judgment order Plaintiffs are now challenging on appeal.
B
In addition to having standing at the outset, a plaintiff's stake in the litigation must continue throughout the proceedings, including on appeal. See Employers-Teamsters Local Nos. 175 & 505 Pension Trust Fund v. Anchor Capital Advisors, 498 F.3d 920, 923 (9th Cir.2007). Boeing argues Plaintiffs lack standing to pursue this appeal because, after the appeal was taken, they voluntarily dismissed their individual claims and no longer had an interest in the outcome of the litigation. See Nat'l Audubon Soc'y, Inc. v. Davis, 307 F.3d 835, 848 (9th Cir.2002) (noting that to have Article III standing, it "must be likely that the injury will be `redressed by a favorable decision'") (quoting Defenders of Wildlife, 504 U.S. at 561, 112 S.Ct. 2130). Boeing urges us to dismiss the 1129*1129 appeal since "if none of the named plaintiffs purporting to represent a class establishes the requisite of a case or controversy with the defendants, none may seek relief on behalf of himself or any other member of the class." O'Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) (footnote and citations omitted).
We agree with Plaintiffs, however, that the voluntary dismissal of their individual claims did not include their pre-2000 compensation discrimination claims. In January 2005, the district court held Plaintiffs' pre-

2000 compensation discrimination claim was barred by the statute of limitation. Final judgment was entered against that claim on February 6, 2006.[6] Plaintiffs appealed the district court's ruling on March 7, 2006. Because the compensation discrimination claim had already been resolved, the district court's reference in its October 31, 2006, Order for a Joint Status Report to claims Plaintiffs "may have had remaining" necessarily referred to claims other than Plaintiffs' compensation discrimination claims. It is the remaining non-compensation claims Plaintiffs moved to voluntarily dismiss after their appeal had been filed.[7]
Additional evidence supports this conclusion. First, Plaintiffs' Motion for an Order of Dismissal stated that dismissal would be proper under Rule 41 because dismissal was sought "before the Court has even established a discovery and pre-trial schedule for their claims." There would have been no reason to establish a discovery or pretrial schedule for the pre-2000 compensation discrimination claim, which the district court had already determined was barred by the statute of limitation. Also in their Motion, Plaintiffs explicitly stated that they were not waiving their right to pursue this appeal. The district court recognized the same in its order granting the Plaintiffs' Motion. Although parties cannot "invoke the judicial power of the United States in litigation which does not present an actual `case or controversy,'" Sosna v. Iowa, 419 U.S. 393, 398, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975) (citation omitted), Plaintiffs' statement that they were not waiving their right to appeal and the district court's recognition of the same may be fairly read as an effort to confirm that Plaintiffs were not abandoning the claims that were pending on an appeal, rather than an attempt to create jurisdiction where none existed.
Since the district court had jurisdiction to enter partial summary judgment in favor of Boeing on Plaintiffs' pre-2000 compensation discrimination claim, and since Plaintiffs continue to have standing to pursue this appeal, we deny Boeing's Motion to Dismiss and we address the merits of the district court's statute of limitation ruling.
1130*1130 III
Plaintiffs' compensation discrimination claim, brought pursuant to 42 U.S.C. § 1981, is subject to a fouryear statute of limitation. 28 U.S.C. § 1658(a). Boeing argues that the statute of limitation bars the compensation discrimination claim for acts of discrimination occurring before May 28, 2000, four years before Plaintiffs' Second Amended Complaint was lodged. Plaintiffs argue that the limitation period begins to run in 1994, four years before their Original and First Amended Complaints were filed. Plaintiffs advance a number of theories in support of their argument: 1) that the Original and First Amended Complaints stated a cause of action for compensation discrimination; 2) that even if the Original and First Amended Complaints did not state a cause of action for compensation discrimination, the allegations in the Second Amended Complaint relate back to the earlier filings; 3) that, in any case, Boeing is judicially estopped to assert that Plaintiffs did not state a cause of action for compensation discrimination in the Original or First Amended Complaint; and 4) that the limitation period was tolled from the time the district court approved the Consent Decree until, at the earliest, it was finally rejected by this court. We consider each of these arguments in turn.
A
If Plaintiffs' Original or First Amended Complaint alleged a claim of compensation discrimination, the statute of limitation would run from 1994, not 2000. The district court found Plaintiffs' "Second Amended Complaint is the first time they allege a claim for racial discrimination in compensation for salaried employees." We determine de novo whether the Original and First Amended Complaints asserted a compensation discrimination claim. See Dominguez v. Miller (In re Dominguez), 51 F.3d 1502, 1508 n. 5 (9th Cir. 1995) ("Because the question whether a complaint provides sufficient information to satisfy the notice pleading requirements is essentially a question of law, we review that . . . question de novo.").

Even though heightened pleading is not required in discrimination cases, the complaint must still "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (quotation omitted). Plaintiffs rely on the allegation in the First Amended Complaint that they were "subjected to different terms and conditions of employment," arguing that this allegation is "not limited to particular employment benefits." Plaintiffs' claim that, under Swierkiewicz, such "conclusory allegations of discrimination" are sufficient to provide notice under Federal Rule of Civil Procedure 8. See Maduka v. Sunrise Hosp., 375 F.3d 909, 912 (9th Cir.2004).
In Swierkiewicz, the district court dismissed the plaintiff's complaint because he failed to "allege facts constituting a prima facie case of discrimination" under the McDonnell-Douglas burden shifting test. 534 U.S. at 509, 122 S.Ct. 992. The Supreme Court reversed holding that a plaintiff need not set forth a prima facie case of discrimination in his complaint to survive a motion to dismiss. Id. at 515, 122 S.Ct. 992. The Court eschewed the rule adopted in some circuits employing heightened pleading requirements for discrimination cases and applied the same general notice pleading requirements applicable to the majority of civil actions. See id. at 510 n. 2, 513, 122 S.Ct. 992. Thus, the fact that the plaintiff included only conclusory allegations of discrimination in his complaint, insufficient to raise an inference of discrimination for a prima facie case, did not defeat his claim because his complaint "detailed the events leading to his termination, 1131*1131 provided relevant dates, and included the ages and nationalities of at least some of the relevant persons involved with his termination," providing "fair notice of what [his] claims [were] and the grounds upon which they rest[ed]." Id. at 514-15, 122 S.Ct. 992.
Here, Plaintiffs' general allegations that they were discriminated against with regard to "terms of employment" did not provide "fair notice" of the compensation discrimination claim. See Barcume v. City of Flint, 819 F.Supp. 631, 638 (E.D.Mich. 1993) (finding that allegation of discrimination in the "terms and conditions of employment" did not provide defendants notice of claims other than those specifically alleged in the complaint); Davis v. Bethlehem Steel Corp., 600 F.Supp. 1312, 1318-19 (D.Md.1985), aff'd, 769 F.2d 210 (4th Cir.1985) (in the context of tolling noting that "notice only of the fact that [defendants] were being charged with racial discrimination in any and all types of general employment practices . . . does not give the defendants . . . fair notice").
Nor do the specific references to pay in the Original and First Amended Complaints provide notice of a compensation discrimination claim. See Fontana v. Haskin, 262 F.3d 871, 877 (9th Cir.2001) ("Specific legal theories need not be pleaded so long as sufficient factual averments show that the claimant may be entitled to some relief."). The Original and First Amended Complaints explicitly refer to Plaintiffs having been denied promotions, subjected to a hostile work environment, and retaliated against on the basis of their race. The specific factual allegations included in the Complaints support these claims. The Complaints do not make any general or specific allegations of salary inequities apart from promotionrelated differences; the references to pay in the Original and First Amended Complaint are related only to the pay increases accompanying promotions. Such factual averments are not sufficient to allege a separate claim for compensation discrimination. See Richards v. Harper, 864 F.2d 85, 88 (9th Cir. 1988); cf. Swierkiewicz, 534 U.S. at 514-15, 122 S.Ct. 992 (holding that plaintiff's complaint, which "included the ages and nationalities of at least some of the relevant persons involved with his termination" was sufficient to provide notice of plaintiff's age and national origin discrimination claims) (emphasis added); Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) (holding that prisoner's complaint alleging that he was "punished for filing a grievance" against a correctional officer was sufficient to provide notice of claim that he was retaliated against for exercising his First Amendment rights).
Plaintiffs' reliance on the language of the Consent Decree and our previous description of the case as proof of what was alleged in the Original and First Amended Complaints is also unavailing. First, the Consent Decree never became effective and by its terms is not admissible as evidence on this or any other issue.
The "Litigation Background" section of the Consent Decree describes the action as follows:

The Plaintiffs in the Alleged Class Action contend that Boeing has engaged in a policy or pattern or practice of unlawful Discrimination on the basis of Race against them . . . in respect to promotions within the hourly ranks, promotions from hourly positions into managerial and other salaried positions, promotions among salaried positions, training, education, skills and career development, performance appraisals, transfers, compensation, discharge, discipline and other terms, benefits and conditions of employment.
Although this provision implies that Plaintiffs alleged a compensation discrimination 1132*1132 claim, "the intent of the language used in the Decree was to effectuate a broad release of all possible claims," including claims that had not been alleged in the Complaints. See 4 Alba Conte & Herbert B. Newberg, NEWBERG ON CLASS ACTIONS § 12:15 (4th ed. 2007) ("In order to stifle the threat of further litigation, the defendant will seek a judgment as broad as the law permits."). This intent is supported by the fact that the language cited also refers to claims for discharge and discipline discrimination, neither of which is purportedly alleged in the Original or First Amended Complaints. Further, as the district court found, the relief provided in the Consent Decree was aimed at remedying promotion discrimination and the allegedly hostile work environment, not compensation disparities. The one passing reference to compensation in the 40-page Consent Decree that never became effective is not sufficient to prove that the Original and First Amended Complaints set forth a compensation discrimination claim, especially when it is clear from the face of the pleadings that such a claim was not alleged and the only complaint about compensation was as it related to higher pay accompanying the denied promotions.
Plaintiffs also rely on a description of the litigation in our decision in Staton to support their claim that compensation discrimination was alleged in the Original and First Amended Complaints. In Staton we stated: "The action alleged that Boeing's promotion, compensation, and career development decisions were systematically discriminatory and that Boeing created and permitted a racially hostile work environment," 327 F.3d at 946 (emphasis added), and "[T]he class here complains of a complex of discriminatory practices that includes compensation, training, and work environment in addition to promotions," id. at 955 (emphasis added).
These statements merely characterized Plaintiffs' cause of action and were not essential to the holding. For example, the first statement, describing Plaintiffs' allegations, does not include retaliation, but Plaintiffs continue to assert that the Original and First Amended Complaints included a retaliation claim. With regard to the second statement, we were pointing out that "commonality" was not defeated merely because different types of discrimination affected different class members. 327 F.3d at 955. Although we may have more precisely described the "other alleged axes of discrimination" applicable to class members unable to assert promotion discrimination claims, the reference to compensation was merely illustrative and does not have any preclusive effect here. See Thacker v. Fed. Commc'ns Comm'n (In re Magnacom Wireless, LLC), 503 F.3d 984, 993-94 (9th Cir.2007) ("In our circuit, statements made in passing, without analysis, are not binding precedent.").
Plaintiffs did not allege compensation discrimination based on race sufficiently to provide notice of that claim to Boeing under Federal Rule of Civil Procedure 8(a). The subsequent characterizations of Plaintiffs' claims, in the Consent Decree and in our prior opinion, do not provide evidence to the contrary.
B
Plaintiffs contend that even if the Original and First Amended Complaints did not state a claim of compensation discrimination, the allegations of compensation discrimination in the Second Amended Complaint relate back to the earlier filings under Federal Rule of Civil Procedure 15(c) and are not barred by the statute of limitation. The district court rejected this argument. We review de novo the district court's application of the relation-back doctrine under Rule 15(c).[8] 1133*1133 Oja v. U.S. Army Corps of Eng'rs, 440 F.3d 1122, 1127 (9th Cir.2006).

Rule 15(c)(1)(B) provides: "An amendment to a pleading relates back to the date of the original pleading when . . . the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading. . . ." Claims arise out of the same conduct, transaction, or occurrence if they "share a common core of operative facts" such that the plaintiff will rely on the same evidence to prove each claim. See Martell v. Trilogy Ltd., 872 F.2d 322, 32526 (9th Cir.1989) (finding that amended complaint related back where amended complaint added new theory of recovery based on facts alleged in original complaint); Percy v. S.F. Gen. Hosp., 841 F.2d 975, 978 (9th Cir.1988).[9]
Here, there is no common core of operative facts between the compensation discrimination claim and the promotion discrimination, hostile work environment, and retaliation claims. Plaintiffs' Second Amended Complaint had to include additional facts to support the compensation discrimination claim. As the district court noted, different statistical evidence and witnesses would be used to prove the compensation and promotion discrimination claims because of the different processes Boeing uses to make salary and promotion decisions. The fact that both the compensation and promotion discrimination claims involve allegations of racial discrimination does not alter our conclusion. See Barcume, 819 F.Supp. at 636; cf. Jones v. Greenspan, 445 F.Supp.2d 53, 56-57 (D.D.C.2006). The compensation discrimination claim is a new legal theory depending on different facts, not a new legal theory depending on the same facts. It does not relate back under Rule 15(c).[10] See Markus v. Gschwend (In re Markus), 313 F.3d 1146, 1151 (9th Cir.2002); Percy, 841 F.2d at 979-80; SEC v. Seaboard Corp., 677 F.2d 1301, 1314 (9th Cir.1982).
Plaintiffs contend that the compensation discrimination claim must be based on "the identical factual predicate as the claims alleged" in the Original and First Amended Complaints because otherwise the compensation discrimination claim could not have been released by the Consent Decree. See 5 Alba Conte & Herbert Newberg, NEWBERG ON CLASS ACTIONS § 16:7 (4th ed. 2007) ("It is well-settled that in order to achieve a comprehensive settlement . . . a court may permit the release of a claim based on the identical factual predicate as that underlying the claims in the settled class action even though the claim was not presented and might not have been presentable 1134*1134 in the class action."). Because the compensation discrimination claim satisfies the identical factual predicate standard for settlement, Plaintiffs argue, it necessarily satisfies the same conduct, transaction or occurrence standard for relation back.
Plaintiffs' argument assumes that the compensation discrimination claim would have been released by the Consent Decree if it had been finally approved.[11] While Boeing may have drafted the settlement agreement to include as broad a release as possible, the release would have only been enforceable as to subsequent "claims relying upon a legal theory different from that relied upon in the class action complaint, but depending upon the same set of facts." 4 NEWBERG ON CLASS ACTIONS § 12:15. In any case, the scope of the Consent Decree is not relevant to whether the compensation discrimination claim relates back to Original and First Amended Complaints because it is clear from the pleadings themselves that the compensation discrimination claim included in the Second Amended Complaint does not arise from the same "conduct, transaction, or occurrence" alleged in the Original and First Amended Complaints. Finally, by its terms, the Consent Decree is inadmissible as evidence "regarding any . . . issue or subject" because it never received final judicial approval. Plaintiffs' compensation discrimination claim, alleged for the first time in the Second Amended Complaint, does not relate back to the Original and First Amended Complaint.
C
Plaintiffs next contend that Boeing should be judicially estopped to argue that Plaintiffs did not allege compensation discrimination in the Original and First Amended Complaints because such a position is contrary to the position Boeing took in the Consent Decree. The district court held that "nothing in the Consent Decree judicially estops Boeing from obtaining partial summary judgment on the salary compensation claim." We review this holding for abuse of discretion. See Broussard v. Univ. of Cal., 192 F.3d 1252, 1255 (9th Cir.1999); Johnson v. Or. Dep't of Human Res., 141 F.3d 1361, 1364 (9th Cir.1998)

("Because a court invokes judicial estoppel at its discretion, we review the application of judicial estoppel to the particular facts of a case for abuse of discretion.").
The equitable doctrine of judicial estoppel is not reducible to an exhaustive formula. New Hampshire v. Maine, 532 U.S. 742, 750, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001). However, a party generally will be judicially estopped to assert a certain position when: 1) the party's current position is "clearly inconsistent" with its earlier position, 2) the party was successful in persuading a court to accept its earlier position, and 3) the party would "derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped." Id. at 750-51, 121 S.Ct. 1808.
The district court focused on the first factor—whether Boeing had taken clearly inconsistent positions in the litigation. The district court noted that the "Consent Decree language refers to a compensation claim alleged by Plaintiffs," but found that this was not sufficient to establish that "Boeing's current position that Plaintiffs never asserted a salary compensation claim until they filed their Second 1135*1135 Amended Complaint [was] . . . `clearly inconsistent' with the position Boeing took in the Consent Decree." Specifically, the district court recognized that a Consent Decree may release claims broader than those included in the pleadings and emphasized that the Consent Decree did not include any relief regarding compensation discrimination as it did for promotion discrimination, harassment, and retaliation. The district court did not abuse its discretion in refusing to rely on one reference to compensation in the Consent Decree as determinative of the position Boeing had taken previously in the litigation. See United Steelworkers v. Ret. Income Plan for Hourly-Rated Employees of ASARCO, Inc., 512 F.3d 555, 563 (9th Cir.2008).
Because the district court found that Boeing's current position was not clearly inconsistent with the position Boeing had allegedly taken in the Consent Decree, the district court did not address other factors relevant to judicial estoppel except to state that "nothing in the Consent Decree judicially estops Boeing from obtaining partial summary judgment." See Klamath Siskiyou Wildlands Ctr. v. Boody, 468 F.3d 549, 554 (9th Cir.2006) (noting that "an inconsistent factual or legal position is a threshold requirement of the doctrine" of judicial estoppel) (quoting United States v. Lence, 455 F.3d 1047, 1051 (9th Cir.2006)). Looking briefly at the other two considerations listed above, it is clear that the district court did not act "clearly against the logic and effect of the facts as are found." See Rabkin v. Or. Health Scis. Univ., 350 F.3d 967, 977 (9th Cir.2003) (quotation omitted). First, there was no risk of inconsistent judicial determinations because the Consent Decree was not accepted on appeal and never became effective. Cf. New Hampshire, 532 U.S. at 752-53, 121 S.Ct. 1808. Boeing will not derive an unfair advantage if not judicially estopped; the Consent Decree was never effective and Boeing was not protected against additional claims. Any advantage that did enure to Boeing was not "unfair" because Boeing was not precluded from seeking a release broader than the pleadings. 4 NEWBERG ON CLASS ACTIONS § 12:15. Plaintiffs' judicial estoppel argument therefore fails.
D
Plaintiffs' final argument is that the statute of limitation on their compensation discrimination claim was tolled from January 22, 1999, when the parties filed their joint motion for approval of the Consent Decree, until our prior panel over-turned the Consent Decree on April 29, 2003, or later. The district court rejected this argument in its ruling on Plaintiffs' Motion for Reconsideration. We review de novo whether the statute of limitation is tolled. See Orr v. Bank of Am., NT & SA, 285 F.3d 764, 780 (9th Cir.2002).
Plaintiffs first argue that, under the doctrine of issue preclusion, the district court's approval of the Consent Decree prevented class members from asserting compensation discrimination claims even while it was pending on appeal. Because the Consent Decree barred individual lawsuits by class members, Plaintiffs argue, the statute of limitation was tolled until the Consent Decree was rejected. However, by its own terms, the Consent Decree was not in effect while on appeal. The district court properly concluded that Plaintiffs could have filed a compensation discrimination claim while the Consent Decree was on

appeal and Boeing could not have asserted an affirmative defense that the claim had been released, defeating Plaintiffs' tolling argument.
Plaintiffs also rely on American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), for the proposition that the statute of limitation was tolled from the time the district court 1136*1136 certified the settlement class and continued to be tolled despite the Staton decision because Staton upheld certification of the settlement class. Plaintiffs misread American Pipe, which holds that commencement of a class action itself, not the class certification decision, suspends the statute of limitation as to all asserted members of the class, even if the class is eventually decertified. 414 U.S. at 554, 94 S.Ct. 756; Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345, 350, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983). Tolling is fair in such a case because when the complaint is filed defendants have notice of the "substantive claims being brought against them." Crown, Cork & Seal Co., 462 U.S. at 352-53, 103 S.Ct. 2392 (quotation omitted). However, the tolling rule does not "leave[ ] a plaintiff free to raise different or peripheral claims following denial of class status." Id. at 354, 103 S.Ct. 2392 (Powell, J. concurring). As described in detail in Part III.A, neither the Original nor the First Amended Complaints stated a claim for compensation discrimination. Therefore the statute of limitation was not tolled for that claim as it would have been for the promotion discrimination, hostile work environment, and retaliation claims properly raised.
IV
Plaintiffs have also challenged the district court's order decertifying the compensation discrimination class. To the extent Plaintiffs are challenging the district court's decision to decertify the post-2000 compensation discrimination class, the district court did not abuse its discretion because the named Plaintiffs concede that they do not have standing with regard to the post-2000 claim. See Lierboe v. State Farm Mut. Auto. Ins. Co., 350 F.3d 1018, 1022 (9th Cir.2003) (holding that named plaintiff who did not have a viable claim against defendant could not serve as a class representative and vacating class certification accordingly).
To the extent Plaintiffs are challenging the district court's decision to decertify the pre-2000 compensation discrimination class, it is not clear that there is an order to challenge. See supra note 3. In any case, the challenge is moot because the pre-2000 claim is barred by the statute of limitation—there is no viable claim for a class to assert. See Amati v. City of Woodstock, 176 F.3d 952, 957 (7th Cir. 1999) ("Since the plaintiffs, having lost on the merits in this court, cannot possibly benefit from class certification, and the defendants are not seeking it, we shall treat the issue as moot. . . . ").
V
Plaintiffs' allegations of injury in the Second Amended Complaint were sufficient to establish standing. The district court had jurisdiction to decide whether the pre-2000 compensation discrimination claim was barred by the statute of limitation. We have jurisdiction to review the district court's decision because Plaintiffs continued to have standing on appeal; they did not abandon their individual pre-2000 compensation discrimination claims. Boeing's Motion to Dismiss is DENIED.
On the merits, the district court properly determined that Plaintiffs' pre-2000 compensation discrimination claim is barred by the statute of limitation. The district court's order granting partial summary judgment in favor of Boeing on Plaintiffs' pre-2000 compensation discrimination claim is AFFIRMED. Because the claim is barred by the statute of limitation, we need not decide whether the class was properly certified or decertified, and we DISMISS this portion of Plaintiffs' appeal as moot.
1137*1137 AFFIRMED IN PART; DISMISSED IN PART AS MOOT.

Each party shall bear its own costs.
[1] For the sake of brevity, we will refer to the compensation discrimination claim found by the district court to be barred by the statute of limitation as the "pre-2000" claim. The compensation discrimination claim not barred by the statute of limitation will be referred to as the "post-2000" claim.
[2] Boeing sought decertification of the compensation discrimination class generally, but its arguments in favor of decertification were limited to the post-2000 compensation discrimination claim. Specifically, Boeing argued that decertification was proper because none of the named Plaintiffs had standing to raise individual post-2000 compensation discrimination claims and therefore none could properly represent a class asserting such a claim. Boeing's decertification argument was not relevant or related to the pre-2000 compensation discrimination claim.
[3] Like Boeing's Motion to Decertify the Class, the district court's order refers to the class "originally certified," which included employees asserting pre-2000 compensation discrimination claims, but by its reasoning applies only to the post-2000 claim. The district court recognized that it certified the compensation discrimination class without properly determining whether the named Plaintiffs satisfied the Rule 23 requirements. However, in making the decertification decision, the district court only analyzed the propriety of class certification with regard to the post-2000 claim. Because it had previously determined that the pre-2000 claim was barred by the statute of limitation, it appears that the district court did not decide whether certification of the pre-2000 class was appropriate or whether decertification was required.
[4] Ferguson was deposed and stated that she did not have any complaints about the pay within any given job, as opposed to complaints about pay as a function of promotions. Because Ferguson affirmatively stated that she was not injured by Boeing's compensation practices, she does not have standing with regard to the compensation discrimination claim. See Casey, 4 F.3d at 1524. It is also not clear that Biglow, who opted out of the class and pursued his individual claims, including his compensation discrimination claim, against Boeing in district court in Kansas, has standing. However, because at least one named Plaintiff has demonstrated standing, the lack of standing with regard to these two Plaintiffs is not fatal. See Village of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 264, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977).
[5] Boeing's reliance on the declarations Plaintiffs filed in opposition to Boeing's first Motion to Dismiss in 1998 is misplaced. The fact that Plaintiffs' declarations do not refer to compensation disparities is not evidence of lack of injury, but rather evidence that compensation discrimination was not alleged.
[6] In April 2007, Boeing admitted that final judgment had been entered with regard to all compensation discrimination claims, pre- and post2000, as of February 6, 2006. Their argument that the district court expressly declined to decide the class's pre-2000 compensation discrimination claim is unavailing. The district court's order decertifying the compensation discrimination class, rather than granting classwide summary judgment, applied only to the post-2000 claim; the pre-2000 claim was resolved by the first partial summary judgment order.
[7] Plaintiffs' individual promotion discrimination claims remained after final judgment had been entered. These claims were not resolved at the trial, which focused only on the class promotion discrimination claims. The Supreme Court has held that judgment in a class action, which determines that an employer did not engage in a pattern or practice of racial discrimination against a certified class of employees does not preclude individual class members from maintaining subsequent civil actions alleging individual claims of discrimination against the employer. Cooper v. Fed. Res. Bank, 467 U.S. 867, 876-78, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984).
[8] Boeing contends that we sometimes apply the abuse of discretion standard to relation back issues. The cases it cites, however, deal with review of the district court's decision to grant or deny a motion to amend a complaint that will relate back under Rule 15(c). See Eaglesmith v. Ward, 73 F.3d 857, 860 (9th Cir. 1995); Louisiana-Pacific Corp. v. ASARCO, Inc., 5 F.3d 431, 434 (9th Cir.1993). Here, Plaintiffs were granted leave to file their Second Amended Complaint. The issue is whether, once filed, it did in fact relate back.
[9] The requirement that the allegations in the amended complaint arise from the same conduct, transaction, or occurrence is meant to ensure that the original pleading provided adequate notice of the claims raised in the amended pleading. Martell, 872 F.2d at 326. As noted in Part III.A, the allegations of the Original and First Amended Complaints did not put Boeing on notice of Plaintiffs' compensation discrimination claim.
[10] In this regard, it is useful to compare Plaintiffs' First Amended Complaint, which added claims of negligent misrepresentation and breach of contract based on the same allegation of discrimination included in the Original Complaint with Plaintiffs' Second Amended Complaint, which adds an entirely new claim for compensation discrimination unrelated to the promotion, hostile work environment, and retaliation claims.
[11] Rather than conceding that the compensation discrimination claim would not have been released by the Consent Decree, Boeing argues that a claim may satisfy the "identical factual predicate" standard for settlement even if it doesn't satisfy the "same conduct, transaction, or occurrence" standard for relation back. We need not and do not reach this issue.