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/ / /rUNSOLUTTEHDERSTNADTIESSTRDiICSTTRICT COURT

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MPAIOMNEEL,AROKB. MERATRATEON'BSR, JIUENDITH P. aTnHdOalMl oAthNeNrs,soimn bileahrlaylfsiotuftahteemd,selves
Plaintiffs,

:

--. -

C An.

v.

:

JURY TRIAL DEMANDED

-SMITH a/k/a

BARNEY,

INC.,

-

a/k/a SSHHEEAARRSSOONN/AMERICANEXPRESS

LHa/EOkH/LaMDSHIANENGASRH,SUINOfClNO.,LLNSEEHaHH/EIMMdAaAARSNNSHOBEBNARROROSTTOHHNEERRSS

COMPLAINT

LEHMAN BROTHERS, SMITH

aTBDnHAIdMERTONNHNEEE,YWNN/SAIYCHTOHEIROAOKNLRAASSOTLSONCC,UIKNNEECXO., C,JAHMAENSGE SECURITIES DEALERASS,SOCIATION OF

Defendants.

.

. -

of

Plaintiffs, Pamela K. themselves and all others

Martens,

Judith

P.

Mione

and

Roberta

O'Brien

Thomann,

on

behalf

Friedman

&

Vernon,

for

similarly their

situated,

by

and

through

their

attorneys,

Leng

Stowdll

Shearson/American

Express

Complaint against a/ida Shearson

Defendants,

Smith

Barney,

Inc.,

a/k/a

Holdings, inc., Shearson Lehman Hutton
Bamey/Shearson, Inc., (collecf " •
York Stock Exchange and the National

Lehman Brothers a/klaShearson Lehman a/k/a Shearson Lehman Brothers, Smith
, ames imon, Nicholas Cuneo,

Brothers the New

Association of Securities

Dealers, state as follows:

I.
supplemental

Jurisdiction jurisdiction.

is

based

on

JURISDICTION
28 U.S.C. § 1331, §1343

and

principles

ofpendent

and

.. .

'¼

\

PARTIES 2. Plaintiffs Pamela K. Martens ("Martens") and RobertaO'Brien Thomann ("Thomann") are former employees ofSmith Barney. Judith P. Mione ("Mione") is a current employee of Smith Barney. During their employment with Smith Barney, Martens, Thomann and Mione discharged all duties assigned to them competentlyand enjoyed excellent reputatie4ls
with regard to the high quality of their work and with regard to their conscientious devotionto'

their jobs. 3.

Defendant Smith Barney is a national securities brokerage firm which has been in

existence in some form since at least 1873. Today, Smith Barney employs in excess of 11,000

brokers nationwide and is among the country's largest providersof brokerage and brokerage-

related services, investment banking and asset management. At all times relevant to the

Complaint, Plaintiffs were employed by Smith Barney or were former employees of Smith

Barney.' 4.

Defendant James Dimon ("Dimon") at all times relevant tothe Complaint was the

Chairman and Chief Executive Officer of Smith Barney.

5. Defendant Nicholas Cuneo ("Cuneo") at all times relevant to the Complaint was a Vice President of Smith Barney. From approximately 1970 to 1995, Cuneo was the Branch

Manager for Smith Barney's Garden City, Long Island, New York Office. 6. The New York Stock Exchange ("NYSE") is a corporationwhich maintains and
provides facilities and services for its members to purchase and sell securities. The NYSE is a

,clficgulatory organization ("SPfl") ciibject to review by the Securities Exchange Commission. As an SRO, the NYSE has been delegated primary regulatoryresponsibility to adopt and enforce

standards of conduct for its member securities firmsand to administer securities arbitration

activities. The Securities Exchange Commission ("SEC") regulates and oversees the activities of

unFdreormgo1n8e7m3 atonythneapmreesecphta,nSgmesi.thSBomareneoyfShmasitmh eBragrendewy'isthafofriliaactqeudiroerdredliaftfeedreennttfiitriemssaarendlihstaesd

as "alicia" in the caption.

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the NYSE by reviewing and approving its rule filings and inspecting its arbitration programs.

7. The National Association of Securities Dealers ("NASD") is a corporation which

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operates and regulates the Nasdaq Stock Market and the over-the-countersecurities market. The NASD is an SRO, subject to review by the SEC. As an SRO, the NASD has been delegated

primary regulatory responsibility to adopt and enforce standards of conduct for its member securities firms and to administer securities arbitration activities. The SEC regulatesand

oversees the activities of the NASD by reviewing and approving its rule filings and inspecting its

arbitration programs.

FACTUAL ALLEGATIONS
Smith Barney Systematically Excludes Womcn From Employment Opportunities
8. Notwithstanding the number of brokers Smith Barney employs nationwide,its workforce is not diversified by sex or race. Upon information and belief,less than five percent of Smith Barney's 11,000 brokers are female and less still areminorities. Upon information and belief, although Smith Barney has approximately 440 branch offices,fewer than 10 branch managers are female. Indeed, the substantial majority of Smith Barney's employees are white
males. AseXplaifldUbe1'OV , cmn1tiktl Luithu3 iey rk±orce. isnot tharesuit of.
chance but is the result of intentional discrimination.

Pattern Allegations

9. During Plaintiffs' employment and

Smith Barney engaged in a patterr and

practice of discriminatory conduct including, but not limited to:

a.

excluding qualified women from Smith Barney's training program and fai1in to

hire women as laterals;

b. failing to promote women;

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c. underutilizing women;

d.

engaging in occupational segregation including, but not limited to, hiring women

only as sales assistants and other clerical or non-producing roles;

e.

taking into consideration sex, pregnancy, marital and parental status when making

employment decisions such as hiring, training, promoting, transferring and

assigning customer accounts;

f.

using as the basis for employment decisions female employees' refusal of or

submission to unwelcome sexual conduct;

g.

failing to credit women for their experience on the same basis as men and failing

to consider women for timely promotions ortitle changes on the same basis as

men;

h. systematically paying women lower wages and/or denying women opportunities

to increase their earnings, including commissions;

i.

systematically transferring or demoting women or otherwise altering the terms

and conditions of their employment with the intent of adversely affecting their

earnings;

j.

requiring women to meet licensing requirementsand to perform the duties of

higher paid positions but denying themthe salary, title and authority of the

positions which they performed; k. taking adverse actions against women, such as removal or reassignment of their
customer accounts, demotions, transfers, constructive discharges and dibALarcs on account of their sex and/or their rejection of or unwillingness to tolerate

unwelcome sexual conduct;

1.

humiliating, intimidating, and demeaning women including frequently and

inappropriately remarking about their sex, marital and parental status, bodies

and clothing and otherwise creating a hostile and offensive work environment;

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m. negligently hiring and/or retaining men with known propensities to discrimiàa%e?, against or sexually harass women;
n. retaliating against women who complain of discrimination including subjecting them to fi2rther discrimination, harassment, retaliation, physical and verbal attacks, reassigning their clients to male brokers and constructively discharging or discharging them;
o. making significant employment decisions based on sex stereotypes; p. . penalizing women for taking maternity leaves of absence; q. refusing to take adverse actions against male co-workers and managers who
engage in sexual harassment and sexual discrimination; r. forcing women to sign the Form IJ-4 and using that form to compel women to
arbitrate their discrimination claims before the male dominated NYSE or the NASD; and s. defaming women on their Form U-5s but issuing clean Form U-5s to men who were charged with disciplinary violations or sexual harassment or discrimination.
The Pattern of Discrimination and Retaliation Transcends All Aspects of Employment
10. Smith Barney recruits its potential brokers from an applicant pool that includes no less than 50 percent females. Smith Barney has no requirement that an applicant have industry experience in order to be hired. Further, Smith Barney has no educational requirements for entry into its broker tsan.ing progrnm. Nntwithctnnding the ct that women hnve increnced their presence during the past 10 years in virtually every segment of the business world, the percentage of women employed by Smith Barney as brokers has not, upon information and belief, increased to any significant degree. Further, upon information and belief, in 1993, Smith Barney employed only 13 women as branch managers out of approximately 440 branches. Upon information and belief, by 1996, the number of branches had increased to 460 but the number of
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women managers decreased to seven, adrop of almost 50 percent. Smith Barney's hiring aqd promotional statistics have a zero probabiliw of occurrence in a gender neutral or random

sampling. 11, Indeed, rather than hiring females as brokers, Smith Barney deliberately steers
female applicants into the position of sales assistant. Many of these women are led to believe

that the position of sales assistant is a stepping stone to the position of broker. In practice,

th\\ ¼'\ ¼1, Stnth ttutt:> 's saL's sssaUt* u'' t4uvt) pt\xtU¼k\l tu twkct 1.tp.n intbnnatiou and

thc L1XKt

4th'

N

iplov man as salcs assisthnts.

12. The duties of a sales assistant are those which are stereotypicallyassigned to

women. Sales assistants routinely transmit facsimiles, cover the switchboard, photocopy, collate

documents, run personal errands for the brokers and perform other clerical work. Many sales

assistants, however, have the same qualifications as brokers. They have passed the Series 7

examination and some have experience as brokers in other firms. Smith Barney relies on these

qualifications when it allows licensed sales assistants to take client orders and enter trades. Yet,

Smith Barney does not compensate these licensed sales assistants as brokers. Worse yet, when

broker vacancies exist, Smith Barney does not hire from its sales assistants pool. Rather, $rnith

Barney hires from blind ads or throughreferrals from its male brokers. For example, Smith
Barney has hired males as brokers whose only work experience or most iediate work

experience has been as a professional athlete,construction worker, restaurant worker, and carpenter. Smith Barney would rather hire an inexperienced stranger as a broker than offer

carccr advancement to its femnle cales agistants.

13. Further, the few women who are employed by Smith Barney as brokers are treated less favorably than Smith Barney's male brokers. For example,female brokers rarely receive the

assistance of "cold callers." Rather, they must generate their own leads and accounts. Moreover,

when brokers leave Smith Barney, the branch managers first offer the books of the departing

brokers to male brokers. Only after the male brokershave selected the most desirable accounts

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from the departing brokers' books and have had those accounts reassigned to them are femalà; brokers offered the remaining less desirable customers. Finally, customers immediately notice that Smith Barney employs few female brokers. The clear message to customers from the absence of female brokers is that Smith Barney prefers male brokers and that the customers should exercise a similar preference. Notwithstanding the fact that customers need assurances from Smith Barney that it values its female brokers and female brokers need Smith Barney's. support to establish their credibility with customers, Smith Barney regularlydenies female brokers prestigious titles or other perks that would assist them in overcoming customer bias against them. For these and other reasons, most of which are set forth in more detail in this Complaint, Smith Barney's female employees generally fall into one of two categories: I) those who never rise above the sales assistant's position or if they do, are steered into traditionally female, non-producing, roles; or 2) those few who are brokers but earn substantially less than male brokers and must work under more onerous conditions; In fact, while established male brokers regularly earn in excess of $200,000, successful women brokers typically reach a "glass ceiling" of no mor• than $150,000.
14. Smith Barney's lack of respect for women is further evidenced by its fostering a work environment that is hostile and offensive to women. First, Smith Barney tolerates sexual harassment by its branch managers, male brokers and other male employees. Second, Smith Barney's "locker-room" environment attracts prospective male employees who have a propensity to engage in sexual harassment. Finally, Smith Barney's Human Resource Department and Legal Depaitiucsit viguiuUly dJ..,nd discriminators and harasserz and otherwise encourage Smith Barney's standard operating procedure of retaliating against female employees who file complaints.
15. As a result of the lack of opportunity for career advancement and hostile work environment, Smith Barney's female employees frequently resign their employment.
16. Smith Barney's decision to retain Defendant Cuheo, for 25 years a known
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discriminator and harasser, as Branch Manager of Smith Barney's Garden City Branch Offlejis'
indicative of Smith Barney's tolerance and encouragement of sexual discrimination, sexual harassment and retaliation.
The Treatment of the Plaintiffs is Consistent With Smith Barney's Discriminatory and Retaliatory Practices
Pamela Martens
17. Martens applied for a position with Smith Barney in 1985 in response to a newspaper advertisement for Smith Barney's broker training class. Martens was required to submit to four personal interviews and a personality profile test. Martens' final interview was with Defendant Cuneo, who reluctantly agreed to sponsor Martens for a slot in Smith Barney's broker training program.
18. During her interview, .Cuneo tried to dissuade Martens from seeking a broker position. Cuneo told Martens that she would not receive the same training stipend asthe male trainees and that she could "try to sue him but that many before her had tried and failed." Martens took the job with Smith Barney notwithstanding Cuneo's open bias in favorof male brokers because she believed that Cuneo's attitude would change once she proved herself as a broker. Much later Martens learned that other women were told by Cuneo that theywould not be paid as much as the male employees because they were not the "head of their households." She also learned that Cuneo had a history of making sexually inappropriate remarks tofemale employees and otherwise discriminating and retaliating against them.
19. As evidence of his discriminatory animus toward Martens and other female employees, Cuneo frequently intimidated women. For example, on morethan one occasion, Cuneo, in an attempt to intimidate Martens, opened the top drawer of hisdesk and pulled out a gun. Cuneo also referred to women in vulgar terms and used sexually offensive language. On a daily basis he openly displayed his contempt for the civil rights lawsand his lack of concern that
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Smith Barney would discipline him for violating its written anti-discrimination policies. Sc'

examples illustrate Cueno's disdain for the civil rights laws. a. At one of Smith Barney's Christmas parties, Cuneo boasted to the attendees, "[w]e achieved the status as the biggest whorehouse in Garden City." b. In 1994, Cuneo left a female broker in tears after commenting to her, "[tjhere must be a lot of pressure on you to spread your legs." c. Cuneo once paraded a female sales assistant around the office who had worn culottes to work that day and told her to spread her legs at each male broker's

desk so that the male broker could vote on whether the culottes violated Cuneo's

females-only dress code. d. On another occasion, after hiring an attractive female as a trainee, Cuneo openly
boastca that b S1 hr& ça b.y kcny." Lketise, bt referretht to
attractive females as "slits and tits." e. Cuneo told a male broker that they should all give the sales assistants afew bucks
for Christmas and that the women would sit on the male brokers' faces and give

them "blow jobs." f. Cuneo yelled that an employee should "eat his dick." g. During the Anita Hill/Clarence Thomas hearings, Cuneoshouted throughout the
workplace, "I left a pubic hair on my coke can." h. Cuneo said in reference to a female broker who was to receive a plaque for
"Broker of the Month" that, "I'd rather give it to that broker that . . . snot his in-

laws in the head than give it to that bitch."

j.

Cuneo referred to a female broker as a "Jewish bitch" and told her that she "should

be hit by a bus and [hej will clean off the jewish blood."

j.

Cuneo questioned his secretary, "[w]hy the fuck should I let her get a massage",

after the secretary had scheduled an appointment for a female broker with the

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masseuse whom Cuneo had hired for the male brokers.
20. As branch manager at Garden City, Cuneo's conduct set the tone for the office, which was one of disrespect for women, In addition to the examples of conduct described in paragraph 19, in Maitens' early yeats, Cunco set the tone by constructing a room in the basement of the Garden City Branch Office which he named the "Boom Boom Room." Cuneo decorated the "Boom Boom Room" in a fraternity house style, including hanging a toilet bowl from the ceiling. From an oversized garbage can, Cuneo served bloody mary's to male brokers who were summoned to the "Boom Boom Room" over the PA system. There they would joke amongst themselves that female employees who did riot behave would be "dealt with" in the "Boom Boom Room" or that sexual harassment charges would be "deliberated" in the "Boom Boom Room." During Martens' only visit to the "Boom Boom Room," Cuneo grabbed her and kissed
her on the lips. 21. The disrespect for women that was cultivated, nurtured and manifested in the
"Boom Boom Room" infected the entire work environment. For example, male brokers regularly and openly referred to women co-workersin their presence as "cunts" or "bitches." So out of control were the male brokers that one female broker reported to the "bullpen," the trainees' board room, to find written on the black board, that she "gives good head." During sales meetings, male brokers routinely insulted female brokers, interrupted them when they were stating opinions and called them "stupid" or other derogatory names. Male brokers knew that Cuneo respected men who abused or belittled womenand that they, would gain his approval if
they engaged in sue1' ouduct. 22. As one of the few female brokers hired by Smith Barney whose career visibly
prospered notwithstanding the environment, Martens was frequently and increasingly targeted for other kinds of discrimination. For example, in a yearwhen Martens was headed toward reaching the $100,000 income level, having earned approximately $80,000 the prior year, Cuneo strongly suggested that Martens relinquish the commission part of her pay and accept a fiat
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salary of $40,000 per year. When Martens declined the offer, Cuneo escalated his harassment Martens. l'hereafer, lie rarely referred to Martens by name. Instead, he referred to her as "the Stepford Wife" or "Peppy Henin II," a derogatory reference to a former Smith Barney female broker whom Cuneo disliked and stereotypically regarded as overly aggressivefor a female. Cuneo also denied Martens the vice president's title which was routinely given to men with
lower production and fewer customer assets. 23. Martens and others frequently voiced their concerns over Cuneo's treatment of
female employecs to Cuneo directly and to upper management at Smith Barney, however, Smith Barney took no action to assist Martens or other female employees. For example, Cuneo once extended to the brokers at the office written invitations to a golf outingand dinner at his country club. When Martens and the three other female brokers responded tothe invitation, they were told that the outing was only for male brokers. After expressing their objections to the malesonly golf outing, Cuneo's sexually offensive languageat sales meetings and Cuneo's discriminatory treatment of female brokers to Smith Barney'sHuman Resource Department, Martens and the other female brokers were told to "try and get along" with Cuneo. Following these complaints, the males-only golf outings continuedand Smith Barney took no action to require Cuneo to include the female employees or to cease engaging in unlawful conduct. Cuneo did, however, offer an aerobics class to the females as a substitute for the golf outing. Thereafter, Cunco moved the annual Business Plan meeting to the Garden City Hotel. Martens was required to wait in a hotel room with a rumpled bed and Cuneo's clothing strewn about. She complained to Human Rvsuuicc aLuUt thia trcatment, to no avail.
24. Cuneo also engaged in quid pro quo harassment. At an all-female sales assistants meeting, Cuneo told the women that they 'ere required to work at his charity golf tournament and dress in short skirts to serve coffee to male brokers. Cuneo threatened the women that if they refused this request or his request that they do volunteer work for his charity, they would be denied raises, bonuses, or time off with pay. Cuneo also threatened to docK their pay if they took
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breaks to smoke. Cuneo acknowledged to the women that he knew what he was demanding a
illegal but told them that they should let the door "hit them in the ass" if they did not like it. So confident was Cuneo that Smith Barney condoned his conduct that he made these remarks in front of approximately 24 Smith Barney employees, including a vice president from Human Resources. Martens complained about this latest abuse ofpower first to Cuneo who responded that she would be "tossed out of the office and the brokers would throwa party to celebrate as they had when Peppy Henin was drummed out." The next morning inresponse to employees' complaints about his conduct, Cuneo, rather than apologizing, told the sales assistants, "well before now I've been an easy lay." The sales assistants understood this comment to mean that Cuneo would punish them for their complaints.
25. Following this incident and after enduring the hostile work environment for almost 10 years, Martens wrote a letter to Dimon in October of 1994, concerning Smith Barney's discriminatory practices. Although Smith Barney claimed that it was conducting an investigation as a result of Martens' letter, two months passed and Martens was not provided with any information. Thus, she wrote a second letter to Dirnon. Only after and on the same day that Smith Barney learned that Martens hired an attorney was Cuneo placed on a leave of absence that coincided with his yearly vacation. That same day Smith Barneyprovided Martens with a written response to her complaint. That response proposed no disciplinary action against Cuneo and contained no definitive ruling on whether Cuneo would return to Smith Barney or whether he or anyone else would be disciplined as a result of Martens' charges.
26. Smith Barney was quick, however, to noti' Cuneo of Martens' charges in OLtUIJCI of 1994. Belween October of 1994 when Martens tirst wrote Dimon to the dateCuneo was placed on the "leave of absence," Cuneo rallied the support of his male brokers. Withindays of Martens' October letter, Cuneo scheduled another males-only golfouting. The day following the golf outing, Martens was asked by male brokers to rescind her charges. Later, two male brokers called Martens a "cunt" for having filed the charges and another male broker told her that
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she was "a silly little girl." Cuneo was more aggressive in his campaign. He told at lc Martens' co-workers that Cuneo should "fuck her [Martens] where she bleeds." Cuneo also told Martens' co-workers that "if anything happened to [him], [he] would snap Martens' neck." These remarks were repeated to Martens, causing her great fear and concern. Martens complained in writing to Smith Barney about the campaign of harassment, retaliation and bodily threats. She was told that she "sounded like a hysterical woman" and "should leave Smith Barney."
27. In October of 1995, Cuneo's retirement was announced. Upon information and belief, Cuneo left Smith Barney with substantial retirement benefits and with his Form U-5 reflecting that he left Smith Barney in good standing on a voluntary basis. With the approval of Smith Barney's upper management, Cuneo's supporters hosted a party for his retirement. The party was held on October 19, 1995. As of that date, Smith Barney had not, to Martens' knowledge, taken any disciplinary action against any individual in connection with her charges of discrimination, harassment and retaliation. Smith Barney, however, had long since concluded its investigation of the matter and had obtained confirmation of the hostile and offensive work environment. Rather than hiring a person to replace Cuneo who was committed to changing the work environment, Smith Barney promoted one of Cuneo's staunch supporters who was a product of Cuneo's unlawful environment. This decision sent a message to Smith Barney's employees that "business" would continue as usual, notwithstanding Cuneo's retirement.
28. Two business days after Cuneo retired, Martens was terminated. The pretextual reason for Martens' termination was that she did not attend a compliance meeting. However, at least 19 male brokers did not attend the same meeting and were not fired. Further, unlike the male brokers, Martens had advised Smith Barney that she was afraid to attend the meeting with approximately 50 male brokers due to the persistent harassment and retaliation perpetuated by some of her co-workers and managers, both before and after Cuneo's retirement. She also wrote several letters to Smith Barney to complain about the continuing unlawfyl conduct following
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Cuneo's departure. Smith Barney offered no assurance of safety to Martens or any promise that the environment would change. Smith Barney told Martens that she could transfer to another branch office and that she could have until October 30, 1995 to notify Smith Barney of her desire
to do so. She was fired, however, before that date.
29. At the time of her discharge, Martens managed an asset base of $187,000,000.Q0 and had over 1,000 clients. Martens had not signed a non-compete agreement with Smith Barney and was free to transfer Smith Barney clients who desired to follow her to another firm. Rather than allowing Martens an opportunity to reestablish herself in the industry, Smith Barney began a campaign of discrediting Martens and defaming her to prospective employers. Specifically, Smith Barney provided advers information about Martens to prospective employers including but not limited to, the fact that Martens was terminated from Smith Barney. The information provided to prospective employers about Martens was defamatory and cost Martens valuable employment opportunities and otherwise damaged her reputation. Smith Barney also placed a permanent mark on Martens' unblemished disciplinary record when it falsely reported to the NASD through the Form U-5 that she wasterminated for "incompatibility withlocal
management (unrelated to customer matters or sales practices) culminating in her refusal to attend a required meeting." Indeed, if Martens was incompatible with local management, it was because she would not tolerate discrimination, sexual harassment andretaliation. Remarkably, even in its final act of terminating Martens, Smith Barney discriminated against her, Upon information and belief, male brokers who were terminated by Smith Barney for cause were given thc option to resg with a clean Form U-5. However, Smith Barney would not allow Martens to resign with a clean Form U-5 unless shc agreed not to sue Smith Barney for retaliation. Male
brokers were not required to sign releases to preserve their reputations.
Judith P. Mione 30. Mione has worked in the brokerage industry since 1957 and has successfully
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completed the Series 7 (Registered Representative), Series 63 (Uniform State Securities), and

Series 8 (Branch Office Manager) licensing examinations. Throughout her career, Mione has

worked on the managerial side of the industry performing a wide range of activities and holding

positions such as Operations Manager and Assistant Operations Manager for prestigious securities firms. At various times, Mione also worked as a broker and generated commissions.

Through these jobs, Mione developed considerable industry experience and, in particular, expertise in compliance and other managerial issues.

31. In or around 1990, Mione was contacted by Smith Barney's Human Resource

Department which was seeking to fill the position of Senior Compliance Officer for the Firm.

After Mione interviewed with Smith Barney's Human Resource Department, Mione was sent to

meet with Nick Marinello ("Marinello"), Manager of the Compliance Department. Marinello

quickly told Mione that she would neither like the job nor be able to perform it. He said that the job caused many "family problems" because of the extensive travel requirements and that the job was not for her because she would have to "lock horns" with managers. Marinello also told Mione that if he did hire her, some of his staff would quit. When Mione finally asked him exactly what he was looking for in an applicant, Marinello told her that he wanted "some guy

with brass balls from Merrill Lynch." Marinello concluded the "interview" by telling Mione that

he was not going to hire her for the position. 32. Following her meeting with Marinello, Mione wrote a letter to the Human

Resource Department outlining her meeting and complaining about Marinello's failure to

consider her excellent qualifications. In response to this letter, the Human Resource Department

told Mione that Smith Barney might have a comparable position for her in approximately two

weeks. Eventually, Mione was offered a position as a sales assistant ("CSA") at a starting salary

of approximately $25,000 per year. Mione accepted the position with the understanding that she would quickly advance into management. She began working at Cuneo's Garden City Branch

Office.

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33. Mione was subjected to the pervasive discrimination and sexual harassment which is described elsewhere in this Complaint. The discrimination and sexual harassment altered Mione's working conditions and affected her state of mind and was intended to affect Mione's

performance of her job. 34. After Mione accepted the CSA position, Smith Barney engaged in conduct
designed to humiliate and degrade her. For exathple, despite being told that her salary as a CSA would be $25,000 annually, Smith Barney authorized a yearly salary of only $19,000. Thereafter, Smith Barney continued to advertise for persons to fill the position for which Mione had originally interviewed. When Mione again expressed her interest in the position and again applied for it, she was told the job posting was a "mistake."
35. After working as a CSA for approximately 18 months,the position of Control Administrator became available at the Garden City BranchOffice. Only after Mione complained about Smith Barney's failure to take seriously her applicationfor this position was Mione granted an interview for this position. Mione was informed two weeks after the interview that she was the most qualified applicant and she was selected for the position. However, Mione was denied proper compensation for the position and, upon information and belief, was paid substantially less than males who were performing the same job. Worse yet, shortly after receiving her new position, Smith Barney notified Mione that she would be transferred to the Forest Hills Branch Office, a transfer she neither requested nor desired as the transfer would involve a daily commute of over three hours. Cuneo told Mione that Smith Barney wanted her to switch places with another Smith Barney employee from the Forest Hills Office who purportedly had more experience than Mione. To the contrary, the other employee, a yonng attractive female, not only had less experience than Mione but also held a position, Operations Manager,
that was lower in status than Mione's position ofControl Administrator. Further, the position of Operations Manager, unlike the Control Administrator's position, is one that is typically held by

females at Smith Barney.

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36. Afte expressing her objections to the proposed transfer, Mione was informed tlat

she could continue working at the Garden City Branch Office, but only if she agreed to work as a

senior sales assistant, a position she neither wanted nor for which she had applied. Due to financial considerations, Mione had no alternative but to accept the senior sales assistant's

position. Cuneo pressed forward.withhis plans to transfer the less-experienced, young, attractive female Operations Manager who, whenshe arrived at the Garden City Office was promoted to
the position of Control Administrator. Mione has consistently attempted to seek out other

managerial positions in Smith Barney, expressing interest in no fewer than 15 positions for

which she is qualified. Despite her credentials and excellent qualifications, Smith Barney consistently refuses to consider her for these positions. Smith Barney's males are not denied

career opportunities because of their appearance or sex. 37. While working as a senior sales assistant, Mione was subjected to further
discrimination and demeaning conduct. For example, Mione was not given an appropriate work area and instead was told to sit wherever she could find a vacancy. She was also required to perform clerical tasks, such as operating the switchboard. Further, when Mione stated that she was overdue for a review and a raise, Smith Barney selected none other than the employee who had replaced her as the Control Administrator to conduct the evaluation. Despite receiving a

good rating, Mione was denied a salary increase. 38. Mione complained to management aboutthe unlawful discrimination and
harassment. As a result of her complaints, Mione has suffered retaliation in the formof further
discrimination, false accusations of misconduct, and threats of reprisal.

Roberta O'Brien Thornaun 39. Thomann began her employment with Smith Barney in 1992 as a sales assistant in

Cuneo's Gardcn City Branch Office. 40. Thomanu was subjected to the peasive discrimination and sexual harassment

- 17 -

rr

whic:is described elsewhere in this Complaint. The sexual harassmentand discrimination

altered Thomaim's working conditions and affected her state of mind and were intended to affect

Thomami's performance of her job.

41. The broker for whom Thomann worked, a protégé of Cuneo's, openly flaunted his sexist attitude. For example, he regularly made vulgar comments concerning female employees: and engaged in inappropriate conduct, such as sending condoms through the office's wiring tube

system to female wire operators at the other end. He wrote and circulateda memo to the sales assistants in which he ridiculed claims of sexualharassment and promised that any charges of sexual harassment would be deliberated after hours in the "Boom Boom Room." He was no less hostile to pregnant women. On one occasion, for instance, he bragged to others that he had rejected a female applicant telling her that Smith Barney would not hire her because she was pregnant.

42. In early 1994, Thomaim, who was at that time a senior sales assistant, went on an eight week maternity leave. Thomann was scheduled to return to work in mid-June. Just days before she was to return to work, Thomann was told that she could not return to her job and would, in fact, be demoted. Smith Barney offered Thomaim the choice of being either the cashier in the Operations Department or a sales assistant in the "bullpen" for approximately 11

trainees. Having no other options, Thomann chose the "bullpen" sales assistant position. Needless to say, as the "bullpen" sales assistant, Thomann experienced additional discrimination and sexual harassment. Thomaim eventually was transferred to a sales assistant position which was less desirable than the one she had before hermaternity leave of absence. In contrast to Smith Barney's treatment of Thomann, male employees who took medical leaves of absence did not face demotions or dislocations upon their return.
43. Thomapji verbally and in writing complained about Smith Barney's discriminatory treatment which resulted in further acts ofdiscrimination, harassment and retaliation. For example, following her demotion after her pregnancy, Thomann wrote a letter to
- 18-

S

the Smith Barney's Human Resource Department complaining of the unlawful conduct. Afterwards, Cuneo began walking past Thomann's desk approximately every 15 minutes singing, "I don't care."
44. Although Smith Barney promised that it would conduct a "thorough investigation" of her allegations, fewer than two weeks after giving Thomann this assurance, Smith Barney told Thomann that her allegations of discrimination were without merit and would be dismissed. The Human Resource Department issued Thomann a letter to this effect which contained false information. The letter confirmed to Thomann that the Human Resource Department's only intent in conducting the so-called investigation was to protect Smith Barney from liability and build a pretextual defense to her charges.
45. Based on all of the above conduct, Thomann was forced to resign her employment with Smith Barney in October of 1994.
Smith Barney was Aware of the Conduct of its Employees and Failed to Prevent Sexual Discrimination, Sexual Harassment and Retaliation
46. Smith Barney's management directed, encouraged and participated in the above described unlawful conduct. Further, Smith Barney allowed the discrimination and retaliation to go unremedied for so long that it amounts to a policy or practice and constitutes Smith Barney's standard operating procedure. Finally, Smith Barney's Human Resource and Legal Departments failed to take appropriate remedial action and, in effect, aided and abetted in the unlawful conduct.
The Discrimination and Retaliation Are Oneoin
47. The discrimination and retaliation described above are ongoing as a continuing violation of the civil rights laws.
-19-

-

of Sexual 48.
harassnent ("EEOC").

Discrhnination,

Sexual

Charges
Harassment and

Unlawful

Retaliation

Plaintiffs timely flied

and The

representative unlawful retaliation with the Equal
EEOC has issued to Plaintiffs

charges of sexual discrimination, sexual Employment Opportunity Commission

Notices of Right to Sue.

The Industry Perpetuates Discrimination

.

49. The SEC requires

employees who work in certainpositions in the Securities

Industries, including brokers or traders, to register with a securities

condition exchange,

osufcehmapslotyhme NenYt,SSEmoirthNBAaSrnDe.yTreoqrueigriessteitrswemithpltohyeeSeesctuorriteeigexiscshtearnwgeit.hTahseerceuforirteie,sas

a

licensed employees must sign the Uniform

Industry, Smith Barney's

Application for Securities

aFt(goo"rrFewmoeortrUmok-aU4inb-ci4tdoh"ene)tb.ianyiRdnaeuslpslartrrepuysrle,oentsvhtiaaestnyiiodvmnesuthhsatatsviregenqnuoainrcedhsofaiiclleleptaheberosFounot srwmrheUgeti-hs4teerwritiontghsiwagnsitehtIchnuaedrsuiFtesiocterrusymreiRxtUiceeh-gs4aies;nxtirgcfathetha.ieonTynghewetiosh

regulations of the exchange,

NASD

which

purport

to

require

final

and

binding

including the arbitration of certain

rules

of

the

NYSE

and

curz including employmentdiscrimination claims. arbitrated before the various securities

These

employment disputes, employment discrimination claims are

aaSrcEbciCotrr.adUtaiopnncoenpwrionivftohisrtimhoenatcriuoolnnetsaaniandneddberielnigetufh,leantFoiooeenrxxmsccohhUfaaenn-a4ggc.eehsp,seuirncmchliutesdxnicnehggaonthtgieeaNtaionYndSowEviaethnr dtthhteehmaepNapnArdoSavDtaol,ryoinf the

bpdyiusbcalrlilicomwfiuninnacgtitoitohnnecmalantidompcsrhoiosvoiindsteeesannndoeedmppuprbliolmiycaebrri-elfynrieetfonitdl.ilmyRifatotthmheemr,limwabhainelrditeayttihonefgisreascrbuuicrticrteaitestiiessosiinnsmdomdufoseutrmsreytprlyeilkomseyeplmyleoeasynnetndros

.' - -
1:.

-20-

t _It-

-

where awards tend to be smaller than in civil courts.

51. Mandatory arbitration of employment discrimination claims deprives plaintiffs in the Securities Industry oftheir procedural and substantive due process rights that otherwise would be protected in the civil courts. The following are examples of deprivations of rights
resulting from mandatory arbitration.

a.

Securities Industry discrimination plaintiffs are deprived of their rights to ajury

trial under the Seventh Amendment and their rights to a jury trial under the 1991

Civil Rights Act.

b.

Securities Industry discrimination plaintiffs are deprived of their rights to have

Article III Courts, comprised of appointed judges with lifetime tenure and salary

protection, adjudicate their claims of discrimination.

c.

Although NYSE and NASD rules on their face permit arbitrators to issue written

findings of fact and conclusions of law, upon information and belief the NYSE and NASD actively discourage arbitrators from issuing such written findings and

conclusions in order to render any meaningful judicial review of those decisions

difficult or impossible, thus denying plaintiffs any meaningful right to appeal arbitration decisions.

d.

Upon information and belief, the NYSE and NASD arbitration procedures do not

provide for the selection oftruly neutral arbitrators. Rather, arbitrators are

selected by the exchanges themselves which are governed and controlled by the

lcpresenjatives of the employers in the Securities Industry. James Dimon, a named Defendant in this action, is on the NASD Board ofGovernors. Dimon

and Smith Barney, like other employers, have a direct interest in selecting

arbitrators who will be biased in favor of the employer and against the employees.

e.

Historically, the demograpiiic characteristics of the NYSE and NASD arbitration

panels do not represent the community of arbitrators qualified to decide

-21-

III —

employment disputes, but are overwhelmingly comprised of older, white males. These panels, on the whole, likely will be more hostile to discrimination claims

brought by women than demographically representative panels. Further, the NYSE and NASD use internal referral procedures to selectarbitrators, keep secret the identities of the pools of the arbitrators who may hear disputes, and employ

secret and subjective criteria in determining whom to recruit for those pools, all of

which serve to perpetuate the imbalance of arbitration panels. These selection

devices also serve to deprive female plaintiffs of their equal protection rights to

be free from gender discrimination in the selection of the finders of fact.

f.

Securities Industry discrimination plaintiffs are deprived of their rights to have a

panel with legal expertise or knowledge of civil rights laws hear theirclaims because the NYSE and NASD often fail to assign arbitrators to employment disputes on the basis of training or experience in the area. Upon informationand belief, the NYSE and NASD do not provide adequate training in the area of employment discrimination to their arbitrators.

g. Securities Industry arbitrators are expressly instructed in training manuals that they are not required to follow "case precedent or statutory law", which includes the complex legal framework of Title VII, including concepts such as disparate impact and disparate treatment, mixed motive factors, hostile working environment, shifting burdens of proof, after-acquired evidence, and fee-shifting nrovisions, tn name nnly a 1ew. Moreover, arbitrators' dLiuIth iiutjudicialiy reviewable for statutory error.
h. Historically, the NYSE and NASD arbitration panels have been reluctantto find

employers guilty of employment discrimination. Even where arbitration panels find unlawful conduct, they often award inadequate damages to the plaintiffs. Furthermore, upon information and belief, the NASD requires all arbitration
- 22 -

. -....-.. ...i.t ,.. "'.. .

.-,

-

ç.—. .1t -.

awards
NASD

which include an staff before being

award ofpunitive damages to be reviewed secretly by released to the parties in an attempt to intimidate and

discourage arbitrators from awarding such damages, Moreover, the NASD has

actively lobbied against the award of punitive damages to successthl plaintiffs, a

potential remedy extended to plaintiffs under the 1991 Civil Rights Act which

serves as a major deterrent to future unlawthl conduct by employers.

i.

Upon information and belief, the NYSE and NASD often impose onerous and

exorbitant "forum fees" on Securities Industry discrimination plaintiffs, even

those who prevail, forpursuing their claims and often fail to award attorneys' fees

as provided for under Title VII.

Plaintiffs Suffered Extreme Emotionat Distress
52. By the acts and conduct described above, Smith Barney, Cuneo and Dimon
intended to cause Plaintiffs severe emotional distress, or acted in reckless disregard that their actions had caused and would cause Plaintiffs such injury.
53. Plaintiffs suffered severe emotional and mental distress as a direct and proximate result of the conduct of Smith Barney, Cuneo and Dimon.
54. The acts and conduct of Smith Barney, Cuneo and Dimon cnstitute extreme and outrageous conduct beyond the bounds of common decency.

Plaintiffs were Injured as a Consequence Qflefendants' lJnIntyfuj Cenduet

55. Plaintiffs lost wages and other benefits, suffered

embarrassment and humiliation

and their careers were irreparably damaged as a result of Smith Barney's, Cuneo's and Dimon's

conduct. losses as

Plaintiffs suffered loss a direct result ofSmith

of enjoyment oflife, inconvenience and other Barney's, Cuneo's and Dimon's conduct.

nonpecuniary

-23-

!lfl_
'I

I '; II

CLASS ALLEGATIONS

56. The class of female

.. subject

to

discrimination

by

applicants, employees, and former employees Defendants due to their sex and have been

who

have

been

to

their

opposition

to

discrimination

is

so

numerous

thatjoinder

of

all

subject to retaliation members is

due

.

57. There are questions oflaw and fact conmionto the class.

impracticable.

58. The claims of the

59.

representative parties aretypical of the claims ofthe class.. The representative parties will fairly and

::":

class.

adequately protect the interests of the

60. The questions of lawand fact common
over any questions affecting only individual members available methods for the fair and efficient

to the and a

members of the class predominate class action is superior to other

adjudication of the controversy.

COUNT I

SEXUAL

DISCRIMINATION AND SEXUAL IN VIOLATION OF

HARASSMENT

TITLE VII

61.
incorporate 62.

(AGAINST SMITH BARNEY) theTmPiltalbeiynVtriefIfIfseorafenntdhceealCalsiovptihalerarsgsriamphilsarIltyos6it0uaotfeCd oreuanltleIgoefptahriasgCroamphpslaiitnot.60

and

by the Civil Rights Act individual in the terms,

Rights of 1964, 42 U.S.C. Section 2000e et seq., as amended

of 1991, ("Title VII") makes it unlawful to conditions, or privileges of employment on

discriminate against the basis of sex.

any

ftohrethcoena6d6c5i4tts..ioonfsiWtoSsfeietxmhuparelloshpyaemrcaetsnstomt aaerlnleetgatlahttaeitroecndrse,aoitsfeassceatxinounaalabbhulaserivausensadmneerdnTht,oitSsletmilVeitIhwI.Borakrneenyviirsosntmricetnlyt,

such that liable

supervisory employees including its officers or branch managers.

-24-

_____

-- .rfll_

—

Alternatively, alleged herein

with respect through

to

allegations

of

sexual

harassment,

Smith

Barney

is

liable

for

the

acts

agency principles for theacts of its supervisory

harassers otherwise

uasidededthineiarcaccotumapl loisrhaipnpgatrheentuanulathwofruitlycotondfuurctthbeyr tthheeuenxliaswtefnucleecomofnpadlnouycaetgeaesnndbcyewcearuese

the

topreprolaevtciihdoeen6dlso6hnn.iope.sretFaFaubsirnoltianhslhaelbery,dl,eSSammvieittnhhuBBeaaorrnfneceyoymiisspllliiaaaibbnllteeoffrookrrnttheheweaaocctftssthoaefllcehoga-erwadsoshrmekreeernisntbbbeuectcadauiusdseenSoSmtmhiiitnthhgBaBabaronruneteyyit'.s

the corporate culture at Smith Barney which

suhtnaarnreadmsasremddieoenpdte.rfSaotrminsiogthlpoBrnoagcrentdheuayrtehi.tasamalolouwntesdtothaepdoislcicryimoirnpartaiocnticaendanhdarcaossnemsnteictnuottuearsallSgeemgdeidtshehxBeuraearilnnetyo'sgo

67. discrimination

Smith Barney subjected Plaintiffs and all others and sexual harassment in violation of Title VII.

similarly

situated

to

sexual

COUNT!!

WAGE CLAIMS

IN VIOLATION OF

68.
incorporate 69.

THE

EQUAL PAY ACT AND TITLE (AGAINST SMITH BARNEY)

VII

themPlabiyntriefffseraenndcealalsopthaerarsgsriamphilsariltyos6it7uoatfeCd oreuanltl!e!goefptahriasgCraopmhspl1ationt6. 7

and

207, makes it to employees

ounfolanwe fsuelxfothraannietmdopelosyetreonaitrhLe abbaosirsSotfasnedxatrodspAayctl,o2w9eUr w.Sa.gCe.sSoercftrioinng2e0b6eannefdits

also makes it unlawful

to similarly situated employees of the other sex. Title VII

70.
employees

in

to discriminate in the payment ofwages on the basis ofsex.

Plaintiffs and all others similarly situated were paid substantially equal jobs even though Plaintiffs and all

lower wages than male others similarly situated

-25-

. .
j

U Ii

erformed 71.
quantity or

similar The
quality

duties requiring the same skill, effort, and

differential in pay between sexes ofproduction, but was due to sex.

was

not

responsibility of male employees. pursuant to seniority, merit,

i

72. Smith Barney

than

it

paid

male

employees

intentionally who were

paid

Plaintiffs

and

all

others

similarly

situated

less

73. and all others Title VII.

performing substantially equal work. siBmyiliatrslycosnitduuactet daswailtlhegreesdpheecrtetion,thSemiriwthaBgaersnienyvdioislcartiiomninoafttehdeaEgqauinasltPPalyaiAntciftfasnd

COUNT III

PREGNIANNVCIYODLAISTCIORINMOINFATION

TITLE VU

74. incorporate
75. discriminate

(AGAINST SMITH BARNEY) tah.geTamPiinltalbseiytnVatrinefIyfIf,eTisrnhepdoneimccveiiafdaincus.anaplllaaybnread4ág2aarluUalspo.eShths.oCefIr.tsoSse7icm3tiioolafnrC2ly0o0usi0nteut (aIkIteI),domfreatahklielsesCgietoumpnaplralawagiTrnathp.lhtos

I

to

73

and

childbirth, or related medical conditions.

sex including on the basis ofpregnancy,

the basi7s6o.fpregSnmaintchyB, acrhniledybdiristhcraimndin/oarteredlaatgeadinmset dTihcoaml caonnndiatniodnasllinotvhieorlsatsioimniolafrTlyitsleituVaItIe.d on

IN VIOLATION OF TITLE VII

77.

(AGAINST SMITH BARNEY) Plaintiffs and all others

incorporate 78.

theTmitlbeyVreIIf,ersepnecceifaicsapllayra4g2rsaUimp.hSisl.aCIrl.tyoSse7ict6tuioaotnfecd2o0rue0an0lteie-I3Vg,emopfaatkrhaeigssrCiatpouhmnslpaIlwatoifnu7tl.6foarnadn

26 -

- p'__-_) —

- —

thployer to discriminate against an employee who has opposed an unlawfUl employment

It

practice or has assisted or participated in another employee's claim of disbrimination. 79. Smith Barney is liable for the retaliatory conduct alleged herein under the doctrine
of WSpOIldeLIt Superior.
80. Smith barney retaliated against Plaintills and all others similarly situated for their

complaints of sex discrimination. By its conduct, Smith Barney subjected Plaintiffs and all

others similarly situated to unlawful retaliation in violation of Title VII.

COUNT V
RETALIATION IN VIOLATION OF THE EQUAL PAY ACT AND TITLE VU (AGAINST SMITH BARNEY) 81. Plaintiffs and all others similarly situated reallege paragraphs 1 to 80 and incorporate them by reference as paragraphs 1 to 80 of Count V of this Complaint. 82. The Equal Pay Act and Fair Labor Standards Act, 29 U.S.C. Section 21 5(a)(3),
make it unlawful for any person to discharge or in any manner discriminate against any employee because she complained of wage discrimination. Similarly, Title VII, specifically 42
U.S.C. 2000e-3, also makes it unlawfUl for an employer to discriminate against anemployee who has opposed an unlawful employment practice or has assisted or participated in another employee's claim of discrimination.
83. Plaintiffs and all others similarly situated complained of sex discrimination and
unfair wage practices. 84. Smith Barney retaliated against Plaintiffs and all others similarly situated for their
complaints in violation of the anti-retaliation provisions of the Fair Labor Standards Act and
Title VII. By their conduct, Defendants subjected Plaintiffs and all others similarly situated to unlawful retaliation in violation of the Equal Pay Act and Title VII.

-27-

.
--

4
4
..- - -- -.

COUNT VI

CTOHNESPTRTITAOUCETTXIEINCSEEVCSUEIOOXTFLUERAATETLHQIODEUNIFISROOCIRNRFMGIMFUIEN-4MATAILOENS TITLE VII

(AGAINST SMITH BARNEY)

85. Plaintiffs and all others similarly reallege paragraphs I to 84 and incorporate them
by reference as paragraphs Ito 84 of Count VI of this Complaint. 86. Title VII makes it unlawfiul to discriminate against any individual in the terms,
conditions, or privileges ofemployment on the basis ofsex.

sign

87.
the Form

Smith Barney and U-4 which Smith

the

Securities

Industry

has

a

practice

of

requiring

employees

to

ctiahcninvlitasyeililCmloriiotgsghmehebntrpetsfllcyaoliaivrwnweitla.sthri.viTegehhNutthYsse,lSatrhEwigea.hanPtrsdblaa/ioictnrrcatottiBhifrofdeasnerNnadcneAltydaoSucapDsllleala.ioiimTnnththstiehefrrfeecssqoFstunoiomitrbrrmeairlsciantUarsglr-ydb4thoistieirsntaucovtiaitivootreinleldaofrtefidirgveiehdemntocsnpefoclotTlTakyiiintmtmlloeeeswVn,VitaInIsdIIgiasclseynlcatdraiifmonmodtrshitnhoearritnion

to

88.
arbitrate

Further, for employment

the

reasons

alleged

above,

the

practice

of

I
requiring

female

employees

disputes before the NYSE or the NASD is

violative

of

their

civil

rights

laws.

While

male

employees

have

a

discriminatory fair o

in

effect

and

c atms eard treatment.

before

the

NYSE

and

NASD,

female

employees

are

not

accorded

the

same

89.
Plaintiffs and

aBllyotrheeqrusisriimngilfaermlyaslietueamtepdlotyoeseesxtuoaelxdeicscurtiemthineaFtioornminUv-4io, lSamtioitnhoBfTarintleeyVsuIIb. jected

U
-28-

-

COUNT VII

MANDDAE(PATROGIRAVYIENSASDPRTLEBSACIMTILNRIATTAHRITFABIFOTASONROINOtFYEFDJYDUU,INDESYCGPSRRMEIOMEACNINENTDSASNTOIAOFSNDL)CALWAIMS

90. Plaintiffs and all others similarly situated reallegeparagraphs I to 89 and

incorporate them by reference as paragraphs Ito 89 of Count VII ofthis Complaint.

91. The Fifth Amendment to the United States Constitution, applicable to actions of

the federal situated.

governej,

guarantees

due

process

of

law

to

the

Plaintiffs

and

all

others

similarly

92. The system of mandating arbitration of employment discrimination claims Constitutes action of the federal governnent because of: (1) the plenary regulation of the exchanges by the Federal Securities Acts; (2) the extensive delegation ofregulatory power by the SEC to the exchanges
as self-regulatory organizations; (3) the encouragement given by the SEC to the exchanges to require employees in the securities industry to arbitrate their employment disputes with their employers;
(4) the permission granted by the SEC to the exchanges to modify their rules and regulations to require arbitration of all employment disputes; (5) the approval given by the SEC to the specific arbitration procedure utilized by the exchanges; (6) the exercise of the judicial power by arbitrators in hearing and deciding statutory and common law disputes in the Securities Industry, which power has traditionally been an exclusive function of federal and state courts, (7) the action of the courts in enforcing contracts ofadhesion by compelling arbitratinn nfemploymcnt diaputc in the Secunties Industry against the will of Securities
Industry employees; and (8) the action of the courts in confirming arbitration awards in employment disputes where the dispute was arbitrated against the will of Securities Industry employees.
93. Compelling mandatory arbitration in the present case would be unconstitutional because it would deprive Plaintiffs and all others similarly situated of their rights to a jury trial
- 29 -

I

under the Seventh Amendment and under the 1991 Civil Rights Act.

trial

as

94. Requiring a condition of

employees

to

waive

their

constitutional

and

statutory

rights

to

ajury.

violation of the due employment imposes an unconstitutional condition on employment, in

process guarantees of the FifthAmendment to the United States

Constitution, and violates the 1991 Civil Rights Act.

H

95. Compelling mandatory arbitrationin the present action would be unconstitutional
ctbhlaeeicimrauscslaae9di6imjt.uswdiboceuaRfltodeerdqdeubeaiypnrriainAvngerAteiPcmrlltaeipcilnIloeItIyifIecfIseIosucarontotuduraatngladrlseeoerathttchoeoerwnsCdsaoiiimtvnioesitlntiahtrouelftyiiroesmcnitouapnnalsotdteyidttmuhoteeifon1tnt9hai9eml1irrpiCgroihisgvtehsistlstaRontoihgaahvdtsejuAtdhciecti.arte unconstitutional conditionon employment, in violation of the due process guarantees of the Fifth Amendment, and violates the 1991 Civil Rights Act.

97.

Compelling mandatory arbitration in the present action would be unconstitutional

because the procedures employed in arbitrations under the rules of the NYSE and NASD, as

described above, process under the

would deprive Plaintiffs Fifth Amendment,

and

all

others

similarly

situated

of

their

rights

to

due

including but not limited to their rights to have the civil

rights and employment laws enforced as written.

98. Requiring employees to agree to waive their constitutional rights to due process,

including but not limited written, as a condition of

to

their

rights

to

have

the

civil

rights

and

employment

laws

enforced

as

Fifth-Amenment violation

of

the

due

employment imposes process guarantees of the

an

unconstitutional

condition

on

employment,

in

99.

Compelling mandatory arbitration in the present case would be unlawful because

the arbitration

procedures employed by the NYSEand NASD operate as a facto forfeiture of

statutorily-mandated rights or benefits afforded by Title including, but not limited to, the right to a jury trial, the

VII and other employment laws, tight to punitive damages, and the

right

-30-

-:
to attorneys' fees, in violation of the dueprocess guarantees of the Fifth Amendment. 100. Requiring employees to agree to forfeit their important stathtorily_mandated rights
or benefits afforded by Title VII and other employment laws, including but not limited to the right to a jury trial, punitive damages, and attorneys' fees, as a condition ofemployment imposes an unconstitutional condition on employment, in violation of the due process guarantees of the Fifth Aniendment
101. Plaintiffs and all others similarly situated were deprived of their rights to substantive and procedural due process of law.
COUNT VIII
UNLAWFUL CONDUCT IN VIOLATION OF
THE FAMILY AND MEDICa LEAVE ACT (PLAINTIFF THOMAJq AGAINSt SMITH BARNEY, CUNEO AND DIMON)
102. Plaintiff Thomanj realleges paragraphs 1 to 101 and incorporates them by reference as paragraphs ito 101 of Count VIII of this Complaint.
103. The Family and Medical Leave Act, 29 U.S.C. Sections 2601 et seq. ("The Family and Medical Leave Act"), entitles employees to a 12-week leave during any l2-month period because of the birth of a child. The Family and Medical Leave Act also entitles any employee who takes such a leave to be restored to her former position or to be restored to an equivalent position with equivalent terms and conditions of employment as her former position.
104. By its conduct as alleged herein, including their actions in denying Thomaim her tormer position or equivalent position after returning from her leave, Smith Barney violated the Family and Medical Act.
105. Smith Barney's actions toward Thomann constitute willful violations of the Family and Medical Leave Act.
-31-

COUNT IX
UNLAWFUL RETALIATION IN VIOLATION OF
THE FAMILY AND MEDICAL LEAVE ACT
(PLAINTIFF THOMANN AGAINST SMITH BARNEY) 106. Plaintiff Thomann realleges paragraphs 1 to 105and incorporates them by
reference as paragraphs] to 105 ofCount IX of this Complaint.
107. The Family and Medical Leave Act, specifically 29 U.S.C. Section 26l5(a)(2), makes it unlawful for any employer to dischargeor in any other maimer discriminate against any employee who has opposed any practice made unlawful by the Act.
108. By its conduct as alleged herein, including further acts of discrimination,
harassment, and retaliation against Thomann, SmithBarney violated the Family and Medical Leave Act.
109. Smith Barney's actions toward Thomann constitute willful violations of the Family and Medical Leave Act.

COUNTX

VOIDANCE OR RESCISSION OF FORM U-4 ARBITRATION CLAUSE UNDER
CONTRACT LAW AND EQUITABLE THEORIES (AGAINST SMITH BARNEY)

110. Plaintiff Mione and all others similarly situated reallege paragraphs 1 to 109 and

incorporate them by reference as paragraphs 1 to 109 of Count X of this Complaint. 111. Plaintiff Mione signed a Form U-4 which contained a mandatory arbitration
clause. Plaintiff Mione and all others similarly situated seek to have the Court declare null and

void the arbitration clause in the Form U-4 basedon the following legal theories. a. Plaintiff Mione and all others similarly situated did not knowingly and

intelligently submit to arbitration.

b.

Assuming arguendo that they understood what arbitration meant and that by

-32 -

signing the Form U-4 that they were agreeing to arbitrate discrimination claims

between them and their employer, PlaintiffMione and all others similarly situated

were not aware of the certain facts which render the NASD and NYSE not

suitable to arbitrate claims involving Smith Barney. Had Mione and all others

similarly situated known of the following facts, they would not have consented to

arbitrate their claims before the NYSE or NASD:

i.

Defendant Djmon sits on the Board ofGovernors of the NASD.

ii.

Smith Barney is a voting member of the NYSE.

iii.

Smith Barney provides substantial revenues to the NASD and

NYSE.

c.

The arbitration clause in the Form U-4 is unenforceable for lack of consideration.

d.

Assuming arguendo that Plaintiffs knowingly waived their rights and that the

Form U-4 is supported by adequate consideration, Smith Barney, through its

conduct materially breached an implied covenant of good faith and fair dealing

implicit in the employment relationship of PlaintiffMione and all others similarly situated and is equitably estopped from seeking enforcement of the pre-dispute arbitration clause.

e.

Smith Barney breached an implied covenant of good faith and fair dealing through

its conduct as alleged herein and rendered the Form U-4 null and void or

unenforceable by Smith Barney.

f.

The Form U-4 is otherwise void as against public policy and is a contract of

adhesion and is unconscionable

112. Based on the factual circumstances and for the legal reasons alleged herein,justice requires this Court to find that the contracts signed by Plaintiffs and all others similarly situated are void and1or unenforceable by SmithBarney under contract law.
113. Alternatively, justice demands that Plaintiffs and all others similarly situated be
-33-

•.IIL

allowed

to

rescind

the

arbitration

clause

of

the

Form

U-4

under

equitable

principles .

.

.

COUNT XI

SEXUAL DISCRIMINATION AND SEXUAL HARASSMENT
IN VIOLATION OF NEW YORK HUMAN RIGHTS LAW
(AGAINST SMITH BARI'4EY, CUNEO AND DIMON)

114 Plaintiffs arid all others similarly situated reallege paragraphs Ito 113 and

incorporate them by reference as paragraphs 1 to 113 of Count XI of this Complaint

115. The State of New York's Human Rights Law, New York State Executive Law.

Section 296 et seq , ("Human Rights Law"), makes it unlawful to discriminate against any individual in the terms, conditions, or privileges of employment on the basis of sex The Human

Rights Law also makes unlawful sexual harassment that creates an abusive and hostile work environment, such that the conditions of employment are altered The same legal standards that

apply to Title VII claims apply to claims biought under the Human Rights Law

116. Cuneo is liable in his individual capacity under the Human Rights Law because he

aided and abetted the unlawful conduct as alleged herein and because he actually participated in

the conduct giving rise to the discrimination claims

117 Dimon is liable in his individual capacity under the Human Rights Law because

he had the power to hire and fire Smith Barney employees and aided and abetted the

discriminatory acts as alleged herein

118 DCfCLldanh South Darncy, Cunco and Dimon subjected Plaintiffs and all others

similarly situated to sexual discrimination in violation of the Human Rights Law

-34-
..::
I

-

*

4

COUNT Xii
PREGNANCY. DISCRIMINATION IN VIOLATION OF
NEW YORK HUMAN ifiGHTS LAW (AGAINST SMITH BARNEY, CUNEO AND DIMON) 119. Plaintiff Thomann and all others similarly situated reallege paragraphs 1 to118 and incorporate them by reference as paragraphs I to 118 of Count XII of this Complaint. 120. The Human Rights Law makes it unlawful to discriminate against anindividual
on the basis of pregnancy. 121. Cuneo is liable in his individual capacity under the Human Rights Lawbecause he
aided and abetted the unlawful conduct as alleged herein and because he actually participated in
the conduct giving rise to the discrimination claims. 122. Dimon is liable in his individual capacity under the Human RightsLaw because
he had the power to hire and fire Smith Barney employees and aidedand abetted the
discriminatory acts as alleged herein. 123. Defendants Smith Barney, Cuneo and Dimon subjected Plaintiff Thomannand all
others similarly situated to pregnancy discrimination in violation of the Human RightsLaw.

COUNT XIII
RETALIATION IN VIOLATION OF NEW YORK HUMAN RIGHTS LAW (AGAINST DEFENDANTS SMITH BARNEY, CUNEO AND DIMON)
124 Plaintiffs and all others similarly situated reallege paragraphs Ito 123 and incorporate them by reference as paragraphs Ito 123 of Count XIII of this Complaint.
125. The Human Rights Law, specifically New York State Executive LawSection 296(e), makes it unlawful for an employer to discriminate against an employeewho has opposed an unlawful employment practice or has assisted or participated in another employee's claim of
discrimination.

-

$O

1

4

126. Plaintiffs and all others similarly situated complained ofsex discrimination.

127. Defendants retaliated against Plaintiffs and all others similarly situated for their

complaints of sex discrimination. By Cuneo and Dimon subjected Plaintiffs violation of the Human Rights Law.

the conduct as alleged herein, Defendants Smith Barne',
and all others similarly situated to unlawffil retaliation in

COUNT XIV

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS IN VIOLATION OF
(AGAINST NSMEWITHYOBRAKRNCEOYM, MCUONNELOAAWND DIMON) 128. Plaintiffs and all others similarly situated reallegeparagraphs Ito 127 and Incorporate them by reference as paragraphs 1 to 127 of CountXIV of the Complaint.
129. New York law recognizes a cause of action for intentional infliction ofemotional
distress, which makes uniawftlcertain extreme andoutrageous conduct, including sexual
harassment, that results in severe emotional distress and was intended or committed with a disregard or a substantial
probability of causing such distress.

130. Defendants intentionally caused Plaintiffs and all others similarly situated severe emotional distress in violation ofNew York law.

alleged

131.
herein.

Smith

Barney

directed,

encouraged,

and

participated

in

the

wrongifil

conduct

.

COUNT XV

LIBEL PER SE (PLAINTIFF MARTENS AGAINST SMITH BARNEY) 132. Plaintiff Martens and all others similarly situated reallege paragraphs 1 to 131 and incorporate them by reference as paragraphs Ito 131 of Count XV of this Complaint.

under

133. The the direction

asntadtewmiethnttsheidaesnstiisftiaendcienopfaSramgritahpIh32a9rnmeyasdme banyaegmerpsl,oayreeeaslol ffaSlsmei,thmBisalernadeyin,g

t

- 36 -

and defamatory. Each such statement accuses Martens and all others similarly situated of want

of ability and want of integrity in theirprofessions, and are libel

134. The statements were made with knowledge thatthey were false and with actual

and comi-non law malice for the purpose of destroying Martens' exemplary reputation.

F

135. Although damages are presumed, Martens has suffered monetary loss as a result

F

ofthe defamatory statements.

136. Smith Barney is liable under the theory ofrespondeat superior.

COUNT XVI
SEXUAL DISCRIMINATION AND SEXUAL HARASSMENT
IN VIOLATION OF CITY ADMINISTRATIVE CODE (AGAINST SMITH BARNEY, CUNEO AND DIMON) 137. Plaintiffs and all others similarly situated reallege paragraphs ito 136 and incorporate them by reference as paragraphs ito 136 of Count XVI of this Complaint. 138. The Administrative Code of the City of New York, Section 8-107 et seq.,. ("Administrative Code"), makes it unlawful to discriminate against any individual in the terms, conditions, or privileges of employment on the basis ofsex. The Administrative Code also makes unlawfiul sexual harassment that creates an abusive and hostile work environment, such that the conditions of employment are altered.
139. Cuneo is liable in his individual capacity under the Administrative Code on the ground that he aided and abetted the unlawful conductas alleged herein and because he actually participated in the conduct giving rise to the discrimination claims.
140. Dimnn is liable in his individualcapacity under the Administrative Code because he had the power to hire and fire Smith Barney employees and aided and abetted the discriminatory acts as alleged herein.
141. By the conduct as alleged herein, Defendants Smith Barney, Cuneo and Dimon
- 37 -

..• *e.
.

• F. • - •.'

•

MP

subjected Plaintiffs and all others sithilarly situated to sexual discrimination in violation of the Administrative Code.

142. Plaintiffs served the City Commission on Human Rights and Corporation Counsel with this Complaint prior to filing it.

COUNT XVII

PREGN4J.4CY DISCRIMINATION (AGIANINVSIOTLSAMTIITOHNBOAFRTNHEEY,ACDUMNIENOISATNRDATDIIVMEOCNO) DE

143. Plaintiff Thomapa and all others similarly situated reallege paragraphs ito 142

and incorporate them by reference 144. The Administrative
on the basis ofpregnancy.

as paragraphs Code makes it

ito 142 of Count XVII of this Complaint unlawful to discriminate against an individual

145. Cuneo is liable in his individual capacity under the Administrative Code because

he aided and abetted the unlawful conduct as alleged herein in the conduct giving rise to the discrimination claims.

and

because

he

actually

participated

he

had

146. Dimon is liable in his individual the power to hire and fire Smith

capacity

under

the

Administrative

Code

because

Barney employees and aided and abetted the

discriminatoi.y acts as alleged herein.

147. By the conduct as alleged herein, Defendants Smith Barney, Cuneo and Dimon
subjected Plaintiff Thomapj and all others similarly situated to pregnancy discrimination in violation of the Administrative Code.

COUNT XVIII

(IANGVAIIONLSATTSIMONITOHRFBETATHRAENLAEIAYDT,MCIOIUNNNISLTOP.AANTDIVDEIMCOODNE)

148. Plaintiffs and all others similarly situated reallege paragraphs Ito 147 and

I

Incorporate them by reference as paragraphs ito 147 ofCount XVIII of this Complaint.

-38-

.- .
-

. S
I, I

-
•

,

. ______

-1

--

149. The Administrative Code, specifically Section 8-107(e), makes it unlawful for an employer to discriminate against any person who has opposed an unlawful employment practice or has assisted or participated in another employees claim ofdiscrimination.
150. Plaintiffs and all others similarly situated complained of sex discrimination. 151. Pursuant to standard operating procedure, Defendants retaliated against Plaintiffs and all others similarly situated for their complaints of sex discrimination. By the conduct as alleged herein, Defendants Smith Barney, Cuneo and Dimon subjected Plaintiffs and all others similarly situated to unlawful retaliation in violation of the Administrative Code.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs and all others similarly situatedrequest that this Court find in their favor and against Defendants as follows:

a.

Declare that Smith Barney's acts and conduct violateTitle VII of the Civil Rights

.1S

Act of 1964 and 1991, the Equal Pay Act, the Family and Medical Leave Act, the Human Rights

Law, the Administrative Code, and the anti-retaliation provisions of those laws and that the

individual Defendants violated the New York State Human Rights Law and the Administrative

Code and the anti-retaliation provisions of those laws;

b.

Declare that the acts and conduct of Smith Bamey, Cuneo and Dimon violate New

York common law;

c.

Declare that the practice of Smith Barney, NYSE and NASD of requiring

employccs in th. Sccwities Indusuy to arbitrate employment disputes involving employment discrimination as a condition of employment and as a condition of registering with the NYSE

and NASD is unconstitutional under the Fifth Amendment to the United States Constitution and

that this cause is not subject to the mandatory arbitration rules of the NYSE or NASD;

d. Declare that the Form U-4 executed by Plaintiffs and all others similarly situated

are null and void or unenforceable by any of the Defendants or that equity requires rescission of

-39-

the arbitration clauses in the Form U-4;

e. Award Plaintiffs and all others similarly situated the value of all compen

and benefits lost as a result of Smith Barney's, Dimon's and Cuneos unlawful conduct;

F

f. Award Plaintiffs and all others similarly situated the value of all compens
:1
and benefits they will lose in the Allure as a result of Smith Barney's, Dimon's and Cuneo's

unlawful conduct under Title VII, the Equal Pay Act, the Human ghts Act, the Admithsfratjye Code, and New York common law;

g. In the alternative to paragraph (1), reinstate Plaintiffs and all others similarly

situated with appropriate promotions and seniority and otherwise make Plaintiffs and all others

similarly situated whole;

h. Award Plaintiffs and all bthers similarly situated compensatory damages under

Title VII, the Human Rights Law, the Administrative Code, and New York common law; i. Award Plaintiffs and all others similarly situated punitive damages under Title

VII, the Administrative Code, and New York common law;
j. Award Plaintiffs and all others similarly situated liquidated damages under the
Equal Pay Act and the Family and Medical Leave Act;

k. Award Plaintiff Martens presumed damages for defamation; I. Award Plaintiffs and all others similarly situated prejudgment interest; m. Award Plaintiffs and all others similarly situated reasonable attorneys' fees, costs and disbursements; and

- 40 -

 
 238 F.Supp.2d 596 (2002)
Pamela K. MARTENS, et al., Plaintiffs v.
SMITH BARNEY, INC., et al., Defendants.
No. 96 CIV. 3779(JGK).
United States District Court, S.D. New York.
December 24, 2002.
5978 *597 *598 Matthew Eli Moloshok, Hellring Lindeman Goldstein & Siegal, Newark, NJ, Linda Friedman, Leng Stowell, Chicago, IL, for Roberta O'Brien Thomann, Robin Tompkins.
Matthew Eli Moloshok, Hellring Lindeman Goldstein & Siegal, Newark, NJ, Kent Spriggs, Spriggs & Davis, PA, Tallahassee, FL, for Patricia Hanlon.
Kent Spriggs, Spriggs & Davis, PA, Tallahassee, FL, for Marianne Dalton, Patricia Clemente.
Richard Montanez, Prospect, CT, for Cara Beth Walker.
Michele Lan Palter, Joseph D. Garrison, Gary Phelan, Garrison, Phelan, Levin-Epstein & Penzel, New Haven, CT, for Edna Broyles.
Kent Spriggs, Spriggs & Davis, PA, Tallahassee, FL, Robert Z. Dobrish, Hoffinger, Friedland, Dobrish & Stern, PC, New York City, for Eileen Valentino.
Phyllis Jamison, Clinton, MT, pro se.
OPINION AND ORDER
KOELTL, District Judge.
The plaintiffs, Pamela K. Martens ("Martens") and Judith P. Mione ("Mione") (collectively "the plaintiffs"), are among the named plaintiffs in this employment discrimination class action against Smith Barney, Inc. ("Smith Barney") and two of its officers, including James Dimon ("Dimon"). The plaintiffs allege violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as well as additional federal and New York State laws. Martens and Mione now move pursuant to 28 U.S.C. § 1292(b) for an order certifying for interlocutory appeal the May 3, 2002 Opinion and Order ("Opinion and Order") of Judge Motley to whom this case was then assigned. The Opinion and Order granted the defendants' motion to compel arbitration of the plaintiffs' outstanding claims. In the alternative, the plaintiffs move for reconsideration of the same Opinion and Order on the ground that the Court erred in denying discovery into the costs of arbitration.
I.
This case has a lengthy history that has taken it through the district court and the Court of Appeals, and now places the action in this Court upon reassignment from Judge Motley. Familiarity with the prior opinions is presumed.
This case began as a nationwide class action in which Martens, Mione, and additional named plaintiffs sued their employer, Smith Barney, for, among other claims, gender discrimination, harassment, and retaliation in violation of Title VII. On July 28, 1998, the district court approved an amended settlement agreement ("Settlement Agreement") among the parties. Martens v. Smith Barney Inc., 96 Civ. 3779, 1998 WL 1661385 (S.D.N.Y. July 28,

1998), which became effective on February 1, 1999. Plaintiffs Martens and Mione opted out of the class, however, and were not bound by the Settlement Agreement. Id. at *4 & Ex. A.
As a condition of employment with Smith Barney, Martens and Mione each signed a Uniform Application for Securities Registration ("Form U-4") with the National Association of Securities Dealers ("NASD") requiring that any employment dispute between the plaintiffs and defendants be arbitrated rather than resolved in court. Martens v. Smith Barney, Inc., 190 F.R.D. 134, 136, 138 (S.D.N.Y.1999). Martens and Mione also signed Smith Barney's own mandatory arbitration policy contained in various Smith Barney Employee Handbooks and 599 Applications for *599 Employment. Martens v. Smith Barney, Inc., 96 Civ. 3997, 2002 WL 867666, at *1 (S.D.N.Y. May 3, 2002) (hereinafter Martens I). Martens and Mione now challenge the enforceability of these provisions.
In August 1999, Dimon and Smith Barney moved to compel arbitration of Martens' and Mione's claims. Without ruling on the defendants' motion, Judge Motley dismissed the plaintiffs' claims for failure to prosecute. See Martens v. Smith Barney, Inc., 194 F.R.D. 110 (S.D.N.Y.2000).[1] The Court of Appeals for the Second Circuit reversed the dismissal and remanded the case to the district court. See Martens v. Thomann, 273 F.3d 159, 179-82 (2d Cir.2001).
Judge Motley then afforded the parties the opportunity to file any relevant motions by March 8, 2002. Order filed Feb. 25, 2002. In response, Martens and Mione moved to supplement their papers in opposition to Smith Barney's still-open motion to compel arbitration. Specifically, the plaintiffs argued that the Supreme Court's intervening decision in Green Tree Financial Corp.-Alabama v. Randolph, 531 U.S. 79, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000), compelled the district court to allow the plaintiffs to conduct limited discovery into the costs of arbitration prior to ruling on the defendants' motion.
In an Opinion and Order filed on May 3, 2002, the district court granted the defendants' motion to compel arbitration pursuant to the Form U-4 arbitration provision signed by both Martens and Mione. Martens I, 2002 WL 867666, at *1. Judge Motley denied the plaintiffs' motion to file a supplemental memorandum as moot. Id. Shortly thereafter, the case was transferred from Judge Motley to this Court.
II.
The plaintiffs now move for an order certifying for interlocutory appeal Judge Motley's Opinion and Order granting the defendants' motion to compel arbitration. In the alternative, the plaintiffs seek reconsideration of the decision on the ground that the district court erred in denying limited discovery into the cost of arbitration.
28 U.S.C. § 1292(b) provides that a district court may certify an interlocutory order for appeal if it is of the opinion that (1) the order "involves a controlling question of law;" (2) "as to which there is substantial ground for difference of opinion;" and (3) "that an immediate appeal of the order may materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b). The determination of whether § 1292(b) certification is appropriate under these standards lies within the discretion of the district court. See, e.g., Ferraro v. Sec'y of U.S. Dep't of Health & Human Servs., 780 F.Supp. 978, 979 (E.D.N.Y.1992) (collecting cases and citations).
Interlocutory appeals under Section 1292(b) are an exception to the general policy against piecemeal appellate review embodied in the final judgment rule, and only "exceptional circumstances [will] justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 475, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978); see also Flor v. BOT Fin. Corp., 79 F.3d 281, 600 284 (2d Cir.1996) (per curiam) (collecting cases). Because piecemeal litigation is *600 generally discouraged, the Court of Appeals has repeatedly emphasized that a district court is to "exercise great care in making a § 1292(b) certification." Westwood Pharm., Inc. v. Nat'l Fuel Gas Distrib. Corp., 964 F.2d 85, 89 (2d Cir.1992) see also Klinghoffer v. S.N.C. Achille Lauro Ed Altri-Gestione Motonave Achille Lauro in Amministrazione Straordinaria, 921 F.2d 21, 25 (2d Cir.1990) ("The power to grant an interlocutory appeal must be strictly limited to the precise conditions stated in the law.") (internal alteration omitted) (quoting Gottesman v. Gen. Motors Corp., 268 F.2d 194, 196 (2d Cir. 1959)). Section 1292(b) was not intended "to open the floodgates to a vast number of appeals from interlocutory orders in ordinary litigation," Telectronics Proprietary, Ltd. v. Medtronic, Inc., 690 F.Supp. 170, 172 (S.D.N.Y.1987) (internal quotation marks omitted), or to be a "vehicle to provide early review of difficult

rulings in hard cases." German v. Fed. Home Loan Mortgage Corp., 896 F.Supp. 1385, 1398 (S.D.N.Y.1995); see also Abortion Rights Mobilization, Inc. v. Regan, 552 F.Supp. 364, 366 (S.D.N.Y.1982); McCann v. Communications Design Corp., 775 F.Supp. 1506, 1534 (D.Conn.1991). Rather certification is warranted only in "exceptional cases," where early appellate review "might avoid protracted and expensive litigation." Telectronics, 690 F.Supp. at 172; see also In re Buspirone Patent Litigation, 210 F.R.D. 43, 49 (S.D.N.Y.2002); German, 896 F.Supp. at 1398.
Finally, the institutional efficiency of the federal court system is among the chief concerns underlying § 1292(b). The efficiency of both the district court and the appellate court are to be considered, and the benefit to the district court of avoiding unnecessary trial time must be weighed against the inefficiency of having the relevant Court of Appeals hear multiple appeals in the same case. See Harriscom Svenska AB v. Harris Corp., 947 F.2d 627, 631 (2d Cir.1991) ("It does not normally advance the interests of sound judicial economy to have piecemeal appeals that require two (or more) three-judge panels to familiarize themselves with a given case, instead of having the trial judge, who sits alone and is intimately familiar with the whole case, revisit a portion of the case if he or she has erred in part and that portion is overturned following the adjudication of the whole case."); In re Buspirone Patent Litigation, 210 F.R.D. at 50.
In this case, the plaintiffs' motion for an interlocutory appeal should be denied on the basis of untimeliness alone. Martens and Mione allowed almost five months to pass after the issuance of Judge Motley's May 3, 2002 Opinion and Order before filing this motion. The plaintiffs fail to offer a reasonable explanation for the time lapse. Martens and Mione attempt to shorten the appearance of this five-month delay by contending that the catalyst for their motion was the decision by the Second Circuit Court of Appeals in Brooks v. Travelers Ins. Co., 297 F.3d 167 (2d Cir.2002), issued on July 25, 2002. At oral argument in Brooks, judges of the Court of Appeals questioned whether the employee arbitration policy at issue in the case allowed sufficient vindication of federal statutory rights. Id. at 169-71. But after argument, defendant Travelers abandoned its effort to compel arbitration. As a result, the Court of Appeals revisited its concerns in the written opinion without deciding whether the policy provided adequate vindication of the plaintiff's rights. The Court of Appeals vacated the judgment of the district court dismissing the action because of the concession by Travelers that it would not seek to compel arbitration. 601 Martens and Mione then attempt to excuse the delay following the issuance *601 of the Brooks opinion by arguing that the plaintiffs' counsel was otherwise occupied by work and vacation and could not have filed this motion any sooner. (Declaration of Gary Phelan dated Oct. 24, 2002 attached as Ex. 3 to Pls.' Reply Mot. Supp. Interloc. App.) Ultimately, roughly two months elapsed between the time that the Court of Appeals decided Brooks and September 27, 2002 when the plaintiffs filed their motion for an interlocutory appeal.
The plaintiffs' explanation for the lengthy time lapse is unpersuasive. The pendency of the Brooks case was not a basis for failing to seek an interlocutory appeal in this case, if such an appeal were justified. The question raised in Brooks related to an employer's arbitration policy and not to the NASD arbitration procedures pursuant to a Form U-4. In any event, if Brooks had been relevant, the plaintiffs could have argued that in seeking certification. It was not an excuse to wait. Moreover, the reasons for the two month delay after Brooks was decided are also insufficient. A busy work schedule and a desire for vacation are no more bases for ignoring the need for filing a prompt interlocutory appeal than they are for ignoring specific court deadlines. Interlocutory appeals are a form of "immediate appeal." 28 U.S.C. § 1292(b). In this case, the passage of almost five months prior to the plaintiffs' filing of this motion renders the motion untimely and the motion is denied. See In re Buspirone Patent Litigation, 210 F.R.D. at 50 (finding that the defendant's unjustified delay in excess of three months in filing a motion for interlocutory appeal was in itself sufficient ground to deny the defendant's motion); Richardson Elec. v. Panache Broadcasting, 202 F.3d 957, 958 (7th Cir.2000) ("[A] district judge should not grant an inexcusably dilatory [1292 (b) certification] request [relating to a two month delay]."); Ferraro, 780 F.Supp. at 979 (rejecting 1292(b) certification motion on the grounds that "there was no justification for plaintiff's [two and a half month] delay" in filing the motion).
Moreover, there is no basis to certify an interlocutory appeal because there is no controlling issue of law as to which there is substantial ground for difference of opinion. Judge Motley's Opinion and Order explicitly relied on the holding of the Court of Appeals for the Second Circuit in Desiderio v. Nat'l Assoc. of Sec. Dealers, Inc., 191 F.3d 198 (2d Cir.1999), in granting the defendants' motion to compel arbitration. In Desiderio, the Court of Appeals found that a Form U-4 arbitration provision was enforceable as applied to the plaintiff's employment

dispute under Title VII. Id. at 203-06. This decision brought the Second Circuit in line with virtually every other Circuit that has addressed the question of "[w]hether a pre-dispute agreement requiring compulsory arbitration, such as a Form U-4, is enforceable with regard to Title VII claims." Id. at 203 (collecting cases); see also Gordon v. Volt Info. Sciences, Inc., 00 Civ. 4188, 2000 WL 1358646, at *1 (S.D.N.Y. Sept.20, 2000) (following Desiderio). In light of Desiderio, it is now clearly settled law within the Second Circuit that arbitration clauses can be enforced in Title VII cases and Judge Motley abided by that law. See, e.g., Pricewaterhouse-Coopers LLP v. Rutlen, 00 Civ. 1579, 2000 WL 460478, at *2 (S.D.N.Y. Apr. 20, 2000) ("Before addressing the specific issues framed by the motion, we note at the outset that, consistent with the federal policy favoring arbitration, that Title VII claims, like other federal statutory claims, are arbitrable."); Moorning-Brown v. Bear, Stearns & Co., Inc., 99 Civ. 4130, 1999 WL 1063233, at *4 (S.D.N.Y. Nov.23, 1999) ("Any doubt in this Circuit concerning the arbitrability of Title VII 602 claims has been eliminated by the Court of Appeals' *602 recent decision in Desiderio v. NASD.") (internal citation omitted). Thus, there is no controlling question of law "as to which there is substantial ground for difference of opinion," 28 U.S.C. § 1292(b), upon which this Court could certify an Order for interlocutory appeal.
To the extent that the plaintiffs challenge the details of the company arbitration policies that they signed, Judge Motley did not rule on the validity of those provisions. Martens I, 2002 WL 867666, at *1 ("The court expresses no opinion as to the enforceability of the other, non-Form U-4 arbitration agreements into which Ms. Martens and Ms. Mione may have entered.") To the extent that Smith Barney attempts to rely on any of those provisions in the NASD, there is no way to determine whether the arbitrator will enforce those provisions in the arbitration. Therefore, granting the plaintiffs' motion in this case could undermine the promotion of judicial efficiency which is an important goal of interlocutory appellate review. The issues that the plaintiffs seek to resolve on interlocutory appeal may never materialize in the arbitrations and may never require resolution. Because certification for an interlocutory appeal would not materially advance resolution of this case, the plaintiffs' motion must also be denied.
To the extent that the prior opinion of the Court of Appeals addressed the issue of appealability of an order compelling arbitration in this case, it is clear that the Court of Appeals considered that such an order would not be appealable. The Court of Appeals explained that, "[i]f the district court had determined that the individual plaintiffs' claims were subject to valid and enforceable arbitration agreements and compelled arbitration, the individual plaintiffs could not have immediately appealed that decision." Id. at 183 (citing Ermenegildo Zegna Corp. v. Zegna, 133 F.3d 177, 181 (2d Cir.1998)). Having determined that the plaintiffs' claims should not have been dismissed for failure to prosecute, the Court of Appeals declined the plaintiffs' invitation to consider whether their individual claims were subject to valid and enforceable arbitration agreements. Addressing the question of arbitrability "could give the individual plaintiffs an unfair advantage because they might otherwise have been unable to appeal the question of arbitrability." Id. The court went on, "the fact that the individual plaintiffs would not have been able to appeal a decision by the district court finding that the claims were arbitrable militates against this Court addressing that issue on appeal." Id. Thus, if guidance is to be found in the Court of Appeals decision on the prior appeal, it suggests that the Court of Appeals did not consider that there could be an appeal of the order compelling arbitration until the arbitration had been concluded.
III.
The plaintiffs move, in the alternative, for reconsideration of Judge Motley's decision denying the plaintiffs' motion for limited discovery into the costs of arbitration. The standard for granting a motion for reconsideration is well established. In deciding a motion for reconsideration pursuant to Local Civil Rule 6.3, the Court applies the same standards as those governing former Local Civil Rule 3(j). United States v. Letscher, 83 F.Supp.2d 367, 382 (S.D.N.Y.1999) (collecting cases). The moving party is required to demonstrate that the Court overlooked the controlling decisions or factual matters that were put before the Court in the underlying motions. Nakano v. Jamie Shadock, Inc., 98 Civ. 0515, 2000 WL 1010825, at *1 (S.D.N.Y. July 20, 2000); Walsh v. McGee, 918 F.Supp. 603 107, 110 (S.D.N.Y.1996); In re *603 Houbigant, 914 F.Supp. 997, 1001 (S.D.N.Y.1996). The rule is "narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the Court." Walsh, 918 F.Supp. at 110; see also Nakano, 2000 WL 1010825, at *1; United States v. Mason Tenders Dist. Council of Greater New York, 909 F.Supp. 882, 889 (S.D.N.Y. 1995).

Under Local Rule 6.3, "A notice of motion for reconsideration or reargument shall be served within ten (10) days after the docketing of the court's determination of the original motion." The plaintiffs allegedly served their motion for reconsideration of Judge Motley's May 3, 2002 Opinion and Order on September 26, 2002, and filed it with the Court on September 27, 2002.[2] The plaintiffs' motion for reconsideration was plainly untimely.
The plaintiffs do not attempt to claim that their motion for reconsideration was timely under Rule 6.3. Rather, they argue that the Supreme Court's decision in Green Tree was a change in the law and that this Court has the power to change a decision because of an intervening change in controlling law or to correct an error.
However, Green Tree was not a change in the law after Judge Motley's May 3, 2002 Opinion and Order. Green Tree was decided in December, 2000, and indeed all parties point out that the plaintiffs brought Green Tree to the attention of Judge Motley in their motion to file a supplemental memorandum. While Judge Motley denied that motion as moot, the citation of Green Tree was before the Court and the Court determined that the supplemental memorandum was moot. There was no reason for the plaintiffs to wait for over five months to file a motion for reconsideration on the basis of a Supreme Court case that had been decided nearly a year and a half before Judge Motley's Opinion and Order.
Moreover, no reconsideration to allow discovery is warranted based on the Supreme Court's decision in Green Tree. In Green Tree the Supreme Court held that in light of the record before the Court, "[t]he `risk' that [the respondent] will be saddled with prohibitive costs [of arbitration] is too speculative to justify the invalidation of an arbitration agreement." Green Tree, 531 U.S. at 91, 121 S.Ct. 513. Finding that the party seeking to avoid arbitration bears the burden of demonstrating the likelihood of bearing prohibitively expensive costs, the Court noted that, "How detailed the showing of prohibitive expense must be before the party seeking arbitration must come forward with contrary evidence is a matter we need not discuss; for in this case neither during discovery nor when the case was presented on the merits was there any timely showing at all on the point." Id. at 92, 121 S.Ct. 513. Contrary to the plaintiffs' assertion, Green Tree does not require discovery into the costs of arbitration but rather found that the record in that case failed to demonstrate prohibitive costs. See id.
604 In this case, the plaintiffs state that they "are not asking the court to reverse Judge Motley's decision," but they *604 are asking for reconsideration of that decision to "allow the parties to conduct limited discovery on the issues surrounding arbitration costs before the court rules on whether [the plaintiffs] must arbitrate their claims before the NASD." (Plaintiffs' Memorandum at 17-18.) But this discovery is not required by Green Tree. The plaintiffs have already produced a list of costs in other NASD arbitrations and could have presented information with respect to whether any of these costs reasonably could have deterred them. The plaintiffs chose not to make that argument and instead to seek discovery and further delay. Green Tree does not require that delay. Arbitration was already compelled and there is no persuasive argument in the papers to support a conclusion that compelling such arbitration was erroneous.
CONCLUSION
For the reasons explained above, the plaintiffs' motion to certify an interlocutory appeal is denied. The plaintiffs' motion, in the alternative, for reconsideration is also denied.
SO ORDERED.
[1] Prior to doing so, Judge Motley allowed the plaintiffs an opportunity to rejoin the class, Martens v. Smith Barney, Inc., 190 F.R.D. 134 (S.D.N.Y.1999), but the plaintiffs declined to do so.
[2] There appears to be an error in the docketing date for the underlying Opinion and Order, which is incorrectly listed as 9/16/02. (See Docket Entry No. 308.) The defendants explain that this date appears to be the day on which certain unrelated appeals from the May 3, 2002 Opinion and Order by other plaintiffs were docketed. (See Defendants' Memorandum at 16 n. 14.) The defendants advise that Judge Motley's May 3, 2002 Opinion and Order was actually docketed on May 6, 2002 in accordance with a certified copy of the docket used in connection

with an appeal by another plaintiff from the same Order. The plaintiffs do not dispute that the Order at issue was docketed on May 6, 2002.
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 Martens v. Smith Barney, Inc., 190 F.R.D. 134 (1999)

190 F.R.D. 134 United States District Court,
S.D. New York.
Pamela K. MARTENS, Judith P. Mione, Roberta O’Brien Thomann, Lorraine Parker, Bette Laswell,
Jennifer Alvarez, Marianne Dalton, Patricia Clemente, Simone Schwendener, Cara Beth Walker, Edna Broyles, Robin Tompkins, Stephanie Rodruck, Daniele Saccone, Beverly Trice, Lori Hurwitz, Lydia Klein, Eileen Valentino, Patricia Hanlon, Teresa Tedesco, Mary Ann Cabell, Ardis
Vinnecour, and Tracy Gibbs, on behalf of themselves and all others similarly situated,
Plaintiffs, v.
SMITH BARNEY, INC., a/k/a Shearson/American Express a/k/a Shearson Lehman Brothers a/k/a Shearson Lehman Brothers Holdings, Inc.,
Shearson Lehman Hutton a/k/a Shearson Lehman Brothers, Smith Barney/Shearson, Inc., James Dimon, Nicholas Cuneo, the New York Stock Exchange, and the National Association of Securities Dealers, Defendants.
No. 96 CIV. 3779(CBM). | Dec. 2, 1999.
Attorneys and Law Firms
*135 Stowell & Friedman, by Linda D. Friedman and Mary Stowell, Chicago, IL, Class Counsel for Plaintiffs.
Garrison, Phelan, Levin–Epstein, Chimes & Richardson, P.C., by Gary Phelan, New Haven, CT, for Pamela K. Martens and Judith P. Mione.
Paul, Weiss, Rifkind, Wharton & Garrison, by Brad Karp, New York City, for Smith Barney and James Dimon.
Theodore A. Kresbach & Associates, P.C., by Theodore A. Kresbach and William F. McGovern, New York City, for Nicholas Cuneo.
National Association of Securities Dealers, by Terri L. Reicher, Washington, DC, for NASD.
Milbank, Tweed, Madley & McCloy, by Russell E. Brooks, New York City, for NYSE.
Opinion
OPINION

MOTLEY, District Judge.
The plaintiffs, a class of female employees at Smith Barney, Inc. (“Smith Barney”) brought this action alleging workplace gender discrimination and challenging the securities industry practice of requiring arbitration of statutory discrimination claims. A settlement of the class claims has dismissed all defendants except the New York Stock Exchange (“NYSE”) and the National Association of Securities Dealers (“NASD”).
The court now grants the NASD and NYSE motions to dismiss Count VII, the only count in which plaintiffs name NASD and NYSE as defendants. The Due Process Clause claim against the NASD and NYSE is dismissed because these two organizations exercise insufficient state action to trigger constitutional due process protections. The Title VII gender discrimination claim against NASD and NYSE is dismissed in keeping with the Second Circuit’s recent ruling that requiring arbitration of Title VII claims does not violate the statute.
Defendants Smith Barney and James Dimon have filed a motion to compel arbitration regarding the employment discrimination claims of Pamela K. Martens and Judith P. Mione, two named plaintiffs who opted out of the class settlement and thereby opted out of the class litigation. The court reserves decision on this motion, and instead now clarifies the implications of such an opt out by named plaintiffs. In order to temper the effect on these two plaintiffs of any possible misunderstanding of the ramifications of their opt out decision, the court now grants Pamela K. Martens and Judith P. Mione the opportunity to rejoin the class and participate in the courtapproved class settlement as per its terms as named plaintiffs. Martens and Mione may exercise this option by submitting a written statement of intent to rejoin the class and participate in the class settlement within thirty days of the date of this opinion and attached order.
I. BACKGROUND
A. The Parties Plaintiffs filed this action on behalf of a class of female employees at Smith Barney. Smith Barney is a securities brokerage firm engaged in brokerage, investment banking, and asset management services. Defendant NASD operates the Nasdaq Stock Market. Defendant NYSE maintains and provides facilities for NYSE members to purchase and sell securities. Both NASD and NYSE are corporations that serve as self-regulatory organizations *136 subject to review by the Securities and Exchange Commission (SEC). Both organizations enforce standards of conduct for member securities firms and
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Martens v. Smith Barney, Inc., 190 F.R.D. 134 (1999)
oversee securities arbitrations. All other defendants are entities or individuals affiliated with Smith Barney (along with Smith Barney, collectively referred to as the “Smith Barney defendants”).
B. The Allegations The plaintiffs have alleged that the Smith Barney defendants committed gender discrimination, sexual harassment, and pregnancy discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”) (Counts I, III, IV); paid women lower wages for their work in violation of Title VII and the Equal Pay Act of the Fair Labor Standards Act, 29 U.S.C. §§ 206–207, 215 (“FLSA”) (Count II); mandated arbitration, to the exclusion of a judicial forum, of any statutory claims in violation of Title VII and the Due Process Clause of the Fifth Amendment of the United States Constitution (“the Due Process Clause”) (Counts VI, VII); denied leave time for the birth of a child in violation of the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. (“FMLA”) (Count VIII); retaliated against protected Title VII, FLSA, and FMLA complaints in violation of those statutes (Count V, IX); and also violated various state statutes, city statutes, and common law protections with the above actions (Counts X–XIX).
Only Count VII of plaintiffs’ complaint names NASD and NYSE as defendants. In Count VII, plaintiffs seek a declaratory judgment that mandatory arbitration of discrimination claims constitutes a denial of due process of law by depriving the plaintiffs of their rights under the United States Constitution and Title VII. Smith Barney requires its employees, as a condition of employment, to register with securities exchanges, including NASD and NYSE. Prospective registrants were required to sign the Uniform Application for Securities Industry Registration (“Form U–4”), a provision of which requires arbitration for certain employment disputes, including Title VII claims. The SEC similarly requires brokers, traders, and certain other securities industry employees to register with securities exchanges. Plaintiffs allege that, in order to satisfy these registration requirements, prospective employees were required to consent to mandatory arbitration of employment discrimination claims.
C. Procedural History The NASD and NYSE defendants moved to dismiss under Fed.R.Civ.P. 12(b)(1) ( “Rule 12(b)(1)”) for lack of subject matter jurisdiction and Fed.R.Civ.P. 12(b)(6) (“Rule 12(b)(6)”) for failure to state a claim. Before decision on those motions, the plaintiff class reached a proposed settlement with the Smith Barney defendants. The court first rejected the proposed settlement in June of

1998. See generally Martens, et al. v. Smith Barney, et al., 181 F.R.D. 243 (S.D.N.Y.1998). The court then approved a modified settlement in July of 1998, Martens, et al. v. Smith Barney, et al., 96 Civ. 3779(CBM) 1998 WL 1661385 (S.D.N.Y. July 24, 1998) (final order and judgment approving class action settlement and dismissing claims against the Smith Barney defendants) (“Settlement Order”).
In approving the class settlement by order dated July 24, 1998, the court dismissed all the Smith Barney defendants, but not NASD and NYSE, from this class action. This settlement afforded plaintiffs the right to opt out of the settlement. Pamela K. Martens and Judith P. Mione exercised this opt out right. The only class claim remaining before the court is the Count VII claim against NASD and NYSE for their policy and practice of requiring arbitration of statutory discrimination claims. In Count VII, the plaintiffs argue that this policy and practice violates the Due Process Clause and violates Title VII. The court now grants the motions by NASD and NYSE to dismiss Count VII.
II. ANALYSIS
A. Motion to Dismiss Standards
1. Distinction Between Rule 12(b)(1) and 12(b)(6) Dismissal NASD and NYSE have moved to dismiss under both Rule 12(b)(1) for lack of subject *137 matter jurisdiction and Rule 12(b)(6) for failure to state a claim upon which relief can be granted. “A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the court lacks the statutory or constitutional power to adjudicate the case. In contrast, a dismissal under Rule 12(b)(6) is a dismissal on the merits of the action—a determination that the facts alleged in the complaint fail to state a claim upon which relief can be granted.” Nowak v. Ironworkers Local 6 Pension Fund, et al., 81 F.3d 1182, 1187 (2d Cir.1996). Granting a motion under 12(b)(6) would dismiss a claim with preclusive effect; denying a motion under 12(b)(6) necessarily implies that a claim is properly within the court’s jurisdiction. Accordingly, under the circumstances of this case, the court agrees that “the preferable practice is to assume that jurisdiction exists and proceed to determine the merits of the claim pursuant to [Rule 12b(6) ].” Nowak, 81 F.3d at 1188 (internal citations omitted).
2. Standards for Rule 12(b)(6) Dismissal A motion to dismiss for failure to state a claim upon which relief can be granted should be granted under Rule 12(b)(6) only if it “appears beyond doubt that the plaintiff
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Martens v. Smith Barney, Inc., 190 F.R.D. 134 (1999)
can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). See also Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir.1993). “The court’s function on a Rule 12(b)(6) motion is not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient.” Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.1985). Therefore, “this court must accept the factual allegations of the complaint as true and must draw all reasonable inferences in favor of the plaintiff.” Brown v. Coach Stores, Inc., 163 F.3d 706, 709 (2d Cir.1998) (internal citations omitted). “The issue is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleading that a recovery is very remote and unlikely but that is not the test.” Gant, et al. v. Wallingford Bd. of Educ., et al., 69 F.3d 669, 673 (2d Cir.1995) (internal citations omitted).
B. Count VII In Count VII the plaintiffs seek declaratory judgment that mandatory arbitration of discrimination claims pursuant to the form U–4 deprives them of due process of law. At the time this lawsuit was filed in 1996, the Second Circuit had not yet ruled on this issue and the plaintiffs had some chance of success in pursuing their argument. However, as is often the case in lengthy and complex litigation, the legal landscape has been significantly altered since the inception of this case. The Second Circuit’s recent decision in Desiderio v. NASD, 191 F.3d 198 (2d Cir.1999) foils plaintiffs’ attempt to pursue Count VII. In Desiderio, a bank had offered the plaintiff employment as a securities broker, contingent upon her registration with NASD. NASD required prospective registrants to sign the Form U–4, a provision of which required arbitration for certain employment disputes, including Title VII claims. The Desiderio plaintiff unsuccessfully sought a declaratory judgment to invalidate the mandatory arbitration provision. While the Desiderio case was pending, NASD, with SEC approval, amended its rules to remove the mandatory arbitration provision. This voluntary rule change did not render the controversy moot because both NASD and NYSE might later amend their rules to revert to the mandatory arbitration policy. See Desiderio v. NASD, 191 F.3d 198, 202 (2d Cir.1999). In Desiderio the Second Circuit deflated plaintiffs’ Title VII claim by ruling that the statute does not preclude mandatory arbitration of Title VII claims.
The Second Circuit’s holding in Desiderio similarly hampers plaintiffs’ constitutional claims by ruling that NASD, like NYSE, is not a state actor as regards the type of activities relevant to both that and this case. A threshold problem with the plaintiffs’ constitutional due

process claim is that the defendants are private, not public, entities. While “most rights secured by the Constitution are protected only against infringements by governments,” they also are protected against infringements by private entity actions *138 “fairly attributable” to the government. Lugar v. Edmondson Oil Co., 457 U.S. 922, 936, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). As private organizations exercising exclusive regulatory authority pursuant to federal law, NASD and NYSE straddle the border between the private and public realms. In a statement that applies equally to the NYSE, it has been noted that “the exact status of the NASD is unsettled: it is granted governmental-type powers for some functions while maintaining its private nature for others.” Ross, et al. v. Bolton, et al., 106 F.R.D. 315, 316 (S.D.N.Y.1984) (rejecting NASD’s claim of law enforcement privilege against discovery of investigative files). This dual public/private status requires caution in reading precedents because a ruling that an exchange is private for a particular purpose does not necessarily mean that it is private for all purposes, as the Second Circuit noted in United States v. Solomon, 509 F.2d 863 (2d Cir.1975). In Desiderio the Second Circuit held that although NASD may be subject to substantial governmental regulation, it remains a private actor and cites a previous holding that NYSE is a private actor as well. Since Desiderio involved precisely the same type of NASD and NYSE actions as are relevant in the case before this court, the ruling governs.
[1] In light of the governing precedent set by Desiderio, the court now grants defendants’ motion to dismiss Count VII under Rule 12(b)(6). Accepting as true all of the factual allegations of the complaint, plaintiff has absolutely no possibility of prevailing on Count VII. There is no possible evidence which plaintiffs could proffer which would persuade this court to grant the declaratory judgment plaintiffs seek when the Second Circuit so recently denied such a judgment in a nearly identical scenario.
C. Clarification of the Effect of Named Plaintiffs’ Decisions to Opt Out of the Settlement The Smith Barney defendants currently have a motion pending to compel arbitration of the employment discrimination claims of Pamela K. Martens and Judith P. Mione, two named plaintiffs who had previously worked in a Smith Barney sales office in New York. Alternatively, Smith Barney’s motion seeks to dismiss or stay the action regarding these two plaintiffs. Prior to ruling on these pending motions the court now takes this opportunity to offer clarification on the effect of a decision to opt out of the court-approved settlement.
It is undisputed that in registering with the NYSE and NASD, both Martens and Mione signed forms purporting
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Martens v. Smith Barney, Inc., 190 F.R.D. 134 (1999)
to offer their consent to arbitrate employment related disputes. Smith Barney now seeks to enforce these mandatory arbitration provisions. As explained above, plaintiffs’ challenges to mandatory arbitration in general are destined to fail. However, this court has not yet addressed the lawfulness of the specific arbitration procedures proposed by Smith Barney. Prior to ruling on Smith Barney’s motions, this court must first determine whether Martens and Mione, as opt out plaintiffs, properly have any individual claims remaining before this court. This court now recognizes that given the timing of approving a class settlement, usually soon after certifying the class, some opt out plaintiffs may not have fully understood the effect of a decision to reject the settlement. This was the case with Martens and Mione, who appeared at the hearing to object to the settlement prior to its approval by this court as if they were still members of the class. The claimed right to object to the proposed settlement was denied at the time.
In the interest of equity, prior to ruling on the pending motions this court now chooses to clarify the effect of opting out of the settlement and offer the named plaintiffs who opted out the opportunity to rejoin the class.
In 1996, various named plaintiffs, including Pamela K. Martens and Judith P. Mione, filed the original complaint on behalf of themselves and all others similarly situated. Plaintiffs filed this complaint seeking to pursue a class action. Their subsequent motion to certify a class was granted. The required notice was given to prospective class members notifying them of their right to opt out of the certified class. Martens and Mione exercised their right to opt out.
*139 This court’s subsequent order approving the final settlement effectively ended the action and this court’s jurisdiction over it, with one exception not relevant here.
It is not entirely clear, however, that Martens and Mione fully understood the effect of their decision to opt out. Martens and Mione took no action to assert individual claims before this court for the remainder of 1998 or the first five months of 1999. However, in June of 1999 counsel for Martens and Mione sought to pursue discovery in this effectively concluded action. In August of 1999 the Smith Barney defendants moved to compel arbitration and to dismiss or alternatively stay the action regarding Martens and Mione. This motion represents Smith Barney’s first attempt to compel arbitration as the original complaint filed by plaintiffs was styled as a class action and thus exempt from mandatory arbitration by NASD and NYSE policy.
Prospective plaintiffs who opt out of a class settlement effectively opt out of the entire class litigation. See generally In re Del–Val Financial Corp. Securities Litigation, 162 F.R.D. 271 (S.D.N.Y.1995). Del–Val

involved a securities fraud class action in which some plaintiffs excluded themselves from the class settlement with one defendant and unsuccessfully sought to participate in the class settlement with remaining defendants. In that case the court opined, “It is axiomatic that an individual who requests exclusion from a class certified for the purposes of litigation is opting out of the entire litigation......the putative class members’ request for exclusion from the class had the effect of excluding them from the entire litigation.” Del–Val, 162 F.R.D. at 275. The court further asserted “no precedent exists for permitting class members to opt out of a class, whether certified for purposes of settlement or otherwise, with respect to some defendants or claims but not others”. Del– Val, 162 F.R.D. at 276. Of particular interest to this court, the Del–Val court recognized that some opt out plaintiffs might have operated under good faith misunderstandings of the effect of opting out and the court exercised its discretion to temper the effect this would exert on these opt-out plaintiffs. The Del–Val court clarified the implications of opting out and then employed its equity powers to afford opt out plaintiffs a short window of opportunity during which to reenter the class if they so desired.
Like the court in Del–Val, this court harbors some concerns that the named plaintiffs who opted out of the settlements may have misunderstood the full implications of their decision. It is particularly important to offer clarification here because opting out by named plaintiffs is an unusual enough occurrence that its discussion in the case law is quite limited. When plaintiffs file a suit as a class action, judicial approval of any settlement is required to ensure that a proper balance is struck between the rights of the named plaintiffs who have brought the case forward and the remaining class members they purport to represent. If an opt out right is provided, then it is clear that non-named class members who opt out have no further business before the court hearing the class action. Such class members are free to file separate individual claims or seek to intervene to the extent the procedural rules permit, but they have no right to pursue individual claims before the court hearing the class action at the same advanced stage of litigation to which the class has moved the case. Such a policy would allow opt out plaintiffs to benefit from the work the class had done to move the case forward without being subject to any of the constraints which bind class members.
[2] The status of named plaintiffs who opt out of a class is somewhat less clear. When named plaintiffs initially file a suit styled as a class action, they file a claim on behalf of themselves and all others similarly situated. It is not clear whether any individual claims survive class certification or if certification effectively merges all claims before the court into the class claim. The efficiency afforded by the class action procedure would be poorly served if numerous class members were permitted to opt out of the
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Martens v. Smith Barney, Inc., 190 F.R.D. 134 (1999)
class and then remain in the litigation with supposedly resurrected individual claims. It is clear that named plaintiffs, like non-named plaintiffs, who opt out of a settlement no longer remain in the class in any *140 capacity and if they wish to pursue their unique cases they must actively do so separate from the class. In order to temper the effect of any possible good faith misunderstanding by certain opt out plaintiffs, the court will now grant named plaintiffs who opted out of the settlement thirty days to rejoin the plaintiff class. The court will reserve decision on Smith Barney’s pending motions until this thirty day period has expired.
III. CONCLUSION For the reasons outlined above, the court now grants defendant NYSE’s and defendant NASD’s motions to dismiss. The Due Process Clause claim against the NASD and NYSE is dismissed because these two organizations exercise insufficient state action to trigger constitutional due process protections. The Title VII gender discrimination claim against NASD and NYSE is dismissed in keeping with the Second Circuit’s ruling that Title VII does not preclude NASD or NYSE from seeking mandatory arbitration of brokers’ Title VII claims.

The court also now clarifies the consequences of named plaintiffs’ opting out of the court-approved settlement. Opting out of the settlement excludes such plaintiffs from the terms of the settlement and removes such plaintiffs from the class litigation. This court now chooses to follow the precedent set by another court within this district and allow named plaintiffs who opted out a brief period of time during which to reconsider their opt out decision in light of this clarification. Thus, the court now allows Pamela K. Martens and Judith P. Mione to elect to rejoin the plaintiff class and participate as named plaintiffs as per the terms of the court-approved settlement agreement. Martens and Mione may exercise this option by submitting such request in writing to the court within thirty days of the date of this opinion and attached order.
Parallel Citations
81 Fair Empl.Prac.Cas. (BNA) 1106, 77 Empl. Prac. Dec. P 46,310
	  

5

 
 Martens v. Smith Barney, Inc., Not Reported in F.Supp.2d (2000)

2000 WL 108831 United States District Court, S.D. New York.
Pamela K. MARTENS, et al. Plaintiffs, v.
SMITH BARNEY, INC., et al. Defendants.
No. 96 Civ. 3779(CBM). | Jan. 31, 2000.
Opinion
MEMORANDUM OPINION AND ORDER
MOTLEY, J.
*1 This 1996 class action involves charges of workplace gender discrimination against Smith Barney, Inc. and several of its officers. This court certified a settlement class and, in July 1998, approved a settlement agreement between plaintiffs and the Smith Barney defendants (“Smith Barney”). The court approved settlement provided for an independent dispute resolution process (“DRP”) at Duke University as a means to adjudicate 22,000 potential individual claims by members of the plaintiff class. The court appointed Stowell & Friedman as class counsel. The settlement also required Smith Barney to implement certain diversity programs and initiatives to benefit all employees and potential employees. The settlement also provided named plaintiffs and other class members with the option to employ their own counsel to represent them during the DRP. The settlement also provided for the creation of a panel of lawyers experienced in the trial of Title VII cases, thereby increasing the number of competent lawyers available to plaintiffs and class members in the DRP.
Kent Spriggs, an attorney practicing in Florida, has submitted several motions in this case on behalf of Cara Beth Walker, Lisa Mays, and Teresa Tedesco, three named plaintiffs. Mr. Spriggs has filed a motion to substitute himself as counsel for these plaintiffs in their capacity as class representatives, thereby replacing Stowell & Friedman the Class Counsel appointed by this court. It is undisputed that each member of the plaintiff class may select an attorney to advocate for her regarding her individual claims in the dispute resolution process. The contested issue in the present motion is the request to allow Mr. Spriggs to replace Stowell & Friedman as Class Counsel.
Also, Mr. Spriggs has filed a motion to enforce the settlement agreement, over which this court retains

jurisdiction, on behalf of the same three named plaintiffs. A fourth named plaintiff, Edna Broyles, who had previously filed a separate motion to enforce the settlement, now joins in the motion filed by Mr. Spriggs. The allegations made, unsupported by affidavits from individuals with personal knowledge, and the relief sought in these motions are quite serious and extensive. These named plaintiffs, for example, seek to void much of the dispute resolution process which has been conducted over the past two years; seek to create a new supplemental panel of attorneys specializing in employment discrimination cases; seek appointment of a special master to monitor the settlement agreement; make allegations of improprieties on the part of counsel for Smith Barney; and seek to replace court appointed class counsel.
Mr. Spriggs’ motion to enforce the settlement agreement is denied for its gross failure to comply with the page limits of this court’s Individual Calendar Rules. Absent prior approval, this court’s individual rules limit memoranda of law to 25 pages and reply memoranda to ten pages. Individual Calendar Rule 2C. Thus, without prior court approval, the 63 page long memorandum of law in support of a motion to enforce the settlement stipulation filed by Mr. Spriggs is procedurally improper and is denied for that reason. If Mr. Spriggs elects to refile this motion in compliance with this court’s rules relating to motions, he is instructed that any factual allegations regarding improprieties by class counsel or Smith Barney or both in connection with the DRP be properly supported by affidavits, signed by individuals with personal knowledge of the alleged improprieties.
*2 Mr. Spriggs has 21 days from the date of this order to serve and refile his motion in compliance with this court’s rules and the court’s instructions herein. Opposing counsel will have 21 days to answer. Mr. Spriggs will have ten days to reply.
The court has found no record from which it can conclude that Mr. Spriggs is currently admitted to practice in the Southern District of New York. Mr. Spriggs has signed each motion paper. The name of a local law firm also appears on the papers. Rule 1.3 of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York outlines the various routes by which non-admitted attorneys may gain the right to practice in courts within the Southern District. The court also calls Mr. Spriggs’ attention to Rule 11 of the Federal Rules of Civil Procedure. Mr. Spriggs must demonstrate compliance with Rule 1.3 prior to entering an appearance before this court. Mr. Spriggs is instructed to submit either proof of admission to practice in the Southern District of New York and current good standing therein or a motion to appear pro hac vice supported by proof of
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Martens v. Smith Barney, Inc., Not Reported in F.Supp.2d (2000)

admission to practice and current good standing in another jurisdiction.
If a new motion is filed, a hearing is scheduled for Wednesday, April 12, 2000 at 10:00 a.m. in Courtroom 26-A at 500 Pearl St. At that time the court will hear the motion to enforce the settlement stipulation and motion to substitute counsel, meaning that the court will hear testimony of various witnesses and receive exhibits.

Parallel Citations
77 Empl. Prac. Dec. P 46,312
	  

2

 
 Martens v. Smith Barney, Inc., Not Reported in F.Supp.2d (2003)

2003 WL 21543506 United States District Court,
S.D. New York.
Pamela K. MARTENS, et. al., Plaintiffs v.
SMITH BARNEY, INC., et al., Defendants.
No. 96 Civ. 3779(JGK). | July 9, 2003.
Female employees of securities brokerage firm brought Title VII gender discrimination action, which was settled. Two employees moved to enforce settlement agreement. The District Court, Motley, J., denied motion, 2000 WL 108831, sanctioned employees’ attorneys, 194 F.R.D. 113, and dismissed claim for lack of prosecution, 194 F.R.D. 110. Employees appealed. The Court of Appeals, 273 F.3d 159, reversed and remanded. On remand, the District Court, Koeltl, held that: (1) there was no such thing as motion to enforce; (2) class counsel did not violate settlement agreement by not providing list of alternate counsel available to class members until after filing of initial claims under agreement; (3) class counsel’s fee agreement was not breach of any fiduciary duty; (4) class counsel did not violate agreement provision requiring furnishing of statistical data to claimants; (5) class counsel adequately represented individual claimants during claims procedure; (6) class counsel and firm took adequate steps to implement equitable account distribution policy, as required by settlement agreement; and (7) class counsel did not discriminate against claimants electing to use other counsel.
Motion denied.
Opinion
OPINION AND ORDER
KOELTL, J.
*1 In 1996 a class of women employed at Smith Barney, Inc. (“Smith Barney”) filed a class action lawsuit against Smith Barney and other defendants alleging gender discrimination and sexual harassment throughout the company. The lawsuit resulted in a settlement agreement approved by Judge Motley of this Court in 1998. Certain named plaintiffs, Patricia Clemente, Marianne Dalton, Lisa Mays, and Teresa Tedesco (the “Moving Plaintiffs”), have now filed a “motion to enforce” the settlement agreement. Before the Court is also a motion to supplement the motion to enforce, a motion to strike the

reply brief in that motion, as well as a motion for discovery. The Court will resolve each of these issues below.
I.
This case has a lengthy history that has taken it through the district court and the Court of Appeals, and now places the action in this Court upon reassignment from Judge Motley. Familiarity with the prior opinions is presumed.
This case began as a nationwide class action in which plaintiffs sued their employer, Smith Barney, for, among other claims, gender discrimination, harassment, and retaliation in violation of Title VII. On July 28, 1998, the district court approved an amended settlement stipulation (“Settlement Agreement” or “Stipulation”) among the parties. Martens v. Smith Barney Inc., No. 96 Civ. 3779, 1998 WL 1661385 (S.D.N.Y. July 28, 1998). The Settlement Agreement provided for an independent dispute resolution process (“DRP”) as means to adjudicate 22,000 potential claims by individual class members and appointed the law firm of Stowell & Friedman as class counsel (“Class Counsel” or “Stowell & Friedman”). Martens v. Smith Barney, No. 96 Civ. 3779, 2000 WL 108831, at *1 (S.D.N.Y. Jan. 31, 2000) (hereinafter Martens I ). The Settlement Agreement also provided named plaintiffs and other class members with the option of employing independent counsel to represent them during the DRP. Id. To ensure that a sufficient number of qualified lawyers were available to represent Claimants during the DRP, the Settlement Agreement provided for the creation of an attorney panel of experienced Title VII trial lawyers available to represent the class. Id. Finally, the Settlement Agreement required Smith Barney to implement certain diversity initiatives to benefit all current and potential employees. Id.
The DRP contained three stages. (See generally Settlement Stipulation (“Stip.”) § 7.) At the Initial Submission stage, each claimant was required to submit her claim to Smith Barney and Smith Barney was required to respond. (Stip. § 7.12.) Claims that were not resolved at the Initial Submission stage could proceed, at the claimant’s request, to Mediation. (Stip. § 7.13.) If Mediation failed, ADR-eligible claims could be submitted to a three-person ADR Panel in a public adversarial hearing. (Stip. § 7.14.)
On November 19, 1999 the law firm of Spriggs & Davis filed a self-styled “motion to enforce” the Settlement Agreement on behalf of two named plaintiffs, Cara Beth Walker and Teresa Tedesco, as well as to substitute
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Martens v. Smith Barney, Inc., Not Reported in F.Supp.2d (2003)

Spriggs & Davis for Stowell & Friedman as class counsel. Martens v. Thomann, 273 F.3d 159, 165–66 (2d Cir.2001). The motion accused Class Counsel and Smith Barney of violating the Settlement Agreement and sought to invalidate the DRP. Id. at 166. Judge Motley denied the motion in an opinion dated January 31, 2000 “for its gross failure to comply with the page limits of this court’s Individual Calendar Rules.” Martens I, 2000 WL 108831, at *1. Judge Motley stated that the allegations in the motion were “unsupported by affidavits from individuals with personal knowledge, and the relief sought in these motions are quite serious and extensive.” Id. Judge Motley continued:
*2 If Mr. Spriggs elects to refile this motion in compliance with this court’s rules relating to motions, he is instructed that any factual allegations regarding improprieties by class counsel or Smith Barney or both in connection with the DRP be properly supported by affidavits, signed by individuals with personal knowledge of the alleged improprieties.
Id. Judge Motley concluded by noting that there was no evidence in the record that Mr. Spriggs, who had signed each motion paper, had been admitted to practice in the Southern District of New York and cautioned him about the possibility of Rule 11 sanctions. Id. at *2.
Spriggs & Davis refiled a second motion to enforce on March 28, 2000, which “largely reiterated the allegations made in the original motion to enforce.” Thomann, 273 F.3d at 167. When Judge Motley held oral argument on the motion on May 15, 2000, she did not hear argument about the merits of the motion to enforce but instead questioned Mr. Spriggs about allegations by Class Counsel of prior professional misconduct. Id. at 168. By the end of the hearing, Judge Motley imposed sanctions orally on both Mr. Spriggs and his co-counsel, Mr. Davis. Id. at 169. By Order dated May 16, 2000, Judge Motley revoked the pro hac vice status of both attorneys, held that they were each subject to Rule 11 sanctions of $5,000, and denied the motion to enforce without explanation. Martens v. Smith Barney, Inc., 194 F.R.D. 113, 113–116 (S.D.N.Y.2000), vacated, Martens v. Thomann, 273 F.3d 159 (2d Cir.2001).
The Second Circuit Court of Appeals vacated Judge Motley’s order revoking Spriggs’ and Davis’ pro hac vice status and imposing sanctions. Thomann, 273 F.3d at 183. The Court of Appeals also vacated Judge Motley’s denial of the second motion to enforce the Settlement Agreement and remanded for further proceedings not inconsistent with the court’s decision. Id. In so doing, the Court of

Appeals wrote, “We begin our discussion by noting that there is nothing in the Federal Rules of Civil Procedure styled a ‘motion to enforce.’ Nor is there approval for such a motion to be found in this Circuit’s case law, except in situations inapposite to the case before us.” Id. at 172. The Court of Appeals explained that the parties’ failure to clarify what relief was being sought, and under what rule the motion was noticed, rendered the court “severely burdened in our review of the disposition of this ‘motion’ on appeal.” Id. The Court of Appeals listed a variety of ways that a party might call the performance of a class action settlement into question before a district court, including in a contempt proceeding, a new action for breach of contract, or in an action for relief from judgment under Federal Rule of Civil Procedure 60. Id. The Court of Appeals cautioned that it was not suggesting that any of these mechanisms was appropriate in the case, but rather that the possibilities demonstrated the different procedures and standards for relief and review that made “identification of the precise nature of the motion an essential for our review (and, we believe, for the district court’s decision in the first instance).” Id.
*3 The Court of Appeals remanded the case to the district court in view of the fact that Judge Motley had denied the motion without explanation and thus the Court of Appeals could not review the decision without engaging in inappropriate speculation. Id. at 173. The court concluded by stating that
Remand will of course also give both parties and the district court the opportunity to clarify precisely what relief is sought and on what grounds (i.e., under what rule(s) the motion is brought). Finally, to the extent that the motion, once properly characterized, requires resolution of disputed factual issues, the district court will have the opportunity on remand to conduct an evidentiary hearing and to allow the parties discovery as appropriate.
Id.
Spriggs & Davis subsequently filed a third motion to enforce on behalf of named plaintiffs Lisa Mays, Patricia Clemente, Marianne Dalton and Teresa Tedesco and Judge Motley heard oral argument on the motion on May 1, 2002. At argument, Mr. Spriggs dismissively stated the following:
[M]uch has been said about the procedural vehicles under which the motion to enforce is brought....

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Martens v. Smith Barney, Inc., Not Reported in F.Supp.2d (2003)

First, the language in the Court of Appeals opinion concerning whether there exists something called a motion to enforce was briefed by neither party and it appeared in the opinion. That was the first time it appeared in the case. It was not discussed at oral argument, it just appeared for the first time. It clearly is not necessary to the decision and we regard it as dicta.
(May 1, 2002 Hearing Tr. (“May 2002 Tr.”) at 40–41 (emphasis added).) Similarly, at the initial conference before this Court, Mr. Spriggs characterized the Court of Appeals as having “commented upon” the prior motion to enforce before remanding the case to the district court. (June 18, 2002 Hearing Tr. at 6.) The third motion to enforce was virtually a refiling of the Moving Plaintiffs’ earlier motion that the Court of Appeals found improper, and that motion is now before this Court having been transferred from Judge Motley.
II.
[1] In addition to the motion to enforce, the Moving Plaintiffs filed a motion to supplement the motion to enforce. The Court has granted the motion in the interest of completeness to the extent that the Court has considered all of the evidence and arguments. The material in the Moving Plaintiffs’ papers, however, could have been included in one of the three preceding motions to enforce and the Moving Plaintiffs should have done so. This is the equivalent of a fourth motion to enforce. Class Counsel has filed a motion to strike the reply brief and declarations filed by the Moving Plaintiffs in connection with the motion to supplement on the ground that the documents raise new bases to overturn the Settlement Agreement that are inappropriate at this stage in the briefing. Class counsel is correct and reply briefs are not the appropriate place to raise new arguments. See, e.g., Judge v. New York City Transit Auth., No. 99 Civ. 927, 1999 WL 1267462, at *3 (S.D.N.Y. Dec.29, 1999); Irish Lesbian and Gay Org. v. Giuliani, 918 F.Supp. 728, 731 (S.D.N.Y.1996). However, the motion to strike is denied in so far as the Court will consider only those portions of the reply papers that are truly responsive and which do not raise new arguments.
*4 The moving plaintiffs have simply refiled a third and fourth motion to enforce despite the Court of Appeals’ statement that there is no such thing in the Federal Rules of Civil Procedure or Second Circuit case law except in situations inapposite to this case. Thomann, 273 F.3d at

172. The Moving Plaintiffs argue, however, that a motion to enforce does exist. Mr. Spriggs told Judge Motley at oral argument, “We went out and did some research, and found some cases that appeared to indicate that in point of fact, in Second Circuit jurisprudence there are motions to enforce that have been the basis of adjudications by the Court of Appeals....” (May 2002 Tr. at 41.) The Moving Plaintiffs cite Pena v. New York State Division for Youth, 708 F.2d 877 (2d Cir.1983) (per curiam), and Sanchez v. Maher, 560 F.2d 1105 (2d Cir.1977), as examples. Class counsel is correct, however, and these cases differ from the one before this Court in that the enforcement at issue in those cases was against a party to a class action whereas, in this case, the Moving Plaintiffs seek to enforce the Settlement Agreement against Class Counsel, which is not a party to the litigation.
Moreover, in so arguing, the Moving Plaintiffs merely contradict the Court of Appeals’ finding that a motion to enforce is inappropriate in this case. The Moving Plaintiffs are bound by the Court of Appeals’ decision. Furthermore, “a trial court cannot reconsider on remand an issue decided by an appellate court.” Rezzonico v. H & R Block, Inc., 182 F.2d 144, 148–49 (2d Cir.1999). If the Moving Plaintiffs sought to dispute the Court of Appeals’ decision, the appropriate mechanism to do so was through a motion for reconsideration, which Mr. Spriggs did not file. The Moving Plaintiffs cannot simply ignore the Court of Appeals’ binding decision and cavalierly invite this Court to do the same.
Nor have the Moving Plaintiffs attempted to file any of the three types of actions suggested by the Court of Appeals: a contempt proceeding, and action for breach of contract, or a Rule 60(b) motion for relief from judgment. In fact, Mr. Spriggs conceded at oral argument before Judge Motley that the Moving Plaintiffs were unable to bring a motion under these mechanisms. (May 2002 Tr. at 44–45.) Instead, the Moving Plaintiffs cite other provisions and Rules of Civil Procedure as bases for their motion that are equally inapposite.
The Moving Plaintiffs rely on Federal Rule of Civil Procedure 70 as a basis for their motion. Rule 70 states, in part, “If a judgment directs a party to execute a conveyance of land or to deliver deeds or other documents or to perform any other specific act and the party fails to comply within the time specified, the court may direct the act to be done....” The Second Circuit Court of Appeals has stated that Rule 70 “deals with the enforcement of judgments relating to property” and is thus not a proper procedural basis for this motion. See Vacco v. Operation Rescue National, 80 F.3d 64, 67 n. 3 (2d Cir.1996) (finding Rule 70 inapplicable to an attempt to hold a party in contempt for violating an injunction issued against abortion protesters). Moreover, Rule 70 is directed at parties, rather than counsel, and thus does not apply in this case.
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Martens v. Smith Barney, Inc., Not Reported in F.Supp.2d (2003)

*5 The Moving Plaintiffs also cite Rule 23 of the Federal Rule of Civil Procedure. However, Rule 23 merely provides a basis for class action litigation and does not create a procedural basis for a “motion to enforce.” Finally, the Moving Plaintiffs’s purport to rely on § 16.9 of the Settlement Agreement in their motion to supplement as a basis for bringing their motion. Raising that basis in motion to supplement is tantamount to raising a new argument in a reply brief and is improper. Furthermore, Section 16.9 provides:

In the event of any dispute or disagreement with respect to the meaning, effect or interpretation of this Settlement Stipulation or any Exhibit thereto, or in the event of a claimed breach of the Settlement Stipulation or an Exhibit hereto, the Parties agree that such dispute will be resolved and adjudicated only in and by the District Court, unless otherwise provided in this Settlement Stipulation. The District Court shall retain jurisdiction over all matters related to this Settlement Stipulation for purposes of administering, effectuating and enforcing the Settlement and resolving any dispute under this Settlement Stipulation.

Citing § 16.9 does not, however, solve the problem identified by the Court of Appeals by providing a basis for the motion that makes clear the standards by which this Court could decide the motion or by which the Court of Appeals’ could review a decision of this Court. Section 16.9 provides no assistance to the Moving Plaintiffs because despite their extensive briefing, the Moving Plaintiffs fail to identify a provision of the Stipulation that Class Counsel or Smith Barney actually breached. If there were such a breach, the Moving Plaintiffs could have proceeded by a motion for contempt or action for breach of the Settlement Agreement.1

1

The Moving Plaintiffs similarly claim to rely on

Paragraph 34 of Judge Motley’s July 24, 1998 Order as

a basis for jurisdiction. Paragraph 34 states:

Without affecting the finality of this Final Order

and Judgment, this Court retains jurisdiction over

the implementation and enforcement of this Final

Order and Judgment. Smith Barney, the Named

Plaintiffs and Class Representatives, and each

member of the Class are hereby deemed to have

submitted irrevocably to the exclusive jurisdiction

of this Court for any suit, action, proceeding or

dispute relating to this Final Order and Judgment

or the Settlement Stipulation, except to the extent

remitted by the Settlement Stipulation for resolution in a different forum. Paragraph 34 does no more to provide a basis for this motion than does § 16.9.
Spriggs & Davis have ultimately filed two more briefs on behalf of the Moving Plaintiffs that seek to undo the Settlement Agreement agreed to by the parties and approved by Judge Motley. Spriggs & Davis wish to reopen the settlement, to resolicit members of the class in hopes of finding new claimants to support their efforts, and to declare the individual settlements and releases voidable. This is not an attempt to “enforce” the Settlement Agreement but to vacate a final judgment without complying with the types of stringent requirements that would apply to a motion for contempt, a motion to vacate under Rule 60, or an action for breach of contract. Indeed, the Moving Plaintiffs could not meet those standards. The parties are entitled to finality and the Court will not reopen the Settlement Agreement without a showing of need that has not been made.
Moreover, this was a case with approximately 23,000 class members. (Declaration of Nathan Vogt dated Dec. 7, 1999 (“Vogt Decl.”) ¶ 3.) Roughly 1,900 initial submissions were filed with Smith Barney. (Supplemental Declaration of Nathan Vogt dated Apr. 17, 2000 ¶ 3; Declaration of Mary Stowell dated Dec. 6, 1999 (“Stowell Decl.”) ¶ 10.) Of these, over ninety-five percent have been resolved. As of December 2002, fewer than 100 claims remained to be resolved, and, of those, 30 to 35 had completed Mediation. (Second Supplemental Declaration of Mary Stowell dated Dec. 6, 2002 (“2d Supp. Stowell Decl.”) ¶ 2.) A review of the scope and success of the settlement in this case indicates that the efforts by the Moving Plaintiffs to undo the settlement should be rejected in the same way that motions to intervene to upset settlement have been denied where they have been untimely and prejudicial to other parties in the litigation. See D’Amato v. Deutsche Bank, 236 F.3d 78, 84 (2d Cir.2001); Farmland Dairies v. Comm’r of New York State Dep’t of Agriculture and Markets, 847 F.2d 1038, 1044–45 (2d Cir.1988); In re Nasdaq Market–Makers Antitrust Litigation, 184 F.R.D. 506, 514–15 (S.D.N.Y.1999).
III.
*6 [2] Despite the fact that the Moving Plaintiffs have failed to identify an appropriate procedural vehicle for their motion, the Court has examined the merits of the Moving Plaintiffs’ claims.2 In so doing, it is apparent that Spriggs & Davis, on behalf of the Moving Plaintiffs, seek to undo a multi-year settlement that has resolved a
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Martens v. Smith Barney, Inc., Not Reported in F.Supp.2d (2003)

significant number of claims, bringing deserved closure to a great many parties. Out of 23,000 members of the class, and despite their participation as lawyers for individual class members, Spriggs & Davis has produced supporting complaints from less than fifteen class members. The Moving Plaintiffs’ arguments are wholly without merit. There is nothing in the terms of the Settlement Agreement or in any fiduciary duties owed by Class Counsel that supports the Moving Plaintiffs’ claims.

2

Despite finding that the Moving Plaintiffs had failed to

articulate a valid procedural mechanism for their

complaints the Court of Appeals did note that the

Moving Plaintiffs had raised various concerns about the

performance of Class Counsel that should be addressed

on remand. Thomann, 273 F.3d at 172 and n. 9. The

Court therefore allowed the parties to submit extensive

documentation and affidavits to provide a factual

record. Despite the fact that the Moving Plaintiffs have

disregarded instructions of the Court of Appeals to

pursue a procedural mechanism other than a “motion to

enforce,” it is appropriate to address the factual

assertions of the Moving Plaintiffs and to address the

concerns specifically raised by the Court of Appeals.

A.
The Moving Plaintiffs argue that Class Counsel breached unspecified covenants by failing to make quality counsel available to all class members. Section 7.6 of the Stipulation, on which the Moving Plaintiffs rely, governed the creation of an Attorney Panel to aid class members in resolving their claims. Section 7.6 of the Stipulation states, in part:
All parties may be represented by legal counsel at any or every stage of the Dispute Resolution Process. Class Counsel shall identify and select a panel of additional attorneys who will be available, upon the request of any Claimant, to represent such Claimant in her individual Mediation and/or ADR (“Attorney Panel”). All members of the Attorney Panel shall be skilled and experienced in Title VII litigation....
(Stip. § 7.6.) The panel was created to address Judge Motley’s concern that there be a sufficient number of qualified lawyers available to represent class members. Section 7.6A of the Stipulation provides, in part:
As provided in the Settlement Stipulation, the Dispute

Resolution Process begins with the filing of an Initial Submission. Class Counsel will be available to prepare all Initial Submissions without any charge to the Claimant(s) or the Firm.
It is anticipated that many claims will be resolved at the Initial Submission Stage. Class Counsel intend to represent as many Claimants as is reasonably practicable through the Mediation and ADR phases of the DRP.
Class Counsel will also maintain and oversee an Attorney Panel consisting of attorneys willing to represent Claimants in the Mediation and ADR phases of the DRP in the event that Class Counsel are not able to represent Claimants or Claimants desire other representation.
Because it is not known at this time how many Claimants will file claims or how many of those Claimants who file claims will proceed to Mediation and ADR phases of the DRP, it is difficult to determine how many attorneys will be needed for the Attorney Panel. Accordingly, within 30 days of the Effective Date, Class Counsel will designate an initial Attorney Panel comprised of no fewer than 25 attorneys based in different parts of the country. Class Counsel shall thereafter appoint additional attorneys to the Attorney Panel, if necessary.
*7 (Settlement Stip. §§ 7.6A(1)(a)-(d).) The panel was timely established and eventually grew to approximately 75 attorneys. (Declaration of Linda D. Friedman dated Dec. 7, 1999(“Friedman Decl .”) ¶ 5.)
The Moving Plaintiffs allege that Class Counsel violated an unspecified covenant by failing to provide a list of members of the Attorney Panel during the Initial Submission stage although the Moving Plaintiffs admit that § 7.6A(1)(f) of the Stipulation, which states that “Claimants will be given the list of attorneys on the Attorney Panel from which they may select an attorney,” does not specify a date by which this must happen. There is no evidence that Class Counsel failed to provide the Attorney Panel to class members in a timely manner or in any way sought to undercut the usefulness and availability of the list. Instead, Spriggs & Davis continue to make the same type of unsupported allegations for which they were reprimanded by Judge Motley.
For example, Class Counsel presented information concerning the Attorney Panel at information sessions in fourteen cities between April and June of 1999 before the Initial Submissions were filed. (Vogt Decl. ¶ 10.) Class Counsel later sent a letter on November 15, 1999 to every claimant who had not signed a contingency agreement with them before Smith Barney responded to the Initial Submissions which read:
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Martens v. Smith Barney, Inc., Not Reported in F.Supp.2d (2003)
As Class Counsel, we are available to counsel you regarding Smith Barney’s response to your claim at no charge to you, or you may select a private attorney. For your convenience, we have enclosed a list of attorneys from whom you may choose. These attorneys were invited by Class Counsel to serve on the panel and have attested that they meet the standards for representation approved by Judge Motley. You may, of course, select any other attorney you wish.
(Ex. A to Vogt Decl.; Vogt Decl. ¶ 5.) Class Counsel also took steps to advise class members of the Attorney Panel at later stages of the DRP, including sending a letter to claimants who Class Counsel could not represent at Mediation recommending that they obtain counsel and transmitting a copy of the Attorney Panel. (Second Supplemental Declaration of Linda D. Friedman dated Mar. 29, 2002 (“2d Supp. Friedman Decl.”) ¶ 5; Ex. B to 2d Supp. Friedman Decl.) There is no evidence that Class Counsel failed to live up to any of its responsibilities with regard to forming or transmitting the Attorney Panel.

different facts and do not apply to this case. In Dunn v. H.K. Porter Co., Inc., 602 F.2d 1105, 1109 (3d Cir.1979), the Third Circuit Court of Appeals found that “When a contingent fee contract is to be satisfied from a settlement fund approved by the trial judge ... the court has an even greater necessity to review the fee arrangement....” No such common fund is at issue in this case from which the Claimant’s awards and Class Counsel’s fees must be settled. Any contingent fee would be paid out of any amounts paid by Smith Barney in the DRP and would not be paid out of a common settlement fund. Similarly, in Alexander v. Chicago Park District, 927 F.2d 1014 (7th Cir.1991), an attorney also sought reimbursement from a common fund. When the attorney then sought to enforce contingent fee agreements in contravention of the district court’s disbursement order, the district court found the attorney in contempt and this ruling was upheld by the Seventh Circuit Court of Appeals.
In this case, contingent fees in this complex settlement were appropriate. There was basic work for which Class Counsel were paid including its successful resolution of the class action and obtaining systemic relief for the class. For the late stages of the individualized DRP, contingent fees, which could be paid either to Class Counsel or to outside counsel, provided a measure to assure continued quality representation for the individual Claimants.

B.
[3] The Moving Plaintiffs next claim that Class Counsel’s contingent fee agreements and the terms of Class Counsel’s retainer breach Class Counsel’s unspecified fiduciary duties to the class pursuant to Federal Rule of Civil Procedure 23. The Moving Plaintiffs argue, first, that the contingent fee system approved by Judge Motley is inherently contrary to the fiduciary obligations of Class Counsel. Plainly, this could not be part of a motion to enforce the Settlement Agreement approved by Judge Motley. It is an effort to overturn the settlement without satisfying the stringent requirements of Rule 60. In any event, there is no support for this argument.
*8 Section 7.A6(1)(i) of the Stipulation specifically provides, “Nothing in the Settlement Stipulation will prohibit any attorney (including Class Counsel) from entering into a fee agreement with any Claimant.” Panel attorneys were required, however, to agree in writing not to charge a fee to any plaintiff who did not prevail at either of the latter two stages of the DRP. (Stip. § 7.6A(2).) The Stipulation thus explicitly authorizes contingent fee agreements with Claimants.3

3

The cases cited by the Moving Plaintiffs, in addition to

having been decided outside this Circuit, entail wholly

Moreover, there is no evidence supporting the Moving Plaintiffs’ claim that Class Counsel’s 25% contingent fee was excessive, especially as compared with the firm’s customary charge of 33 1/3%. (Ex. E to 2d Supp. Friedman Decl.; 2d Supp. Friedman Decl. ¶ 10.) The fact that Class Counsel is to receive additional compensation from Smith Barney, (See generally Stip. § 11.1), as approved by Judge Motley, does not effect the fairness of the contingent fee agreement. Moreover, Claimants were apprised of Class Counsel’s additional compensation via the Stipulation. (See Stip. § 11.1.)
The additional 10% fee that Class Counsel would receive was payable by Smith Barney. The amount was calculated on the total damages (excluding attorneys’ fees and costs) recovered in the DRP. It was specifically disclosed to the class members in the Stipulation at ¶ 11.1 and was part of the fee arrangement approved by Judge Motley. It was not misleading for Class Counsel to tell class members that it would take their cases for 25% rather than their customary 33 1/3% because that was true. Class Counsel would have gotten the 10% fee irrespective of their work or an individual class member’s DRP case, and the 10% was a reasonable way of compensating Class Counsel for having obtained a settlement with the DRP feature. The payment was wholly contingent on the success of the DRP process. With respect to working on an individual class member’s case in the latter two stages of the DRP, Class Counsel would be performing work (and possibly
6

Martens v. Smith Barney, Inc., Not Reported in F.Supp.2d (2003)

foregoing the opportunity to do other work) at a rate of 25% which was less than its customary rate for that representation.
The Moving Plaintiffs also take issue with ¶ 10 of the Contingent Fee Agreement that Class Counsel entered into with those class members who Stowell & Friedman agreed to represent after the Initial Submission phase of the DRP. (See Contingent Fee Agreement Through Mediation (“Contingent Fee Agreement”) attached as Ex. E to 2d Supp. Friedman Decl.) The Moving Plaintiffs allege that ¶ 10 is unfair because it allows Class Counsel to collect a 25% contingent fee award from class members who Class Counsel represented at the Mediation stage but who, after reaching an impasse, chose to go to ADR with new counsel after discharging Stowell & Friedman. The Court of Appeals directed the Court to examine this contention on remand. See Thomann, 273 F.3d at 172 n. 9.
Class Counsel is correct, however, and ¶ 10 does not award Stowell & Friedman a 25% contingent fee should the Claimant succeed at ADR with other counsel but merely awards Class Counsel a fee calculated on the firm’s prevailing hourly rates and costs incurred should that class member prevail at the Third Stage of the DRP. (Contingent Fee Agreement ¶ 10.) Stowell & Friedman agreed to file a Fee Petition with the Hearing Panel and to seek to require Smith Barney to pay these fees, and any such fees recovered from Smith Barney would be deducted from the amount owed by the Claimant. (Contingent Fee Agreement ¶ 10.) Should the Claimant settle her case after releasing Class Counsel but before the case proceeded to judgment, Class Counsel would be entitled to receive the contingent fee. (Contingent Fee Agreement ¶ 10.) This provision was included in the Contingent Fee Agreement in order to prevent Claimants from releasing Class Counsel after the attorneys obtained a satisfactory settlement offer and then accepting that offer and avoiding paying Class Counsel their deserved fee. (2d Supp. Friedman Decl. ¶ 11.) The provision did not apply if the Claimant actually took her case to judgment in the ADR in which event Class Counsel would be limited by the fee calculated at the firm’s regular hourly rate. If the Claimant did not prevail at ADR and Smith Barney paid no fee, then Class Counsel would receive no fee except for costs.
*9 These provisions are both fair and clearly explained in the Contingent Fee Agreement. Class Counsel does not seek any double recovery for work performed by other attorneys but merely seeks to ensure payment for work done. The provision makes clear that Class Counsel will seek fees and costs from Smith Barney. Class Counsel would only receive the contingent fee from a Claimant who Class Counsel did not currently represent if Class Counsel had represented the Claimant and was released from representing the Claimant and the Claimant

thereafter resolved the claim. This protects Class Counsel and does not unduly burden the Claimant.
The Moving Plaintiffs also allege that the cover letter sent along with draft Claim Forms prepared by Class Counsel was misleading. The letter stated, in part, “We do not advise you to attend the mediation without an attorney. You have the right to select your own attorney, one from the attorney panel compiled by Class Counsel or to continue to use the firm’s services.” (Draft of Claim Form Representation in Mediation dated June 15, 1999 (“cover letter”) attached as Ex. E to Stowell Decl.) Specifically, the Moving Plaintiffs claim that Stowell & Friedman’s statement that Claimants could “continue to use the firm’s services” is misleading because Stowell & Friedman never had a contractual attorney-client relationship with class members and Claimants and were instead being asked to execute a contingent fee retainer for the first time.
The phrase “continue to use the firm’s services” is neither improper nor misleading. Class Counsel had just completed the Initial Submission stage for virtually all Claimants and represented the entire class on the merits and during the negotiation of the Settlement Agreement that created the DRP and set in place certain diversity initiatives at Smith Barney. Each member had in fact been represented by Stowell & Friedman and the letter makes clear that if such a relationship were to continue on an individual level the relationship would involve a contingent fee agreement. The letter is accurate and is not misleading.
Finally, the Moving Plaintiffs argue that Class Counsel breached their fiduciary duty by failing to represent all Claimants throughout the course of the DRP and “cherry picking” those who Class Counsel agreed to represent. The Stipulation made clear, however, that Class Counsel would be unable to represent all Claimants throughout the DRP. (Settlement Stip. §§ 7.6A(1)(b)-(c).) Furthermore, there is simply no evidence that Class Counsel chose to represent only those women whose cases could be easily resolved. For example, Class Counsel persuasively argue that Stowell & Friedman agreed to represent over fifty women at Mediation who had already signed general releases with Smith Barney, thus making it markedly more difficult for Class Counsel to convince Smith Barney to pay the Claimants additional money during the DRP. (Third Supplemental Declaration of Linda D. Friedman dated Dec. 8, 2002 (“3d Supp. Friedman Decl.”) ¶ 13.)
*10 In sum, there was nothing improper about the contingent fee agreement approved by Judge Motley. Nor does Smith Barney’s additional payments to Class Counsel undercut the validity of the agreement. The facts of the agreement and of Smith Barney’s payments to Stowell & Friedman were communicated to class
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Martens v. Smith Barney, Inc., Not Reported in F.Supp.2d (2003)

members in the Stipulation. There was nothing improper about Class Counsel receiving payment for the work they performed even if they did not represent a successful Claimant through the close of her negotiations with Smith Barney or about the cover letter sent to class members. Finally, there is no evidence that Class Counsel chose to represent only those cases that Class Counsel believed could be easily resolved at the later stages of the DRP.
C.
[4] The Moving Plaintiffs argue that Class Counsel violated their duties under the Settlement Agreement by failing to complete additional statistical analyses before the Initial Submission phase and by accepting inadequate electronic data from Smith Barney. Section 11.1 of the Stipulation provides for payment by Smith Barney to Class Counsel in exchange for Class Counsel providing a number of services, including “preparing statistical evidence for Class use.” Nothing in the Stipulation states that such evidence had to be available prior to the Initial Submission stage or at any other specific time during the DRP.
The Moving Plaintiffs contend that they could not make a “knowing choice” about settlement without these statistics. Extensive amounts of information were obtained and analyzed during discovery in a form designed to “protect the personal privacy interests of Smith Barney’s employees and job applicants as well as the overall confidentiality and competitive sensitivity of the information.” (Stip.¶ 1.6.) Prior to reaching a settlement, Class Counsel completed a comprehensive statistical analysis of occupational segregation and wage disparity at Smith Barney. (Supplemental Declaration of Linda D. Friedman dated Apr. 17, 2000 (“Supp. Friedman Decl.”) ¶ 4.) The data was presented at informational meetings across the country in the Spring of 1999, prior to completion of the Initial Submission stage. (Supp. Friedman Decl. ¶ 4.) A report and statistical analyses on discrimination and harassment at Smith Barney was presented at mediation sessions in July 1997. (3d Supp. Friedman Decl. ¶ 6d.) The moving plaintiffs participated in the sessions either in person or by phone. (3d Supp. Friedman Decl. ¶ 6d.) There is no evidence that the statistical analyses were intended to be fully prepared by the time of the Initial Submission phase, or that Moving Plaintiffs were harmed by the lack of such data. Moreover, although the Court of Appeals expressed concern that the analyzed data related only to the years 1994 and 1995, Thomann, 273 F.3d at 172, Class Counsel in fact analyzed a broader range of data collected during both pre-and post-settlement discovery. (3d Supp. Friedman Decl. ¶¶ 6b, 6e.)

*11 Moreover, the Moving Plaintiffs argue that Class Counsel should have developed specific statistical analyses for individual damage claims rather than class-wide data. The data prepared for the national class as a whole was consistent with Class Counsel’s theory of liability in which Smith Barney had employed a nationwide policy of unfettered discretion. (3d Supp. Friedman Decl. ¶ 6g.) This is consistent with the terms of the Stipulation. (See Stip. § 11.1.) Class Counsel also prepared sample Excel grids regarding damages, conducted training sessions for other attorneys, and offered to share their method of calculating individual damages with individual Claimants and their counsel. (3d Supp. Friedman Decl. ¶ 6g.) Furthermore, Claimants engaging in ADR had the opportunity to seek disaggregated data. (3d Supp. Friedman Decl. ¶ 6h; Stip. § 7.14(8).)
The preparation of a nationwide statistical analysis as completed by Class Counsel was consistent with Stowell & Friedman’s obligations under the Settlement Agreement. Class Counsel did not violate any fiduciary duty by failing to disseminate information prior to the Initial Submission stage or by preparing nationwide data rather than analyses aimed at individual claims. Class Counsel has fulfilled its obligations to provide useful and timely data in this case.
D.
[5] The Moving Plaintiffs allege that Smith Barney inappropriately communicated with class members by sending a May 21, 1999 memorandum to Smith Barney Branch Managers. The memorandum stated, “This is a reminder that all registered employees in the Private Client Division must obtain prior approval from the General Counsel’s Office before instituting a securities-related lawsuit or arbitration, or before appearing voluntarily as a witness in such a proceeding, whether or not Smith Barney is named a party.” (May 21, 1999 Memorandum attached as Ex. A to Declaration of Gary Phelan dated Nov. 17, 1999 (“Phelan Decl.”) (emphasis added).) This is another allegation that could not be viewed as part of a motion to enforce the Settlement Agreement because the Moving Plaintiffs do not explain what provision of the Settlement Agreement was allegedly violated. In any event, the charge of impropriety has no merit.
The Moving Plaintiffs allege that the memo, by its terms, clearly covers the act of participation in the DRP and was an effort by Smith Barney to discourage participation in the DRP process. The Court disagrees. The memo, which was directed solely at Branch Managers, clearly applies to “securities-related” litigation and arbitration and not the
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Martens v. Smith Barney, Inc., Not Reported in F.Supp.2d (2003)

type of Title VII suit at issue in this case. Despite this fact, when the issue was raised in the course of the litigation, Smith Barney sent a corrective notice on June 18, 1999 that stated:
This is to clarify that the [policy requiring approval to institute securities-related litigation or arbitration], which was republished in the May 21, 1999 edition of the Weekly Branch Announcements, only applies to lawsuits or arbitrations in which there are securities-related issues. Clearly, it does not apply to employees bringing a discrimination claim or any other employment claim against Solomon Smith Barney or any other broker-dealer.
*12 (June 18, 1999 Memorandum attached as Ex. E to Phelan Decl.)
Moreover, Smith Barney argues persuasively that the Moving Plaintiffs have put forth no evidence that any class member was discouraged from participating in the DRP as a result of the May 21, 1999 Memorandum. Smith Barney is correct that the declaration of Guita Bahramipour, a former Smith Barney employee in California, stating that she did not file a claim in the lawsuit because of a threat from her Branch Manager, does not support Class Counsel’s argument. (Declaration of Guita Bahramipour dated July 11, 2002 (“Bahramipour Decl.”) ¶¶ 3, 10–12.) Bahramipour does not claim to have seen the May 21, 1999 Memorandum or that its existence in any way influenced her decision not to file an Initial Submission. While she accuses a Regional Sales Manager of having intimidated her, there is no assertion that the Regional Sales Manager used the memo as a means of harassment or intimidation.
Finally, the Moving Plaintiffs allege that Class Counsel was remiss in failing to bring the improper contact between Smith Barney and the Class to the Court’s attention. Upon learning of the May 19, 1999 Memorandum from a Claimant’s attorney, Class Counsel contacted Smith Barney and conducted an investigation into the alleged distribution of the memorandum and its potential effects on class members. (Friedman Decl. ¶ 30.) Class Counsel later worked with Smith Barney to distribute the clarifying memorandum. (Friedman Decl. ¶ 30.) In view of the fact that there was simply nothing inappropriate about the May 19, 1999 memorandum, Class Counsel certainly cannot be faulted for its efforts and the Moving Plaintiffs’ allegations that Class Counsel failed to take necessary measures in response to the memorandum’s distribution are without merit.

E.
[6] The Moving Plaintiffs argue that the Mediation stage of the DRP has not been carried out in accordance with the Settlement Agreement and that Class Counsel’s performance has been inadequate with regard to the Mediation stage. However, as of December 6, 2002, less than 100 of the initially filed 1,900 claims had not been resolved, and of those, 30 to 35 had already completed Mediation. (2d Supp. Stowell Decl. ¶ 2.) The fact that some women have not yet participated in the Mediation stage of the DRP does not, contrary to the Moving Plaintiffs’ argument, undercut the validity of the entire process. The Moving Plaintiffs’ attempt to have this Court declare the releases of those class members who were represented by Class Counsel at Mediation declared “voidable” cannot succeed. There is nothing in the Moving Plaintiffs’ argument demonstrating that Class Counsel violated the Stipulation or any fiduciary duty to the class.
The Moving Plaintiffs’ arguments are unpersuasive and are not properly before this Court. Section 16.9A of the Stipulation specifically states that the Court will not review individual claims pursued through the DRP. Moreover, the arguments advanced by the Moving Plaintiffs regarding the experiences of five women at the Mediation stage of the DRP present no justification for the Court to void other resolutions obtained by Class Counsel during Mediation.
i.
*13 The Moving Plaintiffs allege that Class Counsel “abandoned” Bette Laswell as a client. The evidence does not support the allegation but rather shows a breakdown in the attorney-client relationship. Under the circumstances Class Counsel urged Ms. Laswell to obtain new counsel and did not charge her for their services. In any event, Ms. Laswell’s situation would not be a basis for voiding the Settlement Agreement. Ms. Laswell’s case does not support a claim of any class-wide defects in the Mediation process given the fact that Ms. Laswell was not a member of the class because she was never employed by Smith Barney. (2d Supp. Stowell Decl. ¶¶ 4–5.) She was, however, a party to the lawsuit and was represented by Stowell & Friedman. (2d Supp. Stowell Decl. ¶¶ 4–11.) In view of her unique circumstances, the Settlement Agreement provided for binding mediation solely for Ms. Laswell, (Stip. § 12.5), and for her to receive a $50,000 incentive payment. (Stip. § 12.2.) Moving Plaintiffs

9

Martens v. Smith Barney, Inc., Not Reported in F.Supp.2d (2003)

simply show no breach of the Stipulation with regard to Ms. Laswell and her case offers no reason to set aside the Mediations performed on behalf of class members.
ii.
Laura Sweezey was represented by Class Counsel in Mediation with Smith Barney in approximately November 2000. (Declaration of Laura Sweezey dated May 23, 2002 (“Sweezey Decl.”) ¶ 18; 3d Supp. Friedman Decl. ¶ 2.) After a lengthy mediation, Sweezey determined that the parties had reached an impasse and rejected what she considered to be Smith Barney’s inadequate offer despite Class Counsel’s advice to continue negotiating. (Sweezey Decl. ¶¶ 22–28; Friedman Decl. ¶ 2.) Sweezey subsequently hired two successive new counsel and was in arbitration as of May 2002. (Sweezey Decl. ¶¶ 22–28; Friedman Decl. ¶ 2.) Although Class Counsel did not achieve the result Sweezey wanted at Mediation, nothing in the record demonstrates a breach of Class Counsel’s fiduciary duty or responsibility under the Settlement Agreement with regard to their representation of Ms. Sweezey.
iii.
Cynthia Van Lammeren was represented at Mediation by Class Counsel after having been represented by another attorney at the Initial Submission stage. (Declaration of Cynthia Van Lammeren dated May 16, 2002 (“Van Lammeren Decl.”) ¶¶ 2, 8–15; 3d Supp. Friedman Decl. ¶ 3.) Ms. Van Lammeren has several complaints about her representation at the Mediation, one of which was that a piece of allegedly damning evidence about sexual harassment was never mentioned at the Mediation with Smith Barney. (Van Lammeren Decl. ¶¶ 18–20.) Class Counsel counter that they did not consider the claim credible in view of the Claimant’s failure to include the inflammatory allegation in her initial submission where she purported to lay out the whole story. Class Counsel chose not to raise the issue at the Mediation for strategic reasons. (3d Supp. Friedman Decl. ¶ 3c.) Under the Stipulation, the strategic decisions in individual Mediations are not a proper basis for review in this Court, and there is nothing about this incident that would justify voiding the Settlement Agreement.
iv.
*14 Jean Carpenter rejected an allegedly substantial

award offer from Smith Barney after the Initial Submission stage before Smith Barney, in Class Counsel’s opinion, realized that important aspects of Ms. Carpenter’s claim occurred prior the class period. (3d Supp. Friedman Decl. ¶ 4a; Declaration of Jean Severson Carpenter dated June 2002 (“Carpenter Decl.”) ¶ 5.) Smith Barney subsequently realized its mistake and informed Class Counsel that Mediation was unnecessary. (3d Supp. Friedman Decl. ¶ 4a.) At Mediation, Smith Barney’s offer did not change. (3d Supp. Friedman Decl. ¶ 4a; Carpenter Decl. ¶ 11.)
The Moving Plaintiffs argue that Class Counsel should have initiated an impasse process for Ms. Carpenter pursuant to § 7.13(5) of the Stipulation. Class Counsel claim not to have done so because Class Counsel believed that the best resolution for Ms. Carpenter could be won through continued negotiation rather than by seeking a Mediator’s Proposal which Class Counsel felt would likely recommend a lower settlement amount. (3d Supp. Friedman Decl. ¶ 4b.) After releasing Stowell & Friedman in January 2002 and hiring new counsel, Ms. Carpenter eventually accepted Smith Barney’s pre-Mediation offer. (Carpenter Decl. ¶¶ 19–20.) Whether to seek an impasse is a strategic decision left to Class Counsel and their clients in each individual case. The adequacy of Class Counsel’s representation is supported by the fact that Ms. Carpenter hired counsel and got the same result that Class Counsel had been able to achieve. In any event, the Settlement Agreement did not contemplate that this Court would review the results in individual Mediations or ADR proceedings and Ms. Carpenter’s case provides no basis for vacating the Settlement Agreement or the individual awards.
v.
Finally, the Moving Plaintiffs make two arguments on behalf of Patricia Clemente. Ms. Clemente is a named plaintiff and class representative in this case. She claims that she should not be bound by her agreement because a provision was omitted in the final draft of the Stipulation whereby a class representative who went to Arbitration could not receive an award lower than that of Smith Barney’s last offer. (Declaration of Patricia A. Clemente dated July 15, 2002 (“Clemente Decl.”) ¶¶ 13–14.) Class Counsel deny that such a provision was ever included in any draft of the Stipulation. (3d Supp. Friedman Decl. ¶ 5b.) Ms. Clemente, as a class representative, should have known the contents of the final Stipulation and is bound by the Settlement Agreement which contains no such guarantee.
The Moving Plaintiffs also argue that Ms. Clemente was wrongly denied the opportunity to submit statements at
10

Martens v. Smith Barney, Inc., Not Reported in F.Supp.2d (2003)

her Mediation from persons supporting her claim that she should be made a securities broker. (See Clemente Decl. ¶¶ 16–17.) Class Counsel recalls no such request prior to Mediation. (3d Supp. Friedman Decl. ¶ 5a.) In any event, Smith Barney agreed to accept Ms. Clemente into the broker training program. (3d Supp. Friedman Decl. ¶ 5a.) There is nothing about the allegations made in connection with Ms. Clemente’s case that would cause the Court to find any systemic fault in Class Counsel’s performance in the Mediation process.
F.
*15 [7] The Moving Plaintiffs allege that Class Counsel’s execution of confidentiality agreements for Claimants in the DRP violates an unspecified fiduciary duty to the class as a whole. The Moving Plaintiffs ask that the settlement amounts of each resolved claim be made known to all other Claimants and their counsel. The Moving Plaintiffs also ask the Court to deem all releases voidable.
There is no basis for the Moving Plaintiffs’ assertion of an inherent conflict in Class Counsel’s dual roles as both counsel to individual plaintiffs and to the class on the ground that Class Counsel has not shared information on individual settlements with all class members. The Settlement Agreement specifically provides that all Mediations shall remain confidential. (Stip.¶ 7.13(4).) Class Counsel argue correctly that they are in no different position from any other attorney representing a client who agrees to be bound by a confidentiality agreement. (3d Supp. Friedman Decl. ¶ 8.) Moreover, Class Counsel argue persuasively that disclosing the settlement amounts for each Claimant would serve as a disincentive for Smith Barney to reach settlements favorable to Claimants.
Moreover, as discussed above, Class Counsel has provided private attorneys with extensive data and training with which to evaluate settlement offers. (See 3d Supp. Friedman Decl. ¶¶ 6–7.) As the Moving Plaintiffs concede, Claimants have subpoena power at the ADR stage of the DRP and could, at that time, subpoena witnesses or evidence regarding other settlements reached over the course of the DRP. There is no conflict in Class Counsel’s roles as counsel to individual Claimants and to the class in any way, including with regard the confidentiality of settlement information.
G.
The Moving Plaintiffs contend that Class Counsel and

Smith Barney have failed to live up to their obligations under § 8.2(1)(1) of the Settlement Stipulation with regard to the establishment of an equitable customer account distribution policy. Section 8.2(1)(1) provides:
The Firm shall develop and distribute to its retail branch offices non-discriminatory standards for distributing lists of potential customers to Financial Consultants and for distributing to Financial Consultants within a retail branch office customer accounts held by Financial Consultants who leave the Firm. Such standards shall be designed to be fair and equitable to Financial Consultants still employed in the retail branch office while in all events serving the best interests of the Firm’s customers. The Office of Diversity shall review such guidelines periodically to make certain they are non-discriminatory.
The Moving Plaintiffs take issue with an Account Distribution Policy distributed in Smith Barney’s Walnut Creek, California office in July 2000. (Account Distribution Guideline Memo dated July 7, 2000 (“Distribution Policy”) attached as Ex. A to Declaration of Guita Bahramipour sworn July 11, 2002.) This policy was an update of an earlier Distribution Policy and was published in Smith Barney’s Weekly Branch Announcements. (Declaration of Kevin McManus sworn Dec. 9, 2002 (“McManus Decl.”) ¶ 7.) The Distribution Policy has continued to be updated. (McManus Decl. ¶ 8.)
*16 The Moving Plaintiffs allege that none of the eight factors listed in the Distribution Policy to be taken into consideration for account distribution correct past gender discrimination. The Moving Plaintiffs also argue that the Distribution Policy improperly accounts for subjective factors that provide managers with the opportunity to discriminate.
[8] There is no evidence that Class Counsel or Smith Barney have failed to live up to any obligation under the Settlement Stipulation with regard to the Account Distribution Policy. The Policy has been written and revised numerous times. (McManus Decl. ¶¶ 5–8.) The declaration of Smith Barney employee F. Norm Bahramipour stating that he had difficulty finding the Distribution Policy on the company’s internal web site is not persuasive in view of the fact that the document was distributed through the Weekly Branch Announcements and his wife, Guita Bahramipour, made clear that employees were able to obtain copies of the policy upon

11

Martens v. Smith Barney, Inc., Not Reported in F.Supp.2d (2003)

request. (Bahramipour Decl. ¶¶ 18, 26.; Declaration of F. Norm Bahramipour dated July 12, 2002 ¶¶ 1–6.)) Smith Barney has satisfied its obligation under the Stipulation to distribute copies of the policy to its retail branch offices.
Moreover, the Moving Plaintiffs arguments as to the substance of the Distribution Policy are unpersuasive. The Distribution Policy is not prohibitively subjective but instead takes into account both objective and subjective components, as Smith Barney argues. The factors include, for example, that the Financial Consultant to receive the account “must have signed, or be ready to sign, the Account Referral/Assigned Lead Agreement”; “must be licensed in the state where the client resides”; “must have a good compliance record and strong work habits.” (Distribution Policy.) Also, if the Financial Consultant has recently received accounts through the “Franchise Protection Program” or a partnership agreement, the length of time that the Financial Consultant has serviced the accounts will be taken into account in determining whether that employee should receive other accounts until such time as other employees in the branch have received an equivalent distribution of accounts. (Distribution Policy.) The Settlement Stipulation explicitly provides not only that Smith Barney develop “fair and equitable” account distribution policies, (Stip.¶ 8.2(1)(l)), but also that “[n]otwithstanding any provision to the contrary in the Settlement Stipulation, Smith Barney shall at all times retain managerial discretion....” (Stip.¶ 9.1.) There is nothing discriminatory about the policies and they appropriately limit managerial discretion within the confines of the Settlement Stipulation.
Finally, the Moving Plaintiffs argue that Class Counsel has taken inadequate steps to remedy allegations of gender bias in account distribution in the Walnut Creek office. However, upon learning of complaints to this effect, Class Counsel visited the office and met with office employees and senior Smith Barney officials about the problem. (3d Supp. Friedman Decl. ¶ 9.) Class Counsel subsequently arranged for Smith Barney to audit the office redistribution policy and an independent human resources consultant was appointed to investigate the matter. (3d Supp. Friedman Decl. ¶ 9.) In sum, there is no evidence of any violation of Smith Barney’s or Class Counsel’s responsibilities as to the implementation of a gender neutral Account Distribution Policy.
H.
*17 [9] The Moving Plaintiffs make unsupported claims that Class Counsel manipulated class members who joined Spriggs & Davis’ “motions to enforce”. The claims state no violation of the Settlement Stipulation or any fiduciary duty. They are entirely without merit.

The Moving Plaintiffs argue that class members were unsuccessful in obtaining copies of the Initial Submission forms of other class members from Class Counsel in anticipation of Mediations. Class Counsel claims that no such forms were provided to class members because the Initial Submission forms contained highly personal information that other counsel were not entitled to see and which many Claimants explicitly wished to keep confidential. (3d Supp. Friedman Decl. ¶¶ 10–11; Ex. K to 3d Supp. Friedman Decl.) Moving Plaintiffs claim that Class Counsel later offered to share the Initial Submissions with Marianne Dalton, apparently in an effort to keep her from joining the initial Motion to Enforce. However, the Moving Plaintiffs have not submitted a sworn statement from Ms. Dalton and Class Counsel swears that Ms. Dalton was treated in the same way as other clients represented by Class Counsel. (3d Supp. Friedman Decl. ¶ 10.) Similarly, the Moving Plaintiffs’ contentions as to Class Counsel’s alleged manipulation of Cynthia Van Lammeren aimed at convincing her to remove her name from an amicus brief submitted to the Second Circuit Court of Appeals are inconsistent with Ms. Lammeren’s sworn statement submitted to the Court of Appeals. (Compare Declaration of Cynthia Van Lammeren dated Oct. 11, 2000 ¶¶ 1–9 attached as Ex. C to 3d Supp. Friedman Decl., with Van Lammeren Decl. ¶¶ 4–7.)
There is no evidence that Class Counsel discriminated against those class members allied with Spriggs & Davis. The Moving Plaintiffs have not demonstrated a breach of the Settlement Stipulation or any fiduciary duty of Class Counsel in this regard.
I.
The Moving Plaintiffs claim that Class counsel failed to provide appropriate assistance to class members represented by other counsel. The Moving Plaintiffs cite no provision of the Settlement Agreement that Class Counsel violated in allegedly so doing. Instead, the Moving Plaintiffs merely restate grievances that the Court has previously addressed.
The Moving Plaintiffs claim that there are many things Class Counsel should have done to “level the playing field” between those women represented by Class Counsel and those class members who were either representing themselves pro se or who had retained other counsel. As the Court has explained, Class Counsel have taken repeated steps to assist those class members and their attorneys who were not directly represented by Class Counsel at all steps of the DRP. In addition to the assistance discussed above, Class Counsel submitted an
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Martens v. Smith Barney, Inc., Not Reported in F.Supp.2d (2003)

amicus brief to an ADR Panel that was wrongly refusing to allow a Claimant to submit class-wide evidence and won reversal of the Panel’s earlier position. (3d Supp. Friedman Decl. ¶ 12.)
*18 The Moving Plaintiffs merely submit a list of actions that they would have liked Class Counsel to take. This list is nothing more than a baseless attempt to discredit Class Counsel’s actions. The Moving Plaintiffs offer only one alleged example of Class Counsel’s failure to aid other Claimants and attorneys that is supported by an affidavit from the Claimant. The Moving Plaintiffs claim that Jean Carpenter settled her claim one day after learning that an ADR Panel had rejected statistical evidence offered by Claimant Edna Broyles and that the same fate would befall her should she proceed to arbitration. (Carpenter Decl. ¶ 20.) Both parties agree that Ms. Carpenter was mistaken because Ms. Broyles had stipulated that she would not submit evidence at her arbitration. Ms. Carpenter was represented by her own counsel and there is nothing in the Settlement Agreement that required Class Counsel to disseminate information about Ms. Broyles’ arbitration at any point, and certainly not within 24 hours.
J.
The Moving Plaintiffs make a final, catch-all objection to Class Counsel’s performance that largely recaps the Moving Plaintiffs’ previous arguments that the Court has already rejected. In addition to these arguments, the Moving Plaintiffs complain about Class Counsel’s “seeming advocacy” for Smith Barney in connection with hearings before the New York Attorney General. Class Counsel believed, however, that it was in the best interest of the class to work together with Smith Barney at a time when an initial draft settlement had been presented to Judge Motley but a final agreement had not been yet reached. (2d Supp. Stowell Decl. ¶ 3.) In response to the Moving Plaintiffs’ allegation that Class Counsel improperly pre-screened class members’ comments at the hearing, Class Counsel state that they did so out of concern that any statements by Claimants at the hearing could potentially be used against them if inconsistent with statements made in the DRP. (2d Supp. Stowell Decl. ¶ 3.) In order to protect the best interests of the class and the individual Claimants, Class Counsel thus asked those women who wished to speak to advise them of the content of their statements before appearing at the hearing. (2d Supp. Stowell Decl. ¶ 3.) There is nothing improper in Class Counsel’s conduct with regard to the hearing before the New York Attorney General or in any other regard alleged in the final section of the Moving Plaintiffs’ Motion to Supplement their Motion to Enforce.

In sum, the motions to enforce, while denied on the ground of being procedurally improper, fails to allege any breach of fiduciary duty on the part of Class Counsel or any breach of the Settlement Agreement by Class Counsel or Smith Barney. The Court has reviewed all of the Moving Plaintiffs’ allegations and finds them to be without merit.
IV.
[10] The Moving Plaintiffs seek extensive discovery with which to supplement their arguments. In moving for such discovery, the Moving Plaintiffs rely on the Court of Appeals’ statement in Martens v. Thomann that, “to the extent that the motion, once properly characterized, requires resolution of disputed factual issues, the district court will have the opportunity on remand to conduct an evidentiary hearing and to allow the parties discovery as appropriate.” See Thomann, 273 F.3d at 173 (emphasis added). The Moving Plaintiffs’ failure to properly characterize the motion and, instead, to simply refile two more “motions to enforce” renders their application for discovery moot. There is no reason to allow discovery when the Moving Plaintiffs have failed to file a procedurally proper motion.
*19 Moreover, the Moving Plaintiffs seek particularly invasive discovery that would delve into facts including the identities of class members, their fee agreements with Class Counsel, and individual settlement amounts. There is no reason to provide the Moving Plaintiffs with this information when they have not filed a procedurally proper motion. Even if the Moving Plaintiffs had done so, they have not demonstrated a need to resolve any disputed questions of fact that would merit the requested discovery. Having reviewed the Moving Plaintiffs’ third and fourth motions to enforce, the Court finds no argument that would warrant such relief.
It is clear that many of the Moving Plaintiffs’ arguments go not toward enforcing the Settlement Stipulation but to overturning it. Courts have denied intervention directed at overturning settlments based on the papers alone where an insufficient basis for such intervention was shown. D’Amato, 236 F.3d at 84. In any event, some showing of at least the prima facie validity of the claim which would warrant the relief sought by the Moving Plaintiffs should be needed before imposing the burden and cost of the discovery sought. No such showing has been made in this case.
Allowing the Moving Plaintiffs discovery would merely waste the resources of the parties and of the Court. The parties to the Settlement Agreement are entitled to finality and the Court will not prolong the case through a fifth
13

Martens v. Smith Barney, Inc., Not Reported in F.Supp.2d (2003)

motion to enforce. The motion for leave to conduct discovery is therefore denied.

justify granting the relief sought in the motion to enforce. The motion for leave to conduct discovery is denied.

CONCLUSION
Any remaining arguments of the parties are either moot or without merit. For the reasons explained above, the “motion to enforce” is denied. The “motion to supplement” has been granted only to the extent the Court has considered all of the evidence and arguments contained in that motion, but those submissions do not

SO ORDERED.
Parallel Citations 92 Fair Empl.Prac.Cas. (BNA) 837
	  

14

 
 CLOSED
U.S. District Court United States District Court for the Southern District of New York (Foley
Square) CIVIL DOCKET FOR CASE #: 1:96−cv−03779−JGK

Martens, et al v. Smith Barney, Inc., et al Assigned to: Judge John G. Koeltl Demand: $0 Case in other court: U.S.C.A. 2nd Cir., 04−00890−cv
02−07632
03−07744. Cause: 42:2000e Job Discrimination (Employment)
Plaintiff

Date Filed: 05/20/1996 Date Terminated: 07/11/2003 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Pamela K. Martens TERMINATED: 05/15/2000

represented by Gary E. Phelan Outten &Golden,LLP (NYC) 3 Park Avenue, 29th Floor New York, NY 10016 (212)−245−1000 Fax: (212)−977−4005 Email: gp@outtengolden.com TERMINATED: 05/15/2000 LEAD ATTORNEY

Joseph D. Garrison Garrison, Phelan, Levin−Epstein &Penzel 405 Orange Stret New Haven, CT 06511 (203) 777−4425 TERMINATED: 05/15/2000 LEAD ATTORNEY

Linda Friedman Leng Stowell et al. 321 S. Plymouth Court, 14th Fl. Chicago, IL 60604 TERMINATED: 09/10/1997 LEAD ATTORNEY

Matthew Eli Moloshok Hellring Lindeman Goldstein &Siegal One Gateway Center Newark, NJ 07102−5386 (201) 621−9020 TERMINATED: 09/10/1997 LEAD ATTORNEY

Michele Lang Palter Garrison, Phelan, Levin−Epstein &Penzel 405 Orange Stret New Haven, CT 06511 (203) 777−4425 TERMINATED: 05/15/2000 LEAD ATTORNEY

Plaintiff
Judith P. Mione TERMINATED: 05/15/2000

represented by Gary E. Phelan (See above for address) TERMINATED: 05/15/2000 LEAD ATTORNEY

Plaintiff Roberta O'Brien Thomann on behalf of themselves and all others similarly situated
Plaintiff Robin Tompkins
Plaintiff Patricia Hanlon

Joseph D. Garrison (See above for address) TERMINATED: 05/15/2000 LEAD ATTORNEY
Linda Friedman (See above for address) TERMINATED: 03/27/1998 LEAD ATTORNEY
Matthew Eli Moloshok (See above for address) TERMINATED: 03/27/1998 LEAD ATTORNEY
Michele Lang Palter (See above for address) TERMINATED: 05/15/2000 LEAD ATTORNEY
represented by Kelly M. Dermody Lieff Cabraser Heimann &Bernstein, LLP( SF ) 275 Battery Street, 30th Floor San Francisco, CA 94111 (415)−956−1000 Fax: (415)−956−1008 Email: kdermody@lchb.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda Friedman (See above for address) LEAD ATTORNEY
Matthew Eli Moloshok (See above for address) LEAD ATTORNEY
represented by Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda Friedman (See above for address) LEAD ATTORNEY
Matthew Eli Moloshok (See above for address) LEAD ATTORNEY
represented by Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kent Spriggs Spriggs Law Firm 324 West College Avenue

V. Defendant Smith Barney, Inc. TERMINATED: 07/24/1998 also known as Shearson Lehman Brothers Holdings, Inc.. also known as Shearson/American Express also known as Shearson Lehman Brothers
Defendant Shearson Lehman Hutton TERMINATED: 07/24/1998 also known as Shearson Lehman Brothers Defendant Smith Barney/Shearson, Inc. TERMINATED: 07/24/1998
Defendant James Dimon TERMINATED: 07/24/1998
Defendant Nicholas Cuneo TERMINATED: 07/24/1998 Defendant The New York Stock Exchange Defendant

Tallahassee, FL 32301−1406 (850) 224−8700 LEAD ATTORNEY
Linda Friedman (See above for address) TERMINATED: 09/25/2002 LEAD ATTORNEY
Matthew Eli Moloshok (See above for address) LEAD ATTORNEY
represented by Brad Scott Karp Paul, Weiss, Rifkind, Wharton &Garrison, Esqs. 1285 Avenue of the Americas New York, NY 10019 212−373−3000 LEAD ATTORNEY
Daniel John Toal Paul, Weiss, Rifkind, Wharton &Garrison LLP (NY) 1285 Avenue of the Americas New York, NY 10019 (212)−373−3869 Fax: (212)−492−0869 Email: dtoal@paulweiss.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brad Scott Karp (See above for address) LEAD ATTORNEY
represented by Brad Scott Karp (See above for address) LEAD ATTORNEY
represented by Brad Scott Karp (See above for address) LEAD ATTORNEY

The National Association of Securities Dealers Claimant Phyllis Jamison
All Plaintiffs Plaintiffs
Plaintiff Lorraine Parker
Plaintiff Bette Laswell
Plaintiff Jennifer Alvarez
Plaintiff Marianne Dalton
Plaintiff Patricia Clemente
Plaintiff Simone Schwendener

represented by Phyllis Jamison P.O. Box 343 Clinton, MT 59825 (406) 825−2004 PRO SE
represented by Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kent Spriggs (See above for address) LEAD ATTORNEY
represented by Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kent Spriggs (See above for address) LEAD ATTORNEY
represented by Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Cara Beth Walker
Plaintiff Edna Broyles
Plaintiff Edna Tompkins TERMINATED: 11/08/1996 Plaintiff Stephanie Rodruck
Plaintiff Danielle Saccone
Plaintiff Beverly Trice
Plaintiff Lori Hurwitz
Plaintiff

represented by Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Montanez Res. 88 Coachlight Circle Prospect, CT 06712 LEAD ATTORNEY
represented by Gary E. Phelan (See above for address) LEAD ATTORNEY
Joseph D. Garrison (See above for address) LEAD ATTORNEY
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michele Lang Palter (See above for address) LEAD ATTORNEY
represented by Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lydia Klein
Plaintiff Eileen Valentino
Plaintiff Patricia Hanloin TERMINATED: 11/08/1996 Plaintiff Teresa Tedesco
Plaintiff Mary Ann Cabell
Plaintiff Mary Ann Cabell TERMINATED: 11/09/1996 Plaintiff Ardis Vinnecour
Plaintiff Tracy Gibbs

represented by Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kent Spriggs (See above for address) LEAD ATTORNEY
represented by Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kent Spriggs (See above for address) LEAD ATTORNEY
Robert Z. Dobrish Hoffinger, Friedland, Dobrish &Stern, P.C. 110 East 59th Street New York, NY 10022 (212) 421−4000 LEAD ATTORNEY
represented by Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kent Spriggs (See above for address) LEAD ATTORNEY
represented by Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kelly M. Dermody (See above for address) LEAD ATTORNEY

Plaintiff Lisa Mays

ATTORNEY TO BE NOTICED
represented by Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kent Spriggs (See above for address) LEAD ATTORNEY

V. Defendant James Dimon TERMINATED: 11/08/1996
Defendant Shearson Lehman Hutton Inc TERMINATED: 11/08/1996
Defendant Smith Barney/Shearson, Inc TERMINATED: 11/08/1996

represented by Brad Scott Karp (See above for address) LEAD ATTORNEY
represented by Brad Scott Karp (See above for address) LEAD ATTORNEY
represented by Brad Scott Karp (See above for address) LEAD ATTORNEY

Date Filed # 05/20/1996 05/20/1996 06/11/1996
07/02/1996 07/22/1996 07/22/1996 07/22/1996 07/22/1996

Docket Text
1 COMPLAINT filed; Summons issued and Notice pursuant to 28 U.S.C. 636(c); Jury Trial Dem. FILING FEE $ 120 RECEIPT # 262443 (sc) (Entered: 05/21/1996)
It is suggested that the case be classified as complex. Magistrate Judge Bernikow is so Designated. (sc) (Entered: 05/21/1996)
2 Order setting pretrial conference for the purposes of discussing settlement, motions, discovery schedule and setting a date for trial ; Pretrial conference set for 4:15 9/3/96. ( signed by Judge Allen G. Schwartz ) (lam) (Entered: 06/13/1996)
3 NOTICE OF FILING of Amended Complt. w/ the Clerk of the U.S. District Curt for the Southern Dist. of NY by Pamela K. Martens, Judith P. Mione, Roberta O'Brien Thomann (ls) (Entered: 07/08/1996)
4 NOTICE OF MOTION by Pamela K. Martens, Judith P. Mione and Roberta O'Brien Thomann through their att'y for Mary Stowell and Linda D. Friedman to appear pro hac vice Return date 9/3/96. (kw) (Entered: 07/23/1996)
4 AFFIDAVIT in support by Mary Stowell of Re: [4−1] motion for Mary Stowell and Linda D. Friedman to appear pro hac vice. (kw) (Entered: 07/23/1996)
4 AFFIDAVIT in support by Linda D. Friedman of Re: [4−1] motion for Mary Stowell and Linda D. Friedman to appear pro hac vice. (kw) (Entered: 07/23/1996)
4 DECLARATION in support by Matthew E. Moloshok, attorney for plaintiffs, of [4−1] motion for Mary Stowell and Linda D. Friedman to appear pro hac vice. (kw) (Entered: 07/23/1996)

07/22/1996 09/04/1996 09/23/1996 10/17/1996
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5 MEMORANDUM by plaintiffs throught their attorney in support of [4−1] motion for Mary and Linda D. Friedman to appear pro hac vice. (kw) (Entered: 07/23/1996)
6 ORDER granting [4−1] motion for Mary Stowell and Linda D. Friedman to appear pro hac vice for plaintiffs. SO ORDERED: ( signed by Judge Allen G. Schwartz ) (ae) (Entered: 09/04/1996)
7 Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for Discovery Disputes ( signed by Judge Allen G. Schwartz ) Referred to Magistrate Judge Leonard A. Bernikow (kg) (Entered: 09/24/1996)
8 AMENDED COMPLAINT by Pamela K. Martens, Judith P. Mione, Roberta O'Brien Thomann , (Answer due 10/30/96 for Nat. Asso. of Secur., for The N.Y. Stock Exch., for Nicholas Cuneo, for James Dimon, for Smith Barney/Shear., for Shearson Leh. Hutt., for Smith Barney, Inc. ) amending [1−1] complaint against Lorraine Parker, Bette Laswell, Jennifer Alvarez, Marianne Dalton, Patricia Clemente, Simone Schwendener, Cara Beth Walker, Edna Broyles, Edna Tompkins, Stephanie Rodruck, Danielle Saccone, Beverly Trice, Lori Hurwitz, Lydia Klein, Eileen Valentino, Patricia Hanloin, Teresa Tedesco, Mary Ann Cabell, Mary Ann Cabell, Ardis Vinnecour, Tracy Gibbs, James Dimon, Shearson Lehman Hutt, Smith Barney/Shearso; Summons issued. (djc) (Entered: 10/18/1996)
9 STIPULATION AND ORDER SCHEDULING BRIEFING OF MOTIONS TO DISMISS, pltffs will file their second Amended Complaint on or before 10/17/96, set amended pleadings due for 10/17/96. Defts will have until 10/25/96 to notify pltffs whether they intend to amend their Motions to dismiss. If defts notify pltffs on 10/25/96, that they do not desire to amend their Motions to Dismiss, pltffs will respond to the pending Motions to Dismiss w/in 14 days. If defts desire to amend their Motions to Dismiss, they shall do so on or before 11/25/96; and in such case pltffs will respond to such amended Motions to dismiss w/in 39 days after service , set motion filing deadline for 11/25/96 ( signed by Judge G. Schwartz ); Copies mailed (kg) (Entered: 10/24/1996)
10 CORRECTED SECOND AMENDED COMPLAINT by Pamela K. Martens, Judith P. Mione, Roberta O'Brien Thomann, Lorraine Parker, Bette Laswell, Jennifer Alvarez, Marianne Dalton, Patricia Clemente, Simone Schwendener, Cara Beth Walker, Edna Broyles, Edna Tompkins, Stephanie Rodruck, Danielle Saccone, Beverly Trice, Lori Hurwitz, Lydia Klein, Eileen Valentino, Patricia Hanloin, Teresa Tedesco, Mary Ann Cabell, Mary Ann Cabell, Ardis Vinnecour, Tracy Gibbs , (Answer due 11/5/96 for Smith Barney/Shearso, for Shearson Lehman Hutt, for James Dimon, for Nat. Asso. of Secur., for The N.Y. Stock Exch., for Nicholas Cuneo, for James Dimon, for Smith Barney/Shear., for Shearson Leh. Hutt., for Smith Barney, Inc. ) amending [8−1] amended complaint ; Summons issued. (ba) (Entered: 10/24/1996)
11 NOTICE of CHARGING LIEN − You are hreby Notified tha we, Lewis, Vegosen, Rosenbach &Silber, P.A.... as former attys for plaintiff Cara Beth Walker, claim a lien on the final judgment rendered in the above−styled action and on any recovery of any monies due, owing and/or received pursuant to plaintiff's claims herein through settlement or otherwise. Our lien on the aforesaid judgment and/or recovery is for costs and legal services rendered to plaintiff, Cara Beth Walker, for which we have not been compensated in the above−styled action. The amount of the lien is attorneys fees of $4,031.50 and costs in the amount of $352.65.... (djc) (Entered: 11/06/1996)
12 NOTICE by Pamela K. Martens, Judith P. Mione, Roberta O'Brien Thomann that on November 8, 1996, attys for plaintiffs, filed the attached plaintiffs' consolidated Memorandum in Opposition to Defendants' Motions to Dismiss and Exhibits A−K with the Clerk of the United States District Court for the Southern District of New York. (djc) (Entered: 11/12/1996)
13 CORRECTED SECOND AMENDED COMPLAINT by Pamela K. Martens, Judith P. Mione, Roberta O'Brien Thomann, Lorraine Parker, Bette Laswell, Jennifer Alvarez, Marianne Dalton, Patricia Clemente, Schwendener, Cara Beth Walker, Edna Broyles, Stephanie Rodruck, Danielle Saccone, Beverly Trice,

11/08/1996
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06/26/1997 07/22/1997 08/13/1997

Lori Hurwitz, Lydia Klein, Eileen Valentino, Teresa Tedesco, Mary Ann Cabell, Ardis Vinnecour, Tracy Gibbs, Robin Tompkins, Patricia Hanlon , (Answer due 11/21/96 for Smith Barney, Inc., for Shearson Leh. Hutt., for Smith Barney/Shear., for James Dimon, for Nicholas Cuneo, for The N.Y. Stock Exch., for Nat. Asso. of Secur. ) amending [10−1] amended complaint ; Summons issued. (lam) (Entered: 11/13/1996)
14 MEMORANDUM by Pamela K. Martens, Judith P. Mione, Roberta O'Brien Thomann, Lorraine Parker, Bette Laswell, Jennifer Alvarez, Marianne Dalton, Patricia Clemente, Simone Schwendener, Cara Beth Walker, Edna Broyles, Stephanie Rodruck, Danielle Saccone, Beverly Trice, Lori Hurwitz, Lydia Klein, Eileen Valentino, Teresa Tedesco, Mary Ann Cabell, Ardis Vinnecour, Tracy Gibbs, Robin Tompkins, Patricia Hanlon in OPPOSITION to defts' Motions to Dismiss (not filed). (lam) (Entered: 11/13/1996)
15 NOTICE OF MOTION by Nat. Asso. of Secur. to dismiss count VII of the amended complaint , Return date 11/6/96; attached are papers in support (cd) (Entered: 11/26/1996)
16 CORRECTED MEMORANDUM by Nat. Asso. of Secur. in support of [15−1] motion to dismiss count VII of the amended complaint (cd) (Entered: 11/26/1996)
17 REPLY MEMORANDUM by Nat. Asso. of Secur. re: [15−1] motion to dismiss count VII of the amended complaint (cd) (Entered: 11/26/1996)
18 NOTICE OF MOTION by Smith Barney/Shear. to dismiss count VII of the amended complaint , Return date 11/6/96; attached are papers in support (cd) (Entered: 11/26/1996)
19 MEMORANDUM by Smith Barney/Shear. in support of [18−1] motion to dismiss count VII of the amended complaint (cd) (Entered: 11/26/1996)
20 REPLY MEMORANDUM by Smith Barney/Shear. re: [18−1] motion to dismiss count VII of the amended complaint (cd) (Entered: 11/26/1996)
21 NOTICE OF MOTION by The N.Y. Stock Exch. to dismiss counts VII of the amended complaint , Return date 11/6/96; attached are papers in support (cd) (Entered: 11/26/1996)
22 MEMORANDUM by The N.Y. Stock Exch. in support of [21−1] motion to dismiss counts VII of the amended complaint (cd) (Entered: 11/26/1996)
23 REPLY MEMORANDUM by The N.Y. Stock Exch. re: [21−1] motion to dismiss counts VII of the amended complaint (cd) (Entered: 11/26/1996)
24 MEMORANDUM by Pamela K. Martens in opposition to [15−1] motion to dismiss count VII of the amended complaint, [21−1] motion to dismiss counts VII of the amended complaint (cd) (Entered: 11/26/1996)
Before MJ Bernikow; Pre−trial conference held (cd) (Entered: 12/02/1996)
25 STIPULATION and ORDER, Third party American Broadcasting Companies is allowed to intervene for the limited purpose of opposing entry of a protective order restricting disclosure of discovery material ( signed by Judge Allen G. Schwartz ). (cd) (Entered: 01/09/1997)
26 Notice of reassignment to Judge Constance B. Motley Copy of notice and judge's rules mailed to Attorney(s) of record: Linda Friedman, Matthew Eli Moloshok . (jp) (Entered: 06/30/1997)
27 NOTICE OF MOTION by plaintiffs for leave to file supplemental authority in support of consolidated response to defendants' motions to dismiss (kw) (Entered: 07/25/1997)
28 NOTICE OF MOTION by Pamela K. Martens, Judith P. Mione, Roberta O'Brien Thomann, Lorraine Parker, Bette Laswell, Jennifer Alvarez, Marianne Dalton, Patricia Clemente, Simone Schwendener, Cara Beth Walker, Edna Broyles, Edna Tompkins, Stephanie Rodruck, Danielle Saccone, Beverly Trice, Lori Hurwitz,

08/13/1997
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Lydia Klein, Eileen Valentino, Teresa Tedesco, Ardis Vinnecour, Tracy Gibbs to withdraw as counsel to plaintiff Pamela K. Martens , no return date w. affidavit of service (djc) (Entered: 08/18/1997)
29 MEMORANDUM of LAW by Pamela K. Martens, Judith P. Mione, Roberta O'Brien Thomann, Lorraine Parker, Bette Laswell, Jennifer Alvarez, Marianne Dalton, Patricia Clemente, Simone Schwendener, Cara Beth Walker, Edna Broyles, Edna Tompkins, Stephanie Rodruck, Danielle Saccone, Beverly Trice, Lori Hurwitz, Lydia Klein, Eileen Valentino, Teresa Tedesco, Ardis Vinnecour, Tracy Gibbs in support of [28−1] motion withdraw as counsel to plaintiff Pamela K. Martens (djc) (Entered: 08/18/1997)
31 NOTICE OF MOTION by Pamela K. Martens, Judith P. Mione, Roberta O'Brien Thomann, Lorraine Parker, Bette Laswell, Jennifer Alvarez, Marianne Dalton, Patricia Clemente, Simone Schwendener, Cara Beth Walker, Edna Broyles, Stephanie Rodruck, Danielle Saccone, Beverly Trice, Lori Hurwitz, Lydia Klein, Eileen Valentino, Teresa Tedesco, Mary Ann Cabell, Ardis Vinnecour, Tracy Gibbs, Robin Tompkins, Patricia Hanlon; for leave to file supplemental authority ; return date not entered on motion (ls) Modified on 09/11/1997 (Entered: 09/11/1997)
30 ORDER, the law firm of Leng, Stonwell, Friedman, &Vernon; and the law firm of Hellring, Lindeman, Goldstein &Siegal be, and they hereby are, relieved forthwith as counsel to Pamela K. Martens. the law firm of Leng, Stowell, Friedman, &Vernon; and the law firm of Hellring, Lindeman, Goldstein &Siegal remain counsel of record to the other plaintiffs listed in the above−captioned case and the puntative class members (signed by Judge Constance B. Motley); Copies mailed (pl) (Entered: 09/10/1997)
32 ORDER, set pretrial conference for 10:00 a.m. 10/9/97 ( signed by Judge Constance B. Motley); Copies mailed. (kg) (Entered: 09/22/1997)
33 PRE−TRIAL SCHEDULING ORDER: set pretrial conference for 10:00 a.m. on 11/18/97. ( signed by Judge Constance B. Motley ) ; Copies mailed (kw) (Entered: 10/16/1997)
35 Petition for provisional class certification and preliminary approval of settlement stipulation. Received in the night deposit box on 11/19/97 at 7:29 p.m. (sac) (Entered: 11/26/1997)
36 DECLARATION of Mary Stowell by pltffs in support [35−1] remark. Received in the night deposit box on 11/19/97 at 7:30 p.m. (sac) Modified on 11/26/1997 (Entered: 11/26/1997)
37 DECLARATION of Linda D. Friedman by pltffs in support [35−1] remark. Received in the night deposit box 11/19/97 at 7:29 p.m. (sac) (Entered: 11/26/1997)
38 DECLARATION of Lorraine Parker by pltffs in support [35−1] remark. Received in the night deposit box on 11/19/97 at 7:30 p.m. (sac) (Entered: 11/26/1997)
34 STIPULATION and ORDER, preliminarily approving class action settlement, conditionally certifying settlement class, providing for notice, and scheduling a fairness hearing for 4/10/98 at 10:00 a.m. ( signed by Judge Constance B. Motley ). (cd) (Entered: 11/24/1997)
39 ORDER, pursuant to the written request of counsel for the defts, dated 12/2/97, the fairness hearing scheduled for 4/10/98 is rescheduled to 4/9/98 at 10:00 a.m. in courtroom 26−A at 500 Pearl St. All other aspects of this court's Order of 11/21/97, remain in full force and effect ( signed by Judge Constance B. Motley ); Copies mailed (cd) (Entered: 12/08/1997)
40 CLASS ACTION; SUMMARY NOTICE OF PENDENCY OF CLASS ACTION, CERTIFICATION OF SETTLEMENT CLASS, PROPOSED SETTLEMENT AND FAIRNESS HEARING; under the Proposed Class Settlement, if approved by District Court, (SDNY), Smith Barney Inc has agreed to spend not less than 15 million over the next four years on diversity programs

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and initiatives and endeavor to meet certain specified employment goals relating to the hiring and promotion of women. Also as part of the Proposed Class Settlement, a dispute resolution process will be established and made available to Settlement Class Members ; Fairness hearing will be held before the District Court at 10:00 a.m. on April 9, 1998; However, you do not need to appear at the Fairness Hearing to participate in the Proposed Class Settlement (signed by Judge Constance B. Motley) (djc) (Entered: 12/12/1997)
41 NOTICE of SUBMISSION by Smith Barney, Inc., James Dimon re: of proposed summary publication notice. (ae) (Entered: 12/12/1997)
42 ORDER, extending time to mail the notice of class settlement from 12/22/97 to 1/5/98. All other aspects of this court's Order Preliminarily Approving Class Action Setlement etc dated 11/21/97, remain in full force and effect ( signed by Judge Constance B. Motley ); Copies mailed (cd) (Entered: 12/22/1997)
43 Letter filed by Dole Derica Fontroy dated 01/08/98 re notifying court of change of address (not named as party) (djc) (Entered: 01/23/1998)
45 MEMORANDUM of LAW in support of motion for an order pursuant to General Rule 3(c) of the Rules of the USDC SDNY and Disciplinary Rule 5−105(B), permitting Stowell Friedman &Vernon and Hellring Lindeman Goldstein &Siegel to withdraw as counsel to plaintiff Judith P. Mione. (djc) Modified on 05/28/1998 (Entered: 02/05/1998)
46 NOTICE OF MOTION for an order pursuant to General Rule 3(c) of the Rules of the SDNY and Disciplinary Rule 5−105(B), permitting Stowell Friedman &Vernon and Hellring Goldstein &Siegal to withdraw as counsel for plaintiff Judith P. Mione. , w/affidavit of Mary Stowell attached. Return date 2/25/98 (djc) Modified on 05/28/1998 (Entered: 02/19/1998)
47 Objection(s) to the proposed settlement by Leslie A. Hart (ls) (Entered: 03/19/1998)
48 NOTICE OF MOTION for an order pursuant to General Rule 3(c) of the Rules of the USDC SDNY and Disciplinary Rule 5−105(B), permitting Stowell Friedman &Vernon and Hellring Lindeman Goldstein &Siegal to withdraw as counsel to plaintiff Edna V. Broyles w/afffidavit of Mary Stowell attached. (kw) Modified on 05/28/1998 (Entered: 03/20/1998)
49 MEMORANDUM in support of motion [48−1] for an order pursuant to General Rule 3(c) of the Rules of the USDC SDNY and Disciplinary Rule 5−105(B), permitting Stowell Friedman &Vernon and Hellring Lindeman Goldstein &Siegal to withdraw as counsel to plaintiff Edna V. Broyles. (kw) Modified on 05/28/1998 (Entered: 03/20/1998)
50 ORDER, granting [46−1] motion for the law firm of Leng, Stowell, Friedman &Vernon and the law firm of Hellring, Lindeman, Goldstein &Siegal to be relieved as counsel to Judith P. Mione; the law firm of Leng, Stowell, Friedman &Vernon and the law firm of Hellring, Lindeman, Goldstein &Siegal shall remain counsel for the remaining class representatives and the putative class ( signed by Judge Constance B. Motley ); Copies mailed (ae) (Entered: 03/30/1998)
51 NOTICE OF MOTION by The National Organization For Women−New York State, Inc. for permission to file amicus curiae brief ; Return date not indicated (sac) Modified on 05/29/1998 (Entered: 04/02/1998)
52 Objection(s) to the proposed setlement by Constance E. Cole (sac) (Entered: 04/02/1998)
53 Objection(s) to the proposed settlement by Joanne Fama (sac) (Entered: 04/02/1998)
54 Objection(s) to the proposed settlement by Carlene Brumant (sac) (Entered: 04/02/1998)

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55 NOTICE of attorney appearance for Pamela K. Martens, Judith P. Mione by Gary Phelan (sac) (Entered: 04/03/1998)
56 NOTICE of attorney appearance for Edna Broyles by Gary Phelan. My appearance on her behalf will be limited to: (1) representing her with respect to pltff's counsel's Motion to Withdraw as her counsel filed 3/18/98 and (2) serving as her atty at the 4/9/98 Fairness Hearing for the purpose of stating her comments on and objections to the Proposed Settlement (sac) (Entered: 04/03/1998)
93 NOTICE of attorney appearance for Pamela K. Martens, and Judith P. Mione by Michele Lang Palter. (kw) (Entered: 04/10/1998)
94 NOTICE of attorney appearance for Edna Broyles by Michele Lang Palter. (kw) (Entered: 04/10/1998)
95 NOTICE of attorney appearance for Edna Broyles by Joseph D. Garrison. (kw) (Entered: 04/10/1998)
96 NOTICE of attorney appearance for Pamela K. Martens, and Judith P. Mione by Joseph D. Garrison. (kw) (Entered: 04/10/1998)
57 Letter filed by Mathilda B. Lefeure to Judge Motley dated 3/11/98, re: objections to the proposed settlement (ae) (Entered: 04/07/1998)
58 Letter filed by Cathy Renneker to Judge Motley dated 3/13/98, re: objecting to the proposed settlement (ae) (Entered: 04/07/1998)
59 Letter filed Lucille R. Bakalian to Judge Motley dated 3/13/98, re: regarding problems in the industry and with management at Smith Barney Shearson (ae) (Entered: 04/07/1998)
60 Letter filed by Janet (last name not legible) dated 3/15/98 re: in response to the proposed settlement (ae) (Entered: 04/07/1998)
61 Letter filed by Jennifer George to Judge Motley dated 8/15/98, re: regarding the work environment at Shearson Lehman Brothers/Smith Barney (ae) (Entered: 04/07/1998)
62 Letter filed by Roberta Thomann to Judge Motley dated 3/26/98, re: in response to the pending settlement (ae) (Entered: 04/07/1998)
63 Letter filed by Bette Laswell to Judge Motley dated 3/20/98 re: in response to the proposed settlement (ae) (Entered: 04/07/1998)
64 Letter filed by Michelle Tuttle to Judge Motley dated 3/16/98, re: regarding sexual harrassment during employment at Smith Barney (ae) (Entered: 04/07/1998)
65 Letter filed by Kristi A. Mandt to Judge Motley dated 3/13/98, re: regarding discrimation experienced while employed at Smith Barney (ae) (Entered: 04/07/1998)
66 Letter filed by Karen A. Johnson to Judge Motley dated 2/17/98, re: regarding work experience in Smith Barney (ae) (Entered: 04/07/1998)
67 Letter filed by Kimberly Hutcheson to Judge Motley dated 3/23/98, re requesting to be excluded from this case. (ae) (Entered: 04/07/1998)
68 Letter filed by Edna Broyles dated 3/30/98 re that Gary Phelan will appear as Edna Broyles attny at the Fairness Hearing that is scheduled forf 4/9/98, to explain the factual and legal basis for Ms. Broyles objections to the proposed settlement (ls) (Entered: 04/07/1998)
69 Letter filed by Helen J. Tieber to Judge Motley dated 3/18/98, re: formal request that she be excluded from this action (ae) (Entered: 04/08/1998)
70 Letter filed by Judith Mione to Judge Motley dated 3/21/98 re: request for exclusion (ae) (Entered: 04/08/1998)

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71 Letter filed by Pamela Kay Martens to Judge Motley dated 3/21/98, re: request for exclusion (ae) (Entered: 04/08/1998)
72 Letter filed by Joan Chasin to Judge Motley dated 3/21/98 re: request for exclusion (ae) (Entered: 04/08/1998)
73 Letter filed by Pamela Kay Martens dated 3/30/98, re: having duly opposed the proposed settlement by the required date of March 16, 1998, herewith request permission to appear at the Fairness Hearing on April 9, 1998 and to speak for myself or have my legal representative speak for me. (ae) Modified on 05/28/1998 (Entered: 04/08/1998)
74 Letter filed by Judith P. Mione dated 3/30/98, re: having duly opposed in writing the proposed settlement by the required date of 3/16/98, herewith request permission to appear at the Fairness Hearing on April 9,1998 and to speak for myself or have my legal representative speak for me. (ae) Modified on 05/28/1998 (Entered: 04/08/1998)
75 Letter filed by Edna V. Broyles to Judge Motley dated 3/27/98, re: requesting permission to have her legal representative speak on her behalf (ae) (Entered: 04/08/1998)
76 Letter filed by Evelyn Martinez to Judge Motley dated 3/9/98, re: opposing the proposed settlement (ae) (Entered: 04/08/1998)
77 Letter filed by N.Y.C. Chapter of the National Organization for Women to Judge Motley dated 3/16/98, re: requesting permission to speak at the 4/9/98 fairness hearing on the proposed settlement (ae) (Entered: 04/08/1998)
78 Letter filed by Edna Broyles to Judge Motley dated 3/13/98 re: objecting to the proposed settlement (ae) (Entered: 04/08/1998)
79 Letter filed by Teresa Tedesco to Judge Motley dated 3/11/98, re: opposing the proposed settlement (ae) (Entered: 04/08/1998)
80 Letter filed by Margaret Newman Smith dated 3/15/98, re: responding to the proposed settlement (ae) (Entered: 04/08/1998)
81 Letter filed by Joan Chasin to Judge Motley dated 3/12/98, re: opposing the proposed settlement (ae) (Entered: 04/08/1998)
82 Letter filed by Judith P. Mione to Judge Motley, re: wishing to add my endorsement to each of the issues raised in the opposition papers presented to this Court by Pamela Kay Martens (ae) (Entered: 04/08/1998)
83 Letter filed by Pamela K. Martens to Judge Motley dated 3/13/98, re: opposing the proposed settlement (ae) (Entered: 04/08/1998)
85 NOTICE of Filing of petition for fees and reimbursement by Pamela K. Martens, Judith P. Mione, Roberta O'Brien Thomann et al (cd) (Entered: 04/09/1998)
86 NOTICE of Filing of Class plntfs' memo in support of request for fees by Pamela K. Martens, Judith P. Mione, Roberta O'Brien Thomann, Smith Barney, Inc. et al (cd) (Entered: 04/09/1998)
87 NOTICE of Filing of Class plntfs' motion to strike objections and motion to bar them from presenting oral argument fairness hearing etc by Pamela K. Martens, Judith P. Mione et al (cd) (Entered: 04/09/1998)
88 NOTICE of Filing of Class plntfs' memo in support of motion to strike objections etc by Pamela K. Martens, Judith P. Mione (cd) (Entered: 04/09/1998)
89 NOTICE of Filing of Class plntfs' memo in oppositon to motion for leave, to file Amicus Brief of NYS NOW by Pamela K. Martens, Judith P. Mione, Roberta O'Brien Thomann et al (cd) (Entered: 04/09/1998)
90 NOTICE of Filing of Class Plntfs' Memo in support of settlement by Pamela K. Martens, Judith P. Mione, Roberta O'Brien Thomann et al (cd) (Entered: 04/09/1998)

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91 NOTICE of Filing of Class plntfs' response to objections to settlemen by Pamela K. Martens, Judith P. Mione, Roberta O'Brien Thomann et al (cd) (Entered: 04/09/1998)
92 NOTICE of Filing of Compendium of exhibits for fairness hearing by Pamela K. Martens, Judith P. Mione, Roberta O'Brien Thomann et al (cd) (Entered: 04/09/1998)
84 ORDER granting [48−1] motion for an order for Stowell Friedman &Vernon to withdraw as attorney to Edna V. Broyles; the law firm of Leng, Stowell, Friedman &Vernon and the law firm of Hellring, Lindeman, Goldstein &Siegal remain counsel class representative and the putative class (signed by Judge Constance B. Motley); Copies mailed. (kg) (Entered: 04/08/1998)
97 Letter filed dated 04/03/98 from Mary Jean Lacidonia (djc) (Entered: 04/13/1998)
99 ORDER, only those individuals who have remained in the class, i.e. who have not opted out, and have submitted timely objections (i.e. on or before 3/16/98) may offer oral argument at the Fairness Hearing in this action, scheduled for 4/9/98. Thus, no individual who has excluded herself from the class or has not filed timely objections may participate at the hearing; the participation of NOW/New York State and NOW/New York City is hereby limited to the submission of amicus curiae briefs. The request of NOW/New York State and NOW/New York City to offer testimony at the Fairness Hearing is hereby Denied; Ms. Edna V. Broyles is hereby limited to oral argument on those subjects about which she timely filed objections (i.e. on or before 3/16/98) before the court ( signed by Judge Constance B. Motley ); Copies mailed (ae) Modified on 04/17/1998 (Entered: 04/16/1998)
98 NOTICE OF FILING THE DECLARATION OF Mary Stowell by Plaintiffs. (kg) (Entered: 04/15/1998)
100 Transcript of record of proceedings before Judge Motley filed for dates of April 9, 1998 (jp) (Entered: 06/08/1998)
101 ORDER, for the reasons set forth in the opinion fld simultaneously herewith, the court denies final approval of the proposed settlement ( signed by Judge Constance B. Motley ); Copies mailed (cd) (Entered: 06/25/1998)
102 OPINION ON PROPOSED SETTLEMENT #80787; for purposes of this settlement, pltffs constitute a proper class presenting claims properly in federal court. The settlement they propose, however, defers for future non−judicial resolution any questions regarding what the as−yet−amorphous Smith Barney diversity programs and initiatives can and cannot include. The Court cannot declare its duty to evaluate the settlement complete before the parties more meaningfully clarify what it does. Accordingly, the court denies final approval to the proposed settlement ( Signed by Judge Constance B. Motley ); Copies mailed. (sac) (Entered: 06/25/1998)
104 NOTICE OF MOTION by Edna Broyles for an order granting reconsideration of that portion of the Court's decision docketed 6/24/98 which approved the Dispute Resolution Process adopted by the Settlement Agreement (kw) (Entered: 07/07/1998)
105 MEMORANDUM by Edna Broyles in support of [104−1] motion for an order granting reconsideration of that portion of the Court's decision docketed 6/24/98 which approved the Dispute Resolution Process adopted by the Settlement Agreement. (kw) (Entered: 07/07/1998)
103 REVISED MEMORANDUM of LAW by Edna Broyles in support of Motion for Reconsideration. (djc) (Entered: 07/06/1998)
106 ORDER, a conference in this matter is hereby schedule for 7/24/98 at 10:00 a.m. in Courtroom 26−A of the US Courthouse at 500 Pearl St. (signed by Judge Constance B. Motley); Copies mailed. (kg) (Entered: 07/13/1998)

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07/24/1998 07/27/1998

107 DECLARATION of Mary Stowell in opposition [104−1] motion for an order granting reconsideration of that portion of the Court's decision docketed 6/24/98 which approved the Dispute Resolution Process adopted by the Settlement Agreement (sac) (Entered: 07/16/1998)
108 DECLARATION of Gary Phelan in replying to the Re: [107−1] opposition to plaintiff Edna Broyles' motion for reconsideration. (kw) (Entered: 07/22/1998)
109 MEMORANDUM by Edna Broyles in support of [104−1] motion for an order granting reconsideration of that portion of the Court's decision docketed 6/24/98 which approved the Dispute Resolution Process adopted by the Settlement Agreement. (kw) (Entered: 07/22/1998)
110 FINAL ORDER AND JUDGMENT APPROVING CLASS ACTION SETTLEMENT AND DISMISSING CLAIMS: the Notice of Class Action Settlement Approval annexed as Exhibit 1 to Amendment 3A to Stipulation of Settlement dated 11/18/97 is hereby approved by this Court; Smith Barney shall bear all costs reasonably associated with printing, mailing, and publishing the Notice of Class Action Settlement Approval and the summary thereof as required by Paragraphs 16 and 17 as set forth in this Final Order and Judgment, including, w/out limitation, the cost of any vendors retained by Class Counsel to aid in effectuating such notice; this action is hereby dismissed in its entirety, on the merits and with prejudice, as against defendants Smith Barney, James Dimon, and Nicholas Cuneo, and w/out costs to any party, except to the extent otherwise expressly provided in the Settlement Stipulation; all members of the Class as well as those who have duly requested exclusion from the Class are hereby permanently enjoined fully, forever and irrevocably, as set forth in this Final Order and Judgment; this Court approves the application for fees filed by Class Counsel on 4/6/98 in the amounts set forth in this Final Order and Judgment; this Court approves the application for fees filed by the law firm of Altshuler, Nussbau, Berzon, &Rubin on 4/6/98 in the amount of $50,000; this Court approves the application for incentive payments filed by the Class Representatives and Named Plaintiff Bette Laswell on 4/6/98 in the aggregate amount of $1,900,000; ( Signed by Judge Constance B. Motley ); Mailed copies and notice of right to appeal. EOD 7/27/98 (ae) (Entered: 07/27/1998)
Case closed (ae) (Entered: 07/27/1998)
113 FINAL ORDER AND JUDGMENT APPROVING CLASS ACTION SETTLEMENT AND DISMISSING CLAIMS; this Final Order and Judgment Approving Class Action Settlement is binding on all members of the Class as defined in the Preliminary Approval Order. The Notice of Class Action Settlement Approval annexed as Exhibit 1 to Amendment 3A to Stip. of Settlement dtd 11/18/97 is hereby approved by this Court. Smith Barney shall bear all costs reasonably associated with printing, mailing, and publishing the Notice of Class Action Settlement Approval and the summary thereof as required by Paragraphs 16 and 17 as set forth in this order, including, w/o limitation, the cost of any outside vendors retained by Class Counsel to aid in effectuating such notice. This action is hereby dismissed in its entirety, on the merits and w/prejudice, as against defts Smith Barney, James Dimon, and Nicholas Cueno, and w/o costs to any party. This Court approves the application for fees filed by class Counsel on 4/6/98 in the amounts stated in this order. This Court approves the application for incentive payments filed by the Class Representatives and named pltff Bette Laswell on 4/6/98 in the aggregate amount of $1,900,000. (signed by Judge Constance B. Motley); Mailed copies and notice of right to appeal. EOD:7/28/98 (kg) (Entered: 07/29/1998)
Case reopened. Case Closed in Error. (dcap) (Entered: 03/15/1999)
111 FOURTH AMENDMENT TO STIPULATION OF SETTLEMENT DATED 11/18/97, the Stipulation of Settlement dated 11/18/97 as preliminarily approved by the District Court on 11/21/97, amended on 4/9/98, supplemented on 6/15/98, and amended again on 7/1/98 and 7/15/98, shall be further amended as set forth in this Stipulation and Order ( signed by Judge Constance B. Motley ). (ae) (Entered: 07/28/1998)

07/27/1998
08/03/1998 08/06/1998 08/07/1998
08/07/1998 08/26/1998 08/26/1998 08/26/1998 09/04/1998 11/19/1998
04/06/1999
06/24/1999 08/02/1999 08/02/1999 08/02/1999

112 AMENDMENT NO. 3A TO STIPULATION OF SETTLEMENT DATED 11/18/97, this Amendment No. 3A to Stipulation of Settlement Dated 11/18/97 shall supersede and replace in its entirety the Third Amendment to Stipulation of Settlement dated 11/18/97, dated 7/15/98 ( signed by Judge Constance B. Motley ). (ae) (Entered: 07/28/1998)
114 DECLARATION in support of Mary Stowell in support of Proposed Order with respect to notice of class action settlement approval and effective date and summary notice of class action settlement agreement (djc) (Entered: 08/04/1998)
115 Transcript of record of proceedings filed before Judge Motley for dates of 11/18/97 (sac) (Entered: 08/06/1998)
116 SUMMARY NOTICE OF CLASS ACTION SETTLEMENT APPROVAL, pursuant to Rule 23 of the FRCP and the Final Order and Judgment Approving Class Action Settlement and Dismissing Claims issued by the U.S.D.C. for the S.D.N.Y. in this action on 7/24/98 ( signed by Judge Constance B. Motley ); Copies mailed (ae) (Entered: 08/10/1998)
117 ORDER WITH RESPECT TO NOTICE OF CLASS ACTION SETTLEMENT APPROVAL AND EFFECTIVE DATE; The summary Notice of Class Action Settlement Approval submitted by the parties on 7/31/98 is approved ( signed by Judge Constance B. Motley ); Copies mailed (jp) (Entered: 08/10/1998)
118 NOTICE OF MOTION by plaintiffs striking the motion for reconsideration under FRCP 9(b) filed by Pamela Martens, Edna Broyles and Judith Mione , Return date 9/14/98; Declaration in support (djc) Modified on 09/21/1998 (Entered: 08/27/1998)
119 RESPONSE by plaintiffs in opposition to motion to reconsider(djc) Modified on 09/21/1998 (Entered: 08/27/1998)
120 MEMORANDUM by plaintiffs in support of [118−1] motion striking the motion for reconsideration under FRCP 9(b) (djc) Modified on 09/21/1998 (Entered: 08/27/1998)
121 Transcript of record of proceedings before Judge Motley filed for dates of July 23, 1998 (jp) (Entered: 09/04/1998)
122 ORDER; Pltff's motion for reconsideration dated 8/13/98, is denied on the grounds stated in this order ; granting [118−1] motion striking the motion for reconsideration under FRCP 9(b) filed by Pamela Martens, Edna Broyles and Judith Mione ( signed by Judge Constance B. Motley ); Copies mailed (sac) (Entered: 11/20/1998)
123 ORDER, set pre−trial conference for 2:00 p.m. on 6/10/99 in courtroom 26−A; all parties other than the defendants dismissed by settlement must arrive and be prepared for hearing on all pending motions. ; that class counsel submit to the court, by Thursday, June 24, 1999, a report summarizing progress an implementation of the settlement approved on 7/24/98. ( signed by Judge Constance B. Motley ); Copies mailed (pl) Modified on 04/07/1999 (Entered: 04/07/1999)
124 Report on the implementation of the settlement filed by Stowell &Friedman, Class Counsel. (jp) (Entered: 06/25/1999)
125 NOTICE OF MOTION by Smith Barney/Shear., James Dimon to dismiss the action ; to stay proceedings ; to compel arbitration ; Return date 8/26/99 (cd) Modified on 08/03/1999 (Entered: 08/03/1999)
126 DECLARATION of Eugene Clark by Smith Barney/Shear., James Dimon in support Re: [125−1] motion to dismiss, [125−2] motion to stay, [125−3] motion to compel arbitration . (cd) (Entered: 08/03/1999)
127 MEMORANDUM by Smith Barney/Shear., James Dimon in support of [125−1] motion to dismiss, [125−2] motion to stay, [125−3] motion to compel arbitration (cd) (Entered: 08/03/1999)

08/11/1999 08/25/1999 08/25/1999 09/07/1999 09/21/1999 09/21/1999 10/27/1999 10/27/1999 10/27/1999 11/04/1999 11/09/1999 11/12/1999
11/12/1999

128 NOTICE OF MOTION by Pamela K. Martens, Judith P. Mione Plntf's Response to motion [125−1] motion to dismiss the action, [125−2] motion to stay proceedings, [125−3] motion to arbitration to be extended to 9/7/99 ; Return date not indicated (cd) (Entered: 08/12/1999)
129 ORDER; pltffs' response to motion reset to 9/7/99 for [125−3] motion to compel arbitration ; the next pre−trial conference, at which the parties must be prepared for hearing on all pending motions, is scheduled for 10:00 a.m. on Tuesday, 9/21/99 in courtroom 26−A in the U.S. Courthouse at 500 Pearl Street ; ( signed by Judge Constance B. Motley ); copies mailed. (ls) (Entered: 08/25/1999)
130 SCHEDULING AMENDMENT TO STIPULATION OF SETTLEMENT; The Settlement Stipulation shall be further amended as set forth in this order. (signed by Judge Constance B. Motley); Copies mailed. (djc) Modified on 08/27/1999 (Entered: 08/26/1999)
131 MEMORANDUM by Pamela K. Martens, Judith P. Mione in opposition to [125−1] motion to dismiss the action, [125−2] motion to stay proceedings, [125−3] motion to compel arbitration (jp) (Entered: 09/08/1999)
132 REPLY MEMORANDUM by Smith Barney, Inc., James Dimon re: in support of [125−1] motion to dismiss the action, [125−2] motion to stay proceedings, [125−3] motion to compel arbitration. (rec'd in the night deposit box on 9/21/99 at 7:21 p.m.) (sac) (Entered: 09/22/1999)
133 SUPPLEMENTAL DECLARATION of Eugene V. Clark by Smith Barney, Inc., James Dimon in support Re: [125−1] motion to dismiss the action, [125−2] motion to stay proceedings, [125−3] motion to compel arbitration. (sac) (Entered: 09/22/1999)
134 NOTICE OF CROSS MOTION by Smith Barney, Inc., James Dimon striking plntfs Pamela Martens and Judith Mione's motion to strike the Supplemental Declaration submitted by Smith Barney ; for attorney fees ; Return date 11/19/99 (fld in the night deposit box on 10/27/99) (cd) (Entered: 10/29/1999)
135 DECLARATION of Hallie Levin by Smith Barney, Inc., James Dimon in support Re: [134−1] cross motion striking plntfs Pamela Martens and Judith Mione's motion to strike the Supplemental Declaration submitted by Smith Barney, [134−2] cross motion for attorney fees (fld in the night deposit box on 10/27/99) (cd) (Entered: 10/29/1999)
136 MEMORANDUM OF LAW by Smith Barney, Inc., James Dimon in support of [134−1] cross motion striking plntfs Pamela Martens and Judith Mione's motion to strike the Supplemental Declaration submitted by Smith Barney, [134−2] cross motion for attorney fees (fld in the night deposit box on 10/27/99) (cd) (Entered: 10/29/1999)
137 NOTICE OF MOTION by Marianne Dalton, Cara Beth Walker, Teresa Tedesco; for an Order, purs. to Local Rule 1.3(c), admitting Kent Spriggs pro hac vice for pltffs ; Return date not indicated. Declaration of Kent Spriggs in support of motion attached. (jp) (Entered: 11/08/1999)
138 NOTICE OF MOTION by Deborah N. Archer, counsel for pltffs in this action; for an order purs. to Local Rule 1.3 (c) admitting Paul C. Sprenger pro hac vice in this matter on behalf of pltffs ; Return date not indicated; Declaration of Paul C. Sprenger Purs. to 28 U.S.C. 1746 attached (ls) (Entered: 11/10/1999)
139 NOTICE OF MOTION by Pamela K. Martens, Judith P. Mione; for an order to strike the Supplemental Declaration of Eugene V. Clark submitted by dft's Smith Barney and James Dimon, after the hearing held before the Cour ton 9/21/99 ; to strike that portion of the defendants Reply Brief that state that NASB Arbitration Code provided individuals with the right to take depositions ; Return date: not indicated. (pl) (Entered: 11/16/1999)
140 MEMORANDUM OF LAW by Pamela K. Martens, Lori Hurwitz in support of [139−1] motion for an order to strike the Supplemental Declaration of Eugene V. Clark submitted by dft's Smith Barney and James Dimon, after the hearing held before the Cour ton 9/21/99, [139−2] motion to strike that portion of the

11/12/1999
11/12/1999
11/12/1999
11/17/1999 11/18/1999 11/18/1999 11/18/1999 11/19/1999
11/19/1999 11/19/1999
11/19/1999 11/19/1999 11/19/1999

defendants Reply Brief that state that NASB Arbitration Code provided individuals with the right to take depositions (pl) (Entered: 11/16/1999)
141 NOTICE OF MOTION by Pamela K. Martens, Judith P. Mione; for an order granting permission to conduct limited discovery ; to submit a surreply brief relating to Smith Barney, James Dimon and Nicholas Cuneo's pending Motion to Compel Arbitration ; Return date: not indicated (pl) Modified on 11/16/1999 (Entered: 11/16/1999)
142 MEMORANDUM OF LAW by Pamela K. Martens, Judith P. Mione in support of [141−1] motion for an order granting permission to conduct limited discovery; [141−2] motion to submit a surreply brief relating to Smith Barney, James Dimon and Nicholas Cuneo's pending Motion to Compel Arbitration (pl) (Entered: 11/16/1999)
143 DECLARATION of Gary Phelan by Pamela K. Martens, Judith P. Mione in support of Re: [141−1] motion for an order granting permission to conduct limited discovery; [141−2] motion to submit a surreply brief relating to Smith Barney, James Dimon and Nicholas Cuneo's pending Motion to Compel Arbitration. (pl) (Entered: 11/16/1999)
144 Transcript of record of proceedings before Judge Constance B. Motley for the date(s) of 9/21/99 11:45 a.m. (bw) (Entered: 11/17/1999)
145 NOTICE OF MOTION by Edna Broyles to enforce the Stipulation of Settlement and to Order Mediation ; Return date 12/10/99 (cd) (Entered: 11/19/1999)
146 AFFIDAVIT of Claire Saady by Edna Broyles in support Re: [145−1] motion to enforce the Stipulation of Settlement and to Order Mediation . (cd) (Entered: 11/19/1999)
147 MEMORANDUM OF LAW by Edna Broyles in support of [145−1] motion to enforce the Stipulation of Settlement and to Order Mediation (cd) (Entered: 11/19/1999)
148 MEMORANDUM OF LAW by Pamela K. Martens, Judith P. Mione, Roberta O'Brien Thomann in opposition to [134−1] cross motion striking plntfs Pamela Martens and Judith Mione's motion to strike the Supplemental Declaration submitted by Smith Barney, [134−2] cross motion for attorney fees (pl) (Entered: 11/22/1999)
149 DECLARATION of Gary Phelan by Pamela K. Martens, Judith P. Mione in opposition to Re: [134−1] cross motion striking plntfs Pamela Martens and Judith Mione's motion to strike the Supplemental Declaration submitted by Smith Barney; [134−2] cross motion for attorney fees. (pl) (Entered: 11/22/1999)
150 NOTICE OF MOTION by Cara Beth Walker, Lisa Mays, and Teresa Tedesco; for an Order allowing them to discharge Stowell &Friedman as their counsel in their roles as representative pltffs and substitute Kent Spriggs of Spriggs &Davis as counsel for them in their status as representative pltffs in this action ; Return date not indicated. (jp) (Entered: 11/22/1999)
151 NOTICE OF EMERGENCY MOTION by Cara Beth Walker, Lisa Mays, and Teresa Tedesco; for relief from "Individual Practices of Judge Motley" 2(C) ; Return date not indicated. (jp) (Entered: 11/22/1999)
152 NOTICE OF MOTION by Cara Beth Walker, Lisa Mays, and Teresa Tedesco; for an Order enforcing the Order of 7/28/98, approving the Consolidated Stipulation of Settlement ; Return date not indicated. Memorandum of law in support of motion attached. (jp) (Entered: 11/22/1999)
153 DECLARATIONS of Kristina Carman, John C. Davis, Janet Hill, Lisa Mays, Gary Phelan, Deborah C. Reid, Kent Spriggs, Cara Beth Walker and Robert E. Weisberg, by Cara Beth Walker, Teresa Tedesco in support of: [152−1] motion for an Order enforcing the Order of 7/28/98, approving the Consolidated Stipulation of Settlement. (jp) (Entered: 11/22/1999)

11/24/1999 11/24/1999 11/24/1999 11/30/1999 11/30/1999 12/03/1999
12/03/1999
12/06/1999 12/08/1999 12/08/1999 12/08/1999

154 NOTICE OF CROSS MOTION by Smith Barney, Inc., James Dimon for attorney fees and costs incurred in connection with responding to plntfs pamela Martens and Judith Mione's Motion for Permission to Conduct Limited Discovery ; Return date 12/21/99 (cd) (Entered: 11/30/1999)
155 DECLARATION of Hallie Levin by Smith Barney, Inc., James Dimon in support Re: [154−1] cross motion for attorney fees and costs incurred in connection with responding to plntfs pamela Martens and Judith Mione's Motion for Permission to Conduct Limited Discovery . (cd) (Entered: 11/30/1999)
156 MEMORANDUM OF LAW by Smith Barney, Inc., Shearson Leh. Hutt., Smith Barney/Shear., James Dimon in support of [154−1] cross motion for attorney fees and costs incurred in connection with responding to plntfs pamela Martens and Judith Mione's Motion for Permission to Conduct Limited Discovery (cd) (Entered: 11/30/1999)
157 NOTICE OF MOTION by Marianne Dalton, Cara Beth Walker, Teresa Tedesco, for an order pursuant to Local Rule 1.3(c) admitting Lawrence P. Schaefer pro hac vice on behalf of four plaintiffs in this action, Cara Beth Walker, Marianne Dalton, Lisa Mays, and Teresa Tedesco , Return date not indicated. (Declaration of Lawrence P. Schaefer attached in support) (ri) (Entered: 12/02/1999)
158 REPLY MEMORANDUM by Smith Barney, Inc., James Dimon in further support re: [134−1] cross motion striking plntfs Pamela Martens and Judith Mione's motion to strike the Supplemental Declaration submitted by Smith Barney, [134−2] cross motion for attorney fees. (Rec'd in N.B. 11/30/99 9:08 PM) (sn) (Entered: 12/02/1999)
159 OPINION #83173. For the reasons outlined in this memorandum opinion, the court now grants defendant NYSE's and defendant NASD's motions to dismiss. The title VII gender discrimination claim against NASD and NYSE is dismissed in keeping with the Second Circuit's ruling that Title VII does not preclude NASD or NYSE from seeking mandatory arbitration of brokers' Title VII claims ; The court now allows Pamela K. Martens and Judith P. Mione to elect to rejoin the plaintiff class and participate as named plaintiffs as per the terms of the court−approved settlement agreement. Martens and Mione may exercise this option by submitting such request in writing to the court within thirty days of the date of this opinion and attached order. (signed by Judge Constance B. Motley); Copies mailed. (djc) (Entered: 12/06/1999)
160 ORDER granting [125−1] motion to dismiss Count VII against NASD and NYSE pursuant to FRCP 12(b)(6); The Court now presents Pamela K. Martens and Judith P. Mione, named plaintiffs who previously opted out of the class and class settlement, the option to rejoin the class and participate in the court−approved class settlement as named plaintiffs. Plaintiffs Martens and Mione may exercise this option by writing to the court to express their intent to rejoin the class and participate in the court−approved settlement as per their its terms within 30 days of the of this order . (signed by Constance B. Motley); Copies mailed. (ri) Modified on 12/09/1999 (Entered: 12/07/1999)
161 MEMORANDUM OF LAW by Smith Barney, Inc., James Dimon in opposition to [150−1] motion for an Order allowing them to discharge Stowell &Friedman as their counsel in their roles as representative pltffs and substitute Kent Spriggs of Spriggs &Davis as counsel for them in their status as representative pltffs in this action (sac) (Entered: 12/08/1999)
162 NOTICE OF MOTION by Plaintiffs for leave to file a memorandum in excess of 25 pages to respond adequately to moving pltffs' motion and memorandum . No return date indicated. (sn) (Entered: 12/10/1999)
163 NOTICE OF MOTION by Plaintiffs for leave to file their memorandum in opposition to motion to enforce settlement stipulation and memorandum in opposition to Kent Spriggs' motion to substitute . No return date indicated. (sn) (Entered: 12/10/1999)
164 NOTICE OF MOTION by Plaintiffs to strike certain assertions of fact made by Moving Pltffs . No return date indicated. (sn) (Entered: 12/10/1999)

12/08/1999 12/08/1999
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12/17/1999 12/17/1999
12/17/1999 12/17/1999
12/20/1999 12/20/1999 12/20/1999 12/27/1999

165 MEMORANDUM OF LAW by Plaintiffs in support of [164−1] motion to strike certain assertions of fact made by Moving Pltffs. (sn) (Entered: 12/10/1999)
166 MEMORANDUM OF LAW by Plaintiffs in opposition to [150−1] motion for an Order allowing them to discharge Stowell &Friedman as their counsel in their roles as representative pltffs and substitute Kent Spriggs of Spriggs &Davis as counsel for them in their status as representative pltffs in this action. (sn) (Entered: 12/10/1999)
167 DECLARATION of Mary Stowell, Linda D. Friedman, Max Fischer, Nathan Vogt, Beverly Trice, Stanette Rose, Derrick Brent by Plaintiffs in opposition to motion to enforce settlement stipulation. (sn) (Entered: 12/10/1999)
168 MEMORANDUM OF LAW by Plaintiffs in opposition to motion to enforce settlement stipulation. (sn) (Entered: 12/10/1999)
170 MEMORANDUM OF LAW by Smith Barney, Inc., James Dimon in further opposition to [145−1] motion to enforce the Stipulation of Settlement and to Order Mediation. (sn) (Entered: 12/15/1999)
169 DECLARATION of Joyce S. Huang by Smith Barney, Inc., James Dimon in further opposition Re: [145−1] motion to enforce the Stipulation of Settlement and to Order Mediation. (sn) (Entered: 12/15/1999)
171 DECLARATION of Eugene V. Clark by Smith Barney, Inc. in support Re: [170−1] opposition memorandum. (ri) (Entered: 12/16/1999)
172 REPLY by Cara Beth Walker, Teresa Tedesco, Lisa Mays Re: [170−1] opposition memorandum (sac) (Entered: 12/20/1999)
173 EMERGENCY MOTION by Beth Walker, Lisa Mays and Teresa Tedesco, for relief from "Individual Practices of Judge Motley" 2(C) as regards their reply to opposition of Class Counsel to motion of plaintiffs Walker, Mays and Tedesco to enforce the settlement stipulation . Return date not indicated. (ri) Modified on 12/20/1999 (Entered: 12/20/1999)
174 REPLY by Cara Beth Walker, Teresa Tedesco, and Lisa Mays to Opposition of Class counsel to Motion of plaintiffs Walker, Mays and Tedesco to enforce the settlement stipulation with memorandum of law. (ri) (Entered: 12/20/1999)
175 REPLY by Cara Beth Walker, Teresa Tedesco in support of [150−1] motion for an Order allowing them to discharge Stowell &Friedman as their counsel in their roles as representative pltffs and substitute Kent Spriggs of Spriggs &Davis as counsel for them in their status as representative pltffs this action. (ri) (Entered: 12/20/1999)
176 MEMORANDUM OF LAW by Pamela K. Martens, Judith P. Mione in support of their motion for reconsideration of the Court's 12/2/99 Opinion (ls) (Entered: 12/20/1999)
177 REPLY MEMORANDUM of LAW by Smith Barney/Shear., James Dimon in further support of [154−1] cross motion for attorney fees and costs incurred connection with responding to plntfs pamela Martens and Judith Mione's Motion for Permission to Conduct Limited Discovery; (docmt filed in night dep. on 12/17/99 at 8:31 p.m.) (djc) (Entered: 12/21/1999)
178 ORDER: all parties are ordered to attend a status conference on Wednesday, 1/26/00 at 2:00 p.m. at 500 Pearl Street in Courtroom 26A. ( signed by Judge Constance B. Motley ); Copies mailed. (sac) (Entered: 12/21/1999)
179 REPLY by Edna Broyles Re: [145−1] motion to enforce the Stipulation of Settlement and to Order Mediation (cd) (Entered: 12/22/1999)
180 NOTICE OF MOTION by Pamela K. Martens, Judith P. Mione for reconsideration of the Court's 12/2/99 Opinion Return date not indicated (cd) (Entered: 12/22/1999)
181 MEMORANDUM OF LAW by Cara Beth Walker, Teresa Tedesco and Lisa Mays in opposition to [164−1] motion to strike certain assertions fact made by

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Moving Pltffs. (ri) (Entered: 12/28/1999)
182 CORRECTED MEMORANDUM OF LAW by Plaintiffs in opposition to motion to enforce settlement Stipulation (ls) (Entered: 12/29/1999)
183 NOTICE OF MOTION by Pamela K. Martens, Judith P. Mione; for a four−day extension to submit the Memorandum of Law and accompanying exhibits in Opposition to the Defts' Motion to Strike and for Attny's fees they filed on 11/19/99 ; Return date not indicated (ls) (Entered: 01/03/2000)
184 MEMORANDUM OF LAW by Pamela K. Martens, Judith P. Mione in support of [183−1] motion for a four−day extension to the Memorandum of Law and accompanying exhibits in Opposition to the Defts' Motion to Strike and for Attny's fees they filed on 11/19/99 (ls) (Entered: 01/03/2000)
185 DECLARATION of Gary Phelan by Pamela K. Martens, Judith P. Mione in opposition Re: (a) the defts' opposition to the pltffs' motion for permission to conduct limited discovery and to submit a surreply brief, (b) the defts' further support of their cross−motion to strike and for attny's fees and costs, and (c) in opposition to the defts' cross−motion for attny's fees and costs (ls) (Entered: 01/03/2000)
186 REPLY MEMORANDUM by Pamela K. Martens, Judith P. Mione in response re: defts, Smith Barney, Inc. and James Dimon's, opposition to pltffs' motion for permission to conduct limited discovery and to submit a surreply brief, in opposition to defts' further support of their cross−motion to strike and for attny's fees and costs and in opposition to their cross−motion for attny's fees and costs (ls) (Entered: 01/03/2000)
Remark by Cashier's on copy of Notice of Motion (doc.#7): pd. $25.00, 362872, 12/29/99 (ls) (Entered: 01/03/2000)
187 MEMORANDUM OF LAW by Nicholas Cuneo in opposition to Two Plaintiffs' Motion for Permission to conduct Limited Discovery and to Submit a Surreply Brief (djc) (Entered: 01/03/2000)
188 MEMORANDUM OF LAW by Nicholas Cuneo in opposition to [145−1] motion to enforce the Stipulation of Settlement and to Order Mediation (djc) (Entered: 01/03/2000)
189 MEMORANDUM OF LAW by Nicholas Cuneo in opposition to [145−1] motion to enforce the Stipulation of Settlement and to Order Mediation And joins co−defendants' opposition to the motions (djc) (Entered: 01/03/2000)
190 MEMORANDUM OF LAW by Nicholas Cuneo in support of the Motion to Compel Arbitration. (djc) (Entered: 01/03/2000)
191 CERTIFICATE OF SERVICE by the firm of Paul Weiss Rifkind Wharton &Garrison of the Memo of Law of defendants Smith Barney and James Dimon in opposition to Motion for Reconsideration. (ri) (Entered: 01/06/2000)
192 MEMORANDUM OF LAW by James Dimon, Smith Barney/Shearso in opposition to [183−1] motion for a four−day extension to submit the Memorandum of Law and accompanying exhibits in Opposition to the Defts' Motion to Strike and for Attny's fees they filed on 11/19/99 and Accompanying motion papers in opposition to defendants' [154−1] cross motion for attorney fees and costs incurred in connection with responding to plntfs pamela Martens and Judith Mione's Motion for Permission to Conduct Limited Discovery, [139−1] motion for an order to strike the Supplemental Declaration of Eugene V. Clark submitted by dft's Smith Barney and James Dimon, after the hearing held before the Cour ton 9/21/99, [139−2] motion to strike that portion of the defendants Reply Brief that state that NASB Arbitration Code provided individuals with the right to take depositions, [134−1] cross motion striking plntfs Pamela Martens and Judith Mione's motion to strike the Supplemental Declaration submitted by Smith Barney, [134−2] cross motion for attorney fees (djc) (Entered: 01/13/2000)

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193 REPLY MEMORANDUM by Pamela K. Martens, Judith P. Mione re: [180−1] motion for reconsideration of the Court's 12/2/99 Opinion (cd) (Entered: 01/18/2000)
194 MEMORANDUM OF LAW by Smith Barney, Inc., James Dimon in opposition to [180−1] motion for reconsideration of the Court's 12/2/99 Opinion (sac) (Entered: 01/19/2000)
195 MEMORANDUM OPINION #83380; this court certified a settlement class and, in 1998, approved a settlement agreement between pltff and the Smith Barney defts; named pltffs Pamela K. Martens and Judith P. Mione opted out of the settlement before it was finally approved by this court; when pltffs Pamela K. Martens and Judith P. Mione opted out of this action at the time this court preliminarily approved a proposed settlement, they had the right to: 1) pursue their individual claims against Smith Barney in this action, or 2) file a new action before the statute of limitations had run; they did neither; Smith Barney has now moved to dismiss this action against it by these pltffs who opted out; in response to that motion, this court, believing that the opt out pltffs may have misunderstood the effect on their claims of opting out of the class settlement, by opinion and order dtd. 12/2/99, clarified for pltffs the consequences of having opted out of the class settlement; this court then gave pltffs the option of rejoining the class w/in 30 days from the date of the accompanying order; these opt out pltffs advised the court on 12/22/99 that they did not wish to rejoin the class; they then moved this court to reconsider its opinion and order of 12/2/99 and permit them to pursue their individual claims against Smith Barney in this action which they had initially brought on behalf of themselves and all other similary situated; defts have opposed the motion for reconsideration on the grounds that pltffs have failed to cite any controlling opinion or authority or factual matters overlooked which might have materially influenced the opinion and order; pltffs also ask the court to again grant them an opportunity to reconsider rejoining the class if their individual claims are now barred for some reason; pltffs filed only a motion to reconsider this court's opinion regarding the opt out pltffs; they did not file a motion requesting that the statute of limitations if applicable, be tolled; they simply argued this position in their brief in support of their motion for reconsideration; defts, in response, have not requested an opportunity to answer; this court now rules that pltffs will not be given a further opportunity to opt back into the class beyond the ten day period which remained when they filed their motion to reconsider; if they should not take advantage of this option in the next ten days, that would, of course, end this matter; if they do not, this court rules that pltffs' individual claims remained pending as such but may now have been barred by laches of the statute of limitations; the parties will now be given 31 days from the date of the accompanying order to brief both the laches and statute of limitations questions if pltffs again reject the option to opt back into the class and settlement w/in the next ten days; ea. party will then have 30 days to answer the other party's submission; the court will then hear arguments on the questions only on 4/24/00; no extensions of time from that schedule will be granted ; ( signed by Judge Constance B. Motley ); copies mailed (ls) (Entered: 01/26/2000)
Oral argument set for 4/24/00 before Judge Constance B. Motley (ls) (Entered: 01/26/2000)
196 ORDER, that the conference scheduled for 1/26/00 is canceled; Opt out plaintiffs Pamela K. Martens and Judith P. Mione have 10 days from the date of this Order to elect to rejoin the class. If the opt out plaintiffs do not elect to rejoin the plaintiff class then the parties are ordered to brief the issues of laches and stautes of limitations; Both parties are to submit briefs within 31 days of the date of this Order and both parties will have 30 days to respond to the submissions of the other party. No extensions will be granted. The Court will hear arguments only on the issues of laches and statute of limitations in Courtroom 26A in 500 Pearl Street on 1/24/00 at 2:00 p.m.) . ( signed by Judge Constance B. Motley ); Copies mailed. (ri) (Entered: 01/26/2000)
197 REPLY MEMORANDUM by Pamela K. Martens, Judith P. Mione in support of re: [183−1] motion for a four−day extension to submit the Memorandum of Law and accompanying exhibits in Opposition to the Defts' Motion to Strike and for

01/31/2000
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Attny's fees they filed on 11/19/99 (sac) (Entered: 01/26/2000)
198 MEMORANDUM OPINION AND ORDER #83412; Mr. Spriggs' motion to enforce the settlement is denied for its gross failure to comply with the page limits of this court's Individual Rules. If Mr. Spriggs elects to refile this motion in compliance with this court's rules relating to motions, he is instructed that any factual allegations regarding improprieties by class counsel or Smith Barney or both in connection with the DRP be properly supported by affidavits, signed by individuals with personal knowledge of the alleged improprieties. Mr. Spriggs has 21 days from the date of this order to serve and refile his motion in compliance with this court's rules and the court's instructions herein. Opposing counsel will have 21 days to answer. Mr. Spriggs will have ten days to reply. The court has found no record from which it can conclude that Mr. Spriggs is currently admitted to practice in the SDNY. Mr. Spriggs must demonstrate compliance with Rule 1.3 prior to entering an appearance before this court. Mr. Spriggs is instructed to submit either proof of admission to practice in the SDNY and current good standing therein or a motion to appear pro hac vice supported by proof of admission to practice and current good standing in another jurisdiction. If a new motion is filed, a hearing is scheduled for Wednesday, 4/12/00 at 10:00 a.m. in Courtroom 26A at 500 Pearl St. At that time the court will hear the motion to enforce the settlement stipulation and motion to substitute counsel, meaning that the court will hear testimony of various witnesses and receive exhibits. ( signed by Judge Constance B. Motley ); Copies mailed. (sac) (Entered: 01/31/2000)
199 NOTICE OF MOTION by Pamela K. Martens, Judith P. Mione, Roberta O'Brien Thomann for an order, purs. to Rule 1.3(c); admitting John C. Davis to appear pro hac vice ; Return date not indicated. (sac) (Entered: 02/01/2000)
200 RENEWED NOTICE OF MOTION by Plaintiffs; for an order admitting Kent Spriggs pro hac vice on behalf of pltffs in this action ; Return date not indicated (ls) (Entered: 02/04/2000)
201 ORDER; granting [200−1] motion for an order admitting Kent Spriggs pro hac vice on behalf of pltffs in this action; granting [199−1] motion for an order, purs. to Rule 1.3(c); admitting John C. Davis to appear pro hac vice. (signed by Judge Constance B. Motley); Copies mailed. (docmt forwarded to Atty Admissions Clerk) (djc) (Entered: 02/16/2000)
202 MEMORANDUM OF LAW by Pamela K. Martens, Judith P. Mione in support of their argument that their pending individual claims are not barred by the statute of limitations or laches. (jp) (Entered: 02/24/2000)
203 DECLARATION of Gary Phelan by Pamela K. Martens, Judith P. Mione. (jp) (Entered: 02/24/2000)
204 MEMORANDUM OF LAW by Smith Barney, Inc., James Dimon In Support Of A Determinatin That The Statutes Of Limitations And Laches Bar Martens' And Mione's Individual Claims (ls) (Entered: 02/25/2000)
205 DECLARATION of Daniel J. Toal by Smith Barney, Inc., James Dimon in support Re: [204−1] support memorandum (ls) (Entered: 02/25/2000)
206 NOTICE OF MOTION by Cara Beth Walker, Teresa Tedesco for leave to file a revised motion to enforce settlement stipulation as set forth on this motion ; Return date not indicated. (jp) (Entered: 02/29/2000)
207 ORDER; that Spriggs' request for an extension of time in which to file his motion to enforce the settlement stipulation is granted ; Spriggs will have 21 days from the date of this order to file this motion. Plaintiffs and defendants will have 21 days in which to answer. All other provisions of the 1/28/00 order remain in effect ; If a new motion is filed, the hearing will be held on 4/27/00, at 10:00 a.m. in Courtroom 26 A. The hearing schedule for 4/12/00 is postponed . ( signed by Judge Constance B. Motley ); Copies mailed. (pl) Modified on 03/08/2000 (Entered: 03/07/2000)

03/07/2000 03/09/2000
03/09/2000
03/16/2000 03/24/2000 03/24/2000 03/27/2000 04/13/2000 04/17/2000 04/19/2000 04/19/2000 04/19/2000 04/19/2000

208 MEMORANDUM OF LAW by Smith Barney, Inc., James Dimon in opposition to [206−1] motion for leave to file a revised motion to enforce settlement stipulation as set forth on this motion; (djc) (Entered: 03/08/2000)
209 NOTICE OF MOTION by Smith Barney, Inc., James Dimon for an order, for reconsideration of the Court's Order dated 3/6/00 ; and, accordingly, for an order denying the Motion for Time to File Revised Motion to Enforce Settlement Stipulation filed by pltffs Cara Beth Walker, Teresa Tedsco and Lisa Mays on 2/28/00 ; Return date 4/10/00. (rec'd in the night deposit box on 3/9/00 at 7:38 p.m.) (sac) (Entered: 03/13/2000)
210 DECLARATION of Joyce S. Huang by Smith Barney, Inc., James Dimon in support Re: [209−1] motion for an order, for reconsideration of the Court's Order dated 3/6/00, [209−2] motion for an order denying the Motion for Time to File Revised Motion to Enforce Settlement Stipulation filed by pltffs Cara Beth Walker, Teresa Tedsco and Lisa Mays on 2/28/00. (rec'd in the night deposit box on 3/9/00 at 7:37 p.m.) (sac) (Entered: 03/13/2000)
211 RESPONSE by Pamela K. Martens, Judith P. Mione, Roberta O'Brien Thomann to [209−1] motion for an order, for reconsideration of the Court's Order dated 3/6/00, [209−2] motion for an order denying the Motion for Time to File Revised Motion to Enforce Settlement Stipulation filed by pltffs Cara Beth Walker, Teresa Tedsco and Lisa Mays on 2/28/00 (pl) (Entered: 03/17/2000)
212 OPPOSIITION MEMORANDUM OF LAW by Smith Barney, Inc., James Dimon In Support Of A Determination That The Statutes Of Limitations And Laches Bar Martens' And Mione's Individual Claims (ls) (Entered: 03/27/2000)
213 REPLY MEMORANDUM by Pamela K. Martens, Judith P. Mione in support of their argument that their pending individual claims are not barred by the Statute of Limitations or laches. (jp) (Entered: 03/27/2000)
214 NOTICE OF MOTION with memorandum of law by Cara Beth Walker, Teresa Tedesco to enforce the Order dated 7/28/00, approving the Consolidated Stipulation of Settlement in the respects detailed herein . No return date indicated. (sn) (Entered: 03/28/2000)
215 ORDER; the hearing on the issues and statute of limitations scheduled for April 24, 2000 at 2:00 p.m. will begin at 3:00 p.m. on that date in Courtroom 26A at 500 Pearl Street ; (signed by Judge Constance B. Motley ); Copies mailed. (djc) (Entered: 04/13/2000)
216 MEMORANDUM OF LAW by Smith Barney, Inc. in opposition to [214−1] motion to enforce the Order dated 7/28/00, approving the Consolidated Stipulation of Settlement in the respects detailed herein (cd) (Entered: 04/18/2000)
217 ORDER; Plaintiff's request to postpone the hearing scheduled for April 27, 2000 is granted. The hearing on the motion to enforce the settlement agreement will be held on May 15, 2000 at 10:00 a.m. in courtroom 26A at 500 Pearl Street ; (signed by Judge Constance B. Motley); Copies mailed. (djc) Modified on 04/20/2000 (Entered: 04/19/2000)
Deadline(s) updated: Motion hearing set for 10:00 a.m. on 5/15/00 for [214−1] motion to enforce the Order dated 7/28/00, approving the Consolidated Stipulation of Settlement in the respects detailed herein . (djc) Modified on 04/20/2000 (Entered: 04/20/2000)
218 MEMORANDUM OF LAW by Pamela K. Martens, Judith P. Mione, Roberta O'Brien Thomann in opposition to [214−1] motion to enforce the Order dated 7/28/00, approving the Consolidated Stipulation of Settlement in the respects detailed herein (cd) (Entered: 04/20/2000)
219 DECLARATION of Mary Stowell by Pamela K. Martens, Judith P. Mione, Roberta O'Brien Thomann in support Re: [218−1] opposition memorandum . (cd) (Entered: 04/20/2000)

04/25/2000
04/25/2000 04/27/2000 05/08/2000
05/10/2000 05/11/2000 05/15/2000 05/15/2000
05/15/2000 05/15/2000 05/15/2000 05/15/2000 05/15/2000

220 NOTICE OF MOTION by Smith Barney, Inc.; pursuant to Rule 45 (c)(3) of the F.R.C.P., quashing the 4/11/00 subpoena issued by Robert Z. Dobrish of Hoffinger, Friedland, Dobrish &Stern, putative counsel for plaintiffs Cara Beth Walker, Lisa Mays and Teresa Tedesco ; pursuant to Rule 45(c)(1) of the F.R.C.P. and 28 U.S.C. section 1927, awarding Smith Barney its attorneys' fees and costs incurred in connection with the instant motion ; Return date 5/17/00. (pl) (Entered: 04/26/2000)
221 MEMORANDUM OF LAW by Smith Barney, Inc. in support of [220−1] motion pursuant to Rule 45 (c)(3) of the F.R.C.P., quashing the 4/11/00 subpoena issued by Robert Z. Dobrish of Hoffinger, Friedland, Dobrish &Stern, putative counsel for plaintiffs Cara Beth Walker, Lisa Mays and Teresa Tedesco (pl) (Entered: 04/26/2000)
222 DECLARATION of Daniel J. Toal by Smith Barney, Inc. in support Re: [221−1] support memorandum . (djc) (Entered: 05/02/2000)
223 RESPONSE by Cara Beth Walker, Teresa Tedesco Re: [220−1] motion pursuant to Rule 45 (c)(3) of the F.R.C.P., quashing the 4/11/00 subpoena issued by Robert Z. Dobrish of Hoffinger, Friedland, Dobrish &Stern, putative counsel for plaintiffs Cara Beth Walker, Lisa Mays and Teresa Tedesco, [220−2] motion pursuant to Rule 45(c)(1) of the F.R.C.P. and 28 U.S.C. section 1927, awarding Smith Barney its attorneys' fees and costs incurred in connection with the instant motion (jp) (Entered: 05/09/2000)
224 ORDER, class counsel request to cancel the hearing on the motion to enforce the settlement stipulation is denied. The hearing on the motion to enfore the settlement agreement will occur as scheduled on 5/15/00 at 10:00 a.m. ( signed by Judge Constance B. Motley ); Copies mailed. (cd) (Entered: 05/10/2000)
225 ORDER, that Kent Spriggs is to file a reply to class counsel's and Smith Barney's oppositions to his motion to enforce the settlement stipulation by 9:00 a.m. on 5/15/00 . ( signed by Judge Constance B. Motley ); Copies mailed. (ri) (Entered: 05/11/2000)
226 ORDER; that for the reasons outlined in the memorandum opinion filed simultaneously herewith, all individual claims of plaintiffs Pamela K. Martens and Judith P. Miione in this case are dismissed with prejudice pursuant to F.R.C.P. 41(b) for failure to prosecute . ( signed by Judge Constance B. Motley ); Copies mailed. (pl) (Entered: 05/16/2000)
227 MEMORANDUM OPINION #83955; that the court finds the Martens' and Mione's fifteen month delay in pursuing their individual claims was unreasonable and inexcusable. As such, all of Martens' and Mione's individual claims shall be dismissed with prejudice pursuant to F.R.C.P. 41(b) for failure to prosecute . ( signed by Judge Constance B. Motley ); Copies mailed. (pl) (Entered: 05/16/2000)
228 AFFIRMATION of Claire Saady, Esq. by Edna Broyles, Constance Bladon and Jane Hyatt Zimmerman Re: in support of B. Walker and T. Tedesco's Motion to Enforce the Terms of the Consolidated Stipulation of Settlement. (djc) (Entered: 05/16/2000)
236 NOTICE OF MOTION by Plaintiffs to strike the affirmation of Claire Saady, Esq. in support of B. Walker and T. Tedesco's motion to enforce the terms of the consolidated stipulation of settlement , or, in the alternative, to strike their response to Saady's Affirmation . No return date indicated. (sn) (Entered: 05/19/2000)
237 MEMORANDUM IN RESPONSE by Plaintiffs re: NOW−NYC's Amicus Brief. (sn) Modified on 05/19/2000 (Entered: 05/19/2000)
238 REPLY by Plaintiffs to Class Counsel's opposition to motion to enforce the settlement stipulation. (sn) (Entered: 05/19/2000)
239 REPLY MEMORANDUM OF LAW by Plaintiffs in reply to Smith Barney and James Dimon's opposition to their motion to enforce settlement stipulation. (sn) (Entered: 05/19/2000)

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05/18/2000 05/18/2000 05/18/2000 05/18/2000
05/19/2000

250 Transcript of record of proceedings before Judge Constance B. Motley for the date(s) of 5/15/00. (cd) (Entered: 07/10/2000)
229 ORDER; for the reasons outlined in the memorandum opinion filed simultaneously herewith, the Court now recinds Kent Spriggs' pro hac vice admission to this Court . ( signed by Judge Constance B. Motley ); Copies mailed. (sn) Modified on 05/18/2000 (Entered: 05/17/2000)
230 MEMORANDUM OPINION #83961, the court revokes its previous order granting Kent Spriggs and John C. Davis permission to appear in this action pro hac vice ; purs to the court's authority under FRCP 11(c)(1)(B) the court imposes sanctions of $5,000 each against Kent Spriggs and John C. Davis for violations of Rule 11 ( signed by Judge Constance B. Motley ); Copies mailed. (cd) (Entered: 05/17/2000)
231 ORDER, purs to the court's authority under FRCP 11(c)(1)(B) the court now imposes sanctions against Kent Spriggs and John C. Davis in the amount of $5,000 each. Kent Spriggs and John C. Davis are each ordered to pay $5,000 to the Clerk of Court within 30 days of the date of this order ( signed by Judge Constance B. Motley ); Copies mailed. (cd) (Entered: 05/17/2000)
232 ORDER, that John C. Davis of the law firm Springs &Davis of Tallahassee, Florida was admitted to practice pro hac vice upon showing of good standing as a member of the Florida Bar. For the reasons outlined in the memorandum opinion filed on this date, this Court determined that the conduct of John C. Davis before this court violated FRCP 11. Based on this misconduct the court now rescinds John C. Davis' pro hac vice admission . ( signed by Judge Constance B. Motley ); Copies mailed. (Original forwarded to the Attorney Admissions Clerk) (ri) (Entered: 05/17/2000)
233 ORDER; for the reasons stated on the record in the hearing conducted on 5/15/00 the motion to enforce the settlement stipulation filed on behalf of pltffs Cara Beth Walker and Teresa Tedesco is denied. ( signed by Judge Constance B. Motley ); Copies mailed. (sac) (Entered: 05/18/2000)
234 REPLY MEMORANDUM by Smith Barney, Inc. in support of re: [220−1] motion pursuant to Rule 45 (c)(3) of the F.R.C.P., quashing the 4/11/00 subpoena issued by Robert Z. Dobrish of Hoffinger, Friedland, Dobrish &Stern, putative counsel for plaintiffs Cara Beth Walker, Lisa Mays and Teresa Tedesco, [220−2] motion pursuant to Rule 45(c)(1) of the F.R.C.P. and 28 U.S.C. section 1927, awarding Smith Barney its attorneys' fees and costs incurred in connection with the instant motion. (rec'd in the night deposit box on 5/17/00 at 7:39 p.m.) (sac) (Entered: 05/19/2000)
235 ORDER, that Pamela K. Martens' and Judith P. Mione's motion for reconsideration of [230−1] order the court revokes its previous order granting Kent Spriggs and John C. Davis permission to appear in this action pro hac vice, is denied . (signed by Judge Constance B. Motley); Copies mailed. (ri) (Entered: 05/19/2000)
240 NOTICE OF MOTION by Pamela K. Martens, Judith P. Mione for reconsideration of the Court's May 15, 2000 Opinion ; Return date not indicated. (djc) (Entered: 05/19/2000)
241 MEMORANDUM OF LAW by Pamela K. Martens, Judith P. Mione in support of [240−1] motion for reconsideration of the Court's May 15, 2000 Opinion (djc) (Entered: 05/19/2000)
242 ORDER; granting [220−1] motion pursuant to Rule 45 (c)(3) of the F.R.C.P., quashing the 4/11/00 subpoena issued by Robert Z. Dobrish of Hoffinger, Friedland, Dobrish &Stern, putative counsel for plaintiffs Cara Beth Walker, Lisa Mays and Teresa Tedesco; denying [220−2] motion pursuant to Rule 45(c)(1) of the F.R.C.P. and 28 U.S.C. section 1927, awarding Smith Barney its attorneys' fees and costs incurred in connection with the instant motion . ( signed by Judge Constance B. Motley ); Copies mailed. (pl) (Entered: 06/02/2000)
243 AFFIRMATION of Claire Saady, Esq by Edna Broyles in Opposition to [236−1] motion to strike the affirmation of Claire Saady, Esq. in support of B. Walker

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and T. Tedesco's motion to enforce the terms of the consolidated stipulation of settlement. (djc) (Entered: 05/23/2000)
244 NOTICE OF APPEAL by Pamela K. Martens, Judith P. Mione ; from [226−1] order that for the reasons outlined in the memorandum opinion filed simultaneously herewith, all individual claims of plaintiffs Pamela K. Martens and Judith P. Miione in this case are dismissed with prejudice pursuant to F.R.C.P. 41(b) for failure to prosecute, [226−2] relief . Copies of notice of appeal mailed to Attorney(s) of Record: Paul Weiss, Rjifking, Wharton &Garrison, Stowell &Friedman, Theodore A. Krebsbach &Associates, P.C.*($105 paid on 5/25/00 receipt # E374633. (sl) (Entered: 05/31/2000)
Notice of appeal and certified copy of docket to USCA: [244−1] appeal by Judith P. Mione, Pamela K. Martens ; Copy of notice of appeal sent to District Judge. (sl) (Entered: 05/31/2000)
246 NOTICE of Compliance with the Court's Order of 5/16/00 by Cara Beth Walker, Lisa Mays and Teresa Tedesco (ri) (Entered: 06/09/2000)
245 Transcript of record of proceedings before Judge Constance B. Motley for the date(s) of 4/27/00. (jp) (Entered: 06/09/2000)
247 NOTICE OF APPEAL by Cara Beth Walker, Teresa Tedesco and attorneys Kent Spriggs and John Davis ; from [229−1] order for the reasons outlined in the memorandum opinion filed simultaneously herewith, the Court now recinds Kent Spriggs' pro hac vice admission to this Court, [231−1] order purs to the court's authority under FRCP 11(c)(1)(B) the court now imposes sanctions against Kent Spriggs and John C. Davis in the amount of $5,000 each. Kent Spriggs and John C. Davis are each ordered to pay $5,000 to the Clerk of Court within 30 days of the date of this order, [232−1] order that John C. Davis of the law firm Springs &Davis of Tallahassee, Florida was admitted to practice pro hac vice upon showing of good standing as a member of the Florida Bar. For the reasons outlined in the memorandum opinion filed on this date, this Court determined that the conduct of John C. Davis before this court violated FRCP 11. Based on this misconduct the court now rescinds John C. Davis' pro hac vice admission . Copies of notice of appeal mailed to Attorney(s) of Record: Linda Friedman and Brad S, Karp. $105.00 Appeal filing fee paid 6/12/00 on receipt # E 375845. (dt) (Entered: 06/13/2000)
248 NOTICE OF APPEAL by Cara Beth Walker, Teresa Tedesco ; from [233−1] order for the reasons stated on the record in the hearing conducted on 5/15/00 the motion to enforce the settlement stipulation filed on behalf of pltffs Cara Beth Walker and Teresa Tedesco is denied., [242−1] order . Copies of notice of appeal mailed to Attorney(s) of Record: Linda Friedman and Brad S. Karp. $105.00 Appeal filing fee paid 6/12/00 on receipt # E 375847. (dt) (Entered: 06/13/2000)
Notice of appeal and certified copy of docket to USCA: [247−1] appeal by Teresa Tedesco, Cara Beth Walker ; Copy of notice of appeal sent to District Judge. (dt) (Entered: 06/13/2000)
Notice of appeal and certified copy of docket to USCA: [248−1] appeal by Teresa Tedesco, Cara Beth Walker ; Copy of notice of appeal sent to District Judge. (dt) (Entered: 06/13/2000)
249 NOTICE of filing of letter of 1/3/00 by Cara Beth Walker, Teresa Tedesco re in the Motion to Enforce the Settlement Stipulation on page 60 paragraph b, the moving pltffs requested that Class Counsel be orderd to "report to the Court basic facts concerning the implementation of the DRP thus far... so that the Court and parties have a factual basis for fully assessing whether the Settlement Stipulation is being implemented in accordance w/ the letter and intent of the Court's Order" (lf) (Entered: 06/23/2000)
251 Notice that the record on appeal has been certified and transmitted to the U.S. Court of Appeals: [244−1] appeal by Judith P. Mione, Pamela K. Martens (sl) (Entered: 08/28/2000)

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255 NOTICE of Attorney's Lien for reasonable fees and expenses upon Stacey Kovach. (pl) (Entered: 09/21/2000)
252 NOTICE OF MOTION by Edna Broyles for default judgment against Smith Barney for failure to comply with the terms of the Consolidated Stipulaiton of Settlement or in the alternative ordering Smith Barney to submit to arbitration ; Return date 10/6/00. (djc) (Entered: 09/21/2000)
253 MEMORANDUM OF LAW by Edna Broyles in support of [252−1] motion for default judgment against Smith Barney for failure to comply with the terms of the Consolidated Stipulaiton of Settlement, [252−2] motion ordering Smith Barney to submit to arbitration . (djc) (Entered: 09/21/2000)
254 AFFIRMATION of Claire Saady and Exhibits by Edna Broyles in support of Re: [252−1] motion for default judgment against Smith Barney for failure to comply with the terms of the Consolidated Stipulaiton of Settlement, [252−2] motion ordering Smith Barney to submit to arbitration . (djc) (Entered: 09/21/2000)
256 MEMORANDUM OF LAW in opposition to [252−1] motion for default judgment against Smith Barney for failure to comply with the terms of the Consolidated Stipulaiton of Settlement, [252−2] motion ordering Smith Barney to submit to arbitration . (pl) (Entered: 10/05/2000)
257 DECLARATION of Joyce S. Huang in support of Re: [252−1] motion for default judgment against Smith Barney for failure to comply with the terms of the Consolidated Stipulaiton of Settlement, [252−2] motion ordering Smith Barney to submit to arbitration . (pl) (Entered: 10/05/2000)
258 ORDER, Motion hearing set for 3:00 on 1/26/01 in Courtroom 26−A for [252−2] motion ordering Smith Barney to submit to arbitration . ( signed by Judge Constance B. Motley ); Copies mailed. (kg) Modified on 01/17/2001 (Entered: 01/17/2001)
259 SUPPLEMENTAL DECLARATION of Joyce S. Huang by Smith Barney, Inc. in opposition to Re: [252−1] motion for default judgment against Smith Barney for failure to comply with the terms of the Consolidated Stipulaiton of Settlement. (Received in the night deposit box on 1/23/01 at 5:22 p.m.) (kw) Modified on 01/25/2001 (Entered: 01/25/2001)
260 ORDER, at the request of plaintiff Edna Broyles the hearing of plaintiff's application to compel arbitration, originally scheduled for 1/26/01 at 3:00 p.m., is hereby adjourned. The rescheduled conference will take place 4/3/01 at 11:00 a.m. ( signed by Judge Constance B. Motley ); Copies mailed. (kw) (Entered: 01/30/2001)
261 NOTICE By Former Counsel of Attorney Fees and Cost Lien Relating to Resolution of claims of Cindy Van Lammeren by Roberta O'Brien Thomann . (cd) (Entered: 04/10/2001)
262 NOTICE by former counsel of attorney fee and costs lien relating to resolution of claims of Cara Beth Walker. (tp) (Entered: 10/10/2001)
263 AFFIDAVIT of Cara Beth Walker by Cara Beth Walker in opposition to her former counsel's attorney fee and cost lien dated 9/19/01 (cd) (Entered: 10/15/2001)
Indexed record on appeal files (00−7688) sent to the U.S.C.A. *(Files requested by Vincenza Singleton from the U.S.C.A.)*. (dt) (Entered: 10/26/2001)
264 NOTICE OF MOTION by Pamela K. Martens, Judith P. Mione pursuant to FRCP 16(a) and (b), requesting that the Court schedule a pretrial and/or scheduling conference related to both a pending motion and discovery . Return date not indicated. (yv) (Entered: 12/06/2001)
265 MEMORANDUM OF LAW by Smith Barney, Inc., James Dimon in opposition to [264−1] motion pursuant to FRCP 16(a) and (b), requesting that the Court schedule a pretrial and/or scheduling conference related to both a pending motion and discovery . (djc) (Entered: 12/12/2001)

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266 REPLY MEMORANDUM of LAW by Pamela K. Martens, Judith P. Mione in response to [265−1] opposition memorandum (djc) (Entered: 01/02/2002)
267 Letter filed by Pamela K. Martens, Judith P. Mione addressed to Clerk of Corut from Gary Phelan, dated 12/20/01; re: counsel notifies court that he has relocated to firm of Klebanoff &Phelan, P.c., Corporate Center West, 433 South Main Street, Suite 117, West Hartford, CT 06110. (djc) (Entered: 01/02/2002)
268 MANDATE OF USCA (certified copy) Re: appo. [248−1] appeal by Teresa Tedesco, Cara Beth Walker, [247−1] appeal by Teresa Tedesco, Cara Beth Walker, [244−1] appeal by Judith P. Mione, Pamela K. Martens. It is hereby ordered, adjudged and decreed that the judgment of said district court be and it hereby is vacated and remanded for further proceedings in accordance with the opinion of this Court. Issued as Mandate: 2/5/02, 00−7688(L), 00−7768(CON), &00−7772(CON) Roseann B. MacKechnie, Clerk, U.S.C.A. (sb) (Entered: 02/14/2002)
269 ORDER; On November 20, 2001, the United States Court of Appeal for the second Circuit issued an opinion in this matter. The mandate, however, has yet to issue. Until such time as the mandate issues, this court lacks jurisdiction over the issues raised in the appeal ; Plaintiff's rquests for a conference is denied without prejudice as premature and procedurally defective ; Plaintiff Edna Broyles' request for a stay of unspecified arbitration proceedings is denied without prejudice as premature and procedurally defective ; Plaintiff Patricia Clemente petition for a revised f the proceedings of the DRP process is denied without prejudice as premature and procedurally defective ; Plaintiffs Pamela K. Martens and Judith P. Mione filed a motion 12/3/01 seeking a pretrial conference. The motion of Martens and Mione is denied without prejudice as premature ; ( signed by Judge Constance B. Motley ); Copies mailed. (djc) (Entered: 02/19/2002)
270 ORDER, Deadline for filing of all motions by 3/8/02; Response to motion deadline 3/29/02, not to exceed 25 pages ; Reply to response to motion deadline 4/10/02, no to exceed 10 pages; Pretrial conference set for 10:00 5/1/02, in Courtroom 26 A, 500 Pearl St., NY NY. All parties must arrive prepared to argue any pending motions ( signed by Judge Constance B. Motley ); Copies mailed. (cd) (Entered: 02/26/2002)
272 NOTICE OF MOTION by Pamela K. Martens, Judith P. Mione; for an Order granting the parties permission to submit a supplemental memorandum of law relating to defendants' motion to compel arbitration , and to issue a scheduling order . No return date set. (kkc) (Entered: 03/12/2002)
273 MEMORANDUM OF LAW by Pamela K. Martens, Judith P. Mione in support of [272−1] motion for an Order granting the parties permission to submit a supplemental memorandum of law relating to defendants' motion to compel arbitration, [272−2] motion to issue a scheduling order. (kkc) (Entered: 03/12/2002)
274 NOTICE OF MOTION by Cara Beth Walker, Lisa Mays, Patricia Clemente, Marianne Dalton, Teresa Tedesco; for an Order for leave to conduct discovery , and to allow supplementation of motions and briefs based on such discovery . No return date set. Declaration of Kent Spriggs attached. (kkc) (Entered: 03/12/2002)
275 NOTICE OF MOTION by Cara Beth Walker, Lisa Mays, Patricia Clemente, Marianne Dalton, Teresa Tedesco; for an Order to enforce the Order of 7/28/98 approving the consolidated stipulation of settlement . No return date set. (kkc) (Entered: 03/12/2002)
276 MEMORANDUM OF LAW by Cara Beth Walker, Lisa Mays, Patricia Clemente, Marianne Dalton, Teresa Tedesco in support of [275−1] for an Order to enforce the Order of 7/28/98 approving the consolidated stipulation of settlement. (kkc) (Entered: 03/12/2002)
277 NOTICE OF MOTION by Smith Barney, Inc., James Dimon; for an Order for a ruling on their pending motion, which the parties have fully briefed, for an Order compelling plaintiffs Pamela K. Martens and Judith P. Mione to arbitration and staying this action pending arbitration . Return date 5/1/02. (kkc) (Entered:

03/08/2002 03/11/2002 03/11/2002 03/11/2002 03/14/2002 03/29/2002 03/29/2002
03/29/2002
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03/12/2002)
279 NOTICE OF MOTION for an Order extending the March 8, 2002 deadline for filing motions by sixty (60) days , to reopen the settlement of Phyllis Jamison and, to conduct discovery . Return date not indicated. (yv) (Entered: 03/19/2002)
271 NOTICE OF APPEAL to the United States District Court for the Southern District of New York by Edna Broyles ; from ; the Decision and Order of the Alternate Dispute Resolution (ADR) Panel, dated January 11, 2002. Copies of notice of appeal mailed to Attorney(s) of Record: Paul, Weiss, Rifkind, Wharton &Garrison, Brad Karp, Esq. (dt) (Entered: 03/11/2002)
Notice of appeal to the United States District Court for the Southern District of New York. Sent copy of Appeal to District Court Judge Motley. [271−1] appeal by Edna Broyles. (dt) (Entered: 03/11/2002)
278 NOTICE OF MOTION by Cara Beth Walker for an order granting default judgment against Smith Barney, Inc. Return date, not indicated. Memorandum of law in support and exhibits attached (moc) (Entered: 03/14/2002)
Record on appeal files (00−7688) returned from U.S. Court of Appeals: [247−1] appeal by Teresa Tedesco, Cara Beth Walker, [248−1] appeal by Teresa Tedesco, Cara Beth Walker. (dt) (Entered: 03/19/2002)
280 MEMORANDUM OF LAW by Pamela K. Martens, Judith P. Mione in opposition to [277−1] motion for an Order for a ruling on their pending motion, which the parties have fully briefed, for an Order compelling plaintiffs Pamela K. Martens and Judith P. Mione to arbitration and staying this action pending arbitration . (bai) (Entered: 04/02/2002)
281 MEMORANDUM OF LAW by Pamela K. Martens, Judith P. Mione, Roberta O'Brien Thomann, Lorraine Parker, Bette Laswell, Jennifer Alvarez, Marianne Dalton, Patricia Clemente, Simone Schwendener, Cara Beth Walker, Edna Broyles, Edna Tompkins, Stephanie Rodruck, Danielle Saccone, Beverly Trice, Lori Hurwitz, Lydia Klein, Eileen Valentino, Patricia Hanloin, Teresa Tedesco, Mary Ann Cabell, Mary Ann Cabell, Ardis Vinnecour, Tracy Gibbs, Robin Tompkins, Patricia Hanlon in opposition to [275−1] motion for an Order to enforce the Order of 7/28/98 approving the consolidated stipulation of settlement . (bai) (Entered: 04/02/2002)
282 MEMOEANDUM IN RESPONSE by Pamela K. Martens, Judith P. Mione, Roberta O'Brien Thomann, Lorraine Parker, Bette Laswell, Jennifer Alvarez, Marianne Dalton, Patricia Clemente, Simone Schwendener, Cara Beth Walker, Edna Broyles, Edna Tompkins, Stephanie Rodruck, Danielle Saccone, Beverly Trice, Lori Hurwitz, Lydia Klein, Eileen Valentino, Patricia Hanloin, Teresa Tedesco, Mary Ann Cabell, Mary Ann Cabell, Ardis Vinnecour, Tracy Gibbs, Robin Tompkins, Patricia Hanlon [279−1] motion for an Order extending the March 8, 2002 deadline for filing motions by sixty (60) days, [279−2] motion to reopen the settlement of Phyllis Jamison, [279−3] motion to conduct discovery (bai) (Entered: 04/02/2002)
283 PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW filed by plaintiffs. RE: motion of moving plaintiffs to enforce the settlement stipulation. (bai) (Entered: 04/02/2002)
284 MEMORANDUM OF LAW by Pamela K. Martens, Judith P. Mione, Roberta O'Brien Thomann, Lorraine Parker, Bette Laswell, Jennifer Alvarez, Marianne Dalton, Patricia Clemente, Simone Schwendener, Cara Beth Walker, Edna Broyles, Edna Tompkins, Stephanie Rodruck, Danielle Saccone, Beverly Trice, Lori Hurwitz, Lydia Klein, Eileen Valentino, Patricia Hanloin, Teresa Tedesco, Mary Ann Cabell, Mary Ann Cabell, Ardis Vinnecour, Tracy Gibbs, Robin Tompkins, Patricia Hanlon in opposition to the moving plaintiffs' motion for leave to conduct discovery, allow supplementation of motion, and for an order scheduling the same. (bai) (Entered: 04/02/2002)
285 MEMORANDUM OF LAW by Pamela K. Martens, Judith P. Mione, Roberta O'Brien Thomann, Lorraine Parker, Bette Laswell, Jennifer Alvarez, Marianne

03/29/2002
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Dalton, Patricia Clemente, Simone Schwendener, Cara Beth Walker, Edna Broyles, Edna Tompkins, Stephanie Rodruck, Danielle Saccone, Beverly Trice, Lori Hurwitz, Lydia Klein, Eileen Valentino, Patricia Hanloin, Teresa Tedesco, Mary Ann Cabell, Mary Ann Cabell, Ardis Vinnecour, Tracy Gibbs, Robin Tompkins, Patricia Hanlon in opposition to [214−1] motion to enforce the Order dated 7/28/00, approving the Consolidated Stipulation of Settlement in the respects detailed herein . Exhibits attached. (bai) (Entered: 04/02/2002)
286 MEMORANDUM OF LAW by Pamela K. Martens, Judith P. Mione, Roberta O'Brien Thomann, Lorraine Parker, Bette Laswell, Jennifer Alvarez, Marianne Dalton, Patricia Clemente, Simone Schwendener, Cara Beth Walker, Edna Broyles, Edna Tompkins, Stephanie Rodruck, Danielle Saccone, Beverly Trice, Lori Hurwitz, Lydia Klein, Eileen Valentino, Patricia Hanloin, Teresa Tedesco, Mary Ann Cabell, Mary Ann Cabell, Ardis Vinnecour, Tracy Gibbs, Robin Tompkins, Patricia Hanlon in opposition to [275−1] motion for an Order to enforce the Order of 7/28/98 approving the consolidated stipulation of settlement . Declarations vol #I attached. (bai) (Entered: 04/02/2002)
287 MEMORANDUM OF LAW by Pamela K. Martens, Judith P. Mione, Roberta O'Brien Thomann, Lorraine Parker, Bette Laswell, Jennifer Alvarez, Marianne Dalton, Patricia Clemente, Simone Schwendener, Cara Beth Walker, Edna Broyles, Edna Tompkins, Stephanie Rodruck, Danielle Saccone, Beverly Trice, Lori Hurwitz, Lydia Klein, Eileen Valentino, Patricia Hanloin, Teresa Tedesco, Mary Ann Cabell, Mary Ann Cabell, Ardis Vinnecour, Tracy Gibbs, Robin Tompkins, Patricia Hanlon in opposition to [275−1] motion for an Order to enforce the Order of 7/28/98 approving the consolidated stipulation of settlement . Declarations vol #II attached. (bai) (Entered: 04/02/2002)
288 NOTICE OF CROSS−MOTION by Smith Barney, Inc. for an order pursuant to FRCP 12(b)(1), 122(b)(6) to strike the motion of Phyllis Jamison for an extension of time, to re−open her settlement and to conduct discovery Return date 5/1/02 at 10:00. (bai) (Entered: 04/02/2002)
289 NOTICE OF CROSS−MOTION by Smith Barney, Inc. for an order pursuant to FRCP 12(b)(1), 12(b)(6) to strike the motion of Cara Beth Walker for default judgment and the papers submitted in support thereof Return date 5/1/02 at 10:00. (bai) (Entered: 04/02/2002)
290 MEMORANDUM OF LAW by Smith Barney, Inc. in support of [289−1] cross motion for an order pursuant to FRCP 12(b)(1), 12(b)(6) to strike the motion of Cara Beth Walker for default judgment and the papers submitted in support thereof . (bai) (Entered: 04/02/2002)
291 MEMORANDUM OF LAW by Smith Barney, Inc., James Dimon in opposition to plaintiffs Martens' and Mione's motion for further supplemental briefing and for a scheduling conference. (bai) Modified on 04/05/2002 (Entered: 04/02/2002)
292 DECLARATION of Joyce S. Huang by Smith Barney, Inc. in opposition Re: [278−1] motion for an order granting default judgment against Smith Barney, Inc., and in support of Smith Barney's cross−motion to strike the motion. (bai) (Entered: 04/02/2002)
293 MEMORANDUM OF LAW by Smith Barney, Inc. in opposition to [278−1] motion for an order granting default judgment against Smith Barney, Inc., and in support of its cross−motion to strike . (bai) (Entered: 04/02/2002)
294 MEMORANDUM OF LAW by Smith Barney, Inc. in opposition to the motion of plaintiffs Lisa Mays, Patricia Clemente, Marianne Dalton and Teresa Tedesco to enforce the settlement stipulation. (bai) (Entered: 04/02/2002)
295 DECLARATION of Daniel J. Toal by Smith Barney, Inc. in support Re: [294−1] opposition memorandum . (bai) (Entered: 04/02/2002)
297 AFFIDAVIT OF SERVICE of Memo of Law of Defts memo in opposition to plntf'motion fo rfurther supplemetnal briefing, by personal svc on 4/8/02 (cd) (Entered: 04/11/2002)

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296 ORDER; Pltff Cara Beth Walker's written request for an extension of time until 4/27/02, to file her reply brief is denied. The Court, however, will grant an extension until 4/22/02. Ms. Walker must file and serve her reply papers before 5:00 PM on that date . ( signed by Judge Constance B. Motley ); Copies mailed. (sn) (Entered: 04/10/2002)
298 MEMORANDUM OF LAW by Smith Barney, Inc., James Dimon in opposition to plaintiff Martens' and Mione's unauthorized supplemental submission filed 3/29/02. (tp) (Entered: 04/12/2002)
299 REPLY MEMORANDUM by Pamela K. Martens, Judith P. Mione of [272−1] motion for an Order granting the parties permission to submit a supplemental memorandum of law relating to defendants' motion to compel arbitration, [272−2] motion to issue a scheduling order. (jco) (Entered: 04/15/2002)
300 Moving Plaintiffs' NOTICE of Filing by Marianne Dalton, Patricia Clemente, Teresa Tedesco, Mayes. (jco) (Entered: 04/17/2002)
301 REPLY MEMORANDUM to that of Class counsel in support of motion to enforce by Marianne Dalton, Patricia Clemente, Teresa Tedesco, Meyes. (jco) (Entered: 04/17/2002)
302 REPLY to Class Counsel's opposition to Motion for leave to conduct discovery, allow supplementation of Motions, and for an Order scheduling the same and supporting memorandum of law by Marianne Dalton, Patricia Clemente, Teresa Tedesco, Meyes. (jco) (Entered: 04/17/2002)
303 REPLY MEMORANDUM to that of Smith Barney in support of Motion to Enforce by Marianne Dalton, Patricia Clemente, Teresa Tedesco, Meyes. Exhibits attached. (jco) Modified on 04/17/2002 (Entered: 04/17/2002)
304 NOTICE OF MOTION by Plaintiffs; for an Order for Thomas E. Johnson to appear pro hac vice to represent Stowell &Friedman Ltd., class counsel , for an Order for Anne Megan Davis to appear pro hac vice to represent Stowell &Friedman Ltd., class counsel . No return date set. Affidavit of Janice Goodman attached. (kkc) (Entered: 04/19/2002)
305 RESPONSE by Cara Beth Walker to [289−1] cross motion for an order pursuant to FRCP 12(b)(1), 12(b)(6) to strike the motion of Cara Beth Walker for default judgment and the papers submitted in support thereof (cd) (Entered: 04/24/2002)
306 DECLARATION of Gary Phelan in opposition Re: [289−1] cross motion for an order pursuant to FRCP 12(b)(1), 12(b)(6) to strike the motion of Cara Beth Walker for default judgment and the papers submitted in support thereof . (bai) (Entered: 04/25/2002)
307 ORDER, granting [304−1] motion for an Order for Thomas E. Johnson to appear pro hac vice to represent Stowell &Friedman Ltd., class counsel, and granting [304−2] motion for an Order for Anne Megan Davis to appear pro hac vice to represent Stowell &Friedman Ltd., class counsel. ( signed by Judge Constance B. Motley ); Copies mailed. (Sent to the Attorney Admissions Clerk). (kw) Modified on 04/25/2002 (Entered: 04/25/2002)
Thomas E. Johnson and Anne Megan Davis have been admitted to practice pro hac vice. $50 fee was received int he cashiers office on 5/1/02 receipt #437690. (bai) (Entered: 05/03/2002)
308 MEMORANDUM OPINION AND ORDER #86915, granting [277−1] for an order compelling plaintiffs Pamela K. Martens and Judith P. Mione to arbitration and staying this action pending arbitration; denying [272−1] motion for an order granting the parties permission to submit a supplemental memorandum of law relating to defendants' motion to compel arbitration; denying [272−2] motion to issue a scheduling order; Plaintiff Edna Broyles's written request for a scheduling conference is denied . Smith Barney's written request to strike Ms. Broyle's Notice of Appeal (Doc. #271) is granted ; granting [289−1] cross motion for order pursuant to FRCP 12(b)(1), 12(b)(6) to strike the motion of Cara Beth Walker for default judgment and the papers submitted in support thereof; denying [279−1] motion for an Order extending the March 8, 2002 deadline for

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filing motions by sixty (60) days; denying [279−2] motion to reopen the settlement of Phyllis Jamison; denying [279−3] motion to conduct discovery; granting [288−1] cross motion for an order pursuant to FRCP 12(b)(1), 122(b)(6) to strike the motion of Phyllis Jamison for an extension of time, to re−open her settlement and to conduct discovery. ( signed by Judge Constance B. Motley ); Copies mailed. (ae) (Entered: 09/16/2002)
321 NOTICE OF INTERLOCUTORY APPEAL by Phyllis Jamison from [308−1] order Plaintiff Edna Broyles's written request for a scheduling conference is denied, [308−2] order Smith Barney's written request to strike Ms. Broyle's Notice of Appeal (Doc. #271) is granted, [308−3] order Entered on docket 5/3/02; Copies of notice of interocutory appeal mailed to Attorney(s) of Record: Kent Spriggs, Linda Friedman, Matthew Eli Moloshok, and Joseph D. Garrison. ($105.00 APPEAL FILING FEE DUE). (sb) (Entered: 09/16/2002)
310 Notice of Case Reassignment to Judge John G. Koeltl . Copy of notice and judge's rules mailed to Attorney(s) of record: Linda Friedman, Matthew Eli Moloshok, Joseph D. Garrison, Michele Lang Palter, Gary Phelan . (rmo) (Entered: 05/28/2002)
309 NOTICE OF APPEAL by Edna Broyles from [308−1] order Plaintiff Edna Broyles's written request for a scheduling conference is denied, [308−2] order Smith Barney's written request to strike Ms. Broyle's Notice of Appeal (Doc. #271) is granted, [308−3] order . Copies of notice of appeal mailed to Attorney(s) of Record: Brad S. Karp. $105.00 Appeal Filing Fee paid 5/24/02 on receipt # E440411. (sb) (Entered: 09/16/2002)
Notice of appeal and certified copy of docket to USCA: [309−1] appeal by Edna Broyles ; Copy of notice of appeal sent to District Judge. (sb) (Entered: 09/16/2002)
329 NOTICE OF APPEAL by Cara Beth Walker from [308−1] order Plaintiff Edna Broyles's written request for a scheduling conference is denied, [308−2] order Smith Barney's written request to strike Ms. Broyle's Notice of Appeal (Doc. #271) is granted, [308−3] order . Copies of notice of appeal mailed to Attorney(s) of Record: Kent Spriggs, Linda Friedman, Matthew Eli Moloshok, and Joseph D. Garrison. ($105.00 APPEAL FILING FEE DUE) (sb) (Entered: 09/16/2002)
312 ORDER; Defendants' counsel is directed to notify the Court of the status of the appeals of plaintiffs Walker, Jamison, and Broyles, and the outcome of attemts to enter into appropriate stipulations regarding those appeals, by June 26, 2002 . ( signed by Judge John G. Koeltl ); Copies mailed. (jco) (Entered: 06/27/2002)
311 STIPULATION, regarding the issues concerning the stipulation and agreement between Smith Barney Inc. and James Dimon, through their undersigned counsel and Phyllis Jamison as further set forth herein . ( signed by Judge John G. Koeltl ) (tp) (Entered: 06/25/2002)
313 Memo−Endorsement on letter addressed to Judge Koeltl from Richard Montanez, dated 6/21/02. Application for Mr. Montanez to appear pro hac vice granted . ( signed by Judge John G. Koeltl ); Copies mailed. (Sent to the Attorney Admissions Clerk). (kw) (Entered: 06/28/2002)
314 ORDER; that Counsel for plaintiff Broyles and counsel for the defendants are directed to notify the Court of the Status of the appeals of plaintiffs Walker and Broyles by 7/9/02 . ( signed by Judge John G. Koeltl ); Copies mailed. (pl) (Entered: 07/09/2002)
315 ORDER, plaintiff Jamison's application for leave to file an interlocutory appeal is denied as moot without prejudice . ( signed by Judge John G. Koeltl ); Copies mailed. (kw) (Entered: 07/10/2002)
CASHIER'S OFFICE REMARK on in the amount of $25.00 paid on 7/10/02 Receipt # 444619. (jco) (Entered: 07/16/2002)
316 Transcript of record of proceedings before Judge Constance B. Motley for the date(s) of 5/1/02 at 11:00 am. (gf) (Entered: 07/11/2002)

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317 NOTICE of attorney appearance for Cara Beth Walker by Richard Montanez, for the sole purpose of prosecuting an appeal on her behalf. (sb) (Entered: 07/18/2002)
318 NOTICE OF MOTION by Marianne Dalton, Patricia Clemente, Teresa Tedesco, Lisa Mays for permission to supplement motion to enforce ; for leave to file supplement to motion in excess of 25 pages ; Return Date not indicated (cd) (Entered: 07/23/2002)
319 NOTICE OF MOTION by Marianne Dalton, Patricia Clemente, Teresa Tedesco, Lisa Mays to supplement motion to enforce ; Return Date not indicated (cd) (Entered: 07/23/2002)
320 DECLARATIONS of F. Norm Bahramipour et al by Marianne Dalton, Patricia Clemente, Teresa Tedesco, Lisa Mays in support Re: [319−1] motion to supplement motion to enforce . (cd) (Entered: 07/23/2002)
USCA Case Number Re: [309−1] appeal by Edna Broyles USCA NUMBER: 02−7632 (sb) (Entered: 09/16/2002)
by Phyllis Jamison, Indexed record on appeal files sent to the U.S.C.A. (dt) (Entered: 07/30/2002)
Notice of appeal and certified copy of docket to USCA: [321−1] interlocutory appeal by Phyllis Jamison ; Copy of notice of appeal sent to District Judge. (sb) (Entered: 09/16/2002)
322 Notice that the record on appeal has been certified and transmitted to the U.S. Court of Appeals: [321−1] interlocutory appeal by Phyllis Jamison (sb) (Entered: 09/16/2002)
323 Transcript of record of proceedings before Judge John G. Koeltl for the date(s) of 6/18/02. (laq) (Entered: 08/02/2002)
324 DECLARATION IN SUPPORT OF REQUEST TO PROCEED IN FORMA PAUPERIS by Phyllis Jamison. (ae) (Entered: 08/06/2002)
325 MEMORANDUM OF LAW by Smith Barney, Inc. in opposition to motion of pltffs Lisa Mays, Patricia Clemente, Marianne Dalton &Teresa Tedesco for permission to Supplement their motion to enforce the Settlement Stipulation. (sac) (Entered: 08/08/2002)
326 Memo−Endorsement on letter addressed to Judge Koeltl from Laura J. Sweezey, dated 7/24/02. Re: plaintiff Laura Sweezey requests a stay in her case for 90 days to give her time to find a new counsel. The defendants are requested to respond to the request by 7/29/02 . ( signed by Judge John G. Koeltl ); Copies mailed. (kw) (Entered: 08/12/2002)
327 PLAINTIFFS' OPPOSITION by Roberta O'Brien Thomann, Lorraine Parker, Bette Laswell, Jennifer Alvarez, Marianne Dalton, Patricia Clemente, Simone Schwendener, Cara Beth Walker, Edna Broyles, Stephanie Rodruck, Danielle Saccone, Beverly Trice, Lori Hurwitz, Lydia Klein, Eileen Valentino, Teresa Tedesco, Mary Ann Cabell, Ardis Vinnecour, Tracy Gibbs, Robin Tompkins, Patricia Hanlon, Lisa Mays to moving plaintiffs' : [319−1] motion to supplement motion to enforce, [318−1] motion for permission to supplement motion to enforce, [318−2] motion for leave to file supplement to motion in excess of 25 pages (dle) Modified on 08/14/2002 (Entered: 08/14/2002)
MEMO−ENDORSEMENT on [324−1] Declaration in support of IFP; for plaintiff to proceed in forma pauperis . ( signed by Judge John G. Koeltl ); copies mailed. (db) Modified on 09/16/2002 (Entered: 08/22/2002)
328 Memo−Endorsement on letter addressed to Judge Koeltl from (not indicated), dated 7/9/02: Certification is not necessary because the plaintiff is purporting to pursue an appeal from final order. Other plaintiffs are doing the same. see attached letter. The appeal should therefore be processed and any objections can be raised on appeal . ( signed by Judge John G. Koeltl ); Copies mailed. (tp) (Entered: 08/27/2002)

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330 PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW by Roberta O'Brien Thomann, Lorraine Parker, Bette Laswell, Jennifer Alvarez, Marianne Dalton, Patricia Clemente, Simone Schwendener, Cara Beth Walker, Edna Broyles, Stephanie Rodruck, Danielle Saccone, Beverly Trice, Lori Hurwitz, Lydia Klein, Eileen Valentino, Patricia Hanloin, Teresa Tedesco, Mary Ann Cabell, Ardis Vinnecour, Tracy Gibbs, Robin Tompkins, Patricia Hanlon . (moc) (Entered: 09/06/2002)
331 MEMORANDUM OF LAW by Roberta O'Brien Thomann, Lorraine Parker, Bette Laswell, Jennifer Alvarez, Marianne Dalton, Patricia Clemente, Simone Schwendener, Cara Beth Walker, Edna Broyles, Stephanie Rodruck, Danielle Saccone, Beverly Trice, Lori Hurwitz, Lydia Klein, Eileen Valentino, Patricia Hanloin, Teresa Tedesco, Mary Ann Cabell, Ardis Vinnecour, Tracy Gibbs, Robin Tompkins, Patricia Hanlon in opposition to motion of moving plaintiffs to enforce the settlement stipulation. (moc) (Entered: 09/06/2002)
by Cara Beth Walker, Indexed record on appeal files sent to the U.S.C.A. (dt) (Entered: 09/09/2002)
Notice of appeal and certified copy of docket to USCA: [329−1] appeal by Cara Beth Walker ; Copy of notice of appeal sent to District Judge. (sb) (Entered: 09/16/2002)
332 Notice that the record on appeal has been certified and transmitted to the U.S. Court of Appeals: [329−1] appeal by Cara Beth Walker. (sb) (Entered: 09/16/2002)
USCA appeal fees paid on 9/17/02 in the amounnt $ 105.00 on receipt # E 450585. for the appeal of Cara Beth Walker. (pr) (Entered: 09/19/2002)
333 MEMO−ENDORSEMENT on Notice of Substitution of Counsel by Plaintiff and Class Representative Eileen Valentino; Plaintiff and Class Representative Eileen Valentino gives notice that she has retained Spriggs &Davis, P.A., and no longer wishes to be represented in her role as Class Representative by the firm of Stowell &Friedman ; granting plaintiff Eileen Valentino's request that she be added to the pending motions of the Moving Plaintiffs as stated and set forth in this Memo Endorsement . ( signed by Judge John G. Koeltl ); (ae) (Entered: 09/26/2002)
334 MEMO−ENDORSEMENT on Notice of Substitution; Plaintiff and Class Representative Patricia Hanlon gives notice that she has retained Spriggs &Davis, P.A., and no longer wishes to be represented in her role as Class Representatives by the firm of Stowell &Friedman ; Plaintiff Patricia Hanlon requests that her name be added to the pending motions of the moving plaintiffs as further set forth herein . ( signed by Judge John G. Koeltl ); Copies faxed by Chambers on 9/24/02. (tp) (Entered: 09/26/2002)
335 NOTICE OF MOTION by Pamela K. Martens, Judith P. Mione for permission to certify an interlocutory appeal under 28 USC 1292(b) of the 5/2/02 order granting the deft's motion to compel arbitration ; for reconsideration of the Court's 5/2/02 order to correct an error because the court should have permitted limited disovery on the costs of arbitration ; Return Date not indicated (cd) (Entered: 10/02/2002)
336 MEMORANDUM OF LAW by Pamela K. Martens, Judith P. Mione in support of [335−1] motion for permission to certify an interlocutory appeal under 28 USC 1292(b) of the 5/2/02 order granting the deft's motion to compel arbitration, [335−2] motion for reconsideration of the Court's 5/2/02 order to correct an error because the court should have permitted limited disovery on the costs of arbitration . (cd) (Entered: 10/02/2002)
337 AFFIRMATION of Neil A. Sussman by Madeleine Antekelian in opposition to Salomon Smith Barney's Motion for a temporary and permanent injunction. (sb) (Entered: 10/07/2002)
338 ORDER; dft. Salomon Smith Barney, Inc. and non−party dft. Madeleine Antekelian, will appear for a hearing on 10/15/02 at 3:00 p.m. on the dft's motion for a preliminary injunction ; the defendant may submit any further papers by

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10/7/02 at 5:00 p.m. The non−party defendant may submit responsive papers by 10/11/02 at 5:00 p.m. Reply paeprs, if any, must be submitted by 10/15/02 at 10:00 a.m. ; this Order decides the defendants' Order to Show Cause for a temporary restraining order. For the reasons stated on the record, the defendant's application for temporary restraining order is denied . ( signed by Judge John G. Koeltl ): Copies Faxed by Chambers. (pl) (Entered: 10/15/2002)
339 MEMORANDUM OF LAW by Smith Barney, Inc., James Dimon in opposition to [335−1] motion for permission to certify an interlocutory appeal under 28 USC 1292(b) of the 5/2/02 order granting the deft's motion to compel arbitration, [335−2] motion for reconsideration of the Court's 5/2/02 order to correct an error because the court should have permitted limited disovery on the costs of arbitration. Received in night deposit box on 10/11/02 at 8:30 p.m. (yv) (Entered: 10/21/2002)
341 ORDER TO SHOW CAUSE by Smith Barney, Inc. for temporary restraining order (Unsigned). (kw) (Entered: 10/24/2002)
342 AFFIRMATION of Neil A. Sussman in opposition to Solomon Smith Barney's motion for Temporary and Permanent Injunction. (kw) (Entered: 10/24/2002)
340 Memo−Endorsement on letter addressed to Judge Koeltl from Aimee Meltzer Florin, dated 10/7/02; counsel writes to request withdrawal of defendant Salomon Smith Barney's Order to Show Cause for an injunction against class member Madeline Antekelian in an arbitration pending before the NASD. Order to Show Cause withdrawn . ( signed by Judge John G. Koeltl ); Copies Faxed by Chambers. (kkc) (Entered: 10/24/2002)
343 REPLY MEMORANDUM by Plaintiffs in support re: [335−1] motion for permission to certify an interlocutory appeal under 28 USC 1292(b) of the 5/2/02 order granting the deft's motion to compel arbitration, [335−2] motion for reconsideration of the Court's 5/2/02 order to correct an error because the court should have permitted limited disovery on the costs of arbitration . (moc) (Entered: 10/30/2002)
344 ORDER; Class Counsel and Smith Barney's Response to Motion (Memoranda may not exceed 55 pages) set for 11/25/02 re: [319−1] motion to supplement motion to enforce ; Movants' Reply to Response to Motion (not to exceed 15 pages to each of the responsive briefs) set for 12/9/02 re: [319−1] motion to supplement motion to enforce ( signed by Judge John G. Koeltl ); Copies faxed and mailed by Chambers (djc) (Entered: 11/06/2002)
345 NOTICE of filing by Class Counsel. (yv) (Entered: 11/14/2002)
346 Memo−Endorsement on letter addressed to Judge Koeltl. from Anne Megan Davis, dated 11/20/02: Class Counsel and Smith Barney's Response to Motion reset for 12/9/02 re: [319−1] motion to supplement motion to enforce , Moving Plaintiffs' Reply to Response to Motion reset for 12/23/02 re: [319−1] motion to supplement motion to enforce . ( signed by Judge John G. Koeltl ); Copies faxed by Chambers. (tp) (Entered: 12/03/2002)
MEMO−ENDORSEMENT on [345−1] notice; time to file responsive briefs extended to 12/09/02; Time to file reply briefs extended to 12/23/02; Same page limits apply ; ( signed by Judge John G. Koeltl ); (djc) (Entered: 12/03/2002)
348 MEMORANDUM OF LAW by Smith Barney, Inc. in opposition to Plntf's Motion to Enforce the Settlement Stipulation (cd) (Entered: 12/12/2002)
349 DECLARATION of Kevin McManus by Smith Barney, Inc. in support Re: [348−1] opposition memorandum . (cd) (Entered: 12/12/2002)
350 Plntfs' Consolidated MEMORANDUM OF LAW in opposition to moving plntfs' motion to enforce settlement stipulation and motion to supplement motion to enforce (cd) (Entered: 12/12/2002)
351 DECLARATIONS n support Re: [350−1] opposition memorandum (cd) (Entered: 12/12/2002)

12/10/2002 12/20/2002
12/24/2002 01/08/2003 01/08/2003 01/09/2003 01/10/2003 01/17/2003
02/11/2003
02/11/2003 02/11/2003 02/13/2003 02/19/2003

347 Transcript of record of proceedings before Judge John G. Koeltl for the date(s) of 10/3/02. (ja) (Entered: 12/10/2002)
352 PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW w/ Respect to Motion of Moving Plaintiffs to Enforce the Settlement Stipulation and Motion to Supplement Motion to Enforce by Roberta O'Brien Thomann, Lorraine Parker, Bette Laswell, Jennifer Alvarez, Marianne Dalton, Patricia Clemente, Simone Schwendener, Cara Beth Walker, Edna Broyles, Stephanie Rodruck, Danielle Saccone, Beverly Trice, Lori Hurwitz, Lydia Klein, Eileen Valentino, Teresa Tedesco, Mary Ann Cabell, Ardis Vinnecour, Tracy Gibbs, Robin Tompkins, Patricia Hanlon, Lisa Mays . (ae) (Entered: 12/30/2002)
353 ORDER, that the parties are requested to provide courtesy copies of the briefs in connection with the moving plaintiffs' motion for leave to conduct discovery . ( signed by Judge John G. Koeltl ); Copies faxed by Chambers. (tp) (Entered: 12/30/2002)
354 ORDER, the parties are requested to provide coutesy copies of the briefs in connection with the moving plaintiffs' motion for leave to conduct discovery . ( signed by Judge John G. Koeltl ); Document faxed by Chambers. (yv) (Entered: 01/10/2003)
355 OPINION AND ORDER # 87913: for reasons further set forth in said opinion and order, pltffs' [335−1] motion for permission to certify an interlocutory appeal is DENIED, in the alternative, pltffs' [335−2] motion for reconsideration is also DENIED. ( signed by Judge John G. Koeltl ) (db) (Entered: 01/14/2003)
357 NOTICE OF MOTION (filed on service date) by Plaintiffs, for an Order striking moving plaintiff's Reply Memorandum to Stowell &Friedman filed 12/23/02 ; or, in the alternative, for an Order granting plaintiffs leave to file a sue−reply with additional declarations . Return Date not indicated. Exhibit A is attached. (tp) (Entered: 01/17/2003)
356 NOTICE of filing of Motion to Strike Reply Brief or, in the alternative, Motion for leave to file a surreply by Plaintiffs upon parties further listed herein. (tp) (Entered: 01/17/2003)
358 NOTICE OF MOTION (FILED ON SERVICE DATE) by Judith P. Mione, Smith Barney, Inc., Jennifer Alvarez, Patricia Clemente, Eileen Valentino, Patricia Hanloin moving pltffs' request that Class Counsel's motion to strike is not well founded, and should be denied , or, in the alternative for leave to file sur−rebuttal . Notice of Filing attached. No Return Date indicated. (db) (Entered: 01/27/2003)
359 MANDATE OF USCA (certified copy) Re: Plaintiff Phyllis Jamison appeals from a district court order denying her motion to conduct further discovery. Discovery orders are not appealable prior to the entry of a final judgment. ORDERED that the appeal is DISMISSED. ISSUED AS MANDATE 2/4/03, 02−7884. ROSEANN B. MACKECHNIE, CLERK, USCA. (pr) (Entered: 02/13/2003)
360 MANDATE OF USCA (certified copy) Re: [309−1] appeal by Edna Broyles. Plaintiff Enda Broyles appeals from the district court order striking Broyles's notice of appeal from an order of an Arbitration Panel. ORDERED that the appeal is DISMISSED. ISSUED AS MANDATE 2/4/03, 02−7632(L). ROSEANN B. MACKECHNIE, CLERK, USCA. (pr) (Entered: 02/13/2003)
361 MANDATE OF USCA (certified copy) Re: Plaintiff Cara Beth Walker appeals from a district court order denying her motion for a default judgment. ORDERED that the appeal is DISMISSED. ISSUED AS MANDATE 2/4/03, 02−9088. ROSEANN B. MACKECHNIE, CLERK. USCA. (pr) (Entered: 02/13/2003)
374 PLAINTIFFS' REPLY BRIEF in support of their motion to strike moving plaintiffs' reply brief. (ae, ) (Entered: 12/29/2003)
362 Memo−Endorsement on letter addressed to Judge Koeltl from Anne Megan Davis, dated 2/5/03. Class Counsel assumes that under Local Civil Rule 6.1, they

04/17/2003 04/17/2003 05/21/2003 05/21/2003
05/29/2003 06/10/2003 07/09/2003
07/11/2003
07/11/2003 07/11/2003 07/18/2003
07/18/2003 07/24/2003 09/24/2003 10/15/2003

have five business days from this date to file their reply brief in support to their motion to strike reply brief, and they will do so promptly. Application granted. ( signed by Judge John G. Koeltl ); Copies faxed by Chambers. (sb) (Entered: 02/24/2003)
Record on appeal files (02−9088) returned from U.S. Court of Appeals: [329−1] appeal by Cara Beth Walker. (dt) (Entered: 04/18/2003)
363 ORDER, that oral argument in this matter is hereby scheduled for 4:30 p.m. on Monday, 4/28/03 . ( signed by Judge John G. Koeltl ); (tp) (Entered: 04/18/2003)
364 ORDER, regarding the Court's response to the letter form counsel for Smith Barney dated 5/9/03 . ( signed by Judge John G. Koeltl ); (kw) (Entered: 05/27/2003)
365 ORDER, regarding the Court's response to Ms. Jamison's 5/14/03 letter. The Court cannot require the parties to attempt to reopen the appeal. If the parties do not agree to do that, the parties should advise the Court no later than 5/23/03 and the Court will proceed with Ms. Jamison's motion along with the other motions before the Court . ( signed by Judge John G. Koeltl ); (kw) (Entered: 05/27/2003)
366 NOTICE of Firm Registration as an LLP and name change by Smith Barney, Inc., James Dimon. (jco) (Entered: 06/04/2003)
Record on appeal file (02−7884) mreturned from U.S. Court of Appeals: [309−1] appeal by Edna Broyles (pr) (Entered: 06/10/2003)
367 DUPLICATE ORIGINAL OPINION AND ORDER #88736, the "motion to supplement" has been granted only to the extent the Court has considered all of the evidence and arguments contained in that motion, but those submissions do not justify granting the relief sought in the motion to enforce. The motion for leave to conduct discovery is denied . ( signed by Judge John G. Koeltl ); (kw) (Entered: 07/10/2003)
368 ORDER, that the motion for reconsideration filed by Jamison is denied without prejudice to reinstatement within thirty days of any order of the court of appeals refusing to take Ms. Jamison's appeal which is the subject of a motion for reconsideration of dismissal of the appeal . ( signed by Judge John G. Koeltl ); (dle) (Entered: 07/14/2003)
369 Order of dismissal; All pending motions in this case are now disposed of and the Clerk of Court is directed to close the case. ( signed by Judge John G. Koeltl ) (sb) (Entered: 07/14/2003)
Case closed. (sb) (Entered: 07/14/2003)
370 NOTICE OF APPEAL by Marianne Dalton, Lydia Klein, Lisa Mays from [367−1] order the "motion to supplement" has been granted only to the extent the Court has considered all of the evidence and arguments contained in that motion, but those submissions do not justify granting the relief sought in the motion to enforce. The motion for leave to conduct discovery is denied . Copies of notice of appeal mailed to Attorney(s) of Record: Mary Stoweell, Linda Friedman, Thomas E. Johnson, Ann Megan Davis and Brad S. Karp. $105.00 Appeal filing fee paid 7/18/03 on receipt # E 480028. (dt) (Entered: 07/24/2003)
371 Transcript of record of proceedings before Judge John G. Koeltl for the date(s) of 5/5/03. (df) (Entered: 08/27/2003)
Notice of appeal and certified copy of docket to USCA: [370−1] appeal by Lisa Mays, Lydia Klein, Marianne Dalton ; Copy of notice of appeal sent to District Judge. (dt) (Entered: 07/24/2003)
USCA Case Number Re: [370−1] appeal by Lisa Mays, Lydia Klein, Marianne Dalton USCA NUMBER: 03−7744. (dt) (Entered: 09/24/2003)
372 Notice that the record on appeal has been certified and transmitted to the U.S. Court of Appeals: [370−1] appeal by Lisa Mays, Lydia Klein, Marianne Dalton. (dt) (Entered: 10/15/2003)

12/10/2003 12/15/2003 12/19/2003
12/24/2003 01/12/2004 01/29/2004 02/17/2004 02/17/2004 02/17/2004 02/17/2004 02/18/2004
02/18/2004 03/08/2004 03/31/2004 12/09/2004
12/09/2004
12/09/2004 06/10/2005

373 ORDER; the Court requests that the defts provide courtesy copies of the Stipulation of Settlement along with the supplements and amendments. (Signed by Judge John G. Koeltl on 12/9/2003) (Pecorino, Joseph) (Entered: 12/24/2003)
375 ORDER; that for the reasons set forth on this order, Ms. Jamison's motion for reconsideration is denied. (Signed by Judge John G. Koeltl on 12/12/03) (Pecorino, Joseph) (Entered: 12/31/2003)
376 ENDORSED LETTER addressed to Judge Koeltl from Phyllis Jamison dated 12/19/03 re: Report to Your Honor by claimant.; Smith Barney should provide to Ms. Jamison the same set of Settlement Stipulations previously provided to this Court. (Signed by Judge John G. Koeltl on 12/16/03) (pl, ) (Entered: 01/06/2004)
378 ORDER (duplicate original). Ms. Jamison's motion for reconsideration is denied. (Signed by Judge John G. Koeltl on 12/12/03) (yv, ) (Entered: 01/13/2004)
377 TRANSCRIPT of proceedings held on 11/18/03 before Judge John G. Koeltl.(jf, ) (Entered: 01/12/2004)
379 NOTICE OF APPEAL from 375 Order. Document filed by Phyllis Jamison. Copies of Notice of Appeal mailed to Attorney(s) of Record: Brad S, Karp, Esq.. (dt, ) (Entered: 02/17/2004)
$255.00 APPEAL FILING FEE DUE. Document filed by Phyllis Jamison. (dt, ) (Entered: 02/17/2004)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 379 Notice of Appeal. (dt, ) (Entered: 02/17/2004)
Transmission of Notice of Appeal to the District Judge re: 379 Notice of Appeal. (dt, ) (Entered: 02/17/2004)
381 DECLARATION IN SUPPORT OF REQUEST TO PROCEED IN FORMA PAUPERIS. Document filed by Phyllis Jamison.(tp, ) (Entered: 03/11/2004)
380 Appeal Record Sent to USCA (Index). Notice that the Original index to the record on Appeal for 379 Notice of Appeal filed by Phyllis Jamison 3 Copies of the index, Certified Clerk Certificate and Certified Docket Sheet were transmitted to the U.S. Court of Appeals. (dt, ) (Entered: 02/18/2004)
Appeal Record Sent to USCA (File). Indexed record on Appeal Files for 379 Notice of Appeal filed by Phyllis Jamison were transmitted to the U.S. Court of Appeals. (dt, ) (Entered: 02/18/2004)
USCA Case Number 04−0890−cv from the U.S.C.A. 2nd Cir. assigned to 379 Notice of Appeal filed by Phyllis Jamison. (dt, ) (Entered: 03/08/2004)
ENDORSEMENT on Declaration in Support of Request to Proceed In Forma Pauperis, I.F.P. REQUEST IS GRANTED. (Signed by Judge John G. Koeltl on 3/19/04) (tp, ) (Entered: 04/01/2004)
382 MANDATE of USCA (Certified Copy) as to 370 Notice of Appeal,, filed by Marianne Dalton, Lydia Klein, Lisa Mays USCA Case Number 03−7744. It is hereby Ordered, Adjudged and Decreed that the judgment of the District Court is AFFIRMED. Roseann B. MacKechnie, Clerk USCA. Issued As Mandate: 11/23/04. (dt, ) (Entered: 12/09/2004)
Costs Taxed as to 382 USCA Mandate, USCA Case Number 03−7744. in the amount of $450.42. Docketed as Judgment #04,2195 on 12/9/04 in favor of Appellees, Smith Barney, Inc., et al against Appellants, Marianne Dalton, et al. (Original Attached To Doc.# 382. (dt, ) (Entered: 12/09/2004)
Transmission of USCA Mandate/Order to the District Judge re: 382 USCA Mandate,. (dt, ) (Entered: 12/09/2004)
383 NOTICE OF MOTION (FILED ON SERVICE DATE) to Reopen Case and Enjoining Martens class members Deborah Orlando and Kathryn N. Varner... Document filed by Smith Barney, Inc. (mde, ) (Entered: 06/14/2005)

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10/11/2005 10/13/2005

384 MEMORANDUM OF LAW in Support re: 383 MOTION (FILED ON SERVICE DATE) to Reopen Case and Enjoining Martens class members Deborah Orlando and Kathryn N. Varner.. Document filed by Smith Barney, Inc.. (mde, ) (Entered: 06/14/2005)
385 AFFIDAVIT of David Hess in Support re: 383 MOTION (FILED ON SERVICE DATE) to Reopen Case and Enjoining Martens class members Deborah Orlando and Kathryn N. Varner.. Document filed by Smith Barney, Inc.. (mde, ) (Entered: 06/14/2005)
386 DECLARATION of Jay Cohen in Support re: 383 MOTION (FILED ON SERVICE DATE) to Reopen Case and Enjoining Martens class members Deborah Orlando and Kathryn N. Varner.. Document filed by Smith Barney, Inc.. (mde, ) (Entered: 06/14/2005)
387 MANDATE of USCA (Certified Copy) as to 379 Notice of Appeal filed by Phyllis Jamison, USCA Case Number 04−0890−cv. Ordered, Adjudged and Decreed that the judgment of the District Court is AFFIRMED. MACKECHNIE, Clerk USCA. Issued As Mandate: 6/16/05. (pr, ) (Entered: 06/22/2005)
Transmission of USCA Mandate/Order to the District Judge re: 387 USCA Mandate,. (pr, ) (Entered: 06/22/2005)
388 ENDORSED LETTER addressed to Judge John G. Koeltl from Piper Hoffman dated 6/22/05 re: Any response to the pending motion in this Court by any interested party must be filed by 7/8/05. Any reply must be filed by 7/15/05. THe Court will consider whetherit have argument after reveisng the papers. (Signed by Judge John G. Koeltl on 6/24/05) (sac, ) (Entered: 06/27/2005)
389 ENDORSED LETTER addressed to Judge John G. Koeltl from Piper Hoffman dated 6/29/05 re: Application GRANTED. The Amochaev plaintiffs opposition to defendants motion to transfer is due 7/18/05, reply due 7/25. (Signed by Judge John G. Koeltl on 6/30/05) (db, ) (Entered: 07/13/2005)
391 RESPONSE to Motion re: 383 NOTICE OF MOTION (FILED ON SERVICE DATE) to Reopen Case and Enjoining Martens class members Deborah Orlando and Kathryn N. Varner... Document filed by Smith Barney, Inc. (sac, ) (Entered: 07/28/2005)
390 ENDORSED LETTER addressed to Judge Koeltl from Jay Cohen dated 7/20/05 re: request for an extension of time to file reply papers until 7/27/05., Set Deadlines/Hearing as to 383 MOTION (FILED ON SERVICE DATE) to Reopen Case.: Replies due by 7/27/2005. Application granted (Signed by Judge John G. Koeltl on 7/20/05) (yv, ) (Entered: 07/27/2005)
392 REPLY MEMORANDUM OF LAW in Further Support re: 383 MOTION (FILED ON SERVICE DATE) to Reopen Case.. Document filed by Smith Barney, Inc.. (pf, ) (Entered: 08/02/2005)
Appeal Record Returned. Indexed record on Appeal Files for 329 Notice of Appeal, filed by Cara Beth Walker,, 321 Notice of Interlocutory Appeal,, filed by Phyllis Jamison,, 370 Notice of Appeal,, filed by Marianne Dalton,, Lydia Klein,, Lisa Mays,, 309 Notice of Appeal, filed by Edna Broyles,, 248 Notice of Appeal, filed by Cara Beth Walker,, Teresa Tedesco,, 271 Notice of Appeal, filed by Edna Broyles,, 244 Notice of Appeal,, filed by Pamela K. Martens,, Judith P. Mione,, 379 Notice of Appeal filed by Phyllis Jamison,, 247 Notice of Appeal,,,, filed by Cara Beth Walker,, Teresa Tedesco, USCA Case Number 04−0890−cv, returned from the U.S. Court of Appeals. (nd, ) (Entered: 09/08/2005)
393 MEMORANDUM OPINION AND ORDER;92270 re: 383 MOTION (FILED ON SERVICE DATE) to Reopen Case. filed by Smith Barney, Inc.. (Signed by Judge John G. Koeltl on 10/7/05) (pl, ) Modified on 10/14/2005 (ns, ). (Entered: 10/12/2005)
394 MEMO ENDORSEMENT on motion for Kelly M. Dermody to appear pro hac vice. So Ordered. (Signed by Judge John G. Koeltl on 10/7/05) (js, ) (Entered: 10/14/2005)

10/14/2005 10/20/2005 09/29/2006

Transmission to Attorney Admissions Clerk. Transmitted re: 394 Memo Endorsement, to the Attorney Admissions Clerk for updating of Attorney Information. (js, ) (Entered: 10/14/2005)
395 MEMORANDUM OPINION AND ORDER; that Smith Barney's motion to enjoin certain plaintiffs in this action from pursuant the Amochaev action in the U.S.D.C. for the Northern District of California is denied. (Signed by Judge John G. Koeltl on 10/7/05) (pl, ) (Entered: 10/21/2005)
396 TRANSCRIPT of proceedings held on 10/7/05 before Judge John G. Koeltl. (jw, ) (Entered: 09/29/2006)

 
 273 F.3d 159 (2001)
Pamela K. MARTENS, Judith P. Mione, Cara Beth Walker and Teresa Tedesco, PlaintiffsAppellants,
Kent Spriggs and John Davis, Appellants, v.
Roberta O'Brien THOMANN, Robin Tompkins, Patricia Hanlon, Lorraine Parker, Bette Laswell, Jennifer Alvarez, Marianne Dalton, Patricia Clemente, Simone Schwendener, Edna Broyles, Stephanie Rodruck, Danielle Saccone, Beverly Trice, Lori Hurwitz, Lydia Klein, Eileen Valentino, Mary Ann Cabell, Ardis Vinnecour, and Tracy Gibbs, on behalf of
themselves and all others similarly situated, Plaintiffs-Appellees, Smith Barney Inc., a/k/a Shearson/American Express, Shearson Lehman Hutton, a/k/a
Shearson Lehman Brothers Holdings, Inc., a/k/a Shearson Lehman Brothers, Smith Barney/Shearson, Inc., James Dimon, Nicholas Cuneo, The New York Stock Exchange and
The National Association of Securities Dealers, Defendants-Appellees.
Docket Nos. 00-7688(L), 00-7768 and 00-7772(CON).
United States Court of Appeals, Second Circuit.
Argued February 9, 2001. Decided November 20, 2001.
16123 *161 *162 *163 Gary Phelan and Joseph D. Garrison, Garrison, Phelan, Levin-Epstein, Chimes & Richardson, New Haven, CT, for plaintiffs-appellants Pamela K. Martens, Judith P. Mione, Cara Beth Walker, and Teresa Tedesco; and appellants Kent Spriggs and John Davis.
Kent Spriggs, Spriggs & Davis, P.A., Tallahassee, FL, for plaintiffs-appellants Cara Beth Walker and Teresa Tedesco.
Linda Friedman, Stowell & Friedman, Ltd., Chicago, IL (Max Fischer, on the brief), for plaintiffs-appellees.
Brad S. Karp, Paul, Weiss, Rifkind, Wharton & Garrison, New York, NY (Joyce S. Huang, Daniel J. Toal, on the brief), for defendant-appellee Smith Barney Inc.
Jerry G. Traynham, Patterson & Traynham, Tallahassee, FL, (submitted brief) for amici curiae Lisa Mays, Marianne Dalton, Edna Broyles, Danielle Saccone, and Cindy Van Lammeren.
Sally P. Dunaway, Thomas W. Osborne, Laurie A. McCann, AARP Foundation Litigation, Melvin Radowitz, AARP, Washington, DC, (submitted brief) for amicus curiae AARP.
Paula Brantner, National Employment Lawyers Association, San Francisco, CA, Margaret A. Harris, Butler & Harris, Houston, TX, (submitted briefs) for amicus curiae NELA.
164 *164 Before: CALABRESI and SOTOMAYOR, Circuit Judges.[*]
SOTOMAYOR, Circuit Judge.
This opinion addresses three separate appeals arising out of a Title VII class action: (1) two class representatives, plaintiffs-appellants Cara Beth Walker and Teresa Tedesco, appeal from a judgment of the United States District Court for the Southern District of New York (Constance Baker Motley, Judge) denying their motion to enforce a class action settlement agreement, and seek reassignment of the case to a different judge on remand; (2) appellants Kent Spriggs and John Davis appeal from an order revoking their pro hac vice status and sanctioning them pursuant to Fed.R.Civ.P. 11, see Martens v. Smith Barney, Inc., 194 F.R.D. 113 (S.D.N.Y.2000);

and (3) two class representatives who opted out of the class, plaintiffs-appellants Pamela Martens and Judith Mione, appeal from the dismissal of their individual claims for failure to prosecute, pursuant to Fed.R.Civ.P. 41(b).
Because the district court denied the motion to enforce the settlement agreement without a hearing or an explanation, we vacate the dismissal and remand for clarification or further proceedings not inconsistent with this opinion. The motion to reassign is denied. Furthermore, because the district court afforded Spriggs and Davis neither sufficient notice nor opportunity to be heard before issuing its order revoking their pro hac vice status and imposing Rule 11 sanctions, that order is vacated. Finally, finding that the district court abused its discretion in dismissing Martens's and Mione's individual claims for failure to prosecute, we vacate the judgment of the district court dismissing those claims.
BACKGROUND
On May 20, 1996, one current and two former female employees of defendant-appellee Smith Barney/Shearson, Inc. ("Smith Barney"), plaintiffs-appellants Pamela Martens and Judith Mione (the "individual plaintiffs") and plaintiff Roberta O'Brien,[1] initiated this Title VII nationwide class action suit against Smith Barney and two Smith Barney officers, defendants-appellees Nicholas Cuneo and James Dimon, alleging sexual discrimination, harassment, and retaliation against them and others similarly situated.[2] The complaint also sought a declaratory judgment holding that the compulsory arbitration policies of Smith Barney and of defendants-appellees The New York Stock Exchange ("NYSE") and The National Association of Securities Dealers ("NASD") 0907 pursuant to which all employment-related claims, including discrimination claims, are subject to binding arbitration 0907 violated the 165 Due Process Clause *165 of the Fifth Amendment.[3] The district court appointed Stowell & Friedman, Ltd. as counsel for the class.
By October 1996, all defendants had moved to dismiss the declaratory judgment count of the complaint. On November 21, 1997, the district court issued an order preliminarily approving a settlement agreement (the "Settlement Agreement"), conditionally certifying a settlement class, providing for notice, and scheduling a fairness hearing.
On April 9, 1998, the court conducted the scheduled fairness hearing and, on June 23, 1998, issued an opinion rejecting the Settlement Agreement as unfair. Martens v. Smith Barney, Inc., 181 F.R.D. 243, 268 (S.D.N.Y.1998). On July 23, 1998, the court conducted a second fairness hearing, and, on July 28, 1998, the court issued a final order and judgment approving an amended version of the Settlement Agreement. Martens v. Smith Barney, Inc., No. 96 CIV 3779, 1998 WL 1661385 (S.D.N.Y. July 28, 1998). In its order, the district court purported to retain "exclusive jurisdiction" over all disputes arising from the settlement or its order:
Without affecting the finality of this Final Order and Judgment, this Court retains exclusive jurisdiction over the implementation and enforcement of this Final Order and Judgment. Smith Barney, the Named Plaintiffs and Class Representatives, and each member of the Class are hereby deemed to have submitted irrevocably to the exclusive jurisdiction of this Court for any suit, action, proceeding or dispute relating to this Final Order and Judgment or the Settlement Stipulation, except to the extent remitted by the Settlement Stipulation for resolution in a different forum.
Id. at *5.
Among other things, the Settlement Agreement provided for a Dispute Resolution Process ("DRP") for the handling of individual claims. The Settlement Agreement also provided that "[i]f this Settlement Agreement does not become effective for any reason or is terminated pursuant to Section Fifteen of this Settlement Stipulation, this Settlement Stipulation shall be deemed null and void and of no force or effect, and the Parties shall be restored to their respective positions existing prior to the date of this Settlement Stipulation." The court's order approving the settlement contained a provision to much the same effect. Id.

The Settlement Agreement became effective on February 1, 1999. On June 24, 1999, Stowell & Friedman, as class counsel, filed a report on the implementation of the Settlement Agreement in which it reported that Smith Barney had made significant progress in implementing the agreement.

Denial of the Motion to Enforce the Settlement Agreement, Revocation of Pro hac vice Status, and Imposition of Rule 11 Sanctions

On November 19, 1999, class representatives Cara Beth Walker and Teresa Tedesco (the "moving plaintiffs")[4] 166 filed a so-called "motion to enforce" the Settlement *166 Agreement, and a motion to substitute the law firm of
Spriggs & Davis for Stowell & Friedman as their counsel "in their roles as Representative Plaintiffs." Among other things, the motion accused class counsel and Smith Barney of breaching the Settlement Agreement in numerous respects and requested that the district court invalidate the DRP. That same day, these class representatives filed a so-called "emergency motion" for relief from Judge Motley's rules limiting memoranda of law to twenty-five pages in connection with their motion to enforce. Kent Spriggs, of Spriggs & Davis, had filed a motion to appear pro hac vice on November 4, 1999, and had signed the various motion papers submitted by the classrepresentative plaintiffs requesting substitution of counsel. The district court had not ruled on Spriggs's pro hac vice motion when Spriggs signed the motion papers.

In its opposition to the moving plaintiffs' motion to substitute Spriggs & Davis, Stowell & Friedman contended, inter alia, that Spriggs had been cited for professional misconduct by other courts and was therefore unqualified to take over as class counsel. In his reply papers, Spriggs specifically disclaimed any desire to be appointed class counsel and stated that "[i]t would seem that the only relevance of the many pages of personal attack on the undersigned and his firm is whether he is `adequate' under Rule 23(a)(4). Since that is not an issue before the Court, movants respond only cursorily to the allegations." After noting that Spriggs's firm had been placed on the initial attorney panel and that class counsel had praised Spriggs's abilities earlier, Spriggs stated that "Class Counsel's personal attacks are clearly a decoy. To the extent they merit any response, with regard to the opinions of other courts, those speak for themselves, and, when fairly read, do not support Class Counsel's spin."

In their papers opposing the "motion to enforce," Stowell & Friedman and Smith Barney argued that the motion for substitution of counsel was replete with sweeping allegations against them that were utterly lacking in evidentiary support. By letter dated January 3, 2000, the moving plaintiffs requested that the district court ask class counsel and Smith Barney for a status report on the implementation of the Settlement Agreement. This letter contained a list of proposed questions that the moving plaintiffs suggested the court ask Stowell & Friedman and Smith Barney. The court never acted on this request.

In an opinion and order dated January 31, 2000, the district court 0907 which had not granted moving plaintiffs prior permission to exceed the twenty-five-page limit 0907 denied plaintiffs' "motion to enforce" for, among other reasons, failure to comply with its individual rules. Martens v. Smith Barney, Inc., No. 96 CIV. 3779, 2000 WL 108831 (S.D.N.Y. Jan. 31, 2000). The district court noted that the allegations made in the motion were "unsupported by affidavits from individuals with personal knowledge," and that if the moving plaintiffs wished to refile their motion in accordance with the court's Individual Rules, Spriggs was instructed that "any factual allegations regarding improprieties by class counsel or Smith Barney or both in connection with the DRP be properly supported by affidavits signed by individuals with personal knowledge of the alleged improprieties." Id. at *1.

Although the opinion did not specifically rule on the motion to substitute, the opinion also discussed Spriggs's pro hac vice status:

The court has found no record from which it can conclude that Mr. Spriggs is currently admitted to

167

practice in the Southern District of New York. Mr. *167 Spriggs has signed each motion paper. The

name of a local law firm also appears on the papers. Rule 1.3 of the Local Rules of the United

States District Courts for the Southern and Eastern Districts of New York outlines the various

routes by which non-admitted attorneys may gain the right to practice in courts within the Southern

District. The court also calls Mr. Spriggs'[s] attention to Rule 11 of the Federal Rules of Civil

Procedure. Mr. Spriggs must demonstrate compliance with Rule 1.3 prior to entering an appearance before this court. Mr. Spriggs is instructed to submit either proof of admission to practice in the Southern District of New York and current good standing therein or a motion to appear pro hac vice supported by proof of admission to practice and current good standing in another jurisdiction.
Id. at *2. The court did not refer, however, to Spriggs's motion to appear pro hac vice that had been pending for three months.
Finally, the court gave moving plaintiffs twenty-one days to refile their "motion to enforce" the Settlement Agreement in compliance with the court's page limit requirement. The court also stated that, in the event that the motion were refiled, the court would conduct an evidentiary hearing on that motion in order to "hear testimony of various witnesses and receive exhibits." Id.
On February 2, 2000, local admitted counsel filed, on Spriggs's behalf, a second motion for Spriggs to appear pro hac vice.[5] The second motion referenced Spriggs's first motion to appear pro hac vice, and, like the first motion, was not opposed. On February 14, 2000, the district court granted pro hac vice status to both Spriggs and Davis "for the purposes of representing Cara Beth Walker, Lisa Mays, and Teresa Tedesco as regards their motion to enforce the settlement stipulation."
On March 28, 2000, the moving plaintiffs filed a second "motion to enforce" the Settlement Agreement. The second motion largely reiterated the allegations made in the original motion to enforce. In their opposition papers, class counsel and Smith Barney again disputed each of the allegations raised by the moving plaintiffs and again argued that the moving plaintiffs' motion was frivolous and not supported by evidence. Furthermore, class counsel argued that Rule 11 sanctions should be imposed against Spriggs and Davis for filing a baseless motion without evidentiary support. Class counsel did not file a separate Rule 11 motion, however, or follow the procedures specified in Rule 11. Smith Barney merely noted that asserting frivolous allegations is sanctionable under 28 U.S.C. § 1927.[6] After being personally instructed to do so by the court, Spriggs filed a reply.
The district court scheduled a hearing on the filed "motion to enforce" for May 15, 2000, and denied class counsel's request to have the district court decide the motion on the papers. The court also issued an order stating that the hearing would concern "the motion to enforce the settlement agreement" and made no reference 168 to revocation of pro hac vice status or the imposition of sanctions under Rule 11. *168 The court's order directing Spriggs to file a reply brief likewise made no reference to the request to revoke pro hac vice status or to impose sanctions.
The moving plaintiffs' reply brief responded to the substantive arguments made by class counsel and Smith Barney, but did not address the allegations of Spriggs's misconduct in other cases, except to suggest that Rule 11 issues were not properly before the court and to offer "to respond to any inquiry from the Court concerning any of the events described in Class Counsel's Memorandum."
On May 15, 2000, the district court held the scheduled hearing. Instead of hearing evidence and testimony on the "motion to enforce," however, the district court asked Spriggs about class counsel's allegations of prior professional misconduct. Spriggs stated that he had not responded to these allegations in his reply brief because class counsel had not filed a formal Rule 11 motion and because the court had not followed the required method for initiating Rule 11 proceedings sua sponte. Spriggs added that he would be happy to answer any questions from the court or to file a supplemental brief on these issues if the court wished. In response, the district court withdrew its order permitting Spriggs to appear pro hac vice, stating:
[The court's] approval [of Spriggs'[s] motion to appear pro hac vice] is withdrawn based on the contents of this response which I have noted and your failure to respond. So you are removed from the determination 0907 or I revoke the determination, rather, I should say, which allows you to appear here. That background of yourself was never brought to my attention until now. We can't permit lawyers with histories like yours to appear in the Southern District. You may be allowed to appear somewhere else, but you're not allowed to appear here.

The court next stated that it would allow class counsel to speak on "the Rule 11 matter." Class counsel argued that Rule 11 sanctions were appropriate because the "motion to enforce" contained allegations "that were not researched, not well-founded, [and] not made in good faith."

The district court then permitted Davis to respond to these contentions. Davis and the court entered into a fairly extensive colloquy in which he described the allegations in the "motion to enforce" and the evidence that supported each of the allegations. Davis further argued that defendants neither filed a Rule 11 motion nor followed the procedural requirements set out in Rule 11. Davis also argued that he and Spriggs had no prior notice of the possibility of the court imposing Rule 11 sanctions in this situation because the district court's order denying their first motion to enforce referred to Rule 11 in the context of ensuring that Spriggs was admitted pro hac vice before he signed the motion papers, not in the context of submitting a motion without sufficient evidentiary support.

Smith Barney's counsel then spoke regarding sanctions. Counsel cited the court's reference to Rule 11 in its earlier order, and class counsel's and Smith-Barney's references to Rule 11 in their opposition papers. Counsel further suggested that the court could impose sanctions under 28 U.S.C. § 1927 or pursuant to its equitable powers.

At the conclusion of the hearing on the sanctions motion, Davis requested permission to brief the issue. The court denied his request. The court then orally imposed sanctions on both Davis and Spriggs:

169

[P]ursuant to Rule 11 and 28 U.S.C. Section 1927, sanctions are imposed on *169 Kenneth

Spriggs and John Davis in the amount of $5,000 each. As has been indicated, this court warned

both of these lawyers when they first filed something in this court back in January of this year of

the provisions of Rule 11, and so the issue of whether they have had sufficient notice that they

would be sanctioned by the court for failure to produce evidence in support of their allegations has

been clearly met.

Davis requested that the court hear argument on the "motion to enforce." The court responded that the motion was "denied on the merits." The court did not, however, expound further on its reasons for denying the motion.

The following day, May 16, 2000, the district court issued a written memorandum opinion revoking Spriggs and Davis's pro hac vice status and sanctioning the attorneys pursuant to Rule 11.[7]Martens, 194 F.R.D. 113. The court stated that its January 28, 2000 order had specifically given Spriggs and Davis notice that the court would consider Rule 11 sanctions if they submitted a motion making allegations without adequate support. The court also noted that class counsel and Smith Barney had argued in their opposition papers that sanctions would be appropriate. The court stated that it had provided Spriggs and Davis an opportunity to submit a reply to those papers and to be heard in court on the matter. The court explained that it revoked Spriggs's pro hac vice status because of his history of misconduct before other courts and Spriggs's failure to "disprove or explain" this history. Id. at 113-15. The court did not explain, however, why it was revoking Davis's pro hac vice status (which it had not seemingly revoked in the prior day's hearing). Nor did it elaborate on the basis for its denial of the refiled "motion to enforce."

The moving plaintiffs appeal the district court's denial of their second motion to enforce. Spriggs and Davis appeal the order revoking their pro hac vice status and imposing Rule 11 sanctions on them.

Dismissal of the Individual Plaintiffs' Claims for Failure to Prosecute

On April 6, 1998, the individual plaintiffs opted out of the class. Immediately thereafter, the individual plaintiffs sought permission of the court to be heard on the fairness of the settlement at the court's scheduled fairness hearing. The district court denied the request, ordering that "no individual who has excluded herself from the class ... may participate at the hearing." On August 13, 1998, the individual plaintiffs (and another plaintiff, Edna Broyles, who had not opted out of the class) filed a pro se motion for "reconsideration" of the order approving the

Settlement Agreement. On November 10, 1998, the district court denied the motion for reconsideration because, inter alia, "Martens and Mione previously withdrew from this class action."[8]
On February 1, 1999, the Settlement Agreement became effective. Believing that the Settlement Agreement did not resolve all of the claims alleged in the complaint, the individual plaintiffs inferred that the remaining claims became their individual claims. Chief among these was the claim seeking a declaration that defendants' 170 compulsory arbitration policies violated federal law. By October 1998, all defendants had moved to dismiss this *170 claim. On February 4, 1999 (three days after the Settlement Agreement became effective), the individual plaintiffs' counsel sent a letter to the court responding to defendants' pending motion to dismiss the declaratory judgment claim. NASD's counsel responded on February 10, 1999, informing the court that she had recently argued the same issue (i.e., the enforceability of such compulsory arbitration policies under federal law) in Desiderio v. National Association of Securities Dealers, 191 F.3d 198 (2d Cir.1999), then still pending before the Second Circuit and that "the parties need not speculate as to how the Second Circuit would rule." The individual plaintiffs claim that, in light of NASD's letter, they decided to delay their attempt to proceed with depositions and discovery with respect to their individual claims until either the Second Circuit ruled in Desiderio or the district court ruled on the pending motion to dismiss.
On April 5, 1999, the district court issued an order scheduling a pre-trial conference to address all pending motions. Prior to the conference, on June 11, 1999, the individual plaintiffs submitted a letter to the court stating that (1) the only motion pending before the court was defendants' motion to dismiss the declaratory judgment count, and (2) Smith Barney had not sought to compel arbitration of the individual plaintiffs' claims. The individual plaintiffs also noted that, because there was no pending motion to compel arbitration, they were contemplating initiating discovery with respect to their claims. In a letter to the Court dated June 17, 1999, Smith Barney responded that, if the individual plaintiffs commenced discovery in connection with their claims, Smith Barney would move to compel arbitration of those claims:
We recognize that this Court's ruling on defendants' pending motions to dismiss concerning the issue of Form U-4 arbitration likely will clarify the issues on any motion to compel. Smith Barney has no desire to engage in potentially duplicative or needless motion practice, particularly where a brief deferral until such time as this Court resolves defendants' motion to dismiss will simplify and clarify the issues before this Court. But, absent direction from this Court, [the individual plaintiffs' counsel's] suggestion that he may "proceed with discovery against Smith Barney" leaves us no choice but to move to compel arbitration, and to take such other action as may be appropriate.
On June 28, 1999, individual plaintiffs noticed depositions for August 5 and 6, 1999. On August 2, 1999, Smith Barney filed a motion to compel arbitration of the individual plaintiffs' claims.
On December 2, 1999, the court issued an order granting defendants NYSE's and NASD's motions to dismiss the declaratory judgment claim, relying primarily on this Court's intervening decision in Desiderio. Martens v. Smith Barney Inc., 190 F.R.D. 134, 137-38 (S.D.N.Y.1999). As to Smith Barney, the court noted that Smith Barney had a pending motion to compel arbitration of the individual plaintiffs' claims or, in the alternative, to dismiss or to stay the action as to these claims, and that the court had "not yet addressed the lawfulness of the specific arbitration procedures proposed by Smith Barney." Id. at 138. The district court held, however, that "[p]rior to ruling on Smith Barney's motions, this court must first determine whether Martens and Mione, as opt out plaintiffs, properly have any individual claims remaining before this court." Id. The district court concluded that "named plaintiffs, like nonnamed plaintiffs, who opt out of a settlement no longer remain in the class in any capacity and if they wish to 171 pursue their unique cases they must *171 actively do so separate from the class." Id. at 139-40. However, because the court was concerned that plaintiffs may not have understood the effect of opting out when they made the decision to do so, the court afforded the individual plaintiffs thirty days to rejoin the plaintiff class. The court reserved judgment on Smith Barney's motions until after the thirty-day period had expired.
The individual plaintiffs decided not to rejoin the class and filed a motion for reconsideration arguing that their individual claims still remained pending before the court even though they had opted out. In response, on January 24, 2000, the district court issued an opinion giving the individual plaintiffs ten days to rejoin the class. Martens v. Smith Barney Inc., 191 F.R.D. 54, 56 (S.D.N.Y.2000). The court stated that, in the event the individual

plaintiffs decided not to rejoin the class, their "individual claims remained pending as such but may now have been barred by laches or the statute of limitations." Id. The district court set a schedule for the parties "to brief both the laches and the statute of limitations questions if plaintiffs again reject the option to opt back in to the class and settlement within the next ten days." Id. The court noted that it would hear oral arguments "on these questions only." Id. Similarly, in its scheduling order of the same date, the court stated: "The court will hear arguments only on the issues of laches and statute of limitations."
The individual plaintiffs chose not to rejoin the class. In response, Smith Barney contended that the individual plaintiffs' failure to prosecute their claims diligently amounted to laches. In their opposition brief, the individual plaintiffs responded as follows:
Apparently realizing that they cannot show substantial prejudice as required by the laches defense, the defendants instead argue that the less stringent standards applied in failure to prosecute cases should be followed. However, this court ordered the parties to address only the issue of whether laches or the statute of limitations now barred the plaintiffs from pursuing their individual claims. The one case which the defendants rely upon to establish a connection between the failure to prosecute defense and the laches defense dealt only with equitable claims which did not have a statute of limitations. See Edward B. Marks Music Corp. v. Charles K. Harris Music Publ'g Co., 255 F.2d 518, 522 (2d Cir.1958). Moreover, the court did not rule that the plaintiff's claims were barred due to an eleven-year delay and even rejected arguments that the plaintiff's damages should be reduced as a result of that delay.
On April 27, 2000, the district court heard oral argument on the laches and statute of limitations issues. On May 15, 2000, the court issued a memorandum and order dismissing plaintiffs' individual claims for failure to prosecute pursuant to Fed.R.Civ.P. 41(b). The district court acknowledged that it "ha[d] not ordered either party to brief the issue of failure to prosecute," but observed that "the parties' briefs on the issue of whether Martens's and Mione's individual claims should be barred by laches sheds light on the relevant factors regarding failure to prosecute." The court rejected the individual plaintiffs' justifications for their delay and determined that, "[i]n light of Martens'[s] and Mione's history of behavior in this action, ... no lesser sanction than dismissal would be appropriate or effective."
On May 18, 2000, the individual plaintiffs filed a motion for reconsideration, arguing that the district court's 172 decision to dismiss *172 the claims for failure to prosecute was premature because the court had not ruled on
Smith Barney's motion to compel arbitration, and thus had failed to determine whether the court had subject matter jurisdiction over the individual claims. The district court denied the motion for reconsideration.
The individual plaintiffs appeal the district court's dismissal of their claim for failure to prosecute.
DISCUSSION
I. Appeal of the Moving Plaintiffs
A. Denial of the "Motion to Enforce"
We begin our discussion by noting that there is nothing in the Federal Rules of Civil Procedure styled a "motion to enforce." Nor is there approval for such a motion to be found in this Circuit's case law, except in situations inapposite to the case before us. Unfortunately, neither the parties nor the court below clarified precisely what relief was being requested and under what rule the motion was noticed.
We note this failure not merely to enforce procedural formality, but because typically we would be severely burdened in our review of the disposition of this "motion" on appeal. There are, for example, many ways in which the performance of a class action settlement might be called into question before the district court: in a contempt proceeding (if the claim is that the district court's orders are not being complied with); in a new action for breach of contract (if the claim is that one or more parties are not living up to their obligations under the settlement

stipulation); or in a motion for relief from judgment under Fed.R.Civ.P. 60(b) (if an amendment of the original judgment is being requested). (We are not suggesting which, if any, of these possibilities 0907 or others 0907 is the proper vehicle for the relief sought by the moving plaintiffs in this case.) Each one of these (or other) possibilities, however, carries its own procedures, its own standards for granting relief by the district court, and its own standards of review in this Court, thus making identification of the precise nature of the motion an essential for our review (and, we believe, for the district court's decision in the first instance).
However, we need not ourselves define the nature of this motion because the district court's failure to state its reasons for denying it is sufficient to warrant reversal. Were the allegations made in the "motion to enforce" wholly incapable of warranting relief under any standard, we might well affirm the district court's denial. However, some of the claims asserted in the motion raise serious questions about class counsel's performance under the Settlement Agreement. For example, the moving plaintiffs contend that, in violation of their obligations under the Settlement Agreement, class counsel failed to prepare sufficient statistical evidence to provide a factual basis for claimants to make informed choices regarding the value of their claims. Although it appears that class counsel performed statistical analysis on data from 1994 to 1995, there is no indication in the record that any statistical analysis was performed on subsequently collected data.[9]
173 *173 Given the district court's failure to explain its denial of the motion to enforce on its merits, we cannot determine why the district court denied the motion without engaging in inappropriate speculation. Under the circumstances, it is better to remand to seek clarification from the district court before venturing to say whether the court abused its discretion in denying the motion. Cf. Mentor Ins. Co. (U.K.) Ltd. v. Brannkasse, 996 F.2d 506, 521 (2d Cir.1993) (remanding for clarification of reasons for district court's award of attorneys' fees because "this Court will not speculate as to whether the award is appropriate under any other theory that has not been stated by the district court"); Inverness Corp. v. Whitehall Labs., 819 F.2d 48, 51 (2d Cir.1987) (stating that where appellate court "cannot, without resorting to speculation, determine whether the district court considered [material] issues," "the only appropriate procedure is to remand the case to the district court for a[n] explanation of its decision"). Remand will of course also give both the parties and the district court the opportunity to clarify precisely what relief is sought and on what grounds (i.e., under what rule(s) the motion is brought). Finally, to the extent that the motion, once properly characterized, requires resolution of disputed factual issues, the district court will have the opportunity on remand to conduct an evidentiary hearing and to allow the parties discovery as appropriate.[10]
174 *174 B. The Motion to Reassign
The moving plaintiffs also ask this Court to reassign this case to another District Judge on remand. Although as a general rule, "cases remanded to a District Court for further proceedings are sent back without any directions or suggestions as to the judge before whom they are to be conducted," in a few instances "there may be unusual circumstances where both for the judge's sake and the appearance of justice, an order of reassignment is appropriate." Mackler Prods., Inc. v. Cohen, 225 F.3d 136, 146-47 (2d Cir.2000) (internal quotation marks omitted). In determining whether reassignment is appropriate, we consider the following factors:
(1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness.
Id. at 147.
Reassignment in this instance presents a close question given the grounds chosen by Judge Motley to disqualify 175 Spriggs and *175 Davis. See infra section II. Hence, the appearance of fairness might be promoted by
reassignment. Nevertheless, this is a large, complex, and long-lived class action suit with which Judge Motley is intimately familiar. As such, reassignment would necessarily engender a good deal of waste and duplication. On

balance, we believe that this squandering of judicial resources would be out of proportion to the modest gain in the appearance of fairness that reassignment might bring. The motion to reassign is therefore denied.
II. Revocation of Pro hac vice Status and Imposition of Rule 11 Sanctions
A. Revocation of Pro hac vice Status
This Court reviews a district court's imposition of sanctions for abuse of discretion. United States v. Seltzer, 227 F.3d 36, 39 (2d Cir.2000). Presuming that revocation of pro hac vice status is a species of sanction, we have held that a district court's revocation of pro hac vice status is subject to abuse of discretion review. MacDraw, Inc. v. CIT Group Equip. Fin., Inc., 138 F.3d 33, 37 (2d Cir.1998).
We have held that "[d]ue process requires that courts provide notice and an opportunity to be heard before imposing any kind of sanctions." Nuwesra v. Merrill Lynch, Fenner & Smith, Inc., 174 F.3d 87, 92 (2d Cir.1999). In MacDraw, this Court affirmed the district court's revocation of two attorneys' pro hac vice status where the district court held a hearing and issued an order to show cause specifically identifying the sanctionable conduct. MacDraw, 138 F.3d at 36-37. We did not, however, explicitly address the question of whether due process requires notice and an opportunity to be heard before revocation of pro hac vice status. An affirmative answer to this question is strongly implied, however, by (1) our general holding, in Nuwesra, that sanctions may be imposed only after an attorney has been afforded notice and an opportunity to be heard, and (2) our presumption, in MacDraw, that revocation of pro hac vice status is a species of sanction.
We find further support for this conclusion in Local Civil Rule 1.5 of the Local Rules of the United States District Court for the Southern and Eastern Districts of New York ("Local Rules"), which governs attorney discipline. Rule 1.5 provides that discipline may be imposed only "after notice and an opportunity to respond." Local Civ. R. 1.5 (b). There is no indication in Rule 1.5 that this requirement applies only to admitted counsel, as opposed to pro hac vice counsel.
Our decision in In re Rappaport, 558 F.2d 87 (2d Cir.1977) is not to the contrary. Class counsel contends that there we revoked an attorney's pro hac vice status without affording him notice and an opportunity to be heard because, among other things, he had been suspended from the practice of law in Florida for forty-five days. In fact, however, Rappaport concerned not a revocation of pro hac vice status, but rather an application for pro hac vice admission. See id. at 89-90. We upheld the district court's denial of the application for admission. We have never held that denial of an application to appear pro hac vice is a sanction, and nothing in Rappaport is inconsistent with our holding today that revocation of pro hac vice status is a form of sanction that cannot be imposed without notice and an opportunity to be heard. See United States v. Collins, 920 F.2d 619, 627 (10th Cir.1990) (holding that although attorney's past "behavior before other courts provided ample grounds to scrutinize his application for pro hac vice admission," "because the district court in exercise of its discretion 176 admitted [the *176 attorney] pro hac vice, the court's subsequent revocation of such status must be evaluated as though it had disqualified a regular member of [that district court's] bar"); Kirkland v. Nat'l Mortgage Network, Inc., 884 F.2d 1367, 1372 (11th Cir. 1989) (same).
The notice and opportunity to respond provided to Spriggs before revoking his pro hac vice status were so flawed as to constitute an abuse of discretion. It is undisputed that Spriggs was not given notice by the court that it could revoke his pro hac vice status on the basis of his past conduct until the hearing during which the court did so. In class counsel's December 10, 1999 memorandum in opposition to the motion to substitute Spriggs & Davis for class counsel, class counsel had provided the district court with information regarding Spriggs's past misconduct five months prior to the district court's May 16, 2000 revocation of Spriggs's pro hac vice status. Then, on December 16, 1999, Spriggs had responded to the allegations of his past misconduct in reply to that opposition memorandum and, on February 14, 2000, the district court had granted his second motion to appear pro hac vice.

Nor did the district court afford Spriggs a realistic opportunity to respond to the charges of past misconduct. In its May 16, 2000 opinion, the district court asserted that Spriggs had been afforded two opportunities to respond to these charges. After noting that class counsel had included the charges in their April 17, 2000 opposition to the second motion to enforce, the district court observed that Spriggs filed a reply to this opposition only after being ordered to do so by the court, and that the reply did not contest the allegations. Martens, 194 F.R.D. at 114. The district court failed to mention, however: (1) that, prior to class counsel's opposition to the second motion to enforce, (a) class counsel had included the same allegations in its opposition to the motion to substitute Spriggs & Davis for class counsel; (b) Spriggs had responded to the allegations in his reply to those opposition papers; and (c) the district court had granted the second pro hac vice motion; and (2) that the order directing Spriggs to file a reply to class counsel's opposition to the second motion to enforce did not expressly mention the allegations. Hence, it is difficult to see why Spriggs should be faulted for not viewing his reply to class counsel's opposition to the second motion to enforce as an "opportunity" to respond to the charges of past misconduct.
The district court also noted that it had given Spriggs an opportunity to respond to the charges at the outset of the May 15, 2000 hearing. Id. The district court failed to mention, however, that it had repeatedly indicated that the subject of that hearing was to be the second motion to enforce. Presented with this surprise "opportunity" to address the charges, Spriggs can hardly be faulted for requesting permission to submit a supplemental brief on the issue. Yet the district court summarily denied this request.
Davis received even less notice than did Spriggs. Neither before nor during the May 15, 2000 hearing did the district court suggest to Davis that his pro hac vice status was in jeopardy. Rather, Davis first learned of the revocation of his pro hac vice status in the very order that effected it. Id. at 113, 116. As for an opportunity to be heard, at the May 15, 2000 hearing, the district court permitted Davis to address the "Rule 11 motion," but not the possible revocation of his pro hac vice status. Furthermore, at the end of the hearing, the district court denied Davis's request to submit supplemental briefing on the issue of sanctions.
177 *177 In view of these procedural defects, we are compelled to vacate the district court's revocation of Spriggs's and Davis's pro hac vice status.[11]
B. Imposition of Rule 11 Sanctions
This Court reviews a district court's imposition of sanctions under Fed. R.Civ.P. 11 for abuse of discretion. See Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 57 (2d Cir.2000). "[A]lthough the decision to impose sanctions is uniquely within the province of a district court, we nevertheless need to ensure that any such decision is made with restraint and discretion." Id. (internal quotation marks omitted).
Rule 11 provides that an attorney makes the following representations each time he or she submits a paper to the court[12]: (1) the paper is not being presented for an improper purpose; (2) the legal claims are warranted under existing law or pursuant to a nonfrivolous argument for the extension, modification or reversal of existing law or the establishment of new law; (3) the allegations and factual contentions have evidentiary support or will likely have evidentiary support after a reasonable opportunity for discovery; and (4) denials of factual contentions are warranted. Fed.R.Civ.P. 11(b). "[A]fter notice and a reasonable opportunity to respond," the court may impose sanctions on the attorneys if, inter alia, it determines that any of the above requirements have been violated. Fed.R.Civ.P. 11(c). This Court has interpreted this procedural requirement to mean that "a sanctioned attorney must receive specific notice of the conduct alleged to be sanctionable and the standard by which that conduct will be assessed, and an opportunity to be heard on that matter." Nuwesra, 174 F.3d at 92 (internal quotation marks omitted). In determining whether sanctions are warranted, courts may consider, among other things, "whether the 178 person has engaged in similar conduct in other litigation." *178 Fed.R.Civ.P. 11 advisory committee notes (1993 Amendments).
If a party wishes to move for Rule 11 sanctions, the Rule 11 motion must "be made separately from other motions or requests and shall describe the specific conduct alleged to violate" the rule. Fed. R.Civ.P. 11(c)(1)(A) (emphasis added). The rule also contains a "safe harbor" provision under which the movant must wait twenty-one days after service of the motion on the party against whom it seeks sanctions and may file the motion only if the

respondent has not withdrawn or corrected the allegedly offending materials by that time. Fed.R.Civ.P. 11(c)(1) (A). The court may also initiate the sanctions process sua sponte. In order to do so, the court must "enter an order describing the specific conduct that appears to violate [the rule] and directing an attorney ... to show cause why it has not violated" Rule 11. Fed.R.Civ.P. 11(c)(1)(B).[13]
The district court did not follow these procedures for imposing Rule 11 sanctions on Spriggs and Davis. Neither class counsel nor Smith Barney ever filed a separate motion for Rule 11 sanctions, nor did they afford Spriggs and Davis the required twenty-one-day "safe harbor." Indeed, the district court expressly acknowledged that "class counsel did not file a motion for Rule 11 sanctions." Martens, 194 F.R.D. at 114. Nor did the district court issue an order to show cause describing the specific conduct that allegedly violated Rule 11. To be sure, in the court's memorandum and order denying the moving plaintiffs' first motion to enforce, the court "call[ed] Mr. Spriggs'[s] attention to Rule 11 of the Federal Rules of Civil Procedure." Martens, 2000 WL 108831, at *2. It did not do so, however, in the context of its instruction that, if Spriggs re-filed the motion to enforce, he should support all allegations with cognizable evidence. As previously noted, the district court's reference to Rule 11 occurred in the midst of the court's discussion of Spriggs's failure to secure pro hac vice status. See id. Spriggs could have reasonably interpreted this statement as only putting him on notice that Rule 11 sanctions might be imposed if he continued to sign court papers without obtaining pro hac vice status. Therefore, when the district court granted his second motion to appear pro hac vice, Spriggs reasonably could have inferred that the condition upon which the district court had predicated its threat of Rule 11 sanctions had been removed. Moreover, even assuming arguendo that Spriggs should have understood the district court's reference to Rule 11 sanctions to refer to its finding that the allegations in the motion to enforce lacked evidentiary support, the district court's order did not identify which allegations it so adjudged and thus Spriggs did not receive adequate notice of what specific conduct might elicit Rule 11 sanctions.
Davis, meanwhile, was afforded even less notice than was Spriggs that Rule 11 sanctions were imminent. The January 28, 2000 order did not even mention Davis. Hence, although the district court gave Davis an 179 "opportunity" to address the Rule 11 issue during the May 15, 2000 *179 hearing, this was insufficient to satisfy the procedural requirements of Rule 11.
In sum, we find that the district court failed to give "specific notice of the conduct alleged to be sanctionable and the standard by which that conduct will be assessed." Nuwesra, 174 F.3d at 92 (emphasis and internal quotation marks omitted). Accordingly, we are compelled to vacate the district court's imposition of Rule 11 sanctions on Spriggs and Davis.
III. Dismissal of the Individual Plaintiffs' Claims for Failure to Prosecute
A. Failure to Prosecute
This Court reviews a district court's decision to dismiss an action for failure to prosecute under Fed.R.Civ.P. 41(b) for abuse of discretion. LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir.2001).[14]
Rule 41(b) provides:
For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision ... operates as an adjudication upon the merits.
Fed.R.Civ.P. 41(b). A district court also has the power to dismiss for failure to prosecute sua sponte. LeSane, 239 F.3d at 209.
We have "long recognized that dismissal is a harsh remedy, not to be utilized without a careful weighing of its appropriateness." Dodson v. Runyon, 86 F.3d 37, 39 (2d Cir.1996); see also Chira v. Lockheed Aircraft Corp., 634

F.2d 664, 665 (2d Cir.1980) ("The remedy [of dismissal for a failure to prosecute] is pungent, rarely used, and conclusive. A district judge should employ it only when he is sure of the impotence of lesser sanctions.") (footnote omitted).
180 *180 In reviewing the district court's decision to impose this sanction, we consider the following five factors:
(1) the duration of the plaintiff's failures; (2) whether plaintiff had received notice that further delays would result in dismissal; (3) whether the defendant is likely to be prejudiced by further delay; (4) whether the district judge has taken care to strike the balance between alleviating court calendar congestion and protecting a party's right to due process and a fair chance to be heard; and (5) whether the judge has adequately assessed the efficacy of lesser sanctions.
Shannon v. Gen. Elec. Co., 186 F.3d 186, 193-94 (2d Cir.1999). Generally, no one factor is dispositive. Id. at 194. Although a district court is not required to discuss each of the factors on the record, "a decision to dismiss stands a better chance on appeal if the appellate court has the benefit of the district court's reasoning." Id. (internal quotation marks omitted). We assess the district court's dismissal in terms of each of the five factors.
1. Duration
In applying this factor, we ask (1) whether the failures to prosecute were those of the plaintiff; and (2) whether these failures were of significant duration. See Spencer v. Doe, 139 F.3d 107, 113 (2d Cir.1998). As to the first consideration, the district court determined that the individual plaintiffs allowed fifteen months to elapse from the time that they opted out of the class in March 1998 until they noticed depositions in June 1999. The district court stated that it could "divine no reasonable excuse for this fifteen months of inactivity." Martens, 194 F.R.D. at 111.
The individual plaintiffs argue that, for the first eleven months, they were waiting for the Settlement Agreement to become effective. It was reasonable for them to wait to act on their individual claims until the Settlement Agreement became effective, they contend, because if the Settlement Agreement had not become effective, the agreement would have been null and void and all of the parties to the litigation would have been restored to the positions they held before the settlement.[15]
The individual plaintiffs also argue that they did not conduct discovery on their claims during this fifteen-month period for three reasons. First, during this time, there was a pending motion by each of the defendants to dismiss the individual plaintiffs' request for a declaratory judgment that Smith Barney's, NASD's, and NYSE's arbitration policies were unenforceable. The individual plaintiffs contend that it did not make sense to conduct discovery until the court ruled on this issue. And, indeed, Smith Barney voiced the same concerns in its June 17, 1999 letter to the district court: "Smith Barney has no desire to engage in potentially duplicative or needless motion practice, particularly where a brief deferral until such time as this Court resolves defendants' motion to dismiss will simplify and clarify the issues before this Court." Second, the individual plaintiffs maintain that they did not conduct discovery during this time period because they were waiting for this Court to rule, in Desiderio, on whether mandatory arbitration violated Title VII. This contention finds support in a letter from counsel for NASD informing 181 the court of the Desiderio decision pending before the Second Circuit *181 and suggesting that "the parties need not speculate as to how the Second Circuit would rule."[16]
Finally, the individual plaintiffs argue that they did not request discovery during this time period because Smith Barney threatened to file a motion to compel arbitration if they attempted to do so. When the individual plaintiffs wrote to the district court that they were contemplating initiating discovery, Smith Barney responded that such a course "leaves [Smith Barney] no choice but to move to compel arbitration, and to take such other action as may be appropriate." True to their promise, as soon as the individual plaintiffs noticed depositions, Smith Barney filed a motion to compel arbitration. Smith Barney did not initiate its motion to compel arbitration until over sixteen months after the individual plaintiffs opted out of the Settlement Agreement. See Jackson v. City of New York, 22 F.3d 71, 75 (2d Cir.1994) (finding that the first aspect of the "duration" factor weighed against dismissal where in no instance were "the delays ... caused solely by the actions of" the plaintiff).

Finding the individual plaintiffs' reasons persuasive, we disagree with the district court's determination that the individual plaintiffs were culpably inactive for fifteen months. Because we find that the individual plaintiffs did not fail to prosecute, we do not need to determine how long any failure to prosecute lasted.
2. Notice
The district court did not give the individual plaintiffs express notice that further delays would result in dismissal. Instead, the court gave the individual plaintiffs notice that their claims could be dismissed on the basis of the applicable statute of limitations or pursuant to the doctrine of laches, and instructed the parties to brief those issues. Indeed, the May 15, 2000 decision and order dismissing the claims expressly acknowledged that "the court has not ordered either party to brief the issue of failure to prosecute." Martens, 194 F.R.D. at 113. Hence, despite the fact that the failure to prosecute issue was briefly discussed at oral argument on the statute of limitations and laches defenses, we find that the second factor also weighs against dismissal.
3. Prejudice
The district court determined that defendants were prejudiced by the "inexcusable delay" because (1) "defendants' ability to effectively present evidence as to their individual claims has been hampered by the passage of such a great length of time, as is presumed in every case, but has actually occurred here in this complex, time consuming and unique class settlement," and (2) "[d]efendants expended significant resources responding to Martens'[s] and Mione's numerous actions to attempt to derail the class settlement." Id. at 112.
We find the first of these reasons unpersuasive because, as noted, defendants themselves were responsible for much of the delay. Smith Barney evidenced a desire to delay discovery until the court ruled on its pending motion to dismiss, and threatened to bring a motion to compel arbitration if the individual plaintiffs instituted discovery. Similarly, NASD suggested that the court wait until this Court decided Desiderio before moving the case forward. 182 Furthermore, Smith Barney *182 may hardly complain of the delay because it did not move to compel arbitration until sixteen months after the individual plaintiffs opted out. See Saylor v. Bastedo, 623 F.2d 230, 239 (2d Cir.1980).
As to the district court's second reason for finding prejudice, we fail to see a connection between the individual plaintiffs' failure to prosecute their claims and the expenses incurred by Smith Barney in responding to the individual plaintiffs' attacks on the class settlement. Therefore, we find that the third factor also weighs against dismissal.
4. Balance Between Calendar Congestion and an Opportunity To Be Heard
The individual plaintiffs were not given a substantial opportunity to be heard on the issue of failure to prosecute. The parties were never asked to brief the issue, and only a very brief portion of the oral argument on the statute of limitations and laches issues focused on the failure to prosecute issue. Hence, this factor also weighs against dismissal.
5. Consideration of Lesser Sanctions
The extent to which the district court considered lesser sanctions likewise weighs against dismissal. At most, the district court alluded to the possibility of lesser sanctions: "In light of Martens'[s] and Mione's history of behavior in this action, this court now determines that no lesser sanction than dismissal would be appropriate or effective." Martens, 194 F.R.D. at 113. The court did not expressly consider, however, whether any remedy short of dismissal would have been effective. This Court has reversed under similar circumstances where the district court did not meaningfully consider alternative sanctions. See Baffa, 222 F.3d at 63.

In sum, because each of the five factors weighs against dismissal, we hold that the district court abused its discretion by dismissing the action for failure to prosecute.
B. Validity of the Arbitration Agreements
Relying primarily on this Court's decision in Necchi S.p.A. v. Necchi Sewing Mach. Sales Corp., 348 F.2d 693 (2d Cir. 1965), the individual plaintiffs also argue that this Court should resolve on appeal the issue of whether their individual claims are subject to valid and enforceable arbitration agreements despite the fact that the district court did not decide this issue. We decline the plaintiffs' invitation.
In Necchi, this Court reviewed an order of the district court granting a petition to compel arbitration. We held that the district court erred in granting the petition without first determining whether each of the nine issues on which arbitration was sought fell within the scope of the parties' arbitration agreement. Id. at 697. We then continued on to make this determination rather than return it to the district court to pass on in the first instance because (1) the question of arbitrability was "so clear that no useful purpose would be served" by remanding it to the district court, and (2) making the determination on appeal would expedite the litigation. Id. We then affirmed the order of the district court as to those issues that we determined were within the scope of the arbitration agreement, and reversed as to those that were not. Id. at 697-98.
Necchi is inapposite to the instant case. The issues we decided in Necchi were directly related to the decision on which we had jurisdiction to review, namely, the district court's order compelling arbitration, and our determination 183 of those issues was necessary to our ultimate decision (i.e., to reverse in part and affirm in part). *183 In this appeal, however, we have under review the district court's order dismissing the individual plaintiffs' claims for failure to prosecute. The question of those claims' arbitrability simply has no bearing on our review of that order. The plaintiffs' request that we make that determination in the first instance amounts to little more than a suggestion that, once part of a case has reached this court on appeal, we take the opportunity to decide any issue that may conceivably be disputed on remand. This, of course, we decline to do.
It would be particularly unwise in this case because, as defendants argue persuasively, having this Court address the arbitrability issue on appeal could give the individual plaintiffs an unfair advantage because they might otherwise have been unable to appeal the question of arbitrability. If the district court had determined that the individual plaintiffs' claims were subject to valid and enforceable arbitration agreements and compelled arbitration, the individual plaintiffs could not have immediately appealed that decision. See, e.g., Ermenegildo Zegna Corp. v. Zegna, 133 F.3d 177, 181 (2d Cir.1998) (stating that, in embedded proceedings where a party seeks relief other than or in addition to an order requiring or prohibiting arbitration, "the party that has unsuccessfully opposed arbitration must await the conclusion of the arbitration before airing its arguments in opposition to arbitration before an appellate court"). This Court has recently condemned allowing unappealable interlocutory issues to hitch a free ride into the Court of Appeals on an order dismissing a case for failure to prosecute:
[I]f a party who was disappointed by an interlocutory ruling could obtain an appeal of that ruling by simply refusing to prosecute his or her lawsuit, adherence to the merger rule would reward that party for dilatory and bad faith tactics. Such a result would conflict with the purpose of a Rule 41 (b) dismissal for failure to prosecute, which is to penalize dilatoriness and harassment of defendants. These considerations suggest that interlocutory orders should not ordinarily merge with a final judgment dismissing an action for failure to prosecute.
Shannon, 186 F.3d at 192 (internal quotation marks, citations and alterations omitted). As a result, this Court applies a "general rule that interlocutory orders do not properly merge with a final judgment dismissing an action for failure to prosecute." Id. Thus, while strictly speaking we are not faced with a question of jurisdiction to decide the arbitrability issue, the fact that the individual plaintiffs would not have been able to appeal a decision by the district court finding that the claims were arbitrable militates against this Court addressing that issue on appeal.

CONCLUSION
We have considered all remaining arguments and find them to be without merit. For the reasons discussed, we vacate the district court's judgment denying the moving plaintiffs' motion to enforce the Settlement Agreement, and remand for further proceedings not inconsistent with this opinion. The moving plaintiffs' motion to reassign the case on remand to another district court judge is denied.
The order revoking the pro hac vice status of Spriggs and Davis, and imposing sanctions pursuant to Rule 11, is vacated.
The district court's judgment dismissing the individual plaintiffs' claims for failure to prosecute is likewise vacated.
[*] The Honorable Ellsworth A. Van Graafeiland, originally a member of the panel sitting on February 9, 2001, recused himself from consideration of the case after oral argument. The remaining members of the panel, who are in agreement, have decided the case pursuant to 2d Cir. R. § 0.14(b).
[1] Twenty additional named plaintiffs, including plaintiffs-appellants Cara Beth Walker and Teresa Tedesco, were subsequently added to the plaintiff's class through amended complaints filed on July 2, 1996 and October 17, 1996.
[2] The complaint alleged violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (1994); the Equal Pay Act of 1963 and the Fair Labor Standards Act, 29 U.S.C. §§ 206-207, 215 (1994); the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. (1994); the New York State Human Rights Law, N.Y. Exec. L. § 296 et seq. (McKinney 1993); N.Y.C. Admin. Code § 8-107 et seq. (1996); and New York common law.
[3] The district court subsequently dismissed plaintiffs' due process claim as against NYSE and NASD. Martens v. Smith Barney, Inc., 190 F.R.D. 134, 137-38 (S.D.N.Y. 1999).
[4] The motion also purported to be filed on behalf of Lisa Mays, who is claimed in the motion to be one of the "Representative Plaintiffs." However, we note that there does not appear to have ever been an amendment of the complaint to add Mays as a named plaintiff, her name has never appeared in the case captions either below or in this court, and she has filed a brief amicus curiae in this appeal. Mays's status does not, however, affect the outcome of this appeal.
[5] Similarly, on January 31, 2000, local admitted counsel filed a motion for Davis to appear pro hac vice.
[6] Section 1927 provides that "[a]ny attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct." 28 U.S.C. § 1927 (1994).
[7] Unlike the district court's oral imposition of sanctions, its written order did not mention 28 U.S.C. § 1927.
[8] The court also denied the motion both as untimely (i.e., it had not been filed within ten days of entry of the judgment approving the settlement) and unmeritorious.
[9] A second example is the moving plaintiffs' argument that class counsel's retainer agreement is unfair. Specifically, the moving plaintiffs attack paragraph 10 of the retainer agreement, which provides that, if new counsel retained for arbitration convinces Smith Barney to tender a better offer in the course of the litigation, the former client would still owe class counsel a 25% contingency fee. Thus, the moving plaintiffs argue, such a class member would pay a double fee: a 25% contingency fee to class counsel in addition to any fee owed to new counsel. Under the retainer agreement, if new counsel litigates the arbitration to judgment, the class counsel is still entitled to a fee calculated at the firm's prevailing hourly rates, which the document does not disclose. Although class counsel responds that the agreement is fair because, if a claimant wins at arbitration with the

assistance of other counsel, they are required only to pay class counsel at an hourly rate for work performed and not the contingency fee, this is clearly a dispute that the district court should explicitly address on remand.
Similarly, the moving plaintiffs contend that the cover letter appended to class counsel's fee agreement sent to class members was misleading because it repeatedly stated that the claimant was being invited to "continue to use the firm's services." The moving plaintiffs maintain that this was misleading because, up to that point in time, Smith Barney had been paying all fees and this was the first time that the individual claimant was being asked to pay fees. The moving plaintiffs also contend that the letter was misleading because it states that class counsel are charging less than their regular rate (25% versus the usual 33 1/3%), but fails to disclose that they are receiving an additional 10% under the settlement agreement. See Dunn v. H.K. Porter Co., 602 F.2d 1105, 1109 (3d Cir.1979) (instructing that courts should strictly scrutinize contingent fee contracts employed in class actions); see also Alexander v. Chi. Park Dist., 927 F.2d 1014, 1024 (7th Cir.1991) (same); Pete v. United Mine Workers of Am. Welfare & Ret. Fund of 1950, 517 F.2d 1275, 1291 (D.C.Cir.1975) (same).
Finally, some of the claims raised in the motion may require further discovery. For example, the moving plaintiffs allege that class counsel breached their obligation under the Settlement Agreement to ensure that all class members received legal representation during the DPR because a large number of class members did not in fact receive legal representation during the DPR. Class counsel and Smith Barney make much of the fact that, when the district court questioned Davis about this allegation during the May 15, 2000 hearing, Davis was unable to identify a single class member who did not receive representation. Yet Davis's inability in this regard may be attributable to the apparent fact that the names of class members and the number of class members represented by counsel were all within the exclusive control of class counsel.
[10] Although given our disposition we need not decide the issue, we note class counsel and Smith Barney's argument that the moving plaintiffs lack standing to bring their "motion to enforce" because they are unable to show that they personally suffered the injuries alleged in the motion rather than relying on injuries that have been suffered by other members of the plaintiff class. The moving plaintiffs respond that their standing arises from their status as certified class representatives, and that they have a fiduciary duty to protect the class regardless of their individual injury.
Generally, the moving plaintiffs are correct in stating that special standing rules exist for class representatives. Although, upon certification of a class, the class representative must have individual standing, see 3 Newberg on Class Actions § 2.06 (1992), class representatives may continue to represent a class even if their individual claims become moot. See United States Parole Comm'n v. Geraghty, 445 U.S. 388, 404, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980) ("[A]n action brought on behalf of a class does not become moot upon expiration of the named plaintiff's substantive claim, even though class certification has been denied."); Sosna v. Iowa, 419 U.S. 393, 402, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975) ("The [live] controversy may exist, however, between a named defendant and a member of the class represented by the named plaintiff, even though the claim of the named plaintiff has become moot.").
Moreover, as class representatives, the moving plaintiffs have fiduciary duties towards the other members of the class. See Deposit Guar. Nat'l Bank v. Roper, 445 U.S. 326, 331, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980) (stating that class representatives have a responsibility "to represent the collective interest of the putative class" in addition to their private interests); Maywalt v. Parker & Parsley Petroleum Co., 67 F.3d 1072, 1077 (2d Cir.1995) ("Both class representatives and class counsel have responsibilities to absent members of the class."); see also Crawford v. Equifax Payment Servs., Inc., 201 F.3d 877, 880 (7th Cir.2000) (stating that "[a] representative plaintiff acts as fiduciary for the" other class members); Sondel v. Northwest Airlines, Inc., 56 F.3d 934, 938-39 (8th Cir.1995) (stating that "certified representatives and the class counsel assume[] certain fiduciary responsibilities to the Class," and as a result, "the certified representatives may not take any action which will prejudice the Class's interest, or further their personal interests at the expense of the Class").
The cases relied upon by class counsel to support their proposition that a party's standing must be based on its own injuries, rather than an assertion of the rights of others, are limited to the issue of an individual plaintiff's standing. See, e.g., Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (affirming dismissal of putative class action because individual plaintiffs lacked standing and not reaching issue of class certification); Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 215-28, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974)

(finding lack of citizen standing and taxpayer standing); Bordell v. Gen. Elec. Co., 922 F.2d 1057, 1059-61 (2d Cir.1991) (finding that individual plaintiffs lacked standing). As this case concerns the standing of Rule 23 class representatives, this line of authority is inapposite.
[11] Although we therefore do not reach the merits of the district court's revocation of Spriggs's and Davis's pro hac vice status, we note that our holding today that pro hac vice counsel are entitled to the same notice and opportunity to be heard as are admitted counsel prior to being sanctioned strongly suggests that the grounds for revoking pro hac vice status should not diverge significantly from the grounds for disqualifying admitted counsel. Hence, although it may be appropriate for a district court to deny an application for pro hac vice status based solely on an attorney's past misconduct in other courts, see Rappaport, 558 F.2d at 90 91, it may be inappropriate to revoke pro hac vice status on the basis of past misconduct unless the past misconduct affects counsel's current representation of the class:
[W]ith rare exceptions disqualification has been ordered [in this Circuit] only in essentially two kinds of cases: (1) where an attorney's conflict of interests in violation of Canons 5 and 9 of the Code of Professional Responsibility undermines the court's confidence in the vigor of the attorney's representation of his client, or more commonly (2) where the attorney is at least potentially in a position to use privileged information concerning the other side through prior representation, for example, in violation of Canons 4 and 9, thus giving his present client an unfair advantage.... But in other kinds of cases, we have shown considerable reluctance to disqualify attorneys despite misgivings about the attorney's conduct.... [Therefore,] unless an attorney's conduct tends to taint the underlying trial by disturbing the balance of the presentations in one of the[se] two ways ..., courts should be quite hesitant to disqualify an attorney.
Bd. of Educ. of New York v. Nyquist, 590 F.2d 1241, 1246 (2d Cir.1979) (internal citations and footnotes omitted).
[12] The 1993 Amendments, as interpreted by this Court, extended Rule 11 to apply to "presentation" of a paper to the court via oral advocacy in addition to submission of the paper itself. See O'Brien v. Alexander, 101 F.3d 1479, 1489-90 (2d Cir.1996).
[13] The district court mentioned in its oral imposition of sanctions that it was also sanctioning Spriggs and Davis pursuant to 28 U.S.C. § 1927, which permits sanctions when an attorney's actions multiply the proceedings in ways that are unreasonable and vexatious. In its written order, however, the court referred only to Rule 11. This discrepancy is of no moment, however, because imposition of sanction under section 1927 likewise requires notice and an opportunity to be heard. See, e.g., Schoenberg v. Shapolsky Publishers, Inc., 971 F.2d 926, 936 (2d Cir.1992).
[14] As a threshold matter, the individual plaintiffs argue that the district court erred by dismissing their claims for failure to prosecute before deciding whether the claims were arbitrable because, had the court determined that the claims were arbitrable, it would have lacked jurisdiction to dismiss the claims for failure to prosecute. Because we find the district court's Rule 41(b) dismissal was improper in any case, we need not decide this question. However, we note that those courts to have addressed the issue have held that a court which stays an action pending arbitration nevertheless maintains jurisdiction to regulate the parties' conduct by issuing sanctions, including dismissal for failure to prosecute under Rule 41(b); if this is indeed the rule, it would follow a fortiori that the district court could do so before staying the action and ordering the parties to arbitration. See Morris v. Morgan Stanley & Co., 942 F.2d 648, 653-54 (9th Cir.1991) (Rule 41(b) dismissal); see also LaPrade v. Kidder Peabody & Co., 146 F.3d 899, 902-03 (D.C.Cir.1998) (sanctions under 28 U.S.C. § 1927).
We also note that, prior to its Rule 41(b) dismissal, the district court suggested it would receive briefing and hear argument on the issue of whether the individual plaintiffs' claims were barred by the statute of limitations or laches before it ruled on whether the claims were arbitrable. Generally, however, if the claims are subject to a valid and enforceable arbitration agreement, the arbitrator, not the court, should be deciding the statute of limitations issue. See Shearson Lehman Hutton, Inc. v. Wagoner, 944 F.2d 114, 120-21 (2d Cir.1991). Although the case law is less clear on the laches issue, it also appears that because that issue falls within the general category of "time-bar defenses," id. at 121, an arbitrator and not the court should likewise decide the laches issue if the claims are subject to a valid and enforceable arbitration agreement. Therefore, on remand, the district court

is instructed that, should it be inclined to consider dismissal for any time-bar defense, it must consider the application of Shearson and first decide any pending motions to compel arbitration.
[15] The individual plaintiffs rely on the following language from the Settlement Agreement: "If this Settlement Agreement does not become effective for any reason or is terminated pursuant to Section Fifteen of this Settlement Stipulation, this Settlement Stipulation shall be deemed null and void and of no force or effect and the Parties shall be restored to their respective positions existing prior to the date of this Settlement Stipulation."
[16] We note that the district court did not rule on the pending motion to dismiss the declaratory judgment count until December 2, 1999, a few weeks after this Court issued its September 22, 1999 decision in Desiderio.
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 Martens v. Smith Barney, Inc., Not Reported in F.Supp.2d (1998)

1998 WL 1661385 Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Pamela K. MARTENS, Judith P. Mione, Roberta O’Brien Thomann, Lorraine Parker, Bette Laswell,
Jennifer Alvarez, Marianne Dalton, Patricia Clemente, Simone Schwendener, Cara Beth Walker, Edna Broyles, Robin Tompkins, Stephanie Rodruck, Daniele Saccone, Beverly Trice, Lori Hurwitz, Lydia Klein, Eileen Valentino, Patricia Hanlon, Teresa Tedesco, Mary Ann Cabell, Ardis
Vinnecour, and Tracy Gibbs, on behalf of themselves and all others similarly situated,
Plaintiffs, v.
SMITH BARNEY INC., a/k/a Shearson/American Express a/k/a Shearson Lehman Brothers a/k/a
Shearson Lehman Brothers Holdings, Inc., Shearson Lehman Hutton a/k/a Shearson Lehman
Brothers, Smith Barney/Shearson, Inc., James Dimon, Nicholas Cuneo, the New York Stock
Exchange and the National Association of Securities Dealers, Defendants.
No. 96 Civ. 3779(CBM). | July 28, 1998.
Opinion
FINAL ORDER AND JUDGMENT APPROVING CLASS ACTION SETTLEMENT AND DISMISSING
CLAIMS
MOTLEY, J.
*1 1. On November 18, 1997, 23 of the 25 named plaintiffs in this action, individually and as Class Representatives, and defendants Smith Barney Inc. and James Dimon, by their respective counsel of record, executed and filed with this Court a Stipulation of Settlement in full settlement of all class and individual claims in this action (the “Action”) as against defendants Smith Barney (including its predecessor firms named in the caption), James Dimon and Nicholas Cuneo;
2. The Stipulation of Settlement has not been terminated pursuant to its terms;
3. Class Counsel, who also represent all named plaintiffs in Alvarez, et al. v. Smith Barney Inc., et al., Civil Action 96–3919, pending in the United States District Court for the Northern District of California (“Alvarez” ), have

represented to the Court that, upon entry of this Final Order and Judgment, they and plaintiffs in Alvarez (who are also members of the Class and bound by the Stipulation of Settlement) will forthwith follow the necessary procedures to obtain an Order from the United States District Court for the Northern District of California dismissing Alvarez with prejudice, at least as against defendants Smith Barney, James Dimon, John Delahaye, Frank Dworsky and Terrence Ormsbee;
4. On November 21, 1997, this Court entered an Order, inter alia, Preliminarily Approving the Settlement and Conditionally Certifying a Settlement Class (“Preliminary Approval Order”);
5. Pursuant to the Preliminary Approval Order and the Court’s subsequent Order dated December 3, 1997, this Court directed that a Fairness Hearing be held on April 9, 1998 at 10:00 a.m. to consider and determine whether to issue a final order and judgment approving the fairness, reasonableness and adequacy of the Settlement;
6. Pursuant to the Preliminary Approval Order and the Court’s subsequent Order dated December 19, 1997, this Court ordered that the Notice of Proposed Settlement of Class Action and Hearing Thereon attached to the Stipulation of Settlement as Exhibit C (the “Class Notice”) be distributed by first-class mail to the last known addresses of all members of the Class on or before January 5, 1998. Pursuant to the Preliminary Approval Order and the Court’s subsequent Order of December 30, 1997, this Court ordered that the Summary Publication Notice, in a form approved by the Court on December 9, 1997, be published once, no later than January 5, 1998, in those publications identified in Exhibit D to the Stipulation of Settlement except The Washington Post;
7. As attested by the affidavits of Michael Rosenbaum and Craig TerBoss sworn to on April 6, 1998, and the affidavit of Eugene V. Clark sworn to on April 6, 1998, all of which were filed with the Court on April 7, 1998, all the provisions of the Preliminary Approval Order as to notice have been complied with;
8. The 38 persons listed on Exhibit A hereto have duly requested exclusion from the Class;
*2 9. The Court has received and considered various objections to the Proposed Settlement;
10. The Fairness Hearing provided for in the Preliminary Approval Order was duly held before this Court on April 9, 1998, at which time all interested persons were afforded the opportunity to be heard, including objectors to as well as proponents of the proposed settlement;
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Martens v. Smith Barney, Inc., Not Reported in F.Supp.2d (1998)

11. The Stipulation of Settlement was amended on April 9, 1998, supplemented on June 15, 1998, and amended again on July 1, 1998, July 15, 1998 and July 23, 1998;
12. This Court has duly considered all of the submissions, objections and arguments presented with respect to the proposed settlement (“Proposed Settlement”) set forth in the Stipulation of Settlement as amended on April 9, 1998, supplemented on June 15, 1998, and amended again on July 1, 1998, July 15, 1998 and July 23, 1998 (“Settlement Stipulation”);
13. All capitalized terms in this Final Order and Judgment that are not otherwise defined have the same meaning as in the Settlement Stipulation;
NOW THEREFORE, after due deliberation, this Court hereby FINDS, CONCLUDES, ADJUDGES and DECREES that:
14. This Final Order and Judgment Approving Class Action Settlement (“Final Order and Judgment”) is binding on all members of the Class as defined in the Preliminary Approval Order.
15. The Class Notice and Summary Publication Notice fully and accurately informed the members of the Class of all material elements of this action and the Proposed Settlement, and constituted valid, due and sufficient notice to all members of the Class in all respects, complying fully with Rule 23 of the Federal Rules of Civil Procedure and the requirements of Due Process.
16. The Notice of Class Action Settlement Approval annexed as Exhibit 1 to Amendment 3A to Stipulation of Settlement dated November 18, 1997 (“Amendment No. 3A”) is hereby approved by this Court. Within 14 days after entry of this Final Order and Judgment, such Notice shall be mailed, in substantially the form annexed as Exhibit 1 to Amendment No. 3A, to the last known addresses of all members of the Class. Class Counsel is hereby authorized to retain such persons or entities as may be necessary to effect the approved Notice, as provided in the Settlement Stipulation.
17. Within five days after entry of this Final Order and Judgment, Class Counsel and Smith Barney shall submit to this Court for review and approval their summary of the Notice of Class Action Settlement Approval, which shall, in substantially the form approved by this Court, and within 14 days after entry of this Final Order and Judgment, be published in the publications identified in the Amendment No. 3A. Class Counsel is hereby authorized to retain such persons or entities as may be necessary to effect such publication.
18. Smith Barney shall bear all costs reasonably associated with printing, mailing, and publishing the

Notice of Class Action Settlement Approval and the summary thereof as required by Paragraphs 16 and 17 above, including, without limitation, the cost of any outside vendors retained by Class Counsel to aid in effectuating such notice.
*3 19. The Proposed Settlement on the terms and conditions set forth in the Settlement Stipulation is fair, reasonable and adequate, is in the best interests of the Class and should be approved, especially in the light of the benefits to the Class accruing therefrom, the substantial discovery and investigation conducted by Class Counsel prior to the Proposed Settlement, and the complexity, expense, risks and probable protracted duration of further litigation.
20. The Settlement Stipulation and the Proposed Settlement are hereby approved in accordance with Rule 23 of the Federal Rules of Civil Procedure and shall be consummated in accordance with the terms and provisions thereof.
21. Neither the Settlement Stipulation nor the Proposed Settlement itself nor this Final Order and Judgment constitutes an admission by Smith Barney or any other defendant of any liability or wrongdoing whatsoever, or a finding by this Court as to the merits of any claim or defense asserted or that could have been asserted in Martens, or of any wrongdoing by Smith Barney or any of the other defendants in Martens. Neither the Settlement Stipulation nor the Settlement itself nor this Final Order and Judgment is or shall be used, introduced as or deemed to be an admission in any action or proceeding (including, but not limited to, any Dispute Resolution Process proceeding under the Settlement Stipulation) of any fault, liability or wrongdoing by any person or entity; and neither the Settlement Stipulation, nor any of the negotiations or proceedings related thereto, nor the Settlement itself, nor this Final Order and Judgment, nor any related document or communication, shall be offered or received in evidence as an admission, concession, presumption or inference against any person or entity in any action or proceeding (including, but not limited to, any Dispute Resolution Process proceeding under this Settlement Stipulation) provided, however, that the Settlement Stipulation may be received in evidence in any proceeding in this Court as may be necessary to consummate or enforce the Settlement Stipulation or this Final Order and Judgment.
22. This action is hereby dismissed in its entirety, on the merits and with prejudice, as against defendants Smith Barney, James Dimon, and Nicholas Cuneo, and without costs to any party, except to the extent otherwise expressly provided in the Settlement Stipulation. This Court intends this Final Order and Judgment to be “Final” within the meaning of the Federal Rules of Civil Procedure and the Federal Rules of Appellate Procedure.
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Martens v. Smith Barney, Inc., Not Reported in F.Supp.2d (1998)

23. All members of the Class who have not duly requested exclusion (i.e., other than those identified on Exhibit A hereto) shall conclusively be deemed for all purposes to have fully, finally and irrevocably waived, released and discharged Smith Barney (which, as defined in Annex A to the Settlement Stipulation, includes, inter alia, in addition to Smith Barney Inc., each and all of its past and present predecessors, successors, subsidiaries, parents, affiliates, assigns, auditors, insurers, reinsurers, directors, officers, agents, managing directors, financial consultants, attorneys, all other employees and all other representatives) (“Smith Barney”) as provided in the Settlement Stipulation, including, without limitation, Paragraphs 6.1 through 6 .4 of the Settlement Stipulation. All members of the Class who have not duly requested exclusion from the Class (i.e., other than those identified on Exhibit A hereto) are hereby permanently enjoined as provided in the Settlement Stipulation, including, without limitation, Paragraphs 6.1 through 6.4 of the Settlement Stipulation. Nothing in this Paragraph 23 shall release the Firm from any obligations set forth in the Settlement Stipulation.
*4 24. This Court finds that the only members of the Class who have duly requested exclusion from the Class are those listed on the attached Exhibit A. All members of the Class apart from those listed on the attached Exhibit A have not duly requested exclusion therefrom.
25. All members of the Class as well as those persons who have duly requested exclusion from the Class (i.e., those persons listed on the attached Exhibit A) are hereby permanently enjoined fully, forever and irrevocably, from commencing, prosecuting, or otherwise maintaining in any court or forum other than this Court, any claim, action or other proceeding that challenges or seeks review or relief from any order, judgment, act, decision or ruling of this Court in connection with Martens. Any violation of the foregoing injunction is punishable as contempt of court, in addition to all other available remedies.
26. This Court approves the application for fees filed by Class Counsel on April 6, 1998 in the following amounts:
(a) $6,000,000 to be paid by Smith Barney on the Effective Date;
(b) $3,500,000 to be paid by Smith Barney quarterly within two years of the Effective Date; and
(c) 10% of all claims resolved through the DRP to a maximum of $2,500,000 to be paid by Smith Barney above any amounts paid by Smith Barney above any amounts paid to class members;
27. This Court approves the application for fees filed by the law firm of Altshuler, Nussbaum, Berzon & Rubin on

April 6, 1998 in the amount of $50,000.
28. This Court approves the application for incentive payments filed by the Class Representatives and Named Plaintiff Bette Laswell on April 6, 1998 in the aggregate amount of $1,900,000.
29. Upon the entry of this Final Order and Judgment, the Named Plaintiffs each shall execute and deliver (and shall be deemed to have executed and delivered) to the Firm a Release and a Covenant Not to Sue in substantially in the form annexed to the Settlement Stipulation as Exhibit F. The failure of any Named Plaintiff to execute and deliver such a Release to the Firm shall not, and shall not be deemed to, diminish, reduce or otherwise affect this Final Order and Judgment, including Paragraph 23 of this Final Order and Judgment that all members of the Class other than those listed on the attached Exhibit A have fully, finally and irrevocably released and discharged Smith Barney to the extent provided in the Settlement Stipulation.
30. All other issues not specifically resolved herein, including but not limited to applications by Class Counsel, the individual Class Representatives and Named Plaintiff Bette Laswell for reimbursement of expenses, are hereby severed and reserved for future decision by this Court.
31. In accordance with the Settlement Stipulation, Class Counsel and plaintiffs in Alvarez (whom Class Counsel represent, and who are also members of the Class who have not requested exclusion therefrom and are therefore bound by the Settlement Stipulation) are directed to follow all necessary procedures forthwith to obtain an Order from the United States District Court for the Northern District of California dismissing Alvarez with prejudice, at least as against defendants Smith Barney, James Dimon, John Delahaye, Frank Dworsky and Terrence Ormsbee.
*5 32. Class Counsel and counsel for Smith Barney shall advise the Court when and if the Settlement Stipulation becomes effective pursuant to its terms.
33. If the Settlement Stipulation is terminated or fails to become effective for any reason, then the parties, including without limitation all Class members, shall be restored to their respective statuses existing prior to the date of the execution of the Settlement Stipulation, without prejudice.
34. Without affecting the finality of this Final Order and Judgment, this Court retains exclusive jurisdiction over the implementation and enforcement of this Final Order and Judgment. Smith Barney, the Named Plaintiffs and Class Representatives, and each member of the Class are hereby deemed to have submitted irrevocably to the exclusive jurisdiction of this Court for any suit, action,
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Martens v. Smith Barney, Inc., Not Reported in F.Supp.2d (1998)

proceeding or dispute relating to this Final Order and Judgment or the Settlement Stipulation, except to the extent remitted by the Settlement Stipulation for resolution in a different forum. 35. The Court finds, pursuant to Fed.R.Civ.P. 54(b), that there is no just reason for delay, and directs the Clerk to enter this Final Order and Judgment.
Exhibit A Barkley, Carolyn S. Beighle, Traci L. Bhola, Ann Marie Blake, Stephanie Louise Burns, Rose Ann Cassella, Mary Chanchani, Bharti Chasin, Joan Christian, Carol L. Croom, Jacqueline E. D’Addona, Valerie Drummond, Linda L. Frauman, Ginny J. Fulp, Tamara G. Gaffin, Donna D. Green, Karen

Hartigan, Christine Bourdo Hill, Melissa Hong, Stephanie J. Hunter, Jacquelynne L. Hutcheson, Kimberly Kropelnitski, Diane LaFountaine, Gibson Laos, Myrna L. Lev, Judith Wilkens Manning, Katherine L. Martens, Pamela Kay Miller, Audrey M. Mione, Judith O’Rourke, Carol Pallette, Karen D.S. Roddy, DeAnn S. Smalling, Rita J. Tan, Michelle Tieber, Helen J. Willson, Edwardeen M. Yau, Christable Yeager, Elaine M.
	  

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 Martens v. Smith Barney Inc., Not Reported in F.Supp.2d (2005)

2005 WL 2649023 Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Pamela K. MARTENS, et al., Plaintiffs, v.
SMITH BARNEY INC., et al., Defendants.
No. 96 Civ. 3779(JGK). | Oct. 7, 2005.
Opinion
MEMORANDUM OPINION AND ORDER
KOELTL, J.
*1 This is a motion by the defendant Smith Barney, Inc. (“Smith Barney”) to reopen this action and to enjoin certain plaintiffs in this action from proceeding with a class action in the United States District Court for the Northern District of California entitled Amochaev v. Citigroup Global Markets, Inc., d/b/a Smith Barney, 3:05-CV-01298 (PJH) (“Amochaev” ). Smith Barney argues that the Amochaev action includes allegations about Smith Barney’s policy with respect to the distribution of accounts among its financial consultants, and that those allegations relate to this action because the distribution policy was developed in accordance with the stipulation of settlement between the parties in this action (the “Settlement Stipulation”). (Ex. B to Declaration of Jay Cohen dated June 9, 2005 (“Cohen Decl.”), ¶ 8.2(1)(1).) Smith Barney further argues that there are allegations in the Amochaev case that Smith Barney violated the Settlement Stipulation. Smith Barney contends that these allegations fall within this Court’s exclusive jurisdiction under the terms of the Settlement Stipulation and this Court’s Final Order and Judgment approving it, dated July 24, 1998. (Def. Smith Barney’s Memo. of Law in Supp. of its Mot. to Reopen Matter and Enjoin Certain Martens Class Members, at 7-9, 12-15.) Smith Barney also moved in the United States District Court for the Northern District of California to transfer the Amochaev action to this Court under 28 U.S.C. § 1404(a). On September 16, 2005, that Court denied Smith Barney’s motion, but indicated that it would entertain a request by Smith Barney to revisit the issue of transfer if this Court granted the present motion to enjoin the plaintiffs common to both actions from proceeding in Amochaev. (Order Denying Mot. to Transfer Venue, Ex. B to the Letter of Piper Hoffman dated September 19, 2005 (“Hoffman Letter”), at 2.)

The Court concludes that it does not have exclusive jurisdiction over the claims in the Amochaev action under either the Settlement Stipulation or the Court’s Final Order and Judgment. It is true that two plaintiffs in this action, Kathryn N. Varner and Deborah Orlando, are named plaintiffs in Amochaev, and that approximately half of the 2,000 class members in Amochaev were members of the class covered in this action. The class period in this action, however, predates the beginning of the class period in Amochaev by several years. The Amochaev plaintiffs further make clear that their claims are based on new violations of Title VII and California law, and that while they referred to the Martens Settlement Stipulation in their complaint, the action is not for a violation of that agreement. (Amochaev Pls.’ Resp. to Smith Barney’s Mot. to Reopen Matter and Enjoin Certain Martens Class Members, at 4-7; Amochaev Compl., Ex. F. to Cohen Decl., ¶¶ 20, 32-54.)
Indeed, the claims in Amochaev could not be claims under the Settlement Stipulation because they arose after the expiration of the period covered by the Settlement Stipulation. As the Amochaev plaintiffs argue, and Smith Barney does not dispute, any requirement to follow the distribution policy that was developed as part of the Settlement Stipulation expired at least a year and a half before the beginning of the class period in Amochaev. (See Letter of Piper Hoffman dated September 19, 2005 (“Hoffman Letter”), at 1; Letter of Jay Cohen dated September 22, 2005 (“Cohen Letter”); Settlement Stipulation, Ex. B to Cohen Decl., ¶¶ 8.2(1), 8.4; Amochaev Compl., Ex. F. to Cohen Decl., ¶ 20.) The United States District Court for the Northern District of California so found as well. (See Order Denying Mot. to Transfer Venue, Ex. B to Hoffman Letter, at 1.) Moreover, Smith Barney admits that the claims in Amochaev, because they arose after the class period in this action, were not settled in this action and this action is not res judicata as to those claims. (See Def. Smith Barney’s Reply Memo. of Law in Further Supp. of its Mot. to Reopen Matter and Enjoin Certain Martens Class Members, at 6 & n. 2.)
*2 The Final Judgment and Order in this case provides: “Without affecting the finality of this Final Order and Judgment, this Court retains exclusive jurisdiction over the implementation and enforcement of this Final Order and Judgment. Smith Barney, the named Plaintiffs and Class Representatives, and each member of the Class are hereby deemed to have submitted irrevocably to the exclusive jurisdiction of this Court for any suit, action, proceeding or dispute relating to this Final Order and Judgment or the Settlement Stipulation, except to the extent remitted by the Settlement Stipulation for resolution in a different forum.” (Final Order & J. ¶ 34.)
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Martens v. Smith Barney Inc., Not Reported in F.Supp.2d (2005)

The Amochaev plaintiffs’ claims concerning the distribution of accounts, however, cannot be said to be claims for the implementation or enforcement of the Final Order and Judgment. Moreover, these claims do not reasonably relate to the Final Order and Judgment or the Settlement Stipulation under the Final Order and Judgment in this case.
The Settlement Stipulation is not being enforced in Amochaev, the agreement is not a defense to the action, and the lawsuit will not require any interpretation of that agreement. The fact that Smith Barney adopted its account distribution policies pursuant to the Settlement Stipulation, and continued those policies in force although not obligated by the Settlement Stipulation to do so, is insufficient to confer exclusive jurisdiction upon this Court. The two actions are only related insofar as a subject covered in the Settlement Stipulation has again come into dispute after the expiration of the period covered by the agreement. To hold otherwise would give this Court exclusive jurisdiction of discrimination actions against Smith Barney long after the terms of the Settlement Stipulation had expired so long as Smith Barney continued the same programs. That would be an unreasonable interpretation of the Final Order and Judgment.

Moreover, if Smith Barney were to prevail on this motion, then only some-perhaps half-of the Amochaev plaintiffs would be barred from continuing the action in California. While Smith Barney is correct to point out the importance of uniformity, it does not promote uniformity to have half of the class subject to exclusive jurisdiction in this Court. Because the Court has found that the claims presented in Amochaev are not covered by the Settlement Stipulation in Martens, there is no justification for preventing those plaintiffs in that action who were also members of the class in this action from proceeding with their new and distinct claims in the appropriate forum of their choice.
CONCLUSION
For the foregoing reasons, Smith Barney’s motion to enjoin certain plaintiffs in this action from pursuing the Amochaev action in the United States District Court for the Northern District of California is DENIED.
SO ORDERED.
	  

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