Case 1:04-cv-05764 Document 1 Filed 09/02/2004 Page 1 of 19

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

KATHERINE PUFFER,

)

V4 £ on behalf of herself and all othet:§lQOCKETED \

similarly situated,

SEP O0 .2 2004

2004

Plaintiffs,

)

)

Jury Trial Demanded

v.

)

)

ALLSTATE INSURANCE COMPANY,

)

)

Defendant.

)

COMPLAINT

Plaintiff, Katherine Puffer, on behalf of herself and all others similarly situated, by and

through her attorneys, Stowell & Friedman, Ltd. for her Complaint against Defendant Allstate

Insurance Company states as follows:

JURISDICTION 1. Jurisdiction is based on 28 U.S.C. §§ 1l3331 and 1343, and principles of pendent and supplemental jurisdiction.
PARTIES 2. Plaintiff Katherine Puffer ("Puffer" or "Plaintiff') is a former employee of Defendant Allstate Insurance Company ("Allstate"). During her employment with Allstate, Plaintiff discharged all duties assigned to her competently and enjoyed an excellent reputation with regard to the high quality of her work and with regard to her conscientious devotion to her job. 3. Defendant Allstate is an affiliate oftthe Allstate Corporation ("Allstate Corp."), the largest publicly held personal lines insurer in the United States with over 40,000 employees.

Case 1:04-cv-05764 Document 1 Filed 09/02/2004 Page 2 of 19
Allstate Corp. offers insurance and other financial products through a number of affiliate companies, including Defendant Allstate Insurance Company.
FACTUAL ALLEGATIONS Allstate Systemically Discriminates Against Women
4. Allstate has and continues to engage in a nationwide pattern and practice of discriminating against its female employees in the Property and Casualty business ("P & C" or Allstate). Allstate's unlawful conduct includes, but is not limited to systemic and pervasive sexual discrimination, unequal pay practices, and retaliation.
5. Allstate's discrimination against women is evidenced by lack of promotion and retention of female employees. Notwithstanding the number of people Allstate employs nationwide, its workforce is not diversified by sex.
6. During Plaintiffs employment, before and afterwards, Allstate engaged in a pattern and practice of discriminatory conduct including, but not limited to:
a. taking into consideration gender when making employment decisions such as hiring, training, promoting, and determining salary and/or bonuses;
b. underutilizing women; c. failing to credit women for their experience on the same basis as men and
failing to consider women for timely promotions or title changes on the same basis as men; d. systematically paying women lower wages and/or denying women opportunities to increase their earnings, including bonuses; e. taking adverse actions against women, such as reduction in job responsibilities, demotions, transfers, constructive discharges and discharges on account of their sex and/or their rejection of or unwillingness to tolerate unwelcome sexual conduct; f. humiliating, intimidating, and demeaning women and otherwise creating a hostile and offensive work environment;
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Case 1:04-cv-05764 Document 1 Filed 09/02/2004 Page 3 of 19
g. negligently hiring and/or retaining men with known propensities to discriminate or sexually harass women;
h. retaliating against women who complain of discrimination including subjecting them to further discrimination, harassment, retaliation, and constructively discharging them;
1. making significant employment decisions based on sex stereotypes; and J. refusing to take adverse actions against male co-workers and managers who
engage in sexual harassment and sexual discrimination. 7. Complicit in Allstate's pattern and practice of gender discrimination is its human resources group, which is ineffective at resolving complaints of gender discrimination so much so that many female employees recognize the futility ofllooddging internal complaints. Allstate's human resource department and legal department vigorously defend discriminators and otherwise encourage Allstate's standard operating procedure of retaliating against female employees who file complaints. 8. Allstate does not foster an environment where women feel free to complain of discrimination or harassment. Instead, women often feel intimidated from coming forward and fear retaliation. 9. As a result of the lack of opportunity for career advancement, the offensive work environment, and the ineffective human resource department, female employees are frequently terminated for pretexual reasons and or forced to seek transfers to business units other than P & C.
Sexual Discrimination At Allstate Is National In Scope 10. Although the named class representative worked at Allstate in Chicago, Illinois
office, the class members who are relying on the class representative to protect their rights work
3

Case 1:04-cv-05764 Document 1 Filed 09/02/2004 Page 4 of 19
or worked at Allstate offices throughout the country. II. Allstate openly recognizes that women and minorities are disproportionately
represented in the firm's management and higher compensated positions, and takes public steps to window dress this issue by advertising on its web site and otherwise the existence of special programs. For example, Allstate claims that its Diversity and Work/lLife Strategy is an integrated approach to attract, retain and motivate its workforce. Allstate also claims that it offers its employees Affirmative Action initiatives, Work/lLife and Wellness Initiatives, Diversity Education, Recruitment, Career Advancement and Development Leadership, Accountability Measurement, Mentoring Programs, Support Networks and Community Involvement.
12. Although such diversity programs purportedly exist to help women and minorities advance within the company, in reality these programs are yet another obstacle for women and minorities and only serves to label them and highlight their differences. These programs notwithstanding, Allstate sends a message to women and minorities that they do not fit within its organization.
13. Over the years, Allstate has made little progress in improving the promotion process for women. Women are still evaluated based on subjective criteria, and as described above, are subjected to an additional level of scrutiny through Allstate's diversity programs. By comparison, Allstate take heroic steps to ensure that men are promoted to the firm's management and higher compensated positions.
14. As a result of Allstate's discriminatory selection process, women who are hired with the expectation of being promoted to higher compensated or management positions are forced to quit and are passed over for promotion. For example, as described above, women are subjected to gender stereotypes, denied mentoring, denied training, and steered into positions that provide
4

Case 1:04-cv-05764 Document 1 Filed 09/02/2004 Page 5 of 19
no opportunity for advancement. . Allstate's Discrimination and Retaliation Against Women Is Ongoing
15. Allstate's pattern and practice of systematically discriminating and retaliating against women described above is ongoing as a continuing violation of the civil rights laws. Plaintiff Was A Victim Of Allstate's Pattern And Practice Of Unlawful Conduct
16. Plaintiff began her employment with Allstate in 1977. Most recently, Plaintiff supervised the Program Management Office within the Property and Casualty division and held the title of Assistant Vice President
17. In May 2003, Plaintiff was unlawfully terminated on account of her gender and age, and in retaliation for opposing discriminatory practices.
18. Notwithstanding her impressive job performance and consistent with the allegations of gender discrimination against women, Plaintiff was a victim of Allstate's pattern and practice of systemic and pervasive sexual discrimination, including sexual harassment, unequal pay, and retaliation. PlaintiiffPrs First EEOC Charge
19. In January 2001, Plaintiffffoormally raised a complaint of discrimination and retaliation against Defendant with the Equal Employment Opportunity Commission ("first EEOC charge"). In her first EEOC charge, and in addition to other claims, Plaintiff alleged that Allstate intentionally created and maintained a segregated workforce where women were steered into less desirable positions and were denied career opportunities routinely extended to men. As a result of the occupational segregation at Allstate, females were denied not only job promotions and titles, but also increased earnings and other benefits. In her first EEOC charge, Plaintiff cited numerous examples of Allstate's segregated work force.
5

Case 1:04-cv-05764 Document 1 Filed 09/02/2004 Page 6 of 19
20. For example, a senior level male manager admitted steering women into less desirable positions because "women are better suited for staff positions." Between August 1999 and January 2001 (the time Plaintiff filed her first EEOC charge), approximately 30 men were promoted to Vice President ("VP") positions, while only three women were promoted to such positions. During that time, all 14 Property and Casualty Field VPs were males. No females reported directly to the Chairman of the Board during that time.
21. In her first EEOC charge, Plaintiff further alleged that as part of Allstate's continuing pattern and practice of discrimination, she was subjected to unlawful gender discrimination and retaliation.
22. Specifically, Plaintiff was subjected to unlawful sexual harassment. For example, Ron McNeil ("McNeil"), Plaintiffs immediate supervisor from late 1998 to mid 1999, made sexual overtures toward her.
23. When Plaintiff rejected those overtures, McNeil subjected her to retaliation. For example, McNeil told Plaintiff that she would not be promoted to VP because she was not "theatrical enough" and "people did not think she was very smart". Additionally, on a later occasion, McNeil told Plaintiff that everyone thought she was a "bitch." In addition, it was reported to Plaintiff that McNeil subjected other women to quid pro quo harassment.
24. McNeil subjected Plaintiff to other adverse actions on account of her gender and because she rejected his overtures. For example, McNeil unjustly criticized Plaintiff for not bringing enough experienced people into the department, and when she later tried to do so as he requested, he blocked her efforts and actually removed nine employees from her group. While other groups experienced slight reductions in staff, Plaintiffs group was affected most by reductions in staff. McNeil also noticeably ignored Plaintiffs group in department meetings,
6

Case 1:04-cv-05764 Document 1 Filed 09/02/2004 Page 7 of 19
despite her appeals to him that recognition was important for her staff. 25. McNeil also passed Plaintiff over for a promotion in favor of a less qualified male,
among other adverse actions. 26. McNeil also took actions to limit Plaintiffs opportunities for advancement within the
company, such as giving her a yearly evaluation that did not accurately reflect her performance. For example, in late 2000, Fred Cripe ("Cripe"), a VP, told Plaintiff that she needed to redirect her career at Allstate because McNeil did not like her and she had no future in the Property and Casualty unit.
27. Plaintiff reported these incidents to the current President of Allstate, Rick Cohen, to the legal department, and to the human resources department in December 2000. Allstate failed to conduct an adequate investigation, did not take appropriate remedial action, and threatened Plaintiff if she pursued litigation. Allstate's Retaliation And Continued Discrimination Against Plaintiff
28. Although Plaintiff had hoped Allstate would remedy the discrimination and retaliation to which she had been subjected after she filed her first EEOC charge, Allstate's unlawful conduct only escalated thereafter and she was subjected to further discrimination and retaliation.
29. In the course of the EEOC's investigation of Plaintiffs first EEOC charge, Plaintiff identified other women whom she believed had been the victims of gender discrimination. As part of its pattern and practice of discriminating and retaliating against women, Allstate subsequently terminated all of the women Plaintiff had identified.
30. After Plaintiff filed her first EEOC charge, Plaintiff was transferred to a new department and her responsibilities were cut in half. Subsequently, Plaintiff again was
7

Case 1:04-cv-05764 Document 1 Filed 09/02/2004 Page 8 of 19
transferred to yet another department, which was Finance, still without her full responsibilities. McNeil had previously tried to get Plaintiffto transfer to the Finance division but she and the then-VP of Finance had agreed that it was not a good career move for her. Worse, Allstate made no formal announcement of Plaintiffs transfer, which otherwise was typically done, further signaling to Plaintiff that she was being singled out for adverse treatment.
31. Plaintiff was otherwise treated less favorably than others similarly situated. For example, Plaintiff was pressured to reduce her staff while other managers were not. Additionally, McNeil continued to harm Plaintiffs standing in the corporation. Further, McNeil refused to work with Plaintiff and, upon information and belief, disparaged her to other employees, including managers. McNeil's actions further damaged Plaintiffs reputation and image and, Plaintiff believes, tainted the decision-making that led to her termination (as explained below).
32. McNeil also continued to deny Plaintiff opportunities to advance her career at Allstate as retaliation. For example, Plaintiff expressed interest in obtaining an MBA degree, and McNeil and later Steve Verney (then the current VP in Finance) refused to support her efforts. Consequently, Allstate refused to pay for Plaintiffs tuition while, upon information and belief, Allstate paid such tuition for male employees andl/or employees who had not complained of discrimination.
33. Allstate otherwise denied Plaintiff the same career opportunities that were extended to male employees.
34. Allstate's and McNeil's discriminatory and retaliatory actions taken against Plaintiff, including disparaging her, removing her from her position, denying her promotions, and transferring her to different departments without her full responsibilities, were intended to
8

Case 1:04-cv-05764 Document 1 Filed 09/02/2004 Page 9 of 19
interfere with her long-term career at Allstate, damage her reputation with the company, and make her vulnerable for termination. PlainnttiiffPfs Unlawful Termination
35. Ultimately, in approximately May 2003, Plaintiff was unlawfully terminated under the pretext of a reduction in force. Plaintiff was selected for termination instead of being placed in a capital management/strategy position despite her seniority and tremendous qualifications, including being a CPA, having recently received an MBA from the University of Chicago, and having developed the initial methodology used by Allstate to allocate capital.
36. Further, although Plaintiff initially was offered a compliance position, Allstate subsequently revoked that offer without explanation.
37. As evidence that Allstate's purported reduction in force was pretext for its pattern and practice of gender discrimination, Plaintiff notes that the Property Casualty Finance department, which had the highest percentage offemale officers in Allstate's Property Casualty unit, suffered the highest percentage loss of its officers in the so-called reduction in force. Moreover, while three of the five female officers in Finance were terminated, the one male officer was retained and another male officer was transferred into the Finance department.
38. Allstate took adverse actions against women over the age of forty (40). Claimant observed female employees over the age offorty pushed out of their positions and/lor having their job responsibilities taken away from them. Allstate Was Aware Of The Conduct Oflts Employees And Failed To Prevent Sexual Discrimination and Retaliation
39. Allstate's management directed, encouraged and participated in the above-described unlawful conduct.
9

Case 1:04-cv-05764 Document 1 Filed 09/02/2004 Page 10 of 19
40. Further, Allstate allowed the discrimination and retaliation to go unremedied for so long that it amounts to a policy or practice and constitutes Allstate's standard operating procedure.
41. Indeed, when Plaintiff filed her first EEOC charge, she was informed that other employees had filed similar complaints of discrimination against McNeil. Despite these charges, McNeil remained in a position of management where he was allowed to continue discriminating against Plaintiff and other women.
42. Additionally, Allstate's human resources and legal departments failed to take appropriate remedial action and, in effect, aided and abetted in the unlawful conduct. Plaintiff Filed A Timely Representative Charge of Sexual Discrimination With The Equal Employment Opportunity Commission
43. Plaintiff filed a timely representative charge of gender discrimination, sexual discrimination and retaliation with the Equal Employment Opportunity Commission ("EEOC").
44. Plaintiff and Defendant entered into a standstill agreement on Plaintiff's claims effective May 9, 2003. The standstill agreement specifically provides that it is the parties' intent that the EEOC and this Court would honor their agreement. The parties' standstill agreement terminated on May 26, 2004.
45. The EEOC has issued a Notice of Right to Sue. Plaintiff Suffered Extreme Emotional Distress
46. By the acts and conduct described above, Allstate intended to cause Plaintiff severe emotional distress, or acted in reckless disregard that its actions had caused and would cause Plaintiff such injury.
47. Plaintiff suffered severe emotional and mental distress as a direct and proximate
10

Case 1:04-cv-05764 Document 1 Filed 09/02/2004 Page 11 of 19
result of the conduct of Allstate. 48. The acts and conduct of Allstate constitute extreme and outrageous conduct beyond
the bounds of common decency. Plaintiff Was Injured As A Consequence Of Deffeennddaant's Unlawful Conduct
49. Plaintiff lost wages and other benefits, suffered embarrassment and humiliation and her career was irreparably injured as a result of Allstate's conduct. Plaintiff suffered loss of enjoyment of life, inconvenience and other nonpecuniary losses as a direct result of Allstate's conduct.
CLASS ALLEGATIONS 50. The class offfeemale employees and former employees who have been SsuUbbjjeecctted to discrimination by Defendant due to their sex is so numerous that joinder of all members is impracticable. 51. There are questions ofllaaw and fact common to the class. 52. The claims of the representative will fairly and adequately protect the interests of the class. 53. The questions ofllaw and fact common to the members oftthe class predominate over any questions affecting only individual members and a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
COUNT I
SEXUAL DISCRIMINATION IN VIOLATION OF TITLE VII (CLASS AND INDIVIDUAL CLAIM)
54. Plaintiff and all others similarly situated reallege paragraphs 1I through 53 and incorporate them by reference as paragraphs 1I through 53 of Count I of this Complaint.
11

Case 1:04-cv-05764 Document 1 Filed 09/02/2004 Page 12 of 19
55. Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e et seq., as amended by the Civil Rights Act of 1991, ("Title VII") makes it unlawful to discriminate against any individual in the terms, conditions, or privileges of employment on the basis of sex.
56. Allstate has allowed the discrimination alleged herein to go unremedied for so long that it amounts to a policy or practice and constitutes Allstate's standard operating procedure.
57. Allstate's promotion process relies upon subjective decision making and results in under representation of women in management and highly compensated positions. The selection process fails under the EEOC's Uniform Guidelines on Employee Selection Procedures, 29 CFR § 1607 et seq. and more stringent statistical analysis.
58. Accordingly, Plaintiff, on behalf of herself and all others similarly situated, allege differential treatment and disparate impact theories of liability under Title VII.
59. By its conduct described herein, Allstate subjected Plaintiff and all others similarly situated to sexual discrimination in violation of Title VII.
COUNT II WAGE CLAIMS IN VIOLATION OF THE EQUAL PAY ACT AND TITLE VII
(CLASS AND INDIVIDUAL CLAIM) 60. Plaintiff and all others similarly situated reallege paragraphs 1 to 59 and incorporate them by reference as paragraphs 1 to 59 of Count II of this Complaint. 61. The Equal Pay Act of the Fair Labor Standards Act, 29 U.S.C. Section 206 and 207, makes it unlawful for an employer on the basis of sex to pay lower wages or fringe benefits to employees of one sex than it does to similarly situated employees of the other sex. Title VII also makes it unlawful to discriminate in the payment of wages on the basis of sex. 62. Plaintiff and all others similarly situated were paid lower wages than male employees
12

Case 1:04-cv-05764 Document 1 Filed 09/02/2004 Page 13 of 19
in substantially equal jobs even though Plaintiffs and all others similarly situated performed similar duties requiring the same skill, effort, and responsibility of male employees.
63. The differential in pay between sexes was not pursuant to seniority, merit, quantity or quality of production, but was due to sex.
64. Allstate intentionally paid Plaintiff and all others similarly situated less than it paid male employees who were performing substantially equal work.
65. By its conduct as alleged herein, Allstate discriminated against Plaintiff and all others similarly situated with respect to their wages in violation oftthe Equal Pay Act and Title VII.
COUNT III RETALIATION IN VIOLATION OF TITLE VII AND THE EQUAL PAY ACT
(INDIVIDUAL AND CLASS CLAIM) 66. Plaintiff and all others similarly situated reallege paragraphs 1I to 65 and incorporate them by reference as paragraphs 1I to 65 of Count III of this Complaint. 67. Title VII, specifically 42 U.S.C. 2000e-3, makes it unlawful for an employer to discriminate against an employee who has opposed an unlawful employment practice or has assisted or participated in another employee's claim of discrimination. In addition, the Equal Pay Act and Fair Labor Standards Act, 29 U.S.C. Section 215(a)(3), make it unlawful for any person to discharge or in any manner discriminate against any employee because she complained of wage discrimination. 68. Plaintiff and all others similarly situated complained of sex discrimination and unfair wage practices. 69. Allstate retaliated against Plaintiff and all others similarly situated for their complaints in violation of the anti-retaliation provisions of Title VII and the Equal Pay Act. By
13

Case 1:04-cv-05764 Document 1 Filed 09/02/2004 Page 14 of 19
its conduct, Allstate subjected Plaintiff and all others similarly situated to unlawful retaliation in violation of Title VII and the Equal Pay Act.
COUNT IV
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (INDIVIDUAL CLAIM)
70. Plaintiffrreeaalleges paragraphs 1 to 69 and incorporates them by reference as paragraphs 1 to 69 of Count IV oftthhis Complaint.
71. Allstate's actions through its agents against Plaintiff constitute conduct so outrageous in character and so extreme in degree as to be beyond all possible bounds of decency, and to be atrocious, and utterly intolerable in a civilized society.
72. Allstate, through its agents, intended to cause Plaintiff severe emotional distress and/or knew that there was a high probability that its conduct would cause severe emotional distress.
73. Allstate directed, encouraged, and participated in the wrongful conduct alleged herein.
PRAYER FOR RELIEF WHEREFORE, Plaintiff and all others similarly situated respectfully request that this Court find in their favor and against Defendant as follows:
Class Relief
a. Declare on behalf of Plaintiff individually and all other similarly situated that the acts and conduct of Allstate violate Title VII of the Civil Rights Act of 1964 and 1991 and the Equal Pay Act;
14

Case 1:04-cv-05764 Document 1 Filed 09/02/2004 Page 15 of 19
b. Award Plaintiff and all others similarly situated the value of all compensation and benefits lost as a result of Defendant's unlawful conduct;
c. Award Plaintiff and all others similarly situated the value of all compensation and benefits they will lose in the future as a result of Defendant's unlawful conduct under Title VII and the Equal Pay Act;
d. In the alternative to paragraph (c), reinstate Plaintiffs and all others similarly situated with appropriate promotions and seniority and otherwise make Plaintiffs and all others similarly situated whole;
e. Award Plaintiff and all others similarly situated compensatory damages under Title VII;
f. Award Plaintiff and all others similarly situated punitive damages under Title VII; g. Award Plaintiff and all others similarly situated liquidated damages under the Equal Pay Act; h. Award Plaintiff and all others similarly situated prejudgment interest; i. Award Plaintiff and all others similarly situated reasonable attorneys' fees, costs and disbursements; and j. Award Plaintiff and all others similarly situated such other relief as this Court deems just and proper.
15

Case 1:04-cv-05764 Document 1 Filed 09/02/2004 Page 16 of 19
Individual Relief k. Plaintiff incorporates by reference paragraphs (a) through (j) as paragraphs (a) through (j) of the prayer for relieffor her individual claims; 1. Declare that the acts and conduct of Allstate violate Illinois common law; m. Declare that the acts and conduct of Allstate violate the anti-retaliation provisions of the Equal Pay Act of the Fair Labor Standards Act; n. Award Plaintiff the value of all compensation and benefits lost as a result of Defendant's unlawful conduct; o. Award Plaintiff the value of all compensation and benefits she will lose in the future as a result of Defendant's unlawful conduct under Illinois common law; p. In the alternative to paragraph (n), reinstate Plaintiff with appropriate promotions and seniority and otherwise make Plaintiff whole; q. Award Plaintiff compensatory damages under Illinois common law; r. Award Plaintiff punitive damages under Illinois common law and for retaliation under the Equal Pay Act of the Fair Labor Standards Act; s. Award Plaintiff prejudgment interest; t. Award Plaintiff reasonable attorneys' fees, costs and disbursements; and
16

Case 1:04-cv-05764 Document 1 Filed 09/02/2004 Page 17 of 19

u. Award Plaintiff other relief as this Court deems just and proper.

Respectfully submitted,

STOWELL & FRIEDMAN, LTD.
By Y~~

Mary Stowell Linda D. Friedman STOWELL & FRIEDMAN, LTD. 321 S. Plymouth Court Suite 1400 Chicago, Illinois 60604 Phone: (312) 431-0888 Fax: (312) 431-0228

Linda D. Friedman

17

Civil Cover SheCetase 1:04-cv-05764 Document 1 Filed 09/02/2004 Page 18 ofP1a9ge I of2

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
Civil Cover Sheet

DOCKETED
SEP 0 :l Z004

This automated JS-44 conforms generally to the manual JS-44 approved by the Judicial Conference of the United States in September 1974. The data is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. The information contained herein neither replaces nor supplements the filing and service of pleadings oOr other papers as required by law. This form is authorized for use only in the Northern District of Illinois.

Plainttiff(s): Katherine Puffer, on behalf of herrself and all others similarly situated

County of Residence: Cook

Plaintiffs Atty:

Mary Stowell and Linda D. Friedman Stowell & Friedman, Ltd. 321 S. Plymouth Court, Suite 1400, Chicago, IL 60604 (312) 431-0888

Defenndant(s):Aillstate Insurance Company County of Residence: Defendant's Atty:
04C 5764

II. Basis of Jurisdiction: (YY''ederal Question (U.S. not a parrtty)

III. Citizenship of Principal
Partie~ (Diversity Cases Only)
Plaintiff:- NI/A Defendant:- N/A

NMIAAGGISTMRAi:i:O::0 ,jLJDGE fvl/1ASON

IV. Origin: V. Nature of Suit:

1. Orriginal Prrooceeding
~mployment

VIl.C<(!\use of Action:

Genderr discrimination under Title VII of the Civil Rights Act of

19644,,42 U.S.C. 2000e et.deq., as amended by the Civil Rights Act of

1991 and the Equal Pay Act of the Fair Labor Standards Act 29

U.S.C. Sections 206 and 207
VII. Reguested in COomm!plllaaiinntt~
Class Actio ~ Dollar Deman :
Jury Demand: Yes
VIII. This case IS NOT a refiling of a previously dismissed case.
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Case 1:04-cv-05764 Document 1 Filed 09/02/2004 Page 19 of 19

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS

In thec Matter of

EASTERN DIVISION

CK TED I I DO E Katherine Puffer, on behallffofhheerrselfaand all others

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Ss1Im1Ilarly sIituated, Plamtlffs, v. Allstate Insurance Company, Defendant.

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TELEPl!lQ:-IE NUMIllER
(312) 431-0888

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STREET ADDRESS S. Plymouth Court, Suite 1400

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Chicago, IL 60604

TELEEPl'IHIONE NUMBER
(312) 431-0888

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IDENTIFICATION NUMBER (SEE ITEM 4 ON REVERSE)
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 Case 1:04-cv-05764 Document 260 Filed 01/15/2009 Page 1 of 42

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

KATHERINE PUFFER, on behalf of )

herself and aU others similarly situated, )

)

Plaintiffs,

)

)

v.

)

)

ALLSTATE INSURANCE COMPANY, )

)

Defendant.

)

Case No. 04 C 5764 Magistrate Judge Sidney I. Schenkier

MEMORANDUM OPINION AND ORDER'

Katherine Puffer ("plaintiff' or "Ms. Puffer") filed this suit on behalfofherselfand a putative

class alleging that Allstate Insurance Company ("Allstate") has carried out a nationwide pattern or

practice of sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §

2000e et seq., and the Equal Pay Act, 29 U.S.C. §§ 206 and 207 (doc. #13: Am. Compl. at 11-12, ~ 4). Plaintiff has moved to certify the following class under Federal Rule of Civil Procedure

23(b)(2) and (3): "All female managers holding the position ofDivision or Department manager and

above who worked or continue to work at Allstate Protection at any time between May 9, 2001 and

the present and who have been and continue to be injured by the alleged discriminatory employment

policies and practices" (doc. # 126: PIl.'s Class Cert. Mem. at 21). The parties have conducted

extensive fact and expert discovery, and have submitted equally extensive briefing, on plaintiff's

motion for class certification. For the reasons that follow, plaintiff's motion for class certification

(doc. # 125) is denied.

IOn January 11,2005, by consent of all parties and pursuant to 28 U.s.C. § 636(c), this case was assigned to the Honorable Michael T. Mason for all proceedings, including ent!r)y' of final judgment (doc. ## 18, 19). Thereafter, upon Judge Mason's recusal from the case, on February 11,2005, the case was reassigned to his Court (doc. # 23).

Case 1:04-cv-05764 Document 260 Filed 01/15/2009 Page 2 of 42
I.
We begin our discussion with a brief introduction to Allstate's organizational structure, followed by a summary of Ms. Puffer's employment history at Allstate.
A. Prior to 2002, Allstate organized its Property and Casualty ("P&C") business into four operational areas: Claims, Finance, Product Operations, and Distribution (doc. # 200: Def. 's Opp'n to Class Cert. at 2). In October 2002, Allstate created a new organization called Allstate Protection ("Protection"). Protection is the largest business unit within Allstate, employing approximately 80 percent of all Allstate personnel (Pl.'s Class Cert. Mem. at 7-8). Allstate Protection consists of different Areas of Responsibility ("AORs"), each headed by a Vice President or Senior Vice President, i. e., "senior managers" (id.). The four largestAORs within Protection are Claims, Product Operations, Protection Finance, and MarketinglDistribution (id. at 8). AJlstate Protection also includes Encompass, three different marketing groups, and the Technology Shared Services Group (Def.'sOpp'n to Class Cert. at 2). During the class period, women constituted 61 percent of the employees in the four largest AORs within Protection, 36 percent ofthe managerial positions (Salary Grades ("Grades") 63 and above), and 10 percent of the senior manager positions (id. at 2-3; PI.' s Class Cert. Mem. at 7-8). Employee responsibilities, supervisors, office locations, and salary grade vary widely among the four primary AORs in Protection (Def.'s Opp'n to Class Cert. at 6-7). The Claims AOR employs attorneys, human resources and IT professionals, claims investigators, claims and subrogation service managers, and project managers (id.). Two-thirds of the putative class worked or works in Claims (id. at 7). The Product Operations AOR, by contrast, focuses on pricing, strategy, product
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and design, risk management, and research analytics, and consists of, among other employees, pricing directors and actuaries (id, at 8). Likewise, the Finance AOR houses a different set of employees, with their own set ofteclmical and professional skills; and in the Marketing/Distribution AOR, sales-related skills and experience are most important (id, at 7-8).
In addition to the variety ofjob types in which members ofthe putative class are employed, plaintiff's proposed class includes a wide spectrum of managerial level positions. Eighty percent ofthe putative class consists ofwomen employed in entry-level, nOTh-officer management positions at Grades 63 and 64 or below (id. at 6 n.5). However, the putative class also includes women employed in senior manager positions at Grade 77, director positions at Grade 78, appointed officer positions (Assistant Vice President and Assistant Field Vice President) at Grade 80, and elected officer positions (Vice President, Field Vice President, and Senior Vice President) who are at Grade 90 and above (id. at 5-6). There are only 200 officer positions at Allstate in a company of 38,000 employees (id. at 3).
Supervisors are required to meet with each manager who reports directly to them at the beginning ofthe year to discuss major job responsibilities and individual performance goals for the manager over the next 12 months (id. at 9). At the end of the year, the supervisor fills out a performance development summary ("PDS") for each manager who reports to them, based on the majorjob responsibilities and individual performance goals set for him or her the previous year (id.). The numeric ratings ofthe manager's major responsibilities are weighted and then tabulated to reach an overall evaluation rating (id. at 9-10), The supervisor then submits the PDS to his or her own direct superior for input, review, and approval before it goes to the evaluated manager in a process called "one-over-one" review (id.). In addition, Allstate evaluates its managers based on 17 critical
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success factors (U"CCSSFFs") as well as Quality Leadership Management Surveys, which are filled out . by the employees who directly report to the managers' being reviewed (idd.. at 10-11). These
evaluations are factored into decisions on merit or promotional increases in salary for managerial
employees. Protection is allotted a percentage amount of money each year to be used for merit or
promotional salary increases (PpIl.' s Class Cert. Mem. at 16). Allstate's Human Resources department (u"HR") distributes annual salary administration guidelines to management supervisors, which set forth an overall range of salary increases in terms of a percentage amount for each performance and. salary level (id.). Using these guidelines, together with the evaluations described above, Allstate determines merit and promotional increases for all managerial employees. This process is done through HR, with input from Protection management (id.). In Grades 63 to 78, pay decisions are based on the manager's performance and salary range (Def.'s Opp'n to Class Cert. at 12). Only
managers in Grades 77 and above are bonus-eligible (id.). Allstate's 12-person senior management
team is only involved in pay and promotion decisions for the 200-member officer group (id. at 11). Allstate generally does not post openings for managerial positions (PpIl. 's Class Cert. Mem.
at 11). Rather, an employee's supervissoorris responsible for recommending employees for promotion when positions become vacant (Def.'s Opp'n to Class Cert. at 13). Allstate employees, however, many change jobs without going through formal promotion procedures through use of the "broadbanding system" adopted by Allstate in 2000 (Pl.'s Class Cert. Mem. at 10-11). Broadbanding groups hundreds ofjobs with similar levels of responsibility and accountability into the same '~ob band," with eachhjob band containing positions covering a wide salary range (id. at 2). Broadbanding allows senior managers to change an employee's responsibilities, salary, andjob,
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without going through fonnal procedures, so long as the employee stays within the same band (id. at 10). Broadbanding gives employees cross-training and developmental opportunities in other jobs within the same band (id. at 11.)
Job moves within a salary band, with the cross-training opportunities that go along with them, may playa role in succession planning decisions, through which senior management identifies talented and qualified candidates for more senior positions that may become available later (Id. at 12). Personality and other subjective traits, as wen as perfonnance evaluation results and an employee's prior experience, factor into succession planning decisions (id. at 14; Def.'s Opp'n to Class Cert. at 13). Succession planning decisions are generally formalized at least once a year in succession planning and talent management meetings between senior managers in Protection and HR (Pi.'s Mot. for Class Cert. at 13). The heads of the AORs make the final decisions regarding promotional and advancement opportunities for individuals in Grades 63 and 64, and they provide recommendations to senior officers for the advancement and promotion of individuals in Grade 77 and above (id. at 14).
B.
Ms. Puffer began her employment with Allstate in 1977 in an entry level acconunting position in the Corporate Acconunting department (Def.'s Opp'n to Class Cert. at 3). By 1993, after being promoted eight times, she rose to the officer position of Assistant Vice President in Finance and Planning (id.). Ms. Puffer worked in Finance for most of her 26-year Allstate career (id. at 8). Ms. Puffer worked in the Policies and Fonns unit within the Product Operations department from Aprii1998 to October 2000, but she never worked in the actuarial side ofthat department, the largest
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section in Product Operations (id at 8). She has not worked in a Grade 63 or 64 equivalent job since 1986 (id. at 6 n.5S). Ms. Puffer never worked in Claims or Distribution (ld. at 7).
Ms. Puffer alleges that she was sexually harassed by her immediate supervisor from late 1998 to mid-J999, and that she was passed over for promotion and advancement as a result ofher rejecting
n the supervisor's advances and because of her gender (Am. Compl. 19-23). She alleges that
Allstate failed to conduct an adequate investigation into those matters (ld. '\124.) Based on those alleged events, in January 2001, Ms. Puffer filed a charge of gender discrimination, sexual harassment, and retaliation with the Equal Employment Opportunity Commission ("EEOC"). Ms. Puffer claims that after she filed that EEOC complaint, Allstate transferred her to a new department,
n cut her responsibilities in half, and refused to finance her business school education (id. 27-29).
Plaintiff chose not to file a lawsuit within the required time period after she received a right to sue letter from the EEOC.
In May 2003, Ms. Puffer was ternmninated from her position at Allstate. At that time, Ms. Puffer held the title of Assistant Vice President, which was a Graacdle 80 position (Pl.'s Class Cert. Mem. at 1). Plaintiff was one of fourteen officers terminated at that time: eleven were male, and three were female (Def. 's Opp'n to Class Cert. at J). Ms. Puffer then filed a new charge with the EEOC, alleging gender discrimination and retaliation (Am. Compl. '\141). After receiving a right to sue letter from the EEOC, Ms. Puffer timely filed the complaint in this case. As amended, the complaint asserts three claims.
In Count 1, Ms. Puffer alleges that Allstate discriminated against her and a class of female managerial employees because of their gender, and allowed the discrimination ''to exist and go unremedied for so long that it amounts to a policy or practice and constitutes Allstate's standard
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operating procedure" (Am. Compl. '\I 52). Plaintiff alleges this policy or practice under both
"differential treatment and disparate impact theories ofliability under Title Vll" (id. '\153).2 In Count II, Ms. Puffer alleges a class claim under the Equal Pay Act, alleging that Allstate has paid (and continues to pay) putative class members "lower wages than male employees in substantially equal jobs even though plaintiffs and all others similarly situated performed similar duties requiring the same skill, effort, and responsibility ofmale employees" and performed "substantially equal work" (id. '\1'\157, 59).' Plaintiff claims that the difference in pay between the sexes "was not pursuant to seniority, merit, quantity or quality of production, but was due to sex" (id. '\158). In Count Ill, Ms. Puffer alleges an individual claim of retaliation in violation of Title VII and the Equal Pay Act.4
II. A plaintiff seeking class certification bears the burden of satisfying all of the criteria listed in Federal Rule of Civil Procedure 23(a) - mntunerosity, commonality, typicality, and adequacy of representation - as well as at least one subsection of Rule 23(b). Arreola v. Godinez, 546 F.3d 788, 797 (7th Cir. 2008). The determination of class certification under Rule 23(a) turns not on the ultimate merits ofthe case, but rather on whether the party seeking certification meets its burden of showing aU the certification requirements of Rule 23(a). Gen. Tel. Co. v. Falcon, 457 U.S. 147, 161
'In "disparate treatment" cases. proof of discriminatory motive is. critical, although in some siittuuaatitOiol1n.s'l the requisite motive can be inferred from the fact of differences in treatment. Int '/ Bhd a/Teamsters v\I.. United States, 43 I U.s. 324, 335 (1977). In disparate impact cases, by contrast, motive is iltTelevant. EEOC v. Chicago Miniature Lamp Works. 947 F.2d 292, 297 (7th Cir. 1991).
'Plaintiff's class certification papers do not address the appropriateness of class certification under the Equal Pay Act. That kind ofundeveloped argument likely constitutes a waiver, but, in any event, a similar analysis would apply to the Equal Pay Act claim as applies to plaintiiffff's disparate impact claim, neither ofwhicb requires a showing ofiinnltent. Wartren v. Solo Cup Co., 516 FJd 6277,,6629 (7th Cir. 2008).
'Since the matter is before the Court solely on plaintiff's motion for class certification, we express no view on the merits of her individual retaliation claim.
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(1982). "Failure to meet any ofthe Rule's requirements precludes class certification." Arreola, 546 F.3d at 794. Rule 23 gives the district courts "broad discretion to determine whether certification of a class-action lawsuit is appropriate." Id That said, the Seventh Circuit "suggest[s] caution in
class certification generally." Thorogood v. Sears, Roebuck and Co., 547 F.3d 742, 746 (7th Cir.
2008). The Seventh Circuit has directed that, "[b]efore deciding whether to allow a case to proceed
as a class action, ... a judge should make whatever factual and legal inquiries are necessary under Rule 23." Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 676 (7th Cir. 2001). When a plaintiff seeks certification under Rule 23(b)(3), the Court should "make a preliminary inquiry into the merits" ofthe claims, to decide whether "the difficulties likely to be encountered in the management of the class action" preclude certification. Id. As this Court has previously stated:
We do not believe that Szabo directs district courts to decide class certification questions based on a preliminary assessment of the ultimate merits ofthe plaintiffs' claims: to base class certification on a prediction of who will win the case would be at odds with Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974). In our view, the "preliminary inquiry into the merits" discussed in Szabo is a more limited one that has as its focus not the substantive strength or weakness of the plaintiffs' claims, but rather whether the path that will need to be taken to decide the merits renders the case suitable for class treatment. Harris v. Circuit City Stores, Inc., No. 07 C 2512, 2008 WL 400862, at +3-4 (N.D. Ill. Feb. 7, 2008). "It is in this limited sense that the Court assesses the 'merits' ofplaintiffs, allegations in considering the class certification motion." Id. at *4.
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In Parts ILtAA. through II.D. below, we consider whether plaintiff hbas satisfied the
requirements of Rule 23(a).. In Part mIII,, we then address whether plaintiffhas met the requirements
of at least one of the subsections of Rule 23(b).' A.
Rule 23(a)(1) requires that the class be "so numerous that joinder of all members is impracticable." Fed. R. Civ. P. 23(a)( I). Plaintiffasserts - and Allstate does not contest - that there are more than 1,700 women in Allstate Protection who could be covered by the proposed class definition (PI..' s Class Cert. Mem. at 22).6 This number ofputative class members easily meets the
numerosity requirement ofRule 23(a)(Il). See, e.g..,Acikv. I C. SYs..,,Inc., 251 F.R.D. 332, 335 (N.D.
Ill. 2008) (class consisted of at least 100 individuals); Cavin v. Home Loan CCItTr., Inc., 236 F.R.D. 387, 392 (N.D. Ill. 2006) (collecting cases).
B. The second requirement ofFederal Rule ofCivil Procedure 23(a) presents a far more difficult challenge for plaiinnttiiffff--oonne that, in ourjjudgment, plaintifffails to meet. Rule 23(a)(2) requires that a plaintiff seeking class certification show that "there are questions of law or fact conmumnon to the class." Fed. R. Civ. P. 23(a)(2). "A common nucleus of operative fact is usually enough to satisfY
the comnumnonality requirement ofRule 23(a)(2)." Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998).
'We note that in addition to meeting the requirements expressly set forth in Rule 23(0a) and (b), a plaintiff seeking class certification also must show that her proposed claim is "sufficiently definite to permit ascertainment ofth. class members." Alliance 10 End Repression v. Rochford, 565 F.2d 975., 977 (7th Cir.. 1977). Allstate does not argue that plaintiff's proposed class definition frails to meet this standard, and so we do Dnoot discuss it further in this opinion.
'In her amended complaint, Ms. Puffer aUeges discrimination against ~male employees in Allstatee''s. Property
and ClaIs3uuaaltly business, rather than Allstaite Protection (Am. CoampIl. '~If 4). Although defendant briefly notes this
discrepancy between plaintiffff''s. proposed class as aUlleged in the complaint and asserted in the class certification motion
(Def..''s. Opp'n to Class Cert. at 5 n.4), defendant does not assert this discrepancy as a basis to deny class certification. 9

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Plaintiff contends that the proposed class members are commonly linked by the allegedly discriminatory compensation, promotion, and training policies and practices at Allstate Protection. Plaintiff argues that these employment policies and practices are excessively discretionary, vesting all authority to choose, advance, and compensate management employees in the male-dominated, senior manager ranks, thereby allowing senior managers "to apply their own subjective views, without explanation or accountability, of whom to promote or develop" (pI.'s Class Cert. Mem. at 1). Specifically, plaintiff argues that: Allstate's promotion decisions are excessively subjective because position openings are not posted; Allstate's decisions on merit or promotional increases are excessively subjective because senior management can distribute the money allotted for these salary increases at their discretion; and succession planning decisions are excessively subjective because the process is secretive, and the criteria used by senior management to determine who will be chosen are subjective and tend to be influenced by personalities and not by objective performance measures (id. at 9-11, 14-16). Plaintifffurther contends that Allstate'sadoption ofthe "broadbanding system" only increased the subjectivity of pay, promotion, and development decisions, because senior managers no longer had to go through the formal promotion procedures (id.). Plaintiff asserts that this subjectivity leads Allstate to consciously (and unconsciously) favor men in these employment decisions, with the result that ''women earned significantly less than their male counterparts, were disproportionately segregated into the lower paying jobs, were denied equal access to training and career advancement opportunities and were otherwise subjected to the same enterprise-wide employment practices" (id. at 8-9, 23).
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1. At the threshold, Allstate argues that its employment practices cannot constitute a companywide policy of discrimination unless they are "entirely subjective" (Def.'s Opp'n to Class Cert. at 24-25). For that proposition, Allstate relies on a footnote from the Falcon decision, in which the Supreme Court stated that "[sJ]ignificant proof that an employer operated under a general policy of discrimination conceivably could justify a class of both applicants and employees if the discrimination manifested itself in hiring and promotion practices in the same general fashion, such as through entirely subjective decisionmaking processes." Falcon, 457 U.S. at 159 n.15. Courts ofappeals that have considered the issue are divided on the significance ofthe Falcon footnote. The Sixth Circuit has construed this footnote to create a bright-line rule: class treatment is appropriate only if an employment practice challenged because of its subjectivity is entirely subjective. Bacon v. Honda ofAm. Mfg., Inc., 370 F.3d 565,571 (6th Cir. 2004). On the other hand, the Ninth Circuit has read Falcon as identifying an "entirely subjective" decision-making process as an example of one that could warrant class certification, without excluding the possibility that decision-making processes that blend subjective and objective elements also might qualify for class certification. Staton v. Boeing, Co., 327 F.33d 938, 955 (9th Cir. 2003),. This distinction is significant here, as there is no question that Allstate's employment process is not entirely subjective, but blends subjective and objective elements. The Seventh Circuit has not held forth on the meaning ofthe Falcon footnote. In the absence of direction from the Seventh Circuit, we find that the Staton analysis comports with the plain meaning of the language the Supreme Court selected. The words "such as" commonly introduce a non-exclusive list, and we see no reason to conclude that the Supreme Court in Falcon intended that
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those words have a different meaning. Accordingly, we reject Allstate's contention that we may not certify a class merely because its employment decision-making process is not wholly subjective.
That said, we hasten to add that nothing in Title VII prohibits employers from using subjective criteria in their employment practices. Sattar v. Motorola, Inc., 138 F.3d 1164, 1170 (7th Cir. 1998). Indeed, it is hard to envision a system that could thoroughly evaluate the suitability of persons for management jobs, or their performance in those positions, without taking into account subjective assessments of qualities that objective criteria may be unable to capture. As the Seventh Circuit has stated:
Subjective evaluations of a job candidate are often critical to the decisionmaking process, and ifanything, are becoming more so in our increasingly service-oriented economy. . .. Personal qualities ... factor heavily into employment decisions concerning supervisory or professional positions. Traits such as common sense, goodjudgment, originality, ambition, loyalty, and tact often must be assessed primarily in a subjective fashion, yet they are essential to an individual's success in a supervisory or professional position. Elise v. Antaramian, 409 F.3d 861, 868 (7th Cir. 2005) (quoting Chapman v. A.I. Transport, 229 FJd 1012, 1033-34)(llth Cir. 2000»; see also Watson v. Forth Worth Eank& Trust, 487 U.S. 977, 999 (1988) ("It is self-evident that many jobs, for example those involving managerial responsibilities, require personal qualities that have never been considered amenable to standardized testing"). As Falcon stated, a plaintiff seeking class treatment for an alleged general policy of discrimination must offer "significant proof' that the alleged policy manifested itself in the "same general fashion" as to all putative class members. Falcon, 457 U.S. at 159 n.15. Subjective employment processes may provide a common basis for a classwide claim of discrimination if the
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subjective employment criteria were uniformly "used as a mask for discrimination," or "to evade statutory anti-discrimination rules." Millbrook v. IBP, Inc., 280 F.3d 1169, 1176 (7th Cir. 2002) (internal citations and quotations omitted). See, e.g., Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 156 (2d Cir. 2001) (holding that the delegation of discretionary authority to supervisors for discipline and promotion constituted a policy or practice sufficient to satisfY the commonality requirement). After careful consideration, we conclude that plaintiffhas failed to make that showing. Plaintiff's attempt to establish commonality is undermined by: (a) the diversity of both the proposed class members in terms oftheir job duties, and the people who made the relevant employment decisions; (b) the limitations of plaintiff's statistical evidence; (c) the conflicting anecdotal evidence found in the declarations offered by each side; and (d) the unconvincing nature of plaintiff's social science evidence concerning a "culture of paternalism" at Allstate, as that evidence bears on class certification. We address each of these in turmn.
a.
To satisfY the commonality requirement, Allstate's employment policies or practices must have affected the putative class members in the same or similar ways. Thorogood, 547 F.3d at 747· 48 (reversing district court's certification of class where plaintiff's claim depended on class members' uniform understanding of the significance of Sears's labeling or advertising on clothes dryers). See also Donaldson v. Microsoft Corp., 205 F.R.n. 558, 567 (w.n. Wash. 2001) (holding that the proposed class included such a wide range of employees, subject to such a wide range of criteria for individual performance evaluations, that "[a]bsent some evidence that Microsoft's benefits system effected [[sic] these various employees in the same or similar ways, the enormous diversity of this putative class defeats a fmding of commonality"). Allstate··argues that plaintiff
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cannot show commonality here, because "[t]he staggering heterogeneity ofplaintiffs proposed class requires answering questions about decisions made by hundreds ofmanagers, across varied business divisions and segments, with employees who perform entirely different functions, who hold hundreds ofdifferent jobs, and who are scattered across a multitude ofregions and office locations" (Def. 's Opp'n to Class Cert. at 25-26). We agree.
As explained above, the putative class members were supervised and reviewed by many
different people; had a wide variety of salary levels, jobs, and responsibilities; and had annual goals individually tailored to them. Several decisions in this district have denied class certification in
discrimination cases where a plaintiff s class definition implicated numerous, independent
decision-makers, resulting in the need for numerous individual inquiries. See, e.g., Ellis v. Elgin Riverboat Resort, 217 F.R.D. 415, 424 (N.D. Ill. 2003); Williams-Ellis v. Mario Tricoci Hair Salons and Day Spas, No. 05 C 5030, 2008 WL 294731, at *4 (N.D. Ill. Jan. 31,2008); Sandoval v. City a/Chicago, No. 07 C 2835, 2007 WL 3087136, at *6 (N.D. Ill. Oct. 18,2007); but see Smith v, Nike Retail Servs., Inc., 234 F.R.D. 648, 661 (N.D. Ill. 2006) (finding commonality in question ofwhether
Nike discriminated in assigning positions to African-American employees by means of a corporate policy that left hiring decisions to the unfettered discretion of local level managers).
Ms. Puffer nonetheless argues that Allstate's "salary administration, performance evaluation, job assignment, and advancement policies and practices are uniform throughout Allstate Protection" (doc. # 247: Pl.'s Class Cert. Reply at 7). In aid of that argument, Ms. Puffer offers the opinion of Dr. Cristina Banks, an industrial organization psychology expert, that "Allstate has developed uniform policies and practices related to performance management, leadership assessment, succession planning, job assignment, placement and compensation that have been applied broadly
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across Allstate Protection" (doc. # 239: Ex. S, Banks Report at 2). She reasons that Allstate's policies open up the possibility of bias in perfonnance appraisals because senior managers assign employees major responsibilities, perfonnance standards, and CSFs at their discretion (id. at 15-17, 19).
However, Dr. Banks concedes that evaluations and CSFs are not applied consistently between regions or between supervisors in the same regions, and that their assessments of employees are not
comparable: "essentially their evaluations do not pennit 'apples to apples' comparisons" (id. at 1718,27). This incomparability undennines plaintiff's claim ofcommonality: even ifone supervisor used Allstate's subjective employment practices "as a mask for discrimination," that does not inexorably lead to the conclusion that any other supervisors did so. See, e.g., Morrison v. Panduit Corp., No. 03-3081,2004 WL 3049816, at +2, 5 (7th Cir. Dec. 21, 2004) (holding that evidence did not show that vice president discriminated against employee because vice president was not involved in many of the employment decisions at issue). Dr. Banks's opinion evidence does not overcome the heterogeneity of the class members and individual decision makers that weighs heavily against a finding of commonality.
b. In seeking to establish commonality, plaintiff places great weight on statistical evidence. While we are mindful ofthe importance ofstatistical evidence, we likewise must acknowledge that "[iJt is said that you can find a statistic to prove anything." Barricks v. Eli Lilly and Co., 481 FJd 556,559 (7th Cir. 2007). As Mark Twain once said, "[tJhere are three kinds ofHes-lies, damned lies and statistics." Id. Thus, the Court recognizes both the potential power of statistics, and their potential frailty.
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"Gross statistical disparities" alone may constitute primafacie proofofa pattern or practice ofdiscrimination in a proper case, but statistical evidence alone is rarely sufficient. Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 307-08 (1977). For example, "[s]tatistical evidence which fails to properly take into account nondiscriminatory explanations does not pennit an inference of discrimination." Radue v. Kimberly-Clark Corp. ,219 F.3d 612,616-17 (7th Cir. 2000). Although an expert need not include all measurable variables in conducting a statistical analysis, see Bazemore v. Friday, 478 U.S. 385,400 (1986), certain factors are crucial to statistical evidence in Title VII cases, such as identifYing not only those individuals who are qualified for a position, but also those who are potentially interested in it. Bennett, 295 FJd at 697. The Seventh Circuit has explainedthat "[i)n order to be considered, the statistics must look at the same part of the company where the plaintiff worked; include only other employees who were similarly situated with respect to perfonnance, qualifications, and conduct; [and] the plaintiff and the other similarly situated employees must have shared a common supervisor...." Balderston v. Fairbanks Morse Engine Div. o/Colteec Indus., 328 F.3d 309, 319-20 (7th Cir. 2003). "[W)hen the statistical evidence does not adequately account for the diverse and specialized qualifications necessary for the positions in question, strong evidence of individual instances of discrimination becomes vital to the plaintiff's case." E.E.o.C. v. Sears, Roebuck & Co., 839 F.2d 302, 311 (7th Cir. 1988) (internal citations and quotations omitted).
Dr. Janice Madden, plaintiff's statistical expert, performed a statistical analysis ofAllstate's personnel data, which included compensation and employment records for any person holding an exempt salary band or officer level position at any time between 1999 (at least two-and-a-halfyears prior to the class period as plaintiff defines it) and 2006, to study gender differentials in
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compensation,job assignment, and advancement (PI. ' s Class Cert. Mem. at 2-3). Plaintiffsubmitted Dr. Madden's original expert report on November 6, 2007; a "Revised Repoorrtt"" and a "Rebuttal Report" on July 22, 2008; a "Revised Rebuttal Report" on August 18,2008; and another "Revised Rebuttal Report" on August 21., 2008.7 The revised reports purport to address certain criticisms of Dr. Madden's original analysis that were pointed out by Defendant's statistical expert, Dr. Robert Topel, while the original and rebuttal reports contain substantive research, analyses, and conclusions.
Dr. Madden performed a multiple regression analysis using five different models, controlling for various combinations of age, tenure at Allstate, education, salary grade, job code, location, and time in grade (PI.'s Class Cert. Mem. at 5).8 Based on her analyses, Dr. Madden concluded that: "women earn significantly less than men within (the same) Salary Bands in each year between 200 1I and 2005; women are steered by Allstate into jobs that pay significantly less, on average, than the other jobs within the band; and the percentage offemale representation in these lower paying jobs is significantly greater than the female representation in the band as a whole. Men, on the other hand, are assigned to male-dominated jobs where they earn significantly more" (id at 3).
Defendant has moved to strike Dr. Madden's report on the grounds that it is irrelevant to this case because it fails to identifY whether any of the pay differences she found were the result of decisions made within the class period, and it fails to link any pay differential that she found to any
'On October 24,2008, plaintiff filed a motion for leave to file a "Declaration ofDr. Ianice Madden to Correct the Record;" i.e., to correct certain errors Dr. Madden made on a table attached to her rebuttal report (doc. # 253). The new declaration, however, appeared to contain new research and analysis in addition to the corrections. On November 12,2008, this Court denied plaintiiftir's motion (doc. # 257).
'Multiple regression analysis uses statistics to compare characteristics, or factors, within a particular set ofdata to determine how one set ofcharacteristics (e.g., qualifications) is related to another, single characteristic (e.g., wages). Thomas J. Campbell, Regression Analysis in Title VII Cases, 36 Stian. L. Rev. 1299, 1300 (1984). In employment discrimination cases, regression analysis is used to ractor out the effect of influences other than alleged discrimination and to test whether the remaining influence of alleged discrimination is statistically significant. [d. at 1302.
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Allstate policy or practice (doc.. # 206: Deeff,.'s Mot. to Strike Madden at 1-2)., The Court disagrees that these deficiencies in Dr., Madden's report make it irrelevant or inadmissible; however, the Court finds limited probative value in Dr. Madden's report on the issue of class certification,.
First, Dr., Madden originally calculated what the Court will refer to as the ''total difference" between male and female employees' salary each year, rather than the "incremental difference" in compensation each year. For example, if in 2001, men in a certain salary grade earned $100 and women of the same grade earned $90, the "''total difference" in compensation is $10.. Ifin 2002, the men and women both received a 10% increase in salary (such that the men now earned $110 and the women now earned $99), the "''total difference" in compensation would increase to $11. The "incremental difference" in compensation from 2001 to 2002, however, is only $1. Dr. Madden's original method of regression analysis thus included the effect of wage differentials that existed between male and female employees as a result of employment decisions that predated the class period sought by plainnttiiffff..
That method of analysis runs headlong into Ledbetter v. Goodyear Tire & Rubber Co.,, Inc. , 127 S. Ct. 2162 (U.S,. 2007). ITnn Ledbetter, the Supreme Court held that each paycheck issued after aa prior discriminatory pay decision does not constitute an actionable act ofdiscrimination unless the individual paycheck was accompanied by new discriminatory intent. Id. at 2174-75. See also Lewis vv.. City oa/Chicago, 528 F.3d 488,492 (7th Cir. 2008) (distinguishing between injury resulting from a "fresh act" of discrimination and injury resulting from the "automatic consequence" of an earlier act ofalleged discrimination). By basing her analyses on ''total difference" between salaries ofmale and female, Drr.. Madden improperly incorporated pay-setting decisions that took place before the class period, and thus used an analysis that is contrary to Ledbetter. An "incremental difference"
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Case 1:04-cv-05764 Document 260 Filed 01/15/2009 Page 19 of 42
analysis, on the other hand, avoids this problem by focusing on pay decisions made within the asserted class period.
We recognize that plaintifffiled her complaint - and asserted the rejected "paycheck" theory - prior to Ledbetter. In the wake ofLedbetter, plaintiffand Dr. Madden seek to salvage their method of analysis by recasting the paycheck theory. They contend that an employee's current annual compensation is the result of a current decision by her employer regarding total salary, not merely percentage annual increase, and thus that Dr. Madden's method ofanalysis comports with Ledbetter (doc. # 223: Ex. 2, Madden Rebuttal at 16-18). Dr. Madden contends that Allstate attempted each year to set the "right current level of earnings" and to correct for "inappropriate" differentials in earnings with a gender-neutral policy of giving higher earnings increases to employees whose earnings levels were low relative to comparable employees and lower earnings increases to employees whose earnings levels were high relative to comparable employees (id at 16-18,29). Dr. Madden concluded that because women are systematically more likely than men to be below their expected pay levels, women were discriminated against when they did not receive a larger salary increase than men to correct for prior pay differentials (id. at 26-27). The Court is not persuaded that this approach avoids the Ledbetter limitation. Under Ledbetter, discrimination is not measured by a defendant's failure to correct for a discrimination that may have occurred in the past, but by discriminatory decisions made during the relevant time period. Under Ledbetter, a decision by Allstate not to give women higher salary increases to correct for prior pay differentials would not constitute actionable discrimination.
The Supreme Court's opinion in Bazemore v. Friday, 478 U.s. 385 (1986), does not change this analysis. In Bazemore, the Supreme Court held that the fact that the government employer
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Case 1:04-cv-05764 Document 260 Filed 01/15/2009 Page 20 of 42
discriminated with respect to salaries prior to the time the employer was covered by Title VII "does
not excuse perpetuating that discrimination after the [employer] became covered by Title VII." Id.
at 395. Further, the Court held that "[e]ach week's paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII, regardless of the fact that this pattern was begun prior to the effective date of Title VI!." Id. at 395-96. Ms. Puffer interprets Bazemore to mean that despite Ledbetter's clear repudiation of a "paycheck accrual rule," whereby each paycheck would trigger a new EEOC charging period, every paycheck Allstate issued to female
managers was a separate act of discrimination (PI. 's Class Cert. Mem. at 22; doc. # 233: PI.'gs Resp.
to Mot. to Strike Madden at 7)." We disagree, because Bazemore involved a unique situation not present here. Unlike the case
here, the employer's compensation policy at issue in Bazemore had facially discriminated between white and black employees. The Supreme Court explained that allowing the effects ofsuch a facially discriminatory practice to continue simply because it had been instituted before Title VII became effective "would have the effect of exempting from liability those employers who were historically
the greatest offenders of the rights of blacks." Bazemore, 478 U.S. at 395. Unlike the plaintiffs in Bazemore, who could not have brought their Title VII claims earlier because Title VII had not yet
been made applicable to public employers, Ms. Puffer (and many of the putative class members whom she seeks to represent) could have filed charges with the EEOC long before the class period asserted here.
'Plaintiff suggests that Ledbetter does not apply here because, unlike Bazemore, Ledbetter was not a pattern or practice case. Ledbetter, however, rejected the paycheck accrual rule in the context of all disparate Itrealment cases,
holding that allowing a plaintiff to recover for an earlier discriminatory pay decision would "effectively eliminate the
defining element off[[oa] disparate Itre.lment claim"-intent-which is key to pattermn and practice cases as well. Ledbetter, 127 S.Ct.at2170.
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Case 1:04-cv-05764 Document 260 Filed 01/15/2009 Page 21 of 42
This distinction is an important one. While the plaintiffs in Bazemore could not have filed a suit based on events that predated the statute of limitations period (because that would have predated the applicability of Title VII), that is not true here. Plaintiff in this case (and the putative
class members) labored under no similar disability. Plaintiffcould have filed - and, indeed, did file
- an earlier EEOC charge. But plaintiff failed to file an EEOC charge that would extend the class period back to 1999, the period included in Dr. Madden's analysis. The statue of limitations for filing EEOC charges - and then filing suits based on these charges --iis part and parcel of"Title VII's integrated multistep enforcement procedure." Ledbetter, 127 S. Ct. at 2170. As in other types of cases, a defendant in a Title VII case is entitled to rely on the statute oflimitations and to treat claims beyond the statute of limitations period as beyond the reach of a lawsuit. 1o
Second, when Dr. Madden analyzed incremental salary differentials in her rebuttal report (which she referred to as "percentage change" in salary by year),. that analysis yielded much smaller differentials - measured in standard deviations - than those presented in her initial report analyzing the total difference in earnings by year (Madden Rebuttal at 34-37, Tables 3R through 6R)..111I The following table demonstrates the different results Dr. Madden found when she used incremental salary difference rather than total salary difference (when earnings are defined as W-2 earnings
"I'That would not be the case if Allstate actively concealed the alleged discriminatory actions. But we see no evidence of that here.: To the contrary, plaintiff has offered declarations of 49 persons who say they were aware of aUeged disparate treatment as long as 20 years ago, and plaintiffherselfaalleges that she was subjected to unlawful gender
discrimination as early as 1998 (Am. Compl. mr 18-19). No reason hbas been offered for their failure to file an earlier
EEOC chbarge. "Dr. Madden did not analyze incremental difference in salaries by grade. Thus, we do not know whether, within
a given year, there were any significant variations iin the level of standard deviations among the various grades. That is important in considering whether Dr. Madden's analysis shows commonality across aolil grades (and across putative class members).. We do note that Dr. Madden's original total difference analysis did show significant variations, within each year, in the level of standard deviations by grade (see page 23., infra).
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Case 1:04-cv-05764 Document 260 Filed 01/15/2009 Page 22 of 42

minus stock and settlement income). The negative figures indicate where women in fact received greater salary increases than men:

Control Factors
Salary Meas,ure 2001-02 2002-03 2003-04 2004-05 2005-06

Education, Age, Allslate Tenure, Salary Orade iIncr Total
2.111 9.52 3.99 10.63 2.89 10.74 1.59 10.25 -.91 4.43

Education, Age, Allstate Tenure, Salary Orade, Job Code iIncr Total
0.27 3.12 3.68 6.06 2.72 6.31 0.52 4.85 -0.56 1.64

Education, Age, Alls,tate Tenure, Salary Grade, Job Code, Location

lncr

Total

0.11

3.38

2.26

536

3 .3 0

6.53

O0.1IS5

4.99

-1.11 0.97

Education, Age, Allstate Tenure, Salary Orade, Job Code, Time in Grade

Education, Age, AUllsstate Tenure, Salary OGrade, Time in Grade

Inecr

Total

Incr

Total

0.22

2.S7

3.65

5.66

2 .64

6.00

0.45

4.50

-0.53

1.64

-2.19 4 .28 3.04 1.80 ·-1.04

9 .49 10.A42 10.63 10..O0S 4.46

(See Madden Report, Table 9; Madden Rebuttal, Table 3R.) The more that the standard deviations

depart from zero, the more likely the factor in question played a role in the employer's decisionmaking process. Adams v. Ameritech Servs., Inc., 231 F.3d 414,424 (7th Cir. 2000). In

general, "U[[tt]]wo standard deviations is normally enough to show that it is extremely unlikely .... that

[a] disparity is due to chance." lIdd.. However, the Seventh Circuit rejects a bright-line rule that would

find statistical evidence of less than two standard deviations inadmissible. See Kadas v. MCI Systemhouse Corp., 255 FF.J3dd 359,362 (7th Cir,. 2001) (holding that statistical evidence ofless than

two standard deviations may be relevant when corroborated by other evidence).
Dr. Madden's revised analysis demonstrates that when calculating the incremental salary

changes, the statistical evidence does not provide strong evidence that salary differentials arose

because ofgender across the board. In three ofthe five analyses, the standard deviation was less than
two in three of the five time periods; in no analysis did the standard deviation exceed two in more

than three of the five time periods. And, in each analysis, the differential favored women once (and

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Case 1:04-cv-05764 Document 260

Filed 01/15/2009

__ -- -_.----.--.-_-_-..---------- - - ---",
Page 23 of 42

in one analysis, twice). That is so even though Dr. Madden's analysis never controlled for all
considered variables - education, age, tenure, salary grade, job code, location, and time in grade in anyone ana1lyyssis.'2
Third, Dr. Madden's regression analysis does not demonstrate uniformity in salary differentials by grade. In her original report, Dr. Madden's results showed that differences in salary based on gender varied widely between grades. Her results are measured in standard deviations as
follows:

Grade

2001

2002

2003

2004

2005

2006

63

7.81

8.111

9.43

9.06

7.04

2.84

64

1.89

3.44

2.62

2.86

1.78

0..71

77

3.19

3.73

3)..76

4.17

3)..49

2.27

78

2 .09

2.27

2.90

2.61

2.46

0.63

80

2.04

2.34

1.70

2.15

0.96

2.27

90

0.62

0.62

1.15

1.00

1\..669

1.28

91

0

0

0

0

° 0

0

(Madden Report, Tables 1-6 ("0" indicates that the sample size was too small to determine standard

deviations).) While most of Dr. Madden's original results exceed the level of two standard

deviations (and in some instances by quite a lot), they do not show a uniform pattern or practice of

discrimination because of the wide discrepancy in standard deviations between grades. And, as we
have explained, these results use a method of analysis that does not comport with Ledbetter.

"Allstate's expert, Dr. Robert Topel, found no statistically significant difference in salary growth, promotion rates., Or performance evaluation SCOres for putative class members and comparable males (Def.'s Opp'n to Class Cert. at 14). Plaintiff filed a motion to strike the parts ofDr. Topel's original report that make legal conclusions (doc. # 222).. The Court denies the motion; but, insofar as Dr. Topell's report expresses opinions or conclusions oflaw, the Court has disregarded those portions of the report.
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Case 1:04-cv-05764 Document 260 Filed 01/15/2009 Page 24 of 42
Fourth, in both her original and revised analyses, ODr. Madden failed to consider certain important non-genderrelated variables that may have contributed to the observed salary differentials. For example, Dr. Madden's studies do not identify whether putative class members were interested in the management jobs that Dr. Madden found were underrepresented by women, an important consideration. See Bennett, 295 F.3d at 697. In addition, she did not identify whether the putative class members were qualified for the positions in which women were underrepresented, because she did not factor into her analyses the employees' performance evaluations, or the quantity and quality of their work.
Plaintiff concedes the possibility that evidence may show "that the measured gender differences can be explained in terms of legitimate measures of skills or productivity" (PI. 's Class Cert. Mem.. at 7 (citing Madden Report at 21)»). Dr. Madden reiterates in her rebuttal report that gender differences in salary are not evidence of discrimination unless productivity and other characteristics associated with productivity have been "appropriately controlled" (Madden Rebuttal at 6-·8, 13). While Dr. Madden states that she "investigated all of the data that are available on productivity," that does not include employeeeess' major job responsibilities, individual performance goals, Performance Development Summaries, Quality Leadership Management Surveys, Critical Success Factors, or any other actual measure ofthe quantity or quality ofan employee's performance (iidd.. at 8).
Although plaintiff is not required to include all measurable variables in her statistical analysis, Dr. Madddeenn's analysis is only minimally probative ofcommonalitywithout these important variables. See Sears, 839 F.2d at 334 (upholding district court's finding that the plaintiffs statistics were flawed because they were based on the false assumption that all plaintiffs were equally
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Case 1:04-cv-05764 Document 260 Filed 01/15/2009 Page 25 of 42
qualified and equally interested in the promotions at issue); see also Radue, 219 F.3d at 616·17 ("Statistical evidence which fails to properly take into account nondiscriminatory explanations does not pernmnit an inference ofdisccrriimmiinnaatitoionn,,").)1. 133 For this reason, together with the ones we have already discussed, Dr. Madden's reports do not show commonality in plaintiff's putative class.
c. In addition to Dr. Madden's statistical analysis, plaintiff has submitted 49 declarations by current and fornmner Allstate female management employees purporting to show that discrimination occurred unifornmnly across Allstate Protection (pP1l.'s Class Cert. Mem. at 2).14 Allstate filed ammootion to strike the declarations on the grounds that some declarants are not potential class members, and other declarations are conclusory, speculative, or vague; contain hearsay, improper opinion, or irrelevant infornmnation; or were made without personal knowledge (doc. #168: Mot. to Strike Deels.). In addition, Allstate filed 36 declarations from 35 different employees purporting to rebut plaintiff's declarations (doc. # 188).. We agree that many of plaintiff's declarants shed little light on commonality during the proposed class period, because they speak to pre-class period events. Contrary to plainnttiiffff's arguments, the class period begins not on May 9, 2001, but on July 13,2002, which is 300 days
before she and Allstate signed a "Standstill Agreement" (Def.'s Opp'n to Class eert. at 5 n.4). See
"In her rebuttal repoo1rt, for the firnst time, Dr.. Madden notes in passing that she considered "base eomings level and perfonnance evaluations" to dectennine the annual percentage, or incremoental, increases in earnings (Madden Rebuttal at 19). However, she gives no further details about which or how many perfornmnance evaluations she considered. Thus, this uncelaborated staltement does not enhance the strength of her analysis on the issue of commonality.
"Although plaintiff submitted SO declarations, one declarant does not allleel~te sjleennder discrimination at Allstate. Her declaration merelyproYides the organizational structure ofAllstate's property/compliance division (PI..·'s DPeecl. 37). This declarant also has filed an affidavit in support of Allstate's position, stating that Allstate has not discriminated against her on the basis of gender (Def.'s Decl. of DDooInlDnall Rosemeyer).
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Case 1:04-cv-05764 Document 260 Filed 01/15/2009 Page 26 of 42
Chaudhry v.. Nucor Steel-Indiana, 546 F.3d 832, 836-37 (7th Cir. 2008) (before challenging an unlawful employment practice under Title VII, an employee must first file an EEOC charge within 300 days after the alleged unlawful employment practice occurred or else the employee may not challenge the practice in court). Although plaintiff alleges a "pattern or practice" case, plaintiff offers no facts demonstrating a "continuing violation" which would extend the class period back beyond the 300-day period (doc. # 235: Resp. to Mot. to Strike Decls. at 8-9). The doctrine of continuing violation allows a plaintiffto delay suing until a series of acts by a prospective defendant
turns into a wrongful injury, such as in a sexual harassment case. Lewis, 528 F.3d at 492-93. The
acts plaintiffcomplains ofhere, however, such as discrimination in compensation, promotions, and training, would be actionable in and of themselves as of the time they occurred. See Maclin v. SSBBCe Ameritech, 520 F.3d 781,787-88 (7th Cir. 2008). Moreover, pay discrimination in employment is no harder to detect than other forms of employment discrimination and does not warrant giving a
plaintiff additional time to file a charge with the EEOC. Ledbetter, 127 S. Ct. at 2177.15 Moreover, even using plaintiff's proposed date of May 9, 2001, for the start of the class
period, nine declarants stopped working at Allstate before the class period began (Pl.'s Deels.. 1.,2, 3,4, 6, 111,,19,,30,4466), and five decJarants stopped working at Al1lsstate in 2001 (pPIl..'s Decls. 13,22,
24, 34, 50). In addition, five declarants were not employed in either Al1lsstate P&C or Allstate
Protection during the class period, and thus are not potential class members (pPI.'s Deels. 26, 31, 36,
42,43). Although the observations ofemployees outside the class period may be relevant to provide
background information about Allstate's employment policies and practices, see Nat'l R.R.
"Indeed, as we noted earlier (su<e. note 9, supra), the fact that plaintiffoffers 49 declarations describing alleged discrimination occurring as far back as the 19800s, runs contrary to the notion that plaintiff and her putative class could not have detected earlier the discrimination they now allege.
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Case 1:04-cv-05764 Document 260 Filed 01/15/2009 Page 27 of 42
Passenger Corp. vv.. Morgan, 536 U.S.. 101, 113 (2002), these non-class member declarations do not support plaintiffrs argument for commonality among class members.
Other declarations are of little probative value on the issue of commonality because the
declarants offers either no approximate date as to alleged discriminatory occurrences or no allegations at all of specific instances or observations of discrimination (Pl.'s Decls. 14, 17, 18, 20,
21,23,25,27,32,38,39,40,4411,,4488,,449). While some of these declarants allege generally that Allstate has a "male-dominated" or "boys' club" culture, these allegations, unaccompanied by atime frame or specific discriminatory act, are too vague to be helpful.. See Mattenson v. Baxter Healthcare Corp., 438 FF.J3d 763, 770 (7th Cir. 2006). Likewise, conclusory legal statements, such
as that something happened to them "because of' their gender, are not probative of commonality without first-hand factual support.
The remaining 15 declarations may be probative of individual instances of alleged
discrimination, but they do not show commonality among the class (Pl.'s Decls. 5, 7, 8g, 9, 10, 12,
15, 16, 28, 29, 33, 35, 44, 45, 47). In ffa~ctt,, these declarations highlight the differences and uniqueness in the individual plaintiffs' claims. Seven of these declarants worked at some point during their career in Allstate' s home office in Northbrook, Illinois, but it is unclear whether their time at the home office or their supervisors overlapped. The remaining declarants worked at different Allstate offices in Ohio, New Mexico, Texas, California, Colorado, Mississippi, Florida, Michigan, and Texas. These individuals worked in different departments within Allstate Protection, had different supervisors, and allegedly experienced different forms of discrimination.
. Finally, the declarations submitted by Allstate further undermine plaintiff's commonality argument. Those 35 putative class members describe promotions, advancement, and pay increases
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Case 1:04-cv-05764 Document 260 Filed 01/15/2009 Page 28 of 42
they received in accordance with their personal choices and qualifications, leading them to believe that they were not discriminated against on the basis of gender. During the class period, nine of Allstate's declarants worked in the home office, and the rest worked in Allstate offices in New York, Ohio, California, Nevada, Michigan, Washington, Texas, Florida, Colorado, Indiana, Alabama, Tennessee, Pennsylvania, and Virginia. Collectively, the parties' 85 declarations represent about five percent of the putative class. The Court can only presume that the remaining possible 1,615 class members would have their own unique stories as well. Taken together, these declarations underscore the lack of commonality in plaintiffs proposed class.
d. The fourth piece of evidence of commonality that plaintiff submitted was an expert report by Dr. Barbara Reskin, an organizational sociologist with expertise in gender discrimination and employment organizational structures. In preparing her report, Dr. Reskin relied on documents provided by plaintiff, including plaintiffs 50 declarations, Dr. Madden's initial report, Allstate's Human Resources Policy Guide, and the depositions of various witnesses (pl.'s Class Cert. Mem., Ex. 10, Reskin Report at 2). Based on this evidence, together with her knowledge and research in her field, Dr. Reskin opined that Allstate Protection has a "uniform culture ofpaternalism across the company," and that "Allstate's paternalistic culture and the discretion it requires and permits decision makers have contributed to the systematic disadvantage offemale managers at [Allstate Protection], including their lower compensation, bonuses, and stock options and their under-
representation in top-level managerial jobs" (Reskin Report m~r 2.1, 2.5). In addition, Dr. Reskin
concluded that Allstate's employment practices fail to check the biases that discretion permits (id.
~ 2.4).
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Case 1:04-cv-05764 Document 260 Filed 01/15/2009 Page 29 of 42
Allstate has filed a motion to strike Dr. Reskin's report under Daubert (doc. # 207). We need not decide that question because, even assuming that Dr. Reskin's report passes muster under Daubert, we do not find it persuasive on the issue of commonality. Most of Dr. Reskin's opinion
relies on laboratory studies, "experimental research," and various historical trends and ideas which lead her to the conclusion that subjective decisionmaking is inherently flawed: a conclusion that
flies in the face of the goveming case law. See EBlise, 409 F.3d at 868 (holding that subjective
decisionmaking plays an important and legitimate role in employment decisions). Based on this improper assumption, Dr. Reskin concludes that Allstatee''s employment policies "invite[] distorted appraisals both through automatic biases such as ingroup favoritism and sex stereotyping and through open favoritism" (Reskin Report ~ 7.1). Beyond the admitted existence of discretion in Allstate's decisionmaking structure, Dr. Reskin's analysis does not show that senior managers applied their discretion in a uniform way that caused, or was intended to cause, gender disparities in the management ranks of Allstate Protection. 16
For all these reasons, plaintiff has not met her burden of showing commonality.
c.
Plaintiff also has not met her burden of demonstrating typicality. Rule 23(a)(3) requires
plaintiff to prove that ''the claims or defenses of the representative parties are typical of the claims or defenses of the class." Fed. R. Ceiiv. P.. 23(a)(3). Whether plaintiffs claims are typical of those of the class members she seeks to represent "is closely related to" the commonality inquiry. Keele,
1"6TThhe NNinth CirIc;uuiitt's decision in Dukes, 509 F.3d at 1183, is distinguishable. In that case, the appellate court upheld the district court's grant of theo motion for class certification because the appellate court found that in that case, unlike in the instant casec, the plaintiffs had produced considerable, reliable statistical evidence of differential pay and promotions for female employees, as well as substantial evidence of W.all--MMaarrt's centralized company culture and policies, thus showing commonality.
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149 F.3d at 595. "A claim is typical ifit arises from the same event or practice or course ofconduct that gives rise to the claims of other class members and her claims are based on the same legal theory." Arreola, 546 F.3d at 798 (internal citations and quotations omitted). Some factual variations may not defeat typicality, but the named representative's claims must have "the same essential characteristics" as the claims of the class. Id
Ms. Puffer alleges that the following demonstrates that Allstate discriminated against her because she is a woman: Allstate asked her to take over as head ofPolicy Management but did not give her a Vice President title as it had given men in that position; Allstate denied her request to be transferred to a regional field manager position; Allstate refused to consider her for a products manager position; Allstate never promoted her to a vice president position; and Allstate denied her request to transfer to the IT department in 2003 (Pl.'s Class Cert. Mem. at 20). These claims, however, are not typical of the claims of other putative class members, especially the vast majority who never held an officer position and thus were not subject to the same considerations and decisionmakers as Ms. Puffer. The variations among the putative class members that we have described above would necessitate individual inquiries for each putative class member in order to determine whether she suffered gender discrimination.
In addition, if certain class members are able to establish a prima facie case of gender discrimination, Allstate's defenses would vary between class members. For example, if Allstate sought to present evidence that a class member's job performance was the legitimate, nondiscriminatory reason for her salary or job position, such evidence would differ for each individual class member. Al\state also may be able to raise a statute of limitations defense against some class members but not others, because as explained above, some proposed class members may have been
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Case 1:04-cv-05764 Document 260 Filed 01/15/2009 Page 31 of 42
aware ofthe existence ofpossible gender discrimination more than 300 days before Ms. Puffer filed her EEOC charge. See note 9, supra; see also Beamon v. Marshall & flsley Trust Co., 411 F.3d 854, 860-61 (7th Cir. 2005) (holding that statute oflimitations barred Title VII claim where the plaintiff would have been aware of discrimination more than 300 days before EEOC charge filed). Where, as here, a court would have to examine numerous individualized factors to determine the parameters of individual claims, the typicality requirement is not met. Payton v. County a/Carroll, 473 F.3d 845,854 (7th Cir. 2007); see also Rahman v. Chertoff, 530 F.3d 622,627 (7th Cir. 2008) (reversing grant of class certification where proposed class was so broad that claims did not satisfy the typicality requirement).
D.
To satisfy Rule 23(a)(4), Ms. Puffer must show that she ''will fairly and adequately protect the interests of the class." Fed. R. Civ. P. 23(a)(4). "To determine if the plaintiff has met the adequacy requirement of Rule 23(a)(4), the Court must ask whether the named plaintiff: (1) has antagonistic or conflicting claims with other members ofthe class; (2) has a sufficient interest in the outcome of the case to ensure vigorous advocacy; and (3) has counsel that is competent, qualified, experienced and able to vigorously conduct the litigation." Quiroz v. Revenue Prod. Mgmt., Inc., 252 F.R.D. 438, 442 (N.D. Ill. 2008) (internal quotations omitted); see also Rosario v. Livaditls, 963 F.2d 1013, 1018 (7thCir. 1992).
There is no dispute that plaintiffs counsel is qualified, having represented plaintiffs in numerous Title VII cases, and there is no dispute that Ms. Puffer has diligently pursued this action. Allstate argues, however, that Ms. Puffer is not an adequate class representative because she worked in a different division and was at a higher salary grade than most of the putative class members. In
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Case 1:04-cv-05764 Document 260 Filed 01/15/2009 Page 32 of 42
addition, Allstate contends that the putative class contains numerous individuals who reported to, and were evaluated by, other putative class members, leading to antagonistic or conflicting claims (Def.'s Opp'n to Class Cert. at 17).17 Some courts have held that a conflict of interest may arise where a class contains both supervisory and non-supervisory employees, and the supervisors implemented the employment system which the class litigation challenged. See, e.g., Hines v. Widnall, 334 F.3d 1253, 1258 (11th Cir. 2003) (upholding district court's fmding that the interests of the African-American supervisors and the non-supervisory plaintiffs were not co-·extensive); Wagner v. Taylor, 836 F.2d 578, 595 (D.C. Cir. 1987) (upholding district court's determination that plaintiff supervisor was not adequate class representative because his interests clashed with those of other members of the class).
By contrast, Ms. Puffer contends that although she participated in some succession planning meetings and supervised some ofthe putative class members, she did not possess decision-.making authority as to employee job moves, succession planning, compensation, or promotions, and thus she did not actually implement any of Allstate's allegedly discriminatory employment policies (PI.'s Class Cert. Mem. at 20-·21; PI.'s Class Cert. Reply at 17-18). Rather, Ms. Puffer claims that she witnessed the subjective nature ofAllstate's employment processes and the resulting disadvantages to women in salary, promotion, and career advancement opportunities (id.). See Wagner v.
Nutrasweel/ Co., 170 F.R.D. 448, 451-52 (N.D. Ill. 1997) (holding that supervisor was adequate
representative because her interests were not antagonistic to those of other class members where her
11Allstate also argues that Ms. Puffer's individual claim of retaliation makes her inadequate to represent the class. This argument is a nonstarter. "Ifa retaliation claim were a bar to certification, any defendant could insulate itself from class certification by retaliating against anyone who brought or threatened a lawsuit." Meireso,,,,e v. Marriott Corp., 124 F.R.D. 619, 624 (N.D. Jl1. 1989).
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Case 1:04-cv-05764 Document 260 Filed 01/15/2009 Page 33 of 42
involvement in implementing allegedly discriminatory salary system was minimal and she had no salary-setting authority with regard to any class members). Thus, we agree that Ms. Puffer's claims and interests do not conflict with those ofthe other putative class members.
In addition, although Ms. Puffer worked in a different division and was at a higher salary grade than most of the putative class members, we do not see that this places her at odds with putative class members at lower salary grades. We conclude that Ms. Puffer has a sufficient interest in and incentive to press the claims for monetary relief she brings on behalfof the class, and would be an adequate class representative had she satisfied all other requirements for class certification.
III. Not only does plaintiffs proposed class fail to satisfY RuIe 23(a)'s requirements, her proposed class would fail under Rule 23(b) as well. Plaintiff seeks to have her class certified as a hybrid Rule 23(b)(2) and 23(b)(3) class. Under Rule 23(b)(2), plaintiff seeks an "appropriate injunction compelling defendant Allstate to cease and desist from the wrongfuI practices here alleged and hereafter established" (Am. Compl. at 13). Under Rule 23(b)(3), plaintiffseeks compensatory, punitive, and liquidated damages for the individual class members (id. at 13-14). Although the Seventh Circuit has left open the possibility of a "hybrid certification" under Rules 23(b)(2) and 23(b)(3), see Arreola, 546 F.3d at 797, such hybrid certification is discouraged where class relief falls much more heavily into one category. Here, we fmd that plaintiff has failed to show certification is proper under either 23(b)(2) or (b)(3).
A. A Rule 23(b)(2) class may be maintained when "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or
33

Case 1:04-cv-05764 Document 260 Filed 01/15/2009 Page 34 of 42
corresponding declaratory relief is appropriate respecting the class as a whole." Fed. R. Civ. P. 23(b)(2). Rule 23(b)(2) certification is generally limited to class actions "[w]hen the main relief
sought is injunctive or declaratory, and the damages are only 'incidental.'" In re Allstate Ins. Co.,
400 F.3d 505, 507 (7th Cir. 2005). Rule 23(b)(2) certification "does not extend to cases in which
the appropriate final relief relates exclusively or predominantly to money damages." Fed. R. Civ.
P. 23 Advisory Committee's note. In this gender discrimination case, final relief appears to relate predominantly to money
damages, and, indeed, a substantial amount ofcourt time would have to be devoted to litigating each individual class member's liability and damages claims. For these reasons, Rule 23(b)(2) certification would be inappropriate even had plaintiff met all the requirements of Rule 23(a).
B.
To meet the prerequisites for class certification under Rule 23(b)(3), a plaintiff must demonstrate "that the questions oflaw or fact common to the members ofthe class predominate over any questions affecting only individual members, and that a class action is superior to other available
methods for the fair and efficient adjudication of the controversy." Szabo, 249 F.3d at 676 (citing Fed. R. Civ. P. 23(b)(3». When making the determination ofpredominance and superiority, a court
must consider, among other things: "(A) the class members' interests in individually controlling the prosecution or defense ofseparate actions; (B) the extent and nature ofany litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action." Fed. R. Civ. P. 23(b)(3). In this case, plaintifffails both the predominance and superiority requirements.
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1. "The Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently
cohesive to warrant adjudication by representation." Amchem Prods., Inc. v. Windsor, 521 U.S. 591,
623 (1997). This inquiry "trains on the legal or factual questions that qualify each class member's
case as a genuine controversy ..." [Id. The predominance requirement is similar to the typicality
ofclaims and defenses requirement of Rule 23(a)(3), but is "far more demanding" than Rule 23(a)'s
commonality requirement. Id at 623-24. Here, the Court has already determined that plaintiffs proposed class fails the commonality
and typicality requirements. Plaintiff admits that the amount of damages will vary significantly among putative class members, as evidenced by her suggestion that the Court bifurcate the liability from the damages stage (pl.'s Class Cert. Mem. at 26). Individual issues, however, would predominate even before the damages stage. Because plaintiff will not be able to prove class-wide, company-wide discrimination with statistical evidence alone, a jury would need to consider each putative class member's claim individually to determine liability. To prove that an individual plaintiff suffered gender discrimination under disparate impact or disparate treatment theories of
Title VII or the Equal Pay Act, an individualized inquiry into each putative plaintiff's circumstances
would be necessary to determine whether employment actions taken toward a particular employee
were based on gender or instead on legitimate, nondiscriminatory reasons. See Warren v. Solo Cup Co., 516 F.3d 627, 629-30 (7th Cir. 2008) (holding that if a plaintiffestablishes aprimajacle case
of wage discrimination under the Equal Pay Act, the employer may raise one of four statutory defenses, attributing the difference in pay to: "(i) a seniority system; (ii) a merit system; (iii) a system which measures earmnings by quantity oOrf quality of production; or (iv) a differential based on any
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Case 1:04-cv-05764 Document 260 Filed 01/15/2009 Page 36 of 42
other factor other than sex"); Atanus 11. Perry, 520 FJd 662, 672·73 (7th Cir. 2008) (holding that in Title VII disparate treatment case, in order for a plaintiffto establish aprimafacie case, the plaintiff must proffer evidence, among other things, that she performed her job according to her employer's legitimate expectations; if the plaintiff establishes the prima facie case, the presumption shifts the burden to the employer to produce a legitimate, nondiscriminatory reason for its actions); Farrell 11. Butler Unill., 421 F.3d 609, 616 (7th Cir. 2005) (holding that in Title VII disparate impact case, an employer may rebut prima facie case of disparate impact by demonstrating that the employment policy at issue is related to the employees' job performance and justified by business necessity).
Such an inquiry would involve different witnesses and proofs for various putative class members to determine, among other things, the motivation of each individual supervisor and the quality and quantity of production of each employee. "If the class certification only serves to give rise to hundreds or thousands of individual proceedings requiring individually tailored remedies, it is hard to see how common issues predominate ..." Andrews 11. Chevy Chase Bank, 545 F.3d 570, 577 (7th Cir. 2008). We agree, and conclude that common issues do not predominate here.
2.
Likewise, "it is hard to see ... how a class action would be the superior means to adjudicate the claims." !d. Plaintiff dismisses this point by saying that "there is nothing terribly intimidating about this prospect" of over a thousand individual proceedings, as "[iJt is not unprecedented to manage such volume" (PIl..'s Class Cert. Reply at 24). Whether or not it is "unprecedented," the prospect ofsome 1,700 individual proceedings, especially where Title VII gives each individual the right to a jury trial, gives us pause about the superiority of the class action vehicle here for several reasons.
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First, obvious difficulties in managing plaintiffs proposed nationwide class abound. Plaintiff argues that individual trials would be manageable if the Court utilized "imaginative solutions" (Pl.'s Class Cert. Mem. at 29-30). The Seventh Circuit has held that:
In a case where the defendants' liability is a singular, uniform question, Rule 23 allows district courts to devise imaginative solutions to problems created by the presence in a class action litigation ofindividual damages issues including: bifurcating liability and damage trials; appointing a magistrate judge or special master to preside over individual damages proceedings; decertifYing the class after the liability trial and providing notice to class members concerning how they may proceed to prove damages; or creating subclasses; among other things. Carnegie v. Household 1m 'I, Inc., 376 F.3d 656, 661 (7th Cir. 2004). Plaintiff suggests bifurcating this case such that the first jury determines the issue ofwhether Allstate's employment policies and practices are discriminatory, and mUltiple follow-onjuries determine whether Allstate's employment policies and practices discriminated against individual female managerial employees. However, a class proceeding that would decide one issue, but would not eliminate the need for 1,700 jury trials to determine whether each putative class member suffered discrimination and, ifso, their individual damages, offers little in the way of efficiency. See Clark v. Experian Info. Solutions, Inc., No. 063330,2007 WL 4219471, at *3 (7th Cir. Nov. 30,2007) (affirming district court decision not to partially certtiiffYy class because with the need for individualized findings in such a large class, little efficiency would be gained by certiffYying a class for only particular issues). Second, plaintiff s proposal raises constitutional concerns. "The right to ajury trial in federal civil cases, conferred by the Seventh Amendment, is a right to have juriable issues determined by the first jury impaneled to hear them ... and not reexamined by another ffider of fact." Matter of Rhone-Poulenc Rorer, Inc., 51 F.3d 1293, 1303 (7th Cir. 1995). In Rhone-Poulenc, the Seventh
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Case 1:04-cv-05764 Document 260 Filed 01/15/2009 Page 38 of 42
Circuit held that the district judge exceeded his authority by proposing to divide the trial between the issues he had certified for class treatment and the thousands of other individual issues, because the court may not divide issues between separate trials in such a way that the same issue is reexamined by different juries. Id. at 1302-03. In Rhone-Poulenc, the first jury would not have been able to completely determine liability, but merely whether one or more of the defendants was negligent, whilejuries in individual follow-on trials would have to decide such issues as comparative negligence and proximate cause, necessitating a reexamination ofthe same issues determined by the first jury. Id. Similarly, in this case - in light of all of the individualized inquiries that would be needed before liability was determined as to each plaintiff - any fmding by an initial jury that Allstate's policies and practices generally were discriminatory (assuming such a finding were made) would likely be unconstitutionally reexamined by follow-on juries in determining whether any particular plaintiff suffered discrimination.ls
Although plaintiff points to Romasanta v. United Air Lines, Inc., 717 F.2d 1140 (7th Cir. 1983), as a successful example of conducting a large number of individual hearings in the context ofa class action, Romasanta is distinguishable. In Romasanta, the plaintiffclass challenged United Air Lines's rule prohibiting the continued employment of any female flight attendant who got married. Idd. at 1146-·47. This was a facially discriminatory policy; there was no room for individual discretion. As a result, in the hundreds of individual hearings that were held in that case to identity class members, the court did not have to examine the motivation of each individual supervisor in
"We are mindful that Federal Rule of Civil Procedure 23(c)(4) recognizes the possibility that "[wlhen
appropriate, an action may be brought or maintained as a class action with respect to particular issues." Such partial certification of class issues, however, is not appropriate where it would not offer significant efficiencies, and instead
would create constitutional concerns.
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tenninating the employee, but only the motivation of each individual class member in leaving her job (i.e., did she leave her flight attendant position due to the "no-marriage" rule or for some other reason). By contrast, in the instant case, a jury would have to look into each supervisor's motivations in making employment decisions for each individual class member before making a
liability detennination. Moreover, the individual hearings in Romasanta were conducted before a
judge, not a jury, while in this case each class member - and Allstate - would have a right to request a jury trial on each putative class member's liability claim.
Third, class certification is not needed here to afford putative class members an opportunity
to litigate claims of discrimination. An important policy behind certifYing a class action is ''to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights. A class action solves this problem by aggregating the relatively paltry potential recoveries into something worth someone's (usually an attorney's) labor."
Amchem Prods., 521 U.s. at 617 (internal quotations and citations omitted); see also Thorogood,
547 F.3d at 744 ("The class action is an ingenious device for economizing on the expense of litigation and enabling small claims to be litigated").
When a class member has a sufficiently large stake in litigation to be able to afford to litigate on his own, this consideration weighs against allowing a suit to proceed as a class action. Nagel v. ADM Investor Servs., Inc., 217 F.3d 436, 443 (7th Cir. 2000); see also Glazer v. Abercrombie & Kent, Inc., No. 07 C 2284,2008 WL 4853641, at *4 (N.D. Ill. Nov. 10,2008) (denying motion for class certification because large individual damage claims increase plaintiff's interest in individually controlling the prosecution and defense of separate actions). Indeed, the Seventh Circuit has held that damages as low as $50,000 provide adequate incentive to litigate a claim individually. See, e.g.,
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Andrews, 545 F.3d at 577-78 (holding that class action was not superior to individual TILA rescission action because under Truth In Lending Act, a prevailing debtor with a typical loan can expect to receive over $50,000 plus attomey' s fees and costs in a rescission action, and many debtors do in fact bring rescission claims).
Plaintiff argues that individual proceedings are impracticable because of the "prohibitive costs widely out-of-scale to the possible individual stakes" (pI.' s Class Cert. Mem. at 29). The Court disagrees. Countless gender discrimination claims are brought individually. And here, the putative class members would have sufficient financial incentive to pursue claims individually. The proposed class consists ofmanagerial level employees. The average base salaries for Allstate P&C managers from 2001 to 2006 ranged from $82,389 in Grade 63 to $391,833 in Grade 91, and the average W2 wages ranged from $95,399 to $807,450 (doc. # 223: Ex. I, Dr. Topel's Report, Ex. FI). Claims of economic loss for employees in these salary brackets could be substantial, giving many putative class members an interest in individually controlling the prosecution of their lawsuits.
Fourth, plaintiff posits that "cases such as this one" do settile, which would obviate [these] problem[s] altogether" (PI. 's Class Cert. Reply at 22 n.29). The parties, however, have already spent nine months with a mediator trying unsuccessfully to settle this case. At this point, converting this case into a class action could place undue pressure on Allstate to settle regardless ofthe actual merit of the suit. Isaacs v. Sprint Corp., 261 F.3d 679, 681 (7th CCiiTr. 2001); see also Szabo, 249 F.3d at 675; Rhone-Poulenc, 51 F.3d at 1298. The Court declines to certify a class that fails the superiority test and other requirements ofRule 23(a) and (b), in the hope that a settlement will allow us to avoid the serious problems we otherwise would confront.
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CONCLUSION In determining whether a class action is manageable, '~udges must resist" any temptations "to alter doctrine in order to facilitate class treatment" because the Court must ensure that "all
parties' legal rights may be respected." In re BridgestoneiFirestone, Inc., 288 F.3d 1012, 1020 (7th Cir. 2002) (reversing district court order certifying two nationwide classes). In this case, plaintiffs proposed class does not meet several of the requirements of Rule 23: commonality, typicality, predominance, and superiority. While a subjective company policy may, in some circumstances, provide the basis for a Title VII or Equal Pay Act class action suit, we conclude that this is not such a case. Accordingly, plaintiffs motion for class certification (doc. #125) is denied.19
This opinion does not prevent individuals who are not otherwise barred by the statute of limitations from filing an individual discrimination suit against Allstate. The filing ofa class action lawsuit tolls the statute of limitations for all the proposed members of the class, and the statute resumes running for class members when class certification is denied. Culver v. City ofMilwaukee, 277 F.3d 908, 914 (7th Cir. 2002). By January 30, 2009, the parties may submit their views, in memoranda not to exceed five pages, as to what notice - if any - should be given to the putative class members of the denial ofclass certification. See id at 913-915 (citing Fed. R. Civ. P. 23(e)).
l'In light of our ruling on class certification, we deny as moot Allstate's motions to strike the Madden and Reskin reports (docs. ## 164, 166), Allstate's motion to strike the declarations ofcurrent and fonner Allstate employees
(doc. #168), and plaintiff's motion to strike, in part, Dr. Topel's expert report (doc. # 222).
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We express no view on the merits ofthe individual claims brought bbyyMs. Puffer, or ofany putative
class member who may wish to fmilee suitt..
ENNTTEER:

Dated: January 15,2009

J{·L
United States Milgistrate Judge

."".... .,,'~

42
..". >:

 
 CaCsaes: e091-:80040-c5v-05D76o4cumDenotc:u0m07e1n1t 124704773FileFdil0e3d/:2053/2/2050/92009PageP1agoef s1: 1

ȱȱȱ UNITEDȱSTATESȱCOURTȱOFȱAPPEALSȱFORȱTHEȱSEVENTHȱCIRCUIT

EverettȱMcKinleyȱDirksenȱUnitedȱStatesȱCourthouse ȱRoomȱ2722ȱȬȱ219ȱS.ȱDearbornȱStreet ȱChicago,ȱIllinoisȱ60604

OfficeȱofȱtheȱClerk Phone:ȱ(312)ȱ435Ȭ5850 www.ca7.uscourts.gov

SubmittedȱFebruaryȱ3,ȱ2009 DecidedȱMarchȱ25,ȱ2009

ORDER BEFORE

RICHARDȱA.ȱPOSNER,ȱCircuitȱJudge DANIELȱA.ȱMANION,ȱCircuitȱJudge MICHAELȱS.ȱKANNE,ȱCircuitȱJudge

No.:ȱ09Ȭ8005ȱ ȱ

INȱRE: ȱKATHERINEȱPUFFER,ȱonȱbehalfȱofȱherselfȱandȱallȱothersȱsimilarly situated,ȱ Petitioner

OriginatingȱCaseȱInformation:ȱ

DistrictȱCourtȱNo:ȱ1:04ȬcvȬ05764 NorthernȱDistrictȱofȱIllinois,ȱEasternȱDivision MagistrateȱJudgeȱSidneyȱSchenkierȱ

Theȱfollowingȱareȱbeforeȱtheȱcourt:
1. PETITIONȱFORȱRULEȱ23(F)ȱAPPEAL,ȱfiledȱonȱFebruaryȱ3,ȱ2009,ȱbyȱcounselȱforȱthe Petitioner.
2. DEFENDANT’SȱRESPONSEȱINȱOPPOSITIONȱTOȱPLAINTIFF’SȱPETITIONȱFOR RULEȱ23(F)ȱAPPEAL,ȱfiledȱonȱFebruaryȱ20,ȱ2009,ȱbyȱcounselȱforȱtheȱRespondent.
ITȱISȱORDEREDȱthatȱ#1ȱisȱDENIED.

formȱname:ȱc7_Order_3Jȱ(formȱID:ȱ177)
ȱ

 
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Case 1:04-cv-05764 Document 272 Filed 03/12/2009 Page 1 of 20

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
EASTERN DIrVvIISSION

KATHERINE PUFFER, on bebhalf of )

herself and all others similarly situated, )

)

Plaintiffs,

)

)

~

)

)

ALLSTATE INSURANCE COMPANY, )

)

Defenodanot.

)

Case No. 04 C 5764 Magistrate Judge Sidney I. Schenkier

MEMORANDUM OPINION AND ORDER

Katherine Puffer filed this suit on behalfof herself and a putative class alleging that Allstate

Insurance Company carrnied out a nationwide pattern or practice of sex discrimination in violation

of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Equal Pay Act, 29

U.S.C. §§ 206 and 207 (doc. #13: Am. Compl. at 111--1122, ,',44)). Plaintiff moved to certify a class of

"[[aa]J1II femaa1le managers holding the position of Division or Department manager and above who

worked or continue to work at Allstate Protection at any time between May 9, 2001, and the present

and who have been and continue to be injured by the alleged discriminatory employment policies

and practices" (doc. # 126: Pl.'s Class Cert. Mem. at 21). On January 155,,2009, this Court issued

an opinion denying plaintiifffr's motion for class certification on the grounds that plaintiff's proposed

class did not meet several of the requirements for class certification under Federal Rule of Civil

Procedure 23: commonality, typicality,. predominance, and superiority. Puffer v. Allstate Ins.. Co.,
No. 04-·5764, 2009 WL 136097 (N.D. [rInI.. Jan. 15,2009). The order denying class certification was

entered on January 20, 2009 (doc. # 259).

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Case 1:04-cv-05764 Document 272 Filed 03/12/2009 Page 2 of 20

Although the filing of this case tolled the statute offiliimmiittaattions for all putative members of
the proposed class, the statute resumed running for those putative class members once this Court entered the order denying class certification on January 20, 2009. Culver v. City oolfMMiillwwaukee, 277
F.3d 908, 914 (7th Cir. 2002). As a result, on January 21,2009, plaintiff filed an emergency motion to stay the order denying class certification pending the Court's decision on notice to the putative class (doc. # 261). In her motion, plaintiff asked this Court: (1) to issue notice to putative class
members of our ruling denying class certification; and (2) to toll the statute of limitations for each putative class member nunc pro tunc from January 20, 2009, for an indefinite "reasonable" period ofttiime to allow class members time to evaluate and pursue their claims against Allstate (Id. at 1,,6; see also doc. # 264: Pl..' s, Initial Mem. at 1I).
At thee hearing on plaintiff's emergency motion, the Court explained that it would not stay the order denying class certification because ofthe effect that could have on the deadline for seeking an interlocutory appeal pursuant to Federal Rule o[fCCiivil Procedure 23(1) (doc. # 267: 01112222/09 Tr. at 7)..I' We rephrased plainnttiiffff's motion as one that sought to stay the effect ofthe order denying class certification until the Court decided whether to issue notice (Jd. at 3, 7). In addition, we determined
that the motion did not present an emergency: if the Court ultimately decides to stay the effect that its order has on the resumption ofthe statute offiliimmiittations, and to do so nunc pro tunc to January 20.,
2009, as plaintiff has requested,. it would not matter whether the Court did so immediately or after
receiving briefing and taking the matter under advisement (JId. at 3,8). We ordered briefing on the
following issues: (1I) whether the putative class should receive formal notice, under Rule 23, of the

1I In fact, on February 3, 2009, pJlaaiinnltiiffffiled a petition for pernmnission to appeal pursuant to Rule 23(f). That appeal is docketed as 099~·880005S.. The petition has been fully briefed and remains pending as of this date.
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Case 1:04-cv-05764 Document 272 Filed 03/12/2009 Page 3 of 20

denial of class certification and the resuwmnption of the statute of limitations; (2) whether we should stay the effect ofour January 20 order on the resumption ofthe statute oflimitations; and (3) whether we should rule that the statute of limitations should hbe equitably tolled for putative class members for some reasonable period ofttime (Ild. at 15-16). Upon reviewing the parties' submissions directed to these issues, the Court asked the parties for "their views, supported by any relevant authority, as to the Court's subject matter andlor personal jurisdiction to rule on equitable tolling for persons who are not named plaintiffs in the case, but who are within the defminition of the putative class for which certification was denied" (doc.. # 266: 02/05/09 Min. Order). The Court has received and reviewed those supplemental submissions.
For the reasons that follow, we grant plainttiiffff's motion in part. We hold that under Rule 23(d), we have the discretion to order that the putative class receive notice that class certification has been denied and that this ruling triggered the resumption of the statute of limitations. We further exercise that discretion to require that notice to be sent in this case - although not in the fonn that plaintiffsuggests. However, we deny plaintiffs motion insofar as it asks us to stay the effect ofour denial of class certification on the resumption of the statute of limitations, or to make a ruling that all 1,700 putative class members are entitled to equitable tolling of the statute of limitations.
I.
We address first the question ofour authority under Rule 23 to require that the putative class members be given notice of the denial of class certification and its effect on the resuwmnption ofttbhe statute offlliimmiittaations. In Culver, the Seventh Circuit held that Rule 23(e) required notice to putative class members following decertification of a class, because decertification has the same effect on members of the class, so far as the running of the statute of limitations is concerned, as dismissal of
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the class action. 277 F.3d at 915. In so ruling, the appeals court stated that Rule 23(e) required that
notice of a dismissal be given to "aUll members of the class.," ldd.. at 913 . The Seventh Circuit
explained that the purpose of this notice is "to enable the class members to protect their interests in the face of the dismissal of the class action," and that one of their interests that warranted their protection was the possible "expiration of the statute of limitations on the class members' claims without theirrreeaalizing it." lId. at 913-14.
The Culver court then addressed whether the use of the word "class" in Rule 23(e) applied to putative classes prior to certification. The appeals court stated that while the question had not yet been "definitively settled," the "better vieeww"" is that Rule 23(e) applies to the dismissal of a class action prior to certification, reasoning that "the context in which 'class' is used in Rule 23(e) indicates that it is not limited to a certified class." 277 F.3d at 914. The Seventh Circuit further explained that "[t]he prejudice to class members from a dismissal of which they may be unaware is the same" whether that comes after a class is certified or if certification is denied. ld.
In the wake ofCulver, it would appear that Rule 23(e) would mandate the notice that plaintiff seeks here, as other courts have recognized. See, e.g., Doe v. Lexington-Fayette Urban County Gov''"/, 407 F.3d 755, 761 (6th Cir. 2005); Radmanovich v. Combined Ins.. Co. ojAm., 271 F. Supp. 2d 1075, 1077-78 (N.D. 111. 2003). However, as Allstate correctly points out, Rule 23(e) was amended in 2003, so that it now does not require notice to "members of the class" (the phrase interpreted by the Seventh Circuit in Culver), but instead only requires notice to members of a "certified class." The commentary to this amendment states that its purpose was to resolve ambiguity in the reference formerly in Rule 23(e) to "class action," by making it clear that notice would be required "only if the claims, issues, or defenses of a certified class are resolved by a
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settlement, voluntary dismissal, or compromise."" 2003 Comnumnents to Amendments to Fed. R. Civ. P. 23.
Allstate focuses on this amendment Rule 23(e), arguing that "nothing in Rule 23 requires notice to issue to former putative class members aftler a motion for class certification has been denied" (doc. # 269: Def.'s Supp. Mem. at I (emphasis addedd)»). We agree. However, Allstatee' s Rule 23(e) argument fails to annswer the question of whether discrretionary authority for the Court to order that notice be given to putative class members may be fouund elsewhere in Rule 23. As we
explain below, we hold that Rule 23(d) provides that authority.
A.
Rule 23(d)(I) states, in relevant part: In conducting an action underr this rule, the court may issue orderrs that:
.•. .•. * .•. .•.
(B) require - to protect class members and fairly conduct the action - giving appropriate notice to some or all class members of: (i) any step in the action; (ii) the proposed extent of the judgment; or (iii) the members' opportunity to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or to otherwise come into the action.. Fed. R. Civ. P. 23(dd))((1l)(B8) (emphasis added). Although the question offa. court's discretion to issue notice under Rule 23(d)(1I) has rarely been addressed, anumber ofconsiderations lead us to conclude that the rule gives us the discretion to issue notice to putative class members after the denial ofclass certification.

5

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First, we find the Culver court's discussion ofthe meaning ofthe word "class" as used in the fonner version of Rule 23(e) instructive in our interpretation of Rule 23(d). As was the case with Rule 23(e) at the time ofthe Culver ruling,. Rule 23(d) speaks in terms of"class members.," We fmind that the Culver court's explanation ofwhy that term as it was used in Rule 23(e) applies to the denial
of class certification and class decertification applies to the use of that term in Rule 23(d) as well. That is significant because notwithstanding the change to Rule 23(e)., the operative language ofRule 23(d) remained unchanged: Rule 23(d) does not use the phrase "certified class," the tenrm adopted to clarify that Rule 23(e) does not apply to denial of class certification or decertification of classes. "It is ... a cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant." Alaska Dep't ofEnvtl. Conservation v. EPA, 540 U.S. 461, 489 n.. 1\33 (2004). In light of this principle, the fact that Rule 23(d) continues to refer more broadly to "class members," despite the limitation in Rule 23(e) to "certified c1ass[esJ," suggests that no change was intended in the scope ofjudicial authority under Rule 23(d).
Second, Rule 23(dd))((1l))(B)(i) authorizes a court to require that appropriate notice be given to
class members "ofany step in the action," in order to "protect class members." Certainly, the denial of class certification is a "step in the action." And, it is a step in the action that, absent notice to putative class members., may injure their interests. While specifically addressing Rule 23(e), the Culver court's discussion concerning the potential hann to putative class members from "the expiration of the statute oflimitations on the class members' claims without their realizing it," 277 F.3d at 914, applies with full force here. Nonetheless, as in Culver, in this case there is the risk that unless putative class members are notified of the denial of class certification, they may fail to file
6

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Case 1:04-cv-05764 Document 272 Filed 03/12/2009 Page 7 of 20

their own suits and thus fail to 're-arrest' the statute of limitations, and as a result they may find themselves time barred without knowing it." Id. at 915. Rule 23(d) allows a court to give notice to help avoid that result, as part of its power to "protect class members.""
Third., the Culver coouurrt suggested that its analysis was not limited to notice under Rule 23(e).. "Even cases that refuse to apply Rule 23(e) to putative class actions require notice to the members of the putative class if it seems clear that otherwise their interests would be harmed.." Culver,, 277 F.3d at 915. For example, in Doe v. Lexington-Fayeue Urban County GOVV'I, the Sixth Circuit reasoned that even courts that have not required notice to putative class members as a genera)l rule under Rule 23(e) have examined whether any prejudjice to the class will result if notice is not provided. 407 F.3d at 761-62. Applying that standard, the Doe court held that Ithe district courteeIrTred in failing to provide notice to putative class members when the class action was dismissed, because they were likely 1to0 be prejudiced. Id. alt 764.
Similarly, the Eighlth Circuit also held thaIt even if Rule 23(e) did not require nOotlice to a class
that had not yet been certified, the district court must consider potential prejudice to absent class members before detennining whetherr or not to issue notice. Crawforddv.. F. Hoffman -·La Roche Ltdd.., 267 FF.J3dd 760, 764-65 (8th Cir. 2001). Crawford held Ithatl the district court must consider, among other things, the possibility that potential members of the class would be prejudiced if their claims would expire under a statute of limitations or if potential class members had been relying on the named plaintiff to protect their interests. 267 F.J3d at 765.. And, an earlier Fourth Circuit case held that if court approval under Rule 23(e) is not required when a class has not been certified, the court must use its discretionary powers under Rule 23 to protect the interests oftthhe putative class members from prejudice. She/lIton vv.. Pargoa, 582 F.2d 1298,. 1310, 1314 (4th Cir. 1978).
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Allstate cites to a number of other decisions to support its position that notice should not
issue to the putative class members (Deefr..·'s Supp. Mem. at 5). In particular, Allstate relies heavily
on an unpublished District of Delaware case which held that neither Rule 23(d) nor Rule 23(e) contemplated notice to putative class members after the denial of class certification. Marian Bank v. £El1eeec. Payment Servs. , !lnc., No. 95-614-SLR, 1999 WL 151872, at 'I (D. Del. Mar. 12, 1999). To the extent that Marian Bank fOouWnld that Rule 23(e) in its prior form did not require notice after
the denial of class certification, it adopted an interpretation of Rule 23(e) that the Seventh Circuit rejected in Culver. To the extent that the Marian Bank court was not moved by the concern that the
interests of putative class members could be harmed in the absence of notice after the denial ofclass certification, that decision rejected a consideration that was central to the Seventh Circuit's analysis in Culver.?2
In light of the authorities we have discussed that recognize the Court's authority to provide
notice to putative class members after the denial of class certification, in order to avoid the kind of hann to putative class members discussed in Culver., we do not find Allstate's contrary authorities persuasive. Therefore, we find that Rule 23(d)(I)(8)(i) authorizes, but does not automatically require, this Court to order that putative class members be notified of the denial ofclass certification in this case. We now turmn to the question of whether, on the facts of this case, we should exercise our authority to do so.
2 One ofthe concerns expressed in Marian Bank was in connection with the notice proposed by plaintiff. The
court stated that plaintiff sought to give notice "of the need and opporrunity for an intervenor to represent the class and thereby preserve the rights of absent class members." 1999 WL 151872, at ·1. The Marian Bank court criticized that notice on tbhe ground that it would "provid[e) putative class members with court-orderednotice ofthe opportunittyytlo sue." l[d. Any concern about whether the notice to putative class members does more than is necessary to serve the purposes ofRule 23(dd)X(1l )(S8)(i) is better addressed by appropriately limiting the contents ofthe notice, and not by dispensing with notice altogether.
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II.
Allstate argues that even ifthis Court possesses the authority to order notice to the putative class members, we should not exercise that authority in this case because pilaintiffhas not established
that "there is a group of people who in fact believed that this lawsuit operated to vindicate their rights, or that such belief was reasonably held" (Def. 's Supp. Mem. at 4). Allstate notes that this
Court has not yet issued any froarnmnal notice ofthe class action lawsuit to putative class members (PI. 's Initial Mem. at 5),. and argues that nothing contained in the various conununications from plainttiiffff's
counsel or defense counsel "gave putative class members reason to sit on their rights" (JId. at 6). And, this case has received little or no media attention, which Allstate says further shows that pendency of this suit is not widely known among putative class members (JId. at 3). From aalll of this., Allstate argues that there is no evidence that putative class members have been specifically informed that the statute of limitations on their claims was tolled while the class action litigation was pending or that the class action suit relieved them of any obligation to pursue their own claims (ld. at 5).
Allstate's arguwmnent presumes the Court may require notice only if it is convinced that putative class members in fact would be prejudiced otherwise. That presuwmnption is incorrect. In Culver, the district court had certified a class and then., before notice of the certification had issued, decertified the class. The appeals court stated that the district judge did not require notice of the decertification of the class because it "thought [the class members] probably were unaware of the suit and therefore would not be prejudiced by it demise." 277 F.3d at 914. However, the Seventh Circuit held that this approach was the wrong one for the district court to take. "'Probably' is not good enough; it implies that some class members may well have been prejudiced." lId. The appeals

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court concluded its analysis by stating that under Rule 23(e), "[t]he judge's duty is to order notice

unless the risk of prejudice to absent class members is nil ... ." Id.

Thus, Culver does not require the kind of certainty of prejudice that Allstate asks us to use

as the measuring stick for deciding whether to issue notice. We conclude that it is enough that

putative class members were aware oftrhuis lawsuit, as that awareness gives rise to the risk - greater

than nil- that some of them may lose any right to pursue individual claims without knowing it by

expiration of the statute of limitations.

In this case, there is ample evidence that many putative class members were made aware of

this lawsuit prior to our decision to deny class certification. A number of putative class members

received some aofftthhe following information about Ms. Puffer's lawsuit, setting out, at a minimum,

the potential application of the lawsuit to "all current and fonner female employees" of Allstate as

well as the topic of the lawsuit, "sex discrimination." Most of the notifications contain further

details of the alleged sex discrimination "in promotion and compensation":

•

Memoranda dated October 21, 2004, aWnId October 27, 2004, regarding "Retention of

Documents for Pending Litigation" sent to "All Allstate Managers and Supervisors" and "All

Senior Management Team Members, Officers, Human Resource Directors, Managers, and

Senior Managers, Human Resource Information System Senior Managers and Directors,"

respectively. Both memoranda contained the following relevant text: "Allstate Insurance

Company is involved in litigation in federal court in Chicago under Title VII of the Civil

Rights Act of 1964 where the plaintiff is alleging claims of sex discrimination., The lawsuit

potentially covers all current and fonner female employees of Allstate Insurance Company

("Allstate"). While Allstate strongly disagrees with the allegations and scope of the lawsuit

and intends to defend itself vigorously, until the lawsuit is resolved or its breadth is clarified,

Allstate is required by law to preserve any and all documents and electronic infonnation that

might relate to the issues in this lawsuit" (Emergency Mot., Ex. B).

•

A memoranduwmn dated June 13, 2005, regarding "Retention of Docuwmnents for Pending

Litigation - Reminder" sent to "All Allstate Officers, Directors, Senior Managers, Managers,

RIM Communications." The memorandum included the following relevant text: "Last fall,

I sent you a memo directing you to preserve and retain certain documents as a result of a

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lawsuit that has been filed against Allstate in which claims of sex discrimination In promotion and compensatlion are alleged" (Emergency Moott., Ex.. B).

•

A letter dated March 7, 2007, from Ms.. Puffer's attorneys to putative class members

regarding "Pending Allstate Gender Class Action Lawsuit." The letter states, in relevant

pan: "u[F]ormer Allstate Assistant Vice President Katherine Puffer is pursuing a class action

gender discrimination lawsuit. ... During her employment at Allstate, Ms. Puffer decried

what she believed was unfair treatment of women in both pay and promotion opportunities.

Failing to persuade the company., she filed a charge of discrimination with the U.S. Equal

Employment Opportunity Comnumnission and retained our law firms to bring a federal class

action lawsuit on behalfof Allstattee's women. The lawsuit charges., among other things, that

Allstate sets salaries for women at the level ofODiivviission Manager or above in the P&C group

(or predecessor groups) too low and fails to equally promote these women. As part of our

duties as counsel, we are presently investigating these claims... .. Our hope is that, with your

help, our judge will certify a nationwide class of women injured by these discriminatory

practices and order relief both for past discrimination and to correct Allstate's practices in

the future.. To make this case effective, we must hear from women who worked at Allstate

to uncover how AAJlJlstate's managers assigned, paid, promoted and allocated opportunities to

men and women.. We also would like to hear from women who believe they may have

witnessed unequal treatment with respect to pay,. promotion or other opportunities. We urge

you to read Ms.. Puffer's complaint - available through 8a link .. ... - to see whether you

experienced or are aware ofevidence of the conduct it describes...... [W]le encourage you

to share this letter with others who may have information relating to the lawsuit so they may

contact us if they so choose. We want 1to0 hear from you" (doc.. # 265: ODef.'s Initial Mem.,

Ex.. B).. Plaintiff states that this letter or a similar letter sent in June 2007 was sent to more

than 90 percent orftthhe putaltive class members (PI..·'s Reply alt 9).

•

A letter dated June 28, 2007, from Ms. Pufferr's attorneys to putative class members

regarding "Pending Allstate Gender Class Action Lawsuit." This letter is essentially the

same as the March 2007 letter, but it expands on the description of the charges in Ms.

Puffer's suit, stating: "The lawsuit charges, among other things, that Allstate sets salaries

for women at the level of Division Manager or above in the P&C group (now Protection) too

low, directs women into lowerpayingjobs, and fails to equally promote or otherwise develop
women for upper management positions" (ODef..'s Initial Mem., Ex. cCV).l

30n June 13 ,22007, this Court entered an order prohibiting plaintiff's counsel from communicating with current
as). employees of Allstate under Model Rule 4.2, which prohibits commWunliiccations with a represented party (doc. # 85).
Plaintiffffacknowledgecs that it erred in sending out the June 28, 2007, lener iinn violatiion of this Court's order. Allstate argues that "[(c]erntainly, a lIectter that should never have been sent in the fliTrSst instance cannot be used to justify Court-· ordered notice now" (ODeeff. 's Supp. Mem. at 6 n.4). We disagree. The Court' s mission is ''to protect class members and fairly conduct this action." Fed. R. Civ.. P. 23(dXIXB). Todisregarddaaccoommmmuunniication that gave putative class members knowledge offlthe lawsuit would not protect those putative class members, but insltCead would penalize them for a misstep by plaintiff's counsel. In any event, even without the JWunle 28 letter, there were enough communications directed to the putative class members to show that many were aware of this lawsuit.
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Case 1:04-cv-05764 Document 272 Filed 03/12/2009 Page 12 of 20

•

Plaintiffrs anomeys' website, which was referred to in the aforementioned letters, provided

the following additional infonnation on the charges and developments in the lawsuit.

"Briefly, the lawsuit alleges that Allstate engages in 8a nationwide pattern or practice of

discrimination against women in hiring, retention, pay, promotion, and job assignments, as

well as tolerating harassment of women and retaliating against women who complained of

discriminatory treatment. The lawsuit requests injunctive, declaratory and monetary relief.,

and seeks class action status. Ms. PPuuffer and her counsel .... have hired experts to study and

analyze the relevant data in the lawsuit. Experntaannaallysis has revealed pay disparities between

women and men within grades and, in some cases, within job titles. Expert analysis has also

found that women are skewed to the jobs within a band with the lowest average earnings.

Presently, the parties are in the discovery stages ofliitigation .... Ifyou are a foarnmner female

P&C employee at the level of Division Manager or above, you may have information that

could be helpfuLl. A copy ofthe operative complaint can be found here.. We urge you to read

this complaint to see whether you may have experienced any of the conduct described in the

complaint" (Deeff. 's Initial Mem., Ex. D). The internet site was taken down in July 2007 as

parnt of an agreement with Allstattee's counsel after plaintiff sent the June 2007 letter in

violation of the Court's June 13, 2007 order. Plaintiff cannot deternmnine how many women

viewed the complaint before the website was disabled (PlI.o's Supp. Mem. at 7).

•

Finally, in cOonIUneleccttiion with the briefing on class certification, the parties secured declarations

from 85 putative class members - 5 percent of the putative class. And, while we do not

know how many more individuals the parties contacted in the effort to obtain those 85

declarations, it is likely that they did taalk to other putative class members about the case

(see,. e.g., Pl.'s Initial Mem., Ex. F, ODep. offDDeecclI. 15 (indicating conversations with other

declarants)).

In light of this evidence, it is not surprising that Allstate agreed with our in-court observation

that "many class members may have had knowledge of this lawsuit" (111/221/09 Tr. at 133-14). The

foregoing communications were enough to make the putative class aware oarfMMss.. Puffer''Ss suit, and

to increase the possibility of prejudice to them if they are not notified of the denial of class

certification. While these communications were not directed or sanctioned by the Court, we reject

Allstate's contention (Def. 's Supp. Mem. at 6) that this matters to the question of the putative class

members ' awareness of the suit. See Radmanovich, 271 F. Supp. 2d at 1078 (rejecting the

defendant's argwnent that prior official court notice was necessary to demonstrate potential prejudice

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Case 1:04-cv-05764 Document 272 Filed 03/12/2009 Page 13 of 20

to putative class members). Nor is the absence of media publicity about the case of significance
here. The evidence shows that many putative class members received notice that this lawsuit was pending, and what it was about; the fact that they received that infonnation from sources other than the media is of no moment. See Doe,. 407 F.3d at 763-64.4
In light of the foregoing evidence, we find that without notice to putative class members, there is a risk that some of them will suffer the kind of prejudice that the Culver cowur1t envisioned: "the expiration of the statute of limitations on the class members' claims without their knowing it."
277 F.3d at 914. We therefore conclude that it is appropriate to exercise our authority under Rule
23(d)(Il)(B)(i) to direct that notice be given to putative class members. III.
Before addressing the content ofthat notice, we consider plaintiff's other requests. Plaintiff
asks that we stay the effect of our January 20 order on the running of the statute of limitations for
an indefinite "reasonable" period of time to comport with Rule 23 's mandate to protect class
members,. Culver, and "fundamental fairness" by giving putative class members an opportunity to
intervene in Ms. Puffer's suit. Alternatively,. plaintiff asks that we toll the statute oflimitations for an indefinite "reasonable" period of time under the principle of equitable toUlling to ensure that the
claims that individual putative class members may choose to file are not time barred (PFIl. 's Initial
Mem. at 9-·14). When Ms. Puffer filed her class action complaint on September 2, 2004, the

4 For that reason, the case cited by defendants, Griffith v. Javitch, Block & Rathbone., ULLPP, 241 F.R.D. 600 (S.D. Ohio 2007), is inapposite.. In that case, the district court found that there was no potential for prejudice to putative class members ifthey did not receive notice of the denial of class certification, where the case had never been certified and had never been the subject ofpublicity. ld. at 602. In contrast to the instant case, the Griffith court did not mention any letnters, memmoranda, or websites that may have made the putative plaintiiffffSs aware of the class action lawsuit in that
case. Ild.
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applicable statute oflimitations was tolled as to all putative members of the class who would have
been parties hbad the suit been pernmnitted to continue as a class action. Crown, Cork & Seal Co. vv.. Park"e"r, 462 U.S. 345, 353-54 (1983); Am. Pipe and Constr. Co. v. Utah, 414 U.S. 538, 550-54
(1974). The statute offlliimmiittaations remained tolled for all members of the putative class until January
20,2009, when we entered the order denying class certification. lIdd.. By operation of our January 20
order,. the statute of limitations resumed running for the putative class members as of that date. Culver, 277 F.3d at 914.
We consider first plaintiffs request that we enter a broad order that all putative class
members are entitled to have the statute of limitations equitably tolled. For the reasons set forth below, we deny that request.
A.
As an initial matter, the Court must deternmnine whether it has jurisdiction to enter such an
order. Allstate argues that the moment this Court denied class certification, we lost personal jurisdiction over the putative class members and subject matter jurisdiction over their claims, and thus lost the authority to enter further orders affecting their rights (Def. 's Supp. Mem. at 2, 10). We agree that we lack personal jurisdiction over the putative class members; thus, we need not address the question of subject matter jurisdiction.
The only two appeals court decisions to squarely address the issue have held that upon denial of class certification,. a court's in personam jurisdiction is limited to the named parties appearing before it. See JIn re Bayshore Ford Trucks Soles., Inc., 471 F.3d 1233, 1245 (I IIth Cir. 2006); In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab.. Litig., 134 F.3d 133, 141 (3d Cir. 1998). In General Motors, the Third Circuit explained that in the wake of their earlier judgment vacating
14

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Case 1:04-cv-05764 Document 272 Filed 03/12/2009 Page 15 of 20

the district court's class certification order, virtually none ofthe putative class members were parties before the appellate court, and in the absence oftheir constructive or affirmative consent to personal jurisdiction, due process deprived the Cournt of personal jurisdiction. Gen.. Motors Corp.,, 134 F.3d atll14411.
The Seventh Circuit's opinion in In re Bridgestone/Firestone, Inc., Tires Prods. Liab. LWitig., 333 F.3d 763, 768 (7th Cir. 2003), is not lto the contrary. In thatl case, the Seventh Circuit held that an issue litigated and resolved on a class-wide basis is conclusive as to all putative class members ifthe absent members were adequately represented by the named litigants and c1laass counsel, whether or not the court otherwise would have had personal or subject matter jurisdiction over them individually,, "Just as they receive the fruits of victory, so an adverse decision is conclusive against them," including a decision denying class certification. Bridges/tone//Firestone , 333 F.3d at 768-69. Flowing from that reasoning, the Seventh Circuit held that its prior juudgment reversing the di strict court's class certification order was binding on unnamed class members, and that the district court had the authority to enforce the denial ofclass certification order. Bridges/tone/Firestone, 333 FJd at 769. Accordingly, the Seventh Circuit ordered the district court to issue an injunction preventing the putative class members and their lawyers from filing class actions with identical claims in other jurisdictions. lId.. The Seventh Circuit's recognition of a court's power to enforce its order that a case not proceed on a class basis does not imply that a court has personal jurisdiction over putative class members to issue orders affecting individual claims that they may choose to file in this or in other jurriissdictions - which is precisely what entry of a general tolling order would do..

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Plaintiff does not point to any persuasive case law holding that this Court has personal jurisdiction to issue such orders.s Rather, plaintiff argues that because of this Courtt' s inherent discretion to reconsider a denial ofclass certification, the Court must still have jurisdiction over the putative class (doc. # 268: Pl. 's Supp. Mem. at 2), For this proposition, plaintiff cites iIn re IPO Secc.. Li/ig., 483 F.3d 70, 73 (2d Cir. 2007). However, that case merely stated the uncontroversial rule that district courts have ample discretion to alter or amend a class certification ruling before final judgment, so long as the district court decision does not conflict with any detennination by an appeals court. That decision does not speak to a court' s jurisdiction over putative class members during a period after class certification has been denied, and that denial has not been altered.
Plaintiffalso argues that her request for a tolling order does not implicate personal or subject matter jurisdiction at all, but rather is merely a request that the Court exercise the broad discretion it possesses to stay proceedings as incidental to its power to control its docket (PpI..'s SUupp. Mem. at 2). We disagree. It is one matter for the Court to issue rulings to control the case before it. It is quite another matter for the Court to issue orders that would affect the rights of putative class members - and the defendant(s) they may sue - in separate individual lawsuits filed in this jurisdiction or elsewhere. It is the latter type of order that plaintiffasks us to enter. But, the issuance of that type oforder requires us to have personal jurisdiction over the putative class members, which we conclude we do not possess.

5Plaintiffcites two cases in which the district judge stayed the running ofthe statute oflimitations after denying class certification.. IIn Remien v.. EMC Corp., No.. 04 C 3727 (N.D. III.), the district court issued two minute orders temporarily staying its denial ofclass certification until the Seventh Circuit issued its ruling on the plaintiff's Rule 23(f) request for interlocutory review of the denial of class certification (docs. ## 331 , 335). The district judge offered no explanation for the stay. Likewise, in In re Teflon Prods. Liab. Litig., 254 F.R.D. 354, 371 (S.D. Iowa 2008), the court s5ua sponte included language in its order denying class certification that tolled all statutes oflimitations periods for 90 days to enable individuals to file separate complaints. The absence of any explanation for that ruling robs it of any persuasive effect here.
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Case 1:04-cv-05764 Document 272 Filed 03/12/2009 Page 17 of 20

Finally. plaintiff contends that any arguable lack of personal jurisdiction can be cured by issuing a blanket tolling order to cover the putative class members., and then giving them the choice to retroactively waive any objection to personal jurisdiction if they wish to avail themselves of the benefit aofftthhe tolling order (PpI1..''s Supp. Mem. 3at14). Plaintiff offers no good reason that we should issue orders first and worry about personal jurisdiction later, an approach that we find inconsistent with fundamental due process requirements.
For these reasons, the Court concludes that it lacks personal jurisdiction over the putative class members. Accordingly., we lJack the authority to issue a blanket order staying the statute of
limitations for all putative class members. B.
That said, we would not issue such an order even if we had the jurisdiction to do so. Equitable tolling pennits a plaintiff to file suit after the expiration of the applicable statute of limitations "if despite the exercise of all due diligence he is unable to obtain vital infornmnation bearing on the existence ofrhuis claim." Shropshear v. Corp. Counsel oa/ftthe City a/Chicago, 275 F.J3d 593, 595 (7th Cir.. 2001I). This analysis is "fact specific," Powers v. Indiana Depp"'t oa/jEEdduucc.., Div. aJ/SSppeecial Educ., 61 FF.J3d 552, 560 (7th Cir. 1995), thus making any blanketttolling order oftthe type plaintiff envisions inappropriate.
We do not have even the most basic infonnation that would allow us to make that fact specific detennination as to each ofthe 1,.700 putative class memberss. For example, we do not know what each person knew about this lawsuit, when she learned it,. and what effect (ifany) it had on her decision not to file suit. Nor do we know which putative class members will attempt to puwrsue an
individual claim. And, for those who choose to file a claim, we do not know how long they will wait
17

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to do so after learning of the denial of class certification (whether through notice directed by the
Court or by other means).
All ofthese considerations, and perhaps others, can be fully considered and addressed in the
context of individual suits that various putative class members may choose to file. We agree with
the Radmonovich court that whether a particular individual is entitled to equitable tolling should be
determined on a case-by-case basis if and when she files her own lawsuit. 271 F. Supp,. 2d at 1079
(denying the plaintiffs motion for a stay ofthe statute oflimitations because ofthe diversity between
each absent individduuaall's claims). Those kinds of individual determinations made in concrete cases
are more likely to serve equity than a more abstract group determination of whether tolling should apply to some 1,700 persons.6
Accordingly, even if the Court had jurisdiction to enter a blanket equitable tolling order, we
would decline to do so. In denying plaintiff's request for an equitable tolling order, we express no
view on whether putative class members will be entitled to equitable tolling in individual suits they
may choose to file. That decision will be for the judge presiding in a putative class member's
individual suit to make.7
6 We are not persuaded to change this resul!t by the one case cited by plaintiff which applied equitable tolling
after the court denied class certification. See, Vine v. Republic 0o/fIraq,, 459 F. Supp. 2d 10, 23-·24 (D.D.C. 2006),
overruled in part, Simon v. Republic a/Iraq,, 529 F.3d 1187 (D.C. Cir. 2008) (hbolding that lawsuit filed after denial of class certification was timely because specific factual circumstances of group of plaintiffs who filed their own lawsuit showed that equitably tolling applied). Unlike in Vine, the putative class members in this case do not have the same facrtual circumstances necessary to come to a blanket equitable tolling decision.
7 We also deny plaintiffs altermnative request that we stay the resumption of the statute of limitations that ordinarily would result from our January 20 order. We agree that we have the jurisdiction to decide whether to stay an interlocutory order that we have issued. See Texas fndep. Producers & Roayalty Owners Ass 'nno. v. E.P.A., 410 F.3d 964, 980 (7th CiT. 2005) (federal courts have inherent power to stay their own proceedings). However, we view this request as a back door means ofrequesting what is tantamount to equitable tolling.. The purpose of issuing notice is to give the
putative class members an opportunity to file suits within the statute offlliimmiittaattions if they can, and ifthey calnUnlot, to be
in a position to explain in a separate suit why the statute should be equitably tolled. The purpose of notice is not to eliminate the startute of limitations.
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IV. Finally. we consider the content ofthe notice that should be given to putative class members. Plaintiff has proposed a notice (PI. 's Initial Mem. at 9, Ex. A)., which has drawn strenuous objection from Allstate (Def.'s Supp. Mem. at 7-9). In deciding the contents of the notice, we return to its purpose: to ensure that putative class members who may have refrained from filing suit know that the denial of class certification means that the statute oflirmnitations on their ability to file suit now is running. We will require that kind of notice to hbelp prevent the putative class members from unwittingly losing their claims by operation ofthe statute oflimitations - the concern identified by the Seventh Circuit in Culver. Rule 23(d)(1) notice is not intended to encourage putative class members to file (or not file) suit, orto file suit in any particular court, or to suggest which counsel that individual putative class members may consult. iIn our judgment, plaintiff's proposed notice roams well beyond the proper province of Rule 23(d))((1I) notice. Thus, we will not require that putative class members receive the notice plaintiff has proposed. Rather, we direct the parties to meet and confer to reach agreement on a notice that satisfies the purposes of Rule 23(dd))((1l) as discussed in this opinion. We also direct the parties to meet and confer with respect to the mechanics ofdistribution ofthe notice, and who should bear the

Indeed, plaintiffhas not explained why, ifaccepted here, the kinnddofsstay she proposes should not issue in every case where class certification is denied, since every denial of class certification ttrriiggggeer~s the resumption of the statute of limitation. If accepted, plaintiff's proposal could eviscerate the rule that the denial of class certification resumes the running of the statulte oflliimmiittatioons. We decline to embark down that path.
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cost of notice. We will set a schedule for the parnties tto submit their recommendations on these matters by separate order.-'
ENTER:

DATED: March 12.,2009

United States Ma istrate Judge

8 The Couurrt will proomptly rule on the form of notiiccee to be sent too thee partiieess, as well as these othheer related mmatters. HHowwever, it is our intent too refrain from pennitltingg thee noticces to be sennt uwnltlil the Seventh Circuit rules on thee peennddiinng petliittiion foorr penrmniissiioonn10 take an interlocutoorryy appeal ofrthee CCoouurrtt's', ddeennial of class cerrttificaatiioonn..
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 Case: 1:04-cv-05764 Document #: 275 Filed: 04/03/09 Page 1 of 14 PageID #:7194

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

KATHERINE PUFFER, Plaintiff,
v. ALLSTATE INSURANCE COMPANY,
Defendant.

)

)

)

No. 04 C 5764

)

)

Magistrate Judge Schenkier

)

)

)

)

)

JOINT STATEMENT CONCERNING NOTICE ISSUES Pursuant to the Court’s Order of Ma rch 12, 2009, th e parties submit this Joint Statement to expla in their respective positions on issues concerni ng (a) the content of the notice to be sent to former putative class members to inform them of the d enial of clas s certification, and (b) the mechanics of distribution of the notice and responsibility for costs of distribution. The parties have met and conferred and have been unable to reach agreement on all aspects of thes e issues. We first describe the parties’ meet and confer efforts, and then explain our respective positions.
A. The Parties’ Meet and Confer The parties exchanged proposed notices on March 23 and 25, 2009. The parties then had a telephone conference on March 26, 2009, to discuss the notice contents, the mechanics of distribution, and who should bear the cost of distribution. The parties were unable to reach an agreement on all these issues. Notice Contents: As described below, the parties have fundamentally different views on the proper scope of notice in the circumstances present here -- i.e., denial of class certification. Becaus e the parties have been unabl e to reach agreement on the scope of the notice, each party submits its own proposed form of notice for th e Court’s c onsideration.

Case: 1:04-cv-05764 Document #: 275 Filed: 04/03/09 Page 2 of 14 PageID #:7195
Plaintiff’s proposed notice is attached at Exhibit A. Allstate’s proposed notice is attached at Exhibit B.
Mechanics and Cost o f Distribution: The parties agree that the best pract icable method of providing notice is by mailings to the putative class members. Bey ond that, th e parties disagree on the mechanics and cost of distribution.
For the reasons explained below, Allstate believes plaintiff should retain a third-party administrator to whom Allstate will provide a list of former putative class members’ names and addresses. Allstate believes plaintiff should bear the cost of the third-party administrator as well as reimburse Allstate for its costs to prepare the putative class member list.1
Plaintiff has proposed that her law firms undertake the mailings and, if Allstate wishes for a third-party administrator to distribut e the mailings, then plai ntiff has asserted that Allstate should be required to pay the difference between the cost for plaintiff’s law firm to provide notice and for a third-party administrator to do so.
B. Contents of the Notice Allstate’s Position
The parties’ proposed notices are not written on a blank sla te. Plaintiff submitted a proposed notice with her Motion for Stay of the Statute of Limitations and for Rule 23 Notice to Class Members (Dkt. #264). In its March 12, 2009 Memorandum Opinion and Order, the Court rejected plaintiff’s proposed notice, finding it “roams well beyond the proper province of Rule 23(d)(1) notice.” (Mem. Op. and Order at 19) The Court went on to provide
1 In order to provide the putative class member list, Allstate will incur data processing costs to update the putative class member list from 1/1/07 to present and to add mailing addresses. These costs are estimated to be $7,000. Allstate has no need to perform these tasks in the ordinary course of its business. The cost of compiling the list should be shouldered by plaintiff. Gomez v. Amer. Garment Finishers Corp., 200 F.R.D. 579, 584 (W. D. Tex. 2000) (“Plaintiffs must also bear the expense of compiling a list with the name and most recent address of each alleged class member, whether such a list is based on information or received from Defendant or otherwise.”).
2

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guidance on the prop er province of notice in the context of an order denying class
certification, stating (at 19):
In deciding the contents of the notice, we return to its purpose: to ensure that putative class members who may have refrained from filing suit know that the denial of class certification means that the statute of limitations on their ability to file suit now is running. We will require that kind of notice to help prevent the putative class members from unwittingly losing their claims by operation of the sta tute of limitations -- the concern identified by the Seventh Circuit in Culver. Rule 23(d)(1) notice is not intended to en courage putative class members to file (or not file) suit, or to fil e suit in any particular court, or to s uggest which counsel that individual putative class m embers may consult. Consistent with the Court’s guidance, Allstate’s proposed notice informs former
putative class members of the cla ims that were a sserted by Ms. Puffer; the fact that her
motion for class certification has been denied, and the fact that to the extent statutes of
limitations on former putative class members’ claims were tolled by Ms. Puffer’s lawsuit,
those limitation periods began running again on January 20, 2009. As such, Allstate’s notice
serves the purpose stated by this Court as well as by the Seventh Circuit in Culver -- i.e., to
protect against former putative class members “unwittingly losing their claims by operation
of the statute of limitations.” Culver v. City of Milwaukee, 277 F.3d 908, 914 (7th Cir. 2002).
At the sa me time, Allstate’s notice follows the Court’s instruction by setting forth the
relevant factors in a neutral way, neither encouraging nor discouraging former putative class
members to file su it, nor suggesting counsel that ind ividual putative class members may
consult. See, e.g., Kleiner v. First National Bank of Atlanta, 751 F.2d 1193, 1203 (11th Cir.
1985) (Rule 23 notice must contain infor mation that is accurate, objective, and neutral.).
Plaintiff criticizes the Defendant’s notice in tha t it does not tell former putative class
members that their legal rights will expire soon and it uses technical legal language. As to
the latter, words such as tolling and statute of limitations are not arcane legal terms but words
common in everyday language. As to the former, as this Court has already found, it is not the
3

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Court’s province to tell former putative class members as to whether the time period for their claims is quickly expiring or n ot as that may very well depend on individual circumstances. Instead, as this Court held, the only purpose of this Notice i s to tell for mer putative class members that their statute of limitations period is running and then let t he former putative class members decide what they should do with t he information. Th e one thing the parties can agree upon is that the former putative class members are educated wo men who hold or held management-level jobs and can make their own decisions.
In contrast to Allstate’s proposed notice, plaintiff’s proposed notice again roams far beyond the proper province of the notice ordered by this Court. First, plaintiff’s notice inaccurately suggests to former putative class members that they have viable claims to bring and encourages them to assert those claims. In particular, plaintiff’s proposed notice states: “This Notice informs you that you may have a claim or claims for gender discrimination in pay, job assignment, promotion and/or job training.” In the next paragraph, plaintiff again states: “[T]he Court’s denial of class certification could affect the time that you have to bring your own individual claims for gender discrimination against Allstate, should you desire to do so.” These statements strongly suggest that the Court has found there is merit or validity to former putative class members’ claims, when in fact the Court has made no such finding.
Second, despite the fact that the Court specifically stated that the notice is not intended to encourage former putative class members to file suit (or not file suit), plaintiff’s proposed notice strong ly encourages putative class members to pursue litigation against Allstate. Indeed, plaintiff’s notice specifically states: “You must take action before the time runs out on your claim(s) should you wish to preserve your legal rights.” In short, plaintiff’s notice continues to betray her real intent -- to solicit new clients to file claims. This Court should not put i ts imprimatur on that endeavor. See Advisory Committee notes to Rule 23(d)(2) (cautioning against use of Rule 23(d)(2) for the “undesirable solicitation of claims”).
4

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As the court noted in Marian Bank v. Electronic Payment Services, Inc., 1999 WL 151872, *2 (D. Del. March 12, 1999): “ Numerous courts have recognized the danger of p roviding putative class members with court-ordered notice of th e opportunity to sue. Courts have agreed that providing such notice ‘is in a sen se merely soliciting a client for plaintiff’s counsel under the aegis of the court.’”
Not only does plaintiff’s notice disregard the Court’s admonition not to encourage filing suit, but also plaintiff’s notice suggests intervention as a next step, when this Court has never ruled that former putative class member have the right to intervene in this lawsuit. Nor has the Court even had the occasion to consider the issue, because in the more than four years this lawsuit has been pending, no putative class member ever sought to intervene. Advising putative class members to seek to intervene is tantamount to soliciting the pursuit of claims and ought not be part of this notice. See, e.g., Marian Bank, 1999 WL 151872 at *2 (denying motion to provide putative class members with “notice of opportunity to intervene”). While plaintiff contends that the notice should provide “basic information on the types of actions [former putative class members] should take if they wish to preserve such claims,” (infra.), such “advice” not only goes beyond the bounds of the notice contemplated by the Court, but also may have dang erous repercussions to fo rmer putative class members who tak e it and later find out it is wrong.2 The Court serves no d ue process interest giving former putative class members inaccurate generic legal advice about wh at their legal options are in the context of a denial of class certification. Instead, as this Court has correctly determined in its
2 For example, Allstate disputes that all putative class members have any right to intervene. Intervention in non-class cases is only potentially permissible if the intervenor’s claims arise from the same alleged misconduct. Horton v. Jackson County Bd. Of County Commissioners, 343 F.3d 897, 900 (7th Cir. 2003). This Court has already ruled that the putative class members’ claims are dissimilar and lack commonality with one another. Thus, intervention may very well not be an option for the great majority, if an y, of the former putative class members. At a minimum, telling putative class members they have a right to intervene may be incorrect legal advice which could compromise their claims.
5

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other rulings, such advice is clearly an individualized determination best left to the putative class member and her chosen counsel.
Third, and a lso contrary to the Court’s guide lines, plaintiff’s notice sets forth th e names and contact information for plaintiff’s counsel, confirming once again that plaintiff attempts to use this notice as a vehi cle to solicit new claims against Allstate using th e imprimatur of this Court. Whi le the Court already has stated th at the notice should not “suggest which counsel that individual putative class members may consult” (3/12/09 Mem. Op. and Order at 19), putting in the names of plaintiff’s counsel is clearly intended to do just that. Plaintiff’s inclusion of the names and contact information for Allstate’s counsel is nothing more than a fig leaf that does not cure or neutralize plaintiff’s attempted use of this notice to solicit clients. It is reasonably foreseeable that former putative class members who have questions about the notice or wish to discuss the possibility of bringing claims will call the attorneys for Ms. Puffer, not counsel listed for Allstate. Plaint iff’s argument that questions are best directed to the counsel in this case because they know the facts in this case misses the point. This no tice is not about Ms. Puffer or this case. This notice is for the former putative class members. As this Co urt has already found in its class ruling, those individual circumstances will vary widely. Thus , other th an to s olicit additional litigation against Allstate, there is nothing special that counsel in this proceeding have to contribute to a determination as to wh at any particular for mer putative class member should or should not do. Plaintiff’s Position
In the Court’s March 12, 2 009 Order, the Cour t instructed the parties to prepare a notice that will “help prevent the putative class members from unwittingly losing their claims by the operation of the statute of limitations – the concern identified by the Seventh Circuit in Culver.” Indee d, in Culver v. City of Milwau kee, 277 F.3d 908 , 914 (7 th Cir. 2002), the
6

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Seventh Circuit recognized that due process requires that the district court, as fiduciary for the class under Rule 23(e), ensure that class members are properly warned, through timely notice, that they have claims that may expire as a consequence of the Court’s denial of class certification unless they take steps to re-arrest the limitations period on those claims. Id. at 914, 915 ( “unless [pu tative class members] are notified that the suit is dismissed, they may fail to file their own suits and thus fail to “re-arrest” the statute of limitations, and as a result they may find themselves barred without knowing it.”) Plaintiff’s proposed notice (Exhibit A) meets the due process concerns expressed by the Culver court and addresses the concerns raised by this Court in its March 12, 2009 Order.
The Notice proposed by Puffer is designed to protect the interests of absent class members identified by the Culver court. It alerts class members that they may have individual claims of gender discrimination in compensation, promotion, job assignment and/or job training ag ainst Allstate that were preserved during the pendency of Puffer’s motion for class certification. (See Ex. A, Puffer’s Proposed Notice, ¶1-4) Puffer’s proposed Notice informs class members that the time period they have to file such claims has begun to run again as the result of the Court’s ruling denying class certification and that class members must take action before the time periods expire if they wish to preserve th eir legal rights against Allstate. Id. at ¶4-5. The proposed Notice also provides basic information on the types of action they may take if they wish to preserve those claims. Id. at ¶ 6. The Notice, however, makes it clear (in bold and underlined print) that it “should not be considered as a solicitation or as a suggestion” that class members “should or should not tak e any further action”. The Notice also makes it clear th at it “should not be c onstrued as adv ice by the Court as to the length of time within which [class members] may take such action.” These warnings address the concerns raised by the Court in its March 12, 2009 Order.
7

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Puffer’s proposed notice includes the names of counsel for both Allstate and Puffer. Both counsel’s names have been in cluded so that class members will have a quick means of obtaining answers to questions t hey may have regarding the litigation and the Court’s order denying class certification without having to contact the Court or the Clerk of the Cour t. Legal notice can be confusing to individuals. The firms on both sides of the case are familiar with the history of the case (they have been in volved since the beginning) and can rea dily answer questions about it. No outside lawyer or case manager at the EEOC could reconstruct that history alone from just reading the court file.
In contrast, Defendant’s proposed notice (Exhibit B) is woefully inadequate. It fails to provide any warning whatsoever to class members that their legal rights will expire if they do not take action to preserve their gender discrimination claims against Allstate before the time periods elapse. It uses technical legal language – l ike “statute of li mitations” and “tolled”– without providing a lay-persons explanation of the significance of those term s. It provides no information on the steps that a class member must take if she w ishes to “rearrest” the statutes of limitations and protect her legal interests, the underlying purpose identified by the Culver court for sending notice under these circumstances. Culver, 277 F.3d at 914. And it fails to set forth the options that may be av ailable to class members should they wish to protect their legal rights.
Instead, defendant’s proposed notice disc ourages class members from taking any action at all to p rotect their gender discrimination claims against Allstate by stating (in bold print and u nderlined) that the “notice should n ot be considered as a solicitation or as a suggestion that you should take any further action.” By including only this phrase, without including a statement about the fact that absent class members must take action to preserve their claims or the type of action that they may take, defendant’s notice runs counter to this
8

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Court’s instruction that the notice should not encourage “class members to file (or not file) suit.” March 12, 2009 Order, at 19.
Rule 23(e) is for the pr otection of class members. Culver, 277 F .3d at 915. The Court, as a fiduciary of the c lass, must ensure that the notice, regardless of whether it is for settlement purposes or, as here, to inform class members of the denial of class certification, adequately protects the due process rights and legal interests of clas s members. Id. Under the Due Process Clause, an individual faced with the possible deprivation of a property interest is enti tled to b oth timely and adequate notice of the potential deprivation and a meaningful opportunity to be heard. Goldberg v. Kelly, 397 U.S. 254, 267-68, 90 S. Ct. 1011, 1020-21, 25 L.Ed.2d 287 (1970); DeManez v. Bridgestone Firestone North American Tire, 533 F.3d 578, 592 (adequate notice and opportunity to be heard are “fundamental incidents” of due process); Kaplan v. U.S., 133 F.3d 469, 475 (7th Cir. 1998)(adequate notice at the heart of due process). Thus, the goal of notice is to provide sufficient information so that class members will not be prejudiced or compromised in any way by this Court’s denial of class certification. Eirhart v. Libby-Owens-Ford Co., 1990 WL 223029 (7 th Cir. 1990) (notice must fairly apprise class members of their rights and interests); Air Lines Stewards & Stewardesses Assoc. v. American Airlines, Inc., 455 F.2d 101,108 (7th Cir. 1972 ); General Electric Capital Corp. v. Montgomery Ward Credit Corporation, 2000 WL 45534 (N.D. Ill., 2000) (Rule 23 a nd due process require than any notice to absent class m embers “fairly appraise the members of the class of the proposed compromise and of t he options open to dissenting class members in connection with the proceedings”).
To meet the minimum requirements of due process here, the notice must provide sufficient information so that class members can understand why they are recei ving the notice, how their legal rights hav e been affected by the Court’s January 20, 2009 Order and what options are available to them so that they can make a meaningful decision whether or
9

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not to proceed with their individual claims against Allstate. Plaintiff’s proposed notice meets

these minimum requirements of due process w ithout encouraging putative class members to

file (or not file) suit or directing them to counsel for any particular party to the litigation.

Defendant’s proposed notice does not.

C. Mechanics and Cost of Distribution

Allstate’s Position

During the parties’ meet and confer, counsel for Ms. P uffer acknowledged their

responsibility to make arrangements for the mailing of notice and to pay the costs of same.

On that general point, the parties are in agreement. However, plaintiff’s counsel also stated

that they should not have to pay the full costs for a third-party administrator if they are able to

take care of the mailings using the services of their own law firms. This position presumes

that plaintiff’s counsel are entitled to receive the names and address es of putative class

members they do not re present -- a proposi tion that Allstate disputes. Because the parties

disagree on this po int, they have been un able to reach complete agreement on the logistics

and costs of distributing notice.

Allstate does not believe plaintiff’s counsel is entitled to ob tain a list of names and

addresses of former putative class m embers they do not represent. 3 See, e.g., Weisman v.

Darneille, 78 F.R.D. 671, 674 (S .D.N.Y. 1978) (denying request for p roduction of list of

“class members” for purposes of notifying them of denial of class certification). The sole

reason for creation of such a list is to provide notice that a class has not bee n certified.

Because class certifica tion has been denie d, plaintiff’s counsel has no relationship with the

3

Plaintiff has indicated concern about the cost of creating a list of former putative class members that

would include persons employed by Allstate in P&C after the data set that was created for p urposes of class

certification. As Allstate has represented in open court, the problem with updating the list with any additional

names is there is no code in the Allstate data base which identifies persons as being part of P&C. As a result, a

query has to be set up to find people in the same job codes, region codes, location codes and department codes

as the people in the data set. That query then has to be checked for errors, and if any are found, it will have to

be redone. That is why the estimate of cost is at the level it is.

10

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former putative class members nor any need to know who they are or where they live. While Allstate does not ascribe any bad faith to plaintiff’s counsel, once names and addr esses are given to p laintiff’s counsel, Allstate loses control over them and the pr ivacy of these individuals is compromised. Moreover, once they are in plaintiff’s hands they can be used for improper purposes. As was the case in this lawsuit, even w ith the best of intentions, plaintiff’s counsel has inadvert ently and inappropriately contacted putative class members contrary to the prohibitio ns of Rule 4.2. There is no reason to create this risk when a viable and oft-used alternative exists to give the notice ordered by this Court -- i.e., use of a thirdparty notice administrator.
Finally, and just as importantly, a mailing from plaintiff’s law firm presumably would provide a return address with the name and address of plaintiff’s counsel -- thus giving the appearance of a solicitation as well as giving putative class members the name of plaintiff’s law firm to contact.
Thus, Allstate b elieves plaintiff should be required to engage a third-party administrator (at plaintiff’s cost), to whom Allstate will confidentially provide the list of former putative class members’ names and addresses for purpo ses of the mailing. U pon completion of the mailing process (including any re-mailings if necessary based upon returned mail), the third-party administrator would be required to submit a declaration to the court of the steps taken to provide notice, attaching a list of the individuals to whom notice was sent (the attachment to be filed under seal). Based on estimates obtained by plaintiff, the cost of a third-party administrator is between $6,000 and $10,000 -- not an unreasonable cost for plaintiff to bear.
In addition to preserving confidentiality of the na mes and addresses on the for mer putative class member list, use of a third-party administrator is desirable in the event of a dispute in t he future as to whether any putative class member was sent notice, because the
11

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evidence of su ch notice (or lack t hereof) will lie wi th a neutral third-party administrator. Plaintiff’s Position
Plaintiff agrees th at class representatives are responsible for sending notice under Rule 23 and usually are assessed with the cost of notice. Consequently, the plaintiff normally has control over the service so that she can limit the costs of th at process. There are approximately 2500 putative class members. The proposed notice is only two-pages long. Given the manageable size of the class and the short length of the proposed notice, plaintiff’s counsel proposed t o defendant’s counsel that the notice be handled in-house, by plaintiff’s counsel’s staff, because this would b e the most cost effective method for effectuating notice. Under plaintiff’s proposal, defendant would produce a current Excel spreadsheet containing the names and addresses for al l putative class members. Plaintiff’s counsel’s staff would be responsible for printing the notice, stuffing and addressing the envelopes and for mailing the notice. A neutral P.O. Box would be established for return mail so that plaintiff’s counsel’s name would not be on the return en velope. If in itial notice was returned as undeliverable, plaintiff’s counsel would use an address locator program provided by the United States Postal Service or some other address l ocator service available for fr ee on the internet and re-mail notice to t he putative class members. If a notice was returned t o plaintiff’s counsel for a second time, the putative class member’s name and contact infor mation would be sent to a tracer/locator service. All mailings would be tracked on an Excel spreadsheet that would be provided to defendant. Defendant also would be provided with a copy of all returned notices and plaintiff’s counsel w ould be required to st ore all materials relating to the notice for an agreed upon time, but for no longer than eight (8) years. The total cost of the notice would be minimal (estimated at less than $1500) – consisting of the postage required to send the notice and any additional amount charged by the tracer service for t he limited number of
12

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class members who plaintiff’s counsel were unable to serve through their initial efforts.4 This is much less than the $6000 to $10,000 defendant projects notice will cost should the Court order the parties to use a third-party vendor.
Defendant rejected plaintiff’s proposed method for service because Allstate was unwilling to provide current contact information to plaintiff’s counsel. However, plai ntiff believes that the proposed system contains appropriate safeguards to ensure that the name and address information is not used for improper purposes. If defendant wishes, all copies of the putative class member list can b e returned to Allstate after service of the notice has been completed. Plaintiff does not believe she should bear the additional costs associated with the use of a third-party vendor since her counsel is fully willing and able to manage the notice inhouse. For these reasons, plaintiff asks the court to enter an order either adopting plaintiff’s proposed method for sending not ice or, alternatively, requiring Allstate to pay the incremental difference in the cost of sending notice through a third party vendor.
Moreover, defendant has informed plaintiff th at they expect the cost of producing a list of the names and addresses of class members to cost an additional $7000. According to Allstate, the cost is so high becau se Allstate needs to manually create a list – pulling information from various databases to ensure that they are limiting the names to only women in the P&C division. Allstate, however, already created this list at the Court’s order in July of 2007. Plaintiff finds it hard to believe that it will cost so much money for Allstate to update that list when the information is already contained on Allstate’s data systems. Since plaintiff, who must pay this expense, ha s no control over how much time or money Allstate spends creating this list, plaintiff asks the Court to cap the costs of creating this list at no more than $3000 or to otherwise place a limit on this additional cost of service.
4 Plaintiff’s counsel has overseen the distribution of notice in other cases using a similar process.
13

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DEFENDANT ALLSTATE INS. CO.
By:___s/ Sallie Smylie__________ One of its Attorneys
Richard C. Godfrey, P.C. Sallie G. Smylie, P.C. KIRKLAND & ELLIS LLP 200 East Randolph Drive Chicago, Illinois 60601 (312) 861-2000
Paul R. Garry Anneliese Wermuth MECKLER BULGER & TILSON LLP 123 N. Wacker Drive, Suite 1800 Chicago, Illinois 60606 (312) 474-7900

PLAINTIFF KATHERINE PUFFER
By:____s/ Shona B. Glink______ One of her Attorneys
Mary Stowell Linda D. Friedman STOWELL & FRIEDMAN, LTD 321 South Plymouth Court Chicago, Illinois 60604 (312) 431-0888
Paul W. Mollica Shona B. Glink MEITES, MULDER, MOLLICA & GLINK 20 South Clark Street, Suite 1500 Chicago, Illinois 60603 (312) 263-0272

Dated: April 3, 2009

14

Case: 1:04-cv-05764 Document #: 275-2 Filed: 04/03/09 Page 1 of 2 PageID #:7208

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

____________________________________

)

KATHERINE PUFFER,

)

On behalf of herself and all others

)

No. 04-C-5764

similarly situated,

)

Plaintiffs,

)

)

v.

)

)

Magistrate Judge Schenkier

ALLSTATE INSURANCE COMPANY, )

De

fendant.

)

____________________________________)

NOTICE OF DENIAL OF CLASS CERTIFICATION

The Court in this case - Puffer v. Allstate Ins. Co. - has approved this Notice and ordered that it be sent to you because your rights may be affected by a recent ruling in this case. You are encouraged to read this Notice carefully.

1. On September 4, 2004, Katherine Puffer filed a lawsuit against Allstate Insurance Company in the federal court in Chicago alleging that Allstate discriminates against female managers at the level of Division or Department manager or above with respect to pay, job assignments, promotions, and/or job training in violation of Title VII of the Civil Rights Act (the federal statute that prohibits discrimination on the basis of gender).

2. Ms. Puffer filed a motion asking the Court to certify the lawsuit as a class action on behalf of all current and former managers holding the position of Division of Department manager and above who worked in Allstate P&C at any time between July 13, 2002 to the present.

3. On January 20, 2009, the United States District Court for the District of the Northern District of Illinois entered an order on class certification in the above-referenced action. The Order ruled that Ms. Puffer could not proceed with her case as a class action. On March 25, 2009, the United States Appellate Court for the Seventh Circuit denied plaintiff’s Rule 23(f) motion for an interlocutory appeal of the District Court’s January 20, 2009 Order.

4. This Notice is being sent to you because Allstate’s records indicate that you held or are currently holding the position of Division or Department Manager or above at any time between July 13, 2002 and the present. This Notice informs you that you may have a claim or claims for gender discrimination in pay, job assignment, promotion and/or job training and that your legal rights may have been affected by the Court’s ruling.

Case: 1:04-cv-05764 Document #: 275-2 Filed: 04/03/09 Page 2 of 2 PageID #:7209

5. More specifically, the Court's denial of class certification could affect the time that you have to bring your own individual claims for gender discrimination against Allstate, should you desire to so. The time periods that you may have to bring a claim or claims against Allstate has now started to run once again from the date the Court entered the order denying class certification (January 20, 2009) and you must take action before the time runs out on your claim(s) should you wish to preserve your legal rights.

6. If you want to bring one or more individual gender discrimination claims against Allstate, then you may seek to intervene in the Puffer litigation, bring your own lawsuit or file a charge of discrimination with the Equal Employment Opportunity Commission (or your state or local agency) before the expiration of the time periods for filing such matters (“statutes of limitations”). You can learn about the Equal Employment Opportunity Commission and the charge filing procedure by visiting its website at www.eeoc.gov. You can also get information from your state of local anti-discrimination agencies.

This Notice is issued to you upon Order of the United Stated District Court of the Northern District of Illinois because you may h ave held a j ob included in the class t hat Katherine Puffer asked the Court to certify and you may have heard about the pendency of this case. This notice should not be considered as a solicitation or as a suggestio n that you should or should not take any further action, nor should it be construed as advice by the Court as to the length of time within which you may take such action.

PLEASE DO NOT CONTACT THE COURT OR THE CLERK OF THE COURT ABOUT THIS NOTICE. IF YOU HAVE ANY QUESTIONS ABOUT THE NOTICE
PLEASE CONTACT ONE OF THE FIRMS LISTED BELOW:

Representing the Plaintiff Katherine Puffer

Representing Defendant Allstate Insurance Company

Shona B. Glink

Sallie

Meites, Mulder, Mollica & Glink

20 South Clark Street, Suite 1500

Chicago, IL 60603

Chicago,

(312) 263-0272

(312)

sbglink@mmmglaw.com

Smylie Kirland & Ellis 300 North LaSalle
Illinois 60604 862-2000 ssmylie@kirkland.com

Linda D. Friedman

Annalis

Stowell & Friedman LP

M

321 Plymouth Court, Suite 1400

Chicago, Illinois 60604

(312) 431-0888

(312)

lfriedman@sfltd.com

e Wermuth eckler, Bulger & Tilson 123 North Wacker Drive Chicago, Illinois 60606
474-7900 anna.wermuth@mbtlaw.com

DATED:_________________

Case: 1:04-cv-05764 Document #: 275-3 Filed: 04/03/09 Page 1 of 2 PageID #:7210

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

KATHERINE PUFFER,

)

)

Pla

intiff,

)

)

v.

)

)

ALLSTATE INSURANCE COMPANY, )

)

Defendant.

)

)

No. 04 C 5764 Magistrate Judge Schenkier

NOTICE OF DENIAL OF CLASS CERTIFICATION

1. On September 4, 2004, Plai ntiff Katherine Puffer f iled a lawsuit agains t Allstate Insurance Company alleging that Allstate discriminates against female managers with respect to promotions, pay and training opportunities in violation of Title VII of the Civil Rights Act.

2. Katherine Puffer filed a motion asking the Court to certify the lawsuit as a class action on behalf all cu rrent and form er female managers holding the position of Division or Depart ment manager and above who worked in Allstate P&C at any time between July 13, 2002 and the present.

3. On January 20, 2009, the Court denied Katherine Puffer’s motion for class certification and ruled that the lawsuit would not proceed as a class action. On March 25, 2009, the United States Court of Ap peals for the Seventh Circuit deni ed plaintiff’s Rule 23(f) motion for an interlocutory appeal of the District Court’s January 20, 2009 Order.

4. Therefore, to the extent any statutes of limitations applicable to claims of gender discrimination in pro motion, pay and/or training opportuni ties by individuals included in the proposed class of fe male managers, as described above in paragraph 2, had been tolled by this laws uit, those statutes of li mitations started running again on January 20, 2009.

5. This notice is sen t to you upon order of the United States District Court of the Northern District of Illinois because you may have held a job included in the class that Katherine Puffer asked the Court to certify and you may have heard about the pendency of this case. This notice should not be considered as a solicitation or as a suggestio n that you should take any further action, nor should it be construed as advice by the Court as to the length of time within which you may take such action. PLEASE DO NO T CONTACT THE COURT OR THE CLERK OF THE COURT ABOUT THIS NOTICE.

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 Case: 1:04-cv-05764 Document #: 320 Filed: 01/07/11 Page 1 of 1 PageID #:8146

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

KATHERINE PUFFER, on behalf of herself and all others similarly situated,
Plaintiff,
v.
ALLSTATE INSURANCE COMPANY,
Defendant.

)

)

)

) Case No.: 04 C 5764

)

) Magistrate Judge Jeffrey T. Gilbert

)

) [NtQPOSf5f)j ORDER OF

flJ\l

) DISMISSAL WITH PREJUDICE '-- f I (_,---

)

Upon consideration of the Stipulation of Dismissal made by and between

Plaintiff Katherine Puffer and Defendant Allstate Insurance Company, it is hereby

ORDERED that this lawsuit shall be, and is hereby, dismissed in its

entirety with prejudice pursuant to Federal Rule of Civil Procedure 41(a)(l)(ii).

n Entered this

~ 'kJtt.

 
 Case: 1:04-cv-05764 Document #: 350 Filed: 04/18/12 Page 1 of 1 PageID #:8807 Case: 11-1273 Document: 00711743727 Filed: 04/18/2012 Pages: 1
UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Everett M cKinley D irksen U nited States Courthouse Room 2722 - 219 S. Dearborn Street Chicago, Illinois 60604

Office of the Clerk Phone: (312) 435-5850 w w w .ca7.u sco urts.gov

March 27, 2012

FINAL JUDGMENT

Before:

JOEL M. FLAUM, Circuit Judge JOHN DANIEL TINDER, Circuit Judge JAMES E. SHADID, Chief District Court Judge*

KATHERINE PUFFER, Plaintiff

and

No.: 11-1273

KAREN PELL, et al., Intervening Plaintiffs - Appellants

v.

ALLSTATE INSURANCE COMPANY, Defendant - Appellee
Originating Case Information:
District Court No: 1:04-cv-05764 Northern District of Illinois, Eastern Division Magistrate Judge Jeffrey T. Gilbert

The judgment of the District Court is AFFIRMED, with costs, in accordance with the decision of this court entered on this date.

*The Honorable James E. Shadid, Chief Judge for the United States District Court for the Central District of Illinois, sitting
by designation.
form name: c7_FinalJudgment(form ID: 132)

 
 Case: 1:04-cv-05764 Document #: 351 Filed: 04/18/12 Page 1 of 22 PageID #:8808 Case: 11-1273 Document: 00711743728 Filed: 04/18/2012 Pages: 22

In the
United States Court of Appeals
For the Seventh Circuit

No. 11-1273

KATHERINE PUFFER,

and

Plaintiff,

KAREN PELL, et al.,

Intervening Plaintiffs-Appellants,

v.

ALLSTATE INSURANCE COMPANY,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
No. 1:04-cv-05764—Jeffrey T. Gilbert, Magistrate Judge.

ARGUED FEBRUARY 23, 2012—DECIDED MARCH 27, 2012

Before FLAUM and TINDER, Circuit Judges, and SHADID, District Judge.
 The Honorable James E. Shadid, Chief Judge for the United States District Court for the Central District of Illinois, sitting by designation.

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No. 11-1273

FLAUM, Circuit Judge. Katherine Puffer sued Allstate Insurance Company (“Allstate”) on behalf of herself and a putative class, alleging that Allstate carried out a nationwide pattern or practice of sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Equal Pay Act of 1963, 29 U.S.C. § 206(d). In her complaint, she alleged gender-based earning disparities rooted in differential treatment and disparate impact theories based on Allstate’s salary, promotion, and training policies, which left significant discretion in the hands of individual managers. The district court denied plaintiff’s motion for class certification. In response to the concerns expressed by the court and in response to the enactment of the Lilly Ledbetter Fair Pay Act of 2009, Pub L. No. 111-2 (the “Ledbetter Act”), plaintiff again moved for class certification. This time, she focused exclusively on Allstate’s uniform compensation policies. The court again denied certification, citing flaws in plaintiff’s evidence and the lack of common issues.
Puffer then settled her individual claims with Allstate. Karen Pell, Gail Howells, and Mary Keith, members of the putative class, intervened to appeal the denials of class certification. These intervenors now allege only a disparate impact theory, claiming that Allstate’s policy of awarding merit increases based on a percentage of base pay and Allstate’s policy of comparing salaries to its competitors caused gender-based disparities in earnings.
We shall not reach the merits of this claim, however. We conclude that intervenors have waived their disparate impact claim by failing to meaningfully develop

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it before the district court. Although plaintiff nominally mentioned a disparate impact claim in her complaint, she developed and argued only her pattern-or-practice claim—a type of intentional discrimination. We therefore affirm the district court’s denial of class certification.

I. Background
A. Allstate’s Corporate Structure and Policies
Allstate Insurance Company is headquartered in Illinois and employs 38,000 people throughout the country. In 2002, Allstate created an operating unit called Allstate Protection, which employs approximately 80% of Allstate’s personnel. Allstate Protection is organized into different Areas of Responsibility (“AORs”). The four largest AORs are Claims, Product Operations, Protection Finance, and Distribution.
Responsibilities, supervisors, office locations, and salary grades vary among these AORs. The Claims AOR handles insurance claims and employs approximately 17,000 people as attorneys, human resources professionals, information technology specialists, claims investigators, claims and subrogation service managers, and project managers. The Product Operations AOR creates insurance products, prices products, assesses risk, updates Allstate’s insurance policies, and communicates with customers. Among its employees are pricing directors, actuaries, product operations managers, and personal line directors and managers. The Protection Finance AOR provides financial support and typically employs managers with finance or accounting degrees. The Dis-

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tribution AOR works with the insurance agencies that sell Allstate’s products by developing recognition plans, directly supporting agents, and promoting business.
The hierarchical structure among the AORs is similar: entry-level managers are at Salary Grades (“Grades”) 63 and 64; senior managers are at Grade 77; directors are at Grade 78; appointed officer positions (Assistant Vice President and Assistant Field Vice President) are at Grade 80; and elected officer positions (Vice President, Senior Vice President, and Senior Vice President) are at Grade 90 and above. At the end of 2003, women comprised 61% of Protection employees but only 36% of the managerial positions and 24% of the officer positions.
At the beginning of each year, managers meet with their supervisors to discuss major job responsibilities and individual performance goals. At the end of the year, supervisors fill out performance development summaries for the managers they oversee. In a process known as “one-over-one” review, supervisors submit the performance summaries to their own superiors for input, review, and approval before turning them over to the evaluated managers. Allstate also evaluates its managers based on 17 critical success factors and on Quality Leadership Management Surveys. These evaluations factor into decisions about merit or promotional salary increases for managers.
Allstate Protection is allotted a percentage amount of money annually for merit or promotional salary increases. Allstate’s Human Resources department establishes an overall range of salary increases in terms of a percentage

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No. 11-1273

5

amount for each performance and salary level. These guidelines are suggestions, leaving supervisors with the discretion to grant more or less of an increase based on performance. Salary increases for officers follow a similar process except that the senior management team makes the decisions.

B. Procedural Background
Katherine Puffer, the original plaintiff in this suit, worked at Allstate from 1977 to 2003. She primarily worked in the Finance AOR, but she also worked in the Production Operations AOR. By 1993, Puffer had been promoted eight times.
Puffer alleged that she was sexually harassed by her supervisor from late-1998 to mid-1999 and that she was not promoted because she rejected her supervisor’s advances and because of her gender. She filed a charge of gender discrimination, sexual harassment, and retaliation with the Equal Employment Opportunity Commission (“EEOC”) in January 2001, but she did not file a lawsuit within the required time period after receiving a right to sue letter. In 2003, Puffer was terminated as part of a reorganization and officer reduction in force. Fourteen officers, including Puffer, were terminated at that time: eleven were male and three were female. Puffer filed a new charge with the EEOC, alleging gender discrimination and retaliation, and she then timely filed the complaint in this case.
In her amended complaint, Puffer asserted three claims. First, she alleged that Allstate discriminated

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No. 11-1273

against her and a class of female managerial employees because of their gender and allowed the discrimination “to exist and go unremedied for so long that it amounts to a policy or practice and constitutes Allstate’s standard operating procedure.” Am. Compl. ¶ 38. She alleged this claim under both “differential treatment and disparate impact theories of liability under Title VII.” Id. ¶ 53. Second, Puffer alleged a class claim under the Equal Pay Act, contending that Allstate pays putative class members “lower wages than male employees in substantially equal jobs even though Plaintiffs and all others similarly situated performed similar duties requiring the same skill, effort, and responsibility of male employees” and performed “substantially equal work.” Id. ¶¶ 57, 59. Third, Puffer alleged an individual claim of retaliation under Title VII and the Equal Pay Act.
At the time Puffer filed her complaint, case law supported the “paycheck accrual rule,” such that a new claim under Title VII arose each time an employer issued a paycheck reflecting discriminatory wages, even if the discriminatory decision setting the amount occurred outside the limitations period (i.e., more than 300 days before the filing of the first EEOC charge). But in 2007, in Ledbetter v. Goodyear Tire & Rubber Co., the Supreme Court held that present effects of a discriminatory decision that predated the limitations period could no longer form the basis for Title VII liability. 550 U.S. 618, 632, 643 (2007).
On November 8, 2007, after substantial discovery, Puffer moved for class certification pursuant to Federal Rules of Civil Procedure 23(b)(2) and 23(b)(3) of her Title

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VII claims. She sought to certify a class of approximately 1700 female managers in the position of division or department manager (Grade 63) and above who worked or continue to work at Allstate Protection since May 9, 2001. Members of the putative class held 275 different jobs in a hundred offices across the country. Eighty percent of the putative class was employed in entry-level management positions, with the remainder of the class in higher management and officer positions. Plaintiff argued that Allstate has a “strong paternalistic culture” and further that “Allstate Protection’s organizational structure vests all authority to choose, advance and compensate staff in the male-dominated, senior manager ranks.” Pl.’s Class Cert. Mem. 1.
The parties briefed the class certification motion for nearly a year. They offered the opinions of two statisticians, two sociologists, two industrial psychologists, and 84 fact witnesses. Plaintiff’s main expert, Dr. Janice Madden, presented statistical evidence indicating that, from 2001 through 2005,1 women earned substantially lower wages than men did at every salary grade—even after accounting for job code, tenure, and other variables. Plaintiff also presented the expert report of Dr. Cristina G. Banks, an industrial and organizational psychologist, and Dr. Barbara Reskin, a sociologist. Allstate countered with analysis from its own experts, including labor econo-

1 In 2006, Allstate apparently adjusted the earnings levels of women to eliminate observed gender disparities within job codes.

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No. 11-1273

mist Dr. Robert Topel, industrial psychologist Dr. Kathleen K. Lundquist, and sociologist Dr. Christopher Winship.
On January 15, 2009, Magistrate Judge Schenkier denied plaintiff’s motion for class certification. The 42-page opinion discussed the pattern-or-practice claim almost exclusively, mentioning the disparate impact claim in a footnote but providing no separate analysis. Although the court found that the putative class satisfied Rule 23(a)’s numerosity and adequacy requirements, the court found that it failed to satisfy the commonality requirement. The court stressed the heterogeneity of the class members and the individual decisionmakers. The court found plaintiff’s expert reports only minimally probative of commonality and found the declarations to demonstrate a lack of commonality. The court discounted Dr. Madden’s statistical analysis because it included wage differentials that predated the class period (contrary to Ledbetter), because it failed to account for “measures of productivity,” and because it revealed significant variations in the standard deviations between salary grades. The court also determined that plaintiff failed to meet the typicality requirement because the claims and defenses would necessitate individualized inquiries.
The district court concluded that, even if plaintiff could satisfy commonality and typicality, she failed to show that certification was proper under either Rule 23(b)(2) or (b)(3). The court rejected the propriety of a Rule 23(b)(2) class since plaintiff sought primarily money damages. The court also found a Rule 23(b)(3) class to be inappropriate,

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No. 11-1273

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concluding that common issues did not predominate based on the individualized inquiries that would be necessary to determine the reason for each employment action. The court determined that a class action was not the superior means to adjudicate the claim because 1700 individual jury trials would be needed to decide damages, constitutional questions would arise by having different juries examine the liability issue, and the individual class members had sufficiently large stakes to be able to afford to litigate on their own.2
Soon after the district court’s decision, President Obama signed the Ledbetter Act, effectively overruling the Supreme Court’s Ledbetter decision and retroactively reinstating the paycheck accrual rule.
On September 11, 2009, plaintiff moved again for class certification and argued that the court should reconsider the evidence submitted in light of the Ledbetter Act. She substantially narrowed her argument in this motion, arguing only that Allstate’s uniform annual salary review and competitive pay analysis disadvantaged female managers. Although she used the terms “disparate impact” and “pattern-or-practice” to describe her claims in her motion for class certification, her supporting memorandum discussed factual allegations and legal arguments only in support of the pattern-or-practice claim.
On October 8, 2009, Magistrate Judge Schenkier issued an extensive oral decision denying plaintiff’s second

2 Twenty-five members of the putative class later pursued individual claims.

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No. 11-1273

motion for certification. The court acknowledged that plaintiff had made a “genuine effort” to address his concerns but concluded that the renewed motion still failed to satisfy Rule 23. Regarding its commonality concerns, the court criticized Dr. Madden’s analysis for failing to control for all of the variables, failing to consider the influence of performance assessments on salary differences, and failing to control for job location (relevant for looking at the actions of particular supervisors). The court expressed that the significant variations in standard deviations by salary grade suggested that differentiations existed that were not adequately explained by the statistical analysis. The court was not persuaded by plaintiff’s narrowing of the class certification claim to external review of salary decisions because the court found it to be inseparable from internal issues and because Dr. Madden’s analysis had examined both. The court did not address the effect of the Ledbetter Act since unrelated deficiencies convinced the court that plaintiff failed to establish commonality. Although plaintiff eliminated her claim for compensatory damages, the court still determined that the putative class failed to meet Rule 23(b)(2) because backpay would be substantial (possibly $85 million) and because declaratory relief would be only backwards-looking. The court also expressed concern about the lack of an opt-out right. The court likewise found Rule 23(b)(3) to be an inappropriate basis for certification based on its previous concerns about predominance and superiority.
Puffer’s case was then transferred to Magistrate Judge Gilbert. On January 7, 2011, Puffer settled her

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No. 11-1273

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individual claims with Allstate. The court dismissed her case with prejudice, thus making the denials of class certification final and appealable.
Putative class members Karen Pell, Mary Keith, and Gail Howells moved to intervene to appeal the January 15, 2009 and October 8, 2009 denials of class certification. Pell worked for Allstate from 1973 to 1989 and again from 1995 to 2006, in three northeastern states. She briefly worked as a Frontline Performance Leader (Grade 63) before being demoted to a desk position in 2005. Keith worked for Allstate from 1980 to 2009, predominantly in the Finance AOR. She last worked as a Director in Finance (Grade 78). Howells worked for Allstate from 1984 to 2006, primarily in the Distribution AOR in the South West Region. She worked in several Grade 64 management positions. Magistrate Judge Gilbert granted their motion to intervene on January 28, 2011.
Intervenors appeal only the denial of certification for the Title VII disparate impact challenge under Rule 23(a), (b)(3), and (c)(4). They claim that Allstate’s salary administration process, which determines merit increases based on a percentage of base pay and an external market comparison, had a disparate impact on female managers between 2002 and 2005. They do not appeal the denial of class certification as to the pattern-orpractice claim of intentional discrimination, in light of the Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011). They rely on the statistical reports from Dr. Madden, but they do not rely on the report of Dr. Banks, who had stated that bias stems

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from the exercise of discretion and that performance evaluations are not conducted consistently between regions or supervisors, or on the report of Dr. Reskin, who has opined that Allstate has a paternalistic culture and that the exercise of discretion contributes to the systematic disadvantage of the female managers.

II. Discussion
A. Standard of Review
We review the district court’s denial of a motion for class certification for an abuse of discretion, but we review the court’s purely legal determinations de novo. Andrews v. Chevy Chase Bank, 545 F.3d 570, 573 (7th Cir. 2008). A plaintiff who moves for class certification must satisfy the numerosity, commonality, typicality, and adequacy of representation requirements of Rule 23(a), as well as at least one subsection of Rule 23(b). FED. R. CIV. P. 23; see also Arreola v. Godinez, 546 F.3d 788, 797 (7th Cir. 2008).
Intervenors argue for de novo review, contending that the district court applied the wrong standard under Lewis v. City of Chicago, 130 S. Ct. 2191 (2010), and that we should reconsider their claim in light of Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011). In particular, intervenors argue that the district court failed to analyze plaintiff’s disparate impact claim separately from her pattern-or-practice claim. We fully recognize this argument, but, as we explain in the following section, we conclude that the district court’s approach resulted

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from plaintiff’s insufficient presentation of the disparate impact claim.

B. Waiver of Disparate Impact Claim
Allstate contends that plaintiff failed to adequately present a disparate impact claim based on a uniform salary administration policy to the district court such that intervenors are now barred from making such a claim on appeal. After reviewing the motions and memoranda filed by plaintiff, we agree with Allstate that plaintiff did not adequately present her disparate impact claim to the district court. Because plaintiff did not preserve this claim, intervenors may not rely on it as the basis for their appeal. The waived disparate impact claim is the only claim that intervenors appeal, and therefore we must affirm the district court’s denial of certification.

1. Legal Framework
Disparate impact claims require no proof of discriminatory motive and “involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity.” Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977). By contrast, differential treatment claims, also known as disparate treatment claims, require plaintiffs to prove discriminatory motive or intent. See id. at 335-36.
Pattern-or-practice claims, like differential treatment claims, represent a theory of intentional discrimination.

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Council 31, Am. Fed’n of State, Cnty. & Mun. Emps., AFL-CIO v. Ward, 978 F.2d 373, 378 (7th Cir. 1992). Pattern-or-practice claims require a “showing that an employer regularly and purposefully discriminates against a protected group.” Id.; see also King v. Gen. Elec. Co., 960 F.2d 617, 623 (7th Cir. 1992). Plaintiffs must prove that discrimination “was the company’s standard operating procedure—the regular rather than the unusual practice.” Int’l Bhd. of Teamsters, 431 U.S. at 336; see also id. at 360 (“[A]t the liability stage of a pattern-or-practice trial the focus often will not be on individual hiring decisions, but on a pattern of discriminatory decisionmaking.”). As one circuit has observed, “[i]n every instance in which the phrase has been used by the Supreme Court, a ‘pattern or practice’ claim under Title VII refers to a pattern or practice of disparate treatment, rather than disparate impact.” Wessman v. Gittens, 160 F.3d 790, 817 n.20 (1st Cir. 1998); see also Allison v. Citgo Petroleum Corp., 151 F.3d 402, 409 (5th Cir. 1998) (referring to a pattern-or-practice claim as a “systemic disparate treatment theory”). We have referred to a pattern-or-practice case as a “means of proving intentional discrimination [that] is distinct from a disparate impact case, where the plaintiff need not make any showing of the employer’s intent.” Council 31, 978 F.2d at 378.
For disparate impact claims, a plaintiff must establish that a particular employment practice causes a disparate impact on a member of a protected class. 42 U.S.C. § 2000e-2(k); Adams v. City of Chicago, 469 F.3d 609, 613 (7th Cir. 2006). To satisfy this burden, the plaintiff is “responsible for isolating and identifying the specific employments practices that are allegedly responsible for any observed statistical disparities.” Watson v. Fort

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Worth Bank & Trust, 487 U.S. 977, 994 (1988); Bennett v. Roberts, 295 F.3d 687, 698 (7th Cir. 2002). Notably, “it is not enough to simply allege that there is a disparate impact on workers, or point to a generalized policy that leads to such an impact.” Smith v. City of Jackson, 544 U.S. 228, 241 (2005). Failure to identify the specific practice could lead to employers being held liable for “the myriad of innocent causes that may lead to statistical imbalances.” Watson, 487 U.S. at 994. The plaintiff must also establish causation by “offer[ing] statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group.” Id. at 994-95. Only if the plaintiff succeeds in establishing disparate impact does the burden shift to the defendant-employer to demonstrate that the employment practice is “job related for the position in question and consistent with business necessity.” 42 U.S.C. § 2000e-2(k)(1)(A); see also Lewis, 130 S. Ct. at 2198-99. If the employer satisfies this requirement, the burden shifts back to the plaintiff to show that an equally valid and less discriminatory practice was available that the employer refused to use. Adams, 469 F.3d at 613.

2. Intervenors’ Claim on Appeal
After undergoing numerous transformations, intervenors’ claim now asserts that Allstate’s annual award of merit increases based on a percentage of base pay and its external salary comparison policy, although neutral on their face, had a disparate impact on women during the class period. Intervenors claim that undisputed evi-

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dence shows that gender-based disparities in earnings existed at the beginning of the class period and that these two policies failed to eliminate these disparities. With respect to the internal policy, intervenors allege that the award of merit increases based on percentage pay caused female managers to receive smaller increases in terms of actual dollars than similarly situated male managers. With respect to the external policy, intervenors allege that the market analysis compared the average salary by job code to the external market and adjusted where the average salary fell below 10% of the market rate. Intervenors claim that this policy failed to correct gender-based earnings disparities because the average salary was skewed by disproportionately high salaries for men.

3. Waiver Analysis
It is a well-established rule that arguments not raised to the district court are waived on appeal. See Brown v. Auto. Components Holding, LLC, 622 F.3d 685, 691 (7th Cir. 2010); Robyns v. Reliance Standard Life Ins. Co., 130 F.3d 1231, 1238 (7th Cir. 1997). Moreover, even arguments that have been raised may still be waived on appeal if they are underdeveloped, conclusory, or unsupported by law. See United States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1991) (“[P]erfunctory and undeveloped arguments, and arguments that are unsupported by pertinent authority, are waived . . . .”); United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“A skeletal ‘argument,’ really nothing more than an assertion, does not preserve a claim.”). We have also recognized that

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raising an issue in general terms is not sufficient to preserve specific arguments that were not previously presented. See Fednav Int’l Ltd. v. Cont’l Ins. Co., 624 F.3d 834, 841 (7th Cir. 2010). Similarly, we have announced that “[i]t is the parties’ responsibility to allege facts and indicate their relevance under the correct legal standard.” Econ. Folding Box Corp. v. Anchor Frozen Foods Corp., 515 F.3d 718, 721 (7th Cir. 2008) (quoting APS Sports Collectibles, Inc. v. Sports Time, Inc., 299 F.3d 624, 631 (7th Cir. 2002)) (internal quotation marks omitted) (finding waiver where plaintiff argued for reversal based on a ground not presented below). Although plaintiff is not a party to this appeal, intervenors stand in plaintiff’s shoes and can only present arguments that she could have appealed. See Champ v. Siegel Trading Co., 55 F.3d 269, 273-74 (7th Cir. 1995). Because plaintiff neglected to argue the disparate impact theory before the district court, it is waived on appeal.
Plaintiff repeatedly and almost exclusively argued to the district court that she was seeking class certification under a pattern-or-practice theory. Although her complaint alleged both “differential treatment and disparate impact theories of liability,” Am. Compl. ¶ 53, she only provided factual allegations and legal arguments to support her pattern-or-practice claim.3 She did not argue

3 Although the same set of facts can give rise to claims under both intentional and unintentional theories of discrimination, see Int’l Bhd. of Teamsters, 431 U.S. at 335 n.15, plaintiff only used the facts to develop her pattern-or-practice claim. The factual allegations section of plaintiff’s complaint refers to the “pattern-or-practice” of discrimination at Allstate at least
(continued...)

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that Allstate utilized a facially neutral employment policy that resulted in a disparate impact,4 and she did not cite any disparate impact cases.
In her original motion for class certification, plaintiff consistently framed her claim as one of intentional discrimination: “Puffer brings this case as a pattern-or-practice case, and has the prima facie burden of showing that unlawful discrimination based upon sex was the employer’s regular policy.” Pl.’s Class Cert. Mem. 24; see also id. at 1 (“Allstate steered women into these lower-paying, female-dominated jobs.”). Plaintiff emphasized that “the disparities in job assignment and compensation result from the strong paternalistic culture at Allstate.” Id. at 1. She argued that the “organizational structure vests all authority to choose, advance and compensate staff in the male-dominated, senior manager ranks” and that the “employment policies allow management to apply their own subjective views, without explanation or accountability, of whom to promote or develop.” Id. Plaintiff referred to her case as a “pattern-or-practice” case repeatedly when arguing that her proposed class satisfies the commonality, predominance, and superiority requirements of Rule 23. See, e.g., id. at 24, 26 (“[C]lass-wide proceedings would defini-

3 (...continued) eight times but refers not once to “disparate impact.” Am. Compl. ¶¶ 4, 5, 6, 12, 15, 18, 26, 35.
4 To the contrary, plaintiff argued that Allstate’s compensation policies were not gender neutral. Pl.’s Corr. Second Class Cert. Mem. 7, 12, 18.

Case: 1:04-cv-05764 Document #: 351 Filed: 04/18/12 Page 19 of 22 PageID #:8826 Case: 11-1273 Document: 00711743728 Filed: 04/18/2012 Pages: 22

No. 11-1273

19

tively settle the common pattern-or-practice issue.”), 2729; Pl.’s Class Cert. Reply 25-26. But plaintiff’s first class certification motion and memorandum are void of any allegations related to a theory of unintentional discrimination, which is the only theory that intervenors raise on appeal.5
Similarly, in her second motion for class certification, plaintiff asserted in one sentence that she was alleging both disparate impact and differential treatment claims,6 but she failed to support this bare and conclusory assertion. In the memorandum, she focused her allegations on Allstate’s uniform compensation policies, but she nowhere labeled this claim as a disparate impact claim and she nowhere cited to disparate impact case law. Instead, she repeatedly characterized her claim as a patternor-practice claim, see, e.g., Pl.’s Corr. Second Class Cert.

5 In responding to Allstate’s waiver argument, intervenors do not direct our attention to any disparate impact arguments made by plaintiff in support of her first motion for class certification. See Intervenors’ Reply 22-23.
6 Allstate asserts incorrectly in its brief that the phrase “disparate impact” does not appear a single time in plaintiff’s second motion for class certification. The motion states: “Plaintiff alleges, among other things, that Allstate engaged in a pattern or practice of intentional gender discrimination and employed compensation policies and practices that had a disparate impact on women managers . . . .” Pl.’s Corr. Second Mot. Class Cert. 2 (emphasis added). Notwithstanding Allstate’s erroneous assertion, plaintiff’s singular reference to “disparate impact” is not sufficient to preserve this theory of liability for appeal. See Berkowitz, 927 F.2d at 1384.

Case: 1:04-cv-05764 Document #: 351 Filed: 04/18/12 Page 20 of 22 PageID #:8827 Case: 11-1273 Document: 00711743728 Filed: 04/18/2012 Pages: 22

20

No. 11-1273

Mem. at 12-18, and she relied on cases that exclusively discuss intentional discrimination. See, e.g., id. at 17.
The district court acknowledged that plaintiff alleged both disparate treatment and disparate impact claims in her complaint, and the court briefly addressed the legal distinctions between these two claims. The district court, however, almost exclusively analyzed plaintiff’s disparate treatment claim. The district court did not distinguish the intentional and unintentional discrimination theories when finding a lack of commonality and predominance. The court stated that the proposed class members would need to prove the individualized issue of discriminatory motive, even though the court had noted elsewhere that “motive is irrelevant” in disparate impact claims and that business necessity—a non-individualized issue—is the only defense available to rebut a prima facie disparate impact claim. The minimal attention that the district court gave to plaintiff’s disparate impact claim can be directly attributed to the scant support that plaintiff provided for this claim. Plaintiff only sufficiently developed her claim of intentional discrimination—thus, this is the only claim that the district court fully addressed and the only claim that is preserved for appeal.
In Pond v. Michelin North America, Inc., we determined that plaintiff had waived her disparate impact argument because her reliance on the McDonnell Douglas framework in her briefing demonstrated that she was raising solely a claim of disparate treatment. 183 F.3d 592, 597 (7th Cir. 1999). We found her two references to support in the record to be insufficient, stating that

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No. 11-1273

21

“[a]rguments not raised in district court are waived on appeal, as are arguments raised in a conclusory or underdeveloped manner.” Id. (citation omitted). The present case is analogous: plaintiff repeatedly labeled her case as a pattern-or-practice case, and intervenors are unable to point to any factual or legal support that plaintiff raised in support of a disparate impact claim. The few bare assertions are simply not enough. While we recognize the difficulty presented by shifting legal doctrine, intervenors still “cannot change course on appeal to raise an argument different than the one presented to the district court.” MMG Fin. Corp. v. Midwest Amusements Park, LLC, 630 F.3d 651, 659 (7th Cir. 2010). Plaintiff did not meaningfully develop an argument seeking certification based on a disparate impact theory of liability. See Econ. Folding Box Corp., 515 F.3d at 72021. We therefore conclude that intervenors’ disparate impact claim is waived.7

7 Even if we had not found the disparate impact claim to be waived, this claim would fall short on its merits. Intervenors bear the burden of establishing “a causal connection between the employment practice and the statistical disparity, offering ‘statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotion because of their member in a protected group.’ ” Bennett, 295 F.3d at 698 (quoting Vitug v. Multistate Tax Comm’n, 88 F.3d 506, 513 (7th Cir. 1996)). They have not met this burden, nor have they established that their proposed class satisfies Rule 23.
(continued...)

Case: 1:04-cv-05764 Document #: 351 Filed: 04/18/12 Page 22 of 22 PageID #:8829 Case: 11-1273 Document: 00711743728 Filed: 04/18/2012 Pages: 22

22

No. 11-1273

III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the district court.

7 (...continued) The record does not support intervenors’ claim that
Allstate’s compensation policies are uniformly applied and cause gender-based earning disparities. Intervenors present us with the same expert testimony and record evidence that plaintiff previously presented when arguing that Allstate’s salary decisions are decentralized, discretionary, and partially based on subjective criteria. Intervenors have not established that Allstate adheres to a uniform salary administration policy. More importantly, intervenors have not established that the merit increase and market comparison policies are the cause of the earnings disparities, as opposed to any of the other policies that were alleged originally and that the experts determined to be causes of the disparity. Furthermore, because intervenors rely on the same report from Dr. Madden that the district court criticized, they run into similar difficulties satisfying the commonality and predominance requirements. For example, Dr. Madden did not consider all relevant variables in one regression, nor did she analyze whether variations in performance levels could explain variations in earnings. Moreover, individual issues would certainly predominate at the damages phase. Bifurcation of the liability and damages phases under Rule 23(c)(4) would not resolve this concern because intervenors have not established that a uniform policy caused the disparity.
3-27-12

 
 Case: 1:04-cv-5764 As of: 09/25/2012 11:17 AM CDT 1 of 30
GILBERT,PROTO,TERMED
United States District Court Northern District of Illinois − CM/ECF LIVE, Ver 5.0.3 (Chicago)
CIVIL DOCKET FOR CASE #: 1:04−cv−05764

Puffer v. Allstate Ins Co Assigned to: Honorable Jeffrey T. Gilbert Demand: $0 Case in other court: 11−01273 Cause: 42:2000e Job Discrimination (Employment)
Plaintiff

Date Filed: 09/02/2004 Date Terminated: 01/07/2011 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Katherine Puffer on behalf of herself and all others similarly situated

represented by Mary Stowell Stowell &Friedman, Ltd. 303 W. Madison Suite 2600 Chicago, IL 60606 312−431−0888 Email: mstowell@sfltd.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Bryan Wood The Law Office of J. Bryan Wood 53 West Jackson Boulevard Suite 660 Chicago, IL 60622 312−545−1420 Fax: 312−577−0749 Email: bryan@jbryanwoodlaw.com TERMINATED: 09/14/2007

Johanna J. Raimond Law Offices of Johanna J. Raimond Ltd. 415 S. Dearborn St. #1002 Chicago, IL 60605 (312) 235−6959 Email: jraimond@raimondlaw.com ATTORNEY TO BE NOTICED

Linda Debra Friedman Stowell &Friedman, Ltd. 303 W. Madison Street Suite 2600 Chicago, IL 60606 312−431−0888 Fax: 312−431−0228 Email: lfriedman@sfltd.com ATTORNEY TO BE NOTICED

Michael M. Mulder Meites, Mulder &Glink 321 S. Plymouth Court Suite 1250 Chicago, IL 60604 (312) 263−0272 Fax: (312) 263−2942 Email: mmmulder@mmmglaw.com ATTORNEY TO BE NOTICED

Patricia Ann Bronte Bronte Law LLC

Case: 1:04-cv-5764 As of: 09/25/2012 11:17 AM CDT 2 of 30
915 W. Gunnison St. Suite 3 Chicago, IL 60640 (312) 388−7890 Fax: 312−431−0228 Email: bronte@brontelaw.com ATTORNEY TO BE NOTICED
Paul William Mollica Outten &Golden 20 S. Clark Street # 1500 Chicago, IL 60603 (312) 263−0272 Email: pwmollica@outtengolden.com TERMINATED: 03/04/2011
Rafael Eduardo Lazaro Lazaro Law Group 321 S. Plymouth Court Suite 1400 Chicago, IL 60604 (773) 655−7011 Fax: (312) 431−0228 Email: rafalazaro1@gmail.com ATTORNEY TO BE NOTICED
Richard E Russell Stowell &Friedman, Ltd. 321 South Plymouth Court Suite 1400 Chicago, IL 60604 312−431−0888
Shona B. Glink Stowell &Friedman, Ltd. 303 W. Madison St. Suite 2600 Chicago, IL 60606 (312) 263−0272 Email: sglink@sfltd.com ATTORNEY TO BE NOTICED
Suzanne E. Bish Stowell &Friedman, Ltd. 321 South Plymouth Court Suite 1400 Chicago, IL 60604 312−431−0888 Email: sbish@sfltd.com ATTORNEY TO BE NOTICED
Thomas R. Meites Meites, Mulder &Glink 321 S. Plymouth Ct., Suite 1250 Chicago, IL 60604 (312) 263−0272 Fax: (312) 263−2942 Email: tmeites@mmmglaw.com ATTORNEY TO BE NOTICED
V.
Defendant

Case: 1:04-cv-5764 As of: 09/25/2012 11:17 AM CDT 3 of 30

Allstate Insurance Company

represented by Richard Cartier Godfrey Kirkland &Ellis LLP 300 North LaSalle Street Chicago, IL 60654 (312)862−2000 Email: richard.godfrey@kirkland.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Former AUSA United States Attorney's Office (NDIL) 219 South Dearborn Street Suite 500 Chicago, IL 60604 Email: USAILN.ECFFormerAUSA@usdoj.gov ATTORNEY TO BE NOTICED

Anneliese Wermuth Meckler, Bulger Tilson Marick &Pearson LLP 123 North Wacker Drive Suite 1800 Chicago, IL 60606 (312)474−7900 Email: anna.wermuth@mbtlaw.com ATTORNEY TO BE NOTICED

Bredale Rucker Kirkland &Ellis LLP 300 North LaSalle Street Chicago, IL 60654 312 861 2000 Email: brucker@kirkland.com ATTORNEY TO BE NOTICED

Brian Wegg Bulger Meckler, Bulger &Tilson 123 North Wacker Drive Suite 1800 Chicago, IL 60606 (312)474−7900 Email: brian.bulger@mbtlaw.com ATTORNEY TO BE NOTICED

Donna M. Welch Kirkland &Ellis LLP 300 North LaSalle Street Chicago, IL 60654 (312) 862−2000 Fax: (312) 862−2200 Email: dwelch@kirkland.com ATTORNEY TO BE NOTICED

Eileen Elizabeth Baker Meckler, Bulger &Tilson 123 North Wacker Drive Suite 1800 Chicago, IL 60606 (312)474−7900 Email: eileen.baker@mbtlaw.com ATTORNEY TO BE NOTICED

Julie Lynn Trester Meckler Bulger Tilson Marick &Pearson LLP

Case: 1:04-cv-5764 As of: 09/25/2012 11:17 AM CDT 4 of 30
123 North Wacker Drive Suite 1800 Chicago, IL 60606 (312)474−7900 Email: julie.trester@mbtlaw.com ATTORNEY TO BE NOTICED
Katheleen A Ehrhart Kirkland &Ellis LLP 300 North LaSalle Street Chicago, IL 60654 (312)862−2000 Email: katheleen.ehrhart@kirkland.com ATTORNEY TO BE NOTICED
Khara Coleman Washington 2335 Leclaire Street Davenport, IO 52803 (563)209−3681 Fax: 312−862−2200 Email: khara.coleman@kirkland.com TERMINATED: 07/08/2009
Paul R. Garry Meckler, Bulger &Tilson 123 North Wacker Drive Suite 1800 Chicago, IL 60606 (312)474−7900 Email: paul.garry@mbtlaw.com ATTORNEY TO BE NOTICED
Rachel L Perrier Kirkland &Ellis LLP 300 North LaSalle Street Chicago, IL 60654 (312)862−2000 Fax: (312) 861−2200 Email: rperrier@kirkland.com ATTORNEY TO BE NOTICED
Sallie Gamble Smylie Kirkland &Ellis LLP 300 North LaSalle Street Chicago, IL 60654 (312)862−2000 Fax: (312)862−2200 Email: ssmylie@kirkland.com ATTORNEY TO BE NOTICED
Thomas E. Dutton Greenberg Traurig 77 West Wacker Drive Suite 3100 Chicago, IL 60601 (312) 456−8000 Email: duttont@gtlaw.com ATTORNEY TO BE NOTICED
Wendy Lynn Bloom Kirkland &Ellis LLP 300 North LaSalle Street Chicago, IL 60654 (312)862−2000 Email: wbloom@kirkland.com

Case: 1:04-cv-5764 As of: 09/25/2012 11:17 AM CDT 5 of 30

ATTORNEY TO BE NOTICED

Intervenor Plaintiff Karen Pell

represented by Shona B. Glink (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Plaintiff Mary Keith

represented by Shona B. Glink (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Plaintiff Gail Howells

represented by Shona B. Glink (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/02/2004 09/02/2004 09/17/2004 10/21/2004
10/25/2004 11/15/2004 11/19/2004 11/19/2004 11/23/2004
11/23/2004
11/24/2004

# Docket Text
1 COMPLAINT; jury demand − Civil cover sheet − Appearance(s) of Linda Debra Friedman, Mary Stowell as attorney(s) for plaintiff (no summons issued.) (Documents: (1−1 through 1−3)) (rbf) (Entered: 09/02/2004)
RECEIPT regarding payment of filing fee paid; on 9/2/04 in the amount of $150.00, receipt #10216326. (rbf) (Entered: 09/02/2004)
SCHEDULE set on 9/17/04 by Hon. George W. Lindberg : Status hearing set for November 3, 2004 at 11:00a.m. Mailed notice (slb) (Entered: 09/17/2004)
2 MINUTE ORDER of 10/21/04 by Hon. George W. Lindberg : Status hearing re−set for 11/10/04 at 9:30 a.m. Due to the unavailability of the Court, the status hearing previously scheduled for 11/3/04 is stricken. Mailed notice (eav) (Entered: 10/22/2004)
SCHEDULE set on 10/25/04 by Hon. George W. Lindberg : By agreement of the parties, the status hearing date of November 10, 2004 is stricken. Status hearing set for December 1, 2004 at 11:00a.m. Mailed notice (slb) (Entered: 10/25/2004)
SCHEDULE set on 11/15/04 by Hon. George W. Lindberg : Status hearing reset to December 1, 2004 at 9:00a.m. Mailed notice (slb) (Entered: 11/15/2004)
3 ATTORNEY APPEARANCE for defendant Allstate Ins Co by Richard Cartier Godfrey, Thomas E. Dutton, Sallie Gamble Smylie, Valarie Hays, Donna M. Welch (3−1 through 3−2) (eav) (Entered: 11/22/2004)
4 ATTORNEY APPEARANCE for defendant Allstate Ins Co by Paul R. Garry, Anneliese Wermuth; Notice of filing (eav) (Entered: 11/22/2004)
5 MOTION by defendant Allstate Ins Co to dismiss Counts I and IV of the complaint , Motion for judgment in its favor , or in the alternative to strike the class allegations , and Motion to strike portions of the complaint (Attachments); Notice of motion (eav) (Entered: 11/24/2004)
6 MINUTE ORDER of 11/23/04 by Hon. George W. Lindberg : Hearing reset to 12/1/04 at 9:00 a.m. on defendant Allstate's motion to dismiss counts I and IV of the complaint [5−1], motion for judgment in its favor [5−2] or in the alternative to strike the class allegations [5−3], and motion to strike portions of the complaint [5−4]. Mailed notice (eav) (Entered: 11/24/2004)
7 MINUTE ORDER of 11/24/04 by Hon. George W. Lindberg : Defendant is granted leave to file a memorandum of law in support of its motion on or before 12/8/04. Plaintiff's response must be filed on or before 12/23/04. Defendant's reply

Case: 1:04-cv-5764 As of: 09/25/2012 11:17 AM CDT 6 of 30

12/01/2004
12/07/2004 12/07/2004 12/08/2004
12/09/2004 12/17/2004 12/23/2004 12/23/2004 12/28/2004 01/10/2005 01/11/2005 01/11/2005 01/11/2005 01/11/2005
01/14/2005
01/14/2005 02/07/2005

must be filed on or before 1/6/05. Ruling set for 2/9/05 at 10:30 a.m. Mailed notice (eav) (Entered: 11/29/2004)
8 MINUTE ORDER of 12/1/04 by Hon. George W. Lindberg : Status hearing held and continued to 1/5/05 at 9:30 a.m. Trial set for 7/11/05 at 10:00 a.m. Discovery cutoff set for 4/6/05. Motion for summary judgment due 4/13/05. Response to the motion for summary judgment due 4/27/05. [5−2] Reply due 5/4/05. Ruling set for 6/15/05 at 10:30 a.m. Proposed final pretrial order to be submitted to chambers on 6/22/05 at 10:00 a.m. Mailed notice (eav) (Entered: 12/03/2004)
10 UNOPPOSED MOTION by plaintiff for leave to file additional appearance instanter ; Notice. (jmm) (Entered: 12/16/2004)
12 ATTORNEY APPEARANCE for plaintiff by James Bryan Wood, Suzanne E. Bish, Richard E Russell, Thomas R. Meites, Michael M. Mulder, Paul William Mollica, Johanna Josie Raimond. (jmm) (Entered: 12/16/2004)
9 MEMORANDUM by defendant Allstate Ins Co in support of its motion to dismiss Counts I and IV of the complaint [5−1], motion for judgment in its favor [5−2] or in the alternative to strike the class allegations [5−3] and motion to strike portions of the complaint [5−4] (Attachments) (eav) (Entered: 12/09/2004)
11 MINUTE ORDER of 12/9/04 by Hon. George W. Lindberg: Plaintiff's unopposed motion for leave to file additional appearance instanter is granted [10−1]. Mailed notice (jmm) (Entered: 12/16/2004)
SCHEDULE set on 12/17/04 by Hon. George W. Lindberg : Status hearing reset to January 12, 2005 at 9:00a.m. Mailed notice (slb) (Entered: 12/17/2004)
13 FIRST AMENDED COMPLAINT [1−1] by plaintiff Katherine Puffer; Notice (rmm) (Entered: 12/27/2004)
14 JOINT MOTION by plaintiff, defendant to vacate briefing schedule on defendant's motion to dismiss as moot ; Notice. (gma) (Entered: 12/28/2004)
15 MINUTE ORDER of 12/28/04 by Hon. George W. Lindberg: Parties joint motion to vacate briefing schedule on defendant's motion to dismiss as moot is granted [14−1]. Mailed notice (gma) (Entered: 12/28/2004)
17 CONSENT by plaintiff Katherine Puffer to exercise of jurisdiction by a United States Magistrate Judge. (eav) (Entered: 01/13/2005)
SCHEDULE set on 1/11/05 by Hon. George W. Lindberg : Status hearing date stricken No notice (slb) (Entered: 01/11/2005)
16 NOTICE by defendant of filing regarding consent to exercise of jurisdiction by a U.S. Magistrate Judge. (emd) (Entered: 01/11/2005)
18 CONSENT by defendant Allstate Ins Co to exercise of jurisdiction by a United States Magistrate Judge; Notice of filing (eav) (Entered: 01/13/2005)
19 REASSIGNMENT ORDER of 1/11/05 This case is reassigned to the Honorable Magistrate Judge Michael T. Mason from the Hon. Judge George W. Lindberg pursuant to Local Rule 73.1. (For further details see reverse of order.) Mailed notice (eav) (Entered: 01/13/2005)
SCHEDULE set on 1/14/05 by Honorable Michael T. Mason: This matter having been reassigned to Magistrate Judge Mason, an initial status hearing is set for 2/10/05 at 9:00 a.m. in courtroom 2214. The parties shall deliver a file−stamped courtesy copy of an initial status report providing the information required by the enclosed Order Setting Initial Status Report to the courtroom deputy, room 2220, by 2/7/05. Mailed notice (kef) (Entered: 01/14/2005)
20 ANSWER to Puffer's first amended complaint by Allstate Insurance Company(eav, ) (Entered: 01/19/2005)
21 INITIAL status report by parties upon consent to magistrate (las, ) (Entered: 02/09/2005)

Case: 1:04-cv-5764 As of: 09/25/2012 11:17 AM CDT 7 of 30

02/10/2005 02/11/2005
03/22/2005 03/30/2005 04/21/2005 07/08/2005 07/14/2005 07/14/2005
07/15/2005 07/15/2005 07/21/2005
11/16/2005 12/06/2005 01/06/2006 01/06/2006 01/11/2006

22 MINUTE entry before Judge Michael T. Mason : Status hearing held on 2/10/2005. No notice (kef, ) (Entered: 02/10/2005)
23 EXECUTIVE COMMITTEE ORDER: Case reassigned to Magistrate Judge Sidney I. Schenkier from Magistrate Judge Michael T. Mason for all further proceedings pursuant to IOP 13(F2(a) and IOP 13(F)2(b). Signed by Judge Executive Committee on 2/11/05. (eav, ) (Entered: 02/14/2005)
24 MINUTE entry before Judge Sidney I. Schenkier : Status hearing set for 3/31/2005 at 09:00 AM. Telephone and mail notice (mmm, ) (Entered: 03/22/2005)
25 MINUTE entry before Judge Sidney I. Schenkier : Status hearing reset for 4/21/2005 at 09:00 AM. Telephone and mail notice (mmm, ) (Entered: 03/30/2005)
26 MINUTE entry before Judge Sidney I. Schenkier : Magistrate Judge Status hearing held and continued to 7/12/2005 at 09:00 AM. Mailed notice (mmm, ) (Entered: 04/21/2005)
27 MINUTE entry before Judge Sidney I. Schenkier : Status hearing reset for 7/21/2005 at 09:00 AM. Pursuant to the parties' request, the status hearing set for 7/12/05 is stricken. Telephone and mail notice (mmm, ) (Entered: 07/08/2005)
28 AGREED MOTION by Defendant Allstate Insurance Company for entry of agreed protective order (gma, ) (Entered: 07/14/2005)
29 NOTICE of Motion by Anneliese Wermuth for presentment of AGREED MOTION by Defendant Allstate Insurance Company for entry of agreed protective order r 28 before Honorable Sidney I. Schenkier on 7/21/2005 at 08:30 AM. (gma, ) (Entered: 07/14/2005)
30 MINUTE entry before Judge Sidney I. Schenkier : Defendant's agreed motion for protective order doc. # 28 is granted. Enter the agreed protective order as revised by the Court. Mailed notice (eav, ) (Entered: 07/19/2005)
31 PROTECTIVE Order Signed by Judge Sidney I. Schenkier on 7/15/2005:Mailed notice(eav, ) (Entered: 07/19/2005)
32 MINUTE entry before Judge Sidney I. Schenkier : Status hearing held and continued to 11/16/05 at 9:00 a.m. The Court adopts the parties' proposed class discovery schedule. All non−retained expert fact discovery for class certification is to be completed by 1/25/06. The plaintiff shall disclose experts and submit Rule 26(a)(2) reports on class certification by 2/6/06. The defendant shall disclose experts and submit Rule 26(a)(2) reports on class certification by 4/6/06. No expert depositions are to be taken before all expert reports are submitted. The depositions of all experts with regard to class certification are to be completed by 6/5/06. Mailed notice (eav, ) (Entered: 07/22/2005)
33 MINUTE entry before Judge Sidney I. Schenkier : Status hearing set for 12/6/2005 at 09:00 AM. Mail notice (mmm, ) (Entered: 11/16/2005)
34 MINUTE entry before Judge Sidney I. Schenkier : Magistrate Judge Status hearing held and continued 1/17/2006 at 09:00 AM. Mailed notice (mmm, ) (Entered: 12/07/2005)
35 MOTION by Plaintiff Katherine Puffer, Defendant Allstate Insurance Company for extension of time to conduct class discovery (Wood, James) (Entered: 01/06/2006)
36 Joint NOTICE of Motion by James Bryan Wood for presentment of motion for extension of time 35 before Honorable Sidney I. Schenkier on 1/11/2006 at 08:30 AM. (Wood, James) (Entered: 01/06/2006)
37 MINUTE entry before Judge Sidney I. Schenkier : Motion hearing held. Joint motion for extension of time for discovery on class certification 35 is granted. All non−retained expert fact discovery with regard to class certification is to be completed by 3/27/06. The plaintiff shall disclose experts and submit Rule 26(a)(2) reports with regard to class certification by 4/28/06. The defendant shall disclose experts and submit Rule 26(a)(2) reports with regard to class certification by 6/2/06. No expert depositions are to be taken before all expert reports are submitted. The depositions of all experts, with regard to class certification, are to

Case: 1:04-cv-5764 As of: 09/25/2012 11:17 AM CDT 8 of 30

02/15/2006 02/21/2006 02/23/2006 02/24/2006
02/28/2006
03/03/2006 03/03/2006 03/08/2006 03/29/2006 05/02/2006 06/14/2006 06/14/2006 06/15/2006 09/05/2006 09/25/2006 09/28/2006 10/02/2006 10/02/2006

be completed by 7/21/06. Status hearing held and continued to 2/21/06 at 9:00 a.m. The status hearing set for 1/17/06 is stricken. Mailed notice (mmm, ) (Entered: 01/11/2006)
38 ATTORNEY Appearance for Defendant Allstate Insurance Company by Brian Wegg Bulger (Bulger, Brian) (Entered: 02/15/2006)
39 MINUTE entry before Judge Sidney I. Schenkier : Magistrate Judge Status hearing held and continued to 3/23/2006 at 09:00 a.m. Mailed notices (gcy, ) (Entered: 02/22/2006)
40 NOTICE by Johanna Josie Raimond of Change of Address (Raimond, Johanna) (Entered: 02/23/2006)
41 MINUTE entry before Judge Sidney I. Schenkier : Telephone status conference held. At the joint request of the parties, the discovery schedule is suspended in order to permit the parties to engage in settlement negotiations with the assistance of a private mediator. The matter is set for a status conference on 03/29/06 at 9:00 a.m. for a report on the settlement negotiations; the status conference previously set for 03/23/06 is stricken. Mailed notice (mmm, ) (Entered: 02/24/2006)
42 MINUTE entry before Judge Sidney I. Schenkier : Telephone status conference held. At the joint request of the parties, the discovery schedule is suspended. The status conference previously set for 03/23/06 is stricken and reset to 3/29/06 at 9:00 a.m. (mmm, ) (Entered: 02/28/2006)
43 MOTION by Plaintiff Katherine Puffer to withdraw as attorney (Raimond, Johanna) (Entered: 03/03/2006)
44 NOTICE of Motion by Johanna Josie Raimond for presentment of motion to withdraw as attorney 43 before Honorable Sidney I. Schenkier on 3/8/2006 at 08:30 AM. (Raimond, Johanna) (Entered: 03/03/2006)
45 MINUTE entry before Judge Sidney I. Schenkier : Johanna Raimond's motion to withdraw as counsel for plaintiff 43 is granted. Telephone notice (mmm, ) (Entered: 03/08/2006)
46 MINUTE entry before Judge Sidney I. Schenkier : Status hearing held and continued to 5/2/2006 at 09:00 AM. Mailed notice (mmm, ) (Entered: 03/29/2006)
47 MINUTE entry before Judge Sidney I. Schenkier : Status hearing held and continued to 6/15/06 at 09:00 AM. Mailed notice (mmm, ) (Entered: 05/02/2006)
48 TRANSCRIPT of proceedings for the following dates: 4/21/05, 7/21/05, 12/6/05, 1/11/06, 2/21/06; Before the Honorable Sidney I. Schenkier. (Documents 48−1 through 48−5) (lcw, ) (Entered: 06/15/2006)
49 TRANSCRIPT of proceedings for the following dates: 02/10/05; Before the Honorable Michael T. Mason. (lcw, ) (Entered: 06/15/2006)
50 MINUTE entry before Judge Sidney I. Schenkier : Status hearing held and continued to 9/6/2006 at 09:00 AM. Mailed notice (mmm, ) (Entered: 06/16/2006)
51 MINUTE entry before Judge Sidney I. Schenkier : By agreement of the parties, the status conference set for 09/06/06 is reset for 10/4/2006 at 09:00 a.m. Mailed notice (cdy, ) (Entered: 09/07/2006)
52 ATTORNEY Appearance for Defendant Allstate Insurance Company by Khara Aisha Ashanti Coleman (Coleman, Khara) (Entered: 09/25/2006)
53 MINUTE entry before Judge Sidney I. Schenkier : The status hearing set for 10/4/2006 at 9:00 a.m. is reset to 10/4/06 at 08:30 AM. Telephone notice (mmm, ) (Entered: 09/28/2006)
54 ATTORNEY Appearance for Defendant Allstate Insurance Company by Rachel L Perrier (Perrier, Rachel) (Entered: 10/02/2006)
55 MINUTE entry before Judge Sidney I. Schenkier : The parties' oral motion to reset the 10/4/06 status hearing to 10/17/06 at 9:00 is granted. Mailed notice (mmm, )

Case: 1:04-cv-5764 As of: 09/25/2012 11:17 AM CDT 9 of 30

10/17/2006 11/02/2006
11/17/2006 11/17/2006 11/21/2006 12/19/2006 12/19/2006 12/20/2006
02/22/2007 03/09/2007 03/09/2007
03/09/2007 03/09/2007 03/12/2007 03/14/2007
04/17/2007

(Entered: 10/02/2006)
56 MINUTE entry before Judge Sidney I. Schenkier : Pursuant to the parties' request, the status hearing set for 10/17/06 is stricken and reset for 11/2/2006 at 09:00 AM. Telephone notice (mmm, ) (Entered: 10/17/2006)
57 MINUTE entry before Judge Sidney I. Schenkier : Status hearing held and continued to 11/21/2006 at 09:00 AM. By 11/17/06, the parties are to submit to the Court their proposed discovery schedule. Mailed notice (mmm, ) (Entered: 11/02/2006)
58 STATUS Report of November 17, 2006 by Katherine Puffer, Allstate Insurance Company (Friedman, Linda) (Entered: 11/17/2006)
59 NOTICE by Katherine Puffer re status report 58 of November 17, 2006 (Friedman, Linda) (Entered: 11/17/2006)
60 MINUTE entry before Judge Sidney I. Schenkier : Status hearing held and continued to 12/20/2006 at 09:00 AM. Mailed notice (mmm, ) (Entered: 11/21/2006)
61 STATUS Report Parties' Joint December 19, 2006 by Katherine Puffer (Stowell, Mary) (Entered: 12/19/2006)
62 NOTICE by all plaintiffs re status report 61 Notice of Filing of Parties' Joint December 19 2006 Status Report (Stowell, Mary) (Entered: 12/19/2006)
63 MINUTE entry before Judge Sidney I. Schenkier : Status hearing held and continued to 2/22/2007 at 9:00 am. All non−expert fact class discovery shall be completed by 4/27/2007. Plaintiff shall comply with FRCP 26(a)(2) with respect to class issues by 6/21/2007. Defendant shall comply with FRCP 26(a)(2) with respect to class issues by 7/28/2007. All expert depositions with respect to class issues shall be completed by 9/3/2007.Advised in open court (jms, ) (Entered: 12/20/2006)
64 MINUTE entry before Judge Sidney I. Schenkier : Status hearing held and continued to 3/29/2007 at 09:00 AM.Mailed notice (mmm, ) (Entered: 02/23/2007)
65 MOTION by Plaintiff Katherine Puffer to compel Regarding Succession Planning Redactions and Data, Harassment Complaints &E−Mail (Wood, James) (Entered: 03/09/2007)
66 MEMORANDUM by Katherine Puffer in support of motion to compel 65 Regarding Succession Planning Redactions and Data, Harassment Complaints &E−Mail (Attachments: # 1 Appendix Unpublished decisions)(Wood, James) (Entered: 03/09/2007)
67 NOTICE of Motion by James Bryan Wood for presentment of motion to compel 65 before Honorable Sidney I. Schenkier on 3/14/2007 at 08:30 AM. (Wood, James) (Entered: 03/09/2007)
68 EXHIBITS by Plaintiff Katherine Puffer in support of her MOTION to compel regarding succession planning redactions and data, harassment complaints &e−mails 65 (RESTRICTED). (cdy, ) (Entered: 03/12/2007)
69 ATTORNEY Appearance for Plaintiff Katherine Puffer by Shona B. Glink Shona B. Glink Attorney Appearance (Glink, Shona) (Entered: 03/12/2007)
70 MINUTE entry before Judge Sidney I. Schenkier : Motion hearing held. For the reasons stated on the record in open court, plaintiff's motion to compelregarding succession planning redactions and data, harassment complaints, and e−mails (doc. # 65) is grantedin part and denied in part as stated below. The status hearing set for 03/29/07 is reset to 04/18/07 at 9:00 a.m. Mailed notice (cdy, ) (Entered: 03/16/2007)
71 MOTION by Plaintiff Katherine Puffer for order Under Rule 23(d) (Attachments: # 1 Exhibit 1. Letters of Counsel)(Mollica, Paul) (Entered: 04/17/2007)

Case: 1:04-cv-5764 As of: 09/25/2012 11:17 AM CDT 10 of 30

04/17/2007 04/18/2007
05/02/2007 05/09/2007 05/09/2007 05/12/2007
05/12/2007 05/15/2007 05/25/2007 05/29/2007 05/30/2007 05/31/2007 06/07/2007 06/13/2007

72 NOTICE of Motion by Paul William Mollica for presentment of motion for order 71 before Honorable Sidney I. Schenkier on 4/19/2007 at 08:30 AM. (Mollica, Paul) (Entered: 04/17/2007)
73 MINUTE entry before Judge Sidney I. Schenkier :Magistrate Judge Status hearing held on 4/18/2007. Briefing schedule as to motion of Katherine Puffer for order Under Rule 23(d) 71 is set as follows: response due by 5/2/2007; reply due by 5/11/2007.Status hearing set for 5/10/2007 at 9:00 AM.Mailed notice (tlp, ) (Entered: 04/18/2007)
74 RESPONSE by Allstate Insurance Companyin Opposition to MOTION by Plaintiff Katherine Puffer for order Under Rule 23(d) 71 (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E)(Welch, Donna) (Entered: 05/02/2007)
75 MINUTE entry before Judge Sidney I. Schenkier : The status conference set for 05/10/07 is RESET to 05/31/07 at 9:00 a.m. The date for filing the joint status report is RESET to 05/30/07. Telephone notice (mmm, ) (Entered: 05/09/2007)
78 MINUTE entry before Judge Sidney I. Schenkier : Settlement conference held. The matter is set for a telephone status conference on 05/11/07 at 2:00 p.m. (mmm, ) (Entered: 05/14/2007)
76 REPLY by Katherine Puffer to MOTION by Plaintiff Katherine Puffer for order Under Rule 23(d) 71 Reply in Support of Motion (Attachments: # 1 Exhibit 1 − Unpublished Authority# 2 Exhibit 2 − Organizational Chart# 3 Exhibit 3 − Wilson Dep Excerpts (per 26.2(d))# 4 Exhibit 4 − Pufer Dep Excerpts# 5 Exhibit 5 − Rizzo Dep Exceprts# 6 Exhibit 6 − Crockett Dep Excerpts (per LR 26.2(d))# 7 Exhibit 7 − Harty Dep Excerpts# 8 Exhibit 8 − Product Operations Documents (per LR 26.2(d))# 9 Exhibit 9 − HR Manual Excerpts (per LR 26.2(d))# 10 Exhibit 10 − HR Manual Excerpts (per LR 26.2(d))# 11 Exhibit 11 − Salary Administration Life Cycle (per LR 26.2(d))# 12 Exhibit 12 − From Salary Grades to Broadbands (per LR 26.2(d))# 13 Exhibit 13 − Mueller Deposition Excerpts)(Mollica, Paul) (Entered: 05/12/2007)
77 NOTICE by Katherine Puffer re reply to response to motion,,, 76 for Order Under Rule 23(d) (Mollica, Paul) (Entered: 05/12/2007)
79 MINUTE entry before Judge Sidney I. Schenkier : Docket entry 78 which was entered on 5/9/07 was entered in error and is stricken from the record.Mailed notice (mmm, ) (Entered: 05/15/2007)
80 MINUTE entry before Judge Sidney I. Schenkier : Status hearing set for 5/31/07 at 9:00 AM is reset to 5/31/2007 at 10:00 AM. Mailed notice (mmm, ) (Entered: 05/25/2007)
81 Attorney Appearance Form by Katherine Puffer for Ethan G. Zelizer (Friedman, Linda) (Entered: 05/29/2007)
82 STATUS Report for May 31, 2007 Status Hearing by Katherine Puffer, Allstate Insurance Company (Friedman, Linda) (Entered: 05/30/2007)
83 MINUTE entry before Judge Sidney I. Schenkier : Status hearing held and continued to 7/12/2007 at 09:00 AM. The Court strikes the existing class discovery schedule.Mailed notice (mmm, ) (Entered: 06/01/2007)
84 MINUTE entry before Judge Sidney I. Schenkier : The Court set a motion hearing for 6/13/2007 at 09:30 a.m. regarding plaintiff's motion to contact current employees.Telephone notice (mmm, ) (Entered: 06/07/2007)
85 MINUTE entry before Judge Sidney I. Schenkier : MOTION HEARING HELD. For the reasons stated on the record in open court, plaintiff's motion for an order under federal rule of civil procedure 23(d) (doc. # 71) is GRANTED in part and denied in part. Plaintiff shall not initiate contact with current Allstate employees in Bands 77 or higher. Plaintiff may initiate contact with current Allstate employees in Bands 63 and 64 who are determined not to be represented parties within the meaning of Local Rule 83.54.2. It will be the burden of Allstate to show, in the first instance, which employees within Bands 63 and 64, based on job titles, are

Case: 1:04-cv-5764 As of: 09/25/2012 11:17 AM CDT 11 of 30

06/21/2007
07/05/2007 07/12/2007 07/12/2007 07/16/2007
07/17/2007 07/20/2007
08/13/2007 08/24/2007 09/13/2007 09/13/2007

represented parties. At the next status conference, Allstate shall inform the Court as to the amount of time necessary to make that determination. This order does not govern the right of plaintiff to contact former Allstate employees. Allstate shall promptly produce to plaintiff (a) updated address information in its possession for former employees who are putative class members, and (b) a list, to the extent available, of those former employees who are putative class members who have signed releases that would restrict their ability to voluntarily communicate with plaintiff's counsel. The matter is set for a status conference on 06/21/07 at 9:00 a.m.Mailed notice (mmm, ) (Entered: 06/13/2007)
86 MINUTE entry before Judge Sidney I. Schenkier : Status hearing held and continued to 8/16/2007 at 09:00 AM. The plaintiff shall disclose experts and submit Rule 26(a)(2) reports on class certification by 9/7/07. The defendant shall disclose experts and submit Rule 26(a)(2) reports on class certification by 10/26/07. No expert depositions are to be taken before all expert reports are submitted. The depositions of all experts on class certification are to be completed by 12/21/07. By 6/29/07, the defendant is to provide to plaintiff a list of all 63s and 64s, and identify which ones they believe are in the class. Mailed notice (mmm, ) (Entered: 06/22/2007)
87 MINUTE entry before Judge Sidney I. Schenkier : In light of the 6/21/07 status hearing being continued to 8/16/07, the 7/12/07 status hearing is stricken.Mailed notice (mmm, ) (Entered: 07/05/2007)
88 MINUTE entry before Judge Sidney I. Schenkier : Status hearing set for 7/17/2007 at 09:00 AM. Telephone notice (mmm, ) (Entered: 07/12/2007)
89 SUPPLEMENT by Katherine Puffer to set/reset hearings 88 (Attachments: # 1 Exhibit A# 2 Exhibit B)(Zelizer, Ethan) (Entered: 07/12/2007)
90 STATUS Report for the Court's Consideration in Connection with the Status Conference Set for July 17, 2007 by Allstate Insurance Company (Attachments: # 1 Exhibit A − B# 2 Exhibit Exhibit C# 3 Exhibit Exhibit D# 4 Exhibit Exhibits E − G# 5 Exhibit Exhibits H − J# 6 Exhibit Exhibits K − M# 7 Exhibit Exhibits N − P# 8 Exhibit Exhibits Q − T# 9 Exhibit Exhibits U − W)(Smylie, Sallie) (Entered: 07/16/2007)
91 MINUTE entry before Judge Sidney I. Schenkier : Status hearing held and continued to 7/20/2007 at 01:00 PM. Mailed notice (mmm, ) (Entered: 07/17/2007)
92 MINUTE entry before Judge Sidney I. Schenkier : Status hearing held. Plaintiff's emergency motion to set a status hearing is granted. The Court approves the parties' agreed protocol as set forth on the record. Contact by plaintiff's counsel with current and former Allstate employees shall be in accordance with the agreed protocol. Any issues concerning Rule 4.2 raised by the parties' respective status reports are held in abeyance. For the reasons stated on the record, the Court also holds in abeyance any further obligation of the defendant to review and produce some 75,000 documents retrieved pursuant to the Court's earlier discovery order. The Court sets the following class certification briefing schedule: (1) by 10/15/07, plaintiff is to file her motion for class certification motion with supporting memorandum, submit expert reports on class certification, and declarations used in support of class certification; (2) by 01/31/08, defendant shall file its responsive memorandum, expert reports, and declarations; and (3) by 03/14/08, plaintiff shall file her is to file her reply. The Court will rule by mail on class certification.Mailed notice (mmm, ) (Entered: 07/23/2007)
93 MINUTE entry before Judge Sidney I. Schenkier : the status hearing set for 8/16/07 is stricken.Telephone notice (mmm, ) (Entered: 08/13/2007)
94 NOTICE by James Bryan Wood of Change of Address (cdy, ) (Entered: 08/28/2007)
95 MOTION by counsel for Plaintiff Katherine Puffer to withdraw as attorney nunc pro tunc − Unopposed (Wood, James) (Entered: 09/13/2007)
96 NOTICE of Motion by James Bryan Wood for presentment of motion to withdraw as attorney 95 before Honorable Sidney I. Schenkier on 9/18/2007 at 08:30 AM.

Case: 1:04-cv-5764 As of: 09/25/2012 11:17 AM CDT 12 of 30

09/14/2007
09/21/2007 09/21/2007 09/25/2007 09/25/2007 09/25/2007 09/26/2007 09/26/2007 09/26/2007 09/26/2007 09/26/2007 09/27/2007 09/27/2007 09/27/2007
10/01/2007

(Wood, James) (Entered: 09/13/2007)
97 MINUTE entry before Judge Sidney I. Schenkier : Plaintiff's unopposed motion for leave to withdraw the appearance of J. Bryan Wood (doc. # 95) is GRANTED; no appearance on the motion is required. The Clerk shall terminate the appearance of Mr. Wood as counsel for plaintiff. Telephone notice (mmm, ) (Entered: 09/14/2007)
98 MOTION by Plaintiff Katherine Puffer to compel Identification of Job Codes and Job Groups (Friedman, Linda) (Entered: 09/21/2007)
99 NOTICE of Motion by Linda Debra Friedman for presentment of motion to compel 98 before Honorable Sidney I. Schenkier on 9/27/2007 at 11:00 AM. (Friedman, Linda) (Entered: 09/21/2007)
102 MOTION by Defendant Allstate Insurance Company for leave to filemotion to show cause or in the alternative to compel and Exhibit C under seal instanter (cdy, ) Attachment(#1) Exhibits (Entered: 09/27/2007)
103 NOTICE of Motion by Richard Cartier Godfrey for presentment of motion for leave to file motion to show cause or in the alternative motion to compel and Exhibit C under seal instanter 102 before Honorable Sidney I. Schenkier on 9/27/2007 at 11:00 a.m.(cdy, ) (Entered: 09/27/2007)
104 NOTICE by Allstate Insurance Company to show cause or in the alternative motion to compel 102 (cdy, ) (Entered: 09/27/2007)
100 RESPONSE by Allstate Insurance Companyin Opposition to MOTION by Plaintiff Katherine Puffer to compel Identification of Job Codes and Job Groups 98 (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit)(Smylie, Sallie) (Entered: 09/26/2007)
101 DOCUMENT ENTERED IN ERROR. (cdy, ). (Entered: 09/27/2007)
108 MOTION by Defendant Allstate Insurance Company for leave to file CORRECTED motion to show cause or in the alternative motion to compel and Exhibits C &D under seal instanter (cdy, ) Attachment(s) #1 to motion for leave to show cause or in the alternative motion to compel (cdy, ). (Entered: 10/01/2007)
109 CORRECTED NOTICE of motion by Allstate Insurance Company MOTION for leave to file motion to show cause or in the alternative motion to compel and Exhibits C &D under seal instanter 108 (cdy, ) (Entered: 10/01/2007)
110 NOTICE by Allstate Insurance Company corrected motion to show cause or in the alternative motion to compel 108 (cdy, ) (Entered: 10/01/2007)
105 MOTION by Defendant Allstate Insurance Company for order to show cause or in the Alternative Motion to Compel (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G)(Smylie, Sallie) (Entered: 09/27/2007)
106 NOTICE of Motion by Sallie Gamble Smylie for presentment of motion for order to show cause, 105 before Honorable Sidney I. Schenkier on 10/10/2007 at 10:00 AM. (Smylie, Sallie) (Entered: 09/27/2007)
107 MINUTE entry before Judge Sidney I. Schenkier : Motion hearing held and continued to 10/10/07 at 10:00 a.m. Plaintiffs motion to compel identification of job codes and job groups (doc. # 98) is denied without prejudice. Defendants motion for leave to file a motion to show cause, or in the alternative a motion to compel and exhibits C and D under seal (doc. # 102) is granted: defendant may file the motion to compel and exhibits C and D under seal, but must file a redacted copy of the motion and exhibits in the public file. Hearing on the motion to show cause or to compel is continued to 10/10/07. Mailed notice (mmm, ) (Entered: 09/28/2007)
111 MOTION by Plaintiff Katherine Puffer for extension of time to file petition for class certification and experts reports (Glink, Shona) (Entered: 10/01/2007)

Case: 1:04-cv-5764 As of: 09/25/2012 11:17 AM CDT 13 of 30

10/01/2007 10/02/2007
10/05/2007 10/05/2007 10/10/2007
11/01/2007 11/01/2007 11/01/2007 11/01/2007 11/02/2007 11/02/2007 11/08/2007 11/08/2007 11/08/2007

112 NOTICE of Motion by Shona B. Glink for presentment of motion for extension of time to file 111 before Honorable Sidney I. Schenkier on 10/4/2007 at 08:30 AM. (Glink, Shona) (Entered: 10/01/2007)
113 MINUTE entry before Judge Sidney I. Schenkier : Plaintiff's agreed motion for an extension of time to file petition for class certification and expert reports 111 is granted; no appearance on the motion is required. Plaintiff's class certification motion, supporting memorandum and supporting expert reports are due by 11/05/07. Defendant's responding memorandum and expert reports are due by 02/21/08. Plaintiff's reply is due by 03/28/08. No further extensions to the class certification briefing and expert discovery schedule will be granted. Telephone notice (mmm, ) (Entered: 10/02/2007)
114 MOTION by Plaintiff Katherine Puffer to compel and response to motion for rule to show cause (Attachments: # 1 Exhibit A: 7−20−07 Hearing Transcript# 2 Exhibit B: 7−17−07 Hearing Tr# 3 Exhibit C−1: Pls 3d Doc Req# 4 Exhibit C−2: Pls 2d Interrog# 5 Exhibit D: Allstate Response to Discovery)(Mollica, Paul) (Entered: 10/05/2007)
115 NOTICE of Motion by Paul William Mollica for presentment of motion to compel, 114 before Honorable Sidney I. Schenkier on 10/10/2007 at 10:00 AM. (Mollica, Paul) (Entered: 10/05/2007)
116 MINUTE entry before Judge Sidney I. Schenkier : Motion hearing held. Defendants motion for rule to show cause or in the alternative to compel (doc. # 105) is denied. Plaintiffs motion to compel and conditional cross−motion (doc. # 114) is denied. The denials are without prejudice, insofar that their may be individuals whom plaintiffs counsel may have contacted who were covered by Rule 4.2, plaintiffs counsel is directed to preserve any information of any such contact or potential contact. The Court also directs that in the event plaintiffs counsel enters into a professional engagement with an Allstate employee, such as plaintiffs counsel will represent that person, plaintiffs counsel is to contact defense counsel within 5 days of that engagement. Mailed notice (mmm, ) (Entered: 10/10/2007)
117 MOTION by Plaintiff Katherine Puffer to file instanter Agreed Motion For Leave To File Instanter (Glink, Shona) (Entered: 11/01/2007)
118 Notice of Motion NOTICE of Motion by Shona B. Glink for presentment of motion to file instanter 117 before Honorable Sidney I. Schenkier on 11/6/2007 at 08:30 AM. (Glink, Shona) (Entered: 11/01/2007)
119 MOTION by Plaintiff Katherine Puffer for leave to file excess pages Agreed Motion for Leave to File Brief In Excess of 15 Pages (Glink, Shona) (Entered: 11/01/2007)
120 NOTICE of Motion by Shona B. Glink for presentment of motion for leave to file excess pages 119 before Honorable Sidney I. Schenkier on 11/6/2007 at 08:30 AM. (Glink, Shona) (Entered: 11/01/2007)
121 MINUTE entry before Judge Sidney I. Schenkier : Plaintiff's agreed motion for leave to file brief in excess of 15 pages 119 is granted; no appearance on the motion is necessary. Telephone notice (mmm, ) (Entered: 11/02/2007)
122 MINUTE entry before Judge Sidney I. Schenkier : Plaintiff's agreed motion to file instanter plaintiff's petition in support of class certification 117 is granted. Mailed notice (mmm, ) (Entered: 11/02/2007)
123 MOTION by Plaintiff Katherine Puffer for leave to file Plaintiff's Motion For Leave To File Portions of Class Certification Memorandum and Exhibits Under Seal (Glink, Shona) (Entered: 11/08/2007)
124 NOTICE of Motion by Shona B. Glink for presentment of motion for leave to file 123 before Honorable Sidney I. Schenkier on 11/13/2007 at 08:30 AM. (Glink, Shona) (Entered: 11/08/2007)
125 MOTION by Plaintiff Katherine Puffer to certify class Motion For Class Certification (Glink, Shona) (Entered: 11/08/2007)

Case: 1:04-cv-5764 As of: 09/25/2012 11:17 AM CDT 14 of 30

11/08/2007
11/09/2007
11/13/2007 11/13/2007 11/13/2007 12/10/2007 12/10/2007 12/11/2007 12/11/2007 12/13/2007 12/13/2007 01/04/2008 01/10/2008 01/10/2008 01/14/2008 01/16/2008

126 MEMORANDUM by Katherine Puffer in support of motion to certify class 125 Memorandum In Support of Plaintiff's Motion For Class Certification (Attachments: # 1 Appendix Exhibit List For Motion For Class Certification# 2 Appendix List of Delcaration Group A# 3 Exhibit Group A pt. 1 of 5# 4 Exhibit Group Exhibit A pt. 2 of 5# 5 Exhibit Group Exhibit A pt. 3 of 5# 6 Exhibit Group Exhibit A pt. 4 of 5# 7 Exhibit Group Exhibit A pt. 5 of 5# 8 Exhibit 1−3# 9 Exhibit 4 part 1 of 2# 10 Exhibit 4 part 2 of 2# 11 Exhibit 5# 12 Exhibit 6−7# 13 Exhibit 8 part 1 of 2# 14 Exhibit 8 part 2 of 2# 15 Exhibit 9# 16 Exhibit 10 part 1 of 2# 17 Exhibit 10 part 2 of 2# 18 Exhibit 11# 19 Exhibit 12 part 1 of 2# 20 Exhibit 12 part 2 of 2# 21 Exhibit 13−22# 22 Exhibit 23−29# 23 Exhibit 30−36)(Glink, Shona) (Entered: 11/08/2007)
127 MINUTE entry before Judge Sidney I. Schenkier : Plaintiff's motion for leave to file portions of class certification memorandum and exhibits under seal 123 is granted; no appearance necessary. Telephone notice (mmm, ) (Entered: 11/09/2007)
128 ATTORNEY Appearance for Plaintiff Katherine Puffer by Rafael Eduardo Lazaro (Lazaro, Rafael) (Entered: 11/13/2007)
129 MEMORANDUM by Katherine Puffer in support of motion for class certification 125 (RESTRICTED). (cdy, ) (Entered: 11/14/2007)
130 MEMORANDUM by Katherine Puffer in support of motion for class certification 125 (RESTRICTED). (cdy, ) (Entered: 11/14/2007)
131 MOTION by Defendant Allstate Insurance Company to compel (Ehrhart, Katheleen) (Entered: 12/10/2007)
132 NOTICE of Motion by Katheleen A Ehrhart for presentment of motion to compel 131 before Honorable Sidney I. Schenkier on 12/13/2007 at 08:30 AM. (Ehrhart, Katheleen) (Entered: 12/10/2007)
133 MOTION by Defendant Allstate Insurance Company to compel CORRECTED (Ehrhart, Katheleen) (Entered: 12/11/2007)
134 CORRECTED NOTICE of Motion by Katheleen A Ehrhart for presentment of motion to compel 133 before Honorable Sidney I. Schenkier on 12/13/2007 at 08:30 AM. (Ehrhart, Katheleen) (Entered: 12/11/2007)
135 MINUTE entry before Judge Sidney I. Schenkier : Motion hearing held. Defendant's motion to compel 131 is denied as moot based on agreement of the parties. Mailed notice (mmm, ) (Entered: 12/13/2007)
136 MINUTE entry before Judge Sidney I. Schenkier : Motion hearing held. Defendant's motion for compel depositions (doc. # 133) is denied as moot based on agreement of the parties. Mailed notice (mmm, ) (Entered: 12/13/2007)
137 TRANSCRIPT of proceedings for the following dates: 7/17/07; Before the Honorable Sidney I. Schenkier. (Document Not Scanned) (lcw, ) (Entered: 01/08/2008)
138 MOTION by Defendant Allstate Insurance Company to substitute attorney K. Ehrhart and B. Rucker (Coleman, Khara) (Entered: 01/10/2008)
139 NOTICE of Motion by Khara Aisha Ashanti Coleman for presentment of motion to substitute attorney 138 before Honorable Sidney I. Schenkier on 1/17/2008 at 08:30 AM. (Coleman, Khara) (Entered: 01/10/2008)
140 ATTORNEY Appearance for Defendant Allstate Insurance Company by Eileen Elizabeth Baker (Baker, Eileen) (Entered: 01/14/2008)
141 MOTION by Defendant Allstate Insurance Company to take deposition of Declarants/Putative Class Members and Motion to Compel Deposition Dates (Attachments: # 1 Exhibit # 2 Exhibit B, 12/27/07 Letter# 3 Exhibit C, 1/07/08 Email Chain# 4 Exhibit D, 01/11/08 Letter# 5 Exhibit E, 1/15/08 Letter# 6 Exhibit F, 1/15/08 Letter# 7 Exhibit G, 01/15/08 Letter# 8 Exhibit H, 01/15/08 Letter# 9 Exhibit I, 1/16/08 Letter)(Coleman, Khara) (Entered: 01/16/2008)

Case: 1:04-cv-5764 As of: 09/25/2012 11:17 AM CDT 15 of 30

01/16/2008 01/16/2008 01/17/2008 01/21/2008 01/21/2008 01/22/2008
01/22/2008 01/31/2008 01/31/2008 02/04/2008 02/04/2008
02/04/2008 02/08/2008 03/20/2008 03/20/2008
03/21/2008
03/25/2008

142 NOTICE of Motion by Khara Aisha Ashanti Coleman for presentment of motion to take deposition, 141 (Coleman, Khara) (Entered: 01/16/2008)
143 CORRECTED NOTICE of Motion by Khara Aisha Ashanti Coleman for presentment of motion to take deposition, 141 before Honorable Sidney I. Schenkier on 1/22/2008 at 08:30 AM. (Coleman, Khara) (Entered: 01/16/2008)
144 MINUTE entry before Judge Sidney I. Schenkier : Defendant's motion to substitute attorney K. Ehrhart and B. Rucker 138 is granted.Mailed notice (mmm, ) (Entered: 01/17/2008)
145 MOTION by Plaintiff Katherine Puffer for discovery Agreed Motion for Entry of Stipulation and Order (Friedman, Linda) (Entered: 01/21/2008)
146 NOTICE of Motion by Linda Debra Friedman for presentment of motion for discovery 145 before Honorable Sidney I. Schenkier on 1/22/2008 at 08:30 AM. (Friedman, Linda) (Entered: 01/21/2008)
147 MINUTE entry before Judge Sidney I. Schenkier :Motion hearing held. defendant's motion to take deposition of declarants/putative class members and to compel deposition dates 141 is granted in part and denied in part. Defendant is given leave to take 15 depositions. Agreed motion for stipulation and order 145 is granted. Enter stipulation and order. Status hearing set for 2/5/2008 at 09:00 AM. Mailed notice (mmm, ) (Entered: 01/22/2008)
148 STIPULATION and Order. Signed by Judge Sidney I. Schenkier on 1/22/2008.(cdy, ) (Entered: 01/24/2008)
149 MOTION by Defendant Allstate Insurance Company to compel re Plaintiff's Counsels' Website (Attachments: # 1 Exhibit Number 1# 2 Exhibit Number 2# 3 Exhibit Number 3)(Coleman, Khara) (Entered: 01/31/2008)
150 NOTICE of Motion by Khara Aisha Ashanti Coleman for presentment of motion to compel 149 before Honorable Sidney I. Schenkier on 2/5/2008 at 08:30 AM. (Coleman, Khara) (Entered: 01/31/2008)
151 STIPULATION Regarding Class Certification Briefing (Ehrhart, Katheleen) (Entered: 02/04/2008)
152 MINUTE entry before Judge Sidney I. Schenkier : Enter Stipulation and Order for Modification of Class Certification Briefing Schedule. Defendant's responding memorandum and expert reports are due by 03/25/2008; plaintiff's reply memorandum is due by 05/20/08. The Court will rule by mail on the class certification motion. The status hearing set for 02/05/2008 is stricken. Mailed notice (cdy, ) (Entered: 02/08/2008)
153 STIPULATION and Order for mofidication of class certification briefing schedule. Signed by Judge Sidney I. Schenkier on 2/4/2008.(cdy, ) (Entered: 02/08/2008)
154 ATTORNEY Appearance for Defendant Allstate Insurance Company by Julie Lynn Trester (Trester, Julie) (Entered: 02/08/2008)
155 AGREED MOTION by Plaintiff Katherine Puffer, Defendant Allstate Insurance Company for Modification Of Class Briefing Schedule (Ehrhart, Katheleen) (Text Modified by Clerk's Office on 3/21/2008) (cdy, ). (Entered: 03/20/2008)
156 NOTICE of Agreed Motion by Katheleen A Ehrhart for presentment of motion for modification of class certification briefing schedule 155 before Honorable Sidney I. Schenkier on 3/25/2008 at 08:30 AM. (Ehrhart, Katheleen) (Text Modified by Clerk's Office on 3/21/2008) (cdy, ). (Entered: 03/20/2008)
157 MINUTE entry before Judge Honorable Sidney I. Schenkier: Agreed motion for modification of class certification briefing schedule (doc. # 155) is GRANTED; no appearance on the motion is required. Defendant's response to the motion for class certification is due by 04/01/08. The date for plaintiff's reply remains unchanged. Telephone notice (mmm, ) (Entered: 03/21/2008)
158 MOTION by Defendant Allstate Insurance Company for leave to file excess pages (5 pages) in response to Plaintiff's Petition For Class Certification (Ehrhart,

Case: 1:04-cv-5764 As of: 09/25/2012 11:17 AM CDT 16 of 30

03/25/2008 03/26/2008
04/01/2008 04/01/2008 04/01/2008 04/01/2008 04/01/2008 04/01/2008 04/01/2008 04/01/2008 04/01/2008 04/01/2008 04/01/2008
04/01/2008
04/01/2008
04/01/2008
04/01/2008

Katheleen) (Entered: 03/25/2008)
159 NOTICE of Motion by Katheleen A Ehrhart for presentment of motion for leave to file excess pages 158 before Honorable Sidney I. Schenkier on 3/27/2008 at 08:30 AM. (Ehrhart, Katheleen) (Entered: 03/25/2008)
160 MINUTE entry before Judge Honorable Sidney I. Schenkier: Defendant's unopposed motion for five additional pages for its opposition brief to class certification (doc. # 158) is GRANTED; no appearance on the motion is required. Defendant's brief shall not exceed 35 pages. Telephone notice (mmm, ) (Entered: 03/26/2008)
161 MOTION by Defendant Allstate Insurance Company for leave to file UNDER SEAL Instanter (Coleman, Khara) (Entered: 04/01/2008)
162 NOTICE of Motion by Khara Aisha Ashanti Coleman for presentment of motion for leave to file 161 before Honorable Sidney I. Schenkier on 4/9/2008 at 08:30 AM. (Coleman, Khara) (Entered: 04/01/2008)
163 MEMORANDUM by Allstate Insurance Company in Opposition to motion to certify class 125 (Coleman, Khara) (Entered: 04/01/2008)
164 MOTION by Defendant Allstate Insurance Company to bar Testimony and Opinions of Plaintiff's Expert Dr. Madden (Coleman, Khara) (Entered: 04/01/2008)
165 MEMORANDUM In Support of Motion To Bar the Testimony and Opinions of Plaintiff's Expert Dr. Madden (Coleman, Khara) (Entered: 04/01/2008)
166 MOTION by Defendant Allstate Insurance Company to bar the Testimony and Opinions of Plaintiff's Expert Dr. Reskin (Coleman, Khara) (Entered: 04/01/2008)
167 MEMORANDUM In Support of Motion to Bar the Testimony and Opinions of Plaintiff's Expert Dr. Reskin (Coleman, Khara) (Entered: 04/01/2008)
168 MOTION by Defendant Allstate Insurance Company to strike Declarations From Current and Former Allstate Employees (Coleman, Khara) (Entered: 04/01/2008)
169 MEMORANDUM In Support of Allstate's Motion to Strike Declarations of Current and Former Allstate Employees (Coleman, Khara) (Entered: 04/01/2008)
170 NOTICE of Motion by Khara Aisha Ashanti Coleman for presentment of motion to strike 168 , motion to bar 166 , motion to bar 164 before Honorable Sidney I. Schenkier on 4/9/2008 at 08:30 AM. (Coleman, Khara) (Entered: 04/01/2008)
171 APPENDIX memorandum in support of motion 167 , memorandum in opposition to motion 163 , memorandum in support of motion 169 , memorandum in support of motion 165 by Allstate Insurance Company Appendix I FILED UNDER SEAL (Coleman, Khara) (Entered: 04/01/2008)
172 APPENDIX memorandum in support of motion 167 , memorandum in opposition to motion 163 , memorandum in support of motion 169 , memorandum in support of motion 165 by Allstate Insurance Company Appendix II Declarations FILED UNDER SEAL (Coleman, Khara) (Entered: 04/01/2008)
173 APPENDIX memorandum in support of motion 167 , memorandum in opposition to motion 163 , memorandum in support of motion 169 , memorandum in support of motion 165 by Allstate Insurance Company Appendix III Depositions FILED UNDER SEAL (Coleman, Khara) (Entered: 04/01/2008)
174 APPENDIX memorandum in support of motion 167 , memorandum in opposition to motion 163 , memorandum in support of motion 169 , memorandum in support of motion 165 by Allstate Insurance Company Appendix IV Documents FILED UNDER SEAL (Coleman, Khara) (Entered: 04/01/2008)
175 APPENDIX memorandum in support of motion 167 , memorandum in opposition to motion 163 , memorandum in support of motion 169 , memorandum in support of motion 165 by Allstate Insurance Company (Attachments: # 1 Appendix Unpublished Cases Part 2, # 2 Appendix Unpublished Cases Part 3, # 3 Appendix Unpublished Cases Part 4, # 4 Appendix Unpublished Cases Part 5, # 5 Appendix

Case: 1:04-cv-5764 As of: 09/25/2012 11:17 AM CDT 17 of 30

04/03/2008 04/04/2008 04/09/2008
04/23/2008
04/25/2008 05/02/2008 05/05/2008 05/05/2008

Unpublished Cases Part 6, # 6 Appendix Unpublished Cases Part 7, # 7 Appendix Unpublished Cases Part 8)(Coleman, Khara) (Entered: 04/01/2008)
176 MEMORANDUM by Allstate Insurance Company in support of motion to bar 166 the Testimony and Opinions of Plaintiff's Expert Dr. Reskin CORRECTED (Coleman, Khara) (Entered: 04/03/2008)
177 TRANSCRIPT of proceedings for the following dates: 10/10/07; Before the Honorable Sidney I. Schenkier (Document Not Scanned). (cdy, ) (Entered: 04/07/2008)
178 MINUTE entry before Judge Honorable Sidney I. Schenkier: Motion hearing held. Defendant's motion to file under seal (doc. # 161) is granted provisionally pending a submission by the parties to the Court of what items the parties agree or disagree should be filed under seal. By 4/14/08, defendant is to supply to plaintiff, in writing, what particular portion of the submission pertaining to class certification it believes should be filed under seal. The parties are then to meet and confer regarding the list and submit to the Court any remaining disputes at the 4/23/08 status. Defendant's motion to bar testimony and opinion of plaintiff's expert Dr. Madden (doc. # 164), Defendant's motion to bar testimony and opinion of plaintiff's expert Dr. Risken (doc. # 166), and Defendant's motion to strike declarations of current and former Allstate employees (doc. # 168) are entered and continued to 4/23/08. The Court strikes defendants 5/20/08 deadline to file a reply to class certification. A status hearing is set for 4/23/08 at 9:00 a.m. Mailed notice (mmm, ) (Entered: 04/09/2008)
179 MINUTE entry before Judge Honorable Sidney I. Schenkier: Status hearing held and continued to 5/14/2008 at 09:00 AM. By 5/2/08, the parties are to submit a joint statement to the Court listing any agreements/disagreements that the parties have regarding what materials in defendant's submission on class certification should remain confidential. The parties are directed to have their experts provide supplemental reports regarding the opposing experts report on class certification. No depositions are to take place until all reports are submitted, and the depositions are to be limited to the supplemental reports. The parties have until 9/30/08 to complete class certification discovery. By the status hearing on 5/14/08, the parties are to provide the Court with a schedule for completion on class certification discovery as stated on the record. Mailed notice (mmm, ) (Entered: 04/23/2008)
180 MINUTE entry before Judge Honorable Sidney I. Schenkier: The last two sentences of the Court's 04/23 order are stricken, and replaced with the following: The Court orders that any further class certification be completed in time for plaintiff to file a reply in support of class certification by 09/30/08. By the status hearing on 05/14/08, the parties are to provide the Court with a proposed schedule to ensure that the class certification motion is fully briefed by 09/30/08, including the motions to strike that have been filed by defendant and any motions to strike that may be filed by plaintiff in response to defendant's submission. Telephone notice (mmm, ) (Entered: 04/25/2008)
181 Regarding Class Opposition Materials To Remain Under Seal STATEMENT by Katherine Puffer, Allstate Insurance Company (Ehrhart, Katheleen) (Entered: 05/02/2008)
182 MINUTE entry before Judge Honorable Sidney I. Schenkier: On 04/01/08, defendant filed a motion for leave to file under seal certain materials submitted in opposition to class certification (doc. # 161). On 04/09/08, the Court provisionally granted that motion (doc. # 178), pending submission by the parties of particular documents that should or should not remain under seal. On 05/02/08, the parties filed a joint statement regarding the materials that should remain under seal (doc. # 181). We adopt the parties' joint statement, and give leave to defendant to promptly file redacted versions of their materials in opposition to class certification in line with the joint statement. Telephone notice (mmm, ) (Entered: 05/05/2008)
183 MEMORANDUM by Allstate Insurance Company in support of its motion to bar the testimony and opinions of plaintiff's expert Dr. Reskin. (RESTRICTED DOCUMENT). (rbf, ) (Entered: 05/12/2008)

Case: 1:04-cv-5764 As of: 09/25/2012 11:17 AM CDT 18 of 30

05/05/2008 05/05/2008 05/05/2008 05/05/2008
05/05/2008 05/05/2008 05/05/2008
05/05/2008 05/05/2008 05/05/2008 05/13/2008 05/13/2008 05/13/2008
05/13/2008
05/14/2008
05/14/2008
05/19/2008 05/19/2008
05/19/2008

184 APPENDIX IV by Allstate Insurance Company (RESTRICTED DOCUMENT). (rbf, ) (Entered: 05/12/2008)
185 APPENDIX III by Allstate Insurance Company Volume 2 of 4(DEPOSITIONS − RESTRICTED DOCUMENT). (rbf, ) (Entered: 05/12/2008)
186 APPENDIX III by Allstate Insurance Company Volume 1 of 4 (DEPOSITIONS − RESTRICTED DOCUMENT). (rbf, ) (Entered: 05/12/2008)
187 MEMORANDUM of law by Allstate Insurance Company in support of its motion to bar the testimony and opinions of plaintiff's expert Dr. Madden 164 (RESTRICTED). (cdy, ) (Entered: 05/12/2008)
188 APPENDIX II by Allstate Insurance Company (DECLARATIONS − RESTRICTED DOCUMENT). (rbf, ) (Entered: 05/12/2008)
189 APPENDIX III by Allstate Insurance Company Volume 3 of 4 (DEPOSITIONS − RESTRICTED DOCUMENT). (rbf, ) (Entered: 05/12/2008)
190 MEMORANDUM by Allstate Insurance Company in support of its motion to strike declarations from current and former Allstate employees 168 (RESTRICTED). (cdy, ) (Entered: 05/12/2008)
191 MEMORANDUM by Allstate Insurance Company in Opposition to plaintiff's motion for class certification 125 (RESTRICTED). (cdy, ) (Entered: 05/12/2008)
192 APPENDIX "I" expert reports by Allstate Insurance Company (RESTRICTED). (cdy, ) (Entered: 05/12/2008)
193 APPENDIX "III" depositions by Allstate Insurance Company (Volume 4 of 4) (RESTRICTED). (cdy, ) (Entered: 05/12/2008)
194 STATUS Report on Class Certification Briefing Schedule by Katherine Puffer (Zelizer, Ethan) (Entered: 05/13/2008)
195 NOTICE by Katherine Puffer re status report 194 on Class Certification Briefing Schedule (Zelizer, Ethan) (Entered: 05/13/2008)
196 TRANSCRIPT of proceedings for the following dates: 4/9/08; Before the Honorable Honorable Sidney I. Schenkier (Document Not Scanned)(cdy, ) (Entered: 05/14/2008)
197 TRANSCRIPT of proceedings for the following dates: 3/14/07 and 4/18/07; Before the Honorable Honorable Sidney I. Schenkier (197−1 through 197−2) (Document Not Scanned). (cdy, ) (Entered: 05/14/2008)
198 MINUTE entry before Honorable Sidney I. Schenkier: Status hearing held. The Court sets the schedule for further class certification discovery and briefing as stated below. Mailed notice (kj, ) (Entered: 05/15/2008)
199 MINUTE entry before the Honorable Sidney I. Schenkier: Status hearing held. The Court sets the schedule for further class certification discovery and briefing as stated below. Mailed notice (cdy, ) (Entered: 05/16/2008)
200 MEMORANDUM by Allstate Insurance Company in Opposition to motion to certify class 125 Redacted Version (Ehrhart, Katheleen) (Entered: 05/19/2008)
201 APPENDIX memorandum in opposition to motion 200 by Allstate Insurance Company Appendix I expert reports (Volume I of 10) (Ehrhart, Katheleen) (Entered: 05/19/2008)
202 APPENDIX by Allstate Insurance Company Appendix I− expert reports (Attachments: # 1 Appendix Appendix I expert reports (Vol 1 of 9), # 2 Appendix Appendix I expert reports (Vol 2 of 9), # 3 Appendix Appendix I expert reports (Vol 3 of 9), # 4 Appendix Appendix I expert reports (Vol 4 of 9), # 5 Appendix Appendix I expert reports (Vol 5 of 9), # 6 Appendix Appendix I expert reports (Vol 6 of 9), # 7 Appendix Appendix I expert reports (Vol 7 of 9), # 8 Appendix Appendix I expert reports (Vol 8 of 9), # 9 Appendix Appendix I expert reports (Vol 9 of 9))(Ehrhart, Katheleen) (Entered: 05/19/2008)

Case: 1:04-cv-5764 As of: 09/25/2012 11:17 AM CDT 19 of 30

05/19/2008
05/19/2008
05/19/2008 05/19/2008 05/19/2008 05/19/2008 05/20/2008 05/21/2008

203 APPENDIX by Allstate Insurance Company Appendix II Declarations Redacted Version (Attachments: # 1 Appendix Declaration 1, # 2 Appendix Declaration 2, # 3 Appendix Declaration 3, # 4 Appendix Declaration 4, # 5 Appendix Declaration 5, # 6 Appendix Declaration 6, # 7 Appendix Declaration 7, # 8 Appendix Declaration 8, # 9 Appendix Declaration 9, # 10 Appendix Declaration 10, # 11 Appendix Declaration 11, # 12 Appendix Declaration 12, # 13 Appendix Declaration 13, # 14 Appendix Declaration 14, # 15 Appendix Declaration 15, # 16 Appendix Declaration 16, # 17 Appendix Declaration 17, # 18 Appendix Declaration 18, # 19 Appendix Declaration 19, # 20 Appendix Declaration 20, # 21 Appendix Declaration 21, # 22 Appendix Declaration 22, # 23 Appendix Declaration 23, # 24 Appendix Declaration 24, # 25 Appendix Declaration 25, # 26 Appendix Declaration 26, # 27 Appendix Declaration 27, # 28 Appendix Declaration 28, # 29 Appendix Declaration 30, # 30 Appendix Declaration 31, # 31 Appendix Declaration 32, # 32 Appendix Declaration 33, # 33 Appendix Declaration 34, # 34 Appendix Declaration 35)(Ehrhart, Katheleen) (Entered: 05/19/2008)
204 APPENDIX by Allstate Insurance Company Appendix III Depositions (Redacted Version) (Attachments: # 1 Appendix Part 2, # 2 Appendix Part 3, # 3 Appendix Part 4, # 4 Appendix Part 5, # 5 Appendix Part 6, # 6 Appendix Part 7, # 7 Appendix Part 8, # 8 Appendix Part 9, # 9 Appendix Part 10, # 10 Appendix Part 11, # 11 Appendix Part 12, # 12 Appendix Part 13, # 13 Appendix Part 14, # 14 Appendix Part 15, # 15 Appendix Part 16, # 16 Appendix Part 17, # 17 Appendix Part 18, # 18 Appendix Part 19, # 19 Appendix Part 20, # 20 Appendix Part 21, # 21 Appendix Part 22, # 22 Appendix Part 23, # 23 Appendix Part 24, # 24 Appendix Part 25, # 25 Appendix Part 26, # 26 Appendix Part 27, # 27 Appendix Part 28, # 28 Appendix Part 29, # 29 Appendix Part 30, # 30 Appendix Part 31)(Ehrhart, Katheleen) (Entered: 05/19/2008)
205 APPENDIX by Allstate Insurance Company Appendix IV Documents (Redacted Version) (Attachments: # 1 Appendix Part II, # 2 Appendix Part III)(Ehrhart, Katheleen) (Entered: 05/19/2008)
206 MOTION by Defendant Allstate Insurance Company to bar Memorandum of law in support of motion to bar the testimony and opinions of plantiff's expert Dr. Madden (Public version) (Ehrhart, Katheleen) (Entered: 05/19/2008)
207 MOTION by Defendant Allstate Insurance Company to bar Memorandum in support of motion to bar testimony and opinions of plaintiff's expert Dr. Reskin (Public version) (Ehrhart, Katheleen) (Entered: 05/19/2008)
208 MOTION by Defendant Allstate Insurance Company to strike Memorandum in support of motion to strike declaations from current and former Allstate employees (Ehrhart, Katheleen) (Entered: 05/19/2008)
209 SUBMISSION of List of Redacted Names from Class Opposition Materials and Identification Key by Allstate Insurance Company. (RESTRICTED) (td, ) (Entered: 05/21/2008)
210 APPENDIX by Allstate Insurance Company Amended Appendix II Declarations (Redacted Version) with all exhibits (Attachments: # 1 Appendix Declaration 1, # 2 Appendix Declaration 2, # 3 Appendix Declaration 3, # 4 Appendix Declaration 4, # 5 Appendix Declaration 5, # 6 Appendix Declaration 6, # 7 Appendix Declaration 7, # 8 Appendix Declaration 8, # 9 Appendix Declaration 9, # 10 Appendix Declaration 10, # 11 Appendix Declaration 11, # 12 Appendix Declaration 12, # 13 Appendix Declaration 13, # 14 Appendix Declaration 14, # 15 Appendix Declaration 15, # 16 Appendix Declaration 16, # 17 Appendix Declaration 17, # 18 Appendix Declaration 18, # 19 Appendix Declaration 19, # 20 Appendix Declaration 20, # 21 Appendix Declaration 21, # 22 Appendix Declaration 22, # 23 Appendix Declaration 23, # 24 Appendix Declaration 24, # 25 Appendix Declaration 25, # 26 Appendix Declaration 26, # 27 Appendix Declaration 27, # 28 Appendix Declaration 28, # 29 Appendix Declaration 29, # 30 Appendix Declaration 30, # 31 Appendix Declaration 31, # 32 Appendix Declaration 32, # 33 Appendix Declaration 33, # 34 Appendix Declaration 34, # 35 Appendix Declaration 35)(Ehrhart, Katheleen) (Entered: 05/21/2008)

Case: 1:04-cv-5764 As of: 09/25/2012 11:17 AM CDT 20 of 30

05/22/2008 05/28/2008 05/29/2008 06/23/2008 06/23/2008 06/24/2008
07/01/2008 07/01/2008 08/13/2008 08/15/2008 08/18/2008 08/26/2008 08/26/2008
09/05/2008 09/17/2008 09/17/2008 09/18/2008

211 MINUTE entry before the Honorable Sidney I. Schenkier: Docket number 201 was entered in error and is stricken from the docket. Telephone notice (mmm, ) (Entered: 05/22/2008)
212 MINUTE entry before the Honorable Sidney I. Schenkier: Telephone status conference held and continued to 06/11/08 at 9:30 a.m. Telephone notice (mmm, ) (Entered: 05/28/2008)
213 TRANSCRIPT of proceedings for the following dates: 6/13/07, 7/20/07, 9/27/07 and 12/13/07; Before the Honorable Honorable Sidney I. Schenkier (213−1 through 213−4) (Document Not Scanned).(cdy, ) (Entered: 05/30/2008)
214 MOTION by Defendant Allstate Insurance Company to withdraw Declarant 33's Declaration and Dr. Winship's Expert Report and for Leave to File Dr. Winship's Amended Expert Report (Wermuth, Anneliese) (Entered: 06/23/2008)
215 NOTICE of Motion by Anneliese Wermuth for presentment of motion to withdraw 214 before Honorable Sidney I. Schenkier on 7/1/2008 at 08:30 AM. (Wermuth, Anneliese) (Entered: 06/23/2008)
216 MINUTE entry before the Honorable Sidney I. Schenkier: Defendant's unopposed motion to withdraw declarant 33's declaration and Dr. Winship's expert report and for leave to file Dr. Winship's amended expert report (doc. # 214) is GRANTED; no appearance on the motion is required. Declarant 33's declaration and Dr. Winship's expert report are withdrawn from defendant's class certification submission; Dr. Winship's amended expert report shall by filed by 07/01/08. Telephone notice (mmm, ) (Entered: 06/24/2008)
217 AMENDED Expert Report of Christopher Winship, Ph.D. (Attachments: # 1 Appendix Appendix to Winship Expert Report)(Wermuth, Anneliese) (Entered: 07/01/2008)
218 NOTICE by Allstate Insurance Company re amended document 217 Expert Report of Christopher Winship, Ph.D. (Wermuth, Anneliese) (Entered: 07/01/2008)
219 Notice of Change of Firm Name by Allstate Insurance Company (Wermuth, Anneliese) (Entered: 08/13/2008)
220 Notification of Change Of Attorney Address Or Name by Allstate Insurance Company Firm Name Change (Bulger, Brian) (Entered: 08/15/2008)
221 Notice of Change of Firm Name by Allstate Insurance Company (Trester, Julie) (Entered: 08/18/2008)
222 MOTION by Plaintiff Katherine Puffer to strike , In Part, the Expert Report of Professor Robert Topel (Glink, Shona) (Entered: 08/26/2008)
223 MEMORANDUM by Katherine Puffer in support of motion to strike 222 , In Part, the Expert Report of Professor Robert Topel (Attachments: # 1 Exhibit 1 − Topel Report, # 2 Exhibit 2 − Madden Rebuttal, # 3 Exhibit 3 Madden Original Report, # 4 Exhibit 4 Footnote 4 Cites, # 5 Exhibit 5 − Footnote 8 Cites)(Glink, Shona) (Entered: 08/26/2008)
224 ATTORNEY Appearance for Defendant Allstate Insurance Company by Wendy Lynn Bloom (Bloom, Wendy) (Entered: 09/05/2008)
225 MOTION by Plaintiff Katherine Puffer for extension of time concerning Class Certification Briefing Schedule (Lazaro, Rafael) (Entered: 09/17/2008)
226 NOTICE of Motion by Rafael Eduardo Lazaro for presentment of extension of time 225 before Honorable Sidney I. Schenkier on 9/23/2008 at 08:30 AM. (Lazaro, Rafael) (Entered: 09/17/2008)
227 MINUTE entry before the Honorable Sidney I. Schenkier: Plaintiff's motion to extend the class certification briefing schedule (doc. # 225) is granted; no appearance on the motion is required. All responses to motions to strike, as well as plaintiff's reply memorandum in support of class certification, are due by 10/06/08. All reply memoranda in support of motions to strike are due by 10/20/08. Telephone notice (mmm, ) (Entered: 09/18/2008)

Case: 1:04-cv-5764 As of: 09/25/2012 11:17 AM CDT 21 of 30

09/22/2008 09/22/2008 10/06/2008 10/06/2008 10/06/2008 10/06/2008 10/06/2008 10/06/2008 10/06/2008 10/06/2008 10/06/2008 10/06/2008
10/08/2008 10/08/2008 10/09/2008 10/10/2008 10/10/2008

228 ATTORNEY Appearance for Defendant Allstate Insurance Company by Bredale Rucker (Rucker, Bredale) Modified on 9/23/2008 (tcn, ). (Entered: 09/22/2008)
229 ATTORNEY Appearance for Defendant Allstate Insurance Company by Katheleen A Ehrhart (Ehrhart, Katheleen) (Entered: 09/22/2008)
230 MEMORANDUM by Allstate Insurance Company in Opposition to motion to strike 222 in part the Expert Report of Professor Robert Topel (Attachments: # 1 Exhibit A−C)(Wermuth, Anneliese) (Entered: 10/06/2008)
231 MOTION by Plaintiff Katherine Puffer for leave to file Redacted Exhibits and to File Certain Exhibits Under Seal (Glink, Shona) (Entered: 10/06/2008)
232 NOTICE of Motion by Shona B. Glink for presentment of motion for leave to file 231 before Honorable Sidney I. Schenkier on 10/14/2008 at 08:30 AM. (Glink, Shona) (Entered: 10/06/2008)
233 RESPONSE by Katherine Pufferin Opposition to MOTION by Defendant Allstate Insurance Company to bar Testimony and Opinions of Plaintiff's Expert Dr. Madden 164 (Glink, Shona) (Entered: 10/06/2008)
234 RESPONSE by Katherine Pufferin Opposition to MOTION by Defendant Allstate Insurance Company to bar the Testimony and Opinions of Plaintiff's Expert Dr. Reskin 166 (Glink, Shona) (Entered: 10/06/2008)
235 RESPONSE by Katherine Pufferin Opposition to MOTION by Defendant Allstate Insurance Company to strike Declarations From Current and Former Allstate Employees 168 (Glink, Shona) (Entered: 10/06/2008)
236 MOTION by Plaintiff Katherine Puffer for leave to file Oversized Brief in Further Support of Plaintiff's Petition for Class Certification (Glink, Shona) (Entered: 10/06/2008)
237 NOTICE of Motion by Shona B. Glink for presentment of motion for leave to file 236 before Honorable Sidney I. Schenkier on 10/14/2008 at 08:30 AM. (Glink, Shona) (Entered: 10/06/2008)
238 REPLY by Plaintiff Katherine Puffer to motion to certify class 125 In Support of Class Certification (Glink, Shona) (Entered: 10/06/2008)
239 APPENDIX response in opposition to motion 233 , response in opposition to motion 235 , reply 238 , response in opposition to motion 234 Exhibits in Support of Plaintiff's Briefs in Support of Class Certification (Attachments: # 1 Exhibit Exhibits 1−5, # 2 Exhibit Exhibit 6, # 3 Exhibit Exhibits 7−10, # 4 Exhibit Exhibit 11, # 5 Exhibit Exhibits 12−14, # 6 Exhibit 15, # 7 Exhibit Exhibits 16−20, # 8 Exhibit Exhibits 21−29, # 9 Exhibit Exhibit 30, # 10 Exhibit Exhibits 31−38, # 11 Exhibit Exhibit 39)(Glink, Shona) (Entered: 10/06/2008)
240 MOTION by Plaintiff Katherine Puffer to strike memorandum in opposition to motion 230 Motion to Strike the October 6, 2008 Declaration of Dr. Robert Topel (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Glink, Shona) (Entered: 10/08/2008)
241 NOTICE of Motion by Shona B. Glink for presentment of motion to strike, motion for relief 240 before Honorable Sidney I. Schenkier on 10/14/2008 at 08:30 AM. (Glink, Shona) (Entered: 10/08/2008)
242 MINUTE entry before the Honorable Sidney I. Schenkier: Plaintiff's motion for leave to file redacted exhibits and to file certain exhibits Under Seal 231 is granted, without objection. Mailed notice (mmm, ) (Entered: 10/09/2008)
243 Amended NOTICE of Motion by Rafael Eduardo Lazaro for presentment of motion to strike, motion for relief 240 before Honorable Sidney I. Schenkier on 10/16/2008 at 08:30 AM. (Lazaro, Rafael) (Entered: 10/10/2008)
244 Amended NOTICE of Motion by Rafael Eduardo Lazaro for presentment of motion for leave to file 236 before Honorable Sidney I. Schenkier on 10/16/2008 at 08:30 AM. (Lazaro, Rafael) (Entered: 10/10/2008)

Case: 1:04-cv-5764 As of: 09/25/2012 11:17 AM CDT 22 of 30

10/14/2008
10/16/2008
10/20/2008 10/20/2008 10/20/2008 10/20/2008 10/20/2008 10/20/2008 10/24/2008 10/31/2008 11/05/2008 11/07/2008 11/12/2008

245 RESPONSE by Allstate Insurance Companyin Opposition to MOTION by Plaintiff Katherine Puffer to strike memorandum in opposition to motion 230 Motion to Strike the October 6, 2008 Declaration of Dr. Robert Topel 240 (Attachments: # 1 Exhibit Exhibit A to Allstate's Opposition to Motion to Strike Declaration, # 2 Exhibit Exhibit B to Allstate's Opposition to Plaintiff's Motion to Strike Declaration)(Ehrhart, Katheleen) (Entered: 10/14/2008)
246 MINUTE entry before the Honorable Sidney I. Schenkier: Motion hearing held. Plaintiffs motion for leave to file oversized reply brief in further support of plaintiffs petition for class certification (doc. # 236) is granted. Plaintiff shall file the reply brief as a separate document. For the reasons stated on the record, plaintiffs motion to strike memorandum in opposition to motion to strike 10/6/08 declaration of Dr. Topel (doc. # 240) is granted. The Court strikes the Topel Declaration submitted with defendant's memorandum in opposition to the motion to strike in part the expert report of Dr. Topel (doc. # 230). For the reasons stated on the record, the Court also strikes, sua sponte, the Madden rebuttal report from plaintiff's memorandum in support of the motion to strike in part the expert report of Dr. Topel (doc. # 223). Mailed notice (mmm, ) (Entered: 10/16/2008)
247 REPLY by Plaintiff Katherine Puffer in support of class certification 125 (Glink, Shona) Modified on 10/21/2008 (cdy, ). (Entered: 10/20/2008)
248 REPLY by Plaintiff Katherine Puffer in further support of her motion to strike, in part, the expert report of Dr. Robert Topel 222 (Attachments: # 1 Exhibit A)(Glink, Shona) Modified on 10/21/2008 (cdy, ). (Entered: 10/20/2008)
249 REPLY by Defendant Allstate Insurance Company to memorandum in support of motion 169 , motion to strike 168 Declarations of Current aned Former Allstate Employees (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E, # 6 Exhibit Exhibit F)(Ehrhart, Katheleen) (Entered: 10/20/2008)
250 REPLY by Defendant Allstate Insurance Company to memorandum in support of motion 167 , motion to bar 166 Opinions and Testimony of Plaintiff's Expert Dr. Reskin (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E, # 6 Exhibit Exhibit F, # 7 Exhibit Exhibit G)(Ehrhart, Katheleen) (Entered: 10/20/2008)
251 REPLY by Defendant Allstate Insurance Company in Support of Its Motion to Bar The Testimony and Opinions of Plaintiff's Expert Dr. Madden (Attachments: # 1 Exhibit A−F)(Wermuth, Anneliese) (Entered: 10/20/2008)
252 EXHIBITS by Plaintiff Katherine Puffer to reply in further support of class petition and October 6, 2008 memorandum in opposition to defendant's motion to strike 251 (RESTRICTED). (cdy, ) (Entered: 10/21/2008)
253 MOTION by Plaintiff Katherine Puffer for leave to file Declaration of Janice Madden to Correct the Record (Attachments: # 1 Exhibit Declaration)(Glink, Shona) (Entered: 10/24/2008)
254 NOTICE of Motion by Shona B. Glink for presentment of motion for leave to file 253 before Honorable Sidney I. Schenkier on 11/6/2008 at 08:30 AM. (Glink, Shona) (Entered: 10/31/2008)
255 MINUTE entry before the Honorable Sidney I. Schenkier: The hearing for plaintiff's motion for leave to file Declaration of Janice Madden to Correct the Record 253 is reset to 11/12/2008 at 08:30 AM. The 11/6/08 motion hearing is stricken. Telephone notice (mmm, ) (Entered: 11/05/2008)
256 OPPOSITION by defendant to Plaintiff's Motion for Leave to File Declaration of Dr. Janice Madden to Correct the Record (Wermuth, Anneliese) Modified on 11/10/2008 (cdy, ). (Entered: 11/07/2008)
257 MINUTE entry before the Honorable Sidney I. Schenkier: Motion hearing held. Plaintiff's motion for leave to file declaration of Janice Madden to correct the record 253 is denied for the reasons stated on the record. Mailed notice (mmm, ) (Entered: 11/12/2008)

Case: 1:04-cv-5764 As of: 09/25/2012 11:17 AM CDT 23 of 30

11/24/2008 01/15/2009
01/15/2009 01/21/2009 01/21/2009 01/22/2009
02/04/2009 02/04/2009 02/05/2009
02/10/2009

258 NOTICE by Allstate Insurance Company of Filing Supplemental Authority (Garry, Paul) (Entered: 11/24/2008)
259 MINUTE entry before the Honorable Sidney I. Schenkier: Enter Memorandum Opinion and Order. Plaintiff's motion for class certification 125 is denied. Plaintiff's motion to strike, in part, the Topel Report 222 is denied as moot. Defendant's motions to strike the Madden and Reskin Reports and to strike declarations submitted by plaintiff 164 , 166 , 168 are denied as moot. By 01/30/09, the parties may submit memoranda, not to exceed five pages, on the question of what notice, if any, should be given to putative class members of the denial of class certification. The matter is set for a status hearing on 2/10/2009 at 09:00 AM.) Mailed notice (cdy, ) (Entered: 01/20/2009)
260 MEMORANDUM Opinion and Order. Signed by the Honorable Sidney I. Schenkier on 1/15/2009.(cdy, ) (Entered: 01/20/2009)
261 MOTION by Plaintiff Katherine Puffer to stay regarding memorandum opinion and order 260 PLAINTIFF'S EMERGENCY MOTION TO STAY ORDER DENYING CERTIFICATION PENDING DECISION ON NOTICE TO PUTATIVE CLASS (Attachments: # 1 Exhibit A through D)(Glink, Shona) (Entered: 01/21/2009)
262 EMERGENCY NOTICE of Motion by Shona B. Glink for presentment of motion to stay,, motion for relief, 261 before Honorable Sidney I. Schenkier on 1/22/2009 at 08:15 AM. (Glink, Shona) (Entered: 01/21/2009)
263 MINUTE entry before the Honorable Sidney I. Schenkier:EMERGENCY MOTION HEARING 261 HELD. Plaintiff's emergency motion to stay order denying certification pending decision on notice to putative class 261 is taken under advisement. By 02/04/09, the parties shall submit briefs, not to exceed 15 pages, setting forth their views on the questions raised in the motion as well as on the propriety of notice to the putative class of the denial of class certification. In light of this schedule, the briefing schedule on the question of notice that was previously set in the Court's order denying class certification is stricken. Today's order does not alter or stay the 01/20/09 date of entry of the Court's order denying class certification. It is the Court's intent that the time period for seeking reconsideration or review of the denial of class certification shall commence with the 01/20/09 date of entry of that order.Mailed notice (tlp, ) (Entered: 01/22/2009)
264 MEMORANDUM by Katherine Puffer in support of her motion for stay of the statute of limitations and for Rule 23 notice to class members (Attachments: # 1 Exhibit A through I)(Glink, Shona) Modified on 2/5/2009 (cdy, ). (Entered: 02/04/2009)
265 MEMORANDUM by Allstate Insurance Company on the Issue of Notice of the Denial of Class Certification and Further tolling of the Statute of Limitations (Attachments: # 1 Exhibit A−F)(Wermuth, Anneliese) (Entered: 02/04/2009)
266 MINUTE entry before the Honorable Sidney I. Schenkier: The Court has received the parties' memoranda of law filed on 02/04/09. By noon on 02/12/09, the parties shall replies to the respective memoranda, The parties shall include in their replies their views, supported by any relevant authority, as to the Court's subject matter and/or personal jurisdiction to rule on equitable tolling for persons who are not named plaintiffs in the case, but who are within the definition of the putative class for which certification was denied. The status hearing set for 02/10/09 is stricken, and will be reset as needed after the Court has reviewed the reply memoranda. Telephone notice (mmm, ) (Entered: 02/05/2009)
267 TRANSCRIPT OF PROCEEDINGS held on January 22, 2009, before the Honorable Sidney I. Schenkier. Court Reporter Contact Information: Laura LaCien, 312−408−5032, laura_lacien@ilnd.uscourts.gov.

IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.

Case: 1:04-cv-5764 As of: 09/25/2012 11:17 AM CDT 24 of 30

02/12/2009 02/12/2009 03/12/2009
03/12/2009 03/12/2009 03/16/2009 03/25/2009 04/03/2009 04/13/2009
04/27/2009 04/29/2009

Redaction Request due 3/3/2009. Redacted Transcript Deadline set for 3/13/2009. Release of Transcript Restriction set for 5/11/2009. (Lacien, Laura) (Entered: 02/10/2009)
268 REPLY by Plaintiff Katherine Puffer in further support of her motion for stay of the statute of limitations and for Rule 23 notice to class members (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Glink, Shona) Modified on 2/13/2009 (cdy, ). (Entered: 02/12/2009)
269 REPLY MEMORANDUM by Defendant Allstate Insurance Company to memorandum 265 on Issues of Notice of the Denial of Class Certification and Tolling of the Statute of Limitations (Attachments: # 1 Exhibit 1)(Smylie, Sallie) Modified on 2/13/2009 (cdy, ). (Entered: 02/12/2009)
270 MINUTE entry before the Honorable Sidney I. Schenkier: Status hearing held on 3/12/2009. The parties shall meet and confer to address the contents and form of the notice to be sent to putative class members, the mechanics of the distribution, and who should bear the cost of distribution. By 04/03/2009, the parties shall submit a joint statement addressing those issues. Any disagreements that the parties have concerning the form of notice, the mechanics of distribution, or who should bear the cost of distribution shall be set forth in the joint statement. The matter is set for a status hearing on 04/13/2009 at 9:00 a.m. The joint statement shall not exceed 15 pages (double spaced), exclusive of any attachments setting forth the proposed notice. Mailed notice by judge's staff. (srb,) (Entered: 03/12/2009)
271 MINUTE entry before the Honorable Sidney I. Schenkier: Plaintiffs' emergency motion to stay order denying certification pending decision 261 is granted in part and denied in part as set forth in the opinion. Enter Memorandum Opinion and Order. Mailed notice (cdy, ) (Entered: 03/16/2009)
272 MEMORANDUM Opinion and Order. Signed by the Honorable Sidney I. Schenkier on 3/12/2009.(cdy, ) (Entered: 03/16/2009)
273 NOTICE by Donna M. Welch of Change of Address (Welch, Donna) (Entered: 03/16/2009)
274 OPINION from the USCA for the 7th Circuit; Argued 2/3/09; Decided 3/25/09 in USCA case no. 09−8005 (cdy, ) (Entered: 03/26/2009)
275 JOINT STATEMENT Concerning Notice Issues by Allstate Insurance Company and Plaintiff Katherine Puffer (Attachments: # 1 Exhibit A−Plaintiff's Proposed Notice, # 2 Exhibit B −−Allstate's Proposed Notice)(Coleman, Khara) Modified on 4/6/2009 (cdy, ). (Entered: 04/03/2009)
276 MINUTE entry before the Honorable Sidney I. Schenkier:Status hearing held. The Court approves the form of notice to be given to former putative class members. The Court orders that the cost of providing the notice be borne as follows: (1) plaintiff shall pay the cost of defendant assembling the list of persons who will receive the notice, up to a capped amount of $3,000.00, with defendant to bear any costs of assembling the list that exceed $3,000.00; (2) an outside service shall be retained to receive the list of recipients and to perform the mailing of the notice; and (3) the first $6,000.00 of any costs for the outside service shall be borne equally by plaintiff and defendant, with any costs that exceed $6,000.00 to be borne solely by defendant. By 04/27/09, the parties shall submit a joint statement that addresses (1) the schedule for completing discovery of plaintiff's individual claims, and (2) any issues concerning contact by defendant with defendant's employees. The matter is set for a status hearing on 04/29/09 at 9:00 a.m.Mailed notice (wyh, ) (Entered: 04/13/2009)
277 MOTION by Plaintiff Katherine Puffer, Defendant Allstate Insurance Company for discovery Joint Statement of the Parties (Glink, Shona) (Entered: 04/27/2009)
278 MINUTE entry before the Honorable Sidney I. Schenkier:Status hearing held. Joint discovery scheduled submitted by the parties 277 is adopted by the Court. All non−retained expert discovery shall be completed by 1/25/2010. Plaintiff's expert discovery reports shall be submitted by 2/26/2010. Defendant's expert reports in response to plaintiff's submissions are due by 3/26/2010. No deposition of experts

Case: 1:04-cv-5764 As of: 09/25/2012 11:17 AM CDT 25 of 30

07/08/2009 07/28/2009 08/18/2009 08/19/2009 08/19/2009 09/02/2009 09/02/2009 09/02/2009
09/02/2009 09/11/2009 09/11/2009
09/15/2009
09/22/2009 09/22/2009 10/08/2009

shall be taken until all reports are received. All expert discovery on liability and damage issues and expert depositions shall be completed by 5/14/2010. A status hearing is set on 7/30/09 at 9:00 a.m. Mailed notice (wyh, ) (Entered: 04/29/2009)
279 Notice of Withdrawal of Counsel Khara Coleman by Allstate Insurance Company (Coleman, Khara) (Entered: 07/08/2009)
280 MINUTE entry before the Honorable Sidney I. Schenkier:By agreement of the parties, the status hearing set on 7/30/09 is reset to 8/19/09 at 9:00 a.m. Mailed notice (wyh, ) (Entered: 07/28/2009)
281 ATTORNEY Appearance for Plaintiff Katherine Puffer by Patricia Ann Bronte (Bronte, Patricia) (Entered: 08/18/2009)
282 NOTICE by Patricia Ann Bronte of Change of Address (Bronte, Patricia) (Entered: 08/19/2009)
283 MINUTE entry before the Honorable Sidney I. Schenkier:Status hearing held. The matter is set for status on 11/10/09 at 9:00 a.m. Mailed notice (wyh, ) (Entered: 08/19/2009)
284 MOTION by Plaintiff Katherine Puffer to certify class (Second) (Friedman, Linda) (Entered: 09/02/2009)
285 MOTION by Plaintiff Katherine Puffer for leave to file a Memorandum Exceeding 15 Pages in Support of Class Certification (Unopposed) (Friedman, Linda) (Entered: 09/02/2009)
286 SEALED RESPONSE by Katherine Puffer to protective order 31 Memorandum in Support of Plaintiff's Second Motion for Class Certification (Attachments: # 1 Exhibit Cover Page, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21)(Friedman, Linda) (Entered: 09/02/2009)
287 NOTICE of Motion by Linda Debra Friedman for presentment of motion to certify class 284 , motion for leave to file 285 before Honorable Sidney I. Schenkier on 9/15/2009 at 08:30 AM. (Friedman, Linda) (Entered: 09/02/2009)
288 CORRECTED SECOND MOTION by Plaintiff Katherine Puffer to certify class (Friedman, Linda) Modified on 9/14/2009 (cdy, ). (Entered: 09/11/2009)
289 SEALED RESPONSE by Katherine Puffer to MOTION by Plaintiff Katherine Puffer to certify class Corrected Second Motion 288 Corrected Memorandum in Support of Plaintiff's Second Motion for Class Certfication (Friedman, Linda) (Entered: 09/11/2009)
290 MINUTE entry before the Honorable Sidney I. Schenkier:Motion hearing held. Plaintiff's unopposed motion for leave to file a memorandum exceeding 15 pages in support of class certification 285 is granted. Plaintiff's corrected second motion to certify the class is entered and continued to 9/24/09 at 9:30 a.m. Mailed notice (wyh, ) (Entered: 09/15/2009)
291 MINUTE entry before the Honorable Sidney I. Schenkier:The Court sua sponte, resets the motion hearing set on 9/24/09 to 9/30/09 at 9:30 a.m. Mailed and telephoned notice. (wyh, ) (Entered: 09/22/2009)
292 MINUTE entry before the Honorable Sidney I. Schenkier:The motion hearing set on 9/30/09 is reset to 10/08/09 at 10:00 a.m. Mailed notice (wyh, ) (Entered: 09/22/2009)
293 MINUTE entry before the Honorable Sidney I. Schenkier:Motion hearing held. For reasons stated on the record in open court, plaintiff's second motion for class certification 284 and corrected second motion for class certification 288 are denied. The status hearing set on 11/10/09 is reset to 12/8/09 at 9:00 a.m. Mailed notice (wyh, ) (Entered: 10/08/2009)

Case: 1:04-cv-5764 As of: 09/25/2012 11:17 AM CDT 26 of 30

12/08/2009 12/14/2009
12/14/2009 12/14/2009 12/14/2009 12/14/2009
12/14/2009 12/16/2009 12/17/2009 12/21/2009
01/13/2010 01/13/2010

294 MINUTE entry before the Honorable Sidney I. Schenkier:Status hearing held. The matter is set for status hearing on 1/28/2010 at 9:00 a.m. Mailed notice (wyh, ) (Entered: 12/08/2009)
295 MEMORANDUM in Support of Plaintiff's Motion for Relief Based on Failure to Preserve Documents (Attachments: # 1 Exhibit List, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 8, # 8 Exhibit 10, # 9 Exhibit 12, # 10 Exhibit 13, # 11 Exhibit 14, # 12 Exhibit 15, # 13 Exhibit 16, # 14 Exhibit 17, # 15 Exhibit 18, # 16 Exhibit 19, # 17 Exhibit 20, # 18 Exhibit 21, # 19 Exhibit 22, # 20 Exhibit 24, # 21 Exhibit 25, # 22 Exhibit 26)(Bish, Suzanne) (Entered: 12/14/2009)
296 SEALED EXHIBIT by Plaintiff Katherine Puffer Sealed Exhibits regarding memorandum in support of motion,, 295 (Attachments: # 1 Exhibit 1, # 2 Exhibit 7, # 3 Exhibit 9, # 4 Exhibit 11, # 5 Exhibit 23)(Bish, Suzanne) (Entered: 12/14/2009)
297 MOTION by Plaintiff Katherine Puffer For Relief Based On Failure To Preserve Documents (Bish, Suzanne) (Entered: 12/14/2009)
298 Plaintiff's NOTICE of Motion by Suzanne E. Bish for presentment of motion for miscellaneous relief 297 before Honorable Sidney I. Schenkier on 12/17/2009 at 08:30 AM. (Bish, Suzanne) (Entered: 12/14/2009)
299 MOTION by Plaintiff Katherine Puffer to compel complete interrogatory responses and provide information regarding document production (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15)(Bish, Suzanne) (Entered: 12/14/2009)
300 Plaintiff's NOTICE of Motion by Suzanne E. Bish for presentment of motion to compel, 299 before Honorable Sidney I. Schenkier on 12/17/2009 at 08:30 AM. (Bish, Suzanne) (Entered: 12/14/2009)
301 MINUTE entry before Honorable Sidney I. Schenkier:Plaintiff's motions for relief 297 and to compel 299 are entered and continued to 12/21/2009 at 9:00 a.m. Mailed and telephoned notice (wyh, ) (Entered: 12/16/2009)
302 MINUTE entry before Honorable Sidney I. Schenkier:By agreement, plaintiff's motions for relief 297 and to compel 299 entered and continued to 12/21/2009, is reset to 12/21/2009 at 8:30 a.m. Mailed and telephoned notice (wyh, ) (Entered: 12/17/2009)
303 MINUTE entry before Honorable Sidney I. Schenkier:Motion hearing held. For reasons stated on the record, plaintiff's motion to compel 299 is granted in part and denied in part. The motion is granted insofar as it seeks specific identification of documents being referenced as a Rule 33 response to interrogatories, which are to be identified by Bates number or, in lieu of that, defendant may provide a narrative response. The motion to compel is also granted with respect to the request that Allstate identify by Bates number the documents that it has identified as responsive to specific document requests. The motion is denied insofar as it seeks the identification of file holders from whom specific documents were produced. Allstate shall provide the information required by this order informally, on a rolling basis, as soon as any of the information is available. By 1/4/2010, defendant shall produce formal amended responses to interrogatories and document requests incorporating the required information. Plaintiff's motion for relief 297 is entered and continued. The Court will set a later date for adjudicating that issue. Mailed notice (wyh, ) (Entered: 12/21/2009)
305 MOTION by Plaintiff Katherine Puffer to Defer Expert Reports on Damages Issues (Friedman, Linda) (Entered: 01/13/2010)
306 NOTICE of Motion by Linda Debra Friedman for presentment of motion for miscellaneous relief 305 before Honorable Sidney I. Schenkier on 1/19/2010 at 08:30 AM. (Friedman, Linda) (Entered: 01/13/2010)

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01/15/2010
01/28/2010 05/07/2010
05/11/2010
05/21/2010 05/26/2010 06/17/2010 07/08/2010 07/30/2010 08/26/2010 09/17/2010
01/03/2011 01/07/2011 01/07/2011

307 MINUTE entry before Honorable Sidney I. Schenkier: Joint motion to defer expert reports on damages issues 305 is granted; no appearance on the motion is required. The Court will defer the submission of expert reports on damages to a later date to be determined, as necessary. In all other respects, the expert discovery schedule remains unchanged.Mailed and telephoned. notice (wyh, ) (Entered: 01/15/2010)
308 MINUTE entry before Honorable Sidney I. Schenkier:Status hearing held. The matter is set for status hearing on 5/18/2010 at 9:00 a.m. Mailed notice (wyh, ) (Entered: 01/28/2010)
309 EXECUTIVE COMMITTEE ORDER: It appearing that Jeffrey T. Gilbert has been appointed as a United States Magistrate Judge for the Northern District of Illinois, and It further appearing that Internal Operating Procedure 17(a) provides for the creation of an initial calendar for a newly−appointed magistrate judge; therefore IT is hereby ordered that the attached list of civil consent cases and civil referrals be and they are hereby reassigned to form the initial calendar of the Honorable Jeffrey T. Gilbert. Case reassigned to the Honorable Jeffrey T. Gilbert for all further proceedings. Signed by Executive Committee on 5/7/10. Mailed notice.(td, ) (Entered: 05/11/2010)
310 MINUTE entry before Honorable Jeffrey T. Gilbert: This case having been reassigned to Magistrate Judge Gilbert, status hearing scheduled for 5/18/2010 is stricken and re−set for 5/26/2010 at 2:00 p.m. An initial status report is required. Please refer to Magistrate Judge Gilbert's website for the format of the initial status report. Mailed notice (ep, ) (Entered: 05/11/2010)
311 JOINT INITIAL STATUS Report in Consent Case by Allstate Insurance Company (Wermuth, Anneliese) Modified on 5/24/2010 (cdy, ). (Entered: 05/21/2010)
312 MINUTE entry before Honorable Jeffrey T. Gilbert: Status hearing held. Next status hearing scheduled for 6/23/2010 at 9:30 a.m. to report on settlement progress and, if necessary, to set pretrial and trial dates. Mailed notice (ep, ) (Entered: 05/26/2010)
313 MINUTE entry before Honorable Jeffrey T. Gilbert: By agreement of the parties, the status hearing set for 6/23/2010 at 9:30 a.m. is stricken and reset to 7/8/2010 at 9:45 a.m. Mailed notice (ep, ) (Entered: 06/17/2010)
314 MINUTE entry before Honorable Jeffrey T. Gilbert: Status hearing held. Plaintiff's Motion for Relief Based on Failure to Preserve Documents 297 is withdrawn without prejudice. Status hearing set for 8/5/10 at 1:00 p.m. Mailed notice (ep, ) (Entered: 07/08/2010)
315 MINUTE entry before Honorable Jeffrey T. Gilbert: By agreement of the parties, the status hearing set for 8/5/10 at 1:00 p.m. is stricken and re−set to 8/26/10 at 2:00 p.m. Mailed notice (ep, ) (Entered: 07/30/2010)
316 MINUTE entry before Honorable Jeffrey T. Gilbert: At the request of the parties, the status hearing set for today 8/26/10 at 2:00 p.m. is stricken and reset to 9/21/10 at 1:30 p.m. Mailed notice (ep, ) (Entered: 08/26/2010)
317 MINUTE entry before Honorable Jeffrey T. Gilbert: Status hearing set for 9/21/10 is stricken. Counsel shall call the Court's courtroom deputy, Elisa Perez (312) 408−5024, after their scheduled mediation on 10/19/10 and report on the result of the mediation and to schedule a status hearing with this Court as necessary. Mailed notice (ep, ) (Entered: 09/17/2010)
318 MINUTE entry before Honorable Jeffrey T. Gilbert: Status hearing set for 1/27/11 at 9:45 a.m. If a stipulation to dismiss is filed before that date, then the parties need not appear. Mailed notice (ep, ) (Entered: 01/03/2011)
319 MINUTE entry before Honorable Jeffrey T. Gilbert: This case is dismissed with prejudice. Status hearing set for 1/27/11 at 9:45 a.m. is stricken. Enter Order of Dismissal. Civil case terminated. Mailed notice (ep, ) (Entered: 01/07/2011)
320 ORDER of Dismissal with Prejudice. Signed by the Honorable Jeffrey T. Gilbert on 1/7/2011. (ep, ) (Entered: 01/07/2011)

Case: 1:04-cv-5764 As of: 09/25/2012 11:17 AM CDT 28 of 30

01/07/2011 01/07/2011 01/10/2011
01/10/2011 01/11/2011 01/13/2011 01/18/2011
01/20/2011
01/25/2011 01/28/2011
02/01/2011 02/01/2011 02/03/2011 02/03/2011 02/03/2011 02/11/2011 03/01/2011

321 MOTION by Intervenor Plaintiffs Karen Pell, Mary Keith, Gail Howells to intervene (Attachments: # 1 Declaration of Mary Keith, # 2 Declaration of Karen Pell, # 3 Declaration of Gail Howells)(Glink, Shona) (Entered: 01/07/2011)
322 NOTICE of Motion by Shona B. Glink for presentment of motion to intervene 321 before Honorable Jeffrey T. Gilbert on 1/13/2011 at 09:15 AM. (Glink, Shona) (Entered: 01/07/2011)
323 MOTION by Intervenor Plaintiffs Gail Howells, Mary Keith, Karen Pell to intervene (Attachments: # 1 Exhibit Intervenor Complaint (Attachment A), # 2 Declaration of Mary Keith (Attachment B), # 3 Declaration of Karen Pell (Attachment C), # 4 Declaration of Gail Howells (Attachment D))(Glink, Shona) (Entered: 01/10/2011)
324 NOTICE of Motion by Shona B. Glink for presentment of motion to intervene, 323 before Honorable Jeffrey T. Gilbert on 1/13/2011 at 09:15 AM. (Glink, Shona) (Entered: 01/10/2011)
325 Amended NOTICE of Motion by Shona B. Glink for presentment of motion to intervene, 323 before Honorable Jeffrey T. Gilbert on 1/18/2011 at 09:15 AM. (Glink, Shona) (Entered: 01/11/2011)
326 MINUTE entry before Honorable Jeffrey T. Gilbert: The hearing on the Plaintiffs' Amended Motion to Intervene 323 originally scheduled for 1/18/11 at 9:15 a.m. is reset to 1/18/11 at 10:00 a.m. Mailed notice (ep, ) (Entered: 01/13/2011)
327 MINUTE entry before Honorable Jeffrey T. Gilbert: Motion hearing held. Plaintiffs' Motion to Intervene 323 is entered and continued. Defendant shall file its written objection to the Motion to Intervene 323 by 1/20/11. Intervenor Plaintiffs shall reply by 1/25/11. Hearing on the Motion to Intervene 323 is tentatively set for 1/28/11 at 10:30 a.m. If this date presents a problem, the parties shall contact the Court to reschedule. Mailed notice (ep, ) (Entered: 01/18/2011)
328 RESPONSE by Allstate Insurance Companyin Opposition to MOTION by Intervenor Plaintiffs Gail Howells, Mary Keith, Karen Pell to intervene 323 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Wermuth, Anneliese) (Entered: 01/20/2011)
329 REPLY by Intervenor Plaintiffs Gail Howells, Mary Keith, Karen Pell, Plaintiff Katherine Puffer to motion to intervene, 323 (Friedman, Linda) (Entered: 01/25/2011)
330 MINUTE entry before Honorable Jeffrey T. Gilbert: Motion hearing held. Intervenor Plaintiffs' Amended Motion to Intervene 323 is granted for the reasons stated in open court. The proposed Intervenors are granted leave to intervene under FRCP 24(a)(2) and 24(b)(1)(B). Mailed notice (ep, ) (Entered: 01/28/2011)
331 PAYMENT by Gail Howells, Mary Keith, Karen Pell of Filing fee $ 455, receipt number 0752−5668122. (Friedman, Linda) (Entered: 02/01/2011)
332 NOTICE of appeal by Gail Howells, Mary Keith, Karen Pell regarding orders 270 , 263 , 272 , 276 , 319 , 267 , 320 , 260 , 259 , 266 , 292 , 293 , 271 Filing fee $ 455, receipt number 0752−5668159. (Friedman, Linda) (Entered: 02/01/2011)
333 NOTICE of Appeal Due letter sent to counsel of record. (gel, ) (Entered: 02/03/2011)
334 TRANSMITTED to the 7th Circuit the short record on notice of appeal 332 . Notified counsel (gel, ) (Entered: 02/03/2011)
335 ACKNOWLEDGEMENT of receipt of short record on appeal regarding notice of appeal 332 ; USCA Case No. 11−1273. (psm, ) (Entered: 02/04/2011)
336 DESIGNATION by Gail Howells, Mary Keith, Karen Pell of record on appeal : USCA Case No. 11−1273 (Glink, Shona) (Entered: 02/11/2011)
337 TRANSMITTED to the USCA for the 7th Circuit the long record on appeal 332 (USCA no. 11−1273). (gel, ) (Entered: 03/01/2011)

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03/01/2011 03/02/2011 03/02/2011 03/02/2011 03/03/2011 03/03/2011 03/04/2011 03/07/2011 05/23/2011
05/23/2011
01/09/2012

341 USCA RECEIVED on 3/1/2011 the long record regarding notice of appeal 332 . (gel, ) (Entered: 03/03/2011)
338 NOTICE by Michael M. Mulder of Change of Address (Mulder, Michael) (Entered: 03/02/2011)
339 NOTICE by Thomas R. Meites of Change of Address (Meites, Thomas) (Entered: 03/02/2011)
340 NOTICE by Shona B. Glink of Change of Address (Glink, Shona) (Entered: 03/02/2011)
342 MOTION by counsel for Intervenor Plaintiffs Gail Howells, Mary Keith, Karen Pell to withdraw as attorney Paul W. Mollica (Glink, Shona) (Entered: 03/03/2011)
343 NOTICE of Motion by Shona B. Glink for presentment of motion to withdraw as attorney 342 before Honorable Jeffrey T. Gilbert on 3/8/2011 at 09:15 AM. (Glink, Shona) (Entered: 03/03/2011)
344 MINUTE entry before Honorable Jeffrey T. Gilbert: Intervenor Plaintiffs' Motion to Withdraw 342 is granted. Attorney Mollica is granted leave to withdraw his appearance as counsel for Plaintiff. The hearing on this motion set for 3/8/11 at 9:15 a.m. is stricken. Mailed notice (ep, ) (Entered: 03/04/2011)
345 USCA RECEIVED on 3/7/2011 the original record on appeal, USCA No. 11−1273). (psm, ) (Entered: 03/08/2011)
346 TRANSCRIPT OF PROCEEDINGS held on 10−08−09 before the Honorable Sidney I. Schenkier. Court Reporter Contact Information: Pamela S. Warren, pswcsr@aol.com, 312−294−8907. <P>IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.</P> Redaction Request due 6/13/2011. Redacted Transcript Deadline set for 6/23/2011. Release of Transcript Restriction set for 8/22/2011. (Warren, Pamela) (Entered: 05/23/2011)
347 TRANSCRIPT OF PROCEEDINGS held on 12−21−09 before the Honorable Sidney I. Schenkier. Court Reporter Contact Information: Pamela S. Warren, pswcsr@aol.com, 312−294−8907. <P>IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.</P> Redaction Request due 6/13/2011. Redacted Transcript Deadline set for 6/23/2011. Release of Transcript Restriction set for 8/22/2011. (Warren, Pamela) (Entered: 05/23/2011)
348 TRANSCRIPT OF PROCEEDINGS held on January 28, 2011, before the Honorable Jeffrey T. Gilbert. Court Reporter Contact Information: Laura LaCien, 312−408−5032, laura_lacien@ilnd.uscourts.gov.

IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.

04/18/2012

Redaction Request due 1/30/2012. Redacted Transcript Deadline set for 2/9/2012. Release of Transcript Restriction set for 4/9/2012. (Lacien, Laura) (Entered: 01/09/2012)
349 LETTER from the Seventh Circuit returning the record on appeal in USCA no. 11−1273 consisting of : 1 CD of pleadings, 2 loose pleadings, 6 transcripts and 16

Case: 1:04-cv-5764 As of: 09/25/2012 11:17 AM CDT 30 of 30

04/18/2012
04/18/2012 04/18/2012

sealed envelopes. (psm, ) (Entered: 04/19/2012)
350 MANDATE of USCA dated 03/27/2012 regarding notice of appeal 332 ; USCA No. 11−1273 : The judgment of the District Court is AFFIRMED, with costs, in accordance with the decision of this court entered on this date. (psm, ) (Entered: 04/19/2012)
351 OPINION from the USCA for the Seventh Circuit; Argued 2/23/12; Decided 3/27/12 in USCA case no. 11−1273. (psm, ) (Entered: 04/19/2012)
352 RECEIVED on 4/18/12 the entire record on appeal. (psm, ) (Entered: 04/19/2012)