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.'. '"'

I L E D IN THE UNITED STATES DISTRICT COURTF
FOR THE NORTHERN DISTRICT OF ILLINOI

EASTERN DIVISION

JAN 0 9 ZiJU4

AMY WIGINTON, KRISTINE

)

MORAN, DONDI PLANK, ANDREA )

COREY and OLIVIA KNAPP, individually)

WAYNE R.ANDERSEN U. S. DISTRICT COURT JUDGE

and on behalf of all persons

. )

similarly situated,

)

) Case No.: 02 CV 6832

Plaintiffs,

)

v.

) Judge Andersen

) Magistrate Judge Ashman

)

CB RICHARD ELLIS, Inc.

)
)

JURY TRIAL DEMANDED OI1t:~fTfO

)

Defendant.

)

FEa 06 2004

SECOND AMENDED CLASS ACTION COMPLAINT

Plaintiffs Amy Wiginton, Kristine Moran, Dondi Plank, Andrea Corey, and Olivia Knapp, on

behalfofthemselves and all other similarly situated employees ofCB Richard Ellis ("CBRE" or the

"company',), by their attorneys, allege the following as their Second Amended Class Action

Complaint:

1. This is a class action brought by plaintiffAmy Wiginton ("Ms. Wiginton''), plaintiff

Kristine Moran ("Ms. Moran"), plaintiffDondi Plank ("Ms. Plank',), plaintiffAndrea Corey (''Ms.

Corey'') and plaintiff Olivia Knapp (''Ms. Knapp'') on behalf of themselves and other similarly

situated women (the "Class") against CBRE, to remedy discrimination and harassment on the basis

ofsex, in violation ofthe Civil Rights Act of 1964, as amended in 1991,42 U.S.C. § 2000e, et seq.

(''Title VII''). Plaintiffs seek declaratory and injunctive relief, compensatory and punitive damages,

attorneys fees and other appropriate legal and equitable relief.

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2. PlaintiffWiginton is a female who was constructivelytenninated from her position as a CBRE employee. Plaintiff was subjected to a hostile, offensive and intimidating work environment at the offices maintained by CBRE in the Chicago area (collectively, "Chicago Office"), in addition to various other locations maintained by CBRE throughout the United States. The hostile work environment, which exists company-wide, altered the terms and conditions of plaintiff's employment.
3. Plaintiff Moran is a female who was terminated from her position as a CBRE employee because she became pregnant with her first child. Plaintiffwas also subjected to a hostile, offensive and intimidating work environment at the office maintained by CBRE in its Phoenix, Arizona office.
4. PlaintiffPlank is a female who was constructively terminated from her position as a technical support specialist at the Beverly Hills office ofCBRE. Plaintiffwas subjected to a hostile, offensive and intimidating work environment while working for CBRE. The hostile work environment, which exists company-wide and pervades the corporate culture, altered the terms and conditions ofplaintiff's employment.
S. PlaintiffCorey is a female who was constructively tenninated from her position at the St. Louis office of CBRE. Plaintiff was subjected to a hostile, offensive and intimidating work environment while working for CBRE. The hostile work environment, which exists company-wide and pervades the corporate culture, altered the terms and conditions ofplaintiff's employment.
6. Plaintiff Knapp is a female who was illegally terminated from her position as Transaction Coordinator for the Apartment Team at the Sacramento office ofCBRE. Plaintiffwas subjected to a hostile, offensive and intimidating work environment while working for CBRE. The
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hostile work environment, which exists company-wide and pervades the corporate culture, altered the tenns and conditions ofplaintifI's employment. Shortly after expressing her support for this class action lawsuit due to the hostile work environment in which Ms. Knapp was forced to work, Ms. Knapp was tenninated. This tennination was retaliatory, in violation of Title VIT.
7. Plaintiffs ;md numerous other female CBRE employees have been subjected to persistent unwelcome and offensive touching and groping; they have had their breasts, buttocks and genitals grabbed; they have been flashed by their male colleagues and supervisors in various states of undress; they have had vulgar comments and degrading references about themselves and women generally directed at them on a daily basis; they have been subjected to discussions among male colleagues and superiors about women's sexual perfonnances, their own sexual perfonnances, and the size, shape and relative merits ofwomen's body parts; they have been allowed - or not allowed - to interface with customers based on an individual woman's sex quotient; they have been subjected to the circulation of lewd, offensive and pornographic e-mails and the display of pornographic websites and videotapes; and their claims ofharassment have been ignored or rejected by their office administrators who have been designated as the human resources designees in each office.
8. CBRE management, including but not limited to supervisors and members of the General Counsel's office, at CBRE offices nationwide, is responsible for not only condoning but also
perpetuating a hostile work environment at CBRE. On numerous occasions, members ofCompany
management have harassed Ms. Wiginton, Ms. Moran, Ms. Plank, Ms. Corey and Ms. Knapp and members of the Class and permitted male employees to harass plaintiffs and members ofthe Class
without reprimand. CBRE management has observed sexually explicit behavior in its offices and at
company events and has consistently failed to report it or stop it, allowing the offensive and
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oppressive environment in which plaintiffs and members of the Class have worked or continue to work to persist. CBRE has been and continues to be aware of the existence of the hostile work environment, and the othtlr discriminatory acts committed against female employees on a regular basis.
9. Plaintiffs and members of the Class have requested that the harassing conduct stop and complained to CBRE's Human Resources Department, but management has either been unresponsive, waited an unreasonable amount of time before responding, or forced plaintiffs and members of the Class to confront their harassers directly, causing intimidation and retaliation, without any repercussions to the harassers. Moreover, the office administrators in each of defendant's offices nationwide, who are also supposed to act as the human resources designees in each office, have failed to stop or prevent the sexual harassment occurring nationwide and, in some instances, take part in the sexually-explicit and inappropriate behavior.
10. Furthermore, while CBRE does maintain a written sexual harassment policy or written procedure for employee complaints of sexual harassment, it involves reporting to the very same management personnel who have expressly engaged in behavior to sexually harass and denigrate plaintiffs and members ofthe Class or have otherwise ignored the harassment they see on a daily basis, thus rendering the policy completely ineffective and meaningless.
JURISDICTION AND VENUE 11. Plaintiffs invoke the jurisdiction ofthis Court pursuant to 28 U.S.C. §§ 1343(3) and 1343(4), which confer ori&.jnaljurisdiction upon this Court in a civil action to recover damages or to secure equitable relief(i) under any Act ofCongress providing for the protection ofCivil Rights; and (ii) under 42 U.S.C. § 2000e, et seq.
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12. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b) inasmuch as the unlawful employment practices are alleged to have been committed in the Northem District of TIlinois and the defendant, CBRE, can be found in the Northern District ofnlinois.
13. At all relevant times, defendant constitutes an "employer" within the meaning ofTitle
vn. 42 U.S.C. § 2000e-(b).
PROCEDURAL REOUIREMENTS 14. Ms. Wiginton filed timely charges ofsex discrimination with the EEOC, on her own behalfand on behalfofsimilarly situated individuals. In September 2002, the EEOC issued aNotice ofRight to Sue to Ms. Wiginton. Ms. Wiginton has complied with all statutory prerequisites to the filing of this action. 15. Ms. Moran filed timely charges ofsex discrimination and pregnancy discrimination with the EEOC, on her own behalf (for her claim of pregnancy discrimination) and on behalf of similarly situated individuals (for her claim of sex discrimination). On May 13, 2003, the EEOC issued a Notice of Right to Sue to Ms. Moran. Ms. Moran has complied with all statutory prerequisites to the filing of this action. 16. Ms. Plank will file timely charges ofsex discrimination with the EEOC, on her own behalfand on behalfofsimilarly situated individuals. As a member ofthe class represented byMs.
Wiginton and Ms. Moran, Ms. Plank is entitled to join this Title vn class action litigation at this
time because her claims arise out of the same discriminatory conduct that occurred over the same time period.
17. Ms. Knapp will file timely charges ofsex discrimination with the EEOC, on her own behalfand on behalfofsimilarly situated individuals. As a member ofthe class represented by Ms.
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Wiginton and Ms. Moran, Ms. Knapp is entitled to join this Title vn class action litigation at this
time because her claims arise out ofthe same discriminatory conduct that occurred over the same time period.
18. Ms. Corey is entitled to join this Title vn class action litigation despite not filing
a timely charge with the EEOC because Ms. Wiginton and Ms. Moran filed a timely charge that alleged classwide discrimination and that claimed to represent a class of employees that include Ms. Corey.
PARTIES 19. Plaintiff Amy Wiginton is a resident of Brookfield, lllinois and was employed as a Marketing Director at CBRE's Oak Brook, illinois office, at which she worked from December 7, 1997 until the time she was constructively discharged from CBRE as a result of the hostile work environment on December 31, 2001. 20. Plaintiff Kristine Moran is a resident of Destin, Florida and was employed as a marketing specialist at CBRE's Phoenix office, at which she worked from September 1998 until June 2001. After June 2001, Ms. Moran moved to Midlothian, Virginia and later to Destin, Florida, where she telecommuted and continued to work for her supervisors located in Phoenix at their request. She continued telecommuting from Destin, Florida until the time she was terminated by CBRE for becoming pregnant on October 2, 2002. 21. PlaintiffDondi Plank is a resident ofNorth Hollywood, California, and was employed at CBRE's Beverly Hills/Century City office, at which she worked from February 2000 until the time she was constructively discharged from CBRE as a result ofthe hostile work environment in October 2003.
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22. PlaintiffAndrea Corey is a resident ofOlathe, Kansas and was employed at CBRE's
St. Louis office, at which she worked from July 2000 until the time she was constructively discharged from CBRE as a result of the hostile work environment on June 27, 2002.
23. PlaintiffOlivia Knapp is a resident ofCitrus Heights, California, and was employed as a Transaction Coordinator for the Apartment Team at the St. Louis office ofCBRE. Ms. Knapp worked at the Sacramento office from October 1, 2002 until CBRE retaliated against her for complaining about sexual harassment by terminating her employment on September 29, 2003.
24. Defendant CBRE is a worldwide commercial real estate services company organized under the laws ofthe State ofDelaware and is engaged in property sales, leasing, and management; corporate services; facilities and project management; mortgage banking; investment management; capital markets; appraisal and valuation; research and consulting. CBRE has approximately 10,000 employees in more than 250 offices, maintaining its corporate headquarters in Los Angeles, California. CBRE also maintains five offices in the Chicago metropolitan area. In 2001, CBRE reported $1.17 billion in net revenues.
ALLEGATIONS OF INDIVIDUAL AND CLASSWIDE DISCRIMINATION 25. Plaintiffs and the Class have been and continue to be victims ofa pattern and practice
ofsexual harassment, other forms ofsex discrimination and other forms ofabuse while employed at
CBRE. 26. Specifically, plaintiffs and the Class have been subjected to severe and pervasive
sexual harassment, as follows: (a) Th('Te is and was a sexually hostile, intimidating and offensive work
environment at CBRE directed at plaintiffs and the Class;
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(b) The work environment at CBRE has been, and remains, sufficiently severe so as to alter the terms and conditions ofplaintiffs' and the Class members' employment, and unreasonably interfere with their work perfonnance;
(c) A reasonable person would experience the work environment at the CBRE as hostile, and plaintiffs and the Class perceived and continue to perceive their work
•
environment as hostile and abusive; (d) The abusive and hostile work environment has been and continues to be
pervasive throughout CBRE; and (e) Plaintiffs and the Class have suffered severe emotional distress as well as
other physical and economic injury as a result of the sexual harassment. 27. Plaintiffs and the Class have also been subjected to sexual harassment as a result of supervisors' conditioning the awarding offavorable job assignments and otherjob related benefits on submission to their sexual demands. The rejection ofsuch demands has resulted in an alteration in the tenns and conditions ofplaintiffs' and the Class' employment, and has unreasonably interfered with their work perfonnance. 28. Plaintiffs have repeatedly complained to management about the hostile work environment in which they were forced to work. Moreover, members of CBRE management observed the harassment ofplaintiffs and members ofthe Class. These complaints and instances of harassment were ignored or rejected. Further, CBRE failed to exercise reasonable care in preventing sexual harassment or to correct any of the sexually harassing behavior. 29. In addition, plaintiffs and the Class have been subjected to a pattern and practice of discrimination on the basis ofsex as a result ofa company-wide anti-female attitude and this pattern
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and practice has had a significant effect on the terms, conditions and privileges oftheir employment. 30. Among the evidence ofthe abusive and harassing work environment at the company
are the sexually-explicit and pornographic material disseminated at CBRE, including: lewd, degrading and pornographic e-mail; the display ofpornographic websites, videotapes, calendars and photographs; and birthday cards portraying naked women and the inclusion of pornographic materials, such as a book f-ntitled "101 Nights ofGreat Sex," as "White Elephant" gifts at the annual CBRE office holiday parties.
31. In addition, plaintiffs and similarly situated women have been subjected to a daily barrage of lewd remarks, propositions and sexist insults, as well as leering glances and "elevator eyes" directed their way from co-workers and supervisors. A small sampling of the types of unwanted and offensive comments made to plaintiffs and the Class on a daily basis include:
(a) "She's got a real nice rack;" "I love your breasts;" ''Her breasts are huge;" . "How big are your breasts now?" (during a telephone conversation); and ''You have beautiful breasts;"
(b) Male employees openly ask women about their orgasms, their sexual history, and their sexual interests;
(c) Male employees openly "rate" the figures of women with whom they do business, commenting on their size, their shape, their breasts, their "asses' and their sexuality;
(d) Jefl:"Barrett, the managing director of CBRE's Oak Brook, illinois office, among others, routinely gives birthday cards to male brokers, to be opened in front of the female employees, that display nude or bikini-clad women with prominently displayed
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breasts, at which time the male employees engage in lewd talk; (e) Scott Stubblefield ("Stubblefield'), a broker who worked from CBRE's
Columbus, Ohio office and, on information and belief, now manages the St. Louis, Missouri office, has been overheard asking his male colleagues, ''Does your assistant give good head?";
(f) Specific examples ofthese types ofcomments include: males routinely asked their pregnant female co-workers whether they intended to breast feed and routinely commented on the size and shape oftheir changing figures; male brokers openlydiscuss how to best get their female co-workers pregnant; Gary Fazzio, a broker in Oak Brook, openly asked a pregnant female employee in front of numerous males, "So, how far are you dilated?"; Pete Adamo, another CBRE broker who works in the Oak Brook office asked a female employee "Do you shave your crotch?"; David Justh, a broker in Oak Brook, openly commented on an assistant's breasts and told his assistant (in front ofothers) that she should be working in a factory after berating her in front of others and causing her to cry; Each ofthese comments and topics ofconversation were not isolated incidents but are examples of the types oflewd and sexually charged comments by male employees and members ofmanagement that are an everyday occurrence at CBRE. 32. Plaintiffs and members of the Class have also been subject to unwanted touching, kissing, groping, staring and other forms of harassing attention by co-workers or supervisors. For example:
(a) Jim Hochman, in-house counsel at CBRE, pulled his pants down and flashed
company personnel in South Beach, Florida while on a CBRE Corporate Services trip. On a
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different trip to Key West, Florida, Hochman and Steve Kozarits, among other management personnel, took company employees to a bar where women's naked bodies are painted. Both Hochman and Kozarits later returned to their CBRE offices and recounted, separately, the
naked women they saw to female CBRE employees. On still other occasions, Hochman openly told jokes that were derogatory to women, including jokes referring to ''blonde
pussy;" (b) Hochman's "flashing" incident is not isolated. At firm parties, male
colleagues routinely remove their clothes, engage in stripteases and rub themselves against their female colleagues, take female and male employees to strip clubs and encourage female employees to strip naked and dance on stage; and
(c) For office camping and other overnight trips, male management personnel explicitly direct that the male spouses of female employees are not to be invited and advise female employees that ''they're not married" while on the road because "they are separated from their spouses" and are "allowed" to engage in inappropriate sexual behavior with their male colleagues. Women are also encouraged to take offtheir underwear during canoeing and swimming activities. During these trips, male employees, including management, openly touch women's breasts, groins and bodies, rub their groins against women's bodies, and explicitly proposition women for sex. 33. In addition to being present for degrading comments and sexual jokes regarding women generally, Ms. Wiginton, like the members of the Class, was subjected on a daily basis to harassment that included: i) verbal comments regarding her breasts, her body, her sexual history, her husband's sexual interests, her orgasms; ii) verbal propositions for sex; and iii) unwanted touching,
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including being rubbed by men's penises and having her breasts groped and grabbed. Examples include:
(a) At a Special Properties Group ("SPG'') outing at a bar in St. Simons Island, Georgia, Steve Kozarits ("Kozarits''), Ms. Wiginton's supervisor, encouraged her to dance with Stubblefield, stating "Go dance with Stubby. You'll make his night"· Ms. Wiginton repeatedly stated that she was not interested. When Ms. Wiginton finally did at Kozarits' behest, Stubblefield rubbed his body, including his erect penis, against Ms. Wiginton, over her protests and struggles to get away;
(b) George Relias, Ms. Wiginton's former supervisor, grabbed her breasts (about which Ms. Wiginton complained to management and Human Resources). After this incident, Relias continually stared at Ms. Wiginton's breasts and denied her the opportunity to move her cubicle away from his office to an open cubicle on the other side ofthe office when she requested.
(c) Kozarits, Ms. Wiginton's supervisor at the time she was constructively discharged, propositioned Ms. Wiginton constantly; required Ms. Wiginton to have close physical contact with him while sitting in meetings and while traveling; commented on a daily basis about her breasts, her legs, and her clothes; questioned her regarding her sexual life, including asking every Monday "So, did you have sex this weekend?" and called her "Wiggles" in frollt of colleagues and clients referencing her breasts. Ms. Wiginton constantly requested that Kozarits stop his harassing behavior. Kozarits' response to Ms. Wiginton's request that he stop harassing her was always, ''No, you love it" or "You know I love you."
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(d) Chuck Finney, a broker in CBRE's Dallas, Texas office, openly commented on Ms. Wiginton's figure during a CBRE World Conference at Mandalay Bay, stating, ''My, don't you just have the prettiest little figure," while looking her body up and down;
(e) Having heard that Ms. Wiginton had suffered a miscarriage, David Hinchman, a CBRE broker from the Kansas City office, asked Ms. Wiginton, "So, how's the babymaking going?" at a firm dinner in front ofmale colleagues. When Ms. Wiginton failed to provide details, Hinchman proceeded to tell Ms. Wiginton that he practiced Tantra Sex, which he explained as creating longer-lasting orgasms and a heightened state of awareness during orgasms. Hinchman further explicitly described the orgasms he had experienced and directly asked Ms. Wiginton whether she had orgasms;
(f) At a later date, after Ms. Wiginton had a baby, her supervisor, Kozarits, asked, "Does [your husband] like the size of your breasts?" and "Does [your husband] love your breasts?" and further stated ''Tell [your husband] he should get all he can of them now." Kozarits commented on and inquired whether Ms. Wiginton would be having sex with her husband after the six-week check-in after giving birth. Kozarits further told Ms. Wiginton he loved her "voluptuous figure," in response to which Ms. Wiginton called Kozarits a pig.
(g) While Ms. Wiginton was on maternity leave, her male supervisor, Kozarits, circulated an e-mail to the 45 men for whom Ms. Wiginton worked implying that the father of the child was a male colleague as the result of an illicit sexual affair;
(h) After returning from the company trip in Key West, Florida, where employees went to the barwhl.\'I'e naked women's bodies are painted, Hochman and Kozarits separately recounted, in detail, their experiences to Ms. Wiginton. Further, Kozarits stated, "!fyou were
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wearing a wet t-shirt, you would have fit in perfect," referring to Ms. Wiginton's breasts; and

(i) When Hochman ran into Ms. Wiginton in a parking lot while accompanied by

two male management personnel, Hochman called out to Ms. Wiginton, "HeyAimless." Ms.

Wiginton sent Hochman an e-mail complaining about the derogatory nature ofthe nickname

and later discussed the issues with Hochman in person. Hochman responded: ''That's a pet

name. That's what I call all my ex-girlfriends." (Of course, Ms. Wiginton never was his

girlfriend).

34. Plaintiff Wiginton was told that her life could be made easier if she submitted and

played along with the sexual advances ofher colleagues.

35. PlaintiffMoran also was, like the members ofthe Class, subjected on a dailybasis to

harassment that included: (a) receiving lewd emails; (b) comments about the sexual attributes ofher

body parts; and (c) sexual and derogatory jokes about women. Examples include:

(a) At a conference in Mandalay Bay, a male broker told Ms. Moran that ''You

have the nicest boobs ofanyone in the office. IfI could touch anyone's boobs, in the office,

they would be yours."

(b) Jim Fijan, a broker from the Phoenix office, and his team circulated an

invitation to a "Suite Party" to be held in connection with a conference held by CBRE. That

invitation contained pictures offour male brokers in the CBRE Phoenix office in silk robes

surrounded by women with large breasts in bikinis.

(c) On Valentine's Day 2001, Ms. Moran received flowers from her boyfriend

(now husband), John. John had enclosed a card that said ''Happy Valentine's Day. Love,

John." When Jim Fijan, a top broker in CBRE's Phoenix office whom Ms. Moran hardly

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knew, learned that Ms. Moran had received flowers, he removed the card containing the message from Jolm, turned it over, and wrote "Can't wait for some hot sex with oral benefits. Love, John." on the back of the card. Mr. Fijan then placed his message face up back in envelope. Ms. Moran knew that her boyfriend could not have written this message and was .humiliated that one of her co-workers had written it. Instead of fully investigating this incident, CBRE coerced Ms. Moran into signing an acknowledgement that CBRE's proposed remedy ofplacing a reprimand in Mr. Fijan's file was acceptable to her. 36. On at least one occasion, Ms. Moran complained to human resources. However, her complaints went unnoticed because the contact in human resources, Diana Granieri, participated in the sexual harassment in the office, including making comments at office parties such as ''I give great blow jobs; let's go back to your car" and loudly describing her sexual exploits with male employees on a weekly basis to CBRE staff. During a business trip, Ms. Granieri flashed her breasts and crotch at a female employee to attempt to encourage her to "lighten up" and participate in sexual games on the plane. Even though employees complained about Ms. Granieri's behavior, she was never removed, nor were CBRE employees provided another human resources representative to contact. 37. Moreover, Ms. Granieri's actions were similar to the actions of other office administrators (the majority ofwhich are female) in defendant's offices. Despite the fact that these office administrators were supposed to be the human resources designee for each office, the administrators did not have the training or the authority to effectively administer grievance procedures or the defendant's "zero tolerance" sexual harassment policy. For example,
(a) Ms. Granieri participated in the inappropriate and sexual behavior in the office, offering to give male employees ''blowjobs" at office parties, dirty dancing with male
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brokers, and otherwise ignoring or participating in the inappropriate behavior of the male supervisors and employees;
(b) The administrator in the St. Louis, Missouri office simulated sex acts at office parties, laughed when she observed women being pawed and groped in the office by male supervisors and employees, and told women employees that ''this was how offices were" and ignoring their pleas for help.
(c) The administrators in the Chicago, lllinois and Kansas City, Missouri offices ignored the sexual harassment around them because they did not have the authority to reprimand, discipline, suspend, terminate, or otherwise confer repercussions on the male brokers in their office for their inappropriate actions. In fact, certain administrators have stated that they could not take action to stop the sexual harassment and were hesitant to hire attractive young female employees because the male brokers make too much money for the defendant, and thus have too much power, for the administrators to take any actions against them. 38. Thus, at all times relevant to this action, the existence and severity of the sexually harassing environment was fully known by CBRE management. 39. All part of the hostile work environment at CBRE, PlaintifIMoran was a victim of pregnancy discrimination. Ms. Moran worked as a marketing specialist in the Phoenix, Arizona office of CBRE from September 1998 to June 2001. In June 2001, Ms. Moran and her husband moved to Midlothian, Virginia. When Ms. Moran attempted to resign, her supervisors encouraged her to telecommute, which Ms. Moran agreed to do. CBRE continued to support Ms. Moran's telecommuting when she moved to Destin, Florida.
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40. Before she was terminated for becoming pregnant on October 2,2002, Ms. Moran's perfonnance was exemplary and she received positive perfonnance evaluations.
41. In October 2001, Ms. Moran told her supervisors, Jim Trobaugh, Rob Marsh, and Chris Hook, that she was pregnant. Ms. Moran also infonned two human resource representatives that she was pregnant. First, Ms. Moran contacted Cyndi Dimel in Human Resources to fully understand her maternity benefits and FMLA. Second, Ms. Moran infonned Denis Magee that she was pregnant and arranged the details ofher maternity leave at the sarne time. CBRE therefore had knowledge that Ms. Moran was pregnant as early as October 2001.
42. In anticipation ofher maternity leave, Ms. Moran spent a great deal oftime training a new member ofher tearn and ensuring that her tearn would have everything it needed in her absence.
43. Despite Ms. Moran's efforts, as the commencement ofMs. Moran's maternity leave approached, her supervisors stopped returning her calls and emails and did not attempt to contact her at all. Eventually, just one week before Ms. Moran's maternity leave, Rob Marsh called Ms. Moran and asked "Haven't you noticed that we have been treating you differently these last two weeks and ignoring you?" Mr. Marsh thereafter made comments to Ms. Moran that he was disappointed to learn that her maternity leave would last 12 weeks and implied that this was the reason he was no longer speaking to Ms. Moran. Mr. Marsh stated that he did not want Ms. Moran to take 12 weeks ofleave because, by the time she returned from maternity lave, the real estate year would already be over. He also stated, for the first time ever, that he was unhappy with Ms. Moran's work perfonnance and tried to get her to quit.
44. Later that day Mr. Marsh called Ms. Moran back with a member ofHR in the room. At that point, Mr. Marsh stated that, in order to make sure Ms. Moran contributed to the "team"
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before the year was over, Ms. Moran needed to "hit the ground running" when she returned from her maternity leave and asked Ms. Moran to complete some marketing initiatives during her leave. Despite the fact that Ms. Moran repeatedly requested those initiatives, she never received them. While Ms. Moran was on maternity leave, only one ofher supervisors made any attempt to contact her; instead, they attempted to find her replacement.
45. Ms. Moran returned to work on August 20, 2002. From that date until October 2, she
only received one project. Her supervisors rarely spoke to her and did not respond to her calls or emails. Whereas prior to her maternity leave she had been invited to meetings, they thereafter failed to include her in meetings.
46. On October 2, 2002, Ms. Moran was contacted by her supervisor and terminated because "the telecommuting wasn't working out." This excuse was a pretext for terminating Ms. Moran because she was pregnant.
47. PlaintiffDondi Plank was also subjected to sexual harassment and forced to work in a hostile environment on a daily basis before being constructively discharged.
48. When Ms. Plarlk first began working at CBRE, she discovered pornographic material on the office server on a regular basis. Male brokers would ask Ms. Plank to show them how to download pornographic material onto their hard drives. For example, Marc Pollock, a broker in the office, had Ms. Plank archive his pornographic email.
49. The brokers attempted to hide pornographic materials from Ms. Plank after she expressed her disgust with this type ofmaterial. However, Ms. Plank still found pornographic material on the company computers and on the two office servers. Some examples of the sexual harassment Ms. Plank experienced as the result of this pornographic material and other incidents of sexual
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harassment include: (a) On one male broker's computer Ms. Plank recently viewed a video ofwhat to
look for in hiring a secretary that was pornographic in nature. Ms. Plank also viewed another email with pictures ofwomen in sexual poses with donkeys.
(b) Just a few weeks before Ms. Plank's constructive discharge from CBRE she found a partially naked picture ofPamela Anderson on a networked office printer. Ms. Plank found these types of materials since the beginning of her employment at the Beverly Hills office ofCBRE and continued to find similar materials until the last day ofher employment there.
(c) Approximately three years ago Ms. Plank attended a company holiday party and one of the male employees touched her in an inappropriate and unwanted way. Ms. Plank complained to the office manager, Jane Mutz, but nothing was done. When Ms. Plank spoke to Ellis Reiter, CBRE's General Counsel, Mr. Reiter asked Ms. Plank what should be done about the incident. Mr. Reiter then told Ms. Plank that there was nothing he could do about her complaint.
(d) On numerous occasions Ms. Plank also witnessed the male brokers ''rate'' women and make sexually inappropriate comments on a regular basis. One male broker also used an inappropriate pet name, ''Dondalicious,'' when he addressed Ms. Plank. SO. Ms. Plank complained about the pornographic material on the office server and on brokers' computers several times. However, the only thing that management did was suspend several support staff people (and not the brokers) for two weeks. 51. At one point, Ms. Plank even complained about the pornography in the office to
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CBRE's General Counsel, Ellis Reiter. As Mr. Reiter did when Ms. Plank complained about being inappropriately touched at a CBRE holiday party, Mr. Reiter again asked Ms. Plank what she thought
should be done about the pornography circulating in CBRE's BeverlyHills/Century City office. Ms. Plank recommended that the company purchase auditing software that would monitor any
pornographic material that was accessed from company computers. Mr. Reiter rejected Ms. Plank's recommendation and told her that it was not worth the cost to purchase this software. Mr. Reiter also
said that he thought my recommendation would be "Big Brother" in nature. 52. The sexual harassment experienced by Ms. Plank is pervasive throughout the office.
Women who work in the office, especially the women brokers, have complained to Ms. Plank about this environment but are afraid to complain to management because theyknow it is tolerated and fear retaliation. Therefore, these women brokers feel they simply have to put up with this type of behavior.
53. Ms. Plank is aware offemale brokers who have been sexually harassed and physically sexually assaulted by male brokers in the office. When those women have complained they have been told that there is nothing that the management can do because the women cannot prove that anything happened to them.
54. Ms. Plank has knowledge that the then Managing Director at the Beverly Hills office knew this type of conduct was occurring but did nothing to stop it.
55. The sexual harassment and the company's failure to prevent it interfered with and made it impossible for Ms. Plank to perform her job responsibilities.
56. - PlaintiffAndrea Corey was also subjected to sexual harassment and forced to work in a hostile environment at CBRE's St. Louis office on a daily basis before being constructively
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,

Case 1:02-cv-06832 Document 89 Filed 01/09/2004 Page 21 of 30

discharged. Examples ofthe sexual harassment Ms. Corey experienced include: (a) A male broker said to a woman working in the St. Louis office (in hearing
range ofothers) on one occasion: "Hey, I had a dream about you last night. You were lying on the ground with your butt in the air and you were injured." At this point, Ms. Corey interjected and stat.ed: "What are you talking about? That is not appropriate discussion in an office." On another occasion, the same male broker said to the same woman, "It's obvious you want me."
(b) Ms. Corey was told in complete detail a story about how, on a work trip, the male brokers got a female assistant drunk and asked her to engage in sexual acts.
(c) In early 2002, a male broker, Jeffrey Hawley, rubbed his body against Ms. Corey's back and bottom, then turned her around and rubbed up against her front. Ruth Braun, the office manager and human resources designee in the St. Louis office, laughed about it in front of Ms. Corey.
(d) Male supervisors and employees routinely circulate pornographic and lewd email to women in the office. An example of the type of e-mail that male employees circulated was one that displayed a sorority house full ofnaked girls performing sex acts with one another. Male employees also would pull up pornographic pictures on their computers and show them to the women in the office.
(e) Male employees routinely watch porn movies in the office, within earshot and sight of female employees. One male broker watches porn tapes in his office all the time. 57. Ms. Corey talked to Ruth Braun, the office manager and human resources designee in the St. Louis office, over a period of time in multiple meetings about the sexual harassment
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•
problems in the office. Ms. Corey complained numerous times about how the women were treated by the brokers. Ms. Braun's response was: ''This is how offices are or can be." 58. In fact, Ms. Braun, who was supposed to be the person to whom women complained of sexual harassment and discrimination issues, participated in the sexual acts that pervaded the office. At one office party, Ms. Braun and a female broker, Eileen George, climbed up on a table, put a beer bottle between them in crab-like positions and simulated having sex with one another. This was done in full view of both male supervisors and employees and female employees. 59. Ms. Corey also complained to the managing director of the St. Louis office, Steve Kozarits, about the sexual harassment ofthe women in the office. On one occasion, Ms. Corey had a meeting with Steve Kozarits about how women in the office were treated, and specifically about the treatment ofthe female assistant. On another occasion, Ms. Corey told Mr. Kozarits that, because of the harassment, the "men in this office would not let the women work." 60. Mr. Kozarits said that it didn't matter how the guys were acting, it only mattered how the women were receiving the attention and whether CBRE was going to get sued. 61. Mr. Kozarits knew ofand tolerated the harassment by the male brokers. Neither Ms. Braun nor Mr. Kozarits ever took any action based on Ms. Corey's complaints or complaints ofany other women in the office. After Ms. Corey would complain to Ms. Braun or Mr. Kozarits, the male brokers would retaliate, refusing to speak to the women and making snide jokes about them within earshot. 62. Plaintiff Olivia Knapp, in addition to being subjected on a daily basis to lewd and offensive jokes, was forced to work in a hostile enviromnent in the Sacramento CBRE office where male brokers constantly dl:graded women and displayed pornographic material on their computers.
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•
Examples ofthe sexual harassment Ms. Knapp experienced and witnessed at the Sacramento CBRE office include:
(a) On numerous occasions, Ms. Knapp's supervisors told her that women should only work as secretaries, commented on women's looks and referred to women as "eye candy" and openly managed the workplace so that only "sexy" women were allowed to meet with clients.
(b) On at least one occasion, Ms. Knapp's supervisors made sexual comments to her telling her to ''bend over" while laughing at her.
(c) On several occasions Ms. Knapp complained to her Office Services Manager ("OSM"), the Human Resources contact in the Sacramento office. On more than one of these occasions Ms. Knapp was crying because of how she was being harassed. Human Resources never took any action based on Ms. Knapp's numerous complaints. When Ms. Knapp asked the OSM why no action was taken, she told Ms. Knapp that the support staff was here to please the brokers and ''that's just how it is." Further, the OSM personally witnessed sexual harassment in the office and took no action to stop or prevent it.
(d) Ms. Knapp is also aware of and has witnessed harassment of a sexual and derogatory nature directed at other women in the office. She is aware that other women in the office find the behavior offensive and intimidating but have said they cannot complain for fear oflosing their jobs. 63. Plaintiff Knapp was also terminated in violation of Title VIT. Just before CBRE terminated Ms. Knapp, CBRE hired a woman to review and analyze the structure ofMs. Knapp's team. Ms. Knapp told this woman that she was extremely unhappy with the way she was treated,
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Case 1:02-cv-06832 Document 89 Filed 01/09/2004 Page 24 of 30
•
including the sexual harassment and derogatory behavior. Ms. Knapp also told this woman that she supported the actions that the women were taking in this class action lawsuit to halt harassment. Immediately after this, Ms. Knapp was terminated under the pretext of excessive absenteeism.
64. Thus, at all times relevant to this action, the existence and severity of the sexually harassing environment was fully known by CBRE management.
65. As set forth herein, there is a pervasive and severe pattern and practice of sexual discrimination at CBRE, including a hostile work environment, individual instances ofharassment, denial of job benefits to women because of their sex, retaliation and other forms of abuse. Each paragraph above describes a pattern and practice of sex discrimination.
CLASS ALLEGATIONS 66. Plaintiffs sue on their own behalfand on behalfofa class ofpersons under Rule 23(a) and (b)(2) and (b)(3) of the Federal Rules of Civil Procedure defined as follows:
All women employed by CB Richard Ellis at any time between January 1, 1999 and the present (the "Class Period"). 67. CBRE has employed more than 1,000 women nationwide during the Class Period. Therefore, the Class is so numerous that joinder of all members is impracticable. 68. All members ofthe Class have been damaged by the same common course ofconduct alleged herein, and this common course ofconduct has affected the Class as a whole. This common course of conduct presents questions of law and fact which are common to the Class, and predominate over any questions affecting only individual members of the Class. These questions include, but are not limited to the following: (a) whether CBRE engages in a pattern and practice of discrimination against
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Case 1:02-cv-06832 Document 89 Filed 01/09/2004 Page 25 of 30
•
female employees by allowing and promoting a hostile, intimidating and offensive work environment directed toward its female employees at its offices;
(b) whether CBRE otherwise engages in a common course of conduct that discriminates against plaintiffs and other members of the Class on the basis of sex with respect to the terms and conditions oftheir employment;
(c) whether members of CBRE management condone and participate in the sexual harassment and sexual discrimination of its female employees;
(d) whether CBRE has exercised reasonable care to prevent and correct promptly any sexually harassing behavior;
(e) whether CBRE has retaliated against any or all of the Class members for complaining about the sexual harassment and/or discrimination;
(f) whether the members of the Class have sustained damages, and, if so, the proper measure of damages; and
(g) whether CBRE's discriminatory policies and practices should be e1irninated, and, if so, the proper procedure for doing so. 69. The claims ofthe individual named plaintiffs are typical ofthe claims ofthe Class and do not conflict with the interests ofany other members ofthe Class in that all have suffered from the same wrongful common course ofconduct ofthe Company and its agents. 70. The individual named plaintiffs will fairly and adequately represent the interests of the Class. Plaintiffs' attorneys are qualified to pursue this litigation and have extensive experience in class actions, including employment discrimination actions. 71. A class action is superior to other methods for the fast and efficient adjudication of
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Case 1:02-cv-06832 Document 89 Filed 01/09/2004 Page 26 of 30

this controversy. A class action regarding the issues in this case creates no problems of

mrnageability. ~

COUNT I DISCRIMINATION IN VIOLATION OF TITLE VII
(On Behalf of Plaintiffs and the Class)

72. Plaintiffs repeat and reallege every allegation above as if fully set forth herein.

73. Defendant has discriminated against plaintiffs and the Class by subjecting them to a

hostile, offensive and intimidating work environment based on sex.

74. In addition, defendant has discriminated against plaintiffs and the Class by permitting

job related benefits to be granted to those women who submitted to its agents' requests for sexual

favors, and by refusing job benefits to and otherwise retaliating against women who refused its

agents' requests for sexual favors.

75. Defendant.has also discriminated against women on the basis ofsex by treating them

differently than their male co-workers in the terms, conditions and privileges oftheir employment.

Defendant failed to exercise reasonable care to prevent and correct promptly the sexually harassing

behavior.

76. Defendant was aware of the above conduct at all relevant times.

77. Plaintiffs and members ofthe Class have suffered damages as a result ofdefendant's

common course of conduct alleged above.

COUNT II DISCRIMINATION IN VIOLATION OF PREGNANCY DISCRIMINATION ACT
(On behalf of Plaintiff Kristine Moran)

78. Plaintiffs repeat and reallege every allegation above as if fully set forth herein.

79. Plaintiff Moran was pregnant during her employment at CBRE.

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Case 1:02-cv-06832 Document 89 Filed 01/09/2004 Page 27 of 30
80. Beginning in October 2001, CBRE knew that Ms. Moran was pregnant because Ms. Moran told Jim Trobaugh, Rob Marsh, and Chris Hook, her three supervisors, that she was pregnant. In addition, Ms. Moran contacted two human resources representatives, Cyndi Dimel and Denise Magee, regarding her pregnancy.
81. Throughout her employment at CBRE, Ms. Moran perfonned her duties satisfactorily. 82. Ms. Moran was discharged from her employment at CBRE because ofher pregnancy. 83. Women who perfonned as well as Ms. Moran who did not become pregnant were not discharged. 84. CBRE had no legitimate, non-discriminatory reason to terminate Ms. Moran.
PRAYER FOR RELIEF WHEREFORE, plaintiffs and the Class respectfully request that this Court grant the following relief: A. CertifY thill case as a class action, the named plaintiffs herein as adequate Class representatives and plaintiffs' counsel as counsel for the Class; B. Enter ajudgment that the acts and practices ofdefendant complained ofherein are in violation of the laws of the United States and the State oflllinois; C. Grant a pennanent injunction enjoining CBRE, its agents and employees from (i) continuing to discriminate against plaintiffs and Class members because oftheir sex; (ii) engaging in the sexual harassment offemale employees; (iii) creating, facilitating orperrnitting the existence ofa work environment that is hostile to female employees; (iv) retaliating against employees who complain, in whatever manner, about sex discrimination, including sexual harassment; and (v) otherwise depriving plainliffs and the Class oftheir rights and privileges secured by federa1law;
II
I'
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Case 1:02-cv-06832 Document 89 Filed 01/09/2004 Page 28 of 30
D. Order CBRE to ensure that appropriate remedial action is taken to avoid the occurrence of further incidents of sexual harassment or sex discrimination against its female employees;
E. Order CBRE to adopt and enforce a policy for the prevention of sexual harassment and any other forms of discrimination based on sex, which shall include (i) the presence of independent personnel to whom complaints of sexual harassment, or other forms of sex discrimination may be directed; (ii) provisions for the confidentiality of any such complaints; and (iii) provisions requiring the complete and impartial investigation of any such complaint filed;
F. Order CBRE to impose substantial discipline, such as suspension without pay, demotion or termination, upon any supervisor or manager who engages in sexual harassment or sex discrimination or permits any such conduct to occur in his or her work area or among employees under his or her supervision, or who retaliates against any person who complains or participates in any investigation or proceeding arising out of any such conduct;
G. Order CBRE to revise its supervisory appraisal process and include performance evaluations for the handling of equal employment opportunity issues as an element in supervisor appraisals and to link such evaluations directly to supervisor salarylbonus structure;
H. Order CBRE to provide annual sexual harassment training to all employees, managers, supervisors and other management personnel, and to provide such training to all persons charged with the handling ofcomplaints ofsexual harassment and other forms ofsex discrimination;
1. Award plaintiffs and the Class all back pay, front pay, benefits, and any other remuneration to which they would have been entitled but for defendant's discrimination;
J. Award plaintiffs and the Class compensatory and punitive damages;
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Case 1:02-cv-06832 Document 89 Filed 01/09/2004 Page 29 of 30

K. Award plaintiffs the costs of this action, including the fees and costs of experts, together with reasonable attorneys' fees; and
L. Grant plaintiffs and the Class such other and further relief as this Court finds necessary and proper.
JURY DEMAND
Plaintiffs demand a trial by jury on all issues of fact and damages so triable in this action.

DATED: January 9,2004

AMY WIGINTON, KRISTINE MORAN,
DONDI PLANK, ANDREA COREY, and OLIVIA KNAPP, individually and on behalf of the Class, Plaintiffs
Br.J~~ l One Their Attorneys

Kenneth A. Wexler Elizabeth Fegan Hartweg Jennifer Fountain Connolly THE WEXLER FIRM One North LaSalle Street, Suite 2000 Chicago, lL 60602 Tel: (312) 346-2222 Fax: (312) 346-0022
Steve Bennan Nicholas Styant-Browne HAGENS BERMAN LU' 1301 Fifth Avenue Suite 2929 Seattle, WA 98101 (206) 623-7292

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Case 1:02-cv-06832 Document 89 Filed 01/09/2004 Page 30 of 30 IoDeeFavre FAVRE & ALLEN 121 East Main StreeL Belleville, IL 62220 (618) 236-7736 Daniel E. Gustafson Karla M. Gluek GUSTAFSON GLUEK PLLC 725 Northstar East 608 Second Avenue South Minneapolis, MN 55402 (612) 333-8844
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 Case: 1:02-cv-06832 Document #: 360 Filed: 01/09/08 Page 1 of 5 PageID #:3670

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

AMY WIGINTON, KRISTINE MORAN, )

NORMA PLANK FETHLER as successor in )

interest to Dondi Plank, ANDREA COREY and )

OLIVIA KNAPP, individually and on behalf of )

all persons similarly situated

)

)

Plaintiffs,

)

)

v.

)

)

CB RICHARD ELLIS, INC.,

)

Defendant.

) )

Case No.: 02 CV 6832
Judge Wayne R. Andersen Magistrate Judge Martin C. Ashman

[Pili;] ;: !lilB] ORDER ENTERING FINAL JUDGMENT AS TO CLASS CLAIMS,

GRANTING FINAL APPROVAL TO CLASS ACTION SETTLEMENT AND

APPROVING IMPLEMENTATION OF THE TIER PROGRAM

'

This Court having considered: (a) Corrected Settlement Agreement and Consent Decree

and Exhibits filed with the Court on October 24, 2007 (collectively referred to as "the Decree,"

"the Consent Decree" or "Settlement Agreement"); (b) the proposed Tier Program, and having

held a hearing on January 9, 2008, and having considered all of the submissions and arguments

with respect thereto, and otherwise being fully informed, and good cause appearing therefore,

IT IS HEREBY ORDERED, ADJUDGED and DECREED that:

I. This Final Order and Judgment incorporates herein and makes a part hereof, the

Decree, including the Exhibits thereto. Unless otherwise provided herein, the terms defined in

the Decree shall have the same meanings for purposes of this Final Order and Judgment.

2. The Court has personal jurisdiction over all Class Representatives, Class

Members and Defendant CBRE for purposes of this Settlement only, and has subject matter

jurisdiction to approve and enforce the Agreement.

Case: 1:02-cv-06832 Document #: 360 Filed: 01/09/08 Page 2 of 5 PageID #:3671
3. Based on the record before the Court, including all submissions in support of the Settlement set forth in the Decree, objections and responses thereto, as well as the Decree, the Court hereby certifies the following nationwide Class (the "Class") for settlement pwposes only:
All female employees who were or have been employed by CBRE at any time during the period from January I, 1999 to October 4, 2007. 4. In so holding, the Court finds that the prerequisites of FED. R. CJV. P. 23(a), (b)(2), and (b)(3) have been satisfied for certification of the nationwide Class for settlement purposes only: the Class is sufficiently numerous that joinder of all members is impracticable; there are questions of law and fact common to the Class; the claims and defenses of the Class Representatives are typical of the claims and defenses ofthe members of the Class; the Class Representatives have fairly and adequately protected the interests of the Class with regard to the consolidated claims of the Class; Class Counsel fairly and adequately protected the interests of the Class through the provision of competent and diligent representation of the named plaintiffs and pursuit of the Class' claims; the equitable relief afforded by the Settlement Agreement is appropriate for class certification under Rule 23(b)(2); the common questions of law and fact predominate over questions affecting only individual Class Members, rendering the Class sufficiently cohesive to warrant a nationwide class settlement under Rule 23(b)(3); and settlement is a fair and efficient resolution of the Litigation. In making all of the foregoing findings, the Court has exercised its discretion in certifying the settlement Class. 5. The record shows that Notice has been given to the Class in the manner approved by the Court in its Preliminary Approval Order of October 4, 2007 [Docket No. 316) and the Corrected Preliminary Approval Order of November 28, 2007 [Docket No.. The Court finds that such Notice: (i) constitutes reasonable and the best practicable notice; (ii) constitutes notice that was reasonably calculated, under the circumstances, to apprise members of the Class of the
2

Case: 1:02-cv-06832 Document #: 360 Filed: 01/09/08 Page 3 of 5 PageID #:3672

terms of the Settlement, and Class Members' right to object to and appear at the settlement

fairness hearing held on January 9, 2008 (the "Fairness Hearing") or exclude themselves from

the Class, (iii) constitutes due, adequate, and sufficient notice to all persons or entities entitled to

receive notice; and (iv) meets the requirements of due process and FED. R. CIV. P. 23.

6.

No individuals, other than those listed on Exhibit A hereto, have excluded

themselves from the Class. This Order shall have no force or effect on the persons listed on

Exhibit A hereto.

7.

The Court finds that extensive arm's-length negotiations have taken place in good

faith between Lead Class Counsel and Defendant CERE's Counsel resulting in the Settlement

and Decree.

8.

Pursuant to FED. R. CIV. P. 23(e), the Court hereby finally approves in all respects

the Settlement set forth in the Decree ("the Settlement") and finds that the Settlement, the

Decree, and the Tier Program as set forth in Section IX of the Decree, are, in all respects, fair,

reasonable and adequate, and in the best interest of the Class.

9.

The Parties are hereby directed to implement and consummate the Settlement

according to the terms and provisions of the Decree. 10. The Released Claims (as defined in Paragraph 2.27 of the Decree) against CBRE
on behalf of the Class are hereby dismissed with prejudice and without costs to any party, except

as otherwise provided herein. II. Upon the Effective Date of the Agreement, the Settlement Class shall release and
forever discharge CBRE (as defined in Paragraph 2.3 of the Decree) from the Released Claims (as defined in Paragraph 2.27 of the Decree).

3

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12. Nothing in this Final Order and Judgment, the Settlement, or the Decree is or shall be deemed or construed to be an admission or evidence of any violation of any statute or law (Jr of any liability or wrongdoing by CBRE.
13. The Court retains continuing and exclusive jurisdiction over all matters relating to administration, consummation, enforcement and interpretation of the Decree and of this Final Order and Judgment, to protect and effectuate this Final Order and Judgment, including but not limited to those rights and duties described in Paragraph 2.19 of the Consent Decree, and for any other necessary purpose. Defendant CBRE, Class Representatives and each member ofthe Class are hereby deemed to have irrevocably submitted to the exclusive jurisdiction of this Court, for the purpose of any suit, action, proceeding or dispute arising out of or relating to the Decree or the applicability of the Decree, and only for such purposes. Solely for purposes of such suit, action or proceeding, to the fullest extent they may effectively do so under applicable law, the parties hereto are deemed to have irrevocably waived and agreed not to assert, by way of motion, as a defense or otherwise, any claim or objection that they are not subject to the jurisdiction of this Court, or that this Court is, in any way, an improper venue or an inconvenient forum.
14. In the event that the Settlement does not become effective according to the terms of the Decree, this Order and Final Judgment shall be rendered null and void as provided by the Decree, shall be vacated and, all orders entered and releases delivered in connection herewith shall be null and void to the extent provided by and in accordance with the Decree.
15. No Class Member, either directly, representatively, or in any other capacity (other than a Class Member who validly and timely elected to be excluded from the Class), shall commence, continue or prosecute against CBRE any action or proceeding in any court or
4

. ''

Case: 1:02-cv-06832 Document #: 360 Filed: 01/09/08 Page 5 of 5 PageID #:3674

tribunal asserting any of the Released Claims dellned in the Decree, and are hereby permanently

enjoined from so proceeding.

16. The Consent Decree and this Order shall remain in effect for a period of two (2)

years from the Effective Date of the Decree.

17. The Court finds that Deborah Gage Haude, Esq. is qualified to act as Special

Master, charged with adjudicating the Tier program and carrying out all other duties outlined in

the Settlement Agreement. Deborah Haude is hereby appointed as the Special Master.

18. All claims in Count 1 of this action except for Olivia Knapp's individual

retaliation claims shall be dismissed with prejudice, and without costs to the Parties, except as

otherwise expressly provided for in the Consent Decree, including, but not limited to, this

Court's retention ofjurisdiction to administer, effectuate, and enforce the provisions of the

Consent Decree. The individual claims of Kristine Moran for violations of the Pregnancy

Discrimination Act and Olivia Knapp for retaliation expressly survive this Order.

of~· SO ORDERED, ADJUDGED AND DECREED, this gj}_aay

2008.

Wayne R Andersen United States District Judge

5

 
 Case: 1:02-cv-06832 Document #: 321-2 Filed: 10/24/07 Page 1 of 71 PageID #:3077
Exhibit 1

Case: 1:02-cv-06832 Document #: 321-2 Filed: 10/24/07 Page 2 of 71 PageID #:3078

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

AMY WIGINTON, KRISTINE MORAN, )

NORMA PLANK FETHLER, as Successor in )

Interest to Dondi Plank, ANDREA COREY )

and OLIVIA KNAPP, individually and on )

behalf of all persons similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

CB RICHARD ELLIS, INC.,

)

)

Defendant.

)

)

Case No. 02 CV 6832 Judge Wayne Andersen Magistrate Judge Ashman

CORRECTED SETTLEMENT AGREEMENT AND CONSENT DECREE

Case: 1:02-cv-06832 Document #: 321-2 Filed: 10/24/07 Page 3 of 71 PageID #:3079
TABLE OF CONTENTS
Page
I. INTRODUCTION ...............................................................................................................1
II. DEFINITIONS.....................................................................................................................3 2.1. “Appropriate Disciplinary and/or Remedial Action” ..............................................3 2.2. “Best Efforts”...........................................................................................................4 2.3. “CBRE”....................................................................................................................4 2.4. “Claim Form” or “Claim Forms”.............................................................................4 2.5. “Claim Form Deadline” ...........................................................................................4 2.6. “Claimant” ...............................................................................................................4 2.7. “Claims Administrator” or “Settlement Administrator”..........................................4 2.8. “Claims Process” .....................................................................................................4 2.9. “Claims Standard(s)” ...............................................................................................4 2.10. “Class” or “Plaintiff Class”......................................................................................4 2.11. “Class Counsel” .......................................................................................................5 2.12. “Class Member”.......................................................................................................5 2.13. “Class Period”,.........................................................................................................5 2.14. “Consent Decree” or “Decree” ................................................................................5 2.15. “Court”.....................................................................................................................6 2.16. “EEOC Guidance” ...................................................................................................6 2.17. “Effective Date”.......................................................................................................6 2.18. “Eligible Claim”.......................................................................................................6 2.19. “Expiration Date”.....................................................................................................7 2.20. “Final Approval”......................................................................................................7 2.21. “Liability Period”.....................................................................................................7 2.22. The “Litigation” and/or “This Case” .......................................................................7 2.23. “Named Plaintiffs”...................................................................................................8 2.24. “Notice” ...................................................................................................................8 2.25. “Parties” ...................................................................................................................8 2.26. “Preliminary Approval” ...........................................................................................8 2.27. “Released Claims” ...................................................................................................8 2.28. “Settlement”.............................................................................................................9 2.29. “Settlement Class Member”.....................................................................................9 2.30. “Service” ..................................................................................................................9 2.31. “Sexual Harassment” ...............................................................................................9 2.32. “Special Master” ......................................................................................................9 2.33. “Tier 1 Claim Standard” ..........................................................................................9 2.34. “Tier 2 Claim Standard” ........................................................................................10 2.35. “Tier 3 Claim Standard” ........................................................................................10 2.36. “Tier Program”.......................................................................................................10 2.37. “Title VII”..............................................................................................................10

Case: 1:02-cv-06832 Document #: 321-2 Filed: 10/24/07 Page 4 of 71 PageID #:3080
III. GOALS OF THE SETTLEMENT ....................................................................................11 3.1. Goals Of The Consent Decree and Settlement Agreement....................................11
IV. JURISDICTION ................................................................................................................11
V. EFFECTIVE DATE AND DURATION OF THE CONSENT DECREE ........................12 5.1. Effect Of Consent Decree ......................................................................................12 5.2. Joint Request For A Court Order ...........................................................................12 5.3. Period of Force and Effect .....................................................................................12
VI. SCOPE OF THE CONSENT DECREE ............................................................................12 6.1. Scope Of The Consent Decree...............................................................................12 6.2. Persons Covered.....................................................................................................13 6.3. On-Going Best Efforts To Ensure The Effectuation Of The Settlement ...............13 6.4. No Requirement To Violate Any Law...................................................................13
VII. EQUITABLE RELIEF.......................................................................................................13 7.1. No Automatic Injunction .......................................................................................13 7.2. Sexual Harassment.................................................................................................13 7.3. Retaliation ..............................................................................................................14 7.4. Statement of Intolerance of Sexual Harassment ....................................................14 7.5. Harassment-Free Workplace Policy ......................................................................15 7.6. Distribution of Harassment-Free Workplace Policy..............................................16 7.7. Complaint Procedures............................................................................................16 7.8. Policies Designed to Promote Supervisor Accountability .....................................19 7.9. Consistency of Policies ..........................................................................................20 7.10. Sexual Harassment Training ..................................................................................20
VIII. APPOINTMENT OF SPECIAL MASTER AND REPORTING OBLIGATIONS.................................................................................................................21 8.1. Special Master........................................................................................................21 8.2. Content of Reports .................................................................................................21 8.3. Timetable for Reports ............................................................................................22 8.4. Special Master’s Follow-Up on Reports................................................................22 8.5. Class Counsel’s Follow-Up on Reports.................................................................23
IX. MONETARY RELIEF ......................................................................................................23 9.1. Tier Program ..........................................................................................................23
X. CHARITABLE CONTRIBUTION ...................................................................................37 10.1. Charitable Contribution .........................................................................................37
XI. RELEASE AND COVENANT NOT TO SUE .................................................................37 11.3. Covenant Not to Sue ..............................................................................................38
ii

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XII. GENERAL PROVISIONS ................................................................................................39 12.1. No Admission Of Liability ....................................................................................39 12.2. No Court Findings As to Liability .........................................................................39 12.3. Not Admissible In Any Other Proceeding .............................................................39 12.4. Responsibility of Settlement Class Members and Named Plaintiffs for Tax Liabilities ...............................................................................................................40

XIII. INCENTIVE AWARDS TO NAMED PLAINTIFFS.......................................................41

XIV. ATTORNEYS’ FEES AND COSTS .................................................................................42

XV. PRELIMINARY APPROVAL HEARING .......................................................................45

XVI. NOTICE.............................................................................................................................46

XVII. OPT-OUTS ........................................................................................................................47

XVIII. OBJECTIONS/COMMENTS TO SETTLEMENT...........................................................48

XIX. FAIRNESS HEARING......................................................................................................49

XX. EXCESSIVE NUMBER OF OPT-OUTS .........................................................................50

XXI.

ENFORCEMENT PROCEDURE .....................................................................................50 21.1. Resolution Of Parties’ Disputes.............................................................................50 21.2. Court Intervention..................................................................................................51 21.3. Fees Incurred to Enforce the Decree......................................................................51 21.4. No Third-Party Rights............................................................................................52 21.5. Status of Allegedly Injured Individuals .................................................................52 21.6. No Individual or Independent Right to Seek Enforcement....................................52

XXII. CONSTRUCTION.............................................................................................................52 22.1. Governing Law ......................................................................................................52 22.2. Entire Agreement ...................................................................................................52 22.3. Severability ............................................................................................................53 22.4. Joint Document Of The Parties..............................................................................53 22.5. Agreed Modifications ............................................................................................53 22.6. Headings ................................................................................................................54 22.7. Non-Waiver............................................................................................................54 22.8. Calculation Of Time ..............................................................................................54 22.9. Notice To The Parties ............................................................................................54 22.10. Counterparts...........................................................................................................55

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Case: 1:02-cv-06832 Document #: 321-2 Filed: 10/24/07 Page 6 of 71 PageID #:3082 XXIII. STATEMENTS TO THE MEDIA OR GENERAL PUBLIC...........................................55 XXIV. REPRESENTATIONS BY CLASS COUNSEL ...............................................................56 XXV. VOLUNTARY DISMISSAL WITH PREJUDICE ...........................................................57
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I. INTRODUCTION On September 25, 2002, Plaintiff Amy Wiginton filed the lawsuit entitled Wiginton v. CB
Richard Ellis, Inc., 02 CV 6832 (the “Litigation”), on behalf of a class of current and former female employees (the “Class”), alleging that CBRE subjected female employees to Sexual Harassment as defined herein, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”). Subsequently, Kristine Moran, Andrea Corey, Dondi Plank, and Olivia Knapp (collectively with Amy Wiginton, the “Named Plaintiffs”) joined the Litigation as additional Named Plaintiffs. CBRE denied, and continues to deny, all allegations of wrongdoing and liability in the Litigation. More particularly, CBRE categorically denies that it subjected female employees to sexual harassment or condoned or tolerated any such conduct, denies any and all liability to the Named Plaintiffs and the Class, and denies that it has violated Title VII or any applicable statute.
This Consent Decree resolves all Class and individual Sexual Harassment Claims (as defined herein) raised in the Litigation as defined in Section 2.27 below (“Released Claims”). No finding of liability has been made.
The Parties, as defined below in Paragraph 2.25, engaged in extensive motion practice and Class discovery for more than two years, including scores of depositions nationwide and the exchange of thousands of documents, as well as significant electronic and third-party discovery. Through this exhaustive process, the Parties developed a thorough understanding of the facts and applicable law, which enabled them to assess the relative merits of the claims and defenses asserted by each side. On August 31, 2004, the Named Plaintiffs filed a Motion for Class Certification seeking to certify the following class:

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All female employees who have been employed by defendant CB Richard Ellis, Inc. or its predecessors from January 1, 1999 to the present. After extensive evidentiary submissions by the Parties, including expert reports, the Named Plaintiffs’ motion was fully briefed as of January 21, 2005. Immediately following the close of briefing on class certification, the parties retained a professional mediator for the purpose of assisting in settlement discussions. Hard-fought and extremely difficult, these mediated settlement negotiations required extensive thought and discussion on both sides. Ultimately, the settlement discussions, which were conducted at armslength, gained traction and consistency in December 2005 with the aid of the United States Magistrate Judge and the United States District Court Judge presiding over This Case. During the course of those discussions and specifically at the Court’s request, the Motion for Class Certification was withdrawn without prejudice on September 15, 2006, pending the outcome of settlement discussions. Therefore, the Court did not rule on the Motion for class certification. Thereafter, the parties continued to engage in settlement negotiations. Throughout, the negotiations were conducted at arms-length with the assistance of, at various times, a professional mediator, as well as the Honorable Judge Wayne Andersen and Magistrate Judge Martin Ashman. These efforts ultimately resulted in an agreement to settle this action prior to a ruling on class certification, subject to this Court’s review and approval after notice, an opportunity for members of the Class to object or opt out of the settlement, and a fairness hearing as required by Rule 23 of the Federal Rules of Civil Procedure. The Parties intend to seek certification of a settlement class under Rule 23(e) for monetary and injunctive relief as part of the process for seeking approval of this Consent Decree. However, if this settlement fails to be
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approved, the Named Plaintiffs retain all rights to seek class certification, and Defendant retains

all rights to object and to oppose Plaintiffs’ motion for class certification.

This Consent Decree is entered into by the Named Plaintiffs, individually and on behalf

of the Settlement Class Members, and by Defendant. The Parties agree that, after carefully

considering the facts and applicable law and the uncertainty of continued litigation, and as a

result of having engaged in extensive arm’s-length negotiations, it would be in their best interests

to finally resolve the Class’ Sexual Harassment Claims (including individual and class Sexual

Harassment Claims) by entry of this Consent Decree. The Parties anticipate that upon its entry

by this Court, this Consent Decree shall be final and binding upon the Settlement Class, the

Parties, their successors, and assigns and shall release all Released Claims to the extent allowed

under Rule 23. The Parties, by and through their respective undersigned counsel, have agreed to

this Consent Decree on the terms and conditions set forth below and subject to the approval of

this Court.

II.

DEFINITIONS

The following terms, when used in this Consent Decree, shall have the following meanings as set forth below. All terms defined in the singular shall have the same meaning when used in the plural, and all terms defined in the plural shall have the same meaning when used in the singular.
2.1. “Appropriate Disciplinary and/or Remedial Action”.means the amount of disciplinary and/or remedial action that CBRE believes in good faith to be necessary in order to prevent an alleged harasser from engaging in any further harassment or retaliation, taking into account any prior offenses under the harassment policy then in effect.

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2.2. “Best Efforts”.means steps taken in good faith and reasonably designed to achieve compliance with specified objectives to which the best efforts are directed.
2.3. “CBRE”.means CB Richard Ellis, Inc., and each and all of current and former employees, salespeople classified as independent contractors, supervisors, officers, and directors during the Class Period (except where otherwise specified).
2.4. “Claim Form” or “Claim Forms”.shall mean, individually or collectively, the respective claim forms entitled “Claim Form for Tier 1 Claims” (also known as the “Form-T1”) or the “Claim Form for Tier 2 and Tier 3 Claims” (also known as the “Form-T2/3”).
2.5. “Claim Form Deadline”.shall mean the deadline by which Claim Forms must be post-marked as being sent to the Claims Administrator, which deadline will be 120 days from the date that Notice is post-marked as having been mailed to Class Members.
2.6. “Claimant”.means any Settlement Class Member who submits a Claim Form pursuant to Section IX below. “Claimant” specifically excludes any Settlement Class Member who previously executed a valid and enforceable release of her Sexual Harassment Claims, unless such release specifically provides for recovery under this Consent Decree.
2.7. “Claims Administrator” or “Settlement Administrator”.means Rust Consulting or another person or entity agreed upon by Class Counsel and CBRE’s Counsel to conduct certain tasks, as described herein.
2.8. “Claims Process”.means the Tier Program described in Section IX below. 2.9. “Claims Standard(s)”.shall mean the Claims Standards as defined in Paragraphs 2.33 and 2.34, respectively, below. 2.10. “Class” or “Plaintiff Class”.means the class certified by the Court solely for purposes of effectuating and entering this Consent Decree:
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All female employees who were or have been employed by CBRE at any time during the Class Period. 2.11. “Class Counsel”.means the law firms of Wexler Toriseva Wallace LLP, Hagens Berman Sobol Shapiro LLP, Favre Law Offices LLC and Gustafson Gluek PLLC. 2.12. “Class Member”.means any female who was or has been employed by CBRE at any time during the Class Period. 2.13. “Class Period”,.for purposes of settlement only, shall mean the period between January 1, 1999 and the date of Preliminary Approval of the settlement by the Court (October 4, 2007). 2.14. “Consent Decree” or “Decree”..means this document, which has been signed by the Named Plaintiffs and by counsel of record for the Parties, subject to final approval and adoption by the Court, and which contains the following attached exhibits: EXHIBIT A: PRELIMINARY APPROVAL ORDER EXHIBIT B: NOTICE OF PENDENCY AND PROPOSED SETTLEMENT OF CLASS ACTION
EXHIBIT B-1: SUMMARY OF THE PROCEDURES AND CLAIMS STANDARDS FOR EACH OF THE THREE TIERS EXHIBIT B-2: CLAIM FORM FOR TIER 1 CLAIMS (FORM-T1) EXHIBIT B-3: CLAIM FORM FOR TIER 2 AND TIER 3 CLAIMS (FORM-T2/3) EXHIBIT C: REQUEST FOR EXCLUSION EXHIBIT D: EEOC’S POLICY GUIDANCE EXHIBIT E: [PROPOSED] FINAL ORDER AND JUDGMENT AS TO CLASS CLAIMS GRANTING FINAL APPROVAL, APPROVING THE IMPLEMENTATION OF THE TIER PROGRAM, AND APPROVING CLASS COUNSEL’S APPLICATION FOR ATTORNEYS FEES AND LITIGATION EXPENSES AND INCENTIVE AWARDS TO CLASS REPRESENTATIVES
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EXHIBIT F: JOINT PUBLICITY STATEMENT EXHIBIT G: WOMEN SCHOLARS PROGRAM OVERVIEW 2.15. “Court”.means the United States District Court for the Northern District of Illinois, and the Judge thereof having been assigned to preside over the Litigation, or proceedings relevant to the Case. 2.16. “EEOC Guidance”.shall mean the EEOC’s Policy Guidance on Employer Liability Under Title VII for Sexual Favoritism, N-915-048, dated January 12, 1990; EEOC’S Policy Guidance On Current Issues Of Sexual Harassment, N-915-050, dated March 19, 1990; EEOC’s Enforcement Guidance on Harris v. Forklift Sys., Inc., N-915-002, dated March 8, 1994; and EEOC’s Enforcement Guidance: Vicarious Liability For Unlawful Harassment By Supervisors, N-915-002, dated June 18, 1999, attached to this Decree as Exhibit C. EEOC Guidance may include additional published EEOC Policy or Enforcement Guidance if agreed upon in writing by all Parties. 2.17. “Effective Date”.means the date on which the time for filing an appeal from the Court’s final approval of this Consent Decree has either expired without an appeal being filed, or if later, after any appeal has been fully resolved upholding the Decree (including requests for rehearing, rehearing en banc, and petitions for certiorari), at which time the obligations set forth in this Consent Decree and the terms of this Consent Decree become binding on CBRE, the Named Plaintiffs, the Settlement Class, Class Counsel, and anyone else who has undertaken an obligation under this Decree. 2.18. “Eligible Claim”.means any Sexual Harassment Claim of a Settlement Class Member, including class and individual claims, against CBRE that arose or could have arisen at any time between January 1, 1999 and the date of Preliminary Approval based upon alleged
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sexual harassment experienced at CBRE (and not at a predecessor company that was subsequently acquired by CBRE).
2.19. “Expiration Date”.means the date on which this Consent Decree and any order of the Court related to the Consent Decree and these settlement proceedings shall expire and shall be without any force or effect. The Expiration Date shall be two (2) years from the Effective Date, with the caveat that the Parties may thereafter conclude any enforcement proceedings post-delivery of CBRE’s second annual report to the Special Master pursuant to Section VIII below, for which sole purpose the Court would retain jurisdiction following the Expiration Date. Regardless of whether such enforcement proceedings continue past the Expiration Date, no substantive obligations assumed by CBRE would survive past the Expiration Date (beyond those that Class Counsel seek to enforce after the Expiration Date vis-à-vis CBRE’s obligations prior to the Expiration Date).
2.20. “Final Approval”.means the entry of the Court’s order granting final approval of this Consent Decree, which reflects that the Court concludes that the terms of this Consent Decree are fair, reasonable and adequate to the Class as a whole.
2.21. “Liability Period”.means the Class Period. 2.22. The “Litigation” and/or “This Case”.means all proceedings relating to or arising from Wiginton, et al. v. CB Richard Ellis, Inc., 02 CV 6832 (N.D. Ill.), specifically excluding any and all individual claims under the Pregnancy Discrimination Act, 42 U.S.C. §2000e(k), as amended, the Equal Pay Act of 1963, 29 S.C. § 201, as amended, or claims of retaliation.
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2.23. “Named Plaintiffs”.means the individual plaintiffs who brought suit in This Case, including Amy Wiginton, Kristine Moran, Norma Plank Fethler, as successor in interest to Dondi Plank, Andrea Corey n/k/a Andrea Scott, and Olivia Knapp.
2.24. “Notice”.shall mean the Notice Of Pendency And Proposed Settlement Of Class Action together with its exhibits, including the Claim Form For Tier 1 Claims (Form-T1), and the Claim Form For Tier 2 And Tier 3 Claims (Form-T2/3).
2.25. “Parties”.means the Named Plaintiffs, individually and on behalf of the Class, and CBRE.
2.26. “Preliminary Approval”.means the entry of the Court’s Order granting preliminary approval of this Consent Decree, which reflects that the Court concludes that the terms of this Consent Decree appear sufficiently fair, reasonable, and adequate to the Class as a whole to warrant notice to the Class, an opportunity for Class Members to object or opt out, and a fairness hearing to consider Final Approval of the Consent Decree.
2.27. “Released Claims”.means all Sexual Harassment Claims that were made or could have been made by the Named Plaintiffs or by any Class Members individually and/or on behalf of the Class against CBRE in this action under Title VII, 42 U.S.C. §2000 et seq., as amended. Released Claims expressly does not include: (i) any and all individual or class claims under Title VII that any person, including any member of the Settlement Class and/or any Claimant has, whether known or unknown, against any company acquired by or merged with CBRE with respect to any acts or occurrences that occurred prior to the effective dates for the acquisition or merger; (ii) any and all individual or class claims under the Pregnancy Discrimination Act, 42 U.S.C. §2000e(k), as amended; (iii) any and all individual or class claims under the Equal Pay
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Act of 1963, 29 U.S.C. § 201, as amended; or (iv) any and all individual or class claims for retaliation.
2.28. “Settlement”.means the settlement terms embodied in this Consent Decree. 2.29. “Settlement Class Member”.means any Class Member who does not opt out of the claims process of the Settlement, and “Settlement Class” means that group of individuals as a whole. 2.30. “Service”.means delivery of notice and/or papers, and shall be defined as service as specified in the Federal Rules of Civil Procedure. 2.31. “Sexual Harassment”.means unlawful sexual harassment in violation of Title VII, including hostile work environment and quid pro quo sexual harassment, and “Sexual Harassment Claims” or “Claims of Sexual Harassment” means claims of hostile work environment and/or quid pro quo sexual harassment that were or could have been asserted by female employees or ex-employees of CBRE against CBRE. 2.32. “Special Master”.means the individual chosen by agreement of the Parties to administer the Tier Program set forth in Section XI and to serve as the Special Master as set forth in Section IX. 2.33. “Tier 1 Claim Standard”.means that, for a Claimant to receive an award under Tier 1, she must allege to the satisfaction of the Special Master, based on the individual detail provided by the Claimant in her Claim Form and the class-wide evidence as set forth in Section 9.1.4, that she was subjected to Sexual Harassment. The Special Master shall use the EEOC Guidance as a guide in evaluating Tier 1 Claims and, specifically, whether the Claimant has alleged Sexual Harassment. By express agreement of the Parties, the Special Master must accept the allegations of the Tier 1 Claimant as true, Tier 1 Claimants are not required to identify the
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alleged harassers by name or exact dates of the harassment, and CBRE is not permitted to know of or rebut the allegations of any Tier 1 Claimant.
2.34. “Tier 2 Claim Standard”.means that, for a Tier 2 Claimant to receive an award under Tier 2, she must demonstrate to the satisfaction of the Special Master that she was subjected to Sexual Harassment, based on the complete Form T2/3, the information provided by CBRE in its response, the class-wide evidence as set forth in Section 9.1.4, and as otherwise permitted by the Special Master. The Special Master shall also use the EEOC Guidance as a guide in evaluating Tier 2 Claims, in resolving credibility conflicts and in determining whether the Claimant has demonstrated to the satisfaction of the Special Master that she was subjected to Sexual Harassment.
2.35. “Tier 3 Claim Standard”.means that, for a Tier 3 Claimant to receive an award under Tier 3, she must demonstrate to the satisfaction of the Special Master that she was subjected to Sexual Harassment, based on the complete Form-T2/3, information presented by CBRE in its written response and position statement, any evidence collected during the Special Master’s additional investigation of that Claimant’s allegations, the evidence presented at the Tier 3 Claimant’s Hearing, and the class-wide evidence as set forth in Section 9.1.4. The Special Master shall also use the EEOC Guidance as a guide in evaluating Tier 3 Claims, in resolving credibility conflicts and in determining whether the Claimant has demonstrated to the satisfaction of the Special Master that she was subjected to Sexual Harassment.
2.36. “Tier Program”.means the three-tiered claims process/procedure for seeking and awarding monetary payments defined and set forth in Section IX.
2.37. “Title VII”.means the Civil Rights Act of 1964, as amended in 1991 42 U.S.C. § 2000e, et seq.
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III. GOALS OF THE SETTLEMENT 3.1. Goals Of The Consent Decree and Settlement Agreement. The Parties enter
into this Consent Decree and Settlement Agreement to achieve the following goals: (a) to resolve all Released Claims; (b) to ensure that Settlement Class Members are fairly compensated for release of the Released Claims; and (c) to ensure that effective mechanisms are in place to prevent and remedy unlawful Sexual Harassment.
3.2 Court Findings. If the Court approves this Consent Decree, the Court will have found, and the Parties agree, as follows: (a) the terms of this Consent Decree are adequate, fair, and reasonable to the Class as a whole; (b) this Consent Decree conforms with the Federal Rules of Civil Procedure and is not in derogation of the rights or privileges of any person, any party, or the Class; and (c) the final approval of this Consent Decree will be in the best interests of the Parties and, in particular, the Class. IV. JURISDICTION
4.1. The Parties agree that the Court has jurisdiction over the Parties and the subject matter of the Litigation. The Litigation asserts claims under Title VII that, if proven, would authorize the Court to grant the monetary and equitable relief set forth in this Consent Decree. Venue is proper in this District. The Parties agree that this Court shall retain jurisdiction of the Litigation during the duration of this Consent Decree for the purpose of entering all orders, judgments and decrees that may be necessary to implement the relief provided herein. The procedures described below are not intended to diminish this Court’s inherent power to enforce any provision of this Consent Decree. All Released Claims shall be dismissed with prejudice upon the Effective Date of this Consent Decree, provided that the Court retains jurisdiction to enforce the terms of this Consent Decree as described in Paragraph 2.19.
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4.2. A copy of the Preliminary Approval Order as well as the [Proposed] Final Order

And Judgment As To Class Claims Granting Final Approval, Approving The Implementation Of

The Tier Program, And Approving Class Counsel’s Application For Attorneys Fees And

Litigation Expenses And Incentive Awards To Class Representatives to be entered are attached

hereto as Exhibits A and D.

V.

EFFECTIVE DATE AND DURATION OF THE CONSENT DECREE

5.1. Effect Of Consent Decree. Upon its entry by the Court following Final

Approval, the Consent Decree shall constitute an order of the Court and all of its provisions will

become enforceable by the Parties in the manner set forth in this Consent Decree. The Parties,

including CBRE, the Named Plaintiffs, and Class Counsel on behalf of the Class, agree that they

shall not appeal from the Consent Decree or the Court’s Order.

5.2. Joint Request For A Court Order. The Parties agree that they will seek entry of

the Orders in the form attached hereto and fully incorporated herein as Exhibits A and D, which

dismisses the Released Claims against CBRE with prejudice, and without costs to any Party

except as expressly provided herein, and which incorporates a Release of the Released Claims on

behalf of the Named Plaintiffs and the Settlement Class as set forth in Paragraph XI.

5.3. Period of Force and Effect. This Consent Decree shall become effective on the

Effective Date and expire, by its own terms, on the Expiration Date.

VI. SCOPE OF THE CONSENT DECREE

6.1. Scope Of The Consent Decree. This Consent Decree resolves the Released

Claims.

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6.2. Persons Covered. a. Settlement Class. For settlement purposes only, the Court will certify the
following class:
All female employees who have been employed by defendant CB Richard Ellis, Inc. during the Class Period.
b. Opt–Out Rights. If this Consent Decree is approved by the Court, at the Effective Date, all persons within the Class are bound by its terms, except those Class Members who effectively exercise a right to opt out of the Class and the settlement. Class Members who elect to opt out must complete the Request for Exclusion attached hereto as Exhibit C.
6.3. On-Going Best Efforts To Ensure The Effectuation Of The Settlement. The Parties agree to make and undertake their best efforts on an on-going basis to effectuate, as well as to seek entry of this Consent Decree, or if applicable, to defend, this Consent Decree from any legal challenge by appeal, collateral attack, objection, or otherwise.
6.4. No Requirement To Violate Any Law. Nothing in this Consent Decree shall require CBRE to violate any applicable law, ordinance, or regulation. VII. EQUITABLE RELIEF
7.1. No Automatic Injunction. This Consent Decree shall not operate in any way as an automatic injunction. CBRE agrees to abide by the terms of this Consent Decree and all applicable federal and state employment laws including, but not limited to, Title VII of the Civil Rights Act of 1964.
7.2. Sexual Harassment. CBRE agrees to and, to the extent it already is, agrees to continue to comply with the provisions of Title VII of the Civil Rights Act of 1964, as amended, and, specifically, agrees not to engage in any action, policy or practice that is intended to or is
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known by CBRE to have the effect of sexually harassing any female employee, and agrees not to create, facilitate, or tolerate the existence of a work environment that is sexually hostile to female employees.
7.3. Retaliation. CBRE agrees to and, to the extent it already is, agrees to continue to comply with the provisions of Title VII of the Civil Rights Act of 1964, as amended, and specifically agrees not to engage in, implement, or tolerate any action, policy, or practice with the purpose or effect of retaliating against any current or former employee for: opposing Sexual Harassment, filing a Charge of Discrimination, testifying or participating in any investigation (including internal investigations), proceeding, or hearing in connection with This Case and/or relating to any claim of Sexual Harassment, being identified as a witness in this action, asserting any rights under this Consent Decree, or seeking and/or receiving any monetary or non-monetary relief under this Consent Decree.
7.4. Statement of Intolerance of Sexual Harassment. CBRE affirms the following “Statement of Intolerance of Sexual Harassment:”
CB Richard Ellis, Inc. is firmly committed to, and reaffirms its commitment to, maintaining a policy of intolerance of Sexual Harassment and retaliation against individuals who report Sexual Harassment or retaliation in the Company’s workplace; to swiftly and firmly responding to any acts of Sexual Harassment or retaliation of which the Company becomes aware; to maintaining a disciplinary system that is designed to strongly deter future acts of Sexual Harassment or retaliation; to promoting and maintaining a work environment free of behavior or objects that are hostile to women; and to monitoring its workplace in order to ensure tolerance, respect, and dignity for all employees. This Paragraph does not create any contractual causes of action or other rights that would not otherwise exist.
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7.5. Harassment-Free Workplace Policy. CBRE agrees that, within 90 days of the Effective Date of the agreement, it shall revise its Harassment-Free Workplace Policy, as necessary, in order to:
7.5.1. provide examples to supplement the definition of Sexual Harassment and sex-based harassment;
7.5.2. include strong non-retaliation language (for making complaints of Sexual Harassment) with examples to supplement the definition of retaliation;
7.5.3. provide for Appropriate Disciplinary and/or Remedial Action for incidents of Sexual Harassment, sex-based harassment and/or retaliation (for making complaints of Sexual Harassment);
7.5.4. provide that complaints of Sexual Harassment and/or retaliation (for making complaints of Sexual Harassment) will be accepted by CBRE in writing and orally, with oral complaints being documented in compliance with CBRE’s complaint-documentation obligations (addressed in Paragraphs 7.7.7-7.7.9);
7.5.5. establish a timetable that requires CBRE: (a) to assign the Sexual Harassment complaints to an investigator within two (2) business days; (b) to complete investigations within 45 days, with any exceptions being noted and the circumstances explained in the report to the Special Master; and (c) to implement Appropriate Disciplinary and/or Remedial Action promptly upon conclusion of an investigation, where appropriate;
7.5.6. indicate that, promptly upon the conclusion of its investigation of a Sexual Harassment complaint, CBRE will notify the complainant that the investigation has been concluded and closed, whether a violation of CBRE’s Harassment-Free Workplace Policy was substantiated, and that Appropriate Disciplinary and/or Remedial Action, if any, has been taken.
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CBRE will also encourage the complainant to notify the Company of any further problems. The complainant will not receive details of the Appropriate Disciplinary and/or Remedial Action, if any, unless it directly affects her (e.g., change in reporting relationship, location move, etc.);
7.5.7. reflect that the revised Harassment-Free Workplace Policy supersedes all existing Sexual Harassment policies;
7.5.8. ensure that the Harassment-Free Workplace Policy is contained in a single document, distributed among CBRE’s offices, posted and accessible on the Intranet, and made part of any organized training on Sexual Harassment and/or workplace conduct (except that, to the extent other policies relate to the subject matter of the Harassment-Free Workplace Policy, CBRE shall direct employees to that policy).
7.6. Distribution of Harassment-Free Workplace Policy. CBRE agrees to electronically circulate its Harassment-Free Workplace Policy annually. The acknowledgement accompanying the Harassment-Free Workplace Policy will confirm that the recipient received and read the policy, and that the recipient knows where and how to report a harassment complaint. The acknowledgment will notify the recipient that, if she does not know where and how to report a complaint, she can ask CBRE for additional information and CBRE will provide such information before she signs or otherwise completes the acknowledgement.
7.7. Complaint Procedures. CBRE agrees that, within 90 days of the Effective Date of the agreement, it shall revise its complaint procedures to the extent necessary to ensure that they provide CBRE’s employees with convenient, confidential, and reliable mechanisms for reporting incidents of Sexual Harassment and retaliation to the extent set forth and permitted under this Section. More specifically, CBRE agrees as follows:
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7.7.1. CBRE shall notify employees by routinely and continuously posting on CBRE’s internal website that specific individuals/positions have been designated as persons who may be contacted to report any incidents of Sexual Harassment and retaliation, and shall provide the name, office, where applicable, title, work location, and all available contact information for each such person. These individuals shall include:
7.7.1.1. Within each office, the Senior Office Operations Manager or Office Operations Manager (or equivalent position, if any, that does not report to the Managing Director within such office) and Managing Director shall be designated as and will serve as two (2) contacts authorized to receive harassment and retaliation complaints from employees in that office.
7.7.1.2. CBRE further agrees to designate the “General Counsel – Employment” as an individual authorized to receive Sexual Harassment and retaliation complaints; CBRE will also advise employees that a complaint may be made to any Human Resources Director, Human Resources Manager, Human Resources Specialist, or the Human Resources Service Center, any member of senior management, any lawyer in the Legal Department, the Chief Compliance Officer, or its anonymous whistleblower hotline.
7.7.2. CBRE agrees to continue to maintain a whistleblower hotline (an “Ethics Hotline”) operated by a third-party that will accept anonymous complaints, document such complaints as received, and promptly route those complaints to the Human Resources Department to be investigated consistent with the principles otherwise discussed herein.
7.7.3. CBRE agrees that it shall revise its policies to the extent necessary to enable complaining parties to be interviewed by CBRE about their complaints, at the complaining party’s election, in a confidential manner, including allowing the complainant to
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provide the information in a location outside of the employee’s work area and/or at an off-site location.
7.7.4. CBRE agrees that its complaint procedure shall not impose upon individuals seeking to make a complaint alleging Sexual Harassment and/or retaliation (for making complaints of Sexual Harassment) any requirements that are undue or more burdensome than those imposed upon individuals who make other complaints of comparable gravity.
7.7.5. CBRE agrees that information regarding complaints and investigations will only be shared with individuals who have a business need to know in connection with the investigation or for purposes of any personnel action with respect to the alleged Sexual Harassment.
7.7.6. CBRE agrees that it shall revise its complaint handling and disciplinary procedures to the extent necessary to ensure that all complaints of Sexual Harassment and/or retaliation are investigated and addressed promptly, and in accordance with the timetable described in Paragraph 7.5.5, supra.
7.7.7. CBRE agrees that it will instruct and require the original designated recipient of a complaint to document the complaint and related information received from a complainant as soon as practicable.
7.7.8. CBRE agrees that it will instruct and require the original designated recipient of a complaint to provide written copies of the documentation of the complaint to designees in the Legal Department and the Human Resources Department. In the event that the complaint is about a member of either of the Legal Department or Human Resources Department, the complaint recipient will provide copies of the documented complaint to the designee in the other department as well as the Chief Operating Officer.
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7.7.9. CBRE agrees to maintain complaint investigation records in a centralized and secure location – specifically, CBRE’s computer system – and to do so in a manner that preserves the integrity of the records. Pursuant to this agreement, CBRE agrees to:
7.7.9.1. scan and upload all original paper documents relating to an investigation under the policy into the computer system in a pdf format (or another format that makes the documents non-alterable); and
7.7.9.2. maintain a computerized audit trail sufficient to demonstrate that the integrity of the files has been maintained.
7.7.10. CBRE agrees to include in the personnel files of alleged harassers both: (1) records of any disciplinary and/or remedial actions actually implemented; and (2) records of any disciplinary recommendation which is made for the purpose of effecting an ultimate decision and prepared by a person with knowledge of the investigation and with authority to make such recommendation, even if the recommendation is not ultimately implemented.
7.7.11. CBRE agrees that it will not maintain records related to Sexual Harassment complaints or their investigations in complainants’ personnel files (or any similar files pertaining specifically to complainants).
7.7.12. CBRE will also maintain the information necessary to comply with its reporting obligations, as set forth in Section VIII.
7.8. Policies Designed to Promote Supervisor Accountability. 7.8.1. CBRE agrees to impose Appropriate Remedial and/or Disciplinary
Action -- up to and including termination, suspension without pay, or demotion -- upon any supervisor or manager who is found, at the conclusion of an investigation, to have engaged in Sexual Harassment, to have knowingly tolerated Sexual Harassment of one employee by another
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in his or her work area, or to have retaliated against an individual for engaging in protected activity vis-à-vis alleged Sexual Harassment. CBRE shall communicate this policy to all of its supervisors and managers.
7.8.2. CBRE agrees to and, to the extent that it already is, agrees to continue to advise all managers and supervisors of their duty to monitor their work areas to ensure employees’ compliance with the Harassment-Free Workplace Policy and to report any incidents and/or complaints of Sexual Harassment and/or retaliation (for complaining of alleged Sexual Harassment) of which they become aware consistent with the procedures set forth herein.
7.8.3. CBRE agrees, where applicable, to consider supervisors’ and managers’ deficiencies in maintaining a harassment-free workplace and/or in responding to harassment complaints in evaluating their performance, and agrees further that the resulting evaluations will have the same consequences for them as normally flow from their evaluations. CBRE agrees to include “commitment to harassment-free workplace” as a criterion for qualification for supervisory positions.
7.9. Consistency of Policies. CBRE agrees to ensure the consistency of its Harassment-Free Workplace Policy among all internal publications.
7.10. Sexual Harassment Training. 7.10.1. CBRE agrees to provide Company-wide Sexual Harassment training to
all employees on two (2) occasions during the period from one year prior to the Effective Date and the end of the two-year term of this Consent Decree.
7.10.2. CBRE agrees to provide Sexual Harassment training to all new employees within one year of their hire or, alternatively, to provide DVD or web-based training in a shorter time period.
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7.10.3. If the Company-wide training takes place at a new hire’s office within one (1) year of hire, the Company-wide training will serve as the new-hire training for that individual.
7.10.4. To the extent practicable in a given instance, a senior management official shall introduce Sexual Harassment training. VIII. APPOINTMENT OF SPECIAL MASTER AND REPORTING OBLIGATIONS
8.1. Special Master. Prior to the Fairness Hearing, the Parties shall select a mutually agreeable independent third-party who is knowledgeable and experienced in Title VII law as the Special Master to administer the Tier Program set forth in Section IX and to serve as the Special Master as set forth in Section VII. The fees and costs of the Special Master will be assumed by CBRE.
8.2. Content of Reports. CBRE agrees to submit two fact-based annual reports to the Special Master during the term of the Consent Decree that demonstrate to the satisfaction of the Special Master CBRE’s compliance with the terms of the Consent Decree. The Report shall include:
8.2.1. for each Sexual Harassment complaint received during the relevant cycle: (a) date of any Sexual Harassment complaint; (b) a factual description of complaint; (c) the office from which the complaint originated; (d) the date the investigation began; (e) the date the investigation closed; (f) whether the complaint was substantiated; (g) the disciplinary and/or remedial action taken, if any; (h) whether any subsequent complaints were reported in that office after the close of the investigation; and (i) for any investigation that lasted longer than 45 days, an explanation of the reasons the investigation was not completed within 45 days.
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8.2.2. the schedule of Sexual Harassment training that took place during the preceding reporting cycle; and
8.2.3. in the event CBRE is unable in good faith to provide Sexual Harassment training in compliance with the schedule set forth in this Consent Decree, a detail of the reasons therefor.
8.3. Timetable for Reports. 8.3.1. Provided that the Effective Date of the Consent Decree occurs on or
before November 30, 2007, the first annual reporting period shall begin on December 1, 2007, with the annual report covering the next twelve (12) months due on December 31, 2008; and the second annual reporting period shall begin on December 1, 2008, with the annual report covering the next twelve (12) months due on December 31, 2009.
8.3.2. If the Effective Date of the Consent Decree is after November 30, 2007, then the first annual reporting period shall begin on the first day of the month following the Effective Date, with the annual report covering the next twelve (12) months due to the Special Master 90 days after the end of the first annual reporting period; the second annual reporting period shall begin on the first day of the month following the end of the first annual reporting period, with the annual report covering the next twelve (12) months due 90 days after the end of the second reporting period.
8.3.3. The due dates for the annual reports may be extended by written agreement of the Parties and the Special Master.
8.4. Special Master’s Follow-Up on Reports. The Parties further agree that: (a) CBRE will provide the annual report to the Special Master only, (b) the Special Master will have 45 days to review the annual reports to ensure compliance with this Consent Decree and to
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identify any issues; (c) within that 45 day period, the Special Master must identify in writing for CBRE any areas in the report which require further attention or otherwise appear to demonstrate non-compliance with this Consent Decree, (d) CBRE will have 30 days thereafter to address and/or correct any areas noted by the Special Master, and (e) if the issues raised by the Special Master are not resolved within this 30-day period, the Special Master will share with Class Counsel any unresolved areas.
8.5. Class Counsel’s Follow-Up on Reports. To the extent the Special Master shares unresolved areas or issues of non-compliance (if any) with Class Counsel as provided in Paragraph 8.4, Class Counsel must seek to resolve any disputes arising therefrom according to the procedures set forth in Section XXI. IX. MONETARY RELIEF
9.1. Tier Program. 9.1.1. Tier Program Generally 9.1.1.1. The Parties have agreed to a tiered claims process (“Tier
Program”) to which all Settlement Class Members will have access and by which participating Settlement Class Members will adjudicate any individual Eligible Claims for certain monetary relief related to the Litigation. The Tier Program contemplates that Claimants will elect one of the three procedural tracks or “Tiers” under which their claims will be evaluated. Each of the three Tiers is subject to an award cap proportional to the degree of process to which each Claimant’s claim is subjected.
9.1.1.2. The Tier Program will be administered by the agreed-upon Special Master who shall use the standards and procedures described hereafter to process and decide the appropriate remuneration, if any, for each Claimant’s Eligible Claim. To the extent
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any procedural or administrative issue is not specifically addressed below, the Special Master shall have the discretion to develop such procedures, rules and systems to execute the Tier Program in a way that is consistent with this Agreement and promotes the timely and fair disposition of any claim. In any event or Tier however, the Special Master shall not submit written findings of fact or conclusions of law.
9.1.2. No Right to Appeal. Neither any Claimant nor CBRE has the right to appeal any decision by the Special Master in any Tier; the Special Master’s decision is final.
9.1.3. Claimant Tier Election. Each Settlement Class Member seeking to participate in the Tier Program must complete a Claim Form, i.e. either a Tier 1 (Form-T1) or Tier 2 / Tier 3 (Form-T2/3) Claim Form.
9.1.3.1. The Claim Forms will be mailed to each Class Member as attachments to the Notice. This Consent Decree, the Notice and the Claim Forms will also be made available on the home page of the website entitled www.cbrichardellislawsuit.com.
9.1.3.2. All Claim Forms must be sent directly by the Claimants or their agents or representatives to the Claims Administrator and post-marked by the Claim Form Deadline. Within three (3) business days of receipt, or the Effective Date, whichever comes later, the Claims Administrator must forward the Claim Forms to the Special Master. If the Claims Administrator receives any form post-marked after the Claim Form Deadline, s/he shall return the untimely form to the Class Member attached to a standard letter developed by the Special Master explaining that the Claim Form Deadline has passed and that the Class Member is no longer eligible for the Tier Program, unless the Claimant can demonstrate to the satisfaction of the Special Master proof of timely delivery (such as receipt for certified mail) or there was good cause for delay.
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9.1.4. Presentation Of Class-Wide Evidence. During the 90-day period after the Effective Date, CBRE and Class Counsel shall provide the Special Master with copies of their respective class certification briefs and exhibits filed in This Case in connection with Plaintiffs’ Motion for Class Certification. The Special Master may, at his/her discretion, request that CBRE and Class Counsel provide a live presentation concerning class-wide allegations of harassment and the defenses thereto (as to both liability and/or damages). The Special Master will decide the length, forum and format of any live presentation concerning class-wide evidence. Any class presentations shall be delivered by counsel for CBRE and Class Counsel; no live testimony of any witness, Named Plaintiff or Class Member is allowed. Class-wide evidence will not be permitted or considered in any form other than as expressly provided in this Consent Decree. With respect to the evaluation of whether any individual Claimant can meet the relevant Claim Standard, the Special Master shall give whatever credence and weight to the class-wide evidence she deems reasonable and appropriate, provided, however, that the classwide evidence will not have any presumptive effect.
9.1.5. Administration Of Tier Program. Once the Claim Form Deadline has passed, the Special Master shall begin the Tier Program Administration stage. The Tier Program will operate along three tracks: Tier 1, Tier 2, and Tier 3, each described below.
9.1.5.1. The Special Master has the discretion to conduct/schedule Tier Program proceedings, subject to the rules established herein. All steps in the Tier Program, however, from individual Tier proceedings to the payment of any Tier Program awards, must be completed within 365 days from the Claim Form Deadline date or within another time agreed upon in writing by the Parties and the Special Master.
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9.1.5.2. The Tier Program requires the Special Master to (a) verify that each Claimant is a Class Member; (b) analyze each Claimant’s claim based on the Claim Standards as defined herein and the materials provided by the Parties as permitted herein; and (c) determine whether, to the Special Master’s satisfaction, the Claimant has met the Claim Standard.
9.1.5.3. Within 10 days of the Effective Date of the Settlement, for verification that a Claimant is a Class Member, CBRE will provide the Special Master a list of all female employees during the Class Period, and the locations and dates of their first and last, if applicable, dates of employment with CBRE. After the Claim Form Deadline, the Special Master shall compare the Claim Forms to the employee list to confirm that each Claimant is a Class Member. In the event that a Claimant’s name does not match the employee list, the Special Master shall request additional information from the Claimant including the Claimant’s social security number (if not already provided). The Special Master shall then implement appropriate procedures to compare this additional information with information maintained by CBRE while protecting the applicable confidentiality of the Claimant’s claim if submitted in Tier 1.
9.1.5.4. Within 10 days of the Effective Date of the Settlement, CBRE will provide the Special Master and Class Counsel a list of all CBRE employees who have executed releases of harassment claims under Title VII, along with copies of each executed release so that the Special Master may confirm that the release covers the Released Claims. Settlement Class Members who have executed releases of the Released Claims are ineligible for the Tier Program.
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9.1.6. Tier 1 Claims. 9.1.6.1. A Tier 1 Claimant must complete a Form-T1. In or with the
Form-T1, the Tier 1 Claimant must provide under penalty of perjury: (a) Her name, employment dates, office of employment, and a summary of the harassment the Claimant allegedly experienced; (b) A statement concerning the approximate dates (or time period) of the alleged harassment demonstrating that the alleged harassment occurred during the Class Period (although the Claimant does not have to specify the name of the harasser or provide specific dates for the underlying incident(s)).
9.1.6.2. The Special Master must accept the allegations of the Tier 1 Claimants as true. CBRE will not be permitted to rebut the allegations asserted in any Tier 1 claims.
9.1.6.3. The information submitted in the Form T-1s will be kept confidential by the Special Master, including from CBRE.
9.1.6.4. If, based on the allegations in a Tier 1 Claimant’s Form T-1 and subject to the limited information required to be provided therein, the Special Master determines that a Tier 1 Claimant meets the Tier 1 Claim Standard, s/he shall award that Tier 1 Claimant the amount of $1,500.
9.1.6.5. If the Special Master determines in her discretion that a Tier 1 Claimant has not met the Tier 1 Claim Standard, she shall not receive a monetary award.
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9.1.6.6. All Form T-1s shall be reviewed and retained exclusively by the Special Master. Once all Tier 1 claims have been processed, the Special Master shall notify:
(a) Class Counsel and the Claims Administrator as to each Tier 1 claimant’s award and the total amount allocated for Tier 1;
(b) CBRE only as to the aggregate amount of all Tier 1 awards. 9.1.6.7. CBRE shall then deposit the total Tier 1 award into an escrow account specified by the Claims Administrator within 30 days of service of notice of the total Tier 1 award from the Special Master or 10 days from the Effective Date of the Decree, whichever comes later. 9.1.6.8. Within 30 days of deposit of the total Tier 1 award into the escrow account, the Claims Administrator shall: (a) distribute individual Tier 1 awards to each successful Tier 1
Claimant; and (b) file and serve the appropriate Form 1099s with the Internal
Revenue Service and the Claimants. 9.1.6.9. Any Tier 1 award that is unclaimed as of the Expiration Date or six months after the Claims Administrator has issued the award to the Claimant, whichever is later, shall be paid to the charitable organization described in Paragraph 10.1 below. 9.1.7. Tier 2 Claims. 9.1.7.1. A Tier 2 Claimant must complete a Form-T2/3, designating that she wishes to proceed in Tier 2. This form identifies the Tier 2 Claimant by name and requires the Tier 2 Claimant to specify under penalty of perjury her Sexual Harassment allegations, including the detail of the hostile work environment which she allegedly
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experienced, the identification of any individual who participated in the alleged Sexual Harassment, a detailed description of the alleged sexually harassing conduct, whether the alleged harassing conduct was welcome or unwelcome, a detailed description of how the alleged Sexual Harassment affected her and what injuries she alleges based on the alleged Sexual Harassment, the approximate time period when any alleged incidents occurred, whether each alleged incident was reported (and if so, to whom, how, and when it was reported) and, if not reported, the reasons why not. In determining whether a Tier 2 Claimant meets the Claim Standard, the Special Master shall treat vague or speculative allegations consistent with EEOC’s Policy Guidance.
9.1.7.2. The Form-T2/3 will include a statement assuring the Claimant that CBRE is prohibited from retaliating against her for participating in the Tier Program.
9.1.7.3. Within 14 days of the Claim Form Deadline, the Special Master shall collect and submit all Form-T2/3s for the Tier 2 Claimants to CBRE.
9.1.7.4. Within 90 days of receiving the Tier 2 forms from the Special Master, CBRE shall provide a written response to each Form-T2/3, including information concerning steps taken to respond to the alleged harassment, if it was reported or known to CBRE. CBRE’s response (including any position statement) shall be limited to 15 pages with writing and/or typing on only one side of each page, unless otherwise authorized by the Special Master.
9.1.7.5. The Special Master shall then determine whether each Tier 2 Claimant meets the Claim Standard. If the Special Master is unable to determine, based on the submissions described in Paragraphs 9.1.7.1 and 9.1.7.4, whether a Tier 2 Claimant meets the
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Claim Standard, then the Special Master may make one request for additional information of Claimant and/or one request for additional information of CBRE for the purpose of enabling her to make such determination.
9.1.7.6. If the Special Master determines that a Tier 2 Claimant meets the Claim Standard, the Special Master shall consider the damages available to litigants under Title VII and 42 USCS § 1981a and determine the appropriate monetary award, if any, for such Claimant within a range of $0 to $15,000.00. In the event the Special Master determines that the Claimant does not satisfy the Claim Standard, the Claimant shall be awarded no money.
9.1.7.7. The Special Master shall make quarterly reports to Class Counsel, the Claims Administrator and CBRE concerning the Tier 2 awards for the preceding quarter.
9.1.7.8. Within 60 days of each quarterly award report or 10 days from the Effective Date of the agreement, whichever comes later, CBRE shall deposit the total of the Tier 2 awards into the escrow account designated by the Claims Administrator.
9.1.7.9. Within 30 days of deposit, the Claims Administrator shall tender to each successful Tier 2 Claimant her award check and file and serve the appropriate Form 1099 with the Internal Revenue Service and the Tier 2 Claimants.
9.1.7.10. Any Tier 2 award that is unclaimed as of the Expiration Date or six months after the Claims Administrator has issued the award to the Claimant, whichever is later, shall be paid to the charitable organization described in Paragraph 10.1 below.
9.1.8. Tier 3 Claims. 9.1.8.1. A Tier 3 Claimant must complete a Form-T2/3, designating
that she wishes to proceed in Tier 3. This form identifies the Tier 3 Claimant by name and
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requires the Tier 3 Claimant to specify under penalty of perjury her Sexual Harassment allegations, including the detail of the hostile work environment which she allegedly experienced, the identification of any individual who participated in the alleged Sexual Harassment, a detailed description of the alleged sexually harassing conduct, whether the alleged sexually harassing conduct was welcome or unwelcome, a detailed description of how the alleged Sexual Harassment affected her and what injuries she alleges based on the alleged Sexual Harassment, the approximate time period when any alleged incidents occurred, whether each alleged incident was reported (and if so, to whom, how, and when it was reported) and, if not reported, the reasons why not. A Tier 3 Claimant’s written submission shall be limited to 15 pages with writing and/or typing on only one side of each page; however, a Tier 3 Claimant may submit as exhibits pre-existing documents (i.e., documents that were not created for purposes of submitting her Tier 3 Claim) that provide some or all of the basis for her Claim, including, by way of example only, inappropriate e-mails circulated in the workplace, photographs of inappropriate conduct in her office, etc.
9.1.8.2. The Form-T2/3 includes a statement assuring the Claimant that CBRE is prohibited from retaliating against her for participating in the Tier Program.
9.1.8.3. In determining whether a Tier 3 Claimant meets the Claims Standard, the Special Master is entitled to follow up and ask the Claimant to be more specific. If the Claimant is not able to provide more specifics to the satisfaction of the Special Master, the Special Master may take that into account when adjudicating the claim.
9.1.8.4. Within 14 days of the Claim Form Deadline, the Special Master shall provide copies of all Forms-T2/3 for the Tier 3 Claimants to CBRE.
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9.1.8.5. Within 90 days of receiving each Tier 3 form from the Special Master, CBRE shall provide a response and/or position statement to the allegations in the Form-T2/3, including information concerning steps taken to respond to the alleged harassment, if it was reported or otherwise known by CBRE, additional areas of inquiry it believes are needed, and the names of persons it believes are necessary for resolving the claim, as well as any rebuttal to class-wide evidence cited by any individual claimant. CBRE’s written response (including any position statement) shall be limited to 15 pages with writing and/or typing on only one side of each page. CBRE shall return its response to the Special Master; however, CBRE may submit as exhibits pre-existing documents (i.e., documents that were not created for purposes of its response to the Tier 3 Claim) that provide some or all of the basis for its defense, including, by way of example only, an executed release by the Claimant.
9.1.8.6. Within 30 days of receipt, the Special Master shall provide copies of CBRE’s response and position statement to each Tier 3 Claimant together with a standard cover letter prepared by the Special Master setting forth the rights that the Claimant has to respond as follows: Each Tier 3 Claimant shall have 60 days to prepare, if she so chooses, any rebuttal to the issues raised in CBRE’s response or position statement, including but not limited to the identification of any additional areas of inquiry and the names of persons necessary for resolving the claim.
9.1.8.7. Within 90 days after the deadline for the rebuttal statement, the Special Master may, at his/her discretion, conduct additional investigation into a given Tier 3 Claimant’s claims. The Special Master’s investigation can include a request for additional documentation or written response to specific questions from CBRE or the Claimant. Neither CBRE nor the Claimant may object to the additional investigation, unless compliance with the
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request would cost the responding party more than $5,000 (exclusive of attorneys’ fees) to address. However, in the event that CBRE or the Claimant refuses to cooperate or provide the additional information requested from the Special Master, the Special Master may make an adverse inference regarding the requested information against that party.
9.1.8.8. Once the Special Master has conducted any additional investigation, s/he shall schedule a Tier 3 Hearing.
9.1.8.9. Tier 3 Hearings shall be conducted in Chicago, Illinois at dates and times scheduled by the Special Master. The Special Master has the discretion to reschedule Tier 3 Hearings at the Claimant’s or CBRE’s request. The Special Master shall decide the venue of the hearings.
9.1.8.10. Tier 3 Hearings will be directed and conducted at the discretion of the Special Master, subject to the following guidelines:
(a) Both CBRE and the Claimant (except for the Named Plaintiffs and CBRE with respect to the Named Plaintiffs’ claims only) shall have an opportunity to provide an oral presentation if they choose, including but not limited to a review of any alleged facts or documents;
(b) Tier 3 Claimants who live more than 100 miles from the hearing venue may attend telephonically or, after being duly sworn, provide testimony telephonically. Alternatively, CBRE has the right to require a Tier 3 Claimant to testify in person (unless the Claimant can demonstrate to the Special Master extraordinary circumstances precluding her in-person attendance) provided that it
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pays the Claimant’s reasonable transportation and lodging expenses; (c) Each side may, at her or its option and subject only to the Special Master’s discretion, identify one or more witnesses, including but not limited to CBRE employees, who have personal knowledge of the facts or circumstances alleged in or related to the Claim to testify; (d) The Special Master has the discretion, informed by the written materials, to identify and request additional individuals, including CBRE employees and third-party witnesses that are in the control of the Claimant or CBRE, to attend the hearing and testify (and, in the event said witnesses are not produced, may draw reasonable inferences therefrom, taking into account all relevant circumstances including cost); (e) Subject to the discretion of the Special Master, the Special Master may ask questions of the witnesses, and may provide CBRE and the Claimant the opportunity to present and cross-examine the witnesses attending the hearing pursuant to the guidelines above; (f) A Tier 3 Hearing shall be completed in one, eight-hour day (exclusive of breaks), but the Special Master may extend this limit and may conclude the hearing at any time in less than eight hours, both either in his or her sole discretion and/or upon the request of either CBRE or the Claimant;
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(g) The Special Master has discretion as to how each Tier 3 Hearing will be conducted, including the order of witnesses, time limits for the presentation of CBRE’s and the Claimant’s cases, and rules of evidence that apply, subject to the rule that CBRE and the Claimant shall be allocated equal amounts of time of that ultimately permitted for the hearing.
9.1.8.11. The Special Master shall then determine whether each Tier 3 Claimant meets the Claim Standard.
9.1.8.12. If the Special Master determines that a Tier 3 Claimant meets the Claim Standard, the Special Master shall consider the damages available to litigants under Title VII and 42 USCS § 1981a and determine the appropriate monetary award, if any, for such Claimant within a range of $0 to $150,000. In the event the Special Master determines that the Claimant does not satisfy the Claim Standard, the Claimant shall be awarded no money.
9.1.8.13. The Special Master shall make quarterly reports to Class Counsel, the Claims Administrator and CBRE concerning the Tier 3 awards for the preceding quarter.
9.1.8.14. Within 60 days of each quarterly award report or 10 days from the Effective Date of the Agreement, whichever comes later, CBRE shall deposit the total of the Tier 3 awards into the escrow account established by the Claims Administrator.
9.1.8.15. Within 30 days of deposit, the Claims Administrator shall tender to each successful Tier 3 Claimant her award check and file and serve the appropriate Form 1099 with the Internal Revenue Service and the Tier 3 Claimants.
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9.1.8.16. Any Tier 3 award that is unclaimed as of the Expiration Date or six months after the Claims Administrator has issued the award to the Claimant, whichever is later, shall be paid to the charitable organization described in Paragraph 10.1 below.
9.1.9. Return/Destruction Of Tier Program Materials. At the conclusion of the Tier Program, the Special Master shall return all materials submitted during the Program to the producing party or (with that party’s agreement) shall destroy those materials.
9.1.10. The Named Plaintiffs’ Participation in The Tier Program. The Named Plaintiffs may participate in the Tier Program to the same extent as any Class Member, except as to the scope of the evidence the Named Plaintiffs are allowed to present if they elect to participate in the Tier Program, as set forth in Paragraph 9.1.8.10(a). Specifically, if any of the Named Plaintiffs participate in the Tier Program, the Parties agree that:
9.1.10.1. the evidence CBRE and the Named Plaintiff may submit in support of or in opposition to a Tier 3 claim will be limited to the documentary evidence already developed in This Case (including, but not limited to, depositions, declarations, other summary judgment brief materials, and summary judgment briefs);
9.1.10.2. for any Named Plaintiff who elects to submit a Tier 3 Claim, the Special Master will not conduct a Tier 3 hearing.
9.1.11. No Entitlement to Attorneys’ Fees or Costs in Connection with Tier Program. Nothing in this Section (or this Consent Decree) shall permit individual Claimants or their attorneys, including but not limited to Class Counsel, to seek or recover from CBRE attorneys’ fees or other costs associated with representing an individual Claimant with respect to the Tier Program. CBRE shall not be obligated to compensate individual Claimants or their attorneys for any such fees or costs.
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X.

CHARITABLE CONTRIBUTION

10.1. Charitable Contribution.

10.1.1. CBRE agrees to make a contribution of $400,000, within 60 days of the

Effective Date of this agreement, to the Commercial Real Estate Women (CREW) Network, an

industry advocate for the success of women in commercial real estate, for the establishment and

administration of a scholarship fund pursuant to the Women Scholars’ Program described in

Exhibit G. The purpose of the program is to provide annual scholarships over the next four years

to junior and/or senior female undergraduate students concentrating their field of study in the real

estate area in order to promote the entry and advancement of women in the real estate services

industry.

XI.

RELEASE AND COVENANT NOT TO SUE

11.1. In consideration of the promises contained in, and the benefits provided or to be

provided hereunder, upon the Effective Date this Consent Decree shall resolve, extinguish, and

finally forever bar any and all Released Claims which any of the Named Plaintiffs, or their

respective representatives, agents, heirs, executors, administrators, successors, or assigns have,

may have, may have had, or in the future may have against CBRE arising from or related to

events that occurred during the Liability Period.

11.2. Except with respect to any persons who have effectively exercised a right to opt

out of this Decree (which is permissible as to claims for monetary relief only), in consideration

of the promises contained in, and the benefits, processes and procedures provided or to be

provided to the Settlement Class Members hereunder, upon the Effective Date this Consent

Decree shall resolve, extinguish, and finally and forever bar any and all Released Claims for

monetary relief or for equitable relief which any of the Settlement Class Members, or their

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representatives, agents, heirs, executors, administrators, successors, or assigns have, may have, may have had, or in the future may have against CBRE arising from or related to events that occurred during the Liability Period. As used in this Section, the phrase “monetary relief” shall include economic or non-economic monetary damages of any kind arising from the Released Claims, including, without limitation, back pay, employment benefits (including, without limitation, retirement, life insurance, and 401(k) savings plan benefits, and the monetary equivalent of various forms of leave), and/or interest (including both pre-judgment interest and post-judgment interest), compensatory damages and punitive damages. Upon the Effective Date, to the extent permitted by law, the doctrines of res judicata and collateral estoppel shall bind all Settlement Class Members with respect to the Released Claims (and shall also bar all Class Members with respect to claims for equitable relief released hereunder). The Consent Decree may be pled as a full and complete defense to any subsequent action or other proceeding involving any person or party which arises out of the Released Claims and any other claims released and discharged by the Consent Decree (i.e., the claims for equitable relief released as to all Class Members).
11.3. Covenant Not to Sue. In consideration of the promises contained in this Consent Decree and the benefits, processes and procedures provided or to be provided hereunder, the Settlement Class Members also agree never to sue Defendant in any forum for any of the Released Claims. They additionally agree that any such claim, if filed by any one or more of them, shall be dismissed with prejudice. Excluded from this covenant not to sue are any claims that cannot be waived by law.
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XII. GENERAL PROVISIONS 12.1. No Admission Of Liability. This Consent Decree does not and is not intended to
constitute and shall not be deemed to constitute an admission by CBRE as to the merits, validity, or accuracy of any of the allegations, claims, or defenses in the Litigation, nor shall it be used as a means to require the continuation of any program or action beyond the term of this Consent Decree, except as may be necessary to enforce the terms of this Consent Decree. By entering into this Consent Decree, CBRE does not admit or concede, expressly or impliedly, but instead denies, that it has in any way violated Title VII, the common law of any jurisdiction, any federal, state, or local law, statute, ordinance, regulation, rule, or executive order, or any obligation or duty at law or in equity.
12.2. No Court Findings As to Liability. In agreeing to the terms of this Consent Decree, the Parties acknowledge that this Court has not made any findings or expressed any opinion concerning the merits, validity, or accuracy of any of the allegations, claims, or defenses in the Litigation.
12.3. Not Admissible In Any Other Proceeding. 12.3.1. The Parties shall not introduce or use or cause to be introduced or used
anything in this Consent Decree, nor any action taken in implementation thereof, nor any statements, discussions, or communications, nor any materials prepared, exchanged, issued, or used during the course of the Litigation or in negotiations leading to this Consent Decree, in this Litigation or in any other judicial, arbitral, administrative, investigative, or other proceeding of whatsoever kind or nature, as evidence of Sexual Harassment, or as evidence of any violation of Title VII; the common law of any jurisdiction; any federal, state, or local law, statute, ordinance, regulation, rule, or executive order; or any obligation or duty at law or in equity.
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12.3.2. Notwithstanding the foregoing, the Consent Decree may be used by the Plaintiff Class or CBRE in any proceeding in this Court to enforce or implement the Consent Decree or any orders or judgments of this Court entered into in connection herewith.
12.3.3. Effect Of Failure Of Consent Decree. In the event this Consent Decree does not become final or effective (for whatever reason), this entire Consent Decree shall become null and void and of no force or effect at the option of Class Counsel, on behalf of the Named Plaintiffs or the Class, or CBRE. The Parties further agree that the Litigation shall be reinstated if CBRE exercises its option to void the Consent Decree pursuant to any of the conditions enumerated in Section XX below.
12.4. Responsibility of Settlement Class Members and Named Plaintiffs for Tax Liabilities.
12.4.1. Each Settlement Class Member and Named Plaintiff who receives a payment from CBRE in connection with this Consent Decree and the procedures/payments provided for herein shall be fully and ultimately responsible for payment of any and all federal, state or local taxes (excluding the employer share of employment taxes, if any, and unemployment taxes and excluding amounts properly withheld from the payment, if any) resulting from or attributable to the payment received by such Settlement Class Member or Named Plaintiff.
12.4.2. Further, each Settlement Class Member and Named Plaintiff shall indemnify and hold harmless CBRE, Class Counsel, the Depository Bank, and the Settlement Administrator from any tax liability, including penalties and interests and costs of any proceedings, related in any way to any acts or omissions on the part of the Settlement Class Member or Named Plaintiff.
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12.4.3. In all cases in which the tax liability that arises is not attributable to any acts or omissions on the part of a Settlement Class Member or Named Plaintiff, the Settlement Class Member or Named Plaintiff shall indemnify and hold harmless CBRE, Class Counsel, the Depository Bank, and the Settlement Administrator from any tax liability, but not penalties, interest, or the costs of any proceedings related to such tax liability. XIII. INCENTIVE AWARDS TO NAMED PLAINTIFFS.
13.1. CBRE agrees to pay the Named Plaintiffs an aggregate award of $350,000 for the services they provided to the Class, and the risks they assumed on behalf of the Class.
13.2. Subject to the Court’s approval, the Parties have valued the services provided and the risks undertaken by each of the Named Plaintiffs by taking into account the following factors:
(a) the length of each of their tenures as Named Plaintiffs in the litigation and the concomitant obligations as a result thereof;
(b) the service of all Named Plaintiffs in the strategic components of the litigation, in which they gave direction to, and regularly consulted with, Class Counsel about the case strategy and direction and later about litigation plans and settlement issues; and
(c) assistance by each of the Named Plaintiffs in designing and undertaking discovery and responding to discovery undertaken by CBRE, as well as submitting to depositions and providing declarations.
13.3. Subject to the Court’s approval, the allocation of the Service Award, based on the recommendation of Class Counsel and the Named Plaintiffs, shall be as follows:
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Amy Wiginton

$125,000

Kristine Moran

$100,000

Andrea Corey

$75,000

Norma Plank Fethler, $25,000 as successor in interest to Dondi Plank

Olivia Knapp

$25,000

13.4. CBRE will tender separate checks to Class Counsel for delivery to each Named

Plaintiff in the respective amounts, within 30 days of the Effective Date of the agreement, after

which CBRE shall file a Form 1099 in that amount for each Named Plaintiff.

XIV. ATTORNEYS’ FEES AND COSTS

14.1. Upon final approval of this Decree, CBRE shall establish an interest-bearing

escrow account at Charter One Bank in Chicago, Illinois into which it shall deposit the sum of

Three Million Four Hundred Thousand Dollars ($3,400,000.00), as payment to Class Counsel for

all fees and litigation costs and expenses they incurred on behalf of Plaintiffs and the Class up to

and including the date this Consent Decree obtains final approval by the Court. Such funds,

including accrued interest, will be released and made payable to Class Counsel on the Effective

Date of the Decree.

14.2. CBRE shall not be responsible for the payment of any other attorneys’ fees and

expenses incurred by Class Counsel, the Named Plaintiffs or the Class, except as follows:

(a) the Special Master’s fees for administering the Tier Program and

monitoring compliance with the Consent Decree as described

herein;

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(b) the travel and lodging expenses for live testimony of Tier Program claimants, described in Paragraph 11.1.8.11, above;
(c) demonstrable fees incurred by Class Counsel in jointly working with CBRE to respond to an appeal from the final order approving the Consent Decree, but only in the following limited categories: (1) reviewing and commenting on CBRE’s brief, (2) preparation of portions of an appellate brief which raises arguments that CBRE has refused to make after having been advised to do so by Class Counsel, but only if the arguments asserted by Class Counsel ultimately constitute one of the bases relied on by the Court of Appeals for upholding the consent decree, and (3) necessary preparation for and attendance of up to two attorneys at hearings related to the appeal;
(d) demonstrable fees up to $20,000, incurred by Class Counsel for necessary preparation for and attendance of up to two attorneys at any class-wide oral argument requested by the Special Master pursuant to Paragraph 11.1.4, with the understanding that classwide evidence is otherwise limited to the class briefs and exhibits already submitted to the Court in connection with Plaintiffs’ motion for class certification and that CBRE will not pay fees incurred in the preparation of any additional written materials;
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(e) any fees and expenses incurred by Class Counsel where Class Counsel represents the prevailing party in the enforcement of this Decree as set forth and limited by Section XXI;
(f) any fees owed by CBRE under sub-paragraphs (c) and (d) shall be limited to and shall under no circumstances exceed $100,000;
(g) the costs and expenses for administering the employment practices in Section VII of the Decree shall be paid by CBRE.
Notwithstanding the foregoing, this section in no way limits the right of Class Counsel to do additional work not enumerated above; this section is only intended to reflect the limitations on CBRE’s payments to Class Counsel for future work.
14.3. The Parties acknowledge that neither Class Counsel, the Named Plaintiffs nor CBRE is responsible for any fees and costs associated with a Claimant’s participation in the Tier Program described in Section IX above. CBRE will not compensate Class Counsel for any fees or costs incurred in assisting any individual Class Members, including, but not limited to, responding to Class Member inquiries regarding the Settlement and/or performing ancillary tasks related to Class Members’ access to the Tier Program.
14.4. CBRE shall have no obligation under this Consent Decree to pay any money for attorneys’ fees and costs to Class Counsel, except as expressly set forth herein. Except as otherwise provided herein, CBRE shall not be liable for any of the Named Plaintiffs’ costs or attorneys’ fees, statutory or otherwise, incurred in the Litigation or during the term of the Consent Decree.
14.5. The costs and expenses for administering the employment practices in Section IX of the Agreement shall be paid by CBRE.
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XV. PRELIMINARY APPROVAL HEARING 15.1. Subject to approval by the Court, the Parties hereby agree to the following
procedures and schedule for Notice and submission of this Consent Decree for final approval pursuant to Rule 23(e) of the Federal Rules of Civil Procedure.
15.2. The Court shall conduct a Preliminary Approval Hearing on October 4, 2007 at 1:30p.m. to determine whether the Court should approve the compromise of the Litigation in the manner set forth herein.
15.3. The Parties agree that they shall jointly file this Consent Decree with the Court seeking entry of an Order in the form attached hereto and fully incorporated herein at Exhibit A.
15.4. At the Preliminary Approval Hearing, the Parties agree to opine to the Court that the Consent Decree is fair, reasonable, and adequate to the Class as a whole, within the meaning of that phrase as contemplated by Rule 23(e) of the Federal Rules of Civil Procedure. Counsel of Record shall request prompt judicial approval of this Consent Decree as written and agree further to use their best efforts on a joint basis to obtain prompt entry of the Order. The Parties, through their respective counsel, also agree to recommend to the Court on a joint basis that, in their respective professional opinions, the Consent Decree is reasonable and appropriate, in the best interests of the Class, that the Parties have bargained for the terms in the Consent Decree, and that no section or subsection of this Consent Decree should be modified or stricken. If the Court does not execute the Order in the form attached and fully incorporated herein at Exhibit D in any material part, the Parties agree that this Consent Decree shall be null and void. If this Consent Decree is terminated or fails to become effective for any reason, the Court’s establishment of a provisional settlement process shall be void, and the respective rights of the Parties in This Case
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or in any other case shall not be prejudiced in any way by the Consent Decree or the Court’s refusal to enter an Order approving the Consent Decree. XVI. NOTICE
16.1. The Parties have agreed to retain Rust Consulting, an independent Claims Administrator, to be paid by CBRE, to administer and implement the plan set forth herein to distribute monetary awards to Claimants, including the following powers:
(a) to distribute Notice to Class Members, including by U.S. mail to their last known addresses;
(b) to conduct a trace on Class Members whose Claim Forms are returned as undeliverable, identify current addresses for those Class Members and distribute Notice to those Class Members by U.S. Mail;
(c) to receive and forward to the Court and Counsel of Record any Requests for Exclusion;
(d) to forward Claim Forms to the Special Master; and (e) to distribute monetary awards to Claimants and file and serve the
appropriate Form 1099s. 16.2. Within fourteen (14) days after the entry of the Preliminary Approval Order, CBRE shall provide to Class Counsel and the Claims Administrator the names and last known addresses of Class Members. 16.3. Within thirty (30) days after receipt of the list, the Claims Administrator shall issue Notice to the last-known address of each Class Member by first-class mail postage prepaid.
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16.4. Upon receipt of any Notices returned to the Claims Administrator because the Class Member no longer resides at the last known address provided by CBRE, the Claims Administrator shall run a trace on the Class Member (at a cost to CBRE of $1 per trace); if an updated address is located, the Claims Administrator shall mail a new notice to the Class Member. In the event that the trace program, which will be based on last known names and addresses of Class Members, results in more than five percent (5%) of Claim Forms being returned as undeliverable, CBRE and Class Counsel will meet and confer regarding the appropriate methods by which to trace Class Members, including the use of social security numbers (under a Court-ordered Protective Order) for tracing purposes, and implement an additional round of mailing Notice. XVII. OPT-OUTS
17.1. Any Class Member may request exclusion from the Class (“Opt-Out”) only for purposes of recovering individual monetary relief as described in Section IX (i.e., through participation in the Tier Program).
17.2. No Class Member may opt out of the equitable relief provisions in Section VII of this Consent Decree.
17.3. Class Members who wish to opt-out of the individual monetary relief portion of the settlement will be required to file a completed and signed Request for Exclusion with the Court.
17.4. To opt-out of the Settlement, the Class Member will be required to submit a form signed personally by the Class Member or her attorney or other representative (unless otherwise authorized by law or approved in advance by the Court) containing her full name, address, day and evening telephone numbers, Social Security number and the following statement:
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“I am a Settlement Class Member in the lawsuit of Wiginton v. CB Richard Ellis, Inc. Case No. 02 CV 6832. I wish to opt-out of the monetary portion of the settlement of This Case. I understand that by requesting to be excluded from the monetary portion of the Settlement, I will receive no money whatsoever from CB Richard Ellis, Inc. under the Settlement entered into by Defendant and Class Members and preliminarily approved by the Court as fair and reasonable on October 4, 2007. I understand that I may bring a separate lawsuit, in which I will not be represented by Class Counsel, and I understand that in any separate lawsuit I may receive nothing, or, I may receive less than I would have if I had filed a claim under the Tier Program. I also understand that I cannot seek exclusion from the Class for purposes of non-monetary relief, and I will be bound by the classwide equitable relief provisions of the Settlement entered into by Defendant and Class if the Court gives final approval to the Settlement.” 17.5. Requests for Exclusion will be made available to Class Members upon request to
the Claims Administrator by calling (888) 764-8860 or writing to the following address:
Wiginton, et al. v. CB Richard Ellis, Inc., Claims Administrator, c/o Rust Consulting, Inc., P.O.
Box 9388, Minneapolis, MN 55440-9388.
17.6. Those who choose to opt-out of this lawsuit (a) will have no right to file a claim
for or to receive any money under the settlement of This Case; and (b) may bring a separate
lawsuit against CBRE.
17.7. Requests for Exclusion must be mailed to the Claims Administrator and
postmarked by January 2, 2008. The Settlement Administrator must, in turn, forward completed
Requests for Exclusion to Counsel of Record.
XVIII. OBJECTIONS/COMMENTS TO SETTLEMENT 18.1. Any Class Member has the right to submit written objections to or comments in
support of the proposed Settlement, the proposed award of attorneys’ fees and expenses, or the
proposed payment of service awards to the Representative Plaintiffs.
18.2. To do so, the Class Member must submit a written statement setting forth: (1) her
name, address, and telephone number; (2) the reference “Wiginton v. CB Richard Ellis, Inc., No.
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02 C 6832”; (3) the approximate dates and location of employment with CBRE; and (4) her objections, comments and any supporting arguments, to: Clerk of the Court, Northern District of Illinois, 219 South Dearborn Street, Chicago, Illinois 60604.
18.3. The Class Member must also mail copies of her entire written submission to Plaintiffs’ Co-Lead Counsel and CBRE’s counsel at the addresses listed in Paragraph 22.9, below.
18.4. To be considered by the Court, any objections or supporting comments must be actually received by the Clerk of the Court, Plaintiffs’ Co-Lead Counsel, and CBRE’s counsel, and not merely postmarked, no later than January 2, 2008.
18.5. Only Class Members who remain in the Class may make an objection. Class Members who opt-out may not object to the proposed Settlement.
18.6. Any Class Member may also attend the Fairness Hearing, either personally or through an attorney retained by her, at her own expense, and ask to be heard by the Court on her objections or comments. To be heard however, the Class Member must submit her objections or comments in writing in compliance with this Section and include in her objections or comments a statement that she intends to appear and requests to be heard at the Fairness Hearing. XIX. FAIRNESS HEARING
19.1. Class Counsel shall file the date-stamped originals for any Request for Exclusion forms with the Court not later than two (2) days before the date set for the Fairness Hearing, at which the Consent Decree shall be presented to the Court for final approval.
19.2. Class Members who have timely requested exclusion from the Class may not participate at the Fairness Hearing.
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19.3. Settlement Class Members who wish to object to this Consent Decree or any part of it may be heard at the Fairness Hearing only:
(a) if they file with this Court and serve on Counsel of Record a written statement of their objections and the basis for such objections;
(b) where such statement is received by the Court and Counsel of Record at least ten (10) days prior to the date set for the final approval hearing; and
(c) where such statement indicates whether they intend to appear at the Fairness Hearing.
Such objectors must appear at the Fairness Hearing either in person or by counsel. Failure to perform any of these requirements shall be deemed a waiver of any objections. The Parties may, but need not, respond in writing to objections by filing a response with the Court. XX. EXCESSIVE NUMBER OF OPT-OUTS
20.1. CBRE shall have the unilateral right to revoke the Consent Decree prior to the Effective Date in the event that ten percent (10%) or more of Class Members opt-out of the Consent Decree. XXI. ENFORCEMENT PROCEDURE
21.1. Resolution Of Parties’ Disputes. In the event that Class Counsel or any Party to this Consent Decree believes that a Party has failed to comply with any material provision of this Consent Decree, he, she, or it shall first attempt to resolve the issue by good faith negotiations.
21.1.1. To that end, he, she, or it shall immediately, and no later than ten (10) business days after becoming aware of the issue, notify the other party in writing via e-mail and
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first class mail of the particulars of the dispute and the term or terms of the Consent Decree that are involved.
21.1.2. The recipient of the written communication must respond in writing to the sender within ten (10) business days with an explanation of its position.
21.1.3. If such correspondence does not resolve the dispute between the Parties, then the Parties shall meet in person or, if necessary, by telephone through representatives authorized to resolve the dispute on at least one (1) occasion within the next ten (10) business days and attempt to resolve the dispute in good faith.
21.2. Court Intervention. After complying with Paragraph 21.1, above, if the Parties are unable to resolve their dispute, then the Parties may seek Court intervention. The moving papers shall explain the facts and circumstances that allegedly necessitate immediate action by the Court. If any such matter is brought before the Court requesting immediate Court action, the opposing party shall be provided with appropriate actual notice, and an opportunity to be heard in opposition to the motion, pursuant to the Local Rules of the Court and the Federal Rules of Civil Procedure. The Court in its discretion may set such procedures for emergency consideration as are appropriate to the particular facts and circumstances, but no such matter may be conducted on an ex parte basis.
21.3. Fees Incurred to Enforce the Decree. The Parties will bear their own fees and costs in connection with any and all actions taken to enforce this Decree in the District Court, except that if Class Counsel represents the prevailing party in any such proceeding, they shall be entitled to recover their reasonable fees and costs for all work reasonably necessary to enforce the provisions of this Decree through the presentation of disputed issues for decision by the Court. Compensable time and expenses hereunder shall not include any work involved in
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investigating the alleged non-compliance, in providing notice of the alleged non-compliance, or in seeking to resolve the dispute pursuant to Paragraph 16.1 above.
21.4. No Third-Party Rights. Nothing in this Consent Decree shall be deemed to create any rights on the part of any third party beneficiaries to enforce this Consent Decree. The right to seek enforcement of this Consent Decree is vested exclusively in the Parties. In the event that a third party challenges this Consent Decree or brings a lawsuit or files an administrative charge with a governmental agency, such as the U.S. Equal Employment Opportunity Commission or a similar state or local agency, against CBRE for liability resulting from any actions required by this Consent Decree, Class Counsel agrees that it will not intervene to challenge the Consent Decree (or otherwise take any affirmative steps to challenge or undermine the Consent Decree directly or indirectly).
21.5. Status of Allegedly Injured Individuals. For purposes of interpreting this Consent Decree, allegedly injured individuals who are not Class Members shall not be deemed to be third-party beneficiaries of this Consent Decree and shall have no right to enforce its terms.
21.6. No Individual or Independent Right to Seek Enforcement. Nothing in this Consent Decree is intended to confer upon any person or entity other than the Plaintiff Class, as a whole and by Class Counsel, and CBRE the right to seek enforcement of its terms. XXII. CONSTRUCTION
22.1. Governing Law. This Consent Decree shall be construed and interpreted in accordance with and governed by the laws of the State of Illinois.
22.2. Entire Agreement. This Consent Decree, including Exhibits, comprises the full and exclusive agreement and understanding of the Parties with respect to this settlement, and supersedes all prior written or oral agreements (including, without limitation, any and all term
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sheets previously agreed to by the Parties). No representations or inducements to compromise this action have been made, other than those recited in this Decree. This Decree does not impose any obligations on the parties beyond the terms and conditions stated herein. Accordingly, this Decree shall not prevent or preclude CBRE from revising its employment practices and policies or taking other personnel actions during the term of the Decree that do not violate the requirements of the Decree. Rather, subject to the terms of this Consent Decree, CBRE retains all managerial discretion over personnel decisions and actions, terms and conditions of employment, and human resources functions, programs, policies, practices, and procedures, in accordance with applicable law.
22.3. Severability. Subject to and independent from Paragraph 4.6 herein, if any clause, sentence, paragraph, or part of this Consent Decree or the application of it to any person or circumstances, is, for any reason, judged by the Court to be totally or partially unenforceable or contrary to law or if the enactment or amendment of any federal or state statute, order, ordinance, regulation renders any provision of this Consent Decree totally or partially unenforceable or contrary to law, such ruling, judgment, enactment, or amendment shall not effect, impair, or invalidate the remainder of this Consent Decree, except as otherwise provided herein.
22.4. Joint Document Of The Parties. The terms of this Consent Decree are the product of joint negotiation and are not to be construed as having been authored by one Party or another.
22.5. Agreed Modifications. Should either the Named Plaintiffs or CBRE determine that modifications, additions, or deletions to this Consent Decree are necessary, the counsel for the Parties shall meet in good faith and on reasonable notice to discuss any such changes. No
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modification, deletion, or addition to this Consent Decree shall be adopted unless it is agreed upon in writing, signed by the Parties, and so ordered by the Court.
22.6. Headings. The headings in this Consent Decree are for the convenience of the Parties only and shall not limit, expand, modify, amplify, or aid in the interpretation or construction of this Consent Decree.
22.7. Non-Waiver. The waiver in any one instance by any Party hereto of any term, condition, or covenant in this Consent Decree or of the breach of any term, condition, covenant, or representation herein shall not operate as or be deemed to be a waiver of the right to enforce any other term, condition, or representation, nor shall any failure by any Party at any time to enforce or require performance of any provision hereof operate as a waiver of or affect in any manner such Party’s right at a later time to enforce or require performance of such provisions or of any other provision hereof.
22.8. Calculation Of Time. In computing any period of time prescribed or allowed by this Consent Decree, unless otherwise stated, such computation or calculation shall be made consistent with the Federal Rules of Civil Procedure.
22.9. Notice To The Parties. All notices and other communications required under this Consent Decree shall be in writing and delivered either personally or by depositing the same, postage prepaid, in the United States Mail, addressed to the party hereto to whom the same is directed at the following addresses:
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To Plaintiffs:

To CBRE:

Elizabeth A. Fegan HAGENS BERMAN SOBOL SHAPIRO LLP 820 North Blvd., Suite B Oak Park, IL 60301 beth@hbsslaw.com
Kenneth A. Wexler Jennifer Fountain Connolly Amber M. Nesbitt WEXLER TORISEVA WALLACE LLP 55 West Monroe Street, Suite 3300 Chicago, IL 60603 kaw@wtwlaw.com jfc@wtwlaw.com amn@wtwlaw.com

Brenda H. Feis Christopher J. DeGroff Anne E. Duprey SEYFARTH SHAW LLP 131 S. Dearborn Street, Suite 2400 Chicago, IL 60603 (312) 460-5000 (312) 460-7000 (facsimile) bfeis@seyfarth.com cdegroff@seyfarth.com aduprey@seyfarth.com

The Parties or their counsel may from time to time change their addresses or representatives for

purposes of this Section by providing written notice, return receipt requested, of such changes to

the other Party.

22.10. Counterparts. This Consent Decree may be executed in one or more

counterparts and each executed copy shall be deemed an original, which shall be binding upon

all Parties hereto.

XXIII. STATEMENTS TO THE MEDIA OR GENERAL PUBLIC

23.1. Publicity. CBRE, Class Counsel, and the Named Plaintiffs shall agree to a media

statement (“Public Statement”), attached hereto as Exhibit F, to be issued jointly on the day after

the Court’s preliminary approval of the settlement. Furthermore, CBRE, Class Counsel, and the

Named Plaintiffs agree that all communications with the media and other non-parties to This

Case regarding This Case shall be limited to the Public Statement. CBRE, Class Counsel, and

the Named Plaintiffs agree that they will not engage in any unauthorized publicity regarding This

Case and that neither Class Counsel nor Named Plaintiffs, nor any of their agents, will take any

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steps to encourage any Class Members or other third parties from engaging in unauthorized publicity regarding This Case. To the extent that any unauthorized publicity occurs that is not approved by CBRE or Class Counsel per the above, CBRE and Class Counsel will retain the right to respond, subject to conferring with the other. CBRE, Class Counsel and the Named Plaintiffs further agree to refrain from engaging in any disparaging remarks or comments about each other, and agree that neither CBRE, Class Counsel nor Named Plaintiffs, nor any of their agents, will take any steps to encourage any Class Members or other third parties to engage in disparaging remarks or comments about each other. Moreover, Class Counsel and the Named Plaintiffs will inform any inquiring Class Members not to disparage CBRE and not to discuss this Case with the media or other non-parties to this Case beyond the parameters of the Public Statement.
23.2. Class counsel agrees that, within two (2) business days of the Court’s granting of preliminary approval of the Consent Decree, they will modify any web site and/or any other publicly-available postings they control that relate to the Litigation as necessary to conform to the parameters of the Public Statement and this Consent Decree.
23.3. Notwithstanding the foregoing, Class Counsel retain the right to communicate with Class Members about the terms of this Consent Decree for the purpose of enforcing the terms of the Consent Decree, and CBRE retains the right to communicate with its employees about the terms of this Consent Decree for the purpose of enforcing the terms of the Consent Decree. XXIV. REPRESENTATIONS BY CLASS COUNSEL
24.1. Class Counsel warrants and represents that: (1) with the exception of Named Plaintiffs, each does not now represent any individual who may have a claim against CBRE; and
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25.1. The Parties agree that the Released Claims shall be dismissed with prejudice upon the Effective Date, provided that the Court retains jurisdiction to enforce the terms of this Consent Decree as described in Section 4.1.
57

CaseC: a1s:0e21-c:0v2-0-c6v8-30268D3o2cumDeonct u#m: 3e2n1t -3216F-i2led: 1F0il/e2d4/1007/0P4a/g2e00674 ofP7a1gPea6g3eIoDf 7#0:3140

Agreed to in form:

Agreed to in form:

FOR THE NAMED PLAINTIFFS & SEITLEMENT CLASS:
By: Elizabeth A. Fegan HAGENS BERMAN SOBOL SHAPIRO LLP
~ 820 North Blvd, Suite B
Oak Psrk, L 6030 I
By. Kenneth A. Wexler Jennifer Fountain Co Amber M. Nesbitt WEXLER TORISE A WALLACE LLP 55 West Monroe S1., Ste. 3300 Chicago, IL 60603

FOR THE DEFENDANT:
CB RICHARD ELLIS, INC.
By:
Brenda H. Feis Christopher J. DeGroff Anne E. Duprey SEYFARTH SHAW LLP 131 S. Dearborn Street, Suite 2400 Chicago, Ilinois 60603 (312) 460-5000 (312) 460-7000 (facsimile)

Amy Wiginton

Krstine Moran

Andrea Scott flk/a Andrea Corey

Norma Plan Fehler as Successor in Interest to Dondi Plan
Olivia Knapp

58

CaseC: a1s:0e21-c:0v2-0-c6v8-30268D3o2cumDeonct u#m: 3e2n1t -3216F-i2led: 1F0il/e2d4/1007/0P4a/g2e00675 ofP7a1gPea6g4eIoDf 7#0:3141

Agreed to in form:

Agreed to in form:

FOR THE NAMED PLAINTIFFS &
~SETTLEMENT CLASS:
By:
Elizabeth . Fe an
HAGENS B SOBOL SHAPIRO LLP
820 Nort Blvd, Suite B Oak Park, IL 60301
By: Kenneth A. Wexler Jennfer Fountain ConnoIly Amber M. Nesbitt WEXLER TORlSEV A WALLACE LLP 55 West Monroe St., Ste. 3300 Chicago, IL 60603

FOR THE DEFENDANT:
CB RICHARD ELLIS, INC.
By: Brenda H. Feis
Chrstopher J. DeGroff
Anne E. Duprey SEYFARTH SHA W LLP i 31 S. Dearborn Street, Suite 2400
Chicago, Ilinois 60603 (312) 460-5000 (312) 460-7000 (facsimile)

Amy Wiginton

Kristine Moran

Andrea Scott £la Andrea Corey

Norma Plank Feh1er as Successor in Interest to Dondi Plank
Olivia Knapp

Dated: Dated:

CHi 11323590.1

58 Fiiial AgreemeIl9/18/07

CaseC: a1s:0e21-c:0v2-0-c6v8-30268D3o2cumDeonct u#m: 3e2n1t -3216F-i2led: 1F0il/e2d4/1007/0P4a/g2e00676 ofP7a1gPea6g5eIoDf 7#0:3142

Agreed to in form:
FOR THE NAMED PLAINTIFFS & SETTLEMENT CLASS:

Agreed to in form: FOR THE DEFENDANT:

By: Elizabeth A. Fegan HAGENS BERMAN SOBOL SHAPIRO LLP 820 North Blvd, Suite B
Oak Park, IL 60301
By: Kenneth A. Wexler Jennifer Fountain Connolly Amber M. Nesbitt WEXLER TORISEV A WALLACE LLP 55 West Monroe S1., Ste. 3300 Chicago, IL 60603

By:
Bren H. Feis i
Christ pher J. DeGroff
Anne E. Duprey
SEYFARTH SHAW LLP 131 S. Dearborn Street, Suite 2400 Chicago, Ilinois 60603
(312) 460-5000 (312) 460-7000 (facsimile)

Amy Wiginton

Kristine Moran

Andrea Scott f/k/a Andrea Corey

Norma Plank Fehler as Successor in Interest to Dondi Plank
Olivia Knapp

Dated:

Dated:

58
CH11I23590.i

CaseC: a1s:0e21-c:0v2-0-c6v8-30268D3o2cumDeonct u#m: 3e2n1t -3216F-i2led: 1F0il/e2d4/1007/0P4a/g2e00677 ofP7a1gPea6g6eIoDf 7#0:3143

Agreed to in foun:

Agreed to in form:

FOR TI NAMD PLAINTIFFS & SETEMENT CLASS:
By: Elizabeth A. Fegan HAGENS BERMAN SOBOL SHAPIRO LLP 820 Nort Blvd, Suite B
Oak Park, IL 60301
By: Kenneth A. Wexler
Jennfer Founta Coriolly
Amber M. Nesbitt WEXLER TORISEV A WALLACE LLP 55 West Monroe St., Ste. 3300 Chicago, IL 60603
AmY~n_w ' - .

FOR TI DEFENDANT:
CD RICHARD ELLIS, INC.
By: Brenda H. Feis
Chrstopher J. DeGroff Ane E. Duprey SEYFARTI SHAW LLP
i 3 i S. Dearborn Street, Suite 2400
Chicago, Ilinois 60603 (312) 460-5000 (312) 460-7000 (facsimle)

i &¡ r¿iu0
Krstine Moran

Andrea Scott flka Andrea Corey

Nonna Plan Fehler as Succssor in Interest to Dondi Plan
Olivia Knpp

58

CaseC: a1s:0e21-c:0v2-0-c6v8-30268D3o2cumDeonct u#m: 3e2n1t -3216F-i2led: 1F0il/e2d4/1007/0P4a/g2e00678 ofP7a1gPea6g7eIoDf 7#0:3144

Agree to in form:

Agreed to in fonn:

FOR TI NAMD PLAINTIFFS & SETILEMENT CLASS:
By:
Elizaeth A. Fegan
HAGENS BERM SOBOL SHAPIRO LLP
820 Nort Blvd, Suite B
Oak Park, IL 6030 i
By: Kenneth A. Wexler Jennfer Fountan Connolly
J\ber~. Nesbitt
WELER. TORISEV A WALLACE LLP 55 West Monroe St., Ste. 3300 Chicago, IL 60603

FOR TI DEFENANT:
CB RICHARD ELLIS, rnc.
By: Brenda H. Feis Chnstopber J. DeGroff
Ane E. Duprey SEYF ARTI SHAW LLP 131 S. Dearborn Street, Suite 2400 Chicago, Ilinois 60603 (312) 460-5000 (312) 460-7000 (facsimile)

Amy Wiginton

~Lfv~w- Krstine Moran
Andrea Scott fIa Andrea Corey

Nora Plan Fehler as Succssor in Interest to
Dondi Plank
Olivia Knapp

58

CaseC: a1s:0e21-c:0v2-0-c6v8-30268D3o2cumDeonct u#m: 3e2n1t -3216F-i2led: 1F0il/e2d4/1007/0P4a/g2e00679 ofP7a1gPea6g8eIoDf 7#0:3145

Agreed to in form:

Agreed to in fonn:

FOR THE NAMED PLAL~TlFFS & SETTLEMENT CLASS:
By:
Elizaeth A. Fegan
HAGENS BERMAN SOBOL SHAPIRO LLP 820 North Blvd, Suite B
Oak Park, rL 6030 i
By: Kenneth A. Wexler Jennifer Fountain Conno1Jy Amber M. Nesbitt WEXLER TORISEVA WALLACE LLP 55 West Monroe. S1. Sie. 3300 Chicago, IL 60603

FOR THE DEFENDANT:
CB RICHARD ELLIS. INC.
By: Brenda H. Feis Chrstopher J. DeGroff Anne E. Duprey SEYFARTH SH.A. W LLP 131 S. Dearborn Street, Suite 2400
Chicago, Ilinois 60603
(3 12) 460-5000
(312) 460-7000 (facsimile)

.Amy \\liginion

Kristine Moran

Andrea Scott f¡Ja Andrea Corey
'-¡i~ì(.~. f\', \ ¡ . '", ~ (IV. U'líl(,(L, j \:u,,'lì fi

L, \ (/'t (~

Norma Plank Fehler as Successor in Interest to Dondi Plan

Olivia Knapp

58

CaseC: a1s:0e21-c:0v2-0-c6v8-30268D3o2cumDeonct u#m: 3e2n1t -3216F-i2led: 1F0il/e2d4/1007/0P4a/g2e00770 ofP7a1gPea6g9eIoDf 7#0:3146

Agreed to in form:

Agreed to in form:

FOR THE NAMD PLAiNTIFFS & SETTLEMET CLASS:
By: EJi7.abeth A. Fegan HAGENS BERMAN SOllOL SHAPIRO LLP 820 North Blvd, Suite B Oak Park, IL 60301
By: Kenneth A. Wexler
Jennifer Fountai Connolly
Amber M. Nesbitt WEXLER TORISEVA WAJ,LACELLP 55 West Monroe St., Ste. 3300 Chicago, IL 60603

FOR THE DEFBNDANT:
CB RICIIAR ELLIS, INC.
By: Brenda H. Feis
Chnstopher J. DeGroff Anne E. Duprey
SEYFARTH SHAW LLP .
131 S. Dearborn Street, Suite 2400 Chicago, Ilinois 60603 (312) 460-5000 (312) 460-7000 (facsimile)

Amy Wiginton

Kristine Moran Andra Scott flkr. Andra Corey

Norma Plank Fehler us Sucssor in Tnterest to
7l~ Jf_t!~~ Dondi Plank L 1.iJil.. ("5~ ~ SiL~,;~r;
;O~ p~ -
Olivia Knapp

58

CaseC: a1s:0e21-c:0v2-0-c6v8-30268D3o2cumDeonct u#m: 3e2n1t -3216F-i2led: 1F0il/e2d4/1007/0P4a/g2e00771 ofP7a1gPea7g0eIoDf 7#0:3147

Ag to in fonn:

Agree to in form:

FOR TH NAMD PLAFS &
SEITEMET CLASS:
By:
Elth A. Feg HAGENS BERM SOBOL SHPIRO LLP 820 Nort Blvd, Sui B
Oak Park. IL 6030 i
By:
Kennh A. Wexler
Jenfer Fountan Connolly
Amber M. Nesbitt WEXLER TORISEV A WALLACE LLP 55 West Monroe St., Ste. 3300
Chica, IL 60603

FOR TH DEFAN:
CD RICH ELLIS, INe.
By: Brenda H. Feis Chr~opher J. ~ff
Ane E. Duprey SEYFARm SHAW LLP 131 S. Deaorn Stret Suite 2~O
Chcago, ilinois 60603 :
(312) 460-5000
(312) 460-7000 (fasime)

Amy Wiginton

Krstine Mora.

- .. ,_ _0 _.

Andrea Scott f7a Andr Core

Norma Plan FeWer as Succ in Ineres to Dondi Plank

58

 
 Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568 (2004)

229 F.R.D. 568 United States District Court,
N.D. Illinois, Eastern Division.
Amy WIGINTON, Kristine Moran, Norma Plank Fethler, Andrea Corey and Olivia Knapp,
individually and on behalf of all persons similarly situated, Plaintiffs, v.
CB RICHARD ELLIS, INC., Defendant.
No. 02 C 6832. | Aug. 10, 2004.

Attorneys and Law Firms
*569 Steve W. Berman, Jeniphr AE Breckenride, Nicholas Styant-Browne, Hagens & Berman, Seattle, WA, Kenneth A. Wexler, Elizabeth A. Fegan, Wexler Firm LLP, Chicago, IL, Michael Lawrence Duffy, Jennifer Fountain Connolly, Renee Lynn Zipprich, The Wexler Firm, Chicago, IL, Daniel E. Gustafson, Karla Gluek, Gustafson Gluek PLLC, Minneapolis, MN, Jo-Dee Favre-Jones, Favre Law Office, LLC, Belleville, IL, for plaintiffs.
Brenda H. Feis, Sari M. Alamuddin, Christopher James DeGroff, Deborah S. Davidson, Seyfarth Shaw, Chicago, IL, for defendant.
Opinion

MEMORANDUM OPINIONS AND ORDER

ASHMAN, United States Magistrate Judge.
Plaintiffs have filed a Motion for Costs for Electronic Discovery.1 They argue that Defendant CB Richard Ellis, Inc. (“CBRE”) should bear the costs of searching CBRE’s e-mail backup tapes to find documents containing pornographic terms and images, as well as documents relating to CBRE’s workplace environment generally, due to the large number of these types of documents that have been found in a controlled sampling. CBRE responds that only a small fraction of the e-mails that have been found contain arguably relevant material and that it should not be forced to pay for the search or production. For the following reasons the Court grants Plaintiffs’ motion in part and denies it in part.

1

This matter is before the Court pursuant to 28 U.S.C. §

636(b)(1)(A) and Local Rule 72.1.

I. Background
Plaintiffs filed this class action complaint against CBRE alleging a nationwide pattern and practice of sexual harassment at the *570 CBRE offices.2 As evidence of the hostile work environment prevalent at the offices of CBRE, Plaintiffs seek discovery of pornographic material that they claim was distributed electronically (i.e., via email) and displayed on computers throughout the offices.

2

Further background of this case is set forth in this

Court’s Report and Recommendation of October 24,

2003, and familiarity with such facts is presumed.

CBRE initially produced 94 monthly e-mail backup tapes from 11 offices.3 The backup tapes consist of the e-mails that existed on a given server at the time the backup is made. They are not a complete depiction of every e-mail that existed on the CBRE system during a month. Kroll Ontrack, an electronic discovery service, was retained by Plaintiffs to restore and extract the user e-mails from the tapes, perform searches for keywords and file attachment types, and load the results of the searches onto Kroll’s ElectronicDataViewer (“EDV”), an Internet-based system, for review.

3

According to the revised affidavit of Joel Bothoff, a

Kroll project manager, Kroll received tapes from 10

offices. According to the Joint Stipulation of Facts,

tapes from 11 offices were received.

Kroll was instructed to process one monthly tape from each of three offices.4 It correctly searched the August 1999 tape for the Chicago office, the June 1999 tape for the St. Louis office, and inadvertently searched the June 1999 tape for the Columbus office, instead of the Oak Brook office. Kroll recovered over two hundred thousand documents from the tapes, referred to as the “processing set.” Next, Kroll searched the documents for a 92 pornographic term and six disciplinary term search list using a processing engine which is able to search in the text of the documents and in metadata (embedded data in an electronic document). The processing engine can find the terms at the beginning, middle or end of a word or series of symbols. Kroll searched the documents and provided the resulting review set to Plaintiffs’ counsel, who noted that spam had not been removed from the review set. For purposes of this motion, the parties have
1

Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568 (2004)

defined “spam” as anything received from outside the company, or sent solely to someone outside the company from inside the company so that the review set would contain only e-mails transmitted from a CBRE employee to at least one CBRE employee.

4

If pornographic pictures or movies existed, they would

likely be found in certain types of file attachments, such

as GIF or JPEG files. It does not appear that such files

were searched.

Kroll processed the documents again to remove spam from the review set. It also removed documents that did not contain a search term but that would otherwise be counted as a hit due to family cascading-a phenomenon whereby a document related to a document containing a hit are counted as two separate hits even if the related document does not contain a search term. For example, an e-mail that contains a search term with an attachment that does not contain a search term was counted as two hits even if the attachment did not contain a hit. After accounting for spam and family cascading, Kroll provided the parties with the new review set which contained 17,375 documents. At this point, Kroll also gave the parties a new estimate of costs to process the tapes from the 11 offices. Although the original estimates of the project ranged from $46,000 to $61,000, due to the large number of documents containing the pornographic and disciplinary search terms, Kroll revised its cost estimate and advised the parties it could cost up to $249,000 to perform the work.
In the meantime, before the parties had the opportunity to review the most recent processing set, the Court ordered the parties to each choose four terms from the list of search terms developed by Plaintiffs. Plaintiffs instructed Kroll to search for the eight terms and produce all of the documents containing search terms.5 Kroll was also instructed to use the process of de-duplication, the process whereby documents which appear in a user’s mailbox on multiple days are not counted as multiple hits. For example, if the same e-mail appeared in an inbox over a period of several months, only one copy of *571 the document would be produced. After de-duplication, Kroll found 8,660 documents by searching for the 8 search terms, and by accounting for spam and family-cascading.

5

Plaintiffs chose “sex,” “kiss,” “breast,” and “porn.”

CBRE selected “behavior,” “discipline,”

“inappropriate,” and “oral.”

At this point, we note that discussing documents in terms of numbers is somewhat inexact. For example, an e-mail containing a search term that exists in a user’s outbox, and also exists in another user’s inbox, counts as two hits,

even though it is really one document. A document containing a search term that is sent from one user to another, and returned under the “reply with history” option available on CBRE’s e-mail system counts as two hits. But, because of de-duplication, an e-mail that is present multiple times in one user’s mailbox is not counted multiple times. So although talking about documents in terms of numbers is not entirely accurate, the search system was designed to get an idea of how frequently the documents containing search terms were being passed around by CBRE users within or between the offices. Because spam was eliminated, it means the picture does not present an entirely accurate view of any other pornographic e-mails that maybe have been available on the CBRE e-mail system, or how often users are opening such documents in view of other people. The numbers also do not reflect e-mails that were not captured on backup tapes.
The parties are able to view the documents on Kroll’s EDV, a software program designed for viewing electronic documents such as these. One problem with the EDV, however, is that the search engine is not as advanced as the initial processing search engine that was used to find the 8,660 documents. The EDV search engine can find words with root extenders (e.g. “kiss!” finds kiss, kissing, kissed), but unlike the original search engine, the EDV search engine only finds search terms located at the beginning of words (so “moral” is a hit on the original search, but not through the EDV). The parties also discovered that family cascading was still a problem. Therefore, in the end, the parties reviewed approximately 1/3 of the documents (2,667), and have agreed that the remaining documents are “non-responsive.” The Court, therefore, likewise considers the remaining documents as non-responsive.
The parties have manipulated the numbers and categorized the 8,660 documents in various ways that supports their respective positions. Plaintiffs claim that 567 of the documents are responsive, i.e., are pornographic or are documents reflecting CBRE policies and procedures. Therefore they calculate that 567 of the 2,667 documents were responsive, for a 21.3% responsive rate. This is technically accurate-21.3% of the documents that the parties reviewed were responsive. By agreeing that the remaining unreviewed documents were nonresponsive, the parties effectively agreed, however, that the pertinent number for the denominator was the 8,660 documents. Therefore, (567/8,660) equals a 6.5% responsive rate. Defendants of course have calculated a much smaller responsive rate, and claim that the parties have identified only (142/8,660) documents as responsive, for a 1.64% responsive rate.
2

Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568 (2004)
II. Discussion
A. General Principles Guiding this Court’s decision are the overarching principles of Federal Rule of Civil Procedure 26. Under the familiar language, a party may seek discovery of “any matter, not privileged, that is relevant to the claim or defense of any party.... Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed.R.Civ.P. 26(b)(1). The court may limit discovery if it determines that the burden of the discovery outweighs its likely benefit. Fed.R.Civ.P. 26(b)(2)(iii). To make this determination, the Court will consider what has been dubbed the proportionality test of Rule 26(b)(2)(iii): the needs of the case, the amount in controversy, the resources of the parties, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues. In this way, parties are protected from unduly burdensome or expensive discovery requests. Fed.R.Civ.P. 26(c).
[1] The Court also begins this discussion with the general presumption in discovery that the responding party must bear the *572 expense of complying with discovery requests. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978). However, if the responding party asks the court for an order protecting it from “undue burden or expense,” the court may shift the costs to the non-producing party, rather than just disallowing the requested discovery. Fed.R.Civ.P. 26(c); Oppenheimer Fund, Inc., 437 U.S. at 358, 98 S.Ct. 2380; Rowe Entm’t v. The William Morris Agency, Inc., 205 F.R.D. 421, 428 (S.D.N.Y.2002); Fed. R. Civ. Pro. 34, Advisory Committee Notes, 1970 Amendment (“courts have ample power under Rule 26(c) to protect respondent against undue burden or expense, either by restricting discovery or requiring that the discovering party pay costs”).
B. Standards for Discovery of Electronic Data Electronic data, such as e-mails, are discoverable. As contrasted with traditional paper discovery, e-discovery has the potential to be vastly more expensive due to the sheer volume of electronic information that can be easily and inexpensively stored on backup media. Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 316 (S.D.N.Y.2003) (“Zubulake I”); Byers v. Ill. State Police, No. 99 C 8105, 2002 WL 1264004, at *10 (N.D.Ill. June 3, 2002). Depending on how the electronic data is stored, it can be difficult, and hence expensive, to retrieve the data and search it for relevant documents. Theoretically, as technology improves, retrieving and searching data will become more standard and less costly. See e.g., Discovery By Keyword Search, 15 No. 3 Prac. Lit. 7 (2004).

In the meantime, until the technology advances and ediscovery becomes less expensive, cost will continue to be an issue as parties battle over who will foot the bill. In the electronic arena, three main tests have been suggested to determine when it is appropriate to shift the costs of searching and producing inaccessible data to the requesting party in order to protect the producing party from unduly burdensome e-discovery requests.6

6

See cf. Zubulake v. UBS Warburg LLC, 216 F.R.D. 280,

284 (S.D.N.Y.2003) (“Zubulake II”) (suggesting that

cost-shifting is only appropriate when, as here, the data

to be searched is inaccessible).

[2] First, under the marginal utility approach, the more likely it is that the search will discover critical information, the fairer it is to have the responding party search at its own expense. McPeek v. Ashcroft, 202 F.R.D. 31, 34 (D.D.C.2001). Next, the court in Rowe created eight factors for consideration in the cost-shifting analysis, one of which incorporated the marginal utility test.7 205 F.R.D. at 429. Finally, the court in Zubulake I modified the Rowe test to account for the fact that it interpreted the Rowe test as generally favoring costshifting, which had ignored the presumption that the responding party pays for discovery.8 217 F.R.D. at 320. We agree with both the Rowe court and the Zubulake court that the marginal utility test is the most important factor. Furthermore, while we are guided by the remainder of the Rowe and Zubulake factors, we find that the proportionality test set forth in Rule 26(b)(2)(iii) must shape the test. Thus, we modify the Zubulake rules by adding a factor that considers the importance of *573 the requested discovery in resolving the issues of the litigation.

7

The eight factors are: (1) the specificity of the

discovery requests; (2) the likelihood of discovering

critical information; (3) the availability of such

information from other sources; (4) the purposes for

which the responding party maintains the requested

data; (5) the relative benefit to the parties of obtaining

the information; (6) the total cost associated with

production; (7) the relative ability of each party to

control costs and its incentive to do so; and (8) the

resources available to each party. Rowe, 205 F.R.D. at

429.

8

The seven Zubulake factors are (1) the extent to which

the request is specifically tailored to discover relevant

information; (2) the availability of such information

from other sources; (3) the total cost of production,

compared to the amount in controversy; (4) the total

cost of production, compared to the resources available

to each party; (5) the relative ability of each party to

3

Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568 (2004)
control costs and its incentive to do so; (6) the importance of the issues at stake in the litigation; and (7) the relative benefits to the parties of obtaining the information. 217 F.R.D. at 322. We agree with the court in Zubulake that the fourth Rowe factor (the purposes for which the responding party maintains the requested data) is not important.
[3] Therefore, we will consider the following factors: 1) the likelihood of discovering critical information; 2) the availability of such information from other sources; 3) the amount in controversy as compared to the total cost of production; 4) the parties’ resources as compared to the total cost of production; 5) the relative ability of each party to control costs and its incentive to do so; 6) the importance of the issues at stake in the litigation; 7) the importance of the requested discovery in resolving the issues at stake in the litigation; and 8) the relative benefits to the parties of obtaining the information. At all times we keep in mind that because the presumption is that the responding party pays for discovery requests, the burden remains with CBRE to demonstrate that costs should be shifted to Plaintiffs. See Zubulake II, 216 F.R.D. at 283.

C. Application of the Eight Factors

Marginal Utility 1. The likelihood of discovering critical information.9

9

Rowe, 205 F.R.D. at 430 (second factor); McPeek, 202

F.R.D. at 34.

[4] When the matter is initially brought to the court’s attention, the extent to which the request appears to be specifically tailored to discover relevant information may help the court weigh this factor. Zubulake I, 217 F.R.D. at 323 (first factor); Rowe, 205 F.R.D. at 429 (first factor); Byers, 2002 WL 1264004, at *12 (shifting costs to requesting party where it was unlikely the search would uncover relevant information). If a test run is ordered, as in this case, the actual results of the test run will be indicative of how likely it is that critical information will be discovered.
The 8 term search list chosen by the parties contains five pornographic terms, four of which were selected by Plaintiffs, and three disciplinary terms, all three of which were chosen by CBRE. The 8 term search resulted in 8,660 hits. Whether many of the resulting documents are actually responsive is subject to debate by the parties, and they have gone to great lengths to characterize the documents in various ways that support their respective positions. Plaintiffs have identified at least 567 documents as being responsive which is a 6.5% responsive rate.10

These documents include graphic pornographic images, sexual correspondence and jokes, and CBRE policies and procedures regarding the circulation of inappropriate email and the visitation of inappropriate websites, as well policies relating to sexual harassment. Plaintiffs also claim they recovered documents demonstrating the demeaning attitude of CBRE towards its female employees pervading the work environment. Some of these documents appeared in multiple user accounts which supports Plaintiffs’ theory that these types of documents were being spread throughout the offices. On the other hand, some of these documents were sent from a single user to another single user. There is nothing to indicate that any CBRE employee indicated that these emails were offensive or that any employee refused any future such e-mails. Furthermore, Plaintiffs do not explain how one-to-one e-mails support their theory of a hostile work environment.

10

Considering only documents that were actually

reviewed by the parties (2,667) would result in a 21.3%

response rate. However, we find that the number of

documents in the denominator of the equation is the

8,660 hits found by the 8 term search because the

parties agreed that the remaining unreviewed

documents would be deemed non-responsive for

purposes of this motion. (Jt. Stip. of Facts ¶ 30.)

CBRE disputes these classifications, arguing that the majority of the 8,660 documents are not even relevant, extrapolating the results of the documents that were reviewed to all the documents that were found. It asserts that many of the e-mails were not considered offensive to the women who received them, or were sent from men to men.11 CBRE’s interpretation of the women’s *574 tolerance to sexually explicit e-mails, however, is necessarily slanted in its own favor, and there is no information regarding whether women routinely viewed other people’s e-mails, such as secretaries who accessed their bosses’ e-mails as part of their job requirements. CBRE would further decrease the number of relevant documents by excluding documents concerning CBRE’s policies and procedures. It was CBRE, however, who chose the three disciplinary search terms so it cannot now complain now that the terms it selected successfully found the documents they were intended to find. Therefore, under CBRE’s analysis, even excluding what CBRE has characterized as male-to-male e-mails, there are 386 responsive documents.12 This is a 4.5% responsive rate.

11

The parties spend a significant amount of time parading

the other side’s mistakes in front of the Court, while

neglecting to provide factual support to their assertions

that would be useful to the Court.

4

Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568 (2004)

12

Calculated as follows: (142 mutually responsive

documents) + (244 policy documents) = 386. CBRE

claims that all the relevant policy documents have

already been produced to Plaintiffs. Plaintiffs assert that

most of the documents have never been produced but

are clearly relevant. The Court agrees that these

documents may be relevant, such as a March 7, 2001 e-

mail from the IT department sent to field technical

support stating, in part, that “due to some serious

employee issues lately, I want to make sure you are all

dead clear on the appropriate use of e-mail within

CBRE.”

Before determining whether this factor supports costshifting, we will consider whether this information is available from other sources.

2. The availability of such information from other sources.13

13

Zubulake I, 217 F.R.D. at 323 (second factor); Rowe,

205 F.R.D. at 430 (third factor).

If the information is available from another source, the marginal utility from the e-discovery is low, and would support cost-shifting. These first two factors which comprise the marginal utility test are the most important, because the more likely it is that relevant information will be discovered, the fairer it is to make the responding party pay for the information. Zubulake I, 217 F.R.D. at 323.
Clearly, relevant information on CBRE’s backup e-mail tapes is only available through restoring and searching the backup tapes unless it has been previously produced by CBRE. The test search did result in relevant documents that had not been produced by CBRE. Specifically, although CBRE argues that it has produced relevant policy documents, we note that the search did find policy documents that had not been previously produced, as well as e-mails containing pornographic material which had not been produced and are not available through any other source. In addition to confirming the existence of relevant documents on backup tapes that have not been restored, it is likely that there were relevant documents that have already been destroyed as CBRE failed in its duty to preserve relevant electronic information.14

14

Further detail is set forth in this Court’s Report and

Recommendation of October 24, 2003.

Given that the search resulted in a 4.5 to 6.5% responsive rate, and that the majority of the documents are not available from another source, we consider whether the marginal utility factors support shifting the cost to

Plaintiffs. As a comparison, in Zubulake II, the test run ordered by the court resulted in 1,075 e-mails after duplicates were eliminated, 600 of which were deemed responsive by the defendant (or 55.8%), and 68 of which were identified by the plaintiff as directly supporting her gender discrimination claim (6.3%). 216 F.R.D. at 282, 285. The court found that although all the documents had some relevancy to the claims of the case, not one e-mail provided any direct evidence of discrimination. Id. at 286. The most the e-mails demonstrated was the “dysfunctional atmosphere” in which the plaintiff worked. Id. at 285. The court, nevertheless, found that there was a “speculative” chance that the remaining backup tapes would provide evidence of direct discrimination, especially because some of the restored evidence indicated that the plaintiff’s supervisor had intentionally deleted especially relevant e-mail. Id. at 287. It therefore found that the marginal utility was potentially high due to the types and number of documents that had been recovered, and that the test tipped slightly against costshifting even though the *575 actual number of recovered relevant documents was low. Id.
In this case, the search has resulted in a small number of relevant documents, although substantially less than in Zubulake, as would be expected. In Zubulake, the plaintiff was able to narrow her search to five employees and used only search terms involving her name and initials. In this case, Plaintiffs are attempting to prove that discrimination existed in CBRE offices across the nation. Although CBRE argues that the number of pornographic and policy documents are only a minuscule fraction of the total documents on the backup tapes,15 we decline to determine at this juncture exactly what percentage of documents on the e-mail system would prove a hostile environment. But, because the test results are partially based on Plaintiffs’ selection of what Plaintiffs believed are words or terms most likely to produce evidence of a sexually hostile atmosphere, the Court is of the opinion that the percentage of sexually objectionable e-mails is substantially lower than 4.5%. It will be Plaintiffs’ onus to demonstrate that hostile environment existed in CBRE’s offices; in the meantime they are entitled to relevant information as long as it is reasonably calculated to lead to the discovery of admissible evidence. Fed.R.Civ.P. 26(b)(1). Nevertheless, because the search also revealed a significant number of unresponsive documents, we find that the marginal utility test weighs slightly in favor of cost-shifting.16

15

CBRE misstates the issue. The question to be answered

is how successful was the search, not how many of the

total documents on their system are pornographic.

16

CBRE discusses each factor in terms of whether it

weighs in favor of cost-shifting to itself. The

5

Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568 (2004)
presumption is, of course, that the responding party pays for discovery costs, so the question for this Court is whether CBRE has met its burden to prove that the factors weigh in favor of shifting costs to Plaintiffs.

Factors 3-5 The Cost Factors 3. The amount in controversy, as compared to the total cost of production.17

17

Fed.R.Civ.P. 26(b)(2)(iii); Zubulake I, 217 F.R.D. at

323 (third factor); Rowe, 205 F.R.D. at 431 (sixth

factor).

Plaintiffs’ expert estimated that the total cost of the production would range from $183,500 to $249,900 for ten offices considering the initial results of the 92 term search list. The parties have not addressed whether the results of the 8 term search allowed the expert to more accurately estimate the production costs.
Plaintiffs claim that should a class be certified, their class recovery could extend into the tens of millions of dollars. While the Court cannot completely accept Plaintiffs’ speculative estimate of its potential damage award, neither can it accept that their claims are worthless, especially considering that the burden of proving that cost-shifting is warranted falls on CBRE’s shoulders. Furthermore, even if the class is not certified, there are still five named plaintiffs, and their recovery is potentially high enough to justify some of the costs of discovery. See Xpedior Creditor Trust v. Credit Suisse First Boston (USA), Inc., 309 F.Supp.2d 459, 466 (S.D.N.Y.2003) (noting that even if a class were not certified, the named plaintiff’s claims were potentially worth tens of millions of dollars). See also Zubulake II, 216 F.R.D. at 288 (noting that the case was not a nuisance value case, a small case, or a frivolous case).
CBRE would have the Court find that the total cost of production for all of its offices nationwide would stretch into the millions of dollars, ignoring the fact that discovery has been limited to only a small fraction of the 125 offices. Nevertheless, several hundred thousand dollars for one limited part of discovery is a substantial amount of actual dollars to pay for such a search. Therefore, this factor weighs in favor of cost-shifting.

4. The parties’ resources, as compared to the total cost of production.18

18

Fed.R.Civ.P. 26(b)(2)(iii); Zubulake I, 217 F.R.D. at

324 (fourth factor); Rowe, 205 F.R.D. at 431 (sixth

factor).

According to its website, CBRE is “the global leader in real estate services.” As stated on its most recent from 10K/A, *576 CBRE had net revenues of 1.6 billion dollars for fiscal year 2003. Plaintiffs, who include former employees of CBRE, are clearly at a serious financial disadvantage. Plaintiffs’ counsel, however, obviously has been willing to front substantial amounts of money, and probably could contribute to these discovery costs. See Zubulake II, 216 F.R.D. at 288 (noting that it is common for plaintiff’s firms to front huge expenses when the recovery is potentially millions of dollars). CBRE is now put in the awkward position of reversing its previous argument for factor number three that this case is not worth much money, because now it must argue that the case is potentially worth millions, so that costs should be shifted to Plaintiffs. Because we found that the recovery in this case is potentially high, but we also now find that CBRE’s resources are large compared to the total cost of production, we find that this factor weighs against costshifting. See Xpedior, 309 F.Supp.2d at 466 (finding that this factor weighs against cost-shifting where defendant’s assets dwarfed plaintiff’s assets even if plaintiff’s attorney could contribute).

5. The relative ability of each party to control costs and its incentive to do so.19

19

Zubulake I, 217 F.R.D. at 323 (fifth factor); Rowe, 205

F.R.D. at 431-32 (seventh factor).

In most cases, both parties will likely have the ability and desire to control costs. The requesting party should have an incentive for limiting its requests, and the responding party may have an incentive for using accessible searchable media, or for pressuring its software contractors to create such media or software. The responding party may also employ cost-saving measures, such as performing a key word search for a privilege review rather than examining each document.
In this case, it appears that the ability to control costs partially pivots around the selection of the vendor. Plaintiffs have agreed to work with CBRE to jointly select a new electronic discovery service and to minimize costs to the extent it is possible to do so. The costs of the search, however, are also driven to some extent by the scope of the search as selected by Plaintiffs. A smaller search term list would result in less hits, and less documents that must be transferred to an electronic viewer. For example, words that did not result in a large number of documents could be taken off the term search list. Documents that are non-responsive and appear multiple times (such as an e-mail discussing a virus with the words sexyvirgin) could easily be searched for and eliminated. However, Plaintiffs’ search must necessarily
6

Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568 (2004)
be broad, due to the nature of the information for which they are searching. Therefore, we find that this factor slightly weighs in favor of cost-shifting.

Remaining Factors 6. The importance of the issues at stake in the litigation.20

20

Fed.R.Civ.P. 26(b)(2)(iii); Zubulake I, 217 F.R.D. at

323 (sixth factor).

Plaintiffs cite Zubulake II for the proposition that this factor “will only rarely come into play ... [and that] discrimination in the workplace ... is hardly unique.” 216 F.R.D. at 289 (quotation omitted); see also Xpedior, 309 F.Supp.2d at 466 (finding that a potential class action involving manipulation of the securities market does not raise the kind of public policy issues that might affect cost-shifting). Because the parties agree that this factor is neutral, we find that it does not weigh in favor of or against cost-shifting.

7. The importance of the requested discovery in resolving the issues at stake in the litigation. As this is a factor explicitly set forth in Rule 26(b)(2)(iii), we add it to the Rowe and Zubulake analysis. See In re Gen. Instrument Corp., No. 96 C 1129, 1999 WL 1072507, at *6 (N.D.Ill. Nov.18, 1999) (denying plaintiffs’ motion to compel where plaintiffs did not identify any specific factual issue for which additional discovery would help them prove their case).
CBRE argues that Plaintiffs’ claims are not primarily based on pornographic material that may have been circulating through its offices. Plaintiffs respond that this information supports their hostile environment claim. Plaintiffs are entitled to obtain discovery relevant *577 to their claims, as long as the discovery is reasonably calculated to lead to the discovery of admissible evidence. See Fed.R.Civ.P. 26(b)(1). If relevance is in doubt, courts should err on the side of permissive discovery. Channelmark Corp. v. Destination Prods. Int’l, Inc., 99 C 214, 2000 WL 968818, at *2-3 (N.D.Ill. July 7, 2000). As there is reason to believe that the requested discovery would assist in resolving the issues at stake in this case, but because there is also other evidence to support Plaintiffs’ claims, we find that this factor weighs slightly in favor of cost-shifting.

8. The relative benefits to the parties of obtaining the information.21

21

Zubulake I, 217 F.R.D. at 325 (seventh factor); Rowe,

205 F.R.D. at 431 (fifth factor).

This factor is the least important because in discovery the requested information is more likely to benefit the requesting party. See Zubulake I, 217 F.R.D. at 323 (finding that this is the least important factor because the requesting party usually benefits from its requests). In some cases, the information may aid the producing party, in which case it is more fair to require the producing party to pay for the discovery. In this case, the information requested will benefit Plaintiffs more than CBRE. Therefore, this factor is neutral.

D. Summary Factors 1 and 2, the most important factors, weigh slightly in favor of cost-shifting to Plaintiffs. For the cost factors: factor 3 weighs in favor of cost-shifting; factor 4 weighs against cost-shifting; and factor 5 weighs slightly in favor of cost-shifting. Factor 6 is neutral; factor 7 weighs slightly in favor of cost-shifting; and factor 8 is neutral.
Therefore, because the factors favor cost-shifting, but the presumption is that the responding party pays for discovery costs, we find that CBRE should bear 25% and Plaintiffs 75% of the discovery costs of restoring the tapes, searching the data, and transferring it to an electronic data viewer. Each party will bear their own costs of reviewing the data and printing documents, where necessary.

III. Conclusion For the foregoing reasons, Plaintiffs’ motion for costs is granted in part and denied in part as stated in this opinion.
Parallel Citations 94 Fair Empl.Prac.Cas. (BNA) 627
	  

7

 
 Wiginton v. Ellis, Not Reported in F.Supp.2d (2003)
2003 WL 22232907 Only the Westlaw citation is currently available.
United States District Court, N.D. Illinois, Eastern Division. Amy WIGINTON, individually and on behalf of all persons similarly situated, Plaintiff,
v. CB Richard ELLIS, Defendant. No. 02 C 6832. | Sept. 16, 2003.
Attorneys and Law Firms Kenneth A. Wexler, Elizabeth Fegan Hartweg, The Wexler Firm, Chicago, IL, Jenipiir A.E. Breckenridge, Hagens Berman, L.L.P., Seattle, WA, JoDee Favre, Favre & Allen, Belleville, IL, for Plaintiff. Brenda H. Feis, Sari M. Alamuddin, Deborah S. Davidson, Seyfarth Shaw, Chicago, IL, for Defendant. Opinion
MEMORANDUM OPINION AND ORDER
ASHMAN, Magistrate J. *1 This matter is before the Court on the motion of Plaintiffs to Restrict Communications with Putative Class Members and Motion for Approval of Scientific Survey of Putative Class for Purpose of Class Certification. For the reasons set forth below, the Court finds that Plaintiffs’ motion to restrict communications should be denied and Plaintiffs’ motion for approval of a scientific survey should be denied in part and granted in part.
I. Background Plaintiff Amy Wiginton filed this lawsuit in September of 2002, alleging a nationwide pattern and practice of sexual harassment at the offices of Defendant CB Richard Ellis, Inc. (“CBRE”). Plaintiff was given leave to amend the class action complaint in June of this year to add Kristine Moran as a plaintiff.
Plaintiffs bring these motions, arguing that CBRE’s contact with its employees has threatened and intimidated its employees into silence. To support this theory, they point to several communications by Defendant. On October 1, 2002, Defendant’s Chief Operating Officer sent an e-mail to all CBRE personnel reacting to publicity about the case, and stating in part:
CB Richard Ellis has a zero tolerance policy against harassment of any type and takes charges of such misconduct very seriously.... Although this matter has received some press coverage in the Chicago area, [CBRE] does not comment on pending litigation.... If any other third person, such as a friend, acquaintance or client asks about the lawsuit, you should inform them that [CBRE] has a zero tolerance policy against harassment in the workplace but that you do not have any knowledge of the facts relating to the lawsuit....
Not coincidentally, this e-mail was sent five days after Plaintiffs’ attorneys issued a press release relating to the complaint that had been filed, and which had receive some media attention.
On May 15, 2003, the COO sent out another e-mail to CBRE employees. This e-mail followed press coverage of a decision
1

Wiginton v. Ellis, Not Reported in F.Supp.2d (2003)
by Judge Andersen to deny CBRE’s motion to strike the class allegations from the original complaint. This e-mail stated that “CB Richard Ellis prides itself on having a strong policy against harassment of any type and is committed to providing all employees an environment free from harassment or discrimination.” The e-mail continued, “Our policy also affords every employee the absolute right to complain about an such conduct without fear of retaliation.” Plaintiffs also complain that the managing director of the St. Louis office forbade employees from talking to attorneys or Wiginton and that women who had previously contacted Plaintiffs’ counsel have now redacted their prior complaints.
For relief, Plaintiffs request that the Court order CBRE to notify every putative class member that it is unlawful for CBRE to retaliate against employees who contact Plaintiffs’ counsel, to refrain from e-mailing or otherwise communicating with any putative class members about the lawsuit except after notice to Plaintiffs’ counsel, and to not discuss this lawsuit with putative class members except for speaking to managerial employees to investigate complaints of sexual harassment.
*2 Plaintiffs additionally request that the Court authorize an unbiased scientific survey to gather evidence of CBRE’s hostile corporate culture. They argue that CBRE’s actions, combined with putative class members’ fear of termination or other retaliation have made this survey necessary. To this end, Plaintiffs have retained an expert who has created a sample survey. Plaintiffs’ goals include to gather evidence for the motion for class certification, and to discover which offices should be targeted during discovery. They ask the Court to grant leave to conduct the survey, approve the language and methodology, and require CBRE to produce a list of all current and former female employees. CBRE objects to Plaintiffs’ two motions.
II. Discussion
A. Motion to Restrict CBRE’s Communications with Putative Class Members As both sides properly concede without argument, this Court has the power to restrict communications between defendants and putative class members before the class is even certified. See Gulf Oil Co. v. Bernard, 452 U.S. 89, 100 (1981);1 Fed.R.Civ.P. 23(d)(3) & (5). Such control is designed to prevent abuse of the class action process but must fit within the confines of the applicable Federal Rules. Gulf Oil, 452 U.S. at 99–100 n. 12 (discussing potential abuses). Communications that undermine the purposes of Rule 23 include misleading communications and communications which affect a putative class members’ decision to participate in the class action, Hampton Hardware, Inc. v. Cotter & Co., Inc., 156 F.R.D. 630, 632 (N.D.Tex.1994).
As Gulf Oil made clear, however, before a court can restrict communications between counsel and parties, it must ensure that the order is “based on a clear record and specific findings that reflect a weighing of the need for a limitation and the potential interference with the rights of the parties.” 452 U.S. at 101. Plaintiffs argue that because the employer-employee relationship is inherently coercive, any communications between CBRE and the putative class members will be tainted. Plaintiffs rely on Shores v. Publix Super Markets, Inc., 1996 WL 859985 WL (M.D.Fla. Nov. 25, 1996)2 to support its contention that defendant employees should be prevented from communicating with putative class members.
In Shores, an employment discrimination case, the defendant employer sent out internal communications indicating that the union was behind the lawsuit, that class members’ recovery was likely to be minimal, and that an adverse result in the lawsuit could hurt the price of its stock and put the members’ jobs at risk. Id. at *2. The court granted the plaintiffs’ motion to restrict the defendant’s communications with class members after specifically finding that these internal communications were intended to discourage class members from participating in the litigation. Id. at *3. The court ordered the defendant to provide a curative notice to counteract its past communications with class members. Id. Significantly, even after the egregious conduct of the defendant, the court did not prohibit future internal communications with employees, it only required that such communications clearly indicate that they reflected the defendant’s opinion, and that it was unlawful for the defendant to retaliate against any employee for participating in the lawsuit. Id.
*3 Shores is distinguishable, however, because the court made specific findings that the defendant had intended to prohibit the class members from participating in the lawsuit. After review of CBRE’s internal communications, we conclude that they are not intended to discourage putative class members from participation in this case. Plaintiffs respond that the communications should be restricted, regardless of CBRE’s intent, due to the inherent coerciveness of the employer-employee relationship. Abdallah v. Coca–Cola Co., 186 F.R.D. 672, 678 (N.D.Ga.1999) (ordering that the defendant employer add a disclaimer to any future internal communications with putative class members even though court had no reason to think that it would mislead employees or coerce them into non-participation in the case); Bublitz v. E.I.
2

Wiginton v. Ellis, Not Reported in F.Supp.2d (2003)
DuPont De Nemours & Co., 196 F.R.D. 545, 548 (S.D.Iowa 2000) (placing restrictions on defendant employer’s ability to communicate settlement offers to employees even though no abuse had been shown).
Even if we do not need to make a finding that a particular abuse has occurred, i.e., that CBRE intended to mislead putative class members or prevent participation in the suit, we must still have a clear record of threatened abuses. See Gulf Oil, 452 U.S. at 102. Even if a potentially coercive situation exist, we still must have a “specific record showing by the moving party of the particular abuses by which it is threatened.” Id. at 102 (quoting Coles v. Marsh, 560 F.2d 186, 189 (3rd Cir.1977). Without a showing of actual harm, there must be some other evidence that justifies interfering with the defendant’s communications. Burrell v. Crown Central Petroleum, Inc., 176 F.R.D. 239, 244 (E .D. Tex.1997); Basco v. Wal–Mart Stores, Inc., 2002 WL 272384, at *3 (E.D.La. Feb. 25, 2002). This has not been met. While the Court does not approve of CBRE’s direction in its first e-mail to its employees that they should deny knowledge of the facts of the case to third persons such as friends or clients, this does not threaten to undermine the class action process. Additionally, there is evidence that this e-mail was sent in response to publicity surrounding the filing of the complaint, not that it was sent to intimidate its employees.
The second e-mail, while denying liability in this case, reiterates the policy that all employees have the right to complain of harassment without fear of retaliation. Not coincidentally, this is similar to disclaimers ordered by courts that have granted plaintiffs’ motions to restrict communications. See e.g. Abdallah, 186 F.R.D. at 679; Shores, 1996 WL 859985, at *3. We have no reason to suspect any future abuses or threatened abuses. And Plaintiffs’ assertion that CBRE is intimidating its employees because two female employees have changed their stories is too speculative to support a clear finding of threatened abuses. Witnesses change their stories all the time, we are not going to make a finding that they have necessarily changed their version of the facts due to CBRE’s intimidation. Furthermore, the only evidence that Plaintiffs present to support their allegations that the St. Louis managing director told women they should not talk to Wigington or Plaintiffs’ counsel is the affidavit of Andrea Corey, a former employee of CBRE who left the company before the lawsuit was filed and who did not have first hand knowledge of any statements made by the director. CBRE offers the declaration of Scott Stubblefield, the managing director, to refute this allegation. Stubblefield claims that female employees complained to him that Wigington was bothering them with unsolicited phone calls, and, after consulting with CBRE’s attorneys, he told the women that they were free to talk to Wigington and her counsel if they wanted, but were not obligated to. Again, based on this conflicting testimony, we do not find that the record supports a clear finding of actual or threatened abuses.
*4 The record to date docs not support a finding of actual or threatened abuse sufficient to justify the relief that Plaintiffs seek. Thus, Plaintiffs’ motion to restrict communications is denied.
B. Motion For Approval of Scientific Survey Plaintiffs also request that the Court approve a scientific survey to be performed in conjunction with the Defendant’s appointed expert. They claim that this is necessary to counteract the Defendant’s abuses and it will allow both sides to appropriately communicate with the putative class. CBRE objects on the grounds that the Plaintiffs’ proposed survey is not scientific.
As discussed above, we did not find that CBRE’s communications to date were abusive or threatened abuse of the Federal Rules. Thus, we do not find any reason to sanction a survey or to approve the methodology of the survey. That will be left up to the parties to litigate. Similarly, there is no reason to compel Defendant to participate in the survey.
Plaintiffs’ argument that statistical evidence is commonly and properly used in these types of cases to support motions to certify a class is well taken, but premature. See c.f. McReynolds v. Sodexho Marriot Servs., Inc., 208 F.R.D. 428, 441–48 (D.D.C.Cir.2002) (relying on statistical evidence in granting motion for class certification in employment discrimination case); Wilfong v. Rent–A–Center, Inc., 2001 WL 1795093, at *3 (S.D.Ill.Dec. 27, 2001) (same). Merely because statistical evidence may be useful for the Plaintiffs is no reason for the Court or Defendant to participate in taking the survey. Plaintiffs of course do not need leave of court to take the survey, and this opinion in no way reflects any finding that their proposed survey is valid or invalid, or admissible or inadmissible.
On a final note, Plaintiffs have asked the Court to order CBRE to produce an address list of all current and former female employees since January 1, 1997. Upon questioning in oral argument, Defendant indicated that they object to the request as overbroad. Nonetheless, even if this is a large number, the putative class includes all current and former female employees so the request is not overbroad. The identities of these women are clearly relevant. Furthermore, statistical evidence may potentially be used by Plaintiffs at the class certification and trial stage. While Defendant might prefer to remain in the
3

Wiginton v. Ellis, Not Reported in F.Supp.2d (2003)
superior litigation position of being able to investigate what evidence any of these women might be able to offer, while denying Plaintiffs the same access, it has not persuaded us that Plaintiffs’ request should not be granted. Defendant is therefore ordered to produce the list of female employee as requested by Plaintiffs.

III. Conclusion
For the foregoing reasons, Plaintiffs’ motion to restrict communications is denied. Plaintiffs’ motion for approval of a scientific survey is denied in part and granted in part. While the Court will not approve the methodology of the proposed survey, or force the Defendant to participate in taking the survey, Defendant must produce a list of the names and addresses of its current and former female employees in all offices since January 1, 1997, within thirty days.

Footnotes

1

Although Gulf Oil dealt with the authority of the trial courts to limit communications by named plaintiffs and their counsel to

prospective class member, the general language of the opinion lends support for the conclusion that the enunciated standards

should apply equally to communications between a defendant and prospective class members. 452 U.S. at 101 (“order limiting

communications between parties and potential class members” should be based on a specific finding that takes into account “the

rights of the parties”); see also Bublitz v. E.I. DuPont De Nemours & Co ., 196 F.R.D. 545, 547 (S.D.Iowa 2000) (noting that Gulf

Oil set forth the broad principles governing limitations on communications with potential class members).

2

See Shores, 1997 WL 714787, at *5 (vacating its prior order and ordering new restrictions on communications for settlement

purposes).

4

 
 Wiginton v. Ellis, Not Reported in F.Supp.2d (2003)
2003 WL 22439865 Only the Westlaw citation is currently available.
United States District Court, N.D. Illinois, Eastern Division. Amy WIGINTON, individually and on behalf of all persons similarly situated, Plaintiff,
v. CB Richard ELLIS, Defendant. No. 02 C 6832. | Oct. 27, 2003.
Attorneys and Law Firms Kenneth A. Wexler, Elizabeth Fegan Hartweg, Jennifer Fountain Connolly, The Wexler Firm, Chicago, IL, Jeniphr A.E. Breckenridge, Hagens Berman, L.L.P., Seattle, WA, JoDee Favre, Favre & Allen, Belleville, IL, for Plaintiff. Brenda H. Feis, Sari M. Alamuddin, Deborah S. Davidson, Seyfarth Shaw, Chicago, IL, for Defendant. Opinion
REPORT AND RECOMMENDATION
ANDERSEN, J. *1 Plaintiff filed this class action complaint against Defendant CB Richard Ellis, Inc. alleging sexual harassment. Although Plaintiff requested that Defendant retain all electronic materials and records relevant to the lawsuit, Defendant followed its normal document retention and destruction policies. This matter is now before the Court on Plaintiffs’ Emergency Motion to Prevent the Further Destruction of Evidence and for Sanctions for Spoliation of Evidence .1 For the reasons explained below, the Court finds that Plaintiffs’ motion should be denied.
I. Background Plaintiff Amy Wiginton filed a class action complaint on September 25, 2002, alleging a nationwide pattern and practice of sexual harassment at the offices of Defendant CB Richard Ellis, Inc. (“CBRE”). In June of this year, Plaintiff Wiginton was granted leave to add Kristine Moran as a plaintiff.2 Class certification has not been granted.
Two days after Plaintiff filed her class action complaint, Plaintiff’s attorneys sent a four page letter (the “September 27 Letter”) to CBRE’s general counsel, asking that CBRE:
not destroy, conceal or alter any paper or electronic files and other data generated by and/or stored on CBRE’s computers and storage media ... or any other electronic data, such as voice mail that relates in any way to the subject matter of this litigation, or any information which is likely to lead to the discovery of admissible evidence.... This issue is especially important here because CBRE controls virtually all of the documents that will be at issue.
(emphasis added).
The September 27 Letter described electronic data and storage media which would be subject to the discovery requests including: 1) types of files; 2) on-line data storage; 3) off-line data storage; 4) data storage devices that were replaced; 5) fixed drives on personal computers and workstations; 6) programs and utilities; 7) system modification logs; 8) personal
1

Wiginton v. Ellis, Not Reported in F.Supp.2d (2003)
computers; and 9) evidence created subsequent to the letter. Specifically, Plaintiff instructed CBRE:
to preserve all e-mails, both sent and received, whether internally or externally; all word-processed files, including drafts and revisions; all spreadsheets, including drafts and revisions; all databases; all presentation data or slide shows produced by presentation software ... all Internet and Web-browser-generated history files, caches and “cookies” files generated at the work station of each employee and/or agent in CBRE’s employ and on any and all backup storage media.... Further, you are to preserve any log or logs of network use by employees or otherwise ... and to preserve all copies of your backup tapes and the software necessary to reconstruct the data on those tapes, so that there can be made a complete, bit-by-bit “mirror” evidentiary image copy of the storage media of each and every personal computer (and/or workstation) and network server in CBRE’s control and custody, as well as image copies of all hard drives retained and no longer in service, but in use at any time from January 1, 1990 to the present.
*2 Plaintiff also requested that CBRE forward a copy of the September 27 Letter to all persons with custodial responsibility for any of the items referred to in the letter.
CBRE’s outside counsel briefly responded on October 2, 2002, “I am in receipt of your September 27, 2002 letter to [CBRE’s general counsel].” In the meantime, on September 30th, CBRE sent out an e-mail to all United States personnel, instructing them to comply with the CBRE record retention policy and to not destroy any records of any type that “pertain to Amy Wiginton.” In February of 2003, Plaintiff sent out her first request for production of documents. CBRE responded that many of the requests were overbroad, but it eventually produced documents in late April. Included in the documents was the September 30th e-mail sent out by CBRE to its employees.
The parties continued their discovery disputes but eventually jointly drafted a preservation communication that was sent to CBRE employees on May 30, 2003, via e-mail. In part, the e-mail provided:
This message is a reminder that you must also retain any records (even if not specifically related to Amy Wiginton), including e-mails, videos, internet downloads, photographs, calendars and other writings, which contain or relate to any sexually inappropriate or otherwise offensive material. In addition, you should not destroy any records which are related to inappropriate conduct of a sexual nature.
CBRE also agreed to produce June, August, and September 2002 backup tapes from select offices. Next, on June 18, 2003, this Court entered an agreed preservation order, which requires CBRE to retain and not destroy month end backup tapes, or data storage devices or fixed drives on personal computers of any employee who has been accused of sexual harassment. Prior to the June 18th agreed preservation order, however, CBRE continued its normal document retention and destruction polices, did not inform its director of network services that any electronic information should be retained, and never informed its employees about the need to retain any documents that might be relevant to the lawsuit, as opposed to any documents dealing specifically with Amy Wiginton. Backup tapes of CBRE’s e-mail system from September 2001 to May 2002 were destroyed and former employees’ hard drives (including that of Wiginton’s former supervisor) were not saved.
To understand what was destroyed, it is necessary to briefly discuss CBRE’s network infrastructure. The infrastructure consists of approximately 125 network servers assigned to various offices. Four routing servers maintained at corporate IT headquarters in Newport Beach route all incoming e-mail to the local servers. The four routing servers redistribute up to 8,000 incoming e-mails each hour to local servers. An estimated 35 to 40% of those e-mails are unsolicited commercial e-mail (i.e., “spam”). CBRE uses a method called the “Grandfather–Father–Son” method to backup data stored on CBRE’s servers. Under this method, data is backed up on a daily basis Monday through Thursday, on a weekly basis on Friday, and on a monthly basis on the last day of each month. Daily data tapes are overwritten on a daily basis, weekly tapes are maintained for one month before they are overwritten, and monthly tapes are retained for one year before they are rewritten. Separate backups are performed for the e-mail servers and for the print and file servers.
*3 CBRE’s backup system is not an archiving system that would preserve all information going into CBRE’s computers. Rather, it is a disaster recovery system that takes only snapshots of CBRE’s computer files so that if a catastrophic event occurs, the information from the immediately preceding period can be reloaded. CBRE’s director of network services testified that each backup tape takes approximately six to twelve hours per server to restore. Therefore, he estimates that to restore just the tapes for the last day of each month for all 125 local servers for one year would take between 9,000 and
2

Wiginton v. Ellis, Not Reported in F.Supp.2d (2003)
18,000 hours. Each backup tape costs approximately $50, so it would cost $12,500 a day to not overwrite daily backup tapes.3 Defendant states that besides the e-mail backup tapes, the only other way to retrieve e-mails is to look one by one at each employee’s computer which would take thousands of hours.
With respect to e-mail backup tapes, Plaintiff’s expert has stated that it would take between $23,000 and $31,000 for five offices and from $46,000 to $61,000 for ten offices to produce data from monthly backup tapes for three months. Specifically, the expert can restore and extract users from the archive tapes, perform searches on the data for interoffice mail messages that contain certain words, perform searches for messages that contain different file attachment types,4 and then load the results of the searches onto an Internet-based system that will allow Plaintiff’s and Defendant’s counsel to access the documents. Defendant’s counsel would be able to review the documents for privilege and relevance before the documents were made available to Plaintiff’s counsel. (See generally Suppl. to Pl.’s Mot. to Prevent Further Destruction of Evid. at Ex. A.)
Plaintiff filed the instant motion as an emergency motion on May 19, 2003. Deeming the motion to not be an emergency, this Court allowed Plaintiff to supplement the motion with additional briefing. Plaintiff originally asked the Court to required CBRE to retain all electronic evidence, including e-mails, and to cease deleting e-mails, and for sanctions for spoliation of evidence, but because the document retention issue has been dealt with in the agreed preservation order of June 18th, the only issue in front of the Court is the portion of the motion asking for sanctions. Plaintiff asks that the Court sanction CBRE for spoliation of evidence by either granting the entry of a default judgment, giving an adverse jury instruction at trial, or barring Defendant from claiming that its male employees did not circulate or show pornographic, lewd and inappropriate e-mail to members of the putative class. Plaintiff also asks that CBRE be required to pay the costs for Plaintiff’s forensic data recovery expert to retrieve e-mail from the existing backup tapes.
II. Discussion
Courts have the inherent power to impose sanctions for abuse of the judicial system, including the failure to preserve or produce documents. Chambers v. NASCO, Inc., 501 U.S. 32, 49 (1991); Barnhill v. U.S., 11 F.3d 1360, 1368 (7th Cir.1993).5 The power is not based in rule or statute, but rather in the ability of the courts to manage their own dockets and ensure the expeditious resolution of cases. Barnhill, 11 F.3d at 1367 (citing Link v. Wabash R.R. Co., 370 U.S. 626, 630–31 (1962)).
A. CBRE’s Duty to Preserve Relevant Information *4 Before imposing sanctions on CBRE for spoliation or destruction of evidence, we first must determine what its obligation to preserve the electronic data entailed. A party has a duty to preserve evidence over which it had control and “reasonably knew or could reasonably foresee was material to a potential legal action.” China Ocean Shipping (Group) Co. v. Simone Metals Inc., 1999 WL 966443, at *3 (N.D.Ill. Sept. 30, 1999) (collecting cases). Federal Rule of Civil Procedure 26 states that “[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed.R.Civ.P. 26(b)(1). A party must preserve evidence that is properly discoverable under Rule 26. Discoverable evidence includes electronic data such as e-mail. Byers v. Illinois State Police, No. 99 C 8105, 2002 WL 1264004, at *10 (N.D. Ill. June 3, 2002).
A party does not have to go to “extraordinary measures” to preserve all potential evidence. China, 1999 WL 966443, at *3. It does not have to preserve every single scrap of paper in its business. Danis v. USN Communications, Inc., No. 98 C 7482, 2000 WL 1694325, at *32 (N.D.Ill. Oct. 20, 2000). But a party must preserve evidence that it has notice is reasonably likely to be the subject of a discovery request even before a request is actually received. Cohn v. Taco Bell Corp., No. 92 C 5852, 1995 WL 519968, at *5 (N.D.Ill. Aug. 30, 1995); Wm. T. Thompson, Co. v. Gen. Nutrition Corp., 593 F. Supp 1443, 1455 (D.C.Cal.1984); Notice may be received before a complaint is filed if a party knows that litigation is likely to begin, or a party may be alerted by the complaint that certain information is likely to be sought in discovery. Cohn, 1995 WL 519968, at *5.
In their discussion of what documents CBRE should have preserved, the parties spend much of their time discussing the September 27 Letter. CBRE argues that the September 27 Letter reminding it to preserve evidence was “hopelessly overbroad and burdensome,” and therefore it did not have to comply with it. Plaintiff argues that CBRE had some type of duty to respond to the letter if did not intend to comply with it. Both parties miss the mark.
3

Wiginton v. Ellis, Not Reported in F.Supp.2d (2003)
First, the September 27 Letter was not as broad as CBRE would have us believe. The letter referred to documents that relate “in any way to the subject matter of this litigation, or any information which is likely to lead to the discovery of admissible evidence ...” and then it discussed every category of electronic data that might contain relevant documents. It did not request that CBRE keep every single e-mail or copy every single computer, just that CBRE retain relevant documents.
Next, CBRE did not have a duty respond to or to comply with the September 27 Letter. Rather, the September 27 Letter is significant because it alerted CBRE to the types of electronic information (within the realm of all relevant documents) that were likely to be requested during discovery. Ultimately, CBRE’s duty was not to comply with the September 27 Letter, but to preserve evidence that it had notice would likely be the subject of discovery requests. CBRE cannot now claim that it did not know that electronic data (such as e-mails or Internet use records) were likely to be the subject of discovery requests.
*5 CBRE also argues that it complied with the spirit of the September 27 Letter (again missing the point that its duty is to preserve all documents that it has notice are relevant) because it sent out one e-mail requiring its employees follow normal record retention policies and to keep all documents relating to Amy Wiginton, the only plaintiff in the case at the time. CBRE’s decision to only retain documents relating to Amy Wiginton, however, lacked the appropriate scope. See Diersen v. Walker, No. 00 C 2437, 2003 WL 21317276, at *5 (N.D. Ill. June 6, 2003) (“A party cannot destroy documents based solely on its own version of the proper scope of the complaint.”) Prior to this case being filed, CBRE was served with Wiginton’s charge of discrimination filed with the Illinois Department of Human Rights which detailed the alleged harassment that Wiginton was subjected to which included allegations relating to e-mail. CBRE thus had notice that electronic evidence would be requested. Next, the class action complaint was filed. Although CBRE emphasizes the fact that Wiginton was the only plaintiff named in the complaint, the complaint discussed the names of supervisors who were alleged harassers and gave details about alleged harassment in offices other than the one in which Wiginton was employed. CBRE acknowledges this in its motion for a protective order filed on May 14, 2003, when it asked the court to limit discovery to a small number of offices: “Plaintiff’s class complaint identifies, at most, ten alleged harassers (five managers) in four offices.” (Def.’s Mem. in Supp. of its Mot. For Protective Order). CBRE thus had notice that more people than Wiginton and her supervisor were involved, and that more offices than just the office in which Wiginton worked were at issue. Therefore, it was on notice that documents relating to people other than Wiginton would be requested. Plaintiff’s September 27 Letter and February 2003 document requests further notified CBRE of the types of documents (e-mail and Internet downloads) that it expected would be produced.
At the very least, CBRE should have initially retained all relevant documents relating to the ten alleged harassers. And it should have retained relevant documents in the Oak Brook office (where Wiginton worked), and the other identified offices, not just documents that “pertain[ed] to Amy Wiginton.” While we do not want to discourage parties from entering into agreements for fear they could later be used against them, in this case, the agreed preservation communication sent to all CBRE employees at the end of May reflects CBRE’s duty to preserve documents: “you must also retain any records (even if not specifically related to Amy Wiginton), including e-mails, videos, internet downloads ... which contain or relate to any sexually inappropriate or otherwise offensive material....” Additionally, CBRE had a duty to preserve the computer hard drives, e-mail accounts, and internet records of anyone who left the company who had been accused (formally or informally) of sexual harassment or misconduct. Or, if this were cost prohibitive, it could have searched the computer for sexually inappropriate or otherwise offensive material before destroying the other data it contained and reusing the computer.
*6 CBRE’s argument that preserving relevant data would be too cost prohibitive is not entirely persuasive. As discussed, CBRE did not have the duty to preserve every electronic record, only relevant information. We find not credible CBRE’s claims that it would require thousands and thousands of hours to search through electronic data for relevant documents. For example, with respect to e-mails, certainly filters exist to separate spam from non-spam e-mails. And within the remaining non-spam e-mails, CBRE’s IT representative testified that the IT department can conduct searches for e-mails containing particular key “sexual” words when requested to do so by the human resources department. They could also search certain file types that are likely to contain images, some of which may be pornographic or sexually explicit. Plaintiff’s expert also testified that it is possible to search through e-mails to find sexually explicit terms and images. The fact that such searches might not have turned up all sexually explicit e-mails does not excuse CBRE from looking for any e-mails.
We find that CBRE had the duty to preserve relevant electronic documents that were likely to be the subject of discovery requests, had knowledge of this duty, and that it wilfully and intentionally did not fulfill this duty.
B. Sanctions
4

Wiginton v. Ellis, Not Reported in F.Supp.2d (2003)
CBRE gives a variety of reasons why Plaintiff’s request for sanctions should not be granted. Curiously enough, it never argues that the documents it destroyed were not discoverable, were not relevant, or would not have been reasonably calculated to lead to the discovery of admissible evidence had they been requested.
CBRE argues that Plaintiff’s motion for sanctions for spoliation of evidence should be denied because it was not filed in a timely manner. See c.f. Brandt v. Vulcan, Inc., 30 F.3d 752, 756 (7th Cir.1994) (motion for sanctions under Rule 37 must be brought in timely manner); Media Communications v. Multimedia, Sign Up, Inc., No. 99 C 5009, 1999 WL 1212652, at *3 (N.D.Ill.Dec. 14, 1999) (citing Illinois state law). CBRE states that Plaintiff knew that the September 29 e-mail instructed its employees to follow normal document retention policies and to not destroy documents pertaining to only to Wiginton and that if this was insufficient, Plaintiff should have objected sooner. We find, however, that even if Plaintiff was aware of CBRE’s e-mail of September 29th, Plaintiff had no reason to think that CBRE was not taking other affirmative steps to fulfill its duty to preserve relevant information, such as informing its computer department to search for relevant material before deleting backup tapes. We find that this motion for sanctions was timely brought for this reason, and because after becoming aware of the situation, Plaintiff tried to resolve these issues with Defendant before bringing the motion to prevent the further destruction of documents and for sanctions.
Turning then to the question of whether sanctions are warranted, we first find that a default judgment is not warranted. A default judgment, or conversely, dismissal of an action, are harsh sanctions that should only be employed “in extreme situations where there is evidence of willfulness, bad faith or fault by the noncomplying party.” Danis, 2000 WL 1694325, at *33. Wilfulness, like bad faith, is “associated with conduct that is intentional or reckless....” Long v. Steepro, 213 F.3d 983, 987 (7th Cir.1997). Fault does not refer to the noncomplying party’s subjective motivation, but rather describes the reasonableness of the conduct. Langley v. Union Elec. Co., 107 F.3d 510, 514 (7th Cir.1997). Fault may be evidenced by negligent actions or a flagrant disregard of the duty to preserve potentially relevant evidence. Diersen, 2003 WL 21317276, at *5. CBRE’s actions do not constitute an extreme situation which would require such a harsh sanction. This case is distinguishable from cases in which the only existing piece of evidence was destroyed. See e.g. Marrocco v. Gen. Motors Corp., 966 F.2d 220, 224–25 (7th Cir.1992) (affirming directed verdict for plaintiffs where defendant was at fault for failing to preserve evidence and plaintiffs were irreparably prejudiced). Justice is best served by hearing cases on their merits except in limited circumstances. Schilling v. Walworth County Park & Planning Comm’n, 805 F.2d 272, 275 (7th Cir.1986). This case should be heard on its merits.
*7 Next, in order to draw an inference that the documents favored Plaintiff, we must first find that the documents were destroyed in “bad faith.”6 Mathis v. John Morden Buick, Inc., 136 F.3d 1153, 1155 (7th Cir.1998). “Thus, ‘[t]he crucial element is not that evidence was destroyed but rather the reason for the destruction.” ’ Park v. City of Chicago, 297 F.3d 606, 615 (7th Cir.2002) (quoting S.C. Johnson & Son, Inc. v. Louisville & Nahsville R.R. Co., 695 F.2d 253, 258 (7th Cir.1982)). The court should look to the “facts surrounding [the] destruction” to determine if they “support an inference of bad faith.” S.C. Johnson & Son, Inc., 695 F.2d at 259.
In this case, the facts surrounding the destruction of the documents indicate that the documents were destroyed in bad faith. First, whether the documents were destroyed according to regular document retention procedures has been used as a factor to determine the reason for the destruction of the documents. See Jeffries v. Chicago Transit Auth., 770 F.2d 676, 681 (7th Cir.1985) (finding that destruction of documents through a business retention schedule did not impute any bad faith or consciousness of guilt where the destruction did not violate federal regulations and defendant was not on notice that lawsuit would be filed against it). However, once a party is on notice that specific relevant documents are scheduled to be destroyed according to a routine document retention policy, and the party does not act to prevent that destruction, at some point it has crossed the line between negligence and bad faith. At that point, we must find that the reason for the destruction becomes because the party knew that relevant evidence was contained in the documents and wanted to hide the adverse information, rather than because the documents were scheduled to be destroyed. In this case, the facts surrounding the destruction of the documents are evidence that CBRE knew that it had a duty to preserve relevant documents. Its failure to change its normal document retention policy, knowing that relevant documents would be destroyed if it did not act to preserve these documents, is evidence of bad faith.
Next, as discussed, CBRE did not have the duty to preserve every single piece of electronic data in the entire company. But its failure to make an adequate search for relevant documents before destroying non-relevant documents is further evidence of its bad faith. See Danis, 2000 WL 1694325, at *38 (noting that the “question of intent and/or bad faith ... may encompass not only direct destruction, but also ‘willful blindness,” ’ i.e., that the party knew that discoverable data was available but allowed it to be destroyed). CBRE knew that electronic evidence would be requested at least as early as January 2002 when Wiginton’s EEOC charge was filed. Later, the class action complaint was filed, then Plaintiff sent the September 27 Letter to Defendant, and finally, document requests were sent to CBRE. And yet CBRE claims that its failure to search for any
5

Wiginton v. Ellis, Not Reported in F.Supp.2d (2003)
documents, such as e-mails, is innocent because such a search would have been too burdensome and would not have revealed any relevant documents. Perhaps if CBRE had attempted to perform such a search and had evidence that it was unsuccessful we would find its assertion credible. But its complete failure to perform any search rises above the level of mere negligence, and this willful blindness in the context of the facts surrounding the destruction of the documents, leads us to find that the documents were destroyed in bad faith.7
*8 In this case, unlike most cases in which documents have been destroyed, there is a way to determine the effect that CBRE’s actions have had on Plaintiff’s case. See c.f. Langley, 107 F.3d at 515 (award of sanctions must be proportionate to the circumstances); Danis, 2000 WL 1694325, at *34–35 (prejudice to the case or effect on the course of the litigation may help a court determine the appropriate level of sanctions). While the entire scope and extent of the lost documents is not known, the backup tapes for the three months of June, August and September 2002 that have been produced by CBRE may give some evidence into what was destroyed. For this reason, the Court recommends that Plaintiff’s motion for sanctions be denied without prejudice. If Plaintiff’s expert is able to discover relevant documents on the backup tapes then Plaintiff should be allowed to renew its motion for appropriate sanctions based on the destroyed evidence.

III. Conclusion
For the foregoing reasons, the Court respectfully recommends that Plaintiff’s motion for sanctions for spoliation of evidence be denied without prejudice.

Written objections to any finding of fact, conclusion of law, or the recommendation for disposition of this matter must be filed with the Honorable Wayne R. Andersen within ten (10) days after service of this Report and Recommendation. See Fed.R.Civ.P. 72(b). Failure to object will constitute a waiver of objections on appeal.

Footnotes

1

This matter comes before this Court pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1 for a report and recommendation.

2

For consistency, we will continue to refer to Plaintiff in the singular tense.

3

The figure for preserving backup tapes in all offices is calculated as follows: ($50 per tape x 125 servers x 2 backups for e-mail and

file and print servers) = $12,500. (Def.’s Br. in Opp’n at 5.) It seems to follow then that the cost for preserving just e-mail backup

tapes would be $6250 a day to preserve the daily tapes or $6250 a month to preserve just the monthly tapes ($50 per tape x 125

offices x 1 e-mail backup tape). This number would be substantially reduced if just backup tapes for the offices named in the

complaint were the only backup tapes saved.

4

According to the expert, pornographic material is typically contained within certain file types such as GIF or JPEG files.

5

Courts are also authorized to sanction parties for discovery violations pursuant to Rule 37. However, such sanctions are only

available where a court order or discovery ruling of some sort has been violated. Brandt v. Vulcan, Inc., 30 F.3d 752, 756 n. 7 (7th

Cir.1994) (noting that what constitutes an “order” for purposes of imposing sanctions has been broadly interpreted). In this case, no

order was in place directing CBRE to preserve any electronic evidence. For this reason, we proceed under the court’s inherent

authority to sanction for failure to preserve documents, noting that the analysis is essentially the same under either alternative. See

Danis v. USN Communications, Inc., No. 98 C 7482, 2000 WL 1694325, at *30 (N.D.Ill. Oct. 20, 2000) (quoting Cobell v. Babbit,

37 F.Supp.2d 6, 18 (D.D.C.1999)).

6

Effectively, the bad faith destruction of documents means that the documents were destroyed “for the purpose of hiding adverse

information.” Mathis v. John Morden Buick, Inc., 136 F.3d 1153, 1155 (7th Cir.1998). More than mere speculation is necessary to

find that the documents contained adverse information, Rummery v. Illinois Bell Tele. Co., 250 F.3d 553, 558 (7th Cir.2001), but

the court may look at the circumstances surrounding the destruction to determine if the non-producing party acted in bad faith. S.C.

Johnson & Son, Inc. v. Louisville & Nashville R.R. Co., 695 F.2d 253, 259 (7th Cir.1982). Because the documents were destroyed,

evidence that they contained adverse evidence is generally lost also, which is the reason for the adverse inference.

7

Bad faith is not a precondition to the imposition of sanctions. See e.g. Melendez v. Illinois Bell Tel. Co., 79 F.3d 661, 671 (7th

Cir.1996) and Marrocco v. Gen. Motors Corp., 966 F.2d 220, 224 (7th Cir.1992).

6

Wiginton v. Ellis, Not Reported in F.Supp.2d (2003) 7

 
 Case: 1:02-cv-6832 As of: 01/17/2011 04:14 PM CST 1 of 33
COLE, PROTO, TERMED
United States District Court Northern District of Illinois − CM/ECF LIVE, Ver 4.2 (Chicago)
CIVIL DOCKET FOR CASE #: 1:02−cv−06832

Wiginton, et al v. CB Richard Ellis Assigned to: Honorable Milton I. Shadur Demand: $0 Cause: 42:2000e Job Discrimination (Employment)
Plaintiff

Date Filed: 09/25/2002 Date Terminated: 11/08/2010 Jury Demand: Both Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Amy Wiginton individually and on behalf of all persons similarly situated

represented by Kenneth A. Wexler Wexler Wallace LLP 55 West Monroe Suite 3300 Chicago, IL 60603 (312) 346−2222 Email: kaw@wexlerwallace.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Lawrence Duffy Locke Lord Bissell &Liddell LLP 111 South Wacker Drive Chicago, IL 60606 (312) 443−0700 Email: mduffy@hww−law.com TERMINATED: 08/20/2010 LEAD ATTORNEY

Amber M. Nesbitt Wexler Wallace LLP 55 W. Monroe Street Suite 3300 Chicago, IL 60603 (312) 346−2222 Fax: (312) 346−0022 Email: amn@wexlerwallace.com ATTORNEY TO BE NOTICED

Daniel E Gustafson Gustafson Gluek PLLC 725 Northstar East 608 Second Avenue S. Minneapolis, MN 55402 (612)333−8844 Email: dgustafson@gustafsongluek.com ATTORNEY TO BE NOTICED

Elizabeth A. Fegan Hagens Berman Sobol Shapiro LLP 820 North Boulevard Suite B Oak Park, IL 60301 (708) 776−5600 Fax: (708) 776−5601 Email: beth@hbsslaw.com ATTORNEY TO BE NOTICED

Jeniphr AE Breckenride Hagens &Berman 1301 Fifth Avenue

Case: 1:02-cv-6832 As of: 01/17/2011 04:14 PM CST 2 of 33

Suite 2900 Seattle, WA 98101 (206)623−7292

Jennifer Fountain Connolly Hagens Berman Sobol Shapiro LLP Chicago, IL 60603 Email: jenniferc@hbsslaw.com ATTORNEY TO BE NOTICED

JoDee Favre Favre Law Office, LLC 5005 W. Main Street Belleville, IL 62226 618 257 8605 ATTORNEY TO BE NOTICED

Karla Gluek Gustafson Gluek PLLC 725 Northstar East 608 Second Avenue S. Minneapolis, MN 55402 (612)333−8844

Nicholas Styant−Browne Hagens &Berman 1301 Fifth Avenue Suite 2900 Seattle, WA 98101 (206)623−7292 Email: nick@hbsslaw.com

Renee Lynn Zipprich Dykema Gossett PLLC 10 South Wacker Drive Suite 2300 Chicago, IL 60606

Fax: Email: rzipprich@dykema.com TERMINATED: 04/28/2006

Steve W. Berman Hagens Berman Sobol Shapiro LLP 1918 8th Ave Suite 3300 Seattle, WA 98101 (206)623−7292 Email: steve@hbsslaw.com ATTORNEY TO BE NOTICED

Plaintiff
Kristine Moran individually and on behalf of all persons similarly situated, TERMINATED: 05/18/2009

represented by Kenneth A. Wexler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Lawrence Duffy (See above for address) TERMINATED: 08/20/2010 LEAD ATTORNEY

Amber M. Nesbitt (See above for address)

Case: 1:02-cv-6832 As of: 01/17/2011 04:14 PM CST 3 of 33

ATTORNEY TO BE NOTICED

Daniel E Gustafson (See above for address) ATTORNEY TO BE NOTICED

Elizabeth A. Fegan (See above for address) ATTORNEY TO BE NOTICED

Jeniphr AE Breckenride (See above for address) ATTORNEY TO BE NOTICED

Jennifer Fountain Connolly (See above for address) ATTORNEY TO BE NOTICED

JoDee Favre (See above for address) ATTORNEY TO BE NOTICED

Karla Gluek (See above for address)

Nicholas Styant−Browne (See above for address)

Renee Lynn Zipprich (See above for address) TERMINATED: 04/28/2006

Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Andrea Corey

represented by Kenneth A. Wexler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Lawrence Duffy (See above for address) TERMINATED: 08/20/2010 LEAD ATTORNEY

Amber M. Nesbitt (See above for address) ATTORNEY TO BE NOTICED

Daniel E Gustafson (See above for address) ATTORNEY TO BE NOTICED

Elizabeth A. Fegan (See above for address) ATTORNEY TO BE NOTICED

Jeniphr AE Breckenride (See above for address)

Jennifer Fountain Connolly (See above for address)

Case: 1:02-cv-6832 As of: 01/17/2011 04:14 PM CST 4 of 33

ATTORNEY TO BE NOTICED

JoDee Favre (See above for address) ATTORNEY TO BE NOTICED

Karla Gluek (See above for address)

Nicholas Styant−Browne (See above for address)

Renee Lynn Zipprich (See above for address) TERMINATED: 04/28/2006

Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Olivia Knapp Individually, and on behalf of all persons similarly situated,

represented by Kenneth A. Wexler (See above for address) TERMINATED: 03/12/2009 LEAD ATTORNEY

Michael Lawrence Duffy (See above for address) TERMINATED: 08/20/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amber M. Nesbitt (See above for address) TERMINATED: 03/12/2009

Daniel E Gustafson (See above for address) ATTORNEY TO BE NOTICED

Elizabeth A. Fegan (See above for address) TERMINATED: 03/12/2009

Jeniphr AE Breckenride (See above for address) TERMINATED: 03/12/2009

Jennifer Fountain Connolly (See above for address) TERMINATED: 03/12/2009

JoDee Favre (See above for address) ATTORNEY TO BE NOTICED

Karla Gluek (See above for address)

Nicholas Styant−Browne (See above for address) TERMINATED: 03/12/2009

Renee Lynn Zipprich

Case: 1:02-cv-6832 As of: 01/17/2011 04:14 PM CST 5 of 33

(See above for address) TERMINATED: 04/28/2006

Steve W. Berman (See above for address) TERMINATED: 03/12/2009

Plaintiff
Dondi Plank TERMINATED: 04/06/2004

represented by Kenneth A. Wexler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel E Gustafson Gustafson Gluek PLLC 725 Northstar East 608 Second Avenue S. Minneapolis, MN 55402 (612)333−8844 TERMINATED: 04/06/2004 ATTORNEY TO BE NOTICED

Elizabeth A. Fegan (See above for address) TERMINATED: 04/06/2004

Jeniphr AE Breckenride (See above for address) TERMINATED: 04/06/2004

Jennifer Fountain Connolly (See above for address) ATTORNEY TO BE NOTICED

JoDee Favre (See above for address) TERMINATED: 04/06/2004 ATTORNEY TO BE NOTICED

Karla Gluek (See above for address) TERMINATED: 04/06/2004

Nicholas Styant−Browne (See above for address) TERMINATED: 04/06/2004

Renee Lynn Zipprich (See above for address) TERMINATED: 04/28/2006

Steve W. Berman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Norma Plank Fethler successor Dondi Plank

represented by Michael Lawrence Duffy (See above for address) TERMINATED: 08/20/2010 LEAD ATTORNEY

Amber M. Nesbitt (See above for address) ATTORNEY TO BE NOTICED

Case: 1:02-cv-6832 As of: 01/17/2011 04:14 PM CST 6 of 33

Elizabeth A. Fegan (See above for address) ATTORNEY TO BE NOTICED

V. Defendant CB Richard Ellis

represented by Brenda H. Feis Seyfarth Shaw LLP 131 South Dearborn Street Suite 2400 Chicago, IL 60603−5577 (312) 460−5000 Fax: (312) 460−7000 Email: bfeis@seyfarth.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anne Elizabeth Duprey Seyfarth Shaw LLP 131 South Dearborn Street Suite 2400 Chicago, IL 60603−5577 (312) 460−5000 Fax: (312) 460−7000 Email: aduprey@seyfarth.com ATTORNEY TO BE NOTICED
Christopher James DeGroff Seyfarth Shaw LLP 131 South Dearborn Street Suite 2400 Chicago, IL 60603−5577 (312) 460−5000 Fax: (312) 460−7000 Email: cdegroff@seyfarth.com ATTORNEY TO BE NOTICED
Deborah S. Davidson Morgan, Lewis &Bockius LLP 77 West Wacker Drive 5th Floor Chicago, IL 60601 312.324.1159 Fax: 312.324.1001 Email: ddavidson@morganlewis.com TERMINATED: 05/05/2005
Sari M. Alamuddin Morgan Lewis &Bockius, LLP 77 West Wacker Drive 5th Floor Chicago, IL 60601 (312) 324− 1000 Email: salamuddin@morganlewis.com TERMINATED: 05/05/2005
Scott A. Carlson Seyfarth Shaw LLP 131 South Dearborn Street Suite 2400 Chicago, IL 60603−5577 (312) 460−5000

Case: 1:02-cv-6832 As of: 01/17/2011 04:14 PM CST 7 of 33
Fax: (312) 460−7000 Email: scarlson@seyfarth.com ATTORNEY TO BE NOTICED
Tracy Marie Billows Seyfarth Shaw LLP 131 South Dearborn Street Suite 2400 Chicago, IL 60603−5577 (312) 460−5000 Fax: (312) 460−7000 Email: tbillows@seyfarth.com ATTORNEY TO BE NOTICED

Date Filed 09/25/2002
09/25/2002 09/26/2002 10/02/2002 10/02/2002 10/08/2002 10/23/2002 11/13/2002 11/13/2002 11/13/2002 11/19/2002
12/03/2002 12/03/2002 12/10/2002 12/20/2002

# Docket Text
1 COMPLAINT; jury demand − Civil cover sheet − Appearance(s) of Kenneth A. Wexler, Elizabeth A. Fegan, Jo−Dee Favre−Jones as attorney(s) for plaintiff (One original and one copy summons(es) issued.) (Documents: 1−1 through 1−3) (hp) (Entered: 09/25/2002)
RECEIPT regarding payment of filing fee paid; on 9/25/02 in the amount of $150.00, receipt #10412441. (hp) (Entered: 09/25/2002)
2 RETURN OF SERVICE executed 9/25/02 as to defendant CB Richard Ellis (fce) (Entered: 09/30/2002)
3 ATTORNEY APPEARANCE for CB Richard Ellis by Brenda H. Feis (fce) (Entered: 10/03/2002)
4 UNOPPOSED MOTION by defendant for extension of time to answer or otherwise plead to plaintiff's complaint ; Notice. (fce) (Entered: 10/09/2002)
5 MINUTE ORDER of 10/8/02 by Hon. Wayne R. Andersen: Defendant's motion for extension of time to answer or otherwise plead to plaintiff's complaint is granted to 11/14/02 [4−1]. Mailed notice (fce) (Entered: 10/09/2002)
6 NOTICE by plaintiff's attorney of change of firm name to The Wexler Firm. (fce) (Entered: 10/24/2002)
7 ATTORNEY APPEARANCE for CB Richard Ellis by Brenda H. Feis and Sari M. Alamuddin (fce) (Entered: 11/14/2002)
8 ANSWER by defendant and affirmative defenses to complaint [1−1]; Notice. (fce) (Entered: 11/14/2002)
9 MOTION by defendant to dismiss plaintiff's Title VII Class Claim (Count I) and State Law Tort Claims (Counts II−IV) ; Memorandum in support; Notice. (fce) (Entered: 11/21/2002)
10 MINUTE ORDER of 11/19/02 by Hon. Wayne R. Andersen: Defendant's motion to dismiss plaintiff's Title VII Class Claim (Count I) and State Law Tort Claims (Counts II−IV) [9−1] is entered and briefed as follows: Response by 12/20/02. Reply by 1/10/03. Ruling will be made by mail. Mailed notice (fce) (Entered: 11/21/2002)
11 ATTORNEY APPEARANCE for defendant by Deborah S. Davidson (lc) (Entered: 12/04/2002)
12 UNOPPOSED MOTION by defendant for extension of time to file reply in support of its motion to dismiss ; Notice (cdy) (Entered: 12/17/2002)
13 MINUTE ORDER of 12/10/02 by Hon. Wayne R. Andersen: Defendant's unopposed motion for extension of time to file reply in support of motion to dismiss [12−1], is granted to 01/20/03. Mailed notice (cdy) (Entered: 12/17/2002)
14 RESPONSE by plaintiff in opposition to defendant's motion to dismiss [9−1] (Attachments); Notice of filing (eav) (Entered: 12/26/2002)

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12/31/2002 01/09/2003 01/21/2003 01/29/2003
03/07/2003 04/23/2003 05/05/2003 05/09/2003 05/14/2003 05/19/2003 05/19/2003 05/19/2003 05/19/2003
05/19/2003 05/22/2003
05/23/2003

15 EXPEDITED REFERRAL ORDER: Case referred to Hon. Martin C. Ashman for discovery supervision , discovery motions Mailed notice. (tsa) (Entered: 12/31/2002)
SCHEDULE set on 1/9/03 by Hon. Martin C. Ashman : Status hearing set to 10:00 1/29/03 in courtroom 1386. Mailed notice (is) (Entered: 01/09/2003)
16 REPLY memorandum of law by defendant in support of defendant's motion to dismiss plaintiff's Title VII Class Claim (Count I) and State Law Tort Claims (Counts II−IV) [9−1] (Attachments); Notice (cdy) (Entered: 01/22/2003)
SCHEDULE set on 1/29/03 by Hon. Martin C. Ashman : Status hearing held and continued to 10:00 4/23/03. 26(a) disclosure by 2/18/03. Class action motion to be filed by 6/30/03. Fact discovery closure by 9/30/03. Plaintiff's 26(a)(2) disclosures by 10/15/03. Defendant's 26(a)(2) disclosures by 11/17/03. Expert discovery ordered closed on 12/15/03. Mailed notice (is) (Entered: 01/29/2003)
17 APPLICATION for leave to appear pro hac vice for plaintiff Amy Wiginton by Jeniphr A. E. Breckenridge ; Order entered granting leave by Hon. Wayne R. Andersen (eav) (Entered: 03/12/2003)
SCHEDULE set on 4/23/03 by Hon. Martin C. Ashman : Status hearing held and continued to 10:00 6/12/03 . Mailed notice (is) (Entered: 04/23/2003)
18 MINUTE ORDER of 5/5/03 by Hon. Wayne R. Andersen : Entered Memorandum Opinion and Order. The motion to dismiss is denied in part and granted in part [9−1]. Mailed notice (gcy) (Entered: 05/06/2003)
19 MOTION by defendant for entry of protective order ; Notice (amb) (Entered: 05/20/2003)
21 MOTION by defendant for protective order and case management conference ; Memorandum of law in support (Attachments); Notice (ar) (Entered: 05/27/2003)
20 MINUTE ORDER of 5/19/03 by Hon. Wayne R. Andersen : Defendant's motion for entry of protective order [19−1] is entered and continued to 9:00 a.m. on 05/27/03. Mailed notice (amb) (Entered: 05/20/2003)
22 EMERGENCY motion by plaintiff to prevent the further destruction of evidence and for sanctions for spoliation of evidence ; Memorandum of law in support; Notice (ar) (Entered: 05/27/2003)
23 EMERGENCY motion by plaintiff for order restricting communications between defendant and putative class members ; Memorandum of law in support (ar) (Entered: 05/27/2003)
24 APPENDIX filed by plaintiff in support of its emergency motions to prevent the further destruction of evidence and for sanctions for spoliation of evidence [22−1] [22−2], and for order restricting communications between defendant and putative class members [23−1] and motion to compel defendant's compliance with plaintiff's first request for production of documents (1 vol.) (ar) Modified on 05/27/2003 (Entered: 05/27/2003)
27 MOTION by plaintiff to compel defendant's compliance with plaintiff's first set of document requests ; Memorandum in support; Notice (ar) (Entered: 06/13/2003)
25 MINUTE ORDER of 5/22/03 by Hon. Wayne R. Andersen : Plaintiff's emergency motion to prevent the further destruction of evidence and for sanctions for spoilation of evidence and for order restricting communications between defendant and putative class members [22−1] [22−2] is referred to the magistrate judge. Defendant's motion for entry of protective order [19−1], set for 05/27/03 is stricken, and referred to the magistrate judge. No notice (ar) (Entered: 05/27/2003)
26 REFERRAL ORDER of 5/23/03 Referring to Hon. Martin C. Ashman by the Hon. Wayne R. Anderson, pursuant to Local Rule 72.1, plaintiff's emergency motion to prevent the further destruction of evidence and for sanctions for spoliation of evidence [22−1] [22−2] and defendant's motion for entry of protective order [19−1]. (For further detail see order.) Mailed notice (ar) (Entered: 05/27/2003)

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06/11/2003 06/11/2003 06/11/2003 06/12/2003
06/17/2003 06/17/2003 06/18/2003 06/26/2003 06/26/2003 06/26/2003 06/26/2003 07/01/2003 07/01/2003 07/02/2003 07/08/2003 07/14/2003

29 MEMORANDUM by plaintiff in support of her motion for sanctions for spoliation of evidence [22−2] and her motion to compel defendant's compliance with plaintiff's first set of document requests [27−1] (Attachments); Notice (ar) Modified on 06/18/2003 (Entered: 06/18/2003)
30 MOTION by plaintiff for leave to amend class action complaint (Attachment); Notice (ar) (Entered: 06/18/2003)
31 MOTION by plaintiff for leave to add plaintiff ; Memorandum of law in support (ar) (Entered: 06/18/2003)
28 MINUTE ORDER of 6/12/03 by Hon. Martin C. Ashman : Status hearing held. Defendant's motions for entry of protective order are granted [19−1] [21−1]. Plaintiff to supplment her motion to prevent and for sanctions for spoliation of evidence by 06/26/03 [22−1] [22−2]. Defendant's response to plaintiff's motion to prevent the further destruction of evidence and for sanctions for spoliation of evidence to be filed by 07/17/03 [22−1] [22−2]. Reply due 07/24/03. Oral argument on plaintiff's motion to prevent the further destruction of evidence and and for sanctions for spoliation of evidence set for 10:30 a.m. on 07/31/03 [22−1] [22−2]. Plaintiff's motion to compel defendant's compliance with plaintiff's first set of document requests is granted [27−1]. Draft order to follow. Mailed notice (ar) (Entered: 06/13/2003)
32 MINUTE ORDER of 6/17/03 by Hon. Wayne R. Andersen : Plaintiff's motion for leave to amend class action complaint [30−1] and plaintiff's motion for leave to add plaintiff [31−1] are granted. No notice (ar) (Entered: 06/18/2003)
34 FIRST AMENDED COMPLAINT [1−1] by Amy Wiginton, adding plaintiff Kristine Moran; jury demand; Notice (ar) (Entered: 06/27/2003)
33 MINUTE ORDER of 6/18/03 by Hon. Martin C. Ashman : (Entered Agreed Order for Preservation of Documents). Mailed notice (ar) (Entered: 06/19/2003)
35 SUPPLEMENT by plaintiffs to their motion to prevent the further destruction of evidence and for sanctions for spoliation of evidence (Attachment); Notice [22−1] [22−2] (ar) (Entered: 06/30/2003)
36 SUPPLEMENT by plaintiffs to their motion to restrict communications putative class members [23−1] and motion for approval of scientific survey of putative class for purposes of class certification (Attachment) (ar) (Entered: 06/30/2003)
36 MOTION by plaintiffs for approval of scientific survey of putative class for purposes of class certification and supplement to plaintiffs' motion to restrict communications with putative class members [22−1] [22−2] (Attachment) (ar) Modified on 06/30/2003 (Entered: 06/30/2003)
37 MOTION by CB Richard Ellis to enlarge the time for plaintiffs' depositions (Attachments); Notice (ar) (Entered: 07/02/2003)
38 MINUTE ORDER of 7/1/03 by Hon. Martin C. Ashman : Oral argument held on defendant's motion to enlarge the time for plaintiffs' depositions [37−1]. The motion is granted. Two days are allowed to do the depositions. Mailed notice (ar) (Entered: 07/02/2003)
39 MINUTE ORDER of 7/1/03 by Hon. Martin C. Ashman : Plaintiff's motion to compel is granted, subject to the court's decision that discovery should be conducted in stages. (Entered Order). Mailed notice (ar) (Entered: 07/02/2003)
40 UNOPPOSED MOTION by defendant for extension of time to answer or otherwise plead to first amended class action complaint ; Notice (ar) (Entered: 07/09/2003)
41 MINUTE ORDER of 7/8/03 by Hon. Wayne R. Andersen : Defendant's unopposed motion for extension of time to answer or otherwise plead to first amended class action complaint is granted to 07/14/03 [40−1]. Mailed notice (ar) (Entered: 07/09/2003)
42 ANSWER and affirmative defenses by defendant to first amended class action complaint [34−1]; Notice. (aga) (Entered: 07/15/2003)

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07/17/2003 07/17/2003 07/24/2003 07/24/2003 07/31/2003
08/13/2003 08/14/2003 08/18/2003 08/19/2003
09/05/2003 09/05/2003 09/08/2003 09/09/2003 09/15/2003

43 BRIEF by defendant in opposition to plaintiffs' motion for order restricting communications between defendant and putative class members [23−1] and motion for approval of scientific survey of putative class for purposes of class certification [36−1] (Attachments); Notice. (aga) (Entered: 07/18/2003)
44 BRIEF by defendant in opposition to plaintiffs' emergency motion to prevent the further destruction of evidence [22−1] and for sanctions for spoliation of evidence [22−2] (Attachments); Notice. (aga) (Entered: 07/18/2003)
45 REPLY by plaintiffs in support of their motion for sanctions for spoliation of evidence [22−2] (Attachments) (rmm) (Entered: 07/28/2003)
46 REPLY by plaintiffs in support of their motion to restrict communications with putative class members [23−1]and for approval of scientific survey of putative class for purposes of class certification [36−1] (RESTRICTED) (rmm) (Entered: 07/28/2003)
47 MINUTE ORDER of 7/31/03 by Hon. Martin C. Ashman: Oral argument held on plaintiff's emergency motion to prevent the further destruction of evidence [22−1]; motion for sanctions for spoliation of evidence [22−2]; motion for order restricting communications between defendant and putative class members [23−1], the motions are taken under advisement. Ruling to be made by mail. No notice (rmm) (Entered: 08/01/2003)
48 ATTORNEY APPEARANCE for defendant CB Richard Ellis by Christopher James DeGroff. (cem) (Entered: 08/14/2003)
51 MOTION by CB Richard Ellis for protective order concerning plaintiffs' Beverly Hills, CA 30(b)(6) deposition (Attachments); Notice (ar) (Entered: 08/26/2003)
49 OPPOSITION by plaintiffs to defendants motion for protective order concerning Beverly Hills 30(b)(6) deposition and plaintiffs' cross−motion to modify this court's 6/12/03 order to seek first phase discovery from defendant's Beverly Hills, California office (Attachments); Notice. (vmj) (Entered: 08/19/2003)
50 MINUTE ORDER of 8/19/03 by Hon. Martin C. Ashman : Defendant's response to plaintiffs' cross−motion to modify this court's 06/12/03 order to seek first phase discovery from defendant's Beverly Hills, California office to be filed by 09/05/03. Reply due 09/09/03. Oral argument on plaintiffs' cross−motion to modify this court's 06/12/03 order to seek first phase discovery from defendant's Beverly Hills, California office and defendant's motion for protective order concerning plaintiffs' Beverly Hills, CA 30(b)(6) deposition set for 09/11/03 at 10:30 a.m. Mailed notice (ar) (Entered: 08/20/2003)
52 REPLY by CB Richard Ellis in support of its motion for protective order concerning plaintiffs' Beverly Hills, CA 30(b)(6) deposition [51−1] and opposition to plaintiffs' motion to modify this Court's 06/12/03 order to seek first phase discovery from defendant's Beverly Hills, CAlifornia office; Declaration of Lewis C. Horne (Attachments); Notice (ar) (Entered: 09/05/2003)
52 OPPOSITION by CB Richard Ellis to plaintiffs' motion to modify this Court's 06/12/03 order to seek first phase discovery from defendant's Beverly Hills, California office with reply in support of its motion for protective order concerning Beverly Hills 30(B)(6) deposition; Declaration of Lewis C. Stone (Attachments); Notice (ar) (Entered: 09/05/2003)
53 MINUTE ORDER of 9/8/03 by Hon. Martin C. Ashman : Oral argument on defendant's motion for protective order concerning plaintiffs' Beverly Hills, CA 30(b)(6) deposition [51−1] is reset for 10:15 a.m. on 09/19/03. Mailed notice (ar) (Entered: 09/09/2003)
56 MOTION by plaintiffs for extension of time to file reply in support of plaintiffs' cross−motion to modify this Court's 06/12/03 order to seek first phase discovery from defendant's Beverly Hill, California, office ; Notice (ar) (Entered: 09/17/2003)
54 AGREED NOTICE by plaintiffs and defendant of withdrawal of certain pleadings and notice to vacate oral argument scheduled for 09/19/03; Notice (ar) Modified on

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09/15/2003
09/16/2003
09/17/2003
09/18/2003 10/01/2003
10/07/2003 10/24/2003
10/30/2003 11/04/2003 11/17/2003 11/19/2003 11/24/2003 11/24/2003 11/25/2003

09/18/2003 (Entered: 09/16/2003)
55 MINUTE ORDER of 9/15/03 by Hon. Martin C. Ashman : Plaintiffs' motion for order to restrict communications is denied [23−1]. Plaintiffs' motion for approval of scientific survey is denied in part and granted in part [36−1]. Entered Memorandum Opinion and Order. Notice mailed by Magistrate Judge's staff (ar) (Entered: 09/16/2003)
57 MINUTE ORDER of 9/16/03 by Hon. Martin C. Ashman : Plaintiffs' motion for extension of time to file reply in support of plaintiffs' cross−motion to modify this Court's 06/12/03 order to seek first phase discovery from defendant's Beverly Hill, California, office, is granted [56−1]. Plaintiffs' time to file their Beverly Hills' reply is extended to 09/16/03. Mailed notice (ar) (Entered: 09/17/2003)
58 MINUTE ORDER of 9/17/03 by Hon. Martin C. Ashman : Pursuant to agreed notice of withdrawal of certain pleadings and notice to vacate oral argument scheduled for 09/19/03 [54−1], the oral argument of 09/12/03 is vacated. Plaintiff's cross−motion to modify this court's 06/12/03 order to seek first phase discovery from defendant Beverly Hills, California office and defendant C.B. Richard Ellis, Inc.'s motion for protective order concerning Beverly Hills 30(b)(6) deposition [51−1] are withdrawn. Mailed notice (ar) (Entered: 09/18/2003)
59 MOTION by defendant for clarification of court's 09/15/03 ruling on plaintiffs' motion to restrict class communications (Attachments); Notice (cdy) (Entered: 10/02/2003)
60 MINUTE ORDER of 10/1/03 by Hon. Martin C. Ashman: Oral argument held on defendant's motion for clarification of court's 09/15/03 ruling on plaintiffs' motion to restrict class communications, the motion [59−1], is denied per the oral rulings stated in opend court. Draft order to follow. Mailed notice (cdy) (Entered: 10/02/2003)
61 MINUTE ORDER of 10/7/03 by Hon. Martin C. Ashman : Enter orde regarding defendant's motion for clarification [59−1] of this Court's 09/15/03 ruling on plaintiff's motion to restrict class communications. (Entered Order). Mailed notice (ar) (Entered: 10/08/2003)
62 MINUTE ORDER of 10/24/03 by Hon. Martin C. Ashman : Report and Recommendation recommending that plaintiffs' motion for sanctions for spoliation of evidence [22−2] be denied without prejudice is hereby entered of record. Entered Report and Recommendation. Notice mailed by Magistrate Judge's staff (ar) (Entered: 10/27/2003)
63 UNOPPOSED MOTION by defendant for extension of time to file objections to Magistrate Judge Ashman's Report and Recommendation ; Notice (ar) (Entered: 11/04/2003)
64 MINUTE ORDER of 11/4/03 by Hon. Wayne R. Andersen : Defendant's unopposed motion for extension of time to file objections to Magistrate Judge Ashman's Report and Recommendation is granted to 11/14/03 [63−1]. Mailed notice (ar) (Entered: 11/04/2003)
66 MOTION by plaintiffs for costs for electronic discovery ; Memorandum in support (Attachments); Notice (ar) (Entered: 11/26/2003)
67 MOTION by defendant to prohibit plaintiffs' inappropriate media disclosures ; Memorandum of law in support (Attachments); Notice (ar) (Entered: 11/26/2003)
65 TRANSCRIPT of proceedings for the following date(s): 10/01/03 before the Honorable Martin C. Ashman (ar) (Entered: 11/25/2003)
68 MOTION by plaintiffs for leave to join additional plaintiffs ; Memorandum of law in support (Attachments); Notice (ar) (Entered: 11/26/2003)
69 MINUTE ORDER of 11/25/03 by Hon. Martin C. Ashman : Status hearing set for 10:00 a.m. on 12/23/03. Plaintiffs' motion for costs for electronic discovery [66−1] is continued to 10:00 a.m. on 12/23/03. Plaintiffs' motion for leave to join additional plaintiffs [68−1] is entered and continued to 10:00 a.m. on 12/23/03.

Case: 1:02-cv-6832 As of: 01/17/2011 04:14 PM CST 12 of 33

11/25/2003 12/03/2003 12/18/2003 12/19/2003 12/19/2003 12/22/2003 12/22/2003 12/23/2003
12/23/2003 01/09/2004 01/12/2004 01/16/2004 01/20/2004 01/20/2004
01/23/2004 01/26/2004

Mailed notice (ar) (Entered: 11/26/2003)
70 MINUTE ORDER of 11/25/03 by Hon. Martin C. Ashman : Oral argument held on defendant's motion to prohibit plaintiffs' inappropriate media disclosures [67−1]. The motion is denied for the reasons stated in open court. Mailed notice (ar) (Entered: 11/26/2003)
71 MINUTE ORDER of 12/3/03 by Hon. Martin C. Ashman : Plaintiffs' motion for costs for electronic discovery [66−1] is continued to 10:00 a.m. on 12/23/03 (Entered Order). Notice mailed by Magistrate Judge's staff (ar) (Entered: 12/04/2003)
72 ATTORNEY APPEARANCE for plaintiffs by Steve W. Berman (ar) (Entered: 12/19/2003)
73 APPLICATIONS (3) for leave to appear pro hac vice for plaintiffs by Daniel E Gustafson, Nicholas Styant−Browne, and Karla Gluek; Orders (3) entered granting leave by Hon. Wayne R. Andersen (ar) (Entered: 12/22/2003)
74 DESIGNATIONS (3) of local counsel by Karla Gluek, Nicholas Styant−Browne and Daniel Gustafson, counsel for plaintiffs (ar) Modified on 12/22/2003 (Entered: 12/22/2003)
75 ATTORNEY APPEARANCE for plaintiffs by Jennifer Fountain Connolly, Renee Lynn Zipprich (ar) (Entered: 12/23/2003)
76 MOTION by plaintiffs for case management order permitting second phase discovery and for leave to take more than ten depositions ; Memorandum in support (Attachments); Notice (1 vol.) (ar) Modified on 12/23/2003 (Entered: 12/23/2003)
77 MINUTE ORDER of 12/23/03 by Hon. Martin C. Ashman : Status hearing held. Plaintiffs' motion for leave to join additional plaintiffs is granted without prejudice [68−1]. Plaintiffs' brief in support of their motion for costs for electronic discovery to be filed by 01/12/04 [66−1]. Defendant's reply to be filed by 01/26/04. The parties will file a stipulation with regard to the expert's opinions regarding the e−mail tests. Oral argument on plaintiffs' motion for costs for electronic discovery [66−1] is set for 10:30 a.m. on 01/30/04. Mailed notice (ar) (Entered: 12/23/2003)
78 MINUTE ORDER of 12/23/03 by Hon. Martin C. Ashman : Plaintiffs' motion for case management order permitting second phase discovery and for leave to take more than ten depositions [76−1] [76−2] is entered and continued to 10:00 a.m. on 02/03/04. Mailed notice (ar) (Entered: 12/23/2003)
89 SECOND AMENDED COMPLAINT [34−1] by plaintiffs; jury demand; adding plaintiffs Dondi Plank, Andrea Corey, and Olivia Knapp (ar) (Entered: 02/06/2004)
81 MOTION by plaintiffs for extension of time to file supplements to motion for costs for electronic discovery ; Notice (ar) (Entered: 01/21/2004)
79 MINUTE ORDER of 1/16/04 by Hon. Wayne R. Andersen : Plaintiff's motion for leave to file second amended class action complaint must be noticed before the Court. Mailed notice (ar) (Entered: 01/20/2004)
80 TRANSCRIPT of proceedings for the following date(s): 06/12/03 before the Honorable Martin C. Ashman (ar) (Entered: 01/21/2004)
82 MINUTE ORDER of 1/20/04 by Hon. Martin C. Ashman : Plaintiffs' motion for extension of time to file supplements to motion for costs for electronic discovery is granted [81−1]. Defendant's supplement will be due 02/16/04. Oral argument on plaintiffs' motion for costs for electronic discovery [66−1] is reset to 11:00 a.m. on 03/15/04. Oral argument date of 01/30/40 is vacated. Mailed notice (ar) (Entered: 01/21/2004)
88 MOTION by plaintiffs for leave to amend first amended class action complaint (Attachment); Notices (ar) (Entered: 02/06/2004)
83 SUPPLEMENT TO MEMORANDUM by plaintiffs' in support of motion for costs for electronic discovery and request for a determination of law [66−1]; Notice.

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01/27/2004 01/28/2004 02/03/2004 02/03/2004
02/05/2004 02/09/2004 02/17/2004 02/17/2004 02/17/2004 02/23/2004 02/24/2004 02/27/2004 03/02/2004
03/09/2004 03/10/2004 03/12/2004

(jmm) (Entered: 01/27/2004)
84 TRANSCRIPT of proceedings for the following date(s): 11/25/03 before the Honorable Martin C. Ashman (ar) (Entered: 01/28/2004)
86 MOTION by defendant for return of improperly−obtained computer back−up tapes (Attachment); Notice (ar) (Entered: 02/04/2004)
85 MINUTE ORDER of 2/3/04 by Hon. Wayne R. Andersen : By agreement of the parties, the defendant to answer plaintiffs' second amended complaint on or before 02/09/04. Mailed notice (ar) (Entered: 02/03/2004)
87 MINUTE ORDER of 2/3/04 by Hon. Martin C. Ashman : Status hearing set for 11:00 a.m. on 03/15/04. Defendant's motion for return of improperly−obtained computer back−up tapes is granted [86−1]. Those tapes are ordered to be turned over to the defendant's attorneys immediately. The defendant's attorneys should hold them safe and secure and not tamper with them. Plaintiffs' motion for case management order permitting second phase discovery [76−1] and for leave to take more than ten depositions [76−2] is denied in part and granted in part per the oral rulings stated in open court. Mailed notice (ar) Modified on 02/04/2004 (Entered: 02/04/2004)
90 MINUTE ORDER of 2/5/04 by Hon. Wayne R. Andersen : Plaintiffs' motions for leave to amend first amended class action complaint [88−1] and plaintiffs' motion to file second amended class action complaint are granted. Defendant to answer or otherwise plead by 02/27/04. No notice (ar) (Entered: 02/06/2004)
91 SECOND AMENDED CLASS ACTION COMPLAINT [89−1] by plaintiffs; jury demand; Notice (ar) (Entered: 02/12/2004)
92 UNOPPOSED MOTION by defendant CB Richard Ellis to file instanter its response beyond local rule page limit ; Notice (ar) (Entered: 02/17/2004)
93 OPPOSITION by defendant CB Richard Ellis to plaintiffs' motion for costs for electronic discovery [66−1] (ar) (Entered: 02/17/2004)
94 APPENDIX of materials filed by defendant CB Richard Ellis in support of response [93−1] to plaintiff's motion for costs (1 vol.) (ar) (Entered: 02/17/2004)
97 MOTION by plaintiffs for leave to file additional exhibit to plaintiffs' supplement to memorandum in support of motion for costs for electronic discovery and request for a determination of law (Attachments); Notice. (gma) (Entered: 03/10/2004)
98 AMENDED NOTICE by plaintiffs of motion for leave to file additional exhibit to plaintiffs' supplement to memorandum in support of motion for costs for electronic discovery and request a determination of law [97−1]. (gma) (Entered: 03/10/2004)
95 ANSWER by defendant CB Richard Ellis to second amended class action complaint; Notice [91−1] (ar) (Entered: 03/02/2004)
96 MINUTE ORDER of 3/2/04 by Hon. Wayne R. Andersen : Plaintiff's emergency motion to prevent the further destruction of evidence [22−1] is denied as moot. Parties entered an agreed order for the preservation of documents on 06/18/03 before Magistrate Judge Ashman [33−1]. Mailed notice (ar) Modified on 03/04/2004 (Entered: 03/04/2004)
99 MINUTE ORDER of 3/9/04 by Hon. Martin C. Ashman: Plaintiffs' motion for leave to file additional exhibit to plaintiffs' supplement to memorandum in support of motion for costs for electronic discovery and request for a determination of law is granted [97−1]. Mailed notice (gma) (Entered: 03/10/2004)
100 MINUTE ORDER of 3/10/04 by Hon. Wayne R. Andersen : For the reasons set forth in Judge Ashman's Report and Recommendation, we deny without prejudice plaintiff's motion for sanctions for spoliation of evidence [22−2]. (See reverse of minute order.) Mailed notice (ar) Modified on 03/11/2004 (Entered: 03/11/2004)
101 MOTION by plaintiffs for leave to file revised affidavit of Joel Bothof in support of motion for costs for electronic discovery (Attachments); Notice (ar) (Entered: 03/16/2004)

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03/15/2004 03/15/2004
03/15/2004 03/16/2004
03/24/2004 03/25/2004 04/06/2004 04/06/2004
04/12/2004 04/13/2004 04/20/2004
04/22/2004 04/22/2004 04/26/2004 04/26/2004 04/27/2004
05/06/2004 05/12/2004

102 NOTICE by JoDee Favre, counsel for plaintiff, of change of firm name (ar) (Entered: 03/16/2004)
103 MINUTE ORDER of 3/15/04 by Hon. Martin C. Ashman : Status hearing held and continued to 10:00 a.m. on 05/19/04. Oral argument held on plaintiffs' motion for costs for electronic discovery [66−1]. Said motion is taken under advisement. Ruling to be made by mail. Mailed notice (ar) (Entered: 03/16/2004)
107 MOTION by plaintiffs for extension of time to join additional parties ; Notice. (gma) (Entered: 04/07/2004)
104 MINUTE ORDER of 3/16/04 by Hon. Martin C. Ashman : Plaintiffs' motion for leave to file revised affidavit of Joel Bothof in support of motion for costs for electronic discovery is granted [101−1]. Defendant's unopposed motion to file instanter its response beyond local rule page limit is granted [92−1]. No notice (ar) (Entered: 03/16/2004)
106 SUGGESTION of death of plaitniff Dondi Plank by plaintiffs (ar) (Entered: 03/26/2004)
105 TRANSCRIPT of proceedings for the following date(s): 07/31/03 before the Honorable Martin C. Ashman (ar) (Entered: 03/25/2004)
108 MOTION by plaintiffs to substitute Norma Plank Fethler, as successor in interest to plaintiff Dondi Plank (Attachments); Notice. (gma) (Entered: 04/07/2004)
109 MINUTE ORDER of 4/6/04 by Hon. Martin C. Ashman: Plaintiffs' motion for extension of time to join additional parties is granted based on the representations of the attorney for the plaintiffs [107−1]. Plaintiffs' motion to substitute Norma Plank Fethler, as successor in interest to plaintiff Dondi Plank is granted [108−1]. Mailed notice (gma) (Entered: 04/07/2004)
111 MOTION by plaintiffs for leave to file third amended class action complaint (Attachments); Notice. (gma) (Entered: 04/23/2004)
110 TRANSCRIPT of proceedings for the following date(s): 2/3/04 Before Honorable Martin Ashman. (gma) (Entered: 04/14/2004)
114 MOTION by plaintiffs Amy Wiginton, Kristine Moran, Andrea Corey, and Olivia Knapp for leave to file second supplement to their memorandum in support of motion for costs for electronic discovery (Attachments); Notice. (cem) (Entered: 04/28/2004)
112 MINUTE ORDER of 4/22/04 by Hon. Wayne R. Andersen: Plaintiffs' motion for leave to file third amended class action complaint is granted [111−1]. No notice (gma) (Entered: 04/23/2004)
113 THIRD AMENDED CLASS ACTION COMPLAINT [91−1], [89−1], [34−1], [1−1] by plaintiffs; jury demand; Notice. (gma) (Entered: 04/23/2004)
115 MINUTE ORDER of 4/26/04 by Hon. Martin C. Ashman : Michael L. Duffy is given leave to file his appearance as additional counsel for plaintiffs. No notice (cem) (Entered: 04/28/2004)
116 ATTORNEY APPEARANCE for plaintiffs Amy Wiginton, Kristine Moran, Norma Plank Fethler, Andrea Corey and Olivia Knapp by Michael Lawrence Duffy; Notice. (cem) (Entered: 04/28/2004)
117 MINUTE ORDER of 4/27/04 by Hon. Martin C. Ashman : Oral argument held on plaintiffs' motion for leave to file second supplement to their memorandum in support of motion for costs for electronic discovery [114−1]. Said motion is denied for the reasons stated in open court. Mailed notice (cem) (Entered: 04/28/2004)
118 MOTION by defendant to quash Pamela Perry deposition subpoena (Attachments); Notice. (gma) (Entered: 05/13/2004)
119 MINUTE ORDER of 5/12/04 by Hon. Martin C. Ashman: Oral argument held on defendant's motion to quash Pamela Perry deposition subpoena. Said motion is denied without prejudice for the reasons stated in open court [118−1]. The parties are ordered to submit the questions to the therapist as stated in open court. Mailed

Case: 1:02-cv-6832 As of: 01/17/2011 04:14 PM CST 15 of 33

05/19/2004 05/19/2004 05/19/2004 05/27/2004 05/27/2004 06/09/2004 06/09/2004 06/15/2004
06/17/2004 06/18/2004 06/18/2004 06/22/2004
06/23/2004
06/28/2004 06/30/2004

notice (gma) (Entered: 05/13/2004)
SCHEDULE set on 5/19/04 by Hon. Martin C. Ashman : Status hearing held and continued to 10:00 8/2/04. Fact discovery ordered closed on 7/30/04. Mailed notice (is) (Entered: 05/19/2004)
120 UNOPPOSED MOTION by defendant for leave to file instanter its answer and affirmative defenses to third amended class action complaint (Attachments); Notice. (gma) (Entered: 05/28/2004)
122 ANSWER by defendant and affirmative defenses to third amended class action complaint [113−1]. (gma) (Entered: 05/28/2004)
121 MINUTE ORDER of 5/27/04 by Hon. Wayne R. Andersen: Defendant's unopposed motion for leave to file instanter its answer and affirmative defenses to third amended class action complaint is granted [120−1]. Mailed notice (gma) (Entered: 05/28/2004)
123 ANSWER by defendant and affirmative defenses to third amended class action complaint [113−1]; Notice. (gma) (Entered: 05/28/2004)
124 MOTION by plaintiffs to compel discovery prior to the July 15, 2004 deadline for filing plaintiffs' motion for class certification ; Notice. (gma) (Entered: 06/16/2004)
125 MEMORANDUM by plaintiffs in support of their motion to compel discovery prior to the July 15, 2004 deadline for filing plaintiffs' motion for class certification [124−1] (Attachments). (gma) (Entered: 06/16/2004)
126 MINUTE ORDER of 6/15/04 by Hon. Martin C. Ashman: Oral argument on plaintiffs' motion to compel discovery prior to the July 15, 2004 deadline for filing plaintiffs' motion for class certification held [124−1]. Draft order to be submitted. Defendant's response to plaintiffs' motion to compel discovery regarding requests to admit to be filed by 6/18/04. Oral argument on plaintiffs' motion to compel discovery regarding requests to admit set for 6/22/04 at 11:30 a.m. Mailed notice (gma) Modified on 06/16/2004 (Entered: 06/16/2004)
128 MOTION by defendant to compel class evidence (Attachments); Notice. (gma) (Entered: 06/23/2004)
127 RESPONSE by defendant to plaintiffs' motion to compel concerning requests to admit [124−1] (Attachments). (gma) (Entered: 06/21/2004)
129 MOTION by plaintiffs to compel CB Richard Ellis' clarification of and supplementation to its privilege log deficiencies (Attachments); Notice. (gma) (Entered: 06/23/2004)
130 MINUTE ORDER of 6/22/04 by Hon. Martin C. Ashman: Plaintiffs' motion to compel CB Richard Ellis' clarification of and supplementation to its privilege log deficiencies is withdrawn without prejudice [129−1]. Oral argument held on plaintiffs' motion to compel discovery regarding requests to admit [124−1]. Said motion is denied for the reasons stated in open court. Oral argument held and continued to 6/23/04 at 2:00 p.m. on defendant's motion to compel class evidence [128−1]. Mailed notice (gma) (Entered: 06/23/2004)
131 MINUTE ORDER of 6/23/04 by Hon. Martin C. Ashman: Oral argument held on defendant's motion to compel class evidence [128−1]. Said motion is granted per the oral rulings stated in court. By agreement discovery is extended to 8/16/04. Class certification deadline is extended to 8/30/04. Draft order to be submitted. No notice (gma) (Entered: 06/24/2004)
132 TRANSCRIPT of proceedings for the following date(s): 3/15/04 Before Honorable Martin C. Ashman. (gma) (Entered: 06/29/2004)
133 MINUTE ORDER of 6/30/04 by Hon. Martin C. Ashman: Defendant's motion to compel class evidence is granted in part and denied in part. The parties' oral motion to extend discovery and class certification deadline is granted. (See reverse of minute order.) Mailed notice (gma) (Entered: 07/01/2004)

Case: 1:02-cv-6832 As of: 01/17/2011 04:14 PM CST 16 of 33

07/01/2004 07/08/2004 07/08/2004 07/12/2004 07/13/2004
07/13/2004
07/27/2004 08/04/2004
08/09/2004
08/16/2004 08/16/2004 08/16/2004 08/19/2004 08/19/2004
08/23/2004 08/25/2004 08/25/2004 08/26/2004

134 TRANSCRIPT of proceedings for the following date(s): 5/12/04 Before Honorable Martin C. Ashman. (gma) (Entered: 07/02/2004)
136 RENEWED MOTION by defendant to quash Pamela Perry deposition subpoena (Attachments); Notice. (gma) (Entered: 07/14/2004)
138 MOTION by defendant to quash Lori Shapiro deposition subpoena (Attachments); Notice. (gma) (Entered: 07/14/2004)
135 TRANSCRIPT of proceedings for the following date(s): 5/19/04, 6/22/04 Before Honorable Martin C. Ashman. (135−1 through 135−2) (gma) (Entered: 07/13/2004)
137 MINUTE ORDER of 7/13/04 by Hon. Martin C. Ashman: Status hearing set for 8/4/04 at 10:00 a.m. Defendant's renewed motion to quash Pamela Perry deposition subpoena [136−1] is continued to 8/4/04 at 10:00 a.m. Mailed notice (gma) (Entered: 07/14/2004)
139 MINUTE ORDER of 7/13/04 by Hon. Martin C. Ashman: Oral argument held on defendant's motion to quash Lori Shapiro deposition subpoena [138−1]. Said motion is granted for the reasons stated in open court. Mailed notice (gma) (Entered: 07/14/2004)
SCHEDULE set on 7/27/04 by Hon. Martin C. Ashman : Status hearing reset to 10:00 8/4/04 . Telephoned notice (is) (Entered: 07/27/2004)
140 MINUTE ORDER of 8/4/04 by Hon. Martin C. Ashman: Status hearing held and continued to 9/2/04 at 10:00 a.m. Defendant's renewed motion to quash Pamela Perry deposition subpoena is granted [136−1]. The deposition of Pamela Perry is barred, and the use of Pamela Perry by the defendant at the trial of the case is barred until further order of court. Mailed notice (gma) (Entered: 08/05/2004)
141 MINUTE ORDER of 8/9/04 by Hon. Martin C. Ashman: Plaintiffs' motion for costs for electronic discovery is granted in part and denied in part [66−1]. Entered Memorandum Opinion and Order. Mailed notice by judge's staff. (gma) (Entered: 08/10/2004)
142 OBJECTIONS by plaintiffs to Magistrate Judge Ashman's August 4, 2004 ruling quashing notice of deposition for Pamela Perry [140−2] (Attachments). (gma) (Entered: 08/17/2004)
159 MOTION by plaintiffs to compel defendant's production of documents (Attachments); Notice. (gma) (Entered: 09/03/2004)
160 APPENDIX filed by plaintiffs of unreported authority in support of plaintiffs' motion to compel defendant's production of documents [159−1] (Attachments). (gma) (Entered: 09/03/2004)
143 UNOPPOSED MOTION by plaintiffs for extension of time to file objections to Magistrate Judge Ashman's 08/09/2004 order on plaintiffs' motion for costs for electronic discovery ; Notice. (jmp) (Entered: 08/20/2004)
144 MINUTE ORDER of 8/19/04 by Hon. Wayne R. Andersen : Plaintiff's unopposed motion for extension of time to file objections to Magistrate Ashman's 08/09/2004 order on plaintiffs' motion for costs for electronic discovery is granted [143−1] to 09/03/2004. Parties need not appear on 09/02/2004, which is when this motion was set to be heard. Mailed notice (jmp) (Entered: 08/20/2004)
145 TRANSCRIPT of proceedings for the following date(s): 8/4/04 Before Honorable Martin C. Ashman. (gma) (Entered: 08/24/2004)
146 ATTORNEY APPEARANCE for defendant by Tracy Marie Billows. (gma) (Entered: 08/26/2004)
150 UNOPPOSED MOTION by plaintiffs for leave to file motion for class certification in excess of fifteen pages ; Notice. (gma) (Entered: 08/30/2004)
147 RESPONSE by defendant to plaintiffs' objections to magistrate's ruling quashing notice of deposition for Pamela Perry [142−1] (Attachments). (gma) (Entered: 08/27/2004)

Case: 1:02-cv-6832 As of: 01/17/2011 04:14 PM CST 17 of 33

08/27/2004
08/29/2004
08/29/2004
08/30/2004 08/30/2004 08/31/2004 08/31/2004 08/31/2004 08/31/2004 08/31/2004 09/02/2004 09/02/2004 09/02/2004 09/02/2004 09/02/2004

148 MOTION by defendant to set a summary judgment briefing schedule , to defer consideration of class certification pending ruling on summary judgment , and for leave to file instanter defendant's motion for summary judgment with a consolidated memorandum of law in excess of 15 pages (Attachments); Notice. (gma) (Entered: 08/30/2004)
149 MINUTE ORDER of 8/29/04 by Hon. Wayne R. Andersen: Motion is granted for leave to file their motion for summary judgment instanter [148−3]. Memorandum of law in excess of 15 pages is granted. Briefing schedule on the motion for summary judgment is set forth as follows: Plaintiff to file a response on or before 10/1/04. Reply on or before 10/15/04. Ruling will be made by mail. Parties need not appear on 9/2/04, which is when this motion was set to be heard. Motion to defer consideration of class certification pending ruling on motion for summary judgment is set for 9/23/04 at 9:00 a.m. [148−2]. Mailed notice (gma) Modified on 08/30/2004 (Entered: 08/30/2004)
151 MINUTE ORDER of 8/29/04 by Hon. Wayne R. Andersen: Plaintiff's motion for leave to file motion for class certification in excess of fifteen pages is granted [150−1]. Parties need not appear in court on 9/2/04, which is when this motion was set to be heard. Mailed notice (gma) Modified on 08/30/2004 (Entered: 08/30/2004)
152 OPPOSITION by defendant to plaintiffs' motion to compel production of documents (Attachments); Notice. (gma) (Entered: 08/31/2004)
153 APPENDIX by defendant of unreported authority in support of defendant's opposition to plaintiffs' motion to compel production of documents [152−1] (Attachments). (gma) (Entered: 08/31/2004)
154 ATTORNEY APPEARANCE for defendant by Scott A. Carlson. (gma) (Entered: 09/01/2004)
164 MOTION by plaintiffs for class certification ; Notice. (gma) (Entered: 09/13/2004)
165 MEMORANDUM by plaintiffs in support of plaintiffs' motion for class certification redacted version − not filed under seal [164−1]. (gma) (Entered: 09/13/2004)
166 MEMORANDUM by plaintiffs in support of plaintiffs motion for class certification unredacted version [164−1]. (RESTRICTED) (gma) (Entered: 09/13/2004)
167 MOTION by plaintiff Kristine Moran to sever her pregnancy discrimination claim and for leave to file an individual complaint for pregnancy discrimination ; Appendix of unreported authority in support (Attachments). (gma) (Entered: 09/13/2004)
155 MOTION by defendant for summary judgment on plaintiffs' claims ; Notice. (gma) (Entered: 09/03/2004)
156 LOCAL RULE 56.1(a)(3) CONSOLIDATED STATEMENT by defendant of material facts as to which there is no genuine dispute in support of its motion for summary judgment on plaintiff's claims. (gma) (Entered: 09/03/2004)
157 CONSOLIDATED MEMORANDUM OF LAW by defendant in support of its motion for summary judgment on plaintiffs' claims [155−1] (Attachments). (gma) (Entered: 09/03/2004)
158 APPENDIX filed by defendant of materials in support of its motion for summary judgment on plaintiffs' claims [155−1]. (158−1 through 158−4) (gma) (Entered: 09/03/2004)
161 MINUTE ORDER of 9/2/04 by Hon. Martin C. Ashman: Status hearing held and continued to 9/23/04 at 10:30 a.m. Oral argument held on plaintiffs' motion to compel defendant's production of documents [159−1]. Said motion is granted in part and denied in part as related in open court. Mailed notice (gma) (Entered: 09/03/2004)

Case: 1:02-cv-6832 As of: 01/17/2011 04:14 PM CST 18 of 33

09/02/2004 09/02/2004 09/03/2004 09/03/2004 09/09/2004
09/10/2004 09/10/2004 09/10/2004 09/13/2004 09/13/2004 09/13/2004 09/14/2004 09/15/2004 09/16/2004

162 MINUTE ORDER of 9/2/04 by Hon. Martin C. Ashman: (Entered Order Allowing Plaintiffs to Remove Confidential Documents Attached to Plaintiffs' Motion to Compel From Our Court File.) No notice (gma) (Entered: 09/03/2004)
168 UNOPPOSED MOTION by plaintiffs for extension of time to file objections to Magistrate Judge Ashman's August 9, 2004 order on plaintiffs' motion for costs for electionic discovery ; Notice. (gma) (Entered: 09/13/2004)
163 EXHIBITS 8 AND 9 to the affidavit of Elizabeth A. Fegan in support of plaintiffs' motion for reconsideration of the court's August 29, 2004 order, to strike the briefing schedule on summary judgment, and to begin merits discovery pursuant to Fed. R. Civ. P. 56(f). (RESTRICTED) (gma) (Entered: 09/07/2004)
169 MOTION by plaintiffs for reconsideration of the court's August 29, 2004 order, to strike the briefing schedule on summary judgment, and to begin merits discovery pursuant to Fed. R. Civ. P. 56(f) (Attachments); Notice. (gma) (Entered: 09/13/2004)
172 MINUTE ORDER of 9/9/04 by Hon. Wayne R. Andersen: Plaintiffs' motion for class certification [164−1] and plaintiff Moran's motion to sever her pregnancy discrimination claim [167−1] for leave to file an individual complaint for pregnancy discrimination [167−2] is entered and continued to 9/14/04 at 8:45 a.m. Plaintiff's motion for extension of time to file objections to Magistrate Judge Ashman's August 9, 2004 order on plaintiffs' motion for costs for electionic discovery is granted [168−1]. Plaintiffs' motion for reconsideration of the court's August 29, 2004 order, to strike the briefing schedule on summary judgment, and to begin merits discovery pursuant to Fed. R. Civ. P. 56(f) [169−1] is entered and continued to 9/14/04 at 8:45 a.m. No notice (gma) (Entered: 09/13/2004)
170 APPENDIX filed by plaintiffs of unreported authority in support of plaintiffs' motion to compel defendants production of documents (Attachments). (gma) (Entered: 09/13/2004)
171 OBJECTIONS by plaintiffs to Magistrate Judge Ashman's August 9, 2004 ruling on plaintiffs' motion for costs for electronic discovery (Attachments). (gma) (Entered: 09/13/2004)
173 MINUTE ORDER of 9/10/04 by Hon. Wayne R. Andersen: The briefing schedule set on 8/29/04 [149−1] is vacated. Motion [148−1] is referred to the magistrate judge. Mailed notice (gma) (Entered: 09/13/2004)
174 REFERRAL ORDER of 9/13/04 Referring to Hon. Martin C. Ashman from Hon. Wayne R. Andersen the motion to defer consideration of class certification pending ruling on summary judgment [148−2] pursuant to Local Rule 72.1. (For further detail see order.) Mailed notice (gma) (Entered: 09/14/2004)
178 UNOPPOSED MOTION by defendant for extension of time to respond to plaintiffs' objections to Magistrate Ashman's ruling concerning cost shifting ; Notice. (gma) (Entered: 09/20/2004)
182 UNOPPOSED MOTION by defendant for extension of time to respond to plaintiffs' objections to Magistrate Ashman's ruling concerning cost shifting ; Notice. (gma) (Entered: 09/28/2004)
179 MOTION by defendant to set a summary judgment briefing schedule and to defer consideration of class certification pending ruling on summary judgment ; Notice. (gma) (Entered: 09/24/2004)
175 REFERRAL ORDER of 9/15/04 Referring to Hon. Martin C. Ashman from Hon. Wayne R. Andersen the motion [164−1] to set a briefing schedule and motion [167−1] for decision. (For further detail see order.) Mailed notice (gma) (Entered: 09/16/2004)
176 MINUTE ORDER of 9/16/04 by Hon. Wayne R. Andersen: Defendant's unopposed motion for extension of time to respond to plaintiff's objections to Magistrate Judge Ashman's ruling concerning cost shifting is granted to 10/5/04. Mailed notice (gma) (Entered: 09/17/2004)

Case: 1:02-cv-6832 As of: 01/17/2011 04:14 PM CST 19 of 33

09/16/2004 09/16/2004 09/17/2004 09/23/2004
09/23/2004
09/27/2004 09/29/2004 09/29/2004 10/05/2004 10/06/2004 10/20/2004 10/22/2004 10/22/2004 10/29/2004

177 RESPONSE by plaintiffs to defendant's motion to set a summary judgement briefing schedule and to defer consideration of class certification pending ruling on summary judgment [148−2] (Attachments); Notice. (RESTRICTED) (gma) (Entered: 09/20/2004)
180 NOTICE by plaintiffs of motion for class certification [164−1], motion to sever her pregnancy discrimination claim [167−1] and for leave to file an individual complaint for pregnancy discrimination [167−2]. (gma) (Entered: 09/24/2004)
183 UNOPPOSED MOTION by plaintiffs for leave to submit additional exhibit to objections to Magistrate Judge Ashman's August 9, 2004 ruling on plaintiffs' motion for costs for electronic discovery (Attachments); Notice. (gma) (Entered: 09/28/2004)
181 MINUTE ORDER of 9/23/04 by Hon. Martin C. Ashman: Status hearing held and continued to 1/12/05 at 10:00 a.m. Oral argument held on plaintiff Kirstine Moran's motion to sever her pregnancy discrimination claim [167−1] and for leave to file an individual complaint for pregnancy discrimination [167−2]. Said motion is denied for the reasons stated in open court. Defendant's motion to set briefing schedule is granted [148−2]. Defendant's motion for summary judgment on plaintiffs' claims is withdrawn without prejudice [155−1]. Defendant's response to plaintiffs' motion for class certification [164−1] to be filed by 11/22/0. Reply due 12/31/04. Defendant to reveal all experts within twenty one days. A total of 20 depositions to be taken. Close of fact discovery by 1/31/05 regarding the merits of the 5 class representative's indivual claims. Mailed notice (gma) (Entered: 09/24/2004)
184 MINUTE ORDER of 9/23/04 by Hon. Wayne R. Andersen: Defendant's unopposed motion for extension of time to respond to plaintiffs' objections to Magistrate Ashman's ruling concerning cost shifting is granted to 10/5/04 [182−1]. Plaintiffs' unopposed motion for leave to submit additional exhibit to objections to Magistrate Judge Ashman's August 2004 ruling on plaintiffs' motion for costs for electronic discovery is granted [183−1]. Mailed notice (gma) (Entered: 09/28/2004)
185 MINUTE ORDER of 9/27/04 by Hon. Wayne R. Andersen: Motion for summary judgment [155−1] is withdrawn without prejudice. Mailed notice (gma) (Entered: 09/28/2004)
186 APPENDIX filed by plaintiffs in support of plaintiffs' motion for class certification [164−1] redacted version − not filed under seal. (186−1 through 186−5) (gma) (Entered: 09/30/2004)
187 NOTICE by plaintiffs of filing volumes 10−13 of the appendiz in support of plaintiffs' motion for class certification. (gma) (Entered: 09/30/2004)
188 RESPONSE by defendant to plaintiffs' objections to Magistriat Judge Ashman's ruling concerning electronic discovery costs [171−1] (Attachments). (gma) (Entered: 10/06/2004)
189 OBJECTIONS by defendant to Magistrate Judge Ashman's September 23, 2004 rulings re−opening discovery and deferring summary judgment briefing (Attachments); Notice. (gma) (Entered: 10/07/2004)
190 ATTORNEY APPEARANCE for plaintiffs by Elizabeth A. Fegan; Notice. (gma) (Entered: 10/21/2004)
191 OPPOSITION by plaintiffs to defendant's objections to Magistrate Judge Ashman's 9/23/04 rulings concerning re−opened discovery and summary judgment briefing [189−1] (Attachments). (gma) (Entered: 10/25/2004)
192 APPENDIX filed by plaintiffs of unreported authorities in support of plaintiffs' opposition to defendant's objections to Magistrate Judge Ashman's September 23, 2004 rulings concerning re−opened discovery and summary judgment briefing [191−1] (Attachments). (gma) (Entered: 10/25/2004)
193 REPLY BRIEF by defendant in support of its objections to Magistrate Judge Ashman's September 23, 2004 rulings re−opening discovery and deferring summary judgment briefing [189−1] (Attachments); Notice. (gma) (Entered:

Case: 1:02-cv-6832 As of: 01/17/2011 04:14 PM CST 20 of 33

11/04/2004 11/12/2004 11/18/2004
11/18/2004 11/19/2004 11/29/2004 11/29/2004 11/29/2004 11/29/2004 11/29/2004 11/29/2004 11/30/2004 11/30/2004 12/02/2004
12/02/2004
12/09/2004 12/13/2004

11/02/2004)
194 TRANSCRIPT of proceedings for the following date(s): 5/22/03, 6/17/03, 9/9/04 Before Honorable Wayne R. Andersen. (194−1 through 194−3) (gma) (Entered: 11/05/2004)
195 UNOPPOSED MOTION by defendant for leave to file defendant's memorandum of law in opposition to class certification in excess of 15 pages ; Notice. (air) (Entered: 11/22/2004)
196 MINUTE ORDER of 11/18/04 by Hon. Wayne R. Andersen: Defendant's unopposed motion for leave to file defendant's memorandum of law in opposition to class certification in excess of 15 pages is granted [195−1]. Mailed notice (air) (Entered: 11/22/2004)
207 UNOPPOSED MOTION by defendant for extension of time to file its memorandum of law in opposition to class certification ; Notice. (gma) (Entered: 12/06/2004)
197 AFFIDAVIT of Nancy Flynn; Notice. (RESTRICTED). (gcy) (Entered: 11/22/2004)
198 BRIEF by defendant in opposition to plaintiffs' motion for class certification [164−1] Redacted version − Not filed under seal; Notice. (gma) (Entered: 11/30/2004)
199 BRIEF by defendant in opposition to plaintiffs' motion for class certification [164−1] Unredacted version − Filed under seal. (RESTRICTED) (gma) (Entered: 11/30/2004)
200 APPENDIX filed by defendant of materials in support of its brief in opposition to plaintiffs' motion for class certification [164−1] Volume I. (RESTRICTED) (gma) (Entered: 11/30/2004)
201 APPENDIX filed by defendant of materials in support of its brief in opposition to plaintiffs' motion for class certification [164−1] Volume II. (RESTRICTED) (gma) (Entered: 11/30/2004)
202 APPENDIX filed by defendant of materials in support of its brief in opposition to plaintiffs' motion for class certification [164−1] Volume III. (RESTRICTED) (gma) (Entered: 11/30/2004)
203 APPENDIX filed by defendant of materials in support of its brief in opposition to plaintiffs' motion for class certification [164−1]. (203−1 through 203−2) (gma) (Entered: 11/30/2004)
204 EMERGENCY MOTION by plaintiff to enforce court's order allowing individual merits discovery (Attachments); Notice. (gma) (Entered: 12/03/2004)
205 APPENDIX filed by plaintiffs of authorities in support of plaintiffs' emergency motion to enforce court's order allowing individual merits discovery [204−1]. (gma) (Entered: 12/03/2004)
206 MINUTE ORDER of 12/2/04 by Hon. Martin C. Ashman: Plaintiffs' emergency motion to enforce court's order allowing individual merits discovery [204−1] is entered and continued to 12/13/04 at 10:15 a.m. Mailed notice (gma) (Entered: 12/03/2004)
208 MINUTE ORDER of 12/2/04 by Hon. Wayne R. Andersen: Defendant's unopposed motion for extension of time to file its memorandum of law in opposition to class certification is granted to 12/6/04 [207−1]. Reply is extended to 12/23/04. Ruling will be made by mail. Mailed notice (gma) (Entered: 12/06/2004)
209 MINUTE ORDER of 12/9/04 by Hon. Wayne R. Andersen: The Court denies the defendant's objections to Judge Ashman's rulings of 09/23/04 [189−1]. (See reverse of minute order.) Mailed notice (cdy) (Entered: 12/10/2004)
210 MINUTE ORDER of 12/13/04 by Hon. Martin C. Ashman : Status hearing re−set for 2/18/05 at 10:00 a.m. Plaintiff's emergency motion to enforce court's allowing

Case: 1:02-cv-6832 As of: 01/17/2011 04:14 PM CST 21 of 33

12/13/2004 12/17/2004 12/21/2004 01/04/2005 01/13/2005
01/21/2005 01/21/2005
01/21/2005 01/21/2005 01/21/2005 01/21/2005 01/27/2005
01/27/2005 02/09/2005 02/09/2005 02/10/2005 02/10/2005

individual merits discovery [204−1] is terminated as moot. Discovery cut−off regarding the taking of twenty depositions is extended to 2/28/05. Status hearing of 1/12/05 is stricken. Mailed notice (gcy) (Entered: 12/14/2004)
211 MINUTE ORDER of 12/13/04 by Hon. Wayne R. Andersen : Reply to class certification is extended to 1/7/05. Ruling will be made by mail. Mailed notice (gcy) (Entered: 12/14/2004)
212 NOTICE by defendant of supplemental authority (Attachments); Notice. (gma) (Entered: 12/20/2004)
213 TRANSCRIPT of proceedings for the following date(s): 1/29/03, 4/23/03, 8/19/03, 9/2/04 Before Honorable Martin C. Ashman. (213−1 through 213−4) (gma) (Entered: 12/22/2004)
214 UNOPPOSED MOTION by plaintiffs for extension of time to file reply in support of motion for class certification ; Notice (ar) (Entered: 01/11/2005)
215 MINUTE entry before Judge Wayne R. Andersen: Unopposed motion for extension of time to file reply 214 in support of motion for class certification 164 is granted until 1/21/05. Ruling will be made by mail. Mailed notice (gma, ) (Entered: 01/19/2005)
216 RESTRICTED DOCUMENTS by plaintiff pursuant to LR 26.2 and the protective order entered by minute order dated June 12, 2003. (RESTRICTED)(gma, ) (Entered: 01/24/2005)
217 UNOPPOSED MOTION by Plaintiffs for leave to file reply in support of motion for class certification in excess of fifteen pages.(gma, ) Additional attachment(s) added on 1/24/2005 (gma, ). Additional attachment(s) added on 1/24/2005 (gma, ). (Entered: 01/24/2005)
218 NOTICE of Motion by plaintiffs for presentment of MOTION by Plaintiffs for leave to file brief in excess of 15 pages 217 before Honorable Wayne R. Andersen on 1/27/2005 at 09:00 AM. (gma, ) (Entered: 01/24/2005)
219 APPENDIX by plaintiffs of unreported authorities cited in plaintiffs' reply in support of motion for class certification 164 . (cdy, ) (Entered: 01/27/2005)
221 APPENDIX by Amy Wiginton, Kristine Moran, Andrea Corey, Olivia Knapp, Norma Plank Fethler of documents submitted with reply in support of plaintiff's motion for class certification. (rbf, ) (Entered: 01/28/2005)
222 APPENDIX of unreported authorities citated in plaintiffs' reply in support of motion for class certification by Amy Wiginton, Kristine Moran, Andrea Corey, Olivia Knapp, Norma Plank Fethler (Attachments). (jmp, ) (Entered: 01/31/2005)
220 MINUTE entry before Judge Wayne R. Andersen : Motion for leave to file in excess of fifteen (15) pages 217 (Reply in support of their motion for class certification) is granted. Ruling will be made by mail. Mailed notices. (tsa, ) (Entered: 01/28/2005)
254 REPLY by Plaintiffs in support of plaintiffs' motion for class certification 164 ; Notice. (cem, ) (Entered: 06/21/2005)
223 UNOPPOSED MOTION by Plaintiffs Amy Wiginton, Kristine Moran, Andrea Corey, Olivia Knapp, Norma Plank Fethler to stay discovery pending a class certification decision. (rbf, ) (Entered: 02/10/2005)
224 NOTICE of Unopposed Motion by Elizabeth A. Fegan for presentment of motion to stay of discovery pending class certification decision 223 before Honorable Martin C. Ashman on 2/15/2005 at 10:30 AM. (rbf, ) (Entered: 02/10/2005)
225 MINUTE entry before Judge Martin C. Ashman : Status hearing reset to 2/15/2005 at 10:30 AM. Notified counsel by telephone. (is, ) (Entered: 02/10/2005)
226 MOTION by Defendant CB Richard Ellis for modification of the Court's agreed 06/18/03 order for preservation of documents (Attachments) (rbf, ) Modified on 1/26/2006 (ym, ). (Entered: 02/11/2005)

Case: 1:02-cv-6832 As of: 01/17/2011 04:14 PM CST 22 of 33

02/10/2005
02/11/2005 02/15/2005
02/17/2005 03/04/2005 03/08/2005 03/18/2005 03/18/2005 03/18/2005 03/18/2005 04/27/2005 04/27/2005
04/29/2005 04/29/2005 04/29/2005 05/04/2005
05/04/2005

227 NOTICE of Motion by CB Richard Ellis for presentment of motion for modification of the court's agreed 06/18/03 order for preservation of documents 226 before Honorable Martin C. Ashman on 2/15/2005 at 10:30 AM. (rbf, ) (Entered: 02/11/2005)
228 MINUTE entry before Judge Martin C. Ashman : Plaintiffs' unopposed motion to stay discovery pending a class certification decision 223 is granted. Mailed notice. (is, ) (Entered: 02/11/2005)
229 MINUTE entry before Judge Martin C. Ashman : Status hearing held on 2/15/2005. Defendants' motion for modification of the court's agreed 6/18/2003 order for preservation of documents 226 is granted in part by agreement. The second part of defendants' motion for modification of the court's agreed 6/18/2003 order for preservation of documents 226 is entered and continued to 3/18/2005 at 10:00 AM. Mailed notice. (is, ) (Entered: 02/15/2005)
230 NOTICE by plaintiffs of firm name change. (ntf, ) (Entered: 02/22/2005)
231 TRANSCRIPT of proceedings for the following dates: 12/02/2004; Before the Honorable Martin C. Ashman. (mjc, ) (Entered: 03/07/2005)
232 TRANSCRIPT of proceedings for the following dates: 02/15/05; Before the Honorable Martin C. Ashman. (mjc, ) (Entered: 03/09/2005)
233 MINUTE entry before Judge Martin C. Ashman: Enter agreed modified order for preservation of documents. Status hearing set for 5/18/2005 at 10:00 AM. Mailed notice (gma, ) (Entered: 03/22/2005)
234 AGREED MODIFIED ORDER Signed by Judge Martin C. Ashman on 3/18/2005 for preservation of documents. Mailed notice (gma, ) (Entered: 03/22/2005)
235 JOINT STIPULATION by plaintiff, defendant concerning electronic discovery (gma, ) (Entered: 03/22/2005)
236 TRANSCRIPT of proceedings for the following dates: 09/23/05; Before the Honorable Martin C. Ashman. (mjc, ) (Entered: 03/23/2005)
237 UNOPPOSED MOTION by Defendant CB Richard Ellis to withdraw the appearances of Sari Alamuddin and Deborah Davidson and for leave to substitute the appearance of Anne Duprey(gma, ) (Entered: 04/28/2005)
238 NOTICE of Motion by Tracy Marie Billows for presentment of UNOPPOSED MOTION by Defendant CB Richard Ellis to withdraw the appearances of Sari Alamuddin and Deborah Davidson and for leave to substitute the appearance of Anne Duprey 237 before Honorable Wayne R. Andersen on 5/5/2005 at 09:00 AM. (gma, ) (Entered: 04/28/2005)
239 MOTION by Plaintiffs for leave to take deposition of Aimee Smith and to restrict defendant from communicating with Aimee Smith about subject matter of testimony until after the deposition. (RESTRICTED) (mjc, ) (Entered: 05/02/2005)
240 NOTICE of Motion by plaintiffs for presentment of motion for leave to take deposition of Aimee Smith 239 before Honorable Martin C. Ashman on 5/3/2005 at 10:30 a.m. (mjc, ) (Entered: 05/02/2005)
241 SECOND NOTICE by defendant CB Richard Ellis of supplemental authority ; Notice. (mjc, ) (Entered: 05/03/2005)
242 MINUTE entry before Judge Martin C. Ashman : Oral argument held on 5/4/2005 regarding plaintiffs' motion for leave to take deposition 239 . Plaintiffs' motion for leave to take deposition of Aimee Smith and to restrict defendant from communicating with Aimee Smith about subject matter of testimony until after the deposition 239 is granted per the oral rulings stated in open court. Status hearing reset to 6/8/2005 at 10:00 AM. Status hearing of 5/18/2005 is stricken. Judicial staff mailed notice (is, ) (Entered: 05/04/2005)
243 DOCUMENT entered in error (gcy, ). Modified on 5/6/2005 (gcy, ). (Entered: 05/06/2005)

Case: 1:02-cv-6832 As of: 01/17/2011 04:14 PM CST 23 of 33

05/04/2005 05/05/2005
05/20/2005 05/20/2005 05/20/2005 05/25/2005
06/02/2005 06/07/2005 06/07/2005 06/08/2005
06/22/2005 07/13/2005
07/13/2005
07/21/2005 07/22/2005

244 ATTORNEY Appearance for Defendant CB Richard Ellis by Anne Elizabeth Duprey. (mjc, ) (Entered: 05/06/2005)
245 MINUTE entry before Judge Wayne R. Andersen : Motion to substitute attorney 237 is granted. Anne Duprey is given leave to file her appearance. Motion to withdraw as attorney 237 is granted. Sari Alamuddin and Deborah Davidson are given leave to withdraw their appearances. Judicial staff mailed notice (tsa, ) (Entered: 05/09/2005)
246 MOTION by Defendant for reconsideration of the court's May 4, 2005 order and defendant's request for Rule 37 sanctions (gma, ) (Entered: 05/24/2005)
247 NOTICE of Motion by Tracy Marie Billows for presentment of MOTION by Defendant for reconsideration of the court's May 4, 2005 order and defendant's request for Rule 37 sanctions 246 before Honorable Martin C. Ashman on 5/25/2005 at 10:30 AM. (gma, ) (Entered: 05/24/2005)
248 MEMORANDUM by CB Richard Ellis in Support of MOTION by Defendant for reconsideration of the court's May 4, 2005 order and defendant's request for Rule 37 sanctions 246 (gma, ) (Entered: 05/24/2005)
249 MINUTE entry before Judge Martin C. Ashman : Motion hearing held regarding defendant's motion for reconsideration. Defendant's motion for reconsideration of the court's May 4, 2005 order is denied and defendant's request for Rule 37 sanctions 246 is denied without prejudice per the oral rulings stated in open court. Judicial staff mailed notice. (is, ) (Entered: 05/25/2005)
250 TRANSCRIPT of proceedings for the following dates: 05/25/05; Before the Honorable Martin C. Ashman. (mjc, ) (Entered: 06/06/2005)
251 MOTION by Plaintiffs for discovery sanctions and for court−supervised deposition of Aimee Ebersohl. (RESTRICTED).(rbf, ) (Entered: 06/08/2005)
252 NOTICE of Motion by Kenneth A. Wexler for presentment of motion for discovery sanctions and for court−supervised deposition of Aimee Ebersohl 251 before Honorable Martin C. Ashman on 6/8/2005 at 10:00 AM. (rbf, ) (Entered: 06/08/2005)
253 MINUTE entry before Judge Martin C. Ashman : Magistrate Judge Status hearing held and continued to 7/27/2005 at 10:00 AM. Motion hearing held on plaintiffs' motion for discovery sanctions and for court−supervised deposition of Aimee Ebersohl 251 . Draft order to be submitted by the parties. Judicial staff mailed notice (is, ) (Entered: 06/08/2005)
255 TRANSCRIPT of proceedings for the following dates: 04/27/04; Before the Honorable Martin C. Ashman. (lcw, ) (Entered: 06/23/2005)
256 MINUTE entry before Judge Martin C. Ashman : Enter order regarding plaintiffs' motion for discovery sanctions and for court−supervised deposition of Aimee Ebersohl and emergency motion of third−party deponent Aimee Ebersohl to quash subpoena duces tecum and for protective order, or in the alternative, for protective order and appointment of special commissioner. Plaintiffs' motion for discovery sanctions and for court−supervised deposition of Aimee Ebersohl 251 is granted in part and denied in part. Mailed notice (mjc, ) (Entered: 07/19/2005)
257 ORDER regarding plaintiffs' motion for discovery sanctions and for court−supervised deposition of Aimee Ebersohl and emergency motion of third−party deponent Aimee Ebersohl to quash subpoena duces tecum and for protective order, or in the alternative, for protective order and appointment of special commissioner Signed by Judge Martin C. Ashman on 7/13/2005.(mjc, ) (Entered: 07/19/2005)
258 TRANSCRIPT of proceedings for the following date: 05/04/05; Before the Honorable Martin C. Ashman. (lcw, ) (Entered: 07/25/2005)
262 RENEWED MOTION by defendant CB Richard Ellis for sanctions based on plaintiffs' wholly unfounded allegations of evidence destruction and related misrepresentations to the Court; (Exhibits). (mjc, ) (Entered: 07/27/2005)

Case: 1:02-cv-6832 As of: 01/17/2011 04:14 PM CST 24 of 33

07/22/2005 07/25/2005
07/25/2005 07/25/2005 07/26/2005 08/24/2005 08/24/2005 08/24/2005 08/26/2005 09/02/2005
09/02/2005 09/06/2005
09/08/2005 09/30/2005 10/06/2005
11/15/2005

263 NOTICE of Motion by CB Richard Ellis for presentment of motion for sanctions 262 before Honorable Martin C. Ashman on 7/27/2005 at 10:00 a.m. (mjc, ) (Entered: 07/27/2005)
260 MINUTE entry before Judge Martin C. Ashman : Enter agreed order. Plaintiffs' response to defendant's renewed motion for sanctions to be filed by 8/24/05. Defendant's reply due 9/8/05. Status hearing and oral argument on defendant's renewed motion for sanctions set for 9/22/05 at 10:00 a.m. Mailed notice (mjc, ) (Entered: 07/27/2005)
Status hearing and oral argument on defendant's renewed motion for sanctions set for 9/22/2005 at 10:00 a.m. (mjc, ) (Entered: 07/27/2005)
261 AGREED ORDER Signed by Judge Martin C. Ashman on 7/25/2005.(mjc, ) (Entered: 07/27/2005)
259 MINUTE entry before Judge Martin C. Ashman : Magistrate Judge Status hearing is stricken. No notice (is, ) (Entered: 07/26/2005)
264 MOTION for leave to file excess pages (Wexler, Kenneth) (Entered: 08/24/2005)
265 NOTICE of Motion by Kenneth A. Wexler for presentment of motion for leave to file excess pages 264 before Honorable Martin C. Ashman on 9/22/2005 at 10:00 AM. (Wexler, Kenneth) (Entered: 08/24/2005)
266 OPPOSITION by plaintiffs to defendant's renewed motion for sanctions based on plaintiffs' "Wholly Unfounded Allegations of Evidence Destruction and Related Misrepresentations to the Court" 262 . (RESTRICTED) (mjc, ) (Entered: 08/29/2005)
267 TRANSCRIPT of proceedings for the following dates: 06/08/05; Before the Honorable Martin C. Ashman. (mjc, ) (Entered: 08/30/2005)
268 MOTION by Plaintiffs Amy Wiginton, Kristine Moran, Andrea Corey, Olivia Knapp, Norma Plank Fethler to reset 9/22/05 Hearing Unopposed Motion to Reset Hearing on Defendant's Renewed Motion for Sanctions Based on Plaintiffs' Wholly Unfounded Allegations of Evidence Destruction and Related Misrepresentations to the Court (Attachments: # 1 Text of Proposed Order)(Wexler, Kenneth) (Entered: 09/02/2005)
269 NOTICE of Motion by Kenneth A. Wexler for presentment of motion to reset, 268 before Honorable Martin C. Ashman on 9/6/2005 at 10:30 AM. (Wexler, Kenneth) (Entered: 09/02/2005)
270 MINUTE entry before Judge Martin C. Ashman : Plaintiffs' unopposed motion to reset hearing of 9/22/2005 on defendant's renewed motion for sanctions 268 is granted. Oral argument on defendant's renewed motion for sanctions based on plaintiffs' wholly unfounded allegations of evidence destruction and related misrepresentations to the court 262 is reset to 10/6/2005 at 10:00 AM. Judicial staff mailed notice. (is, ) (Entered: 09/06/2005)
271 REPLY BRIEF by defendant CB Richard Ellis in support of its renewed motion for sanctions based on plaintiffs' wholly unfounded allegations of evidence destruction and related misrepresentations to the court 262 ; Notice. (mjc, ) (Entered: 09/13/2005)
272 Document entered in error. Modified on 11/2/2005 (tlm). (Entered: 10/05/2005)
273 MINUTE entry before Judge Martin C. Ashman : Oral argument held on defendant's renewed motion for sanctions. Defendant's renewed motion for sanctions based on plaintiffs' wholly unfounded allegations of evidence destruction and related misrepresentation to the court 262 is denied for the reasons stated in open court. Magistrate Judge Status hearing held and continued to 11/16/2005 at 10:00 AM. Mailed notice. (is, ) (Entered: 10/06/2005)
274 MINUTE entry before Judge Martin C. Ashman : Magistrate Judge Status hearing reset to 1/12/2006 at 10:00 AM. Mailed notice. (is, ) (Entered: 11/15/2005)

Case: 1:02-cv-6832 As of: 01/17/2011 04:14 PM CST 25 of 33

11/22/2005 11/22/2005 11/28/2005 12/09/2005 01/11/2006 01/12/2006 02/14/2006 02/17/2006 03/02/2006 04/20/2006 04/21/2006 04/21/2006 04/24/2006 04/28/2006 04/28/2006 05/01/2006 05/04/2006 05/05/2006 05/23/2006 06/05/2006

275 MINUTE entry before Judge Wayne R. Andersen : Status hearing set for 12/15/2005 at 09:00 AM. in courtroom 1403. Mailed notice (tsa, ) (Entered: 11/22/2005)
276 TRANSCRIPT of proceedings for the following dates: 10/06/05; Before the Honorable Martin C. Ashman. (mjc, ) (Entered: 11/22/2005)
277 MINUTE entry before Judge Wayne R. Andersen : Status hearing set for 12/8/2005 at 09:00 AM. Status hearing stricken for 12/15/2005. Mailed notice (tsa, ) (Entered: 11/28/2005)
278 MINUTE entry before Judge Wayne R. Andersen : Status hearing set for 12/8/2005 is stricken and reset for 12/15/2005 at 02:45 PM. Mailed notice (tsa, ) (Entered: 12/09/2005)
279 MINUTE entry before Judge Martin C. Ashman : Magistrate Judge Status hearing reset to 2/16/2006 at 10:00 AM. Mailed notice. (is, ) (Entered: 01/11/2006)
280 MINUTE entry before Judge Wayne R. Andersen : Settlement conference held on 1/12/2006. No notice (tsa, ) (Entered: 01/17/2006)
281 MINUTE entry before Judge Martin C. Ashman : Magistrate Judge Status hearing reset to 4/24/2006 at 10:00 AM. Mailed notice. (is, ) (Entered: 02/14/2006)
282 MINUTE entry before Judge Wayne R. Andersen : Settlement Conference set for 2/27/2006 at 01:15 PM. Mailed notice (tsa, ) (Entered: 02/17/2006)
283 TRANSCRIPT of proceedings for the following dates: 12/15/05; Before the Honorable Wayne R. Andersen. (mjc, ) (Entered: 03/06/2006)
284 SUPPLEMENT by CB Richard Ellis to (Defendant's Third Notice of Supplemental Authoriity) (Attachments: # 1 Exhibit A# 2 Exhibit B)(Feis, Brenda) (Entered: 04/20/2006)
285 MOTION by Plaintiff All Plaintiffs to withdraw as attorney (Zipprich, Renee) (Entered: 04/21/2006)
286 NOTICE of Motion by Renee Lynn Zipprich for presentment of motion to withdraw as attorney 285 before Honorable Wayne R. Andersen on 4/28/2006 at 09:00 AM. (Zipprich, Renee) (Entered: 04/21/2006)
287 MINUTE entry before Judge Martin C. Ashman : Magistrate Judge Status hearing held and continued to 6/21/2006 at 10:00 AM. Mailed notice. (is, ) (Entered: 04/24/2006)
288 ATTORNEY Appearance for plaintiffs by Amber Margaret Nesbitt (Attachments: # 1 Certificate of Service)(Nesbitt, Amber) (Incorrect Party Selected) Modified on 5/1/2006 (gma, ). (Entered: 04/28/2006)
290 MINUTE entry before Judge Wayne R. Andersen : Plaintiff's motion to withdraw 285 Renee Zipprick as counsel is granted. Attorney Renee Lynn Zipprich terminated. Mailed notice (mjc, ) (Entered: 05/03/2006)
289 NOTICE of Correction regarding attorney appearance 288 (Incorrect Party Selected) (gma, ) (Entered: 05/01/2006)
292 MINUTE entry before Judge Wayne R. Andersen : This case is referred to the magistrate judge for a settlement conference. Mailed notice (mjc, ) (Entered: 05/05/2006)
291 ATTORNEY Appearance for Plaintiffs Amy Wiginton, Kristine Moran, Andrea Corey, Olivia Knapp, Norma Plank Fethler by Amber Margaret Nesbitt (Attachments: # 1 Certificate of Service)(Nesbitt, Amber) (Entered: 05/05/2006)
293 NOTICE by Edward Anthony Wallace of Change of Address (Wallace, Edward) (Entered: 05/23/2006)
294 MINUTE entry before Judge Martin C. Ashman : Magistrate Judge Status hearing stricken. Settlement Conference set for 7/18/2006 at 02:00 PM. in chambers 1366. All clients and parties with full authority to settle are to be physically present.

Case: 1:02-cv-6832 As of: 01/17/2011 04:14 PM CST 26 of 33

07/18/2006
08/16/2006 08/16/2006 08/17/2006 08/31/2006
08/31/2006 09/14/2006
09/15/2006
09/27/2006 09/28/2006
10/17/2006 11/08/2006 11/20/2006 01/24/2007 01/24/2007 03/14/2007

Failure to have parties with full authority to settle present may result in the imposition of severe sanctions. (For further details see standing order at the court's web site at www.ilnd.uscourts.gov.) Mailed notice. (is, ) (Entered: 06/05/2006)
295 MINUTE entry before Judge Martin C. Ashman : Settlement conference held. Parties to correspond and meet with each other. If desired the Court will provide a neutral meeting room. Settlement Conference continued to 9/11/2006 at 02:00 PM. Parties with authority to settle are to be present. Mailed notice. (is, ) (Entered: 07/19/2006)
296 NOTICE by Brenda H. Feis of Change of Address (Feis, Brenda) (Entered: 08/16/2006)
297 MINUTE entry before Judge Wayne R. Andersen : Motion for leave to file excess pages 264 is granted. Mailed notice (tsa, ) (Entered: 08/16/2006)
298 MINUTE entry before Judge Martin C. Ashman : Settlement Conference of 9/11/2006 is reset to 9/19/2006 at 02:00 PM. Mailed notice. (is, ) (Entered: 08/17/2006)
299 MINUTE entry before Judge Wayne R. Andersen : Plaintiff's motion for reconsideration 169 is rendered moot by document 185 . Defendant's motion for extension of time 178 is granted. Defendant's motion to set a briefing schedule 179 on the motion for summary judgment is rendered moot by document 185 . Mailed notice (tsa, ) (Entered: 08/31/2006)
300 MINUTE entry before Judge Martin C. Ashman : Settlement Conference of 9/19/2006 is reset to 9/27/2006 at 11:00 AM. Mailed notice. (is, ) (Entered: 08/31/2006)
301 Plaintiffs' Notice of Withdrawal of Their Motion for Class Certification Without Prejudice Pending Settlement Discussions by Amy Wiginton, Kristine Moran, Andrea Corey, Olivia Knapp, Norma Plank Fethler (Nesbitt, Amber) (Entered: 09/14/2006)
302 MINUTE entry before Judge Wayne R. Andersen : Plaintiff's motion to certify class 164 is withdrawn without prejudice pending settlement negotiations. Plaintiffs may re−file their motion in the future. Mailed notice (tsa, ) (Entered: 09/15/2006)
303 MINUTE entry before Judge Martin C. Ashman : Settlement conference held on 9/27/2006. Magistrate Judge Status hearing set for 9/28/2006 at 11:00 AM. Mailed notice. (is, ) (Entered: 09/27/2006)
304 MINUTE entry before Judge Martin C. Ashman : Magistrate Judge Status hearing held and continued to 10/17/2006 at 10:00 AM. Settlement Conference set for 11/20/2006 at 02:00 PM., in chambers 1366. Mailed notice. (is, ) (Entered: 09/28/2006)
305 MINUTE entry before Judge Martin C. Ashman : Magistrate Judge Status hearing held on 10/17/2006. Mailed notice. (is, ) (Entered: 10/17/2006)
306 NOTICE by Elizabeth A. Fegan of Change of Address (Fegan, Elizabeth) (Entered: 11/08/2006)
307 MINUTE entry before Judge Martin C. Ashman : Settlement conference held and continued to 1/24/2007 at 11:00 AM. Mailed notice. (is, ) (Entered: 11/21/2006)
308 NOTICE by Elizabeth A. Fegan of Change of Address (Fegan, Elizabeth) (Entered: 01/24/2007)
309 MINUTE entry before Judge Martin C. Ashman :Settlement conference held on 1/24/2007. Magistrate Judge Status hearing set for 3/15/2007 at 10:00 AM. Mailed notice. (is, ) (Entered: 01/25/2007)
310 MINUTE entry before Judge Martin C. Ashman :Magistrate Judge Status hearing reset to 4/19/2007 at 10:00 AM. Mailed notice. (is, ) (Entered: 03/14/2007)

Case: 1:02-cv-6832 As of: 01/17/2011 04:14 PM CST 27 of 33

03/22/2007 04/18/2007 04/19/2007 07/23/2007 10/04/2007
10/04/2007
10/04/2007
10/04/2007 10/04/2007 10/04/2007 10/24/2007
10/30/2007
11/28/2007 11/28/2007 12/07/2007 01/02/2008 01/04/2008

311 MINUTE entry before Judge Wayne R. Andersen :Set/reset hearingsStatus hearing set for 4/19/2007 at 09:00 AM.Mailed notice (tsa, ) (Entered: 03/22/2007)
312 STATUS Report by Amy Wiginton, Kristine Moran, Andrea Corey, Olivia Knapp, Dondi Plank, Norma Plank Fethler (Wexler, Kenneth) (Entered: 04/18/2007)
313 MINUTE entry before Judge Wayne R. Andersen :Status hearing held on 4/19/2007.Advised in open court notice (tsa, ) (Entered: 04/20/2007)
314 NOTICE by Jennifer Fountain Connolly of Change of Address (Connolly, Jennifer) (Entered: 07/23/2007)
315 MOTION by Plaintiffs Amy Wiginton, Kristine Moran, Andrea Corey, Olivia Knapp, Dondi Plank, Norma Plank Fethler, Defendant CB Richard Ellis For Certification of Settlement Class, Preliminary Approval of Settlement and Notice Plan (Wexler, Kenneth) (Entered: 10/04/2007)
316 MEMORANDUM by Amy Wiginton, Kristine Moran, Andrea Corey, Olivia Knapp, Dondi Plank, Norma Plank Fethler in support of motion for miscellaneous relief, 315 Joint Motion for Certification of Settlement Class, Preliminary Approval Settlement and Notice Plan (Attachments: # 1 Exhibit 1 − Settlement Agreement# 2 Exhibit 1, A−C to Settlement Agreement# 3 Exhibit 1, D − G to Settlement Agreement# 4 Exhibit 2 − Firm Resumes# 5 Exhibit 3 − Affidavit of David Holland of Rust Consulting)(Wexler, Kenneth) (Entered: 10/04/2007)
317 Joint Motion for Certification of Settlement Class, Preliminary Approval of Settlement and Notice Plan NOTICE of Motion by Kenneth A. Wexler for presentment of before Honorable Wayne R. Andersen on 10/4/2007 at 01:30 PM. (Wexler, Kenneth) (Entered: 10/04/2007)
318 MINUTE entry before Judge Wayne R. Andersen : Enter preliminary approval order. Fairness hearing set for 1/9/2008 @ 9:30 a.m.Mailed notice (mjc, ) (Entered: 10/10/2007)
319 PRELIMINARY APPROVAL ORDER Signed by Judge Wayne R. Andersen on 10/4/2007.(mjc, ) (Entered: 10/10/2007)
320 SETTLEMENT Agreement and Consent Decree by parties. (mjc, ) (Entered: 10/15/2007)
321 MOTION by Plaintiffs Amy Wiginton, Kristine Moran, Andrea Corey, Olivia Knapp, Norma Plank Fethler for order JOINT MOTION FOR ENTRY OF A CORRECTED PRELIMINARY APPROVAL ORDER (Attachments: # 1 Exhibit 1 − Corrected Settlement Agreement and Consent Decree# 2 Exhibit 1−A (Proposed) Corrected Preliminary Approval Order# 3 Exhibit 1−B# 4 Exhibit 1−C# 5 Exhibit 1−D# 6 Exhibit 1−E# 7 Exhibit 1−F# 8 Exhibit 1−G)(Wexler, Kenneth) (Entered: 10/24/2007)
322 MINUTE entry before Judge Martin C. Ashman : All matters relating to the referral of this action having been resolved, the case is returned to the assigned judge. Judge Martin C. Ashman no longer referred to the case. Mailed notice. (is, ) (Entered: 10/30/2007)
323 MINUTE entry before Judge Wayne R. Andersen : Enter corrected preliminary approval order.Mailed notice (mjc, ) (Entered: 12/03/2007)
324 CORRECTED PRELIMINARY APPROVAL ORDER Signed by Judge Wayne R. Andersen on 11/28/2007.(mjc, ) (Entered: 12/03/2007)
325 LETTER from Margaret Deirdre O'Hartigan dated 12/3/07. (mjc, ) (Entered: 12/10/2007)
326 TRANSCRIPT of proceedings for the following dates: 10/4/2007; Before the Honorable Wayne R. Andersen. (Document not scanned). (gmr, ) (Entered: 01/03/2008)
327 MOTION by Plaintiffs Amy Wiginton, Kristine Moran, Andrea Corey, Olivia Knapp, Norma Plank Fethler for leave to file excess pages Plaintiffs' Motion for Final Approval of Settlement (Wexler, Kenneth) (Entered: 01/04/2008)

Case: 1:02-cv-6832 As of: 01/17/2011 04:14 PM CST 28 of 33

01/04/2008 01/04/2008 01/04/2008
01/04/2008 01/04/2008 01/04/2008
01/04/2008 01/07/2008 01/07/2008 01/07/2008
01/07/2008
01/07/2008 01/07/2008 01/07/2008

328 NOTICE of Motion by Kenneth A. Wexler for presentment of motion for leave to file excess pages 327 before Honorable Wayne R. Andersen on 1/9/2008 at 09:30 AM. (Wexler, Kenneth) (Entered: 01/04/2008)
329 MOTION by Plaintiffs Amy Wiginton, Kristine Moran, Andrea Corey, Olivia Knapp, Norma Plank Fethler for settlement Motion for Final Approval of Settlement (Wexler, Kenneth) (Entered: 01/04/2008)
330 MEMORANDUM by Amy Wiginton, Kristine Moran, Andrea Corey, Olivia Knapp, Norma Plank Fethler in support of motion for settlement 329 (Attachments: # 1 Declaration of Kenneth A. Wexler# 2 Declaration of Caryn Donly# 3 Text of Proposed Order for Final Judgment# 4 Text of Proposed Order to Preserve Individual Claims of Moran and Knapp)(Wexler, Kenneth) (Entered: 01/04/2008)
331 NOTICE of Motion by Kenneth A. Wexler for presentment of motion for settlement 329 before Honorable Wayne R. Andersen on 1/9/2008 at 09:30 AM. (Wexler, Kenneth) (Entered: 01/04/2008)
332 PETITION by Amy Wiginton, Kristine Moran, Andrea Corey, Olivia Knapp, Dondi Plank, Norma Plank Fethler Class Counsel's Petition for an Award of ATtorneys' Fees, Reimbursement of Expenses and Incentive Awards to Named Plaintiffs (Fegan, Elizabeth) (Entered: 01/04/2008)
333 Memorandum in Support of Class Counsel's Petition for an Award of Attorneys' Fees, Reimbursement of Expenses and Incentive Awards to Named Plaintiffs by Amy Wiginton, Kristine Moran, Andrea Corey, Olivia Knapp, Norma Plank Fethler (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Fegan, Elizabeth) (Entered: 01/04/2008)
334 (Proposed) Order Approving Class Counsel's Application for Attorneys' Fees and Litigation Expenses and Service Awards to Class Representatives by Amy Wiginton, Kristine Moran, Andrea Corey, Olivia Knapp, Norma Plank Fethler (Fegan, Elizabeth) (Entered: 01/04/2008)
335 MOTION by Plaintiffs Amy Wiginton, Kristine Moran, Andrea Corey, Olivia Knapp, Norma Plank Fethler to seal Plaintiffs' Unopposed Motion for Leave to File Original Requests for Exclusion Under Seal (Attachments: # 1 Text of Proposed Order)(Nesbitt, Amber) (Entered: 01/07/2008)
336 MOTION by Plaintiffs Amy Wiginton, Kristine Moran, Andrea Corey, Olivia Knapp, Norma Plank Fethler for attorney fees Reimbursement of Expenses and Incentive Awards to Named Plaintiffs [Corrected Event] (Fegan, Elizabeth) (Entered: 01/07/2008)
337 MEMORANDUM by Amy Wiginton, Kristine Moran, Andrea Corey, Olivia Knapp, Norma Plank Fethler in support of motion for attorney fees 336 Reimbursement of Expenses and Incentive Awards to Named Plaintiffs (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Fegan, Elizabeth) (Entered: 01/07/2008)
338 Class Counsel's Petition for an Award of Attorneys' Fees, Reimbursement of Expenses and Incentive Awards to Named Plaintiffs NOTICE of Motion by Elizabeth A. Fegan for presentment of motion for attorney fees 336 before Honorable Wayne R. Andersen on 1/9/2008 at 09:30 AM. (Fegan, Elizabeth) (Entered: 01/07/2008)
339 [Proposed] Order Approving Class Counsel's Application for ATtorneys' Fees and Litigation Expenses and Service Awards to Class Representatives by Amy Wiginton, Kristine Moran, Andrea Corey, Olivia Knapp, Norma Plank Fethler (Fegan, Elizabeth) (Entered: 01/07/2008)
340 Notice of List of Requests for Exclusion to be Attached as Exhibit A to [Proposed] Final Approval Order by Amy Wiginton, Kristine Moran, Andrea Corey, Olivia Knapp, Norma Plank Fethler (Nesbitt, Amber) (Entered: 01/07/2008)
341 Redacted Requests for Exclusion by Amy Wiginton, Kristine Moran, Andrea Corey, Olivia Knapp, Norma Plank Fethler (Nesbitt, Amber) (Entered: 01/07/2008)

Case: 1:02-cv-6832 As of: 01/17/2011 04:14 PM CST 29 of 33

01/07/2008 01/08/2008 01/08/2008 01/09/2008 01/09/2008 01/09/2008
01/09/2008 01/09/2008 01/09/2008 01/10/2008
01/10/2008 01/11/2008 01/11/2008 01/11/2008

342 NOTICE by all plaintiffs re other 340 , other 341 (Nesbitt, Amber) (Entered: 01/07/2008)
343 MOTION by Defendant CB Richard EllisDefendant's Motion Requesting that Plaintiffs be Required to File Amended Pleadings Conforming to the Form of the Exhibits Attached Hereto (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Feis, Brenda) (Entered: 01/08/2008)
344 NOTICE of Motion by Brenda H. Feis for presentment of motion for miscellaneous relief, 343 before Honorable Wayne R. Andersen on 1/17/2008 at 09:00 AM. (Feis, Brenda) (Entered: 01/08/2008)
345 MOTION by Defendant CB Richard Ellis to amend/correct other, 333 , memorandum in support of motion, 330 The Record As Asserted In Pleadings Filed By Plaintiffs In Connection With Final Approval of The Class Action Settlement (Feis, Brenda) (Entered: 01/09/2008)
346 NOTICE of Motion by Brenda H. Feis for presentment of motion to amend/correct, motion for relief, 345 before Honorable Wayne R. Andersen on 1/17/2008 at 09:00 AM. (Feis, Brenda) (Entered: 01/09/2008)
352 MINUTE entry before Judge Wayne R. Andersen : Enter order entering final judgment as to class claims, granting final approval to class action settlement and approving implementation of the tier program. Enter order preserving Kristine Moran and Olivia Knapp's individual claims from all class claims subject to the class action settlement.Mailed notice (mjc, ) (Entered: 01/15/2008)
359 ORDER approving class counsel's application for attorneys' fees and litigation expenses and service awards to class representatives Signed by Judge Wayne R. Andersen on 1/9/2008.(mjc, ) (Entered: 01/17/2008)
360 ORDER entering final judgment as to class claims, granting final approval to class action settlement and approving implementation of the tier program Signed by Judge Wayne R. Andersen on 1/9/2008.(mjc, ) (Entered: 01/17/2008)
362 ORDER preserving Kristine Moran and Olivia Knapp's individual claims from all class claims subject to the class action settlement Signed by Judge Wayne R. Andersen on 1/9/2008.(mjc, ) (Entered: 01/22/2008)
350 MINUTE entry before Judge Wayne R. Andersen :Plaintiff's unopposed motion for leave to file motion for final approval of settlement in excess of fifteen pages 327 is granted. Plaintiffs' motion for final approval of settlement 329 is granted. Plaintiff's unopposed motion for leave to file motion for final approval of settlement in excess of fifteen pages under seal 335 is granted. Class counsel's petition for an award of attorneys' fees, reimbursementof expenses and incentive awards to named plaintiffs 336 is granted. Defendant's motion requesting that plaintiffs be required to file amended pleadings conforming to the form of the exhibits attached hereto is 343 denied. Motion hearing held on 1/10/2008 regarding motion to seal, 335 , motion for attorney fees 336 , motion for settlement 329 , motion for leave to file excess pages 327 , motion for miscellaneous relief, 343 . Advised in open court notice (tsa, ) (Entered: 01/14/2008)
351 MINUTE entry before Judge Wayne R. Andersen :Fairness hearing held on 1/10/2008 and continued to 4/10/2008 at 09:00 AM.Advised in open court notice (tsa, ) (Entered: 01/14/2008)
347 Defendant's Statement of Position Concerning Tier 2/3 Disclosures STATEMENT by CB Richard Ellis (Feis, Brenda) (Entered: 01/11/2008)
348 NOTICE by CB Richard Ellis re statement 347 (Feis, Brenda) (Entered: 01/11/2008)
349 Plaintiffs' Position Statement Enforcing The Terms Of The Settlement Agreement On Disclosure Of Information To CBRE by Amy Wiginton, Kristine Moran, Andrea Corey, Olivia Knapp, Norma Plank Fethler (Wexler, Kenneth) (Entered: 01/11/2008)

Case: 1:02-cv-6832 As of: 01/17/2011 04:14 PM CST 30 of 33

01/11/2008 01/15/2008 01/15/2008
01/15/2008 01/15/2008
01/15/2008 01/18/2008
01/29/2008
01/29/2008
02/25/2008
03/19/2008 04/01/2008 04/09/2008
07/16/2008 08/08/2008 08/18/2008 09/10/2008 09/18/2008 10/08/2008 10/29/2008 10/31/2008

356 LETTER from Lisa K. (Smith) Canady dated 1/7/08. (mjc, ) (Entered: 01/15/2008)
353 NOTICE by all plaintiffs of Filing Original Requests for Exclusion Under Seal (Wexler, Kenneth) (Entered: 01/15/2008)
354 AMENDED other 340 by Amy Wiginton, Kristine Moran, Andrea Corey, Olivia Knapp, Norma Plank Fethler Notice of List of Requests for Exclusion (Wexler, Kenneth) (Entered: 01/15/2008)
355 NOTICE by all plaintiffs re amended document 354 (Attachments: # 1 Redacted Request for Exclusion)(Wexler, Kenneth) (Entered: 01/15/2008)
357 MINUTE entry before Judge Wayne R. Andersen : Docket entry 349 shall be considered to be Plaintiffs' motion to prevent the disclosure of the names of Tiers 2 and 3 Claimants to defendant CB Richard Ellis until 14 days within the Claim Form Deadline of March 15, 2008. That motion is denied. We see nothing in the parties' settlement agreement that prohibits turning over the names of Tiers 2 and 3 Claimants to defendant at this time. (mjc, ) (Entered: 01/16/2008)
358 ORIGINAL Requests by plaintiffs for exclusion from settlement class. (RESTRICTED) (mjc, ) (Entered: 01/16/2008)
361 MINUTE entry before Judge Wayne R. Andersen :Status hearing set for 4/8/2008 at 09:00 AM. regarding individual claims.Advised in open court notice (tsa, ) (Entered: 01/18/2008)
363 MINUTE entry before Judge Wayne R. Andersen :Enter order granting plaintiffs' unopposed motion for leave to file original requests for exclusion under seal. Mailed notice (gmr, ) (Entered: 02/01/2008)
364 ORDER Granting Plaintiffs' Unopposed Motion For Leave to File Original Requests for Exclusion Under Seal Signed by Judge Wayne R. Andersen on 1/29/2008. (gmr, ) (Entered: 02/01/2008)
365 MINUTE entry before Judge Wayne R. Andersen :Status hearing reset for 4/9/2008 at 09:00 AM. regarding individual claimsMailed notice (tsa, ) (Entered: 02/25/2008)
366 OATH of Special Master Deborah Gage Haude. (mjc, ) (Entered: 03/24/2008)
367 TRANSCRIPT of proceedings for the following dates: 1/9/08; Before the Honorable Honorable Wayne R. Andersen. (mjc, ) (Entered: 04/02/2008)
368 MINUTE entry before Judge Honorable Wayne R. Andersen:Status hearing held on 4/9/2008 and continued to 7/17/2008 at 09:00 AM.)Mailed notice (tsa, ) (Entered: 04/10/2008)
369 MINUTE entry before the Honorable Wayne R. Andersen:Status hearing reset for 9/11/2008 at 09:00 AM.Mailed notice (tsa, ) (Entered: 07/16/2008)
370 Agreement To Extend Tier 3 Deadlines (signed by all parties) by CB Richard Ellis (Feis, Brenda) (Entered: 08/08/2008)
371 MINUTE entry before the Honorable Wayne R. Andersen:Defendant's motion to amend/correct 345 is denied as moot.Mailed notice (tsa, ) (Entered: 08/18/2008)
372 MINUTE entry before the Honorable Wayne R. Andersen:Status hearing reset for 10/28/2008 at 09:00 AM.Mailed notice (tsa, ) (Entered: 09/10/2008)
373 Notice of Firm Name Change by Amy Wiginton, Kristine Moran, Andrea Corey, Olivia Knapp, Norma Plank Fethler (Wexler, Kenneth) (Entered: 09/18/2008)
374 MINUTE entry before the Honorable Wayne R. Andersen:Status hearing reset for 10/30/2008 at 09:00 AM.Mailed notice (tsa, ) (Entered: 10/08/2008)
375 MINUTE entry before the Honorable Wayne R. Andersen: Status hearing reset for 11/20/2008 at 09:00 AM.Mailed notice (tsa, ) (Entered: 10/29/2008)
376 MINUTE entry before the Honorable Wayne R. Andersen: Enter order. It is hereby ordered that Ms. Haude is authorized to administer oaths to the witnesses at the

Case: 1:02-cv-6832 As of: 01/17/2011 04:14 PM CST 31 of 33

10/31/2008 11/20/2008 11/21/2008
02/09/2009 02/09/2009 02/17/2009 02/17/2009 02/18/2009 02/18/2009 02/23/2009 02/25/2009 03/02/2009 03/12/2009 03/20/2009
03/20/2009 03/25/2009

Tier III hearings to be held in connection with the Consent Decree.Mailed notice (mjc, ) (Entered: 11/04/2008)
377 ORDER Signed by the Honorable Wayne R. Andersen on 10/31/2008. (Poor Quality Original − Paper Document on File.)(mjc, ) (Entered: 11/04/2008)
378 MINUTE entry before the Honorable Wayne R. Andersen:Status hearing held on 11/20/2008 and continued to 4/9/2009 at 09:00 AM.Advised in open court notice (tsa, ) (Entered: 11/20/2008)
379 EXECUTIVE COMMITTEE ORDER:Case referred to the Honorable Jeffrey Cole for all discovery motions, discovery supervision and conduct necessary proceedings and enter Order/Report and Recommendation on all nondispositive pretrial motions through filing of pretrial materials including final pretrial order. Signed by Executive Committee on 11/21/08. (mjc, ) (Entered: 11/24/2008)
380 MINUTE entry before the Honorable Wayne R. Andersen: Enter order extending deadlines for the completion of the tier settlement process. [For further details see separate order.]Mailed notice (mjc, ) (Entered: 02/17/2009)
381 ORDER Signed by the Honorable Wayne R. Andersen on 2/9/2009.(mjc, ) (Entered: 02/17/2009)
382 MOTION by counsel for Plaintiff Olivia Knapp to withdraw as attorney (Wexler, Kenneth) (Entered: 02/17/2009)
383 NOTICE of Motion by Kenneth A. Wexler for presentment of motion to withdraw as attorney 382 before Honorable Wayne R. Andersen on 2/26/2009 at 09:00 AM. (Wexler, Kenneth) (Entered: 02/17/2009)
384 MOTION by counsel for Plaintiffs Kristine Moran, Olivia Knapp to withdraw as attorney Motion for Leave to Withdraw as Counsel for Individual Plaintiffs Olivia Knapp and Kristine Moran (Fegan, Elizabeth) (Entered: 02/18/2009)
385 NOTICE of Motion by Elizabeth A. Fegan for presentment of motion to withdraw as attorney 384 before Honorable Wayne R. Andersen on 3/12/2009 at 09:00 AM. (Fegan, Elizabeth) (Entered: 02/18/2009)
386 AMENDED NOTICE of Motion by Kenneth A. Wexler for presentment of motion to withdraw as attorney 382 before Honorable Wayne R. Andersen on 3/12/2009 at 09:00 AM. (Wexler, Kenneth) (Entered: 02/23/2009)
387 MINUTE entry before the Honorable Wayne R. Andersen:Motions to withdraw as attorney 382 , 384 are entered and continued to 3/12/2009 @ 9:00 a.m.Mailed notice (tsa, ) (Entered: 02/25/2009)
388 NOTICE OF WITHDRAWAL by Amy Wiginton, Kristine Moran, Andrea Corey, Olivia Knapp, Norma Plank Fethler (Connolly, Jennifer) (Entered: 03/02/2009)
389 MINUTE entry before the Honorable Wayne R. Andersen:Plaintiffs motions to withdraw as attorney 382 , 384 are granted. Status hearing reset for 6/18/2009 at 09:00 AM.Advised in open court notice (tsa, ) (Entered: 03/12/2009)
390 MINUTE entry before the Honorable Wayne R. Andersen: Enter order granting Wexler Wallace LLP's motion for leave to withdraw as counsel for individual plaintiff Olivia Knapp. [For further detail see separate order.]Mailed notice (mjc, ) (Entered: 03/25/2009)
391 [PROPOSED] ORDER granting Wexler Wallace LLP's motion for leave to withdraw as counsel for individual plaintiff Olivia Knapp. Signed by the Honorable Wayne R. Andersen on 3/20/2009.(mjc, ) (Entered: 03/25/2009)
392 MINUTE entry before the Honorable Wayne R. Andersen: Motion for leave to withdraw as counsel 384 is granted. Enter order. Steve W. Berman, Jeniphr Breckenridge, Nick Styant−Browne and Elizabeth A. Fegan for individual plaintiffs Olivia Knapp and Kristine Moran. [For further detail see separate order.]Mailed notice (mjc, ) (Entered: 03/27/2009)

Case: 1:02-cv-6832 As of: 01/17/2011 04:14 PM CST 32 of 33

03/25/2009
04/07/2009 04/07/2009 04/09/2009 05/14/2009 05/14/2009
05/18/2009 05/18/2009
05/27/2009 06/25/2009 02/17/2010 02/17/2010 02/25/2010 05/04/2010 08/02/2010
08/20/2010 10/29/2010

393 [PROPOSED] ORDER granting the motion to withdraw of Steve W. Berman, Jeniphr Breckenridge, Nick Styant−Browne and Elizabeth A. Fegan for individual plaintiffs Olivia Knapp and Kristine Moran Signed by the Honorable Wayne R. Andersen on 3/25/2009.(mjc, ) (Entered: 03/27/2009)
394 MINUTE entry before the Honorable Wayne R. Andersen:Fairness hearing reset for 4/14/2009 at 09:00 AM.Mailed notice (tsa, ) (Entered: 04/07/2009)
395 MINUTE entry before the Honorable Wayne R. Andersen:Document 394 is stricken and entered in error.Mailed notice (tsa, ) (Entered: 04/07/2009)
396 MINUTE entry before the Honorable Wayne R. Andersen:Status hearing stricken for 4/9/2009.Mailed notice (tsa, ) (Entered: 04/09/2009)
397 STIPULATION of Dismissal (Connolly, Jennifer) (Entered: 05/14/2009)
398 MINUTE entry before the Honorable Jeffrey Cole:Pursuant to the stipulation of dismissal filed on 5/14/09 397 , all matters relating to the referral of this action having been resolved, the case is returned to the assigned judge. Mailed notice (cdh, ) (Entered: 05/14/2009)
399 MINUTE entry before the Honorable Wayne R. Andersen: Status hearing reset for 6/17/2009 at 09:00 AM.Mailed notice (tsa, ) (Entered: 05/18/2009)
400 MINUTE entry before the Honorable Wayne R. Andersen:Pursuant to stipulation and FRCP 41(a)(1)(ii), Plaintiff Kristine Moran and defendant CB Richard Ellis, Inc. agree to plaintiff's dismissal with prejudice of all her individual claims, each party to bear their own costs and attorneys' fees.Mailed notice (tsa, ) (Entered: 05/18/2009)
401 MINUTE entry before the Honorable Wayne R. Andersen: Status hearing reset for 6/25/2009 at 09:00 AM.Telephoned notice (tsa, ) (Entered: 05/27/2009)
402 MINUTE entry before the Honorable Wayne R. Andersen:Status hearing held on 6/25/2009.Mailed notice (tsa, ) (Entered: 06/25/2009)
403 MOTION by Defendant CB Richard Ellis to dismiss Claims of Plaintiff Olivia Knapp For Want of Prosecution (Feis, Brenda) (Entered: 02/17/2010)
404 NOTICE of Motion by Brenda H. Feis for presentment of motion to dismiss 403 before Honorable Wayne R. Andersen on 2/25/2010 at 09:00 AM. (Feis, Brenda) (Entered: 02/17/2010)
405 MINUTE entry before Honorable Wayne R. Andersen:Defendant's motion to dismiss Claims of Plaintiff Olivia Knapp For Want of Prosecution 403 is granted. Motion hearing held on 2/25/2010.Mailed notice (tsa, ) (Entered: 02/25/2010)
406 NOTICE by Elizabeth A. Fegan of Change of Address Notice Of Change Of Office Address (Fegan, Elizabeth) (Entered: 05/04/2010)
407 ORDER OF THE EXECUTIVE COMMITTEE: IT IS HEREBY ORDERED That, in the interests of judicial efficiency, any pending civil cases previously pending before retired District Judge Wayne R. Andersen and needing further judicial attention should be noticed in front of Chief Judge James F. Holderman in Courtroom 2541 during his usual civil motion time at 9:00 a.m. on Tuesdays and Thursdays. IT IS FURTHER ORDERED That this Order shall remain in effect until retired District Judge Wayne R. Anderson's pending civil cases have been reassigned to other district judges of this Court. Signed by the Executive Committee on 8/2/2010. Mailed notice(ef, ) (Entered: 08/03/2010)
408 MINUTE entry before Honorable James F. Holderman: Attorney Michael Lawrence Duffy terminated as counsel for plaintiff(s).Judicial staff mailed notice (gl, ) (Entered: 08/20/2010)
409 EXECUTIVE COMMITTEE ORDER: Case reassigned to the Honorable Milton I. Shadur for all further proceedings. It appearing that the Hon. Wayne R. Anderson elected to retire from the bench as of August 1, 2010; therefore It is hereby ordered that the cases on the attached list are to be reassigned to other judges of this Court as indicated. Signed by Executive Committee on 10/29/10.(rp, ) (Entered:

Case: 1:02-cv-6832 As of: 01/17/2011 04:14 PM CST 33 of 33

11/03/2010 11/08/2010

11/01/2010)
410 MINUTE entry before Honorable Milton I. Shadur: Status hearing set for 11/8/2010 at 09:00 AM.Mailed notice (srn, ) (Entered: 11/03/2010)
411 MINUTE entry before Honorable Milton I. Shadur:Status hearing held on 11/8/2010. This is one of the actions reassigned to this Court's calendar from that of the Honorable Wayne Anderson on his retirement from this District Court. Based on this Court's review of the voluminous docket and the portion of the file documents that Judge Anderson had retained as his chambers file, and as confirmed by counsel in open court at today's status hearing, the approval of the settlement Consent Decree has been followed by the resolution of all claims of those individuals who opted out of its terms. Accordingly this is a final order closing the case, with jurisdiction retained as provided in the Consent Decree to enforce that decree during its remaining life. Civil case terminated. Mailed notice (srn, ) (Entered: 11/09/2010)

 
 Wiginton v. Ellis, Not Reported in F.Supp.2d (2003)

Opinion

2003 WL 21037874 United States District Court, N.D. Illinois, Eastern Division.
Amy WIGINTON, individually and on behalf of all persons similarly situated, Plaintiff, v.
CB Richard ELLIS, Defendant.
No. 02 C 6832. | May 6, 2003.

MEMORANDUM OPINION AND ORDER
ANDERSEN, J. *1 This case is before the Court on the motion of the defendant CB Richard Ellis, Inc. to dismiss the class claim in Count I as well as Counts II through IV of plaintiff Amy Wiginton’s complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the motion to dismiss is denied in part and granted in part.

BACKGROUND
Plaintiff Amy Wiginton is a resident of Brookfield, Illinois who was employed as a Marketing Director at CB Richard Ellis’ (hereinafter referred to as “Richard Ellis”) Oak Brook, Illinois office. She began working at Richard Ellis on December 7, 1997 and the continued to work there until she quit her job on December 31, 2001. Defendant Richard Ellis is a worldwide commercial real estate services company. (Complt. at ¶ 11.)
On September 25, 2002, Wiginton filed the instant lawsuit individually and on behalf of other women similarly situated alleging sex discrimination and harassment in violation of Title VII of the Civil Rights Acts of 1964, 42 U.S.C. § 2000e, et seq. According to the allegations in the complaint, which we are required to accept as true for purposes of this motion, Wiginton was forced to endure nearly daily sexual harassment once she began working at Richard Ellis. While we will not go into detail, Wiginton has alleged that she was subjected to harassment that included: 1) verbal comments regarding her body and her sexual history; 2) verbal propositions for sex; and 3) unwanted touching. (Complt. at ¶ 21.) Specifically, Wiginton has alleged that one of her former supervisors both grabbed and continuously stared at her breasts. Further, her supervisor at the time she quit subjected her to perhaps the most intense harassment. He allegedly propositioned her regularly for sex, he commented daily on her body and her clothes, he questioned her regarding her sexual life, and he called her “Wiggles” in front of her colleagues, an apparent reference to her breasts. (Complt. at ¶ 21(c).) Perhaps most reprehensible of all, Kozaritis allegedly circulated an email while Wiginton was on maternity leave implying that the father of her child was actually a male colleague. (Complt. at 21(g).)
Additionally, as part of her complaint, Wiginton has filed a number of class allegations which state that women employees of Richard Ellis as a group were subjected to a pattern and practice of discrimination on the basis of sex as a result “of a company-wide anti-female attitude.” (Complt. at ¶ 16.) In particular, the complaint alleges that sexually explicit and pornographic material was disseminated by male supervisors, including birthday cards portraying naked women and the inclusion of pornographic material as gifts at annual holiday parties. (Complt. at ¶ 18.) Additionally, plaintiff and similarly situated women at Richard Ellis were allegedly subjected to a “daily barrage of lewd remarks, propositions and sexist insults, as well as leering glances and ‘elevator eyes’ directed their way from co-workers and supervisors.” (Complt. at ¶ 19.)
*2 On December 31, 2001, Wiginton decided to voluntarily terminate her employment with Richard Ellis. The complaint suggests that the constant barrage of sexual harassment prompted her to make this decision. On January 2, 2002, the plaintiff
1

Wiginton v. Ellis, Not Reported in F.Supp.2d (2003)
filed timely charges with the United States Equal Employment Opportunity Commission (“EEOC”) alleging sex discrimination and sexual harassment. In September 2002, the EEOC issued Wiginton a Notice of Right To Sue letter. She filed this lawsuit shortly thereafter.
DISCUSSION
In ruling on a motion to dismiss, the Court must normally accept all factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Szumny v. Am. Gen. Fin., Inc., 246 F.3d 1065, 1067 (7th Cir.2001). The purpose of a motion to dismiss is not to decide the merits of the challenged claims but to test the sufficiency of the complaint. Weiler v. Household Fin. Corp., 101 F.3d 519, 524 n. 1 (7th Cir.1996). A court will grant a motion to dismiss only if it is impossible for the plaintiff to prevail under any set of facts that could be proven consistent with the allegations. Forseth v. Village of Sussex, 199 F.3d 363, 368 (7th Cir.2000).
In its motion to dismiss, the defendant has raised two primary issues. First, the defendant is seeking to strike the class component of Wiginton’s Title VII claim. Richard Ellis argues that the class action allegations contained in the complaint are outside the scope of the plaintiff’s EEOC charge. Second, the defendant requests that Counts II through IV of the complaint be dismissed because they are preempted by the Illinois Human Rights Act. We will address each of these arguments in turn.
I. Title VII Class Action Complaint In this portion of its motion to dismiss, Richard Ellis contends that the class action allegations of Wiginton’s complaint should be stricken because: 1) her EEOC charge does not contemplate the subsequent filing of a federal class action sexual harassment/discrimination lawsuit; and 2) the time period for the purported class is broader than the period alleged in the EEOC charge. Both parties agree that the defining precedent for this case is the Seventh Circuit’s ruling in Schnellbaecher v. Basking Clothing Co., 887 F.2d 124 (7th Cir.1989).
It is well settled that a federal complaint alleging employment discrimination pursuant to Title VII must rely upon a timely charge of discrimination filed with the EEOC. See Alexander v. Gardner–Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011 (1974); Cheek v. Western and Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir.1994). It is also well settled that the allegations contained in the complaint must be sufficiently “like” or “related to” the allegations of the underlying EEOC charge so that: 1) the defendant was placed on notice of the claims it would be required to defend against; and 2) the EEOC had an opportunity to investigate the allegations that might eventually find their way into a lawsuit and attempt to conciliate the differences between the parties. See Schnellbaecher, 887 F.2d at 127; Babrocky v. Jewel Food Co., 773 F.2d 857, 863 (7th Cir.1985) (“allowing a complaint to encompass allegations outside the ambit of the predicate EEOC charge would circumvent the EEOC’s investigatory and conciliatory role, as well as deprive the charged party of notice of the charge, as surely as would an initial failure to file a timely EEOC charge.”).
*3 The requirement that the complaint allegations be “like or reasonably related to” the allegations contained in the EEOC charge extends to the scope of the complaint, so that a class action claim in the lawsuit could have been properly anticipated in the underlying charge. Under the Schnellbaecher regime, our focus is the content of the charge itself and not on the subsequent EEOC investigation, if any. Whether the EEOC in fact investigated certain allegations contained in the charge is likely to have some effect on whether the defendant received adequate notice and had a chance to conciliate. But even “a limited EEOC investigation will not necessarily defeat a complaint where the complaint contains allegations like or reasonably related to the EEOC charge, but which the EEOC failed to investigate. In such a case, ‘the proper inquiry would be into what EEOC investigation could reasonably be expected to grow from the original complaint.” ’ Schnellbaecher, 887 F.2d at 127 (quoting Babrocky, 773 F.2d at 864, n. 2).
In its motion, Richard Ellis has argued that Wiginton’s EEOC charge was insufficient to either put it on notice of the purported class claims it would have to defend against or to allow the EEOC an opportunity to investigate and/or conciliate the dispute prior to the filing of the lawsuit. We disagree. While it is true that the plaintiff’s EEOC charge did not use the magic term “class action,” the caselaw is clear that a EEOC charge need not contain the words “class action” in order to support a subsequent class lawsuit. See Anderson v. Montgomery Ward & Co., Inc., 852 F.2d 1008, 1017 (7th Cir.1988); Ruiz v. Adecco Employment Svcs., 2002 WL 31427454, at *2 (S.D.Ind. Oct. 25, 2002).
2

Wiginton v. Ellis, Not Reported in F.Supp.2d (2003)
In her five paragraph EEOC charge, Wiginton devoted one entire paragraph to her contentions that male employees and supervisors at Richard Ellis sexually discriminated against and harassed her female colleagues. Paragraph 3 of the charge states as follows:
Management personnel and other male employees have also sexually harassed, and continue to sexually harass, other female employees by making sexual advances to them at work, commenting on the sexual attributes of women’s body parts, distributing pornographic material under the guise of birthday cards and in holiday grab bags, and engaging in various pornographic and lewd behaviors at employer-sanctioned parties, conferences and trips. I am and have been offended, embarrassed, upset and distressed by this intolerable sexual harassment.
(EEOC Charge at ¶ 3) (emphasis added). This paragraph unmistakably asserts that women other than the plaintiff were subjected to the same type of lewd behavior that prompted Wiginton to file this action in the first place. Therefore, we have no doubt that the class action allegations contained in the federal complaint are “like or reasonably related to” the allegations contained in paragraph 3 of Wiginton’s EEOC charge. Thus, the motion to dismiss the substance of the class action allegations is denied.
*4 The second prong of Richard Ellis’ attack on the class action complaint is the argument that the class lawsuit falls outside the temporal scope of the EEOC charge. This is a better argument. On the generic EEOC charge of discrimination form, there is a space in which the complainant can indicate both the earliest and latest dates of discrimination. In this section of her EEOC charge, Wiginton alleged that the discrimination and harassment began in January 1999 and continued until the time she filed her charge in January 2002. Based on our reading of the charge and the complaint, this served to put Richard Ellis on notice that it would have to defend against individual and class action allegations of sexual harassment and discrimination for the time period between January 1999 and January 2002. However, in her complaint, Wiginton has asserted that the period for her class action allegations began in January 1997. This is improper because nowhere in her EEOC charge did Wiginton mention the year 1997. Thus, there is no way that Richard Ellis was put on notice that it would have to defend a class action suit that potentially could include women allegedly discriminated against before Wiginton even started working there.
In summary, the defendant’s motion to dismiss or strike the class action allegations in Count I because the class claims were not included in the EEOC charge is denied. The EEOC charge amply placed Richard Ellis on notice that it potentially would have to contend with a class of women who allegedly were sexually harassed by male supervisors and colleagues. However, as this case goes forward, any putative class definition must be restricted to the allegedly discriminatory treatment that female CB Richard Ellis employees were subjected to between January 1, 1999 and the present. This ruling will remain in effect for all subsequent briefing on a motion for class certification.
II. State Law Counts In addition to her Title VII allegations, Wiginton’s complaint also includes a variety of state law tort counts. Count II alleges intentional infliction of emotional distress. Count III alleges negligent supervision. Count IV alleges negligent retention. In her response to the motion to dismiss, Wiginton acknowledged that she cannot state a claim for negligent supervision or negligent retention and she asked that these Counts be dismissed. That request is granted. Counts III and IV are hereby dismissed. Richard Ellis argues that Count II should also be dismissed because it is preempted by the Illinois Human Rights Act. We agree.
The Illinois Human Rights Act (“IHRA”) prohibits employment discrimination based on a person’s disability. 775 ILCS 5/1–101 et seq. The IHRA preempts all state law claims “seeking redress for a ‘civil rights violation’ within the meaning of [that] statute.” Geise v. Phoenix Co. of Chicago, Inc., 159 Ill.2d 507, 639 N.E.2d 1273, 1276 (1994). However, when a course of conduct states an independent state law claim, that independent claim is not preempted by the IHRA. In other words, “if the conduct would be actionable even aside from its character as a civil rights violation because the IHRA did not ‘furnish[ ] the legal duty that the defendant was alleged to have breached,’ the IHRA does not preempt a state law claim.” Krocka v. City of Chicago, 203 F.3d 507, 516–517 (7th Cir.2000) (quoting Maksimovic v. Tsogalis, 177 Ill .2d 511, 687 N.E.2d 21, 23 (1997)). The policy behind this preemption doctrine is well-founded. If state law torts based on the same allegations which underlie the employment discrimination action were permitted to exist independently, then the notice and conciliation goals of the federal and state statutes would be severely undermined. That is why federal courts have routinely determined that, in employment discrimination suits, state law torts should be subsumed by Title VII and the IHRA.
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Wiginton v. Ellis, Not Reported in F.Supp.2d (2003) *5 In this case, Wiginton begins her claim for intentional infliction of emotional distress by repeating and realleging all of the allegations which formed the basis for her well-pled Title VII count. (Complt. at ¶ 38.) She then continues in the next paragraph by stating that Richard Ellis, “through its managers and employees, intentionally engaged in extreme and outrageous conduct and [Richard Ellis], through its managers and employees, perpetrated such conduct in the course of plaintiff and the Class’ employment.” (Complt. at ¶ 39.) In other words, the exact same allegations which formed the basis for her Title VII count also support her intentional infliction of emotion distress count. In the words of the Seventh Circuit, the intentional infliction of emotional distress claim is “inextricably linked” to her Title VII claim. Krocka, 203 F.3d at 517. It cannot exist but for the sexual harassment/discrimination allegations. Thus, Count II of Wiginton’s claim is dismissed because it is preempted by the Human Rights Act. Even though her intentional infliction of emotional distress claim has been dismissed, Wiginton should not be discouraged or disheartened. Any and all relief Wiginton sought as part of her intentional infliction of emotional distress claim, if proven, is fully recoverable as punitive damages in connection with her Title VII claim.
CONCLUSION For the foregoing reasons, the defendant’s motion to dismiss for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6) is denied in part and granted in part. The motion to strike the substantive class allegations is denied. However, the purported class cannot include women who were allegedly discriminated against prior to January 1, 1999. Furthermore, the motion to dismiss Count II is granted because it is preempted by the Illinois Human Rights Act. Counts III and IV are also dismissed. It is so ordered.
Parallel Citations 91 Fair Empl.Prac.Cas. (BNA) 1635
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