UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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LARYSSA JOCK, JACQUELYN BOYLE,

:

CHRISTY CHADWICK, LISA FOLLETT, MARIA :

HOUSE, DENISE MADDOX, LISA McCONNELL, :

GLORIA PAGAN, JUDY REED, LINDA RHODES :

KHRISTINA RODRIGUES, NINA

:

SHAHMIRZADI, LEIGHLA SMITH, DAWN

:

SOUTO-COONS, and MARIE WOLF,

:

:

Plaintiffs,

:

:

-v-

:

:

STERLING JEWELERS, INC.,

:

:

Defendant.

:

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JED S. RAKOFF, U.S.D.J.

08 Civ. 2875 (JSR) MEMORANDUM ORDER

Plaintiffs, current and former female employees of defendant Sterling Jewelers, Inc. (“Sterling”), a nationwide specialty jeweler, brought this class action alleging sex discrimination in pay and promotion, in violation of Title VII, 42 U.S.C. § 2000e et seq., and the Equal Pay Act, 29 U.S.C. § 206(d). The parties then filed three motions, all concerning a single question: whether, as plaintiffs believe, the Court promptly should refer the entire action to arbitration, or, as Sterling believes, the Court must first rule on certain threshold procedural issues. Because the parties’ arbitration agreement could not more clearly grant the Court discretion as to whether to decide or refer the procedural claims, and because the Court believes these procedural questions are better suited to resolution by the arbitrator, the Court, by Order dated June 18, 2008, granted in full plaintiffs’ Motion to Refer to Arbitration and Stay the Litigation (“arbitration motion”). In

addition, the Court denied defendant’s Motion for Bifurcated Scheduling, Consideration, and Disposition of Legal Issues Relative to the Workplace Dispute Resolution Agreement Between Each Plaintiff and Defendant (“scheduling motion”), and denied as moot plaintiffs’ Motion to Strike Counterclaims from the Pleadings Pursuant to Rule 12(f) or, in the Alternative, Motion to Dismiss Counterclaims Pursuant to Rule 12(b)(6) (“motion to strike”). This Memorandum Order gives the reasons for these rulings and denies defendant’s recent motion for certification.
In June 1998, Sterling put in place a three-step alternative dispute resolution program, called “RESOLVE,” for dealing with employment disputes. See Counterclaims ¶ 10. Step three of RESOLVE provides for binding arbitration of such disputes, with the arbitration to be conducted by the American Arbitration Association (“AAA”), in accordance with AAA rules as amended by certain RESOLVE-specific rules. See RESOLVE Agreement of Maria House (“House Agreement”), Ex. A to Answer, Affirmative Defenses, and Amended Counterclaim of Defendant Sterling Jewelers Inc. (“Answer”); RESOLVE Guidelines, Ex. G. to Answer. While the RESOLVE Agreement presented to various employees for signature appears to have undergone at least some revisions over time, the most recent version of the Agreement, signed by at least one and possibly three of the instant plaintiffs, contains the following language:
[P]rocedural questions, which grow out [of] the dispute and bear on the final disposition, are . . . matters for the arbitrator. However, where a party already has
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initiated a judicial proceeding, a court may decide procedural questions that grow out of the dispute and bear on the final disposition of the matter (e.g., one (1) year for filing a claim).
House Agreement at 2 (emphasis added).1 The RESOLVE Program Rules
contain an identical provision. See Sterling Jewelers Inc. RESOLVE
Program Arbitration Rules (“Rules”), Ex. C to Memorandum of Points
and Authorities in Support of Plaintiffs’ Motion to Refer to
Arbitration and Stay the Litigation (“Pl. Mem. - Arb.”).
Plaintiffs filed this action on March 18, 2008, and, around
the same time, initiated a claim for arbitration with the AAA
pursuant to Step 3 of the RESOLVE Program. See Letter from Joseph
Sellers, dated March 24, 2008, Ex. E to Pl. Mem. - Arb. Plaintiffs
took these alternative steps, according to plaintiffs’ counsel’s
contemporaneous correspondence (as well as his subsequent credible
explanation to this Court), because plaintiffs had some doubts about
the enforceability of RESOLVE and so sought to protect their rights
by commencing both kinds of proceedings.2 Shortly after plaintiffs
1 It is unclear whether the plaintiffs who signed earlier versions of the Agreement, or who (because they were hired prior to June 1998) never signed any agreements but were bound by RESOLVE as a condition of their continued employment, are bound by the most recent version of the Agreement and the most recent RESOLVE Rules. But, even though the earlier versions do not appear to contain the quoted language regarding judicial resolution of procedural issues, nonetheless, because the Court finds that even under the most recent version of the Agreement it would refer the entire case to arbitration, it need not determine which plaintiffs are bound by which RESOLVE-related rules.
2 Specifically, plaintiffs believed that the RESOLVE Rules, which prohibited the arbitrator from “modify[ing] Company rules, policies, and procedures,” Rules at 1, were in apparent conflict with the RESOLVE Agreement, which provided that the arbitrator would “shall have the power to award any types of legal or
3

filed the complaint in this action, Sterling made representations to plaintiffs’ counsel that satisfied plaintiffs’ counsel that his concerns regarding RESOLVE’s enforceability were no longer founded. See Letter from Joseph Spagnola, dated April 1, 2008, Ex. H to Pl. Mem. - Arb. Immediately thereafter, plaintiffs proposed to Sterling that they enter a joint stipulation to refer the entire action to arbitration, but Sterling declined to enter such a stipulation. See Declaration of Joseph Sellers ¶ 3.
On April 30, 2008, Sterling filed an Answer and Counterclaims. The counterclaims sought a declaration that this Court, rather than the arbitrator, resolve three procedural issues before referring the substantive disputes to RESOLVE: first, whether plaintiffs may proceed as a class in arbitration or must arbitrate their cases individually, see Counterclaims ¶ 51(a)-(b); second, whether claims of certain of the named plaintiffs are time-barred under RESOLVE, see id. ¶¶ 53-57; and third, when the limitations period for the plaintiffs’ Equal Pay Act claims began, see id. ¶ 60.
The parties’ subsequently filed the three instant motions: plaintiffs’ arbitration motion, asking the Court to refer plaintiffs’ claims to RESOLVE arbitration and stay the federal action; Sterling’s scheduling motion, asking the Court to bifurcate these proceedings
equitable relief that would be available under applicable law,” Agreement at 1. Consequently, plaintiffs believed there was some doubt as to whether the arbitrator would be able to grant the type of relief plaintiffs sought - viz., changes to Sterling’s hiring and promotion policies. Plaintiffs also had concerns about whether plaintiffs would bear costs in arbitration that exceeded those charged in federal court. See Pl. Mem. - Arb. at 1-2.
4

and consider the procedural issues before referral; and plaintiffs’ motion to strike the three counterclaims described above.
The Supreme Court has held that where a contract refers “all disputes” to an arbitrator, without specifically providing for the resolution of procedural issues such as class arbitrability, such procedural issues are typically for arbitrators, not courts, to decide. See Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444, 452-53 (2003) (reasoning that such procedural issues are not among the “limited” types of questions – such as “whether the parties have a valid arbitration agreement at all” – generally intended for judicial resolution, and that “[a]rbitrators are well situated to answer” such procedural issues because they turn on “contract interpretation and arbitration procedures”). Here, however, the agreement does specifically address the resolution of procedural issues where one party already has initiated a lawsuit, stating that in such circumstances “a court may decide procedural questions that grow out of the dispute and bear on the final disposition of the matter.” House Agreement at 2 (emphasis added). Green Tree is therefore inapposite, and the question becomes one of contract interpretation. See, e.g., Howsam v. Dean Witter Reynolds, 537 U.S. 79, 83 (2002); John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 546 (1964). But the interpretation is simple because the language of the RESOLVE Agreement is crystal clear: by providing that the Court “may” decide procedural questions, it grants the Court discretion as to whether to
5

decide them or not.3 Sterling’s imaginative arguments to the contrary are all
unavailing. First, Sterling contends that the quoted provision in the RESOLVE Agreement not only cancels Green Tree’s presumption that where a contract is silent procedural issues go to the arbitrator, it inverts it – i.e., it requires that such issues instead go to a court. While the Court agrees that Green Tree’s presumption does not operate here, Sterling’s position fails to take the further step of looking to see what the contract in fact provides: here, not for compulsory judicial resolution but for judicial discretion.
Second, Sterling argues that plaintiffs may not petition the Court for referral to arbitration because, having filed this action, they are not “aggrieved” parties within the meaning of the Federal Arbitration Act. See 9 U.S.C. § 4 (“A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States District Court . . . for an order directing that such arbitration proceed . . . .”). Since, however, Sterling vigorously opposed plaintiffs’ motion to refer this case to arbitration, the Court fails to see how Sterling was not thereby “refus[ing] . . . to arbitrate” within the statute’s meaning, notwithstanding either party’s prior conduct.
3 Bafflingly, Sterling took the position both in its papers and at oral argument that “‘may’ means must.” See Tr. 6/12/08. Equally mysteriously, plaintiffs contended in their papers that “may” means “must not,” though plaintiffs backed away from this view at oral argument. See id. One may only hope that counsel will henceforth become better acquainted with the English language.
6

Third and relatedly, Sterling contends that by initiating
this suit, plaintiffs repudiated the arbitration agreement and have
therefore waived the right to compel arbitration. The Second
Circuit, however, has held that courts should find such a waiver only
if a party “engages in protracted litigation that results in
prejudice to the opposing party.” In re S&R Co. of Kingston v.
Latona Trucking, Inc., 159 F.3d 80, 83 (2d Cir. 1998) (internal
quotation marks omitted). Here, the three factors identified by the
Second Circuit – “the time elapsed from the commencement of
litigation to the request for arbitration,” “the amount of
litigation,” and “proof of prejudice,” id. – all strongly dictate a
finding that plaintiffs have not waived their right to arbitrate.
Moreover, plaintiffs’ initial decision to initiate both arbitral and
judicial proceedings while doubts remained about RESOLVE’s enforceability was perfectly reasonable.4
Because the parties’ contract clearly grants this Court
discretion either to resolve procedural issues or to refer them to
the arbitrator, as it sees fit, the only remaining question for the
Court is which body is better suited to evaluating the procedural
issues identified here. As an initial matter, the Court notes that
4 At oral argument, Sterling argued that even if plaintiffs’ initial filing was reasonable, their decision to file an amended complaint, made after Sterling provided assurances about RESOLVE’s enforceability, was in bad faith. See Tr. 6/12/08. Plaintiffs countered that at the time they proposed a stipulation to refer the case to arbitration, Sterling had yet to file its Answer and Counterclaims, and so Sterling suffered no prejudice from either the initial or subsequent filing. See id. The Court need not resolve this issue here, however, because it does not bear on the instant motions.
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it has not, in the course of reviewing the parties’ motions, had occasion to consider the legal merits or factual basis of any of plaintiffs’ underlying claims. Particularly against that backdrop, all three of the procedural issues described in Sterling’s counterclaims are ones more appropriately directed to the arbitrator. The first counterclaim goes to whether claimants may arbitrate as a class; this type of question – i.e., “what kind of arbitration proceeding the parties agreed to,” Green Tree, 539 U.S. at 452 – is answered by interpreting contract language and arbitration rules, precisely the tasks an arbitrator undertakes. The second counterclaim, which concerns whether certain plaintiffs timely initiated RESOLVE, is also better-suited to the arbitrator charged specifically with enforcing RESOLVE. The third counterclaim, concerning when the limitations period under the Equal Pay Act commenced in this case, appears likely to involve at least some factual discovery related to when each plaintiff initiated RESOLVE, even if purely legal issues are also implicated. Thus an arbitrator is better situated to address that claim as well.
For all of these reasons, the Court, in its June 18 Order, granted plaintiffs’ motion to refer this case to arbitration and stayed the instant action; it likewise denied Sterling’s motion to bifurcate scheduling. In light of the immediate referral to arbitration, moreover, plaintiffs’ motion to strike Sterling’s counterclaims was rendered moot, and so the Court denied it as such.
Subsequently, Sterling moved the Court to certify the issues presented by these motions for interlocutory appeal under 28 U.S.C.
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 Case 2:08-cv-02875-JSR Document 11 Filed 04/24/08 Page 1 of 51

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

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LARYSSA JOCK, JACQUELYN

:

BOYLE,CHRISTY CHADWICK, KELLY :

CONTRERAS, LISA FOLLETT, MARIA :

HOUSE, DENISE MADDOX, LISA

:

McCONNELL, GLORIA PAGAN, JUDY :

REED, LINDA RHODES, KHRISTINA :

RODRIGUES, NINA SHAHMIRZADI,

:

LEIGHLA SMITH, DAWN SOUTO-

:

COONS, and MARIE WOLF,

:

:

Plaintiffs,

:

:

-against-

:

:

STERLING JEWELERS INC.,

:

Defendant.

: :

-------------------------------------- X

Civil Action No. 08-cv-2875 (JSR)
PLAINTIFFS’ FIRST AMENDED CLASS ACTION COMPLAINT
JURY TRIAL DEMANDED

Plaintiffs Laryssa Jock, Jacquelyn Boyle, Christy Chadwick, Kelly Contreras, Lisa

Follett, Maria House, Denise Maddox, Lisa McConnell, Gloria Pagan, Judy Reed, Linda Rhodes,

Khristina Rodrigues, Nina Shahmirzadi, Leighla Smith, Dawn Souto-Coons, and Marie Wolf,

(collectively referred to as “Plaintiffs”) on behalf of themselves and all similarly situated

persons, by their attorneys, Cohen, Milstein, Hausfeld & Toll, P.L.L.C., Thomas A. Warren Law

Offices, P.L., and Burr & Smith, LLP, allege as follows:

INTRODUCTION

1. Plaintiffs bring this action to challenge a pattern and practice of sex

discrimination in promotion and compensation committed against current and former female

employees by Sterling Jewelers Inc. Sterling Jewelers Inc. operates more than 1300 stores in

all 50 states under at least 12 retail brand names, including but not limited to, Jared The

Galleria of Jewelry (“Jared”), Kay Jewelers (“Kay”), Belden Jewelers (“Belden”), JB Robinson

Case 2:08-cv-02875-JSR Document 11 Filed 04/24/08 Page 2 of 51
Jewelers (“JB Robinson”), Marks & Morgan Jewelers, Weisfield Jewelers, Osterman Jewelers, Shaw’s Jewelers, Rogers Jewelers, LeRoy’s Jewelers, Goodman Jewelers and Friedlanders Jewelers (collectively referred to as “Sterling”).
2. Sterling’s promotion and compensation policies and practices caused female employees with retail sales responsibilities, which includes store-based employees up to and including district managers, (collectively referred to as “Retail Sales Employees”) to be (a) denied promotional opportunities for which they were qualified, and (b) paid less than men performing the same work. The employment policies and practices of Sterling have had the effect and have been undertaken with the purpose of denying promotional opportunities and equal compensation to qualified female employees because of their gender.
3. This action is brought by current and former female Sterling Retail Sales Employees on behalf of themselves and all other similarly situated women as a class action challenging pay and promotion discrimination under Title VII of the Civil Right Act of 1964, 42 U.S.C. §§ 2000(e), et seq. Plaintiffs also bring this action on their own behalf and pursuant to 29 U.S.C. § 216(b) as representatives of a proposed collective action of similarly situated employees who have been willfully denied equal pay for equal work under the Equal Pay Act, 29 U.S.C. § 206.
JURISDICTION, VENUE AND EXHAUSTION OF REMEDIES 4. Plaintiffs’ class claims arise under Title VII of the Civil Right Act of 1964, 42
U.S.C. §§ 2000(e), et seq. and the Civil Rights Act of 1991, 42 U.S.C. § 1981 and the Equal Pay Act, 29 U.S.C. § 206(d). This Court has jurisdiction over Plaintiffs’ class claims pursuant to 42 U.S.C. § 2000e-5(f), 28 U.S.C. §§1331 and 1343(a)(4), and supplemental jurisdiction over Plaintiffs Denise Maddox, Lisa McConnell, Judy Reed, and Nina Shahmirzadi’s individual claims.
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5. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b) & (c) and 42 U.S.C. § 2000e-5(f)(3). The claims of four of the named Plaintiffs Laryssa Jock, Christy Chadwick, Lisa Follett, and Linda Rhodes arose in the state of New York, and a substantial part of the unlawful acts set forth below occurred within the State of New York. Sterling operates approximately 67 stores within New York. Sterling operates at least nine stores within the Southern District of New York.
6. Plaintiffs have exhausted administrative remedies pursuant to 42 U.S.C. § 2000e-5(f)(3). Each of the Plaintiffs, except for Kelly Contreras, has filed a charge of discrimination with the Equal Employment Opportunity Commission, (“EEOC”) on behalf of themselves and all other similarly situated current and former female employees of Sterling. On January 3, 2008, the EEOC issued a Determination Letter finding there was reasonable cause to believe Sterling has engaged in a pattern or practice of discrimination as alleged in the charges, in violation of Title VII and the Equal Pay Act. A copy of this Determination is attached hereto as Exhibit 1. All Plaintiffs named in the complaint have timely exhausted any administrative prerequisites to filing this action. Plaintiff Contreras participates as a named Plaintiff pursuant to the single-filing rule. Plaintiffs also received notices of their right to sue dated March 18, 2008.
7. Sterling maintains a three stage alternative dispute resolution (“ADR”) program in which it compels its employees to participate. Employees are required to file an administrative complaint in order to initiate the first stage of the ADR program. The first administrative complaints, each of which alleges a pattern or practice of sex discrimination in promotions and pay on behalf of the complainant and others similarly situated, were filed on February 27, 2006, by Laryssa Jock, Jacquelyn Boyle, Lisa Follet, Judy Reed, Dawn Souto-
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Coons, and Maria Wolf. The first stage of the ADR process has concluded. 8. The second stage, which provides an opportunity for the parties to engage in
mediation, has also been completed. 9. The third stage of the ADR program provides that unresolved claims be
submitted to arbitration pursuant to rules prescribed by the American Arbitration Association. As terms of the arbitration program impose excessive expenses as a condition of arbitration and restrict the discretion of the arbitrator to award relief expressly permitted by Title VII the agreement is unenforceable.
10. Written Consents To Join this Equal Pay Act collective action are attached hereto for Plaintiffs Laryssa Jock, Jacquelyn Boyle, Christy Chadwick, Kelly Contreras, Maria House, Denise Maddox, Lisa McConnell, Judy Reed, Linda Rhodes, Nina Shahmirzadi, Leighla Smith, Dawn Souto-Coons, and Marie Wolf, as Exhibit 2.
PARTIES Plaintiffs
11. Plaintiff Laryssa Jock is a female resident of Bombay, New York in Franklin County and has been employed by Sterling from approximately May 15, 1995 to the present as a sales associate in the Kay Jewelers and Belden stores in Massena, New York.
12. Jacquelyn Boyle is a female resident of Tampa, Florida in Hillsborough County and was employed by Sterling from September 2004 to June 1, 2005 as a sales associate in the Jared store in Brandon, Florida.
13. Christy Chadwick (formerly Christy Davies) is a female resident of Massena, New York in St. Lawrence County and was employed by Sterling from approximately November 2005 until approximately March 2006 as a sales associate at the Belden store in Massena, New York.
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14. Kelly Contreras is a female resident of Ramsey, Minnesota in Anoka County. During her employment with Sterling from approximately March of 1993 until approximately June 2005, Contreras was a manager in waiting in Madison, Wisconsin, a store manager in St. Cloud, Minnesota, Maplewood, Minnesota, and in Cincinnati, Ohio, and a district manager in the Dayton, Ohio area.
15. Lisa Follett is a female resident of Massena, New York in St. Lawrence County and was employed by Sterling from approximately October 2004 until approximately June 2005 as a sales associate at the Belden store in Massena, New York.
16. Maria House is a female resident of Bakersfield, California in Kern County and was employed by Sterling as a sales associate at a Kay Jewelers store in Bakersfield, California from approximately June 2005 through August 2006.
17. Denise Maddox is a female resident of Plano, Texas in Collin County and was employed with Sterling from approximately 1997 through January of 2007. During her employment with Sterling at various Jared stores, Maddox was a sales associate and diamond department manager in Westminster, Colorado, an assistant manager in Roseville, California, a sales associate in Englewood, Colorado, and a store manager in Dallas, Texas.
18. Lisa McConnell is a female resident of Elkhart, Indiana in Elkhart County and was employed by Sterling at a Kay Jewelers store from July 2001 until August 30, 2006 in Elkhart, Indiana. During her employment with Sterling, McConnell was a sales associate, assistant manager, and store manager in Elkhart, Indiana.
19. Gloria Pagan (formerly Gloria Huff) is a female resident of Lake St. Louis, Missouri in St. Charles County and was employed by Sterling as a sales associate at the JB Robinson Jewelers store in Saint Peters, Missouri from approximately August 2005 until
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December 26, 2005. 20. Judy Reed is a female resident of Palm Harbor, Florida in Pinellas County and
has been employed by Sterling from October 2000 until the present. During her employment with Sterling, Reed was an assistant manager in Appleton, Wisconsin, a diamond department manager and assistant manager in Tampa, Florida at Jared.
21. Linda Rhodes is a female resident of Massena, New York in St. Lawrence County and was employed by Sterling from approximately November 2005 until November 14, 2006 as sales associate at the Belden store in Massena, New York.
22. Khristina Rodrigues is a female resident of Fall River, Massachusetts in Bristol County and was employed by Sterling from 2001 to 2003. Rodrigues was rehired by Sterling in June 2004 and is currently employed by Sterling. During her employment with Sterling, Rodrigues was a sales associate and assistant manager at Kay stores in Swansey, Massachusetts and Taunton, Massachusetts.
23. Nina Shahmirzadi is a female resident of Henderson, Nevada in Clark County and was employed by Sterling as a sales associate from approximately October 10, 1997 until November 1, 2006 at a Kay store and Jared store in Henderson, Nevada.
24. Leighla Smith is a female resident of Mt. Holly, New Jersey in Burlington County and was employed by Sterling as a sales associate from approximately August 2004 until April 2005 at Kay stores in Burlington, New Jersey and Cupertino, California.
25. Dawn Souto-Coons is a female resident of Wimauma, Florida in Hillsborough County and was employed with Sterling from approximately September 1991 until approximately May 27, 2005. During her employment with Sterling, Souto-Coons was a sales associate, assistant manager, and store manager in the JB Robinson store in Waldorf, Maryland,
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store manager in Gaithersburg, Maryland, and assistant manager in Brandon, Florida. 26. Marie Wolf is a female resident of Riverview, Florida in Hillsborough County
and has been employed by Sterling as a sales associate at a Jared store in Brandon, Florida from approximately 2002 until the present.
Defendant 27. Defendant Sterling is the largest specialty jeweler in the United States, with at
least 1,300 stores doing business under various brands in all 50 states. Sterling is a nationwide company, with its headquarters in Akron, Ohio.
COMPANY WIDE PRACTICES CHALLENGED 28. Sterling has subjected female Retail Sales Employees to a pattern or practice of
sex discrimination in its promotion and compensation decisions. These practices reflect that discrimination is the standard operating procedure - the regular, rather than the unusual practice at Sterling.
29. Sterling’s pattern or practice of sex discrimination in its promotion and compensation decisions have had a disparate impact adverse to women.
30. Pursuant to the EEOC’s investigation of Plaintiffs’ charges, the EEOC issued a determination that Sterling “subjected charging parties and a class of female employees with retail sales responsibilities nationwide to a pattern or practice of sex discrimination in regard to promotion and compensation. Statistical analysis of pay and promotion data provided by Respondent reveals that Respondent promoted male employees at a statistically significant, higher rate than similarly situated female employees and that Respondent compensated male employees at a statistically significant, higher rate than similarly situated female employees. Witness testimony further corroborates the allegations.” EEOC Determination Letter, Ex. 1.
31. Sterling’s promotion and compensation policies, centrally issued, apply to all
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stores throughout the company, regardless of brand and are substantially similar, if not identical, throughout the Sterling stores.
32. Discrimination in Promotions: The Plaintiffs challenge the following practices, and any others with similar purpose or effect, which have encouraged, permitted or had the effect of discriminating against female Retail Sales Employees by denying them equal access to promotions:
a. Throughout the period covered by this action, Sterling has refused to publicize jobs when they become vacant. Nor does Sterling provide a system by which employees can apply for particular vacancies or be assured of consideration for selection. Absent a system for announcing vacancies and for permitting applications for particular positions from interested candidates, Sterling has allowed managers to notify and recruit for selection employees whom they personally favor in what has historically been known as a “tap on the shoulder” system. Nor has Sterling provided its managers with merit-based guidance about who should be selected to fill the vacant positions. Accordingly, Sterling has granted its managers virtually unfettered discretion to identify and select candidates using personal preferences and stereotypes, without any assurance the criteria used to make promotion selections are based on merit.
b. Prior to April 2007, Sterling even lacked a system by which employees could express an interest in promotions generally. Only after Plaintiffs filed charges with the EEOC in 2005 did Sterling announce a process
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permitting its employees to register their interest in promotion opportunities generally. Still Sterling has refused to publicize job vacancies, nor does it provide employees with the opportunity to apply for particular vacancies. c. As a consequence of these policies and practices, women working in storebased jobs and as district managers at Sterling have been denied equal opportunity to obtain promotions into and within management jobs. 33. Discrimination in Compensation: The Plaintiffs challenge the following practices, and any others with similar purpose or effect, which have encouraged, permitted or had the effect of discriminating against Retail Sales Employees by causing them to be paid less than male employees performing the same work, at the same levels, in the same area, and at the same time period. a. Sterling’s compensation policy offers little or no guidance on setting wage rates. Pursuant to these policies, Sterling provides its managers with broad discretion to set compensation pursuant to personal biases and stereotypes rather than merit-based criteria. b. As a result, women are paid less than men performing the same work, at the same levels, in the same area, and at the same time period. 34. Sterling has a policy or practice barring employees from discussing their wages with other employees. This policy or practice has prevented some Plaintiffs and some members of the proposed class and collective action from making a fully-informed comparison of their compensation with the pay of similarly-situated male employees. 35. Sterling has permitted or encouraged other workplace conduct that may
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exacerbate the discrimination in promotions and compensation alleged above. a. Sterling managers have subjected female employees to sexual harassment and other discriminatory comments based upon their sex. b. Sterling has failed to take prompt and effective remedial action in response to complaints of discrimination and to comments demeaning to women made in the workplace.
36. Sterling has entrusted its supervisors with broad discretion that is unguided in its exercise, affording them opportunities to apply personal preferences and biases in making promotion and compensation decisions. Sterling knew or should have known that its promotion and compensation practices were being used with the purpose and having the effect of denying qualified women employees equal opportunities to obtain promotions and to be paid at the same levels as similarly-situated male employees. Accordingly, the practices identified above are being challenged under systemic disparate treatment and disparate impact theories of discrimination.
37. Sterling’s pay and promotion policies and practices applicable to Retail Sales Employees have adversely affected women employees throughout the company.
38. Similarly, the structure of the workforce comprised of employees with retail responsibilities and the work performed in those positions are similar throughout the more than 1,300 Sterling stores at which members of the proposed class have worked.
39. Sterling’s stores have three primary job positions, and each position involves performance of the same or similar duties.
40. The entry level sales job is the sales associate position, above which is the entry level management position known as assistant manager and the highest level position in
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management within Sterling stores is designated as the store or general manager. 41. Management of sales and personnel actions with Sterling stores are overseen by
district managers, who supervise operations at several stores within a district, and by regional vice presidents, who oversee the operations of stores located in multiple districts.
42. The essential duties of each in-store position are the same throughout the Sterling stores, regardless of store brand.
43. As the duties for each position are nearly identical throughout the Sterling stores, employees may and frequently do transfer between Sterling stores with different brand names, and across geographic areas within and between states.
COLLECTIVE ACTION ALLEGATIONS 44. With respect to their Equal Pay Act claim, Plaintiffs bring this action pursuant to
29 U.S.C. §§ 206(d), et seq., on behalf of themselves and all other women similarly situated. The members of the class are all female Retail Sales Employees employed in the United States by Sterling on or any time after February 27, 2003 until the end of the period provided by law.
45. Plaintiffs have satisfied the requirements of a collective action pursuant to 29 U.S.C. § 216(b).
CLASS ACTION ALLEGATIONS 46. With respect to the claims arising under Title VII of the Civil Rights Act of
1964, as amended, the Plaintiffs bring this action pursuant to 42 U.S.C. § 2000(e), et seq. and seek certification of a class pursuant to Rule 23, Fed. R. Civ. P., comprised of all female Retail Sales Employees who worked in the United States from the beginning of the illegal practice challenged here through the first day of trial in this action. Plaintiffs are members of the class they seek to represent.
47. Sterling’s policy, pattern, or practice of discrimination in pay and promotion
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operated within 300 days of the first charge of discrimination and unlawfully denied promotions to one or more named Plaintiffs and caused one or more named Plaintiffs to be paid less than similarly situated men.
48. This action is properly maintainable as a class action because the requirements of Rule 23(a) and Rule 23(b) are met.
49. The class members are sufficiently numerous to make joinder of all members impracticable. Upon information and belief, more than 20,000 current and former employees would qualify as members of the proposed class.
50. The claims alleged on behalf of the named Plaintiffs as class representatives raise questions of law or fact common to the class. These common questions include, but are not limited to:
a. whether Sterling’s common operating practices and procedures discriminate against its female employees;
b. whether Sterling’s common policies have had an adverse impact upon the class, and if so, whether such impact can be justified by business necessity;
c. whether Sterling has acted intentionally to deny equal opportunities to female employees to obtain promotions into and within management jobs and to compensate female employees less than similarly situated male employees in violation of Title VII;
d. whether Sterling invests its managers with excessive discretion in making promotion and compensation decisions; and
e. whether the class may obtain an award of damages and obtain injunctive
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and other equitable remedies. 51. The claims of the class representatives are typical of the class they seek to represent. 52. The class representatives and counsel will adequately and fairly protect the interest of the class. 53. This action is properly maintainable as a class action under Rule 23(b)(2), Fed. R. Civ. P., because the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole. 54. The class action is also properly maintainable pursuant to Rule 23(b)(3) because the questions of law and fact common to members of the class predominate over questions affecting only individual members and a class action is superior to other available methods for the fair and efficient resolution of this controversy. ALLEGATIONS OF NAMED PLAINTIFFS Laryssa Jock 55. Laryssa Jock has been employed by Sterling from approximately May 15, 1995 to the present for a total of nearly 13 years. 56. She began her employment with Sterling as a part-time sales associate at the Kay store located in Massena, New York. 57. Within approximately five months, Jock was promoted to full-time sales associate in approximately October 1995. 58. She also held an Assistant Manager position from the fall of 1996 through February 1997, and as a sales associate was appointed the third key title between the summer of 1997 and fall of 1998 in the Massena, New York Kay store.
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59. The third key title is responsible for assisting management employees in opening and closing the store and is placed in charge of the store when the assistant manager and store manager are absent.
60. The third key title is typically a gateway position to higher management positions.
61. On approximately December 18, 1998, Jock transferred to the Massena, New York Belden’s store as a sales associate.
62. In approximately 2002, a Sterling manager again asked her to hold the third key title; however, Jock stepped down from this position because Sterling refused to compensate her for performing these additional duties.
63. Jock continues to be employed in the Belden store located in Massena, New York as a full-time sales associate.
64. During her tenure at Sterling, Jock has received numerous merit awards and gifts from Sterling in recognition of her superior sales performance.
65. During Jock’s employment at Sterling, male employees were paid higher wages than female employees for equal work in jobs requiring equal skill, effort, and responsibility that were performed under similar working conditions.
66. Upon information and belief, in approximately March 2005, Troy Lawler, a male, was hired as a part-time sales associate in the Belden’s store located in Massena, New York and paid $8.75 per hour.
67. At the time Lawler was hired, Jock was paid only approximately $8.65 per hour as a full-time sales associate in the same store. Jock was paid less than Lawler in spite of the fact that Lawler had no prior retail jewelry industry experience, and she had approximately ten
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years of experience at Sterling, including working as an assistant manager and in the third key title. Although Jock received a raise to $8.85 per hour shortly after Lawler was hired, several other female employees who were employed in the same store in the same position as Lawler continued to be paid less than Lawler. Jock’s store manager explained to the female employees including Jock that Lawler needed to be paid more than the females because he had a child to support.
68. But for Sterling’s policy prohibiting employees from discussing their wages, Jock would likely be able to identify additional male employees who were paid higher wages than her for equal work in jobs requiring equal skill, effort, and responsibility that were performed under similar working conditions.
69. On May 18, 2005, Jock filed a timely charge of discrimination with the Equal Employment Opportunity Commission.
70. Jock received notice of her right to sue from the EEOC on March 18, 2008. Jacquelyn Boyle
71. Jacquelyn Boyle worked for Sterling from September, 2004 to June 1, 2005, as a sales associate in the Jared store in Brandon, Florida.
72. Prior to working for Sterling, Boyle obtained a B.A. degree in Legal Studies and obtained jewelry sales experience working for service merchandise.
73. Boyle started at Sterling as a seasonal sales associate, making $9.50 per hour. She excelled in this job such that she generated a large volume of jewelry sales in December 2004.
74. In February 2005, Boyle became a full-time employee making $10.25 per hour. 75. In or around February 2005, Boyle’s store manager, Eric Wolff told her she was
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an excellent sales associate and an asset to Jared’s. 76. During Boyle’s employment at Sterling, male employees were paid higher
wages than female employees for equal work in jobs requiring equal skill, effort, and responsibility that were performed under similar working conditions.
77. Upon information and belief, Sterling paid similarly-situated male employees including Grant “Billy” Laing, Alan Mong, and Michael Duggan more than Boyle for performing equal work. Laing, who was hired in August 2004 was paid $14.50 per hour as a full-time sales associate; Mong, who was hired in July 2004, was paid $13.50 per hour as a fulltime sales associate; and Duggan, who was hired in May 2005, was paid $11.50 per hour as a full-time sales associate.
78. But for Sterling’s policy prohibiting employees from discussing their wages, Boyle would likely be able to identify additional male employees who were paid higher wages than her for equal work in jobs requiring equal skill, effort, and responsibility that were performed under similar working conditions.
79. In addition to the pay discrimination described above, Boyle also experienced sexual harassment while employed at Sterling. Jason May, a male Manager-in-Training, repeatedly called her and sent her text messages expressing his desire to be alone with her.
80. May made unwelcome overtures to Boyle, such as telling her he wanted to kiss her, which caused her discomfort and distress at work.
81. Boyle complained to her managers, Eric Wolf and Erin Scott, about this harassment but to her knowledge her complaints were not investigated nor was any corrective action taken against May.
82. Shortly after Boyle’s complaint, May was promoted to a general manager
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position. 83. On September 15, 2005, Boyle filed a timely charge of discrimination with the
EEOC. 84. Boyle received notice of her right-to-sue from the EEOC on March 18, 2008.
Christy Chadwick 85. Christy Chadwick (formerly Christy Davies) was employed by Sterling from
approximately November 2005 until approximately March 2006. 86. Throughout Chadwick’s employment with Sterling she was employed as a
seasonal part-time sales associate at the Belden store located in Massena, New York. 87. Chadwick excelled in this position and was recognized for her outstanding sales
volume. 88. In approximately March 2005, Sterling hired Troy Lawler, a male, to be a part-
time sales associate in the Belden store located in Massena, New York. 89. Upon information and belief, Lawler was hired by Sterling in March 2005 and
he was paid $8.75 per hour as a part-time sales associate. 90. When Chadwick was hired approximately six months later, she was paid only
approximately $7.00 per hour as a part-time sales associate in the same store. Chadwick was paid less than Lawler in spite of the fact that she had three years of retail customer service and commission sales experience when she was hired by Sterling and Lawler only had approximately three months of sales experience at the time he was hired.
91. Sterling failed to correct the inequities in Lawler’s and Chadwick’s pay notwithstanding that Chadwick was recognized by Sterling as an outstanding sales producer.
92. But for Sterling’s policy prohibiting employees from discussing their wages,
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Chadwick would likely be able to identify additional male employees who were paid higher wages than her for equal work in jobs requiring equal skill, effort, and responsibility that were performed under similar working conditions.
93. On April 24, 2006, Chadwick filed a timely charge of discrimination with the Equal Employment Opportunity Commission.
94. Chadwick received notice of her right to sue from the EEOC on March 18, 2008. Kelly Contreras
95. Kelly Contreras was employed by Sterling from approximately March 1993 through approximately June 2005.
96. Contreras was hired as a Manager in Training in Madison, Wisconsin. 97. In 1994, Contreras was a store manager of a Goodman Jewelers store in St. Cloud, Minnesota, and then transferred shortly thereafter to serve as store manager of another Goodman store in Maplewood, Minnesota. 98. In 1997, Contreras transferred to store manager of an Ostermans Jewelers in Cincinnati, Ohio. 99. In 1998, Contreras became the district manager of the Dayton, Ohio area, and was in charge of 12 stores under the Kay and Ostermans brands. 100. Contreras was a district manager from 1998 until she left Sterling in approximately June 2005. 101. At the end of Contrera’s employment with Sterling, her district consisted of 13 stores. 102. Throughout her employment with Sterling, Contreras won several awards for her performance at Sterling.
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103. Contreras won the Manager of the Year award in 1995, the Pinnacle Manager of the Year award in 1997, the Sales Profitability award in 1997, the Training District Manager of the Year award in 2004, and was twice nominated for District Manager of the Year.
104. During Contreras’ employment at Sterling, male employees were paid higher wages than female employees for equal work in jobs requiring equal skill, effort, and responsibility that were performed under similar working conditions.
105. In 1995, Contreras made approximately $35,000 a year as a store manager. Her husband, Chris Contreras, who was also a store manager for Sterling, made approximately $55,000 per year, notwithstanding that they had similar experience within the industry and at Sterling.
106. When Contreras was promoted to district manager in 1998, her husband, who had been promoted to district manager one year prior, made approximately $10,000 a year more than she.
107. But for Sterling’s policy prohibiting employees from discussing their wages, Contreras would likely be able to identify additional male employees who were paid higher wages than her for equal work in jobs requiring equal skill, effort, and responsibility that were performed under similar working conditions.
108. Contreras was interested in a promotion to a Vice President position. 109. In approximately February 2005, a Vice President position came open. 110. Although Contreras was both interested in and well-qualified for this position, it was given to a male, Joe Maisano, who was less qualified or no more qualified than she. 111. During Contreras’ tenure, Sterling did not post job vacancies or provide a consistent or standard means for employees to express an interest in promotions.
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112. Employees became aware of job vacancies via word of mouth. 113. Accordingly, there are likely other promotional opportunities that Contreras was interested in and qualified for that were awarded to less qualified male employees. Lisa Follett 114. Lisa Follett was employed by Sterling from approximately November 2004 until approximately May or June 2005. 115. Throughout her employment with Sterling she was employed as a part-time sales associate at the Belden store located in Massena, New York. 116. Follett excelled in this position. 117. In approximately March 2005, Sterling hired Troy Lawler, a male, to be a parttime sales associate in the Belden store located in Massena, New York. 118. On approximately May 5, 2005, Lawler was promoted to a full-time sales associate position. 119. Sterling failed to post the availability of this position and did not conduct interviews of Follett or other female part-time sales associates who were interested in full-time positions. 120. Follett was more qualified than Lawler for the full-time sales associate position because she had seven months of jewelry sales experience with Sterling and had produced substantial sales for Sterling. 121. Upon information and belief, Lawler had no prior jewelry experience and had no record of past performance to support his promotion. 122. During Follett’s employment with Sterling, Sterling failed to post additional full-time positions and did not provide a consistent or standard means for employees to express
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an interest in promotions. 123. Sterling relied on a “tap on the shoulder” promotion system. 124. Follett was interested in being promoted to full-time positions, but was unaware
of promotional opportunities for which she was qualified that may have been provided to less qualified male employees at Sterling as a result of these practices.
125. When Lawler was hired by Sterling in March 2005, he was paid $8.75 per hour as a part-time sales associate.
126. At the time Lawler was hired, Follett was paid approximately $7.50 per hour as a part-time sales associate in the same store.
127. Follett was paid less than Lawler in spite of the fact that she had approximately seven months of proven sales experience at Sterling and Lawler had no prior retail jewelry industry experience.
128. But for Sterling’s policy prohibiting employees from discussing their wages, Follett would likely be able to identify additional male employees who were paid higher wages than her for equal work in jobs requiring equal skill, effort, and responsibility that were performed under similar working conditions.
129. On February 8, 2006, Follett filed a timely charge of discrimination with the Equal Employment Opportunity Commission.
130. Follett received notice of her right to sue from the EEOC on March 18, 2008. Maria House
131. Maria House worked for Sterling at a Kay Jewelers store in Bakersfield, California from approximately June 2005 through August 2006.
132. Sterling hired House as a full-time sales associate and was paid $12.50 per hour.
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133. Prior to working for Sterling, House had obtained approximately 20 years of jewelry sales and management experience working for Macy’s, Zales, and Michaels Jewelers.
134. Shortly after starting with Sterling, House was selected for the third key title. 135. The third key is responsible for assisting management employees in opening and closing the store and is placed in charge of the store when the assistant manager and store manager are absent. 136. The third key title is typically a gateway position to higher management positions. 137. Despite having performed the third key duties exceptionally well, House was not selected for an assistant manager position in approximately late 2005. 138. Instead, Shaun McCullough, a less qualified male was selected for the assistant manager position. 139. Sterling was aware that House was interested and qualified for this position and she had discussed the possibility of being promoted into this position with her store manager and district manager. 140. McCullough’s lack of qualifications was confirmed in 2006 when Sterling terminated him. 141. House’s exceptional job performance continued into 2006 when she became the highest sales producer in her district. 142. As a result, House became a member of Sterling’s President Club. 143. The President Club is an organization Sterling created to recognize and reward outstanding performance of its top sales associates throughout the country. 144. In approximately May 2006, the store manager of the Bakersfield, California
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Kay’s Jeweler store was terminated. 145. Because there was no assistant manager as a result of McCullough’s termination,
House was required to take over acting manager duties. 146. House performed the store manager’s duties for several weeks. 147. Although House was interested in the store manager position and had
competently performed the store manager duties, Sterling selected Ben Fox, a less qualified male sales associate from a different store as the new store manager.
148. During House’s employment with Sterling, Sterling did not post management vacancies or provide a consistent or standard means for employees to express an interest in promotions.
149. Instead, Sterling relied on a “tap on the shoulder” promotion system. 150. House was interested in being promoted, but was unaware of many other promotional opportunities for which she was qualified that may have been provided to less qualified male employees at Sterling as a result of these practices. 151. During the time McCullough was House’s assistant manager, McCullough sexually harassed House. He made inappropriate and unwelcome comments about her chest on several occasions. For example, he told her “I would like to suck on your boobs.” 152. House immediately reported this harassment to her district manager, who told House to stop overreacting and get back to work. 153. House then made a formal complaint through Sterling’s internal complaint process, however no disciplinary action was taken against McCullough. House later made yet another follow-up complaint to Sterling’s Employee Relations Department. 154. To House’s knowledge, no action was taken in response to her complaints.
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155. On October 10, 2006, House filed a timely charge of discrimination with the Equal Employment Opportunity Commission.
156. House received her Right to Sue notice from the EEOC on March 18, 2008. Denise Maddox
157. Denise Maddox was employed with Sterling from 1997 through January of 2007.
158. Maddox was hired as a sales associate at a Jared store in Westminster, Colorado. 159. Maddox excelled in this job and was the highest performing salesperson in her store. 160. Maddox also worked as a diamond department manager at the Jared store in Westminster, Colorado. 161. In 2000, Maddox was transferred to a Jared store in Englewood, Colorado. 162. Around 2001 or 2002, Maddox briefly transferred to a Sterling store in Roseville, California, where she was an assistant manager. 163. After a short period of time in California, Maddox transferred back to Colorado, in a sales associate position. 164. Shortly thereafter, in 2002, Maddox was promoted to assistant manager at a Jared store in Lakewood, Colorado. 165. In August of 2005, Maddox was transferred to Dallas, Texas and was promoted to store manager of a Jared store. 166. On October 31, 2006, Sterling informed Maddox that she was being demoted to diamond department manager. 167. Rather than take the demotion and stay in Texas, she transferred back to
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Colorado where she worked as a sales associate until she resigned from the company in January 2007.
168. In 2003, the store manager position at the Lakewood, Colorado store became vacant.
169. Although Maddox informed her district manager that she was interested in the position, Sterling selected a less-qualified male who had no prior experience with Sterling.
170. In June or July of 2006, a store manager position at a higher volume store in the Dallas, Texas area became vacant.
171. Maddox was interested in a promotion to this store, and informed her district manager of her interest. However, again the position was given to a male, John Costello, who had no previous experience at Sterling.
172. During Maddox’s tenure, Sterling did not post job vacancies or provide any consistent or standard means for employees to express an interest in promotions.
173. Employees became aware of openings via word of mouth. 174. Accordingly, there are likely numerous other promotional opportunities that Maddox was interested in and qualified for that she was not given the opportunity to apply for and that were awarded to less qualified male employees. 175. During Maddox’s employment at Sterling, male employees were paid higher wages than female employees for equal work in jobs requiring equal skill, effort, and responsibility that were performed under similar working conditions. 176. When Maddox began at Sterling, she earned $8.00 an hour. Although she was the highest performing salesperson in her store, upon information and belief, male employees were being hired at rates several dollars an hour more than she.
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177. Similarly, when her store manager, Melinda Small, requested a raise for Maddox from the district manager, the request was denied.
178. As a store manager, Maddox observed Sterling pay male employees in her store more than their similarly situated female counterparts.
179. Upon information and belief, these pay discrepancies were implemented by the district manager and vice president or more senior company officials.
180. Upon information and belief, Maddox believes she was also paid less than her similarly situated male counterparts employed in assistant manager and store manager positions.
181. But for Sterling’s policy prohibiting employees from discussing their wages, Maddox would likely be able to identify male employees who were paid higher wages in these positions than her for equal work in jobs requiring equal skill, effort, and responsibility that were performed under similar working conditions.
182. Sterling has a policy or practice of preventing its employees from discussing their wages with other employees.
183. Sterling’s policy preventing the discussion of wages has prevented Maddox from identifying male employees who were paid higher wages than she was for equal work in jobs requiring equal skill, effort, and responsibility that were performed under similar working conditions.
184. Maddox was also subjected to comments and other treatment that were demeaning and disparaging of women. For example, in approximately 2000, when Maddox first became a diamond department manager, she was demoted back to a sales position because her district manager told her he wanted to place a male in the position who had “the Jared
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look.” 185. Maddox was demoted from the store manager position she held in Dallas, Texas
due to her age and sex. 186. Maddox was demoted from her position as store manager in October 2006
because a male district manager needed to be placed in a store manager position in her area. There were several stores that could have been chosen. However, the store managers in each of these stores were younger than Maddox, who was 51 at the time. Maddox was demoted to diamond department manager instead of one of the younger store managers in spite of the fact that sales for her store were better than the stores managed by the younger store managers.
187. On November 8, 2006, Maddox filed a timely charge of discrimination with the Equal Employment Opportunity Commission.
188. Maddox received her Right to Sue notice from the EEOC on March 18, 2008. Lisa McConnell
189. Lisa McConnell worked for Sterling at a Kay Jewelers store from approximately July, 2001 until August 30, 2006 in Elkhart, Indiana.
190. McConnell was hired as a part-time sales associate for Sterling and was paid $8.50 per hour.
191. Within a year, she became a full-time sales associate and was paid $10.00 per hour.
192. McConnell was an outstanding employee. Her high sales record earned her membership in the President’s Club from January 2003 until she became store manager in 2005.
193. In October, 2002, she became assistant manager at a salary of $12.00 per hour.
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Brad Bartl, her store manager at the time, informed her that she was earning approximately $2.00 to $3.00 less per hour than similarly-situated male assistant managers and that her salary was also less than male managers-in-training.
194. McConnell served as assistant manager for approximately two and one-half years during which her personal average annual sales ranged from approximately $400,000 to $600,000, one of the highest in her district. She received the highest bonus in her district in 2005.
195. Despite McConnell’s exceptional performance and strong personal sales record, she received only a $1 per hour raise each year that she served as assistant manager. This resulted in her earning approximately $14.00 per hour immediately before she became store manager.
196. Upon information and belief, in stark contrast, Richard Swiental became assistant manager of the Elkhart, Indiana Kay’s store in April 2006 at a starting salary of $15.33 per hour, $3.33 per hour more than her starting salary three years prior despite the fact that Swiental was less qualified for the position than McConnell had been when she became assistant manager.
197. In early 2005, McConnell was promoted to store manager with an annual salary of approximately $34,000.
198. Brad Bartl, her former store manager who had worked for Sterling Jewelers for at least a decade, again informed McConnell that she was receiving a significantly lower salary than other male store managers employed by Sterling Jewelers, especially given her training experience and high sales record. Bartl informed her that her situation was not unique because he was aware of many other women that were paid less than similarly situated men in the same
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job positions. According to Bartl, Bartl’s wife, Donna Bartl, had been a store manager with Sterling, and she too had been paid less than similarly-situated male store managers.
199. Although McConnell earned the highest bonus in her district in 2005, she did not receive an annual salary increase in 2006.
200. But for Sterling’s policy prohibiting employees from discussing their wages, McConnell would likely be able to identify additional male employees who were paid higher wages than her for equal work in jobs requiring equal skill, effort, and responsibility that were performed under similar working conditions.
201. McConnell’s career goal was to obtain at least a district manager position. 202. In 2005, during a meeting for managers in her district, the then district manager Tim Chmiel asked store managers in attendance (approximately14 managers) about their future goals. 203. When Chmiel asked McConnell about her professional goals, she responded that she wanted to be a district manager. 204. Despite her strong qualifications and interest, Sterling never offered her that position. 205. During McConnell’s tenure at Sterling, Sterling did not advertise or post job vacancies or have a consistent or standard application process for job vacancies. 206. Instead, Sterling used a “tap on the shoulder” system for promotion to management positions. 207. Even though McConnell was interested in obtaining a district manager position, due to Sterling’s failure to post job openings, McConnell was not made aware of district manager opportunities available to her during her employment. She believes there have been
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district manager job vacancies filled by males who were less qualified or no more qualified than she. She would have pursued and applied for any such positions, but she was not informed of such vacancies nor was she given the opportunity to apply.
208. McConnell also experienced sexual harassment while employed by Sterling. 209. On April 8, 2006, district manager John Braunsdorf placed manager-in-training Richard Swiental in her store as assistant manager. 210. Swiental was rude and disruptive. He made inappropriate sexual comments about women. He commented on the anatomy of females who walked by the store and even asked McConnell, the store manager, to inquire if a young woman who walked by the store in a short skirt was wearing underwear. He commented on female co-workers “PMSing” and bragged about affairs he had on his wife. When helping sales associate, Stephanie Reinhardt, change a store sign, he said “I can always get it up” when he saw she was having trouble reaching the letters on the sign. He addressed McConnell as “sweetheart” and refused to show her respect or treat her in a professional manner. 211. Shortly after Swiental was transferred to her store, McConnell made verbal and written complaints about his behavior to her district manager Braunsdorf. 212. Upon information and belief, no corrective action was taken against Swiental. 213. In response to McConnell’s complaints about Swiental’s inappropriate sexual comments against women, inappropriate treatment of women and poor managerial performance, Swiental filed an internal complaint against her accusing her of gender discrimination. Even though Swiental’s claim had no merit, Sterling took his side and McConnell was written-up for discriminatory “comments” she never made. She informed the human resource office about Swiental’s inappropriate treatment towards women and his
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disruptive behavior. However, this information was ignored, and on August 31, 2006, McConnell was terminated from Sterling even though she had received the largest bonus in her district that same year and was an effective manager who sought to protect her employees and customers from a male employee’s discriminatory behavior.
214. On or about July 25, 2006 McConnell timely filed a charge of discrimination with the EEOC.
215. On or about May 12, 2007, McConnell filed an amended charge of discrimination with the EEOC asserting her claims on behalf of herself and female employees of Sterling who are similarly situated.
216. McConnell received a notice of right to sue from the EEOC dated March 18, 2008.
Gloria Pagan 217. Gloria Pagan was employed with Sterling from approximately August 2005 until
December 26, 2005. During this time period, Pagan worked as a full-time sales associate at the JB Robinson Jewelers store located in Saint Peters, Missouri.
218. When Pagan was hired by Sterling, she had prior experience working in the jewelry industry.
219. Pagan excelled in her sales associate position and in October 2005, she was promised the third key title.
220. The third key is the title given to a sales associate who assists the assistant manager and general manager in the performance of their duties, including opening and closing the store and supervising the store in their absence, and which provides training for promotional opportunities. In approximately November 2005, Sterling hired Christopher Sutmoler as a sales
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associate in the Saint Peters, Missouri JB Robinson Jewelers store. Sutmoler was given the third key title that had been promised to Pagan in spite of the fact that Pagan had more tenure with Sterling and similar jewelry industry experience.
221. During Pagan’s employment with Sterling, Sterling failed to post open management positions and did not provide a consistent or standard means for employees to express an interest in promotions.
222. Instead, Sterling relied on a “tap on the shoulder” promotion system. 223. Pagan was interested in being promoted, but was unaware of promotional opportunities for which she was qualified, which may have been provided to less qualified male employees at Sterling as a result of these practices. 224. During Pagan’s employment at Sterling, male employees were paid higher wages than female employees for equal work in jobs requiring equal skill, effort, and responsibility that were performed under similar working conditions. 225. Upon information and belief, Sutmoler, a male with similar jewelry experience as Pagan, was hired at approximately the same time frame in the same sales associate job, and in the same store as Pagan; however, he was paid $11.50 per hour and Pagan was paid only $8.50 per hour. 226. But for Sterling’s policy prohibiting employees from discussing their wages, Pagan would likely be able to identify additional male employees who were paid higher wages than her for equal work in jobs requiring equal skill, effort, and responsibility that were performed under similar working conditions. 227. On or about July 16, 2006, Pagan timely filed a charge of discrimination with the EEOC.
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228. Pagan received a notice of right to sue from the EEOC on March 18, 2008. Judy Reed
229. Judy Reed began working at Sterling in October 2000 as an assistant manager at a Jared store in Appleton, Wisconsin.
230. In July 2001 Reed transferred to Sterling’s Jared Citrus Park store in Tampa, Florida and took a diamond department manager position.
231. In July 2002, she was promoted to assistant manager of the Citrus Park store. Reed is currently a sales associate at the Citrus Park Store in Tampa, Florida.
232. Reed has over 30 years experience in the jewelry industry that includes more than five years as an assistant manager for Sterling.
233. Reed was denied promotions on at least four separate occasions in favor of males who were less qualified or no more qualified than she.
234. In 2003, the general manager position at Sterling’s Clearwater, Florida Jared store became vacant.
235. Despite being well-qualified for the position, Reed was not granted an interview. 236. The position was given to David Dion, a less-qualified male with only three years’ tenure at Sterling and less jewelry industry experience than Reed. 237. In January 2005, the general manager position at Sterling’s Brandon, Florida Jared store became vacant. 238. Again, Reed was not interviewed for the general manager position. 239. Instead, the general manager position was given to a less-qualified male, Eric Wolff, who had only two years tenure at Sterling. 240. In March 2005, the general manager position at Sterling’s Citrus Park Jared
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store became vacant. 241. Reed had been assistant manager at this location for approximately four years,
and during the course of her tenure, she had on several occasions performed the duties of general manager for the store when the general manager was unavailable.
242. Although Reed was interviewed for the position, Sterling gave the position to a less-qualified male, Avind Mohip, who had only two years of jewelry industry experience.
243. In approximately May 2007, Reed applied for the assistant manager position at Sterling’s Citrus Park Jared store but the position was instead given to a less experienced male employee who was the timepiece department manager of a lower volume Jared store.
244. During Reed’s employment at Sterling, which is ongoing, Sterling has not posted job vacancies or provided a consistent or standard means for employees to express an interest in promotions.
245. Employees become aware of openings via word of mouth. 246. Accordingly, there are likely numerous other promotional opportunities that Reed was interested in and qualified for, which she was not given the opportunity to apply for, that were awarded to less qualified male employees. 247. During Reed’s employment at Sterling, which is ongoing, male employees have been paid higher wages than female employees for equal work in jobs requiring equal skill, effort, and responsibility that were performed under similar working conditions. 248. When Reed was promoted to assistant manager of the Citrus Park store, she was paid a salary of $32,600. 249. In the summer of 2005, a male, Jason May, obtained a position as an assistant manager at Sterling’s Jacksonville, Florida store despite having only two years’ experience at
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Sterling and no prior jewelry industry experience. 250. Upon information and belief, May was paid a salary of more than $36,000 per
year. 251. But for Sterling’s policy prohibiting employees from discussing their wages,
Reed would likely be able to identify additional male employees who were paid higher wages than her for equal work in jobs requiring equal skill, effort, and responsibility that were performed under similar working conditions.
252. On November 23, 2005, Reed filed a timely charge of discrimination with the EEOC.
253. After filing her charge of discrimination, Reed learned that she was not considered for several management opportunities in retaliation for filing a charge of discrimination and her participation in this matter, including, but not limited to, the assistant manager position she applied for in approximately May 2007.
254. Reed received notice of her right-to-sue from the EEOC dated March 18, 2008. Linda Rhodes
255. Linda Rhodes was employed by Sterling from approximately November 2005 until approximately November 14, 2006.
256. Rhodes was hired as a seasonal part-time sales associate at the Belden store located in Massena, New York.
257. Shortly after being hired, Sterling modified Rhodes’ employment and classified her as a part-time sales associate, but did not increase her pay.
258. Rhodes excelled in the part-time sales associate position. 259. In approximately March 2005, Sterling hired Troy Lawler, a male, to be a part-
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time sales associate in the Belden store in Massena, New York. 260. Upon information and belief, when Lawler was hired by Sterling in March 2005,
he was paid $8.75 per hour as a part-time sales associate. 261. When Rhodes was hired approximately six months later, she was paid only
approximately $7.00 per hour as a seasonal and regular part-time sales associate in the same store.
262. Rhodes was paid less than Lawler in spite of the fact that she had approximately 15 years of customer service and sales experience in the restaurant industry when she was hired by Sterling, and Lawler had approximately three months of sales experience.
263. Rhodes also had substantial prior management experience while Lawler had no management experience.
264. Rhodes’ store manager explained to the female employees including Rhodes that Lawler needed to be paid more than the females because he had a child to support.
265. Sterling failed to correct the inequities in Lawler’s and Rhodes’ pay in spite of the fact that Rhodes was recognized by Sterling as an outstanding sales producer.
266. Even after Rhodes was designated third key in the store, she still did not receive a raise.
267. But for Sterling’s policy prohibiting employees from discussing their wages, Rhodes would likely be able to identify additional male employees who were paid higher wages than her for equal work in jobs requiring equal skill, effort, and responsibility that were performed under similar working conditions.
268. On April 6, 2006, Rhodes filed a timely charge of discrimination with the Equal Employment Opportunity Commission.
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269. Rhodes received notice of her right to sue from the EEOC on March 18, 2008. Khristina Rodrigues
270. Khristina Rodrigues began working for Sterling in 2001 as a sales associate. 271. She left Sterling as an employee in good standing in 2003, and was rehired by Sterling in June 2004. 272. In July 2005, Rodrigues was promoted to assistant manager. 273. In March 2006, Rodrigues stepped down to a sales associate position. 274. Rodrigues currently works as a part-time sales associate at a Kay Jewelers in Swansey, Massachusetts. 275. When Rodrigues was rehired by Sterling in 2004, her rate of pay was $10.00 per hour. 276. At the time of her rehire, Rodrigues had three years’ jewelry industry experience, including approximately one year of experience working as an assistant manager. 277. During Rodriques’ employment at Sterling, male employees were paid higher wages than female employees for equal work in jobs requiring equal skill, effort, and responsibility that were performed under similar working conditions. 278. Upon information and belief, in approximately April 2005, Luis Cortes, a male with no prior jewelry experience was hired at a rate of $10.50 per hour. Rodrigues was making $10.00 per hour at the time. 279. When Rodrigues was promoted to assistant manager in July 2005, her rate of pay was increased to $11.00 per hour. 280. When she stepped down from the assistant manager position, her rate of pay was reduced to $10.00 per hour.
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281. Upon information and belief, in approximately November 2005, Endhir “Andy” Bonilla, a male with no previous jewelry experience, was hired as a sales associate at a rate of $14.00 per hour. This was considerably more than Rodrigues was making as an assistant manager, yet Sterling still reduced her pay even further when she stepped down to a sales position in 2006.
282. But for Sterling’s policy prohibiting employees from discussing their wages, Rodriques would likely be able to identify additional male employees who were paid higher wages than her for equal work in jobs requiring equal skill, effort, and responsibility that were performed under similar working conditions.
283. In addition to the pay discrimination described above, Rodrigues also experienced sexual harassment while employed at Sterling. On or about January 31, 2006, while working at a Kay store in Taunton, Massachusetts, a male store manager from another store made a sexually suggestive comment to her while visiting her store.
284. Rodrigues immediately reported this harassment to her store manager and then to her district manager.
285. The district manager defended the actions of the store manager and blamed Rodrigues for misunderstanding the store manager.
286. When Rodrigues asked the district manager who else she should contact about this, he suggested she call Sterling’s TIPS Line, which she did.
287. Even though she was told she would be notified of the outcome of the investigation, Rodrigues has not received information from Sterling on the status of her complaints and any consequent investigation.
288. On July 18, 2006, Rodrigues filed a timely charge of discrimination with the
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EEOC. 289. Rodrigues received notice of her right-to-sue from the EEOC dated March 18,
2008. Nina Shahmirzadi 290. Nina Shahmirzadi was employed with Sterling from approximately October 10,
1997 until November 1998 at a Kay Jewelers’ store in Henderson, Nevada. 291. In 1998, she transferred to the Kay store in Las Vegas, Nevada. In
approximately 2001, Shahmirzadi transferred to the Jared store in Henderson, Nevada as a parttime sales associate.
292. In approximately the beginning of 2002, Shahmirzadi became a full-time sales associate in that store.
293. Shahmirzadi resigned from her position with Sterling on approximately November 1, 2006.
294. Shahmirzadi was 56 years old when she resigned. 295. When Shahmirzadi joined Sterling, she had significant prior experience managing a jewelry store from approximately 1994 to 1997. 296. During her employment at Sterling, Shahmirzadi was a significant sales producer. 297. Shahmirzadi was recognized by Sterling as a top sales producer by being designated as a member of the President’s Club for years 2003, 2004, and 2005. 298. During her tenure at Sterling, Shahmirzadi was interested in being promoted to management positions and informed her district manager that she was willing to transfer to obtain a promotion.
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299. In spite of her strong qualifications, Shahmirzadi was passed over for promotional opportunities that were provided to less qualified and younger male employees.
300. In 2005, Darren Desylvia, a male sales associate in his late teens or early twenties was promoted to watch department manager in the Jared store in Henderson, Nevada where Shahmirzadi was employed.
301. In August 2006, Desylvia was promoted to diamond department manager. 302. Upon information and belief, prior to receiving these promotions, Desylvia had little experience in the jewelry industry and had mostly worked on a part-time basis for Sterling. 303. Unlike Desylvia, Shahmirzadi had several years of management experience and approximately nine years of sales experience with Sterling when these promotions occurred. Shahmirzadi was qualified for and interested in both of these promotions. 304. Shahmirzadi was also passed over for promotions in September and November 2006. 305. In September 2006, Andy Goldslam, an approximately 20-year-old male, was given the third key title in the Henderson, Nevada Jared store. 306. Upon information and belief, Goldslam had no prior management experience when Goldslam was promoted to the third key title. Meanwhile, Shahmirzadi had years of management experience and had been a top sales performer for years. 307. During Shahmirzadi’s employment with Sterling, Sterling failed to post open management positions and did not provide any consistent or standard means for employees to express an interest in promotions. 308. Instead, Sterling relied on a “tap on the shoulder” promotion system.
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309. Because promotions were made pursuant to this tap on the shoulder system, Shahmirzadi is unable to identify all of the promotional opportunities that she was denied access to during her tenure at Sterling in spite of her interest in advancement.
310. On or about January 18, 2007, Shahmirzadi timely filed a charge of discrimination with the EEOC.
311. Shahmirzadi received a notice of right to sue from the EEOC on March 18, 2008. Leighla Smith 312. Leighla Smith began working for Sterling in Burlington, New Jersey at a Kay Jewelers store as a part-time sales associate starting and was paid $8.75 per hour beginning in approximately August, 2004. 313. In approximately April, 2005 Smith transferred to a Kay store in Cupertino, California, as a full-time sales associate. 314. Sterling had agreed to pay her $10.75 an hour at the California Kay’s, but once she arrived there, Sterling would only pay her $9.75 per hour. 315. During Smith’s employment at Sterling, male employees were paid higher wages than female employees for equal work in jobs requiring equal skill, effort, and responsibility that were performed under similar working conditions. For example, male sales associates with equal or less experience and responsibility in the Cupertino, California Kay store, including Cesar Navero and J.P. (last name unknown) were paid more than Smith. 316. But for Sterling’s policy prohibiting employees from discussing their wages, Smith would likely be able to identify additional male employees who were paid higher wages than her for equal work in jobs requiring equal skill, effort, and responsibility that were performed under similar working conditions.
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317. Smith was also interested in obtaining higher paying jobs at Sterling, however her opportunity was limited because Sterling did not post promotional opportunities nor did it provide formal means for employees, like Smith, to apply for promotional opportunities.
318. Smith believes there were promotional opportunities at Sterling that she was qualified for and interested in that were given to males who were less qualified or no more qualified than she, and because of Sterling’s practices, she was not considered for them.
319. On June 7, 2006 Smith filed a timely charge of discrimination with the EEOC. 320. Smith received her right-to-sue notice on March 18, 2008. Dawn Souto-Coons 321. Dawn Souto-Coons was employed with Sterling from approximately September 1991 until approximately May 27, 2005. 322. Souto-Coons began her employment as a sales associate in a JB Robinson store in Waldorf, Maryland. 323. In approximately June 1992, Souto-Coons was promoted to assistant manager in that store. 324. In approximately December 1992, Souto-Coons was promoted to store manager at the JB Robinson store in Gaithersburg, Maryland. 325. In approximately January 1994, Souto-Coons was transferred as a store manager to the Waldorf, Maryland JB Robinson, which was a higher volume store than the Gaithersburg, Maryland store. 326. In the summer of 1998 until approximately June 1999, Souto-Coons worked parttime. 327. Souto-Coons was a full-time store manager at the Waldorf JB Robinson from
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approximately June 1999 until July 2001. 328. In approximately July 2001, Souto-Coons transferred to Florida as an assistant
manager at the Jared store located in Brandon, Florida. 329. On May 27, 2005, Souto-Coons felt compelled to resign her employment with
Sterling after more than thirteen years of service because of Sterling’s continued policy, pattern and practice of discriminating against her and other female employees in promotion and pay practices.
330. Souto-Coons was a successful store manager in Maryland. 331. She was recognized as one of Sterling’s top ten managers and received seven incentive trips and numerous merit bonuses. 332. When Souto-Coons transferred to Florida, she was qualified for and interested in promotions to general manager or district manager positions. 333. In January 2005, two general manager positions became available, one at the Brandon, Florida Jared, and one at the Citrus Park, Florida Jared. 334. Although Souto-Coons expressed interest in these positions and had frequently served in an acting manager role in the Brandon, Florida Jared, Souto-Coons was not granted an interview for either general manager position. 335. Instead, in approximately February 2005, Eric Wolff, a less-qualified male employee with approximately two years experience with Sterling was given the Brandon, Florida Jared general manager position, and Avind Molhip, a less-qualified male employee with only two years of jewelry experience, was given the Citrus Park, Florida Jared general manager position. 336. At the time of these promotions, Souto-Coons had over 13 years of experience
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with Sterling, including approximately nine years of prior experience working as a store manager.
337. During Souto-Coons’ employment with Sterling, Sterling failed to post vacancies for management positions and did not provide a consistent or standard means for employees to express an interest in promotions.
338. Instead, Sterling relied on a “tap on the shoulder” promotion system. 339. Because promotions were made pursuant to this tap on the shoulder system, Souto-Coons is unable to identify all of the promotional opportunities that she was denied access to during her tenure at Sterling in spite of her interest in advancement. 340. On October 3, 2005, Souto-Coons timely filed a charge of discrimination with the EEOC. 341. Souto-Coons received a notice of right to sue from the EEOC on March 18, 2008, 2008. Marie Wolf 342. Marie Wolf has been employed by Sterling as a sales representative at a Jared store in Brandon, Florida from 2002 to the present. 343. Prior to starting at Sterling, Wolf had several years of jewelry sales experience during which she sold over a million dollars in jewelry for her former employer. 344. Wolf continued this success at Sterling, selling over a million dollars worth of jewelry every year since 2003. This entitled her to membership in the President’s Club for each of those years. 345. During Wolf’s employment at Sterling, male employees were paid higher wages than female employees for equal work in jobs requiring equal skill, effort, and responsibility that
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were performed under similar working conditions. 346. Wolf’s starting wage at Sterling was $12.00 per hour. 347. Three years later her wage was $13.47. 348. Upon information and belief, similarly situated male employees, including Grant
Laing, Steven Harrington, and Alan Mong were paid higher base hourly rates even though Wolf had greater sales and longer seniority at Sterling. This unequal pay between her and her male coworkers occurred even though the males were performing substantially equal work that required equal skill, effort, and responsibility under similar working conditions.
349. But for Sterling’s policy prohibiting employees from discussing their wages, Wolf would likely be able to identify additional male employees who were paid higher wages than her for equal work in jobs requiring equal skill, effort, and responsibility that were performed under similar working conditions.
350. On September 13, 2005, Wolf filed a timely charge of discrimination with the EEOC.
351. Wolf received her right-to-sue from the EEOC on March 18, 2008. CLASSWIDE COUNT I
Violation of Title VII - Disparate Impact 352. Plaintiffs repeat and reallege the allegations contained in paragraphs 1 through 351. 353. This claim is brought on behalf of all Plaintiffs and the class they represent. 354. The foregoing conduct described above violates Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000(e), et. seq. and constitutes a continuing violation of that Act. 355. Sterling has maintained a system for making promotion and compensation
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decisions that is excessively subjective the operation of which has a disparate impact adverse to female employees, and which is not consistent with business necessity, or if it could be so justified, less discriminatory alternatives exist that could equally serve said necessity.
356. Sterling’s discriminatory practices described above have denied female employees promotional opportunities and compensation to which they are entitled, which has resulted in the loss of past and future wages and other job benefits to Plaintiffs and members of the class.
357. Plaintiffs request relief as provided in the Prayer for Relief below. CLASSWIDE COUNT II
Violation of Title VII - Disparate Treatment 358. Plaintiffs repeat and reallege the allegations contained in paragraphs 1 through 351. 359. Sterling has intentionally discriminated against the Plaintiffs and the members of the proposed class by maintaining a system for making promotion and compensation decisions that is excessively subjective and through which Sterling has permitted or encouraged managers to deny female employees equal access to promotion opportunities and the same compensation paid to similarly situated male employees. 360. Sterling’s discriminatory practices described above have denied female employees promotional opportunities and compensation to which they are entitled, which has resulted in the loss of past and future wages and other job benefits to Plaintiffs and members of the class. 361. The foregoing conduct described above violates Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000(e), et. seq. and constitutes a continuing violation of that Act. 362. The foregoing conduct described above caused the Plaintiffs and members of the proposed class emotional harm and other forms of harm proximately caused by Sterling’s
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discriminatory conduct. 363. The foregoing conduct described above was undertaken with malice or reckless
disregard of the rights protected by Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000(e), et. seq.
364. Plaintiffs request relief as provided in the Prayer for Relief below. CLASSWIDE COUNT III
Violation of Equal Pay Act, 29 U.S.C. § 206(d) 365. Plaintiffs repeat and reallege the allegations contained in paragraphs 1 through 351. 366. Sterling required Plaintiffs and the other members of the collective action to perform the same or substantially similar work as other male employees, requiring equal skill, effort, and responsibility under similar working conditions at the same establishment and paid Plaintiffs and the other female retail employees lower wages than similarly situated male employees. The difference in pay was not part of or occasioned by a seniority system, merit system, a system based on the quantity or quality of production or upon a factor other than gender. 367. By the conduct described above Sterling has willfully violated the Equal Pay Act, 29 U.S.C. §206(d). As a direct result of Sterling’s unlawful and discriminatory conduct in willful violation of the Equal Pay Act, Plaintiffs and other female retail employees have been and continue to be paid less than similarly-situated men. 368. Plaintiffs request relief as provided in the Prayer for Relief below.
COUNT IV ON BEHALF OF PLAINTIFF DENISE MADDOX Violation of Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. 369. Plaintiff Maddox repeats and realleges the allegations contained in paragraphs 1
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through 10, and paragraphs 17, 27, and 157 through 188. 370. The foregoing conduct, among others, violates the Age Discrimination in
Employment Act, 29 U.S.C. § 621, et seq. (“ADEA”) and constitutes a willful violation of the ADEA.
371. Plaintiff Maddox requests relief as provided in the Prayer for Relief below. COUNT V ON BEHALF OF PLAINTIFF LISA MCCONNELL For Retaliation in Violation of Title VII, 42 U.S.C. § 2000e-3.
372. Plaintiff McConnell repeats and realleges the allegations contained in paragraphs 1 through 10, and paragraphs 18, 27, and 189 through 216.
373. The foregoing conduct, among others, violates Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a).
374. Plaintiff McConnell requests relief as provided in the Prayer for Relief below. COUNT VI ON BEHALF OF PLAINTIFF JUDY REED
For Retaliation in Violation of Title VII, 42 U.S.C. § 2000e-3. 375. Plaintiff Reed repeats and realleges the allegations contained in paragraphs 1 through 10, and paragraphs 20, 27, and 229 through 254. 376. The foregoing conduct, among others, violates Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a). 377. Plaintiff Reed requests relief as provided in the Prayer for Relief below.
COUNT VII ON BEHALF OF PLAINTIFF NINA SHAHMIRZADI Violation of Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. 378. Plaintiff Shahmirzadi repeats and realleges the allegations contained in paragraphs 1 through 10, and paragraphs 23, 27, and 290 through 311. 379. The foregoing conduct, among others, violates the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. and constitutes a willful violation of the ADEA.
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380. Plaintiff Shahmirzadi requests relief as provided in the Prayer for Relief below. PRAYER FOR RELIEF
WHEREFORE Plaintiffs respectfully request this Court As to the Class Claims:
A. Declare that the practices described in this complaint exist at Sterling and that they are unlawful;
B. Grant certification of this action as a class action on behalf of the proposed Plaintiff class and designation of Plaintiffs as representatives of the class and their counsel of record as Class Counsel;
C. Grant certification of this action as a collective action and designation of Plaintiffs as representatives of the class and their counsel of record as Class Counsel;
D. Issue a permanent injunction prohibiting the Defendant, its officers, agents, employees and successors, from engaging in the discriminatory employment practices complained of herein in violation of Title VII of the Civil Rights Act of 1964, as amended;
E. Issue a permanent mandatory injunction requiring that Defendant adopt employment practices in conformity with the requirements of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.;
F. Award liquidated damages pursuant to 29 U.S.C. § 201, et seq.; G. Award back pay and other job benefits sufficient to make the Plaintiffs and the class whole; H. Award compensatory damages and pre-judgment interest, and punitive damages appropriate to the proof at trial;
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I. Award reasonable attorneys’ fees and costs, including expert fees, pursuant to 42 U.S.C. § 2000e and 42 U.S.C. § 1988; 29 U.S.C. § 216(b); 29 U.S.C. § 201, et seq.; and
J. Order such other and further relief as the Court deems just and proper.
As to Plaintiffs Maddox, McConnell, Reed, and Shahmirzadi’s Individual Claims: K. Award back pay and other job benefits sufficient to make Plaintiffs Maddox,
McConnell, Reed, and Shahmirzadi whole; L. Award Plaintiffs Maddox and Shahmirzadi liquidated damages and pre-judgment
interest pursuant to 29 U.S.C. § 626(b); M. Award Plaintiffs Maddox and Shahmirzadi reasonable attorneys’ fees and costs,
including expert fees, pursuant to 29 U.S.C. § 621, et seq.; 29 U.S.C. § 216(b); N. Award Plaintiffs McConnell and Reed compensatory damages and pre-judgment
interest, injunctive relief, and punitive damages appropriate to the proof at trial; O. Award Plaintiffs McConnell and Reed reasonable attorneys’ fees and costs,
including expert fees, pursuant to 42 U.S.C. § 2000e and 42 U.S.C. § 1988; and, P. Order such other and further relief for Plaintiffs Maddox, McConnell, Reed, and
Shahmirzadi as the Court deems just and proper. JURY TRIAL DEMAND
The Plaintiffs hereby demand a jury trial.
Dated: New York, New York April 23, 2008
Respectfully submitted, COHEN, MILSTEIN, HAUSFELD & TOLL, P.L.L.C.
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/s/ Jenny Yang Joseph M. Sellers Jenny R. Yang (JY-9667) Sahar F. Aziz 1100 New York Avenue, N.W. West Tower, Suite 500 Washington, D.C. 20005 Telephone: (202) 408-4600 Facsimile: (202) 408-4699 jsellers@cmht.com jyang@cmht.com saziz@cmht.com
Lynda J. Grant (LG-4784) 150 East 52nd Street, 30th Floor New York, N.Y. 10022 Telephone: (212) 838-7797 Facsimile: (212) 838-7745 lgrant@cmht.com
Sam J. Smith Loren B. Donnell Burr & Smith, LLP 442 W. Kennedy Boulevard Suite 300, Tampa, FL 33606 Telephone: (813) 253-2010 Facsimile: (813) 254-8391 ssmith@burrandsmithlaw.com ldonnell@burrandsmithlaw.com
Thomas A. Warren Thomas A. Warren Law Offices, P.L. 2032-D Thomasville Blvd. Tallahassee, FL 32308 Telephone: (850) 385-1551 Facsimile: (850) 385-6008 tw@nettally.com
Counsel for Plaintiffs
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 Case 2:08-cv-02875-JSR Document 52 Filed 06/19/08 Page 1 of 2

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
x LARYSSA JOCK, JACQUELYN BOYLE, CHRISTY CHADWICK, LISA FOLLETT, MARIA HOUSE, DENISE MADDOX, LISA McCONNELL, GLORIA PAGAN, JUDY REED, LINDA RHODES KHRISTINA RODRIGUES, NINA SHAHMIRZADI, LEIGHLA SMITH, DAWN SOUTO-COONS, and MARIE WOLF,
Plaintiffs,
-v-
STERLING JEWELERS, INC.,
Defendant. x
JED S. RAKOFF, U.S.D.J.

08 Civ. 2875 (JSR) ORDER

PI ntiffs, current and former female employees of defendant

Sterling Jewelers, Inc., bring this class action al ing a

company-wide pattern and practice of gender discrimination in pay and

promotion decisions in violation of Title VII and the Equal Pay Act.

Currently before the Court are three motions: first, plaintiffs'

Motion to Refer to Arbitration and Stay the Litigation ("arbitration

mot "); second, fendant's Motion for Bifurcated Scheduling,

Consideration, and Disposition of Legal Issues Relat

to the

Workplace Dispute Resolution Agreement Between Each PIa iff and

Defendant ("scheduling motion"); and third, plaintiffs' Motion to

Strike Counterclaims from the Pleadings Pursuant to Rule 12(f) or,

the Alternative, Motion to Dismiss Counterclaims Pursuant to Rule

2(b) (6) ("motion to strike").

Plaintiffs' motion to refer to arbitration is granted;

defendant's motion for bifurcated scheduling is denied; and

Case 2:08-cv-02875-JSR Document 52 Filed 06/19/08 Page 2 of 2

plaintiffs' motion to stri lS denied as moot.

Court hereby

re rs t s dispute 0 a itration pursuant to RESOLVE, defendant's

workplace alternative dis

resolution program, and stays the

tant action for all purposes. The Clerk of the Court is directed

to place this action on the suspense calendar.

An opinion sett

forth the reasons for this ruling will

follow in due course.

SO ORDERED.

Dated: New York, NY June 18, 2008

2

 
 UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

------------------------------------- x

LARYSSA JOCK, et al.,

:

:

Plaintiffs,

:

:

-v-

:

:

STERLING JEWELERS, INC.,

:

:

Defendant.

:

------------------------------------- x

JED S. RAKOFF, U.S.D.J.

08 Civ. 2875 (JSR) OPINION AND ORDER

Plaintiffs, current and former female employees of defendant Sterling Jewelers, Inc. (“Sterling”), a nationwide specialty jeweler, brought this class action alleging that Sterling discriminated against them in pay and promotion on the basis of their gender, in violation of Title VII, 42 U.S.C. § 2000e et seq., and the Equal Pay Act, 29 U.S.C. § 206(d). By summary Order dated June 18, 2008, the Court granted plaintiffs’ motion to refer the dispute to arbitration and to stay the instant litigation pending conclusion of that arbitration. In a Memorandum Order dated July 15, 2008 that elucidated the reasons for that ruling, the Court determined that the arbitration agreement granted the Court discretion as to whether to decide or to refer to the arbitrator certain threshold issues, notably, whether the matter could proceed as a class action; and the Court decided that referral of such issues to the arbitrator made better sense. Jock v. Sterling Jewelers, Inc., 564 F. Supp. 2d 307, 311 (S.D.N.Y. 2008). Thereafter, the arbitrator, on June 1, 2009, issued a threshold ruling that the arbitration agreement did not prohibit class arbitration. After the arbitrator further clarified

this ruling on June 26, 2009, Sterling moved this Court to vacate this determination or, in the alternative, to stay the arbitration proceedings. By summary Order dated August 31, 2009, the Court denied Sterling’s motion in its entirety. This Opinion gives the reasons for that ruling and directs the parties to update the Court on the status of the arbitration.
By way of background, in June 1998 Sterling put in place a three-step alternative dispute resolution program called “RESOLVE.” Subsequently, the named plaintiffs in this action all signed agreements requiring them to use RESOLVE for all employment disputes, including the Title VII and Equal Pay Act claims asserted here. See Aff. of Joseph L. Spagnola (Ex. B to Sterling Clause Construction Br.) ¶ 11 & Tab 2. Under RESOLVE, when an employee believes she has been subjected to an unlawful employment action, her first step is to contact the RESOLVE program administrator and file a complaint. If the employee is unsatisfied with the company’s response, her second step is to file an appeal, which the program administrator may assign either to an outside administrator or to a peer review panel. Finally, if the employee is still not satisfied, she may proceed to the third step, binding arbitration. See id. ¶ 8.
The RESOLVE arbitrations are to be conducted by the American Arbitration Association (“AAA”) in accordance with AAA rules, as amended or modified by certain RESOLVE-specific provisions, including the requirements, among others, that each arbitration be held near where the employee worked and that the arbitration agreements are to
2

be construed according to Ohio law. Id. ¶¶ 14-15, 17, 19. Nowhere, however, is class arbitration expressly mentioned. Nonetheless, the arbitrator, in her ruling of June 1, 2009, determined that the RESOLVE agreements do not prohibit class arbitration. This, the arbitrator held, was because, under Ohio law, the RESOLVE agreements were contracts of adhesion that, as such, required Sterling to insert an express prohibition on class arbitration if it wished to bar resort to that procedural right. Clause Construction Award (Ex. F. to Sterling Mem. of Law in Support of Mot. to Vacate) at 4-5.
After receiving the June 1 ruling, Sterling sought clarification from the arbitrator as to, among other things, how class certification would proceed in light of the requirement that an employee exhaust RESOLVE Steps 1 and 2 before proceeding to arbitration and also in light of the provision requiring the arbitration to be held near where each employee worked. In response, the arbitrator specified that (1) “The RESOLVE Arbitration Agreements do not require that class claims be resolved separately within each local venue.”; (2) “The RESOLVE Arbitration Agreements do not require that every claimant complete RESOLVE Steps 1 and 2 prior to participating in a class arbitration.”; and (3) “Determination as to whether a class should be certified, and the scope of the class, will be made after the parties have had an opportunity to develop the record and brief the appropriate scope of any class that may be certified.” Disposition of Application of Clarification of Clause Construction Award (Ex. J to Sterling Mem. of Law in Support of Mot.
3

to Vacate). Sterling then filed the instant motion to vacate the award and to stay the arbitration.
Preliminarily, plaintiffs contend that, because no class has yet been certified, Sterling’s motion is premature and unripe. “The ripeness doctrine is ‘drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction’ . . . .” Nat’l Park Hospitality Ass’n v. DOI, 538 U.S. 803, 808 (2003) (quoting Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n.18 (1993)) . A case is ripe for Article III purposes when it presents “a real or concrete dispute affecting cognizable current concerns of the parties.” Simmonds v. INS, 326 F.3d 351, 357 (2d Cir. 2003). However, even if a case is constitutionally ripe, it may not be prudentially ripe if it “will be better decided later and . . . [if] the parties will not have constitutional rights undermined by the delay.” Id. (emphasis omitted).
Here, allowing further proceedings before the arbitrator directed at certifying a class presents a real dispute affecting the parties; indeed, it materially transforms every aspect of how the arbitration proceeds. Indeed, this is so obvious that in the recent case of Stolt-Nielsen SA v. Animalfeeds Int’l Corp., involving a challenge to an arbitrator’s decision to permit class certification, first, this Court, 435 F. Supp. 2d 382 (S.D.N.Y. 2006), and then the Second Circuit, 548 F.3d 85 (2d Cir. 2008), proceeded to review the merits of the arbitrator’s ruling without even remotely suggesting that the controversy was unripe. Moreover, the Supreme Court, in subsequently granting Stolt-Nielsen’s petition for a writ of
4

certiorari, 129 S. Ct. 2793 (2009), only certified questions going to
the merits of the dispute, thus implicitly making clear that the
Court likewise sees no jurisdictional impediment to considering such
issues.
As for “prudential” unripeness, the instant motion involves
pure legal questions that will immediately impact the arbitration
and, as such, is “eminently fit for judicial review.” United States
v. Quinones, 313 F.3d 49, 59 (2d Cir. 2002) (internal quotation marks
omitted).1
Although the Court therefore chooses to exercise its
jurisdiction to review the arbitrator’s ruling on class
certification, the scope of that review is narrow. Specifically,
1 Plaintiffs also argue that Sterling waived its right to seek judicial review of the clause construction award through its “promise” in a RESOLVE program handbook that Sterling will not appeal arbitral decisions favoring employees. The relevant language appears in a chart contrasting the judicial system with the RESOLVE program: whereas, in the judicial system, “[d]ecisions can be appealed and overturned,” under RESOLVE, “[the] [d]ecision is protected if for you. The Company cannot appeal.” RESOLVE Handbook Chart (Ex. 4 to Claimants’ Opp.) (emphasis omitted). The Second Circuit, however, has refused to enforce contractual provisions that purport to bar judicial review of arbitration awards, and has instead held that “private parties may not dictate to a federal court when to enter a judgment enforcing an arbitration award.” Hoeft v. MVL Group, Inc., 343 F.3d 57, 65 (2d Cir. 2003), overruled on other grounds, Hall Street Assocs. v. Mattel, Inc., 128 S. Ct. 1396, 1403-04 (U.S. 2008). While plaintiffs attempt to distinguish Hoeft on the basis that it did not involve a contract of adhesion, nothing about that holding was based on the relative sophistication or degree of bargaining power of the parties. Furthermore, the purported “waiver” of judicial review in the RESOLVE handbook is far less clear than that at issue in Hoeft; it is at best ambiguous whether the clause construction award should be interpreted as a “[d]ecision . . . for you” that Sterling cannot appeal under the vague terms of the handbook.
5

Sterling concedes that the arbitrator’s decision to permit possible class certification may be overturned only if it exceeded the arbitrator’s powers, in violation of Section 10(a)(4) of the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq., or if it was made “in manifest disregard of the law,” a doctrine that, while still recognized in the Second Circuit, is “severely limited,” StoltNielsen, 548 F.3d at 91, to cases where there is not even a “barely colorable justification for the outcome reached.” Telenor Mobile Commc’ns AS v. Storm, LLC, 584 F.3d 396, 407 (2d Cir. 2009).
Here, Sterling first argues that vacatur is warranted under Section 10(a)(4) of the FAA because the arbitrator “exceeded [her] powers” by effectively nullifying certain provisions of the RESOLVE agreements. Specifically, Sterling contends that the award permitting class arbitration disregards RESOLVE’s requirements that the arbitration take place in a local venue, that the arbitrator be licensed to practice law in the applicable state, that all claimants submit to Steps 1 and 2 prior to initiating Step 3 arbitration, and that claims under RESOLVE be adjudicated under the law of the jurisdiction in which the claims arose. None of this, however, raises an issue of exceeding arbitral powers under Section 10(a)(4) of the FAA, because that section “focuses on whether the arbitrators had the power, based on the parties’ submissions or the arbitration agreement, to reach a certain issue, not whether the arbitrators correctly decided that issue.” Westerbeke Corp. v. Daihatsu Motor Co., 304 F.3d 200, 220 (2d Cir. 2002) (internal quotation marks omitted). Here, where the arbitration clause was broad, the
6

arbitrator clearly had the power to reach the issues now in question. Indeed, in its prior decision in this case, this Court already determined that the arbitrator (rather than the Court) should resolve the question of whether class arbitration should proceed. See Jock, 564 F. Supp. 2d at 310-12.
Sterling’s challenges under the heading of “manifest disregard” likewise rest on the assertions that class certification is irreconcilable with the RESOLVE provisions regarding venue, arbitrator licensing, pre-arbitration procedures, and choice of law. Specifically, Sterling argues that, by reading the possibility of class arbitration into an agreement that nowhere expressly authorizes such a possibility, the arbitrator “nullifies” the foregoing provisions by (1) allowing the instant arbitrator, who is licensed only in New York and Oregon, to adjudicate a potentially nationwide dispute; (2) forcing many putative class members to arbitrate their claims in a distant venue; (3) permitting putative class members to circumvent Steps 1 and 2 of the RESOLVE program; and (4) rendering it impractical to arbitrate a nationwide class action based on the law of the jurisdictions in which each claim arose. Sterling adds that the arbitrator’s award violated the provision of Ohio law that requires that a contract be construed in a way that gives meaning to all its provisions.
To the extent that Sterling’s papers may be read to assert that the arbitrator manifestly disregarded the law by construing an agreement that is silent on class arbitration to permit such arbitration to proceed, such an argument contravenes the holding of
7

the Second Circuit in Stolt-Nielsen. The arbitration panel in StoltNielsen construed the agreement as “bespeak[ing] an intent not to preclude class arbitration,” and the Second Circuit held that “[t]hat reading . . . is at least ‘colorable,’” and therefore not subject to vacatur for manifest disregard. 548 F.3d at 99. Although the lower court (the undersigned) had to some extent disagreed, 435 F. Supp. 2d at 387, and although the Supreme Court has since granted certiorari, the Second Circuit’s decision in Stolt-Nielsen remains binding at this time. Moreover, the oral argument in the Supreme Court at least suggests that the particular context of Stolt-Nielsen, a maritime dispute, may limit is applicability to other contexts. See Transcript of Oral Argument at 41:17-19, 58:2-3, Stolt-Nielsen, No. 08-1198 (U.S. Dec. 9, 2009).
But, in fairness, Sterling does not rely simply on the fact that the RESOLVE agreements are silent on class arbitration, but rather emphasizes the alleged inconsistency between class arbitration and the aforementioned provisions regarding venue, choice of law, etc. To be sure, these provisions might have supported a conclusion by the arbitrator that no class arbitration was intended. But the opposite result is not so completely beyond the pale of law and reason as to constitute manifest disregard of law. In any class action, only the individually named plaintiffs are required to meet the various threshold requirements to bringing suit, and, if they are met, a court may then appoint them to represent a class that includes persons over whom the Court might not otherwise have proper venue or the like. The analogy may be imperfect, but it is not so
8

indefensible as to violate what little is left of the “manifest disregard” doctrine.
Moreover, class treatment has its historic roots in the very kind of claims here made, with the Supreme Court even going so fair as to quote approvingly, in dictum, legislative history declaring that “[T]itle VII actions are by their very nature class complaints,” United Airlines, Inc. v. McDonald, 432 U.S. 385, 393 n.13 (1977) (quoting S. Rep. No. 92-415, at 27 (1971)). The arbitrator’s decision to allow unnamed class members to eschew certain RESOLVE requirements is arguably similar to Title VII cases holding that procedural requirements applicable to individuals need not be complied with by unnamed members. See id. at 389 n.6 (1977) (“[F]ull relief under Title VII ‘may be awarded on a class basis . . . without exhaustion of administrative procedures by the unnamed class members.’” (omission in original)); Snell v. Suffolk County, 782 F.2d 1094, 1100 (2d Cir. 1986) (adopting “single filing rule,” whereby when “one plaintiff has filed a timely EEOC complaint, other non-filing plaintiffs may join in the action if their individual claims ‘aris[e] out of similar discriminatory treatment in the same time frame’” (alteration in original)). It may also be noted, as the arbitrator observed, that Sterling “has deliberately not revised the RESOLVE Arbitration Agreement to include an express prohibition [of class arbitration], despite numerous arbitral decisions that class claims are permitted in the absence of an express prohibition.” Clause Construction Award at 5; see also In re Am. Express Merchants’ Litig., 554 F.3d 300, 302-04 (2d Cir. 2009) (discussing the recent
9

proliferation of class action waivers in arbitration agreements).
Thus, there is a colorable argument that under Ohio law, this failure
to clarify an ambiguity in the arbitration agreement is to be
construed against the drafter. See, e.g., Davidson v. Bucklew, 629
N.E.2d 456, 458 (Ohio App. 1992) (because “appellee could have
drafted the arbitration clause in a more limited manner but did not,”
“any ambiguity must be resolved in appellant’s favor”). Taken
together, the above arguments are more than sufficient for concluding
that the arbitrator did not act in “manifest disregard” of the law.
Finally, as a fall-back, Sterling requests that the Court at
least grant a stay of arbitration pending the Supreme Court's
decision in Stolt-Nielsen. Assuming the Court has the power to grant
such a stay,2 this relief would not be proper unless “the suppliant
for a stay [can] make out a clear case of hardship or inequity in
being required to go forward.” Landis v. N. Am. Co., 299 U.S. 248,
255 (1936); see also Paine, Webber, Jackson & Curtis Inc. v. Malon S.
2 Whether a district court has power to stay arbitration proceedings pending litigation is an “open question” in this Circuit. United States v. Eberhard, 2004 WL 616122, at *3 (S.D.N.Y. Mar. 30, 2004) (citing Westmoreland Capital Corp. v. Findlay, 100 F.3d 263, 266 n.3 (2d Cir. 1996)). However, cases that have found that courts have such power to stay “appear to have done so only in those circumstances where a stay would be incidental to the court's power under the FAA to enforce contractual agreements calling for arbitration” -- for example, where an arbitration proceeding was not authorized by contract or where the stay is granted in aid of a separate arbitration. Id. These situations are entirely different from the grounds for a stay that Sterling presses here. Therefore, this Court’s power to stay, if any, must derive from “the power inherent in every court to control the disposition of the causes on its docket,” Landis v. N. Am. Co., 299 U.S. 248, 254 (1936), and not from the provisions of the FAA.
10

Andrus, Inc., 486 F. Supp. 1118, 1119 (S.D.N.Y. 1980) (“Absent a showing of undue prejudice upon defendant or interference with his constitutional rights, there is no reason why plaintiff should be delayed in its efforts to diligently proceed to sustain its claim.”). In fact, Sterling points to no substantial harm that would justify further delay. While there will undoubtedly be added litigation costs that will be occasioned by going forward with class arbitration proceedings (which is one of the reasons that the instant motion is ripe), the amount of these additional costs may be modest given that discovery would also be necessary for individual claims. Furthermore, as already noted, it is uncertain whether the decision in Stolt-Nielsen will dispose of the issues raised here. The eventual decision might be distinguishable on the basis that the agreements in Stolt-Nielsen arose in the maritime context, were standard industry contracts, and/or were entered into by sophisticated commercial parties. Finally, of course, there is no way to predict when the Supreme Court will decide Stolt-Nielsen, other than that it is likely to be no later than the end of the term in June. Given all of this, it makes better sense to “get on with the show.” Delay is the bane of the American legal system, and this Court is loath to contribute to further delay.
The Court therefore reaffirms its August 31 ruling and denies the motion to vacate the arbitrator’s ruling or stay the arbitration proceedings. The parties are, however, directed to apprise the Court in writing, every three months beginning January 15, 2010, of the status of the arbitration.
11

 
 Case 2:08-cv-02875-JSR Document 85 Filed 07/27/10 Page 1 of 14

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

.....................................

X

LARYSSA JOCK, et al.,

Plaintiffs,

STERLING JEWELERS, INC., Defendant.

08 Civ. 2875 (JSR) MEMORANDUM ORDER

JED S. RAKOFF, U.S.D.J.

By an Opinion and Order dated December 28, 2009 (the "December 28 Order," reported at 677 F. Supp. 2d 661), the Court denied the motion of defendant Sterling Jewelers, Inc. ("Sterling") to vacate the arbitrator's determination that the arbitration agreements between Sterling and its employees, including the plaintiffs in the above-captioned class action lawsuit, permitted class arbitration of plaintiffs' employment discrimination claims. On January 26, 2010, Sterling filed a notice of appeal of the December 28 Order. That appeal is presently pending before the Second Circuit. Thereafter, Sterling, pursuant to Federal Rule of Civil Procedure 62.1, filed a motion in this Court seeking an "indicative ruling" as to whether the Court would reconsider its December 28 Order in light of the Supreme Court's recent decision in Stolt-Nielsen, S.A. v. AnimalFeeds International Corp., 130 S. Ct. 1758 (2010). The Court received full briefing on this motion and held oral argument on June 30, 2010. For the following reasons, the Court hereby indicates that if jurisdiction were restored, it would reconsider its December 28 Order and vacate the arbitrator's ruling

Case 2:08-cv-02875-JSR Document 85 Filed 07/27/10 Page 2 of 14
permitting class arbitration. By way of background, in June 1998 Sterling put in place a
three-step program called "RESOLVE," which provides an alternative dispute resolution mechanism for employment disputes and which requires arbitration of such disputes after the employee in question exhausts certain preliminary "steps." See December 28 Order, 677 F. Supp. 2d at 663. Thereafter, the plaintiffs in this action, who are current and former female Sterling employees, brought this class action lawsuit alleging that Sterling discriminated against them in pay and promotion on the basis of their gender, in violation of Title VII, 42 U.S.C. S 2000e et seq., and the Equal Pay Act, 29 U.S.C. S 206(d), and then moved to refer this dispute to arbitration. Sterling objected to that motion on the ground that the Court, rather than the arbitrator, should resolve certain preliminary issues, including whether the arbitration clauses permit class arbitration. The Court nonetheless referred these matters to the arbitrator (former Magistrate Judge Kathleen A. Roberts), finding that the parties' contract granted the Court discretion to refer such issues to the arbitrator and that it made good sense for the arbitrator to decide these issues in the first instance. Jock v. Sterlinq Jewelers, Inc., 564 F. Supp. 2d 307, 311 (S.D.N.Y.2008).
The parties then briefed the issue of class arbitrability to the arbitrator. Sterling argued, among other things, that certain provisions of the RESOLVE agreements, including requirements that each arbitration be held near where the employee worked and that the
2

Case 2:08-cv-02875-JSR Document 85 Filed 07/27/10 Page 3 of 14
arbitrator apply local law, were incompatible with class arbitration.
The plaintiffs responded chiefly by arguing that under then-
applicable Second Circuit precedent, where, as in the RESOLVE
agreements, the arbitration clauses do not expressly preclude class
arbitration, class arbitration may be permitted. See Stolt-Nielsen
SA v. AnimalFeeds Int'l Corp., 548 F.3d 85, 101 (2d Cir. 2008),
rev'd, 130 S. Ct. 1758 (2010).
On June 1, 2009, the arbitrator ruled that the RESOLVE
agreements did not prohibit class arbitration, and for that reason
allowed class arbitration to proceed. Pursuant to the choice-of-law
clause contained in the agreements, this ruling (as amended, the
"June 1 Award") applied Ohio law to the issue of whether class claims
were authorized under the arbitration contract, and noted that the
question of whether class arbitration is permitted by an agreement
that does not expressly so provide had not been addressed by the Ohio
courts. The arbitrator then reasoned:
Under Ohio law, contracts are to be interpreted so as to carry out the intent of the parties, as that intent is evidenced by the contractual language. Skivolocki v. East Ohio Gas Co., 38 Ohio St. 2d 244, 247 (1974). "The law will not insert by construction for the benefit of one of the parties an exception or condition which the parties either by design or neglect have omitted from their own contract." Montqomery v. Bd. of Educ. of Liberty Township, Union Cty.,
102 Ohio St. 189, 193 (1921).
Applying these principles, I find that the RESOLVE Arbitration Agreements do not prohibit class claims.
Sterling argues that RESOLVE'S unique contractual provisions for local venues, the application of local laws, and the selection of locally-licensed arbitrators establish that the parties never intended class arbitration of employee claims. Sterling further argues that ignoring the terms of

Case 2:08-cv-02875-JSR Document 85 Filed 07/27/10 Page 4 of 14
RESOLVE that are inconsistent with class arbitration would "rewrite" the parties' Agreement.
I note at the outset that the very concept of intent is problematic in the context of a contract of adhesion. Because this contract was drafted by Sterling and was not the product of negotiation, it was incumbent on Sterling to ensure that all material terms, especially those adverse to the employee, were clearly expressed. Notably, Sterling
acknowledges . . . that it has deliberately not revised the
RESOLVE Arbitration Agreement to include an express prohibition, despite numerous arbitral decisions that class claims are permitted in the absence of an express prohibition. Under these circumstances, construing the Agreement to contain a waiver of a significant procedural right would impermissibly insert a term for the benefit of one of the parties that it has chosen to omit from its own
contract. Montqomery, 102 Ohio St. at 193; cf. Mastrobuono v. Shearson Lehman Hutton, Inc., 514 US 53,64 (1995).'
I further find that agreeing to a step process for individual claims does not manifest an intent to waive the right to participate in a collective action, where, as here, the Agreement expressly gives the Arbitrator the "power to award any types of legal or equitable relief that would be available in a court of competent jurisdiction."
Sterling Rule 62.1 Mem., 5/13/10, Ex. A (June 1 ward), at 4-5.
Accordingly, the arbitrator concluded that the RESOLVE agreements
could not construed to prohibit class arbitration.
On June 30, 2009, Sterling filed a motion before this Court
to vacate the June 1 Award. Sterling also moved to stay arbitration
proceedings pending the Supreme Court's decision in Stolt-Nielsen
S.A. v. AnimalFeeds International Corp., which presented the question
of whether permitting class arbitration where the relevant
arbitration clauses were "silent" on class arbitration was consistent
' In a footnote, the arbitrator added: "Arbitrators faced
with agreements containing similar provisions have found them insufficient to reflect any mutual intent to preclude arbitration of class claims." Sterling Rule 62.1 Mem., 5/13/10, Ex. A (June 1 Award), at 5 n.1.

Case 2:08-cv-02875-JSR Document 85 Filed 07/27/10 Page 5 of 14
with the Federal Arbitration Act ("FAA"),9 U.S.C. § 1 et ses. This Court denied the motion to stay for the reason, among others, that the Supreme Court's "eventual decision might be distinguishable on the basis that the agreements in Stolt-Nielsen arose in the maritime context, were standard industry contracts, and/or were entered into by sophisticated commercial parties." December 28 Order, 677 F. Supp. 2d at 667-78.2 Applying the then-binding Second Circuit decision in Stolt-Nielsen, the Court denied the motion to vacate the June 1 Award, holding that the arbitrator's determination was not in
excess of her powers or in "manifest disregard" of the law. Id.at
On April 27, 2010, the Supreme Court issued its decision in Stolt-Nielsen, reversing the Second Circuit decision relied upon by this Court in the December 28 Order and by the arbitrator in her June 1 Award. The opinion of the Court held that the arbitration panel in
Stolt-Nielsen exceeded its powers by "simply . . . impos[ingl its own
view of sound policy regarding class arbitration" rather than "interpret [ing] and enforc [ing] [the] contract." 130 S. Ct. at 176768. This holding was founded on the "basic precept" that arbitration
"'is a matter of consent, not coercion.'" Id. at 1773 (quoting Volt
Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 479 (1989)). Thus, the Court held that the arbitrator's
This Court had particular familiarity with the StoltNielsen case because the case was originally assigned to the undersigned. It was the decision of this Court denying class
arbitration, see Stolt-Nielsen SA v. Animalfeeds Intfl Corp., 435
F. Supp. 2d 382 (S.D.N.Y.2006), that the Second Circuit reversed in the decision that was in turn reversed by the Supreme Court.

Case 2:08-cv-02875-JSR Document 85 Filed 07/27/10 Page 6 of 14
task is to "to give effect to the intent of the parties" with respect
to their agreement to arbitrate, including their specification of
"with whom they choose to arbitrate their disputes." Id.at 1774-75.
The parties in Stolt-Nielsen stipulated that they had reached
"no agreement" on the issue of class arbitration. Id.at 1775. The
Supreme Court held that the arbitration panel there impermissibly
required Stolt-Nielsen, S.A., the party seeking to avoid class
arbitration, to "establish that the parties to the charter agreements
intended to preclude class arbitration." Id. (internal quotation
marks omitted). In passages highly relevant to the instant motion,
the Supreme Court reasoned as follows:
An implicit agreement to authorize class-action
arbitration . . . is not a term that the arbitrator may infer
solely from the fact of the partiest agreement to arbitrate. This is so because class-action arbitration changes the nature of arbitration to such a degree that it cannot be presumed the parties consented to it by simply agreeing to submit their disputes to an arbitrator. In bilateral arbitration, parties forgo the procedural rigor and appellate review of the courts in order to realize the benefits of private dispute resolution: lower costs, greater efficiency and speed, and the ability to choose expert adjudicators to resolve specialized disputes. But the relative benefits of class-action arbitration are much less assured, giving reason to doubt the parties' mutual consent to resolve disputes through class-wide arbitration.
Consider just some of the fundamental changes brought about by the shift from bilateral arbitration to class-action arbitration. An arbitrator chosen according to an agreed-upon procedure no longer resolves a single dispute between the parties to a single agreement, but instead resolves many disputes between hundreds or perhaps even
thousands of parties. . . . The arbitrator's award no longer
purports to bind just the parties to a single arbitration agreement, but adjudicates the rights of absent parties as well. And the commercial stakes of class-action arbitration are comparable to those of class-action litigation, even though the scope of judicial review is much more limited.

Case 2:08-cv-02875-JSR Document 85 Filed 07/27/10 Page 7 of 14
Id. at 1775-76 (citations omitted). For these reasons, the Court
rejected the arbitration panel's presumption that "the parties' mere
silence on the issue of class-action arbitration constitutes consent
to resolve their disputes in class proceedings." Id.at 1776.3
Against this background, Sterling argues in its Rule 62.1
motion that the arbitrator here permitted class arbitration to go
forward based on the kind of reasoning rejected by the Supreme Court
in Stolt-Nielsen, and, in any event, that there is no indication in
the record that the parties affirmatively intended to permit class
arbitration. Thus, Sterling contends, a straightforward application
of Stolt-Nielsenrsholding requires the June 1 Award to be vacated.
Plaintiffs resist on the grounds that Stolt-Nielsen is factually
distinguishable in important respects, and, in any event, that the
record here, unlike the record in Stolt-Nielsen, supports the
inference that the parties implicitly agreed to permit arbitration of
class claims. For the following reasons, the Court concludes, in
light of Stolt-Nielsen, that the arbitrator's construction of the
The Court in Stolt-Nielsen also rejected the threshold argument, also advanced at earlier stages by the plaintiffs in this matter, that an arbitral award permitting class arbitration
to go forward was constitutionally unripe for review. See 130 S.
Ct. at 1767 n.2. The Court expressly declined to reach the related question of when judicial review of such an award might
be unripe as a prudential matter. Id. In their opposition to
Sterling's Rule 62.1 motion, plaintiffs assert that there "remains serious question" as to whether the June 1 Award is ripe for judicial review. Pls' Rule 62.1 Resp., 5/28/10, at 22 n.8. Plaintiffs made this same argument as to prudential ripeness in opposing Sterling's prior motion to vacate the June 1 Award. The Court squarely rejected that argument in its December 28 Order,
see 677 F. Supp. 2d at 664, and sees no reason to revisit that
holding now.

Case 2:08-cv-02875-JSR Document 85 Filed 07/27/10 Page 8 of 14
RESOLVE agreements as permitting class arbitration was in excess of her powers and therefore cannot be upheld.
Plaintiffs concede, as they must, that the June 1 Award did not by its terms rest upon a finding that the parties manifested any affirmative intention to permit class arbitration. See Transcript,
6/30/10, at 24 ("MR. SELLERS: . . . I will concede that there's
nothing explicit in the [arbitrator's] clause construction that provides for a finding of assent by the parties; and that the arbitrator, based on the legal standards that were applicable then, was focused on whether there was any intention to preclude it."). Rather, consistent with the arbitral award upheld by the Second Circuit in Stolt-Nielsen, Arbitrator Roberts started from the premise that an arbitration clause silent on class arbitration may be construed to permit such arbitration, devoted her analysis to determining whether there was any indication that the parties intended to preclude class arbitration, and ultimately concluded that the agreements "do not prohibit" class arbitration. This approach is plainly incompatible with the Supreme Court's subsequent pronouncements in Stolt-Nielsen.
Nonetheless, plaintiffs urge the Court to leave the arbitrator's ruling undisturbed because, they argue, the record before the arbitrator evinces the parties' shared intent to permit class arbitration. Specifically, plaintiffs focus on the following aspects of the record before the arbitrator: (1) the broad language of the RESOLVE agreements' arbitration clauses, which provide for the
arbitration of "any dispute, claim or controversy . . . against
8

Case 2:08-cv-02875-JSR Document 85 Filed 07/27/10 Page 9 of 14
Sterling," and empower the arbitrator to award "any types of legal or
equitable relief that would be available in a court of competent
jurisdiction"; (2) that under Ohio law, any ambiguities in the
arbitration agreements, which are contracts of adhesion, must be
construed against the drafter (Sterling); (3) that there is a
tradition of class claims in the context of employment discrimination
litigation; (4) that Sterling deliberately chose not to amend the
RESOLVE agreements to expressly preclude class claims; and (5) that
certain consumer arbitration agreements drafted by Sterling, unlike
the RESOLVE agreements, do include an express preclusion of class
claims. Assuming arquendo that the June 1 Award may be sustained,
notwithstanding its silence on many of these issues, as long as the
record before the arbitrator provides some indication that the
parties intended to permit arbitration of class claimsI4the Court
finds that the record here does not so indicate.
First, as to the broad language of the arbitration clauses,
"In this regard, the plaintiffs rely on Duferco International Steel Tradinq v. T. Klaveness Shippinq A/S, 333 F.3d 383 (2d Cir. 2003), which, in explicating the "manifest disregard" standard for vacatur of an arbitral award, held that "[elven where explanation for an award is deficient or non-existent, we will confirm it if a justifiable ground for the
decision can be inferred from the facts of the case," id. at 390.
Accord, e.q., Stolt-Nielsen, 548 F.3d at 97 ("Even where an arbitrator's explanation for an award is deficient, we must confirm it if a justifiable ground for the decision can be inferred from the record."), rev'd on other srounds, 130 S. Ct. 1758. It should be noted, however, that the opinion of the Court in Stolt-Nielsen expressly declined to reach the issue of whether the "manifest disregard" standard remains a viable basis for vacatur, 130 S. Ct. at 1767-68, and did not suggest that the reviewing court had any obligation or discretion to go beyond the arbitrator's decision in determining whether the parties had assented to class arbitration.

Case 2:08-cv-02875-JSR Document 85 Filed 07/27/10 Page 10 of 14
the clauses at issue in Stolt-Nielsen contained similarly broad wording, providing for the arbitration of "[alny dispute arising from the making, performance or termination of this Charter Party." 130 S. Ct. at 1765. Second, as to the claim that the RESOLVE agreements are contracts of adhesion, while this might be a "colorable argument"
in the abstract, see December 28 Order, 677 F. Supp. 2d at 667, an
Ohio intermediate appellate court, construing the very agreement here in issue, has expressly reached the contrary result, W.K. v. Farrell, 167 Ohio App. 3d 14, 26-27 (2006) (rejecting Sterling employee's claim that RESOLVE agreement was adhesive or unconscionable), and there is no Ohio case to the contrary. Third, while many Title VII lawsuits are litigated as class claims (and many are not), there is no basis for asserting that there is any long-standing custom of class arbitration of such claims. Last, with respect to Sterling's final two arguments, these contentions presume that Sterling had some obligation to affirmatively clarify that the RESOLVE agreements precluded class arbitration, which is directly contrary to StoltNielsen's rejection of the notion that "parties' mere silence on the
issue . . . constitutes consent to resolve their disputes in class
proceedings." 130 S. Ct. at 1776. Even when the most persuasive aspects of the foregoing
arguments are taken together, plaintiffs still fail to identify any concrete basis in the record for the arbitrator to conclude that the parties manifested an intent to arbitrate class claims.5 At most,
The Court is unpersuaded by plaintiffs' argument that it should remand this matter to the arbitrator to determine in the

Case 2:08-cv-02875-JSR Document 85 Filed 07/27/10 Page 11 of 14
the record supports a finding that the agreements do not preclude
class arbitration, but under Stolt-Nielsen, this is not enough. And
while Stolt-Nielsen does not foreclose the possibility that parties
may reach an "implicit" - - rather than express - - "agreement to
authorize class-action arbitration," id. at 1775, the record here
provides no support for such an implied agreement.
Finally, plaintiffs attempt to distinguish Stolt-Nielsen from
this case on its facts. Plaintiffs emphasize that Stolt-Nielsen
arose in the context of an antitrust dispute between two commercially
sophisticated parties: Stolt-Nielsen, S.A., the owner and operator of
parcel tankers, and AnimalFeeds International Corp., a cargo-shipper.
Moreover, the arbitration clauses in Stolt-Nielsen were contained in
maritime charter party agreements, and evidence in the record there
showed that it is "customary in the shipping business for parties to
resolve their disputes through bilateral arbitration." Id. at 1769
n.6. And in Stolt-Nielsen, unlike here, the parties stipulated to
the arbitrators that their agreement was "silent" on the question of
class arbitration. Id. at 1766. These and other distinguishable
first instance whether the record can support a finding of an intent to arbitrate class claims. First, a remand for this purpose appears to be barred by the functus officio doctrine, which "dictates that, once arbitrators have fully exercised their authority to adjudicate the issues submitted to them, 'their authority over those questions is ended,' and "'the arbitrators have no further authority, absent agreement by the parties, to
redetermine th [ose] issue [s]. "' T.Co. Metals, LLC v. Dempsev Pipe
& Supply, Inc., 592 F.3d 329, 342 (2d Cir. 2010) (alterations in original). Second, even if a remand to the arbitrator were not so barred, the Court sees no reason at this point to exercise its discretion to refer these questions to the arbitrator when the Court now has full familiarity with the record of this case as well as with the legal questions raised in the instant motion.

Case 2:08-cv-02875-JSR Document 85 Filed 07/27/10 Page 12 of 14
facts manifestly played some role in the Supreme Court's reasoning, see, e.q., - id. at 1775, and, indeed, the dissenting Justices read
these distinctions as limitations on the Court's holding, id. at 1783
(Ginsburg, J., dissenting) ( " [Bly observing that ' the parties [here]
are sophisticated business entities,' and 'that it is customary for the shipper to choose the charter party that is used for a particular shipment,' the Court apparently spares from its affirmativeauthorization requirement contracts of adhesion presented on a take-it-or-leave-itbasis.").
This Court, however, does not read Stolt-Nielsen so narrowly, and instead finds that these distinctions cannot cure the defects in the June 1 Award in light of Stolt-Nielsen's essential holding. The opinion of the Court in Stolt-Nielsen clearly held, in unqualified terms, that "[aln implicit agreement to authorize class-action arbitration . . . is not a term that the arbitrator may infer solely
from the fact of the parties1 agreement to arbitrate." Id.at 1775.
While contextual factors such as the sophistication of the parties, their relative bargaining position with respect to the arbitration clauses, and any pertinent tradition of dispute resolution might aid in construing ambiguous manifestations of the parties' intentions, they cannot establish assent to class arbitration where, as here, the contract itself provides no reason to believe the parties reached any agreement on that issue.
Finally, although plaintiffs are correct that here, unlike in Stolt-Nielsen, there is no stipulation between the instant parties that the RESOLVE agreements are "silent" on class arbitration, this
12

Case 2:08-cv-02875-JSR Document 85 Filed 07/27/10 Page 13 of 14
is not a point that cuts in their favor. As noted, the RESOLVE agreements contain provisions that, among other things, require claimants to complete a multi-step process before submitting their disputes to an arbitrator, require the arbitration to take place in a local venue, and require the arbitrator to apply local law. While the June 1 Award concluded that these provisions were not incompatible with class arbitration, and this Court declined to vacate that award under the law of the Circuit at the time, these features, if anything, support the inference that the parties here may have intended to preclude class arbitration; they certainly do
not evince any assent to permit arbitration of class claims. Cf.
Fensterstock v. Educ. Fin. Partners, - - - F.3d - - - , 2010 WL 2729759, at "14 (2d Cir. July 12, 2010) (holding that an arbitration clause expressly purporting to waive the right to class arbitration was unconscionable as a matter of California law; severing that clause as unenforceable; but then concluding that the arbitration agreement, as severed, was "silent as to the permissibility of class-based arbitration, and under Stolt-Nielsen we have no authority to order class-based arbitration").
For the foregoing reasons, if jurisdiction were restored to this Court, the Court would reconsider its December 28 Order and vacate the June 1 Award permitting class arbitration as having been made in excess of the arbitrator's powers. See Stolt-Nielsen, 130 S. Ct. at 1775 ('[A] party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for

Case 2:08-cv-02875-JSR Document 85 Filed 07/27/10 Page 14 of 14
concluding that the party asreed to do SO.").^
Pursuant to Rule 62.l(b), Sterling is directed bring this Memorandum Order to the attention of the Court of Appeals. The Clerk of this Court is directed to close documents 72 and 76 on the docket of this case.
SO ORDERED. Dated: New York, NY
July 26, 2010
Sterlingfsmotion for a stay pending the Court's determination of the Rule 62.1 motion, which was preliminarily addressed in an Order dated July 6, 2010 that granted the stay only until July 30, is hereby denied as moot.

 
 CCaassee: 21:00-83-3c0v-02D87o5cu-JmSeRnt:D5o3cumPeangte8:61 Fi0le8d/0038//20031/100 P8a0g9e1S0618Do-Ncf v1Y1-2(8N7e5w York City) Rakoff, D.J.

UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT ______________________________________________

At a Stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 3rd day of August, two thousand and ten.

Before:

Gerard E. Lynch,

Circuit Judge.

_______________________________________________

Laryssa Jock, Dawn Souto-Coons, Jacquelyn Boyle, Christy Chadwick, Lisa Follett, Maria House, Denise Maddox, Lisa McConnell, Gloria Pagan, Judy Reed, Linda Rhodes, Khristina Rodriguez, Nina Shahmirzadi, Leighla Smith, Marie Wolf, Kelly Contreras,
Plaintiff-Counter-Defendants-Appellees, v.

ORDER Docket No. 10-330

Sterling Jewelers, Inc.,

Defendant-Counter-Claimant-Appellant.
___________________________________________________

IT IS HEREBY ORDERED that the motion by Appellant Sterling Jewelers, Inc. for limited remand pursuant to F.R.A.P. 12.1 to permit the District Court to rule ona pending Fed. R. Civ. Pro. 60(b)(5) motion is GRANTED. Appellant must notify the Court withinseven days after the District Court has ruled so that the appeal may proceed.

FOR THE COURT, Catherine O’Hagan Wolfe, Clerk

Joy Fallek, Administrative Attorney

CERTIFIED COPY ISSUED ON 08/03/2010.

 
 Case 2:08-cv-02875-JSR Document 87 Filed 08/09/10 Page 1 of 1

.
t

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK .....................................
LARYSSA JOCK, et a1 . ,
Plaintiffs,

ma> 4 *-, - 2 4 .r.i;f$,$2:p 4 T >7
k;TQ;.y2!,,L.4'~.., e * i ~s" ~- j
A
J

-v-

08 Civ. 2875 (JSR)

STERLING JEWELERS, INC.,

ORDER

Defendant.

.....................................

X

JED S. RAKOFF, U.S.D.J.

By Order dated August 3, 2010, Docket No. 10-330 (2d Cir.),

the Court of Appeals remanded this matter 'to permit the District

Court to rule on a pending Fed. R. Civ. Pro. 60(b)(5) motion." In a

Memorandum Order dated July 26, 2010, the Court had indicated that it

would be inclined to grant that motion if its jurisdiction were

restored and had stated the reasons therefor. Upon receipt of the

Court of Appeals' Order of August 3, 2010, the Court gave the parties

. a further opportunity to be heard on this motion, which both sides
declined. Accordingly, the Court, for the reasons stated in the July

26 Memorandum Order, hereby grants defendant's motion and vacates the

arbitrator's June 1, 2009 award permitting class arbitration to

proceed. Pursuant to the Court of Appeals' August 3, 2010 Order,

defendant must notify the Court of Appeals of this ruling by no later

than August 13, 2010.

SO ORDERED.

Dated: New York, NY August 6, 2010

U.S.D.J.

 
 CaCseas2e:0: 81-0c-v3-300287D5o-cJuSmRenDt:o6c3umPeangt e9:31 F0ile8d/3019/2/01/010 9P86a4g6e 1 1of 1
MANDATE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ____________________________________________
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 11th day of August, two thousand and ten,

____________________________________

Laryssa Jock, Dawn Souto-Coons, Jacquelyn Boyle, Christy Chadwick, Lisa Follett, Maria House, Denise Maddox, Lisa McConnell, Gloria Pagan, Judy Reed, Linda Rhodes, Khristina Rodriguez, Nina Shahmirzadi, Leighla Smith, Marie Wolf, Kelly Contreras,

ORDER Docket Number: 10-330

Plaintiffs-Counter-Defendants - Appellees,

v.

Sterling Jewelers, Inc.,

Defendant-Counter-Claimant - Appellant. _______________________________________

The parties in the above-referenced case have filed a stipulation withdrawing this appeal pursuant to FRAP 42. Each party has submitted a separate electronically signed counterpart reflecting the negotiated terms of the stipulation.
The stipulations are hereby "So Ordered".

For The Court: Catherine O'Hagan Wolfe, Clerk

Yana Segal, Deputy Clerk

CERTIFIED COPY ISSUED ON 08/31/2010

 
 Case 2:08-cv-02875-JSR Document 104 Filed 12/10/10 Page 1 of 10

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
--- ---------- x LARYSSA JOCK, et al.,
Plaintiffs,
-v-
STERLING JEWELERS, INC.,
Defendant.
---------- x
JED S. RAKOFF, U.S.D.J.

08 Civ. 2875 (JSR) MEMORANDUM ORDER

On November 9, 2010, the above-captioned plaintiffs moved for an order enjoining the defendant, Sterling Jewelers Inc. ("Sterling"), and the American Arbitration Association ("AAA") , from proceeding with individual arbitrations in this action during the pendency of the Second Circuit's expedited consideration of the plaintiffs' appeal of the Court's Order dated August 6, 2010 that denied class arbitration. Upon review of the parties' briefs and oral argument, the Court grants the injunction, but only until January 11, 2011.
By way of background, plaintiffs -- who are current and former female employees of Sterling, a nationwide specialty jeweler brought this action alleging that Sterling discriminated against them in pay and promotion on the basis of their gender, in violation of
tIe VII, 42 U.S.C. § 2000e ==-=~~, and the Equal Pay Act, 29 U.S.C. § 206(d). Plaintiffs are subject to agreements requiring them

1 


Case 2:08-cv-02875-JSR Document 104 Filed 12/10/10 Page 2 of 10

to use RESOLVE, Sterling's three-step alternative dispute reso ion

program, for all employment-related sputes. Under RESOLVE, when an

employee believes she has been subjected to an unlawful employment

action, her first step is to contact the RESOLVE program

administrator and file a complaint. If the employee is unsatisfied

with the company's response[ her second step is to file an appeal,

which the program administrator may assign either to an outside

administrator or to a peer review panel. Finally, if the employee is

still not satisfied,

may proceed to the third step[ binding

arbitration. The RESOLVE arbitrations are to be conducted by the AAA

in accordance with AAA rules, as amended or modified by certain

RESOLVE specific provisions. The agreement and applicable AAA rules

are si

as to whether class arbitration is permitted.

tially, in a Memorandum Order dated July IS, 2008, the Court,

pursuant to its authority under § 4 of the Federal Arbitration Act

("FAAII)[ 9 U.S.C. § 4, granted plaintiffs' motion to compel

arbitration of the claims. Thereafter, on June I, 2009, the

arbitrator issued a threshold ruling that plaintiffs would be

permitted to proceed with class arbitration. This was

keeping

with Second Circuit law as it then stood. See Stolt-Nielsen SA v.

AnimalFeeds Intern. Corp., 548 F.3d 85 (2d Cir. 2008). Subsequently,

however, the Supreme Court reversed the Second Circuit and held that

there can be no class arbitration where the parties have not

2

Case 2:08-cv-02875-JSR Document 104 Filed 12/10/10 Page 3 of 10

expressly contracted for such. Stolt-Nielsen, S.A. v. AnimalFeeds

International Corp., 130 S. Ct. 1758 (2010). Accordingly, on August

6, 2010, the Court vacated the arbitrator's June 1! 2009 ruling and

held there could be no class arbitration in this case. Plaintiffs

promptly appealed the Court's August 6 Order to the Second Circuit.

Meanwhile! defendant sought to have arbitration proceed on an

individualized basis, thus threatening to moot plaintiffs! appeal, in

whole or in part. That this was defendant's motivation was also

evidenced! inter alia! by defendant's opposing plaintiffs! request

for an expedited appeal. Accordingly, by Order dated September 17!

2010, the Court granted plaintiffs' motion for a stay of the August 6

Order! nunc pro tunc, pending the appeal. In doing so! the Court

anticipated that the arbitrator would simply place the arbitration on

hold pending the resolution of the appeal. Accordingly, the Court

did not take the further step of staying the class arbitration, as it

"[saw] no reason not to permit the arbitrator to determine in the

first instance whether to stay

the proceeding" on his own

volition. Id. at 9. This proved unnecessary, however! as the

parties themselves! in light of the Court!s September 17 Order,

stipulated on October 6! 2010 to a stay of the class arbitration

during the pendency of plaintiffs' appeal.

pl. Mem. Ex. H.

On August 13, 2010, however, Sterling, in another blatant

exercise of gamesmanship! attempted a new end-run around plaintiffs!

appeal by initiating individual arbitrations for the 46 individual

3 


Case 2:08-cv-02875-JSR Document 104 Filed 12/10/10 Page 4 of 10

claimants who had previously sought to pursue arbitration as a class,

a process that would lead to the appointment of individual

arbitrators who would not be identified with the previously-appointed

arbitrator who was overseeing the putative class arbitration that was

now stayed. Although initially a "case manager" at the AAA, by

letter dated August 26, 2010, instituted an automatic 60-day stay of

those individual arbitrations, see Pl. Mem. Ex. A, thereafter, by

letter dated November 1, 2010, the case manager at the AAA declined

to extend the 60-day stay and ordered the administration of the

individual arbitrations to proceed "absent party agreement or a court

order." rd. at Ex. E. After Sterling declined plaintiffs' request

to stay those arbitrations, plaintiffs, on November 9, 2010, filed

the instant motion seeking to enjoin the individual arbitrations

pending appeal of the August 6 Order. By further letter dated

December 1, 2010, the case manager at the AAA confirmed that

administration of the individual arbitrations would proceed ­

starting with selection of the 46 individual arbitrators - but

expressly noted that "[t]he AAA will abide by any order issued by the

courts." See pl. Suppl. Ex. 1.

Meanwhile, on October 7, 2010, Circuit Judge Lynch, over

Sterling's objections, approved plaintiffs' request for an expedited

appeal of the Court's August 6 Order. See PI. Mem. Ex. G. Briefing

has occurred, and oral argument on that appeal is currently scheduled

for January 11, 2011.

Transcript, 12/7/2010, at 6.

4

Case 2:08-cv-02875-JSR Document 104 Filed 12/10/10 Page 5 of 10
Against this background, the Court addresses the question of the plaintiff's requested relief, viz., to stay the individual arbitration proceedings. As the Court noted in its September 17 Order l at *9, whether a court has the power to stay arbitration proceedings under the FAA (either directly or by enjoining one or more parties thereto) appears to be a question that has not been finally decided in this Circuit. See Westmoreland Capital Corp. v. Findlay, 100 F.3d 263, 266 n.3 (2d Cir. 1996). However, the Second Circuit has in several instances -- both prior and subsequent to Westmoreland - affirmed district court decisions enjoining arbitration proceedings, albeit not under the authority of the FAA. See, e.g., AXA versicherung AG ex reI. Albingia Versicherungs AG v. New Hampshire Ins. Co., 348 Fed.Appx. 628, 631 (2d Cir. 2009); Motorola Credit Corp. v. Uzan, 322 F.3d 130, 137 (2d Cir. 2003) i Collins & Aikman Products Co. v. Building Systems, Inc., 58 F.3d 16 (2d Cir. 1995). And, while one district court in this District has held that the FAA precludes a court from staying an arbitration proceeding, see Ghassabian v. Hematian, 2008 WL 3982885, at *2 (S.D.N.Y. Aug.27, 2008), several other district courts have held that the FAA permits such an injunction, see, e.g., L.F. Rothschild & Co., Inc. v. Katz, 702 F. Supp. 464, 467 (S.D.N.Y. 1988), or have "assume[d] without deciding that the Court does have the power to stay arbitration,H see, e.g., Oppenheimer & Co. Inc. v. Deutsche Bank
, 2009 WL 4884158, at *6 (S.D.N.Y. Dec. 16, 2009). Furthermore,
5 


Case 2:08-cv-02875-JSR Document 104 Filed 12/10/10 Page 6 of 10

courts of appeal in other circuits have held that district courts

have the power under the FAA to enjoin arbitration in appropriate

circumstances. See Tai Ping Ins. Co. v. M/V Warschau, 731 F.2d 1141,

1144 (5th Cir. 1984) i Societe Generale de Surveillance, SA v.

Raytheon European Mgmt. and Sys. Co., 643 F.2d 863, 867-68 (1st Cir.

1981) (then Circuit Judge Breyer). The thrust of most of these cases

is that the Court's power to compel arbitration under the FAA

necessarily implies the power to enjoin arbitration.

A typical case is Rothschild, supra. There, the parties'

agreement permitted arbitration in either New York or Chicago, and

the parties had separately initiated "rival arbitrations arising out

of the same controversy" in those cities. Id. at 467. As such, "to

permit both proceedings to continue would require the parties to

pursue the same claims or defenses in two separate forums, resulting

in the duplication of the arbitrators' efforts and risking

inconsistent outcomes." Id. at 466-67. The Court therefore ordered

the parties to proceed with the earlier-filed New York arbitration

under § 4 of the FAA and, pursuant to that order, stayed the later

filed Chicago arbitration. Id.

In the instant action, the individual arbitrations with which

Sterling seeks to proceed are clearly "rivals ff

, dealing with

the same controversy} of the earlier filed class arbitration that, in

June of 2008, the Court had previously compelled. Though the first

arbitration has now been stayed pursuant to an agreement of the

6 


Case 2:08-cv-02875-JSR Document 104 Filed 12/10/10 Page 7 of 10
parties/ the broader situation remains unchanged. Sterling initiated a series of individual arbitrations that substantially overlap with an earlier-filed arbitration compelled by Order of this Court. The Court concludes that/ as a necessary incident to its power to compel arbitration proceedings under § 4 of the FAA/ it may preserve the integrity of those proceedings by enjoining later-filed arbitrations that arise out of the same controversy. Any other conclusion would impede rational application of § 4 of the FAA/ as well as fundamentally limit the power of a court to enforce its own judgments. Cf. Landis v. N. Am. Co./ 299 U.S. 248/ 254 (1936) (noting that "the power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket.H).
Having established its authority to stay the individual arbitration proceedings initiated by Sterling/ the Court moves to consider whether a stay - i.e./ a temporary injunction -- is warranted in the particular circumstances in which the instant motion is brought. Plaintiffs contend that/ if forced to proceed with individual arbitrations that overlap with the presently-stayed class arbitration/ they and the as-yet unidentified members of the putative class/ would face the same harms this Court recognized as constituting "irreparable injuryll in its September 17 Order. In that Order/ the Court expressed concern regarding/ inter alia/ the burden and expense associated with pursuing potentially unnecessary
7

Case 2:08-cv-02875-JSR Document 104 Filed 12/10/10 Page 8 of 10
duplicative arbitrations. See September 17 Order at 4 (noting the "Hobson's choice" facing "the named plaintiffs and members of the putative class ... between pursuing their claims in individual arbitrations while the plaintiffs' appeal is pending or else risk losing the possibility of bringing an individual claim if the Court's decision is affirmed.").
Plaintiffs further claim that a stay is required now, as opposed to after the individual arbitrators are selected and each arbitrator has had the opportunity to decide whether to stay the arbitration in the first instance, because "if required to go forward ... at least some of the 46 claimants with meritorious claims may not have the resources to pursue individual arbitrations due to costs and expenses of arbitration." Pl. Mem at 8-9. Moreover, plaintiffs point to the "hundreds or perhaps thousands" of putative class members who, in the absence of a stay, would be required to file and litigate separate individual arbitrations, or else risk prejudicing their right to join any later class arbitration. See Pl. Mem. at 9 n. 9 (noting that, if the Court's August 6 Order is overturned by the Second Circuit, hundreds of individual claimants will seek to join in the class arbitration who might not otherwise have the resources to initiate individual arbitrations) .
The Court is persuaded that the same factors that led the Court in its September 17 Order to find that plaintiffs had satisfied all the requirements for a temporary injunction are present here as
8

Case 2:08-cv-02875-JSR Document 104 Filed 12/10/10 Page 9 of 10
well, and, incorporating those findings and conclusions by reference, the Court therefore concludes that a stay of the individual arbitrations is required in this case. However, among the factors that motivates the Court to issue this injunction is its recognition that, otherwise, plaintiffs' appeal might be rendered moot as to the 46 named plaintiffs. Accordingly, the Court, while granting the stay, limits the period of its duration from now until January II, 2011, when, at the oral argument of the appeal before the Court of Appeals, the plaintiffs can put this concern direct before the Court of Appeals, which putatively has its own power to stay the arbitrations if it so chooses.
For the foregoing reasons, the Court hereby enjoins Sterling from proceeding with the individual arbitrations until after oral argument is presented to the Court of Appeals on January II, 2011. Despite the AAA's assurances that it will abide by the terms of any court order, see supra, nonetheless, given Sterling's claim that an order enjoining Sterling would not necessarily be binding on the AAA, see Def. Mem. at 3 n. II, the Court, out of an abundance of caution, also temporarily restrains the AAA from proceeding with the administration of the individual arbitrations, but gives the AAA, if it disagrees with that injunction, the opportunity to contest by submitting opposition papers to the Court by no later than December 23, 2010, to which the plaintiffs may respond by papers submitted no later than January 7, 2011. The parties are directed to immediately
9 


Case 2:08-cv-02875-JSR Document 104 Filed 12/10/10 Page 10 of 10

furnish the FAA with a copy of this Memorandum Order and to keep the

Court apprised of any material developments in this matter in any of

the pertinent fora.

The Clerk of this Court is directed to close document number

99 on the docket of this case.

SO ORDERED.
Dated: New York, NY December 10, 2010

JEJ!~.J.

10 


 
 CaCsaes:e102-:30284-c7v-02D8o7c5u-JmSeRnt: D21o6c-u1menPt a1g1e1: 1 File0d90/290/2/210/1111 Pa3g9e6105o7f 36 1

N.Y.S.D. Case # 08-cv-2875(JSR)
MANDATE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ______________________________________________

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 7th day of July, two thousand eleven.

Before: RALPH K. WINTER,
ROSEMARY S. POOLER,
PETER W. HALL, Circuit Judges.
_______________________________________
Laryssa Jock, Christy Chadwick, Maria House, Denise Maddox, Lisa McConnell, Gloria Pagan, Judy Reed, Linda Rhodes, Nina Shahmirzadi, Leighla Smith, Marie Wolf, Dawn Souto-Coons, and all others similarly situated,

Plaintiff-Counter-Defendants-Appellants, Jacquelyn Boyle, Lisa Follett, Khristina Rodriguez, Kelly Contreras

JUDGMENT Docket No.: 10-3247

Plaintiffs-Counter-Defendants, v.
Sterling Jewelers Inc., Defendants-Counter-Claimant- Appellee.
_______________________________________

USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #: _________________ DATE FILED: S_e_p_t_e_m_b_e_r_2_1_,_2_0_11

The appeal in the above captioned cases from the United States District Court for the Southern District of New York was argued on the district court’s record and the parties’ briefs. Upon consideration thereof,
IT IS HEREBY ORDERED, ADJUDGED and DECREED that the judgment of the district court is REVERSED and the case is REMANDED in accordance with this opinion.

FOR THE COURT: CATHERINE O’HAGAN WOLFE, Clerk

MANDATE ISSUED ON 09/20/2011

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10-3247-cv Jock et al. v. Sterling Jewelers Inc.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

_____________________

August Term, 2010

(Argued: February 9, 2011

Decided: July 1, 2011)

Docket No. 10-3247-cv

_____________________

LARYSSA JOCK, CHRISTY CHADWICK, MARIA HOUSE, DENISE MADDOX, LISA MCCONNELL, GLORIA PAGAN, JUDY REED, LINDA RHODES, NINA SHAHMIRZADI, LEIGHLA SMITH, MARIE WOLF, DAWN SOUTO-COONS, and all others similarly situated,

Plaintiffs-Counter-Defendants-Appellants,

JACQUELYN BOYLE, LISA FOLLETT, KHRISTINA RODRIGUEZ, KELLY CONTRERAS,

Plaintiffs-Counter-Defendants,

— V.—

STERLING JEWELERS INC.

Defendant-Counter-Claimant-Appellee. _____________________

Before: WINTER, POOLER, and HALL, Circuit Judges. _____________________
Plaintiffs, a group of retail sales employees of defendant Sterling Jewelers, Inc.’s national jewelry chain stores, appeal from an order of the United States District Court for the Southern

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CaCsea:s1e02-3:0284-7cv-0D28o7c5u-mJSenRt: 2D1o6c-u2menPta1g1e1: 2 File0d9/0290//2210/11 Pa3g9e6035o7f 3625
District of New York (Rakoff, J.) vacating an arbitration award on the ground that the arbitrator had exceeded her authority in light of the Supreme Court’s decision in Stolt-Nielsen S.A. v. AnimalFeeds International Corp., __ U.S. __, 130 S. Ct. 1758 (2010). We hold that the district court, rather than examining whether the arbitrator had exceeded her authority under the precedent of this circuit, improperly substituted its own interpretation of the parties’ arbitration agreement for that of the arbitrator’s to conclude that the arbitrator had reached an incorrect determination that the parties’ arbitration agreement did not prohibit class arbitration. We, therefore, reverse the judgment of the district court vacating the arbitration award and remand with instructions to confirm the award.
REVERSED AND REMANDED. Judge Winter dissents in a separate opinion.
_____________________ JOSEPH M. SELLERS, Cohen, Milstein, Sellers & Toll PLLC, Washington, DC, (Jenny R. Yang and Kalpana Kotagal, Cohen, Milstein, Sellers & Toll PLLC, Thomas Warren, Thomas A. Warren Law Offices, P.L., and Sam Smith, Burr & Smith, LLP on the brief) for Plaintiffs-CounterDefendants-Appellants. GERALD L. MAATMAN, JR., Seyfarth Shaw LLP, New York, NY, (David Bennet Ross and Daniel B. Klein, Seyfarth Shaw LLP, and Stephen S. Zashin, Zashin & Rich Co., L.P.A., on the brief) for Defendant-CounterClaimant-Appellee.
_____________________ HALL, Circuit Judge:
Plaintiffs, a group of retail sales employees of defendant Sterling Jewelers, Inc.’s national jewelry chain stores, appeal from an order of the United States District Court for the Southern District of New York (Rakoff, J.) vacating an arbitration award on the ground that the arbitrator
2
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CaCsea:s1e02-3:0284-7cv-0D28o7c5u-mJSenRt: 2D1o6c-u2menPta1g1e1: 3 File0d9/0290//2210/11 Pa3g9e6045o7f 3625
had exceeded her authority in light of the Supreme Court’s decision in Stolt-Nielsen S.A. v. AnimalFeeds International Corp., __ U.S. __, 130 S. Ct. 1758 (2010). The issue presented by this appeal is whether a district court has the authority to vacate an arbitration award where it believes that the arbitrator improperly interpreted the terms of an arbitration agreement. Because the district court did not undertake the appropriate inquiry—whether, based on the parties’ submissions or the arbitration agreement, the arbitrator had the authority to reach an issue, not whether the arbitrator decided the issue correctly—and instead substituted its own legal analysis for that of the arbitrator’s, we reverse the judgment of the district court. Because we find that the arbitrator acted within her authority to reach an issue properly submitted to her by the parties and reached her decision by analyzing the terms of the agreement in light of applicable law, the award should not have been vacated. We remand with instructions to confirm the award. I. Background
In May 2005, plaintiff Laryssa Jock filed a discrimination suit with the Equal Employment Opportunity Commission (“EEOC”) against her employer Sterling Jewelers, Inc. (“Sterling”), alleging that she and other female workers were being paid less because of their gender in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000(e) et seq., and the Equal Pay Act, 29 U.S.C. § 206(d). Eighteen other female employees filed charges against Sterling before the EEOC. Jock and the other employees simultaneously initiated dispute resolution procedures pursuant to their employment contract, which mandated a three-step alternative dispute resolution program, known as RESOLVE. Step One of the RESOLVE program requires the employee to notify Sterling of her complaint in writing, and include references to any supporting evidence. Sterling then makes a determination with respect to the
3
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merits of the complaint. If the employee is dissatisfied with Sterling’s determination, she may then initiate Step Two, which calls for referring the claim to a mediator or a panel of employees, both of which are determined by Sterling. If the employee remains dissatisfied, in Step Three she may request arbitration, which is to be conducted in accordance with the rules of the American Arbitration Association (“AAA”). Agreeing to the RESOLVE dispute resolution process is a mandatory condition of employment.
In January 2008, the EEOC issued its letter of determination, finding reasonable cause to believe that Sterling had violated Title VII and the Equal Pay Act. According to its letter, the EEOC’s “investigation determined that [Sterling] subjected [plaintiffs-appellants] and a class of female employees with retail sales responsibilities nationwide to a pattern or practice of sex discrimination in regard to promotion and compensation.” The letter goes on to state that “[s]tatistical analysis of pay and promotion data . . . reveals that [Sterling] promoted male employees at a statistically significant, higher rate than similarly situated female employees and that [Sterling] compensated male employees at a statistically significant, higher rate than similarly situated female employees.”
Following the EEOC’s determination, in March 2008, Jock and the other plaintiffsappellants (collectively, the “plaintiffs”) filed a class action suit in the United States District Court for the Southern District of New York on behalf of themselves and others similarly situated, and asserting claims under Title VII, the Equal Pay Act, and the Age Discrimination in Employment Act, alleging that Sterling’s discriminatory promotion and compensation policies denied promotional opportunities to qualified female employees and paid female employees less than male employees performing the same work. That same month, the plaintiffs filed a class
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arbitration complaint with the AAA, making the same allegations and challenging the same practices. After Sterling addressed several of the plaintiffs’ concerns, they moved to stay their federal court litigation in favor of the arbitration. In September 2008, the EEOC filed a parallel action against Sterling in the United States District Court for the Western District of New York. III. Procedural History
On June 18, 2008, over Sterling’s objection, the district court granted the plaintiffs’ motion to refer the matter to arbitration and stay the litigation. The parties submitted to the arbitrator the question whether the RESOLVE agreement permitted or prohibited class arbitration. In its clause construction brief, Sterling asked the arbitrator to “find . . . [t]hat RESOLVE does not allow for class arbitration.” The plaintiffs conversely asked the arbitrator to “find that the RESOLVE Arbitration Agreements at issue permit class arbitration.” On June 1, 2009, the arbitrator found in favor of the plaintiffs, issuing a “Clause Construction Award” (the “award”) holding that the RESOLVE arbitration agreements “cannot be construed to prohibit class arbitration.” In undertaking her analysis, the arbitrator began by quoting the language of the arbitration provision at issue:
I hereby utilize the Sterling RESOLVE program to pursue any dispute, claim, or controversy (“claim”) against Sterling . . . regarding any alleged unlawful act regarding my employment or termination of my employment which could have otherwise been brought before an appropriate government or administrative agency or in a [sic] appropriate court, including but not limited to, claims under . . . Title VII of the Civil Rights Act of 1964; the Civil Rights Act of 1991, . . . the Fair Labor Standards Act. . .. I understand that by signing this Agreement I am waiving my right to obtain legal or equitable relief (e.g. monetary, injunctive or reinstatement) through any government agency or court, and I am also waiving my right to commence any court action. I may, however, seek and be awarded equal remedy through the RESOLVE program. ***
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The Arbitrator shall have the power to award any types of legal or equitable relief that would be available in a court of competent jurisdiction including, but not limited to, the costs of arbitration, attorney fees and punitive damages for causes of action when such damages are available under law. The arbitrator noted that there was no express prohibition on the pursuit of class claims and that “indeed, there is no mention of class claims.” The arbitrator stated that “[u]nder Ohio law, contracts are to be interpreted so as to carry out the intent of the parties, as that intent is evidenced by the contractual language.” Construing the agreement in accordance with Ohio law, as required by the terms of the agreement, the arbitrator determined she would not read into the agreement an intent to prohibit class claims because “‘[t]he law will not insert by construction for the benefit of one of the parties an exception or condition which the parties either by design or neglect have omitted from their own contract.’” (quoting Montgomery v. Bd. of Educ. of Liberty Township, Union Cty., 102 Ohio St. 189, 193 (1921)).
In other words, the arbitrator construed the absence of an express prohibition on class claims against the contract’s drafter, Sterling. Noting that the issue of intent was “problematic in the context of a contract of adhesion,” the arbitrator held that “[b]ecause this contract was drafted by Sterling and was not the product of negotiation, it was incumbent on Sterling to ensure that all material terms, especially those adverse to the employee, were clearly expressed.” In her analysis of the agreement, the arbitrator noted that Sterling acknowledged it had deliberately chosen not to revise the RESOLVE contract despite several arbitral decisions permitting class claims in the absence of an express prohibition. She reasoned that to read a prohibition on class arbitration into the terms of the agreement “would impermissibly insert a term for the benefit of one of the parties that it has chosen to omit from its own contract.” (citing Montgomery, 102 Ohio St. at 193). Noting that the agreement expressly gave the arbitrator the
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“power to award any types of legal or equitable relief that would be available in a court of competent jurisdiction,” the arbitrator determined that merely agreeing to the RESOLVE step process could not constitute a waiver of the employee’s right to participate in a collective action. Finally, she concluded that “[t]he RESOLVE arbitration agreements cannot be construed to prohibit class arbitration,” which thus permitted the plaintiffs to proceed with an effort to pursue their claims on a class-wide basis. The arbitrator allowed the parties to move in the district court to confirm or vacate that determination.
On June 30, 2009, Sterling moved in the district court case to vacate the arbitration award. On August 31, 2009, the district court denied the motion to vacate the award, laying out its reasoning in an opinion dated December 28, 2009. In that opinion, the district court decided as a preliminary matter that the motion was ripe for consideration despite the fact that the arbitrator had not yet certified a class. It went on to hold that the arbitrator had not exceeded her powers by reaching the issue whether the arbitration agreements prohibited class certification and that the decision was not made in manifest disregard of the law, citing the Second Circuit’s decision in Stolt-Nielsen SA v. Animalfeeds International Corp., 548 F.3d 85, 99 (2d Cir. 2008). The court declined to stay its order pending the outcome of the Supreme Court’s decision in Stolt-Nielsen.
On January 26, 2010, Sterling appealed the district court’s order denying its motion to vacate the award or, in the alternative, stay the arbitration. Three months later, the Supreme Court issued its decision in Stolt-Nielsen, and on May 13, 2010, Sterling moved pursuant to Federal Rules of Civil Procedure 62.1 and 60(b) in the district court for relief from its December
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28, 2009 order. The appeal to this court was held in abeyance pending the outcome of the district court’s decision on that motion.
On July 27, 2010, the district court issued a ruling holding that, if jurisdiction was restored to it, it would reconsider its December 28, 2009 order and vacate the arbitrator’s award that permitted the plaintiffs to pursue class certification. Jock v. Sterling Jewelers, Inc., 725 F. Supp. 2d 444, 450 (S.D.N.Y. 2010). The district court concluded that in light of the Supreme Court’s decision in Stolt-Nielsen v. Animalfeeds International Corp., 130 S. Ct. 1758 (2010), “the arbitrator’s construction of the RESOLVE agreements as permitting class certification was in excess of her powers and therefore cannot be upheld.” Jock, 725 F. Supp. 2d at 448. The district court first held that the arbitrator’s approach—determining whether there was any indication of an intent to preclude class arbitration—“was plainly incompatible with the Supreme Court’s subsequent pronouncements in Stolt-Nielsen.” Id. Then, addressing the issue whether the record “evince[d] the parties’ shared intent to permit class arbitration,” the court found the record devoid of any indication that the parties intended to permit arbitration of class claims. Id. Although the district court conceded that Stolt-Nielsen “does not foreclose the possibility that parties may reach an ‘implicit’—rather than express—‘agreement to authorize class-action arbitration,’” it held that “the record here provides no support for such an implied agreement.” Id. at 449 (quoting Stolt-Nielsen, 130 S. Ct. at 1775). In so ruling, the district court determined that Stolt-Nielsen was not distinguishable on the facts. Id. at 449-50.
On August 3, 2010, this court issued a limited remand of the appeal to permit the district court to rule on the pending Rule 60(b) motion. Six days later, the district court officially
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granted Sterling’s motion to vacate the arbitrator’s award permitting class arbitration to proceed. Plaintiffs timely appealed that ruling. III. Discussion
Appellate jurisdiction is based on the Federal Arbitration Act, 9 U.S.C. § 16(a)(1)(E) (“An appeal may be taken from . . . an order . . . vacating an award.”). “In considering a challenge to a district court's decision to vacate a portion of an arbitration award, we review its legal rulings de novo and its findings of fact for clear error.” ReliaStar Life Ins. Co. of New York v. EMC Nat’l Life Co., 564 F.3d 81, 85 (2d Cir. 2009).
A. Supreme Court’s Decision in Stolt-Nielsen The dispute in Stolt-Nielsen arose out of a Department of Justice investigation that revealed the petitioner, a shipping company, was engaging in an illegal price-fixing conspiracy. Stolt-Nielsen, 130 S. Ct. at 1765. The respondent, a shipping customer, brought a putative class action asserting antitrust claims for supracompetitive prices that the shipping company had been charging its customers over the course of several years. Id. The Multidistrict Litigation Panel eventually consolidated that case with other similar cases; the parties agreed that, as a consequence of judgments and orders arising out of that MDL case, they had to arbitrate their antitrust dispute. Id. The respondent subsequently served the petitioner with a demand for class arbitration. Id. The parties then entered into a supplemental agreement that the question of class arbitration was to be submitted to a panel of three arbitrators. Id. The parties stipulated that the arbitration clause was “silent” with respect to class arbitration. Id. at 1766. After hearing argument and taking evidence from the parties, including expert testimony on the customs and
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usage in the maritime trade, the arbitration panel concluded that the arbitration clause allowed for class arbitration. Id. The arbitration panel stayed its decision to permit the parties to seek judicial review. The petitioners filed an application to vacate the award in the United States District Court for the Southern District of New York. Id.
The district court vacated the award on the ground that the arbitrators had acted in manifest disregard of the law because they failed to conduct a choice-of-law analysis. Id. This court reversed, concluding that the decision was not in manifest disregard of the law because the petitioner had not cited any authority applying a federal maritime rule of custom and usage against class arbitration and because there was nothing in New York law that established a rule against class arbitration. Id. at 1766-67.
The Supreme Court granted certiorari to decide the question “whether imposing class arbitration on parties whose arbitration clauses are ‘silent’ on that issue is consistent with the [FAA].” Id. at 1764. The five-member majority first noted that “an arbitration decision may be vacated under § 10(a)(4) of the FAA on the ground that the arbitrator ‘exceeded his powers,’ for the task of an arbitrator is to interpret and enforce a contract, not to make public policy.” Id. at 1767. Of significance to the majority was that the arbitration panel “appears to have rested its decision on [a] public policy argument.” Id. at 1768. See also AT&T Mobility LLC v. Concepcion, __ U.S. __, 131 S. Ct. 1740, 1750 (2011) (noting that in Stolt-Nielsen “we held that an arbitration panel exceeded its power under § 10(a)(4) of the FAA by imposing class procedures based on policy judgments rather than the arbitration agreement itself or some background principle of contract law that would affect its interpretation”). The Stolt-Nielsen Court admonished that “[b]ecause the parties agreed their agreement was ‘silent’ in the sense
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that they had not reached any agreement on the issue of class arbitration, the arbitrators’ proper task was to identify the rule of law that governs in that situation,” hypothesizing that the FAA, federal maritime law, or New York would provide the governing rule. 130 S. Ct. at 1768. The Court reiterated that, in light of the parties’ stipulation that they were “in complete agreement regarding their intent,” i.e., that their arbitration agreement contained “no agreement” on the issue of class arbitration,“the only task left for the panel . . . was to identify the governing rule applicable in a case in which neither the language of the contract nor any other evidence established that the parties had reached any agreement on the question of class arbitration.” Id. at 1768, 1770. Because the arbitration panel failed to follow this approach, the Supreme Court concluded that it had “exceeded its powers” when it “imposed its own policy choice” rather than engaging in its required “task” of “interpret[ing] and enforc[ing] a contract,” “identifying and applying a rule of decision derived from the FAA or either maritime or New York law,” and “giv[ing] effect to the intent of the parties.” Id. at 1767-68, 1770, 1774-75.
The Court’s interpretation of the parties’ “silence” is key. Our dissenting colleague states that he believes the “silence” in Stolt-Nielsen was interpreted as “simply reflect[ing] the fact each party recognized the arbitration clause neither specifically authorized nor specifically prohibited class arbitration.” Dissenting Op. at 1-2 (citing Brief for Respondent at 26, StoltNielsen, 2009 WL 3404244, at *26). The dissent, however, fails to acknowledge that although that is the interpretation that the Respondent in Stolt-Nielsen wished the Court to adopt, that is not the interpretation that the Court did adopt. To the contrary, the Court interpreted the stipulated silence to mean that “the parties agreed their agreement was ‘silent’ in the sense that they had not reached any agreement on the issue of class arbitration.” Stolt-Nielsen, 130 S. Ct. at
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1768. See also id. at 1766 (“The parties . . . stipulated that the arbitration clause was ‘silent’ with respect to class arbitration. Counsel for [the Respondent] explained to the arbitration panel that the term ‘silent’ did not simply mean that the clause made no express reference to class arbitration. Rather, he said, ‘[a]ll the parties agree that when a contract is silent on an issue there’s been no agreement that has been reached on the issue.’”). The Court further noted that “parties were in complete agreement regarding their intent.” Id. at 1770. That is to say, according to the majority in Stolt-Nielsen, there was no express or implicit intent to submit to class arbitration. Indeed, the dissent in Stolt-Nielsen pointed out that the majority’s interpretation of “silence” was incongruous with the Respondent’s interpretation. Id. at 1781 (Ginsburg, J., dissenting) (noting the majority’s failure to acknowledge that counsel for the Respondent clarified his quoted statement to say that “[i]t’s also undisputed that the arbitration clause here contains broad language and this language should be interpreted to permit class arbitration”). Although the dissent here appears to agree with Justice Ginsburg’s interpretation of the parties’ stipulated “silence” in Stolt-Nielsen, significantly for purposes of this case, that was not the interpretation adopted by the majority.
Turning back to Stolt-Nielsen, the Court then took on the task of answering the question left open by Green Tree Financial Corp. v. Bazzle, 539 U.S. 444 (2003): “establish[ing] the rule to be applied in deciding whether class arbitration is permitted.” Stolt-Nielsen, 130 S. Ct. at 1772. Acknowledging that although “interpretation of an arbitration agreement is generally a matter of state law, the FAA imposes certain rules of fundamental importance, including the basic precept that arbitration ‘is a matter of consent, not coercion.’” Id. at 1773 (quoting Volt Information Sciences, Inc. v. Bd. of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 479
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(1989)). The Court emphasized the “consensual nature of private dispute resolution,” noting that “parties are generally free to structure their arbitration agreements as they see fit” and that “parties may specify with whom they choose to arbitrate their disputes.” Id. at 1774 (internal quotation marks omitted) (emphasis in original). Accordingly, because the primary purpose when enforcing arbitration agreements is “to give effect to the intent of the parties,” the Court concluded that “it follows that a party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so.” Id. at 1775. Significantly, the Stolt-Nielsen Court was concerned that the arbitration panel had imposed class arbitration despite the parties’ explicit stipulation that “they had reached ‘no agreement’ on that issue,” i.e., that they had stipulated that the arbitration agreement contained neither an explicit nor implicit intent regarding class arbitration. Id.
It is equally important to note that the Court declined to hold that an arbitration agreement must expressly state that the parties agree to class arbitration—“[w]e have no occasion to decide what contractual basis may support a finding that the parties agreed to authorize class arbitration”—because in the case before them, “the parties stipulated that there was ‘no agreement’ on the issue of class-action arbitration.” Id. at 1776 n.10. The Court contemplated that an arbitration agreement may contain an implicit agreement to authorize class arbitration, but an “implicit” agreement to authorize class arbitration may not be “infer[red] solely from the fact of the parties’ agreement to arbitrate.” Id. at 1775. In other words, simply agreeing to submit the dispute to an arbitrator does not equal an agreement to class-action arbitration. “[M]ere silence” on the issue of class arbitration, therefore, cannot give rise to “consent to resolve . . . disputes in class proceedings.” Id. at 1776. Thus, the Court saw “the
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question as being whether the parties agreed to authorize class arbitration” and held that “where
the parties stipulated that there was ‘no agreement’ on this question, it follows that the parties
cannot be compelled to submit their dispute to class arbitration.” Id. (emphasis in original).
B. District Court’s Authority to Vacate Award
The Federal Arbitration Act (“FAA”) sets forth specific grounds for vacating arbitration
awards. 9 U.S.C. § 10(a). Grounds for vacating an award under section 10(a) are: “corruption,
fraud, or undue means in procurement of the award, evident partiality or corruption in the
arbitrators, specified misconduct on the arbitrators’ part, or ‘where the arbitrators exceeded their
powers.’” Wall Street Assocs., L.P. v. Becker Paribas Inc., 27 F.3d 845, 848 (2d Cir. 1994)
(quoting 9 U.S.C. § 10(a)). Because the FAA supports a “strong presumption in favor of
enforcing arbitration awards . . . the policy of the FAA requires that the award be enforced unless
one of those grounds is affirmatively shown to exist.” Id. at 849. In addition to the section 10(a)
grounds for vacatur, we have recognized a judicially-created ground, namely that “an arbitral decision may be vacated when an arbitrator has exhibited a manifest disregard of law.”1
1 To vacate an award on the basis of a manifest disregard of the law, the court must find “something beyond and different from mere error in the law or failure on the part of the arbitrators to understand or apply the law.” Westerbeke, 304 F.3d at 208. (internal quotation marks omitted). The two part showing requires the court to consider, first, “whether the governing law alleged to have been ignored by the arbitrators was well defined, explicit, and clearly applicable,” and, second, whether the arbitrator knew about “the existence of a clearly governing legal principle but decided to ignore it or pay no attention to it.” Id. at 209 (internal quotations and alterations omitted). See also STMicroelectronics, N.V. v. Credit Suisse Securities (USA) LLC, No. 10-3847-cv, slip op. at 18 (2d Cir. June 2, 2011) (“We therefore will not vacate an award because of ‘a simple error in law or a failure by the arbitrators to understand or apply it’ but only when a party clearly demonstrates ‘that the panel intentionally defied the law.’”) (quoting Duferco Int’l Steel Trading v. T. Klaveness Shipping A/S, 333 F.3d 383, 389 (2d Cir. 2003)). Here, the district court did not base its vacatur order on the manifest disregard of law doctrine, Jock, 725 F. Supp. 2d at 448 n.4, and, at any rate, it is clearly not applicable to this case where this circuit’s decision in Stolt-Nielsen was controlling at the time and the Supreme
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Westerbeke Corp. v. Daihatsu Motor Co., 304 F.3d 200, 208 (2d Cir. 2002) (internal quotation marks omitted); Porzig v. Dresdner, Kleinwort, Benson, North America LLC, 497 F.3d 133,139 (2d Cir. 2007).
“We have . . . ‘consistently accorded the narrowest of readings’” to section 10(a)(4) permitting vacatur where the arbitrator has exceeded her powers. Reliastar, 564 F.3d at 85 (quoting Banco de Seguros del Estado v. Mut. Marine Office, Inc., 344 F.3d 255, 262 (2d Cir. 2003)); Westerbeke, 304 F.3d at 220. This is “especially” true when section 10(a)(4) is invoked to challenge an award deciding “a question which all concede to have been properly submitted in the first instance.” DiRussa v. Dean Witter Reynolds Inc., 121 F.3d 818, 824 (2d Cir. 1997) (quoting Fahnestock & Co. v. Waltman, 935 F.2d 512, 515 (2d Cir. 1991)). The focus of our inquiry in challenges to an arbitration award under section 10(a)(4) is “whether the arbitrators had the power, based on the parties’ submissions or the arbitration agreement, to reach a certain issue, not whether the arbitrators correctly decided that issue.” Id. (emphasis added); Westerbeke, 304 F.3d at 220. Put simply, “[s]ection 10(a)(4) does not permit vacatur for legal errors.” Westerbeke, 304 F.3d at 220. If the “arbitrator’s award draws its essence from the agreement to arbitrate,” then “the scope of the court’s review of the award itself is limited. Notably, we do not consider whether the arbitrators correctly decided the issue.” Reliastar, 564 F.3d at 86 (internal quotation marks and alterations omitted) (emphasis added). We will uphold
Court’s decision in that case was issued a year after the arbitrator’s award. On page 10 of the dissent, our colleague states that the arbitrator “exceeded her authority by manifestly disregarding explicit provisions of the agreement inconsistent with class arbitration.” Respectfully, the dissent has conflated two separate grounds for vacatur, which are independent of each other and do not overlap. As we have already pointed out, whether an arbitrator exceeds her authority or manifestly disregards the law carry requires a reviewing court to undertake two different inquiries for determining whether vacatur is appropriate.
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an award so long as the arbitrator “offers a barely colorable justification for the outcome reached.” Id. (internal quotation marks omitted). As the Supreme Court emphasized in StoltNielsen, vacating an arbitration award requires the moving party to “clear a high hurdle,” and “[i]t is not enough . . . to show that the panel committed an error—or even a serious error. It is only when an arbitrator strays from interpretation and application of the agreement and effectively dispenses his own brand of industrial justice that his decision may be unenforceable.” 130 S. Ct. at 1767 (internal quotation marks, citations, and alterations omitted). “In other words, as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, a court’s conviction that the arbitrator has committed serious error in resolving the disputed issue does not suffice to overturn his decision.” Reliastar, 564 F.3d at 86 (internal quotation marks omitted).
Accordingly, an arbitrator may exceed her authority by, first, considering issues beyond those the parties have submitted for her consideration, or, second, reaching issues clearly prohibited by law or by the terms of the parties’ agreement. For example, in Westerbeke, 304 F.3d at 220, we drew a distinction between two situations. One is where the law or the parties’ agreement categorically prohibits the arbitrator from reaching an issue so that, in reaching that issue, the arbitrator exceeds her authority. Id. (citing Fahnestock, 935 F.2d at 519 (vacating an arbitration award imposing punitive damages where New York law expressly prohibited arbitrators from imposing punitive damages) and Katz v. Feinberg, 290 F.3d 95, 97-98 (2d Cir. 2002) (holding that the arbitrators had exceeded their authority by reaching an issue that the agreement exclusively committed to independent accountants, not the arbitrators)). The other is a situation where the parties grant the arbitrator the authority to determine an issue, but the
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arbitrator makes an error of law in deciding that issue. Id. (citing DiRussa, 121 F.3d at 824 (confirming an award denying attorneys’ fees for a party that successfully established a violation of the Age Discrimination in Employment Act, which required a statutory award of attorneys’ fees). Concluding that the parties were contesting whether the arbitrator properly interpreted New York law regarding the award of expectancy damages, not whether the arbitrator had the authority to award such damages generally, the court in Westerbeke held that the award could not be vacated under section 10(a)(4) despite the fact that such damages might be precluded by New York law. 304 F.3d at 220. In other words, the arbitrator may well have committed an error of law, but in doing so she was rendering a decision the parties authorized her to make and thus did not exceed her authority in making the determination.
The threshold issues for the district court to consider in this case when deciding whether it was appropriate to vacate the award pursuant to section 10(a)(4) was, first, whether the parties had submitted to the arbitrator the question of whether their arbitration agreement permitted class arbitration and, second, whether the agreement or the law categorically prohibited the arbitrator from reaching that issue. The district court, however, appears not to have considered the “high hurdle” that vacating an award under section 10(a)(4) requires but to have proceeded instead to engage in a substantive review of the arbitrator’s decision, holding that “in light of Stolt-Nielsen, . . . the arbitrator’s construction of the RESOLVE agreements as permitting class arbitration was in excess of her powers and therefore cannot be upheld.” In substance, while articulating a rationale that purported to examine whether the arbitrator exceeded her authority, the district court’s analysis focused in fact on whether the arbitrator had correctly interpreted the arbitration agreement itself. This was error.
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The district court seems to have taken the plaintiffs’ concession that the agreement lacked an explicit authorization permitting class arbitration as a concession that the agreement did not manifest even an implicit intent to permit class arbitration. Jock, 725 F. Supp. 2d at 448. The plaintiffs’ concession that there was no explicit agreement to permit class arbitration, however, is not the same thing as stipulating that the parties had reached no agreement on the issue. Nor is it the same as stipulating that the agreement is “silent” on the issue of class arbitration in the sense that “silent” was used by the Stolt-Nielsen majority. As the district court correctly acknowledged, “Stolt-Nielsen does not foreclose the possibility that parties may reach an ‘implicit’—rather than express—‘agreement to authorize class-action arbitration.’” Id. at 449 (quoting Stolt-Nielsen, 130 S. Ct. at 1775). Where the district court strayed was in substituting its interpretation of the agreement for that already undertaken by the arbitrator when she performed the legal analysis she was asked by the parties to undertake. When the district court did so, it determined that nothing in the record supported any implied agreement to permit arbitration, but this was an issue the arbitrator had already considered and decided differently. Id.
Under our precedent it is not for the district court to decide whether the arbitrator “got it right” when the question has been properly submitted to the arbitrator and neither the law nor the agreement categorically bar her from deciding that issue. Reliastar, 564 F.3d at 85-86; Westerbeke, 304 F.3d at 220. In that regard, there is no question that the issue of whether the agreement permitted class arbitration was squarely presented to the arbitrator. In its brief submitted to the arbitrator on the issue, Sterling expressly asked the arbitrator to “find . . . [t]hat RESOLVE does not allow for class arbitration.” Similarly, in the converse, the plaintiffs asked
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the arbitrator to “find that the RESOLVE Arbitration Agreements at issue permit class arbitration.” In sum, the parties agree that they disagree about whether the arbitration agreement permits class arbitration. Put another way, unlike Stolt-Nielsen, the parties have not stipulated that the agreement is “silent” as to class arbitration—that is, the parties here are not in agreement that the RESOLVE agreement contains no explicit or implicit intent regarding the issue of class arbitration—and there is no escaping the fact that the parties submitted that question to the arbitrator for a decision.
Nor did the arbitrator exceed her authority under the agreement or the law by deciding the issue and ruling that the arbitration agreement allowed the plaintiffs to pursue class arbitration even though the agreement lacked an express provision permitting class arbitration. Stolt-Nielsen, on which the district court relied, did not create a bright-line rule requiring that arbitration agreements can only be construed to permit class arbitration where they contain express provisions permitting class arbitration. 130 S. Ct. at 1776 n.10. There is nothing in the agreement itself, moreover, that prohibits an arbitrator from determining whether the agreement contemplates class arbitration. In other words, the arbitrator was acting within her authority when she concluded that the arbitration agreement between Sterling and the plaintiffs manifested an intent to allow for class arbitration because the issue was properly before her having been placed there by the parties. In addition, she had a colorable justification under Ohio law to reach the decision she did, to wit, Ohio law does not bar class arbitration.
By re-examining the record to determine the question that the arbitrator had already decided—whether the parties intended to permit arbitration of class claims—the district court substituted its legal reasoning for the arbitrator’s. Yet the only question before it, both preceding
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and following the issuance of Stolt-Nielsen, was whether the arbitrator was authorized by the parties, the agreement, and applicable law to render the decision she did. The record demonstrates unequivocally that the arbitrator operated within the bounds of her authority in reaching her decision. Sterling has not argued, nor would we find, that the decision manifestly disregarded the law. The decision of the arbitrator should thus be confirmed.
It is worth reemphasizing that the primary thrust of our decision is whether the district court applied the appropriate level of deference when reviewing the arbitration award. With all due respect, our dissenting colleague appears to have fallen into the same trap as did the district court by focusing, to the point of disposition, on what the “correct” interpretation of StoltNielsen should be. Like the district court, the dissent fails to identify how the arbitrator exceeded her authority, which, if true, would be a valid basis for vacating the award. Indeed, the dissent explicitly acknowledges that the arbitrator faithfully followed the law as it existed at the time of her decision. (Dissenting Op. p. 6). Our Circuit has never held that an intervening change of law, standing alone, provides grounds for vacating an otherwise proper arbitral award.
Instead, the dissent, like the district court, focuses impermissibly on substituting its interpretation of what the arbitration agreement does or does not allow—a function explicitly submitted by the parties to the sound judgment of the arbitrator. To achieve the result that both the dissent and the district court would impose in this case would require that we forsake the “substantial deference” we have for decades accorded to an arbitrator’s decision that is rendered within the authority given her by the parties and under law. Yusuf Ahmed Alghanim & Sons v. Toys “R” Us, Inc., 126 F.3d 15, 23 (2d Cir. 1997). There is simply no basis for abandoning that principle in this case and toppling the pedestal on which our federal jurisprudence has repeatedly
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placed a properly authorized arbitrator’s determination of the facts and analysis of the law. To do so here in order to strike down the arbitral determination allowing class arbitration requires throwing the baby out with the bathwater.
C. Sterling’s interpretation of Stolt-Nielsen is not persuasive In support of the district court’s determination, Sterling argues that the agreement is “silent” on the issue of class arbitration because it does not contain an express provision permitting class arbitration and that the arbitrator found that the arbitration agreement did not prohibit class arbitration, rather than finding that it permitted class arbitration. Sterling’s arguments are unpersuasive. To begin with, in fairness to the arbitrator, the legal standard she was operating under at the time framed the issue as whether the applicable law prohibited class arbitrations. J.A. 703 (citing Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 548 F.3d 85, 100-01 (2d Cir. 2008) overruled by Stolt-Nielsen, 130 S. Ct. 1758 (2010) (reversing vacatur award where party had not cited any “federal maritime law or New York State law establishing a rule of construction prohibiting class arbitration where the arbitration clause is silent on that issue”)). Nonetheless, it was Sterling that framed the issue and asked the arbitrator to find that the agreement did not allow for—i.e., prohibited—class arbitration, and it was the plaintiffs who asked the arbitrator to find that the agreement permitted class arbitration. A determination that class arbitration is not prohibited under the agreement clearly answers both parties’ question. The arbitrator’s analysis, using principles of contract interpretation under Ohio law, included an examination of the language of the contract to determine the parties’ implicit intent to permit class arbitration. That
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she phrased her conclusion in the negative is of no moment and certainly does not indicate she improperly reached an issue that was not before her.
Sterling’s attempt to equate the lack of an express agreement with a lack of intent to agree to class arbitration also misses the mark because it relies on a rationale that Stolt-Nielsen did not advance. Stolt-Nielsen did not hold that the intent to agree to arbitration must be stated expressly in an arbitration agreement. 130 S. Ct. at 1776 n.10 (“We have no occasion to decide what contractual basis may support a finding that the parties agreed to authorize class-action arbitration. Here, as noted, the parties stipulated that there was ‘no agreement’ on the issue of class-action arbitration.”). Moreover, the negative inferences from the Stolt-Nielsen opinion supports the approach taken by the arbitrator. A primary basis for the Supreme Court’s decision to vacate the arbitration award in Stolt-Nielsen was that the arbitration award went beyond the terms of the agreement and governing law, and the panel relied on public policy grounds to support its finding that the arbitration agreement permitted class arbitration. 130 S. Ct. at 176768. None of those factors obtains here.
The dissent states that the FAA, not state law, establishes the primary principle that the parties must consent to arbitration. Dissenting Op. at 6-7. We do not disagree. We disagree, however, that state law is “irrelevant” for the issues presented here. We note that in StoltNielsen, a primary concern for the Court was that the arbitration panel based its holding on public policy grounds, rather than looking to the FAA, maritime, or state law. 130 S. Ct. at 1768-69. Indeed, although the FAA absolutely requires that the parties “not be compelled . . . to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so,” where that agreement contains what is argued to be an implicit agreement to submit to
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class arbitration, the arbitrator must necessarily look to state law principles of contract interpretation in order to divine whether such intent exists. Id. at 1773, 75 (“While the interpretation of an arbitration agreement is generally a matter of state law, the FAA imposes certain rules of fundamental importance, including the basic precept that arbitration is a matter of consent, not coercion.”) (internal quotation marks and citations omitted).
In divining the parties’ intent on the issue of class arbitration, the arbitrator relied solely on the terms of the agreement and Ohio law: “[u]nder Ohio law, contracts are to be interpreted so as to carry out the intent of the parties, as that intent is evidenced by the contractual language.” J.A. 703 (citing Skivolocki v. East Ohio Gas Co., 38 Ohio St. 2d 244, 247 (1974)). Based on the language of the agreement, to deny the plaintiffs the right to seek classwide relief would deny them access to at least one type of legal or equitable relief available to them in court—namely, certification to pursue classwide relief. That result would be contrary to the promise of the RESOLVE arbitration agreement, which states that by signing the agreement the employee is waiving any right to seek relief through any government agency or court, but that she “may, however, seek and be awarded equal remedy through the RESOLVE program” and that the arbitrator has the “power to award any types of legal or equitable relief that would be available in a court of competent jurisdiction.”
Sterling also argues unpersuasively that this language is similar to the language of the arbitration clause in Stolt-Nielsen. The arbitration clause in Stolt-Nielsen, however, was not as broadly worded as the RESOLVE agreement. It merely stated that the arbitration clause would be applicable to “[a]ny dispute arising from the making, performance or termination of this Charter Party.” Stolt-Nielsen, 130 S. Ct at 1765. That is not the same as saying that the
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employee “may, however, seek and be awarded equal remedy through the RESOLVE program” and that the arbitrator has the “power to award any types of legal or equitable relief that would be available in a court of competent jurisdiction.”
Stolt-Nielsen has reaffirmed the basic precept of the FAA, that “arbitration is a matter of consent, not coercion.” Id. at 1773 (quoting Volt, 489 U.S. at 479). “Whether enforcing an agreement to arbitrate or construing an arbitration clause, courts and arbitrators must ‘give effect to the contractual rights and expectations of the parties.’” Id. at 1773-74 (quoting Volt, 489 U.S. at 479). The intent of the parties, therefore, is controlling. Id. at 1774. “Underscoring the consensual nature of private dispute resolution, we have held that parties are generally free to structure their arbitration agreements as they see fit.” Id. (internal quotation marks omitted). It is clear from the terms of the arbitration agreement that Sterling required its employees to sign that the parties intended to make available in arbitration all remedies and rights that would otherwise be available in court or before a government agency. It was not unreasonable, and clearly not manifestly wrong, for the arbitrator to construe this to mean that the parties also intended to include the right to proceed as a class and seek class remedies. To read that right out of the arbitration agreement would fail to give effect to the employees’ contractual rights and expectations of what the arbitration agreement provides.2
2 As an aside, it is a bit disingenuous for Sterling to argue that permitting class arbitration to proceed would lose sight of the requirement that “parties may specify with whom they choose to arbitrate their disputes,” Stolt-Nielsen, 130 S. Ct. at 1774, because the putative class in this case would presumably include only employees who signed the RESOLVE agreement. Accordingly, because Sterling and each potential member of the putative class agreed to arbitrate their disputes, they implicitly agreed that they may seek to do so as a class, and Sterling is certainly not being forced to arbitrate with anyone whom it did not require to arbitrate with it.
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Regardless, whether the arbitrator was right or wrong in her analysis, she had the authority to make the decision, and the parties to the arbitration are bound by it.3 In sum, we hold that the arbitrator did not exceed her authority in determining that the agreement permitted the plaintiffs to proceed with their effort to certify a class in the arbitration proceedings. IV. Conclusion
For the reasons stated, we REVERSE the judgment of the district court vacating the arbitration award and REMAND with instructions to confirm the arbitration award.
3 We further note that the arbitrator’s decision merely permits the plaintiffs to seek class certification; it does not make it a foregone conclusion that a class will be certified. The arbitrator must still consider the propriety of class certification in this case if and when an application to certify a class is advanced. That consideration will no doubt include examination of the problems identified in the dissent regarding the feasibility of class certification in the circumstances presented here. The articulation of the principles set forth in Wal-Mart Stores, Inc. v. Dukes, ___ U.S. ___, 2011 WL 2437013 (June 20, 2011), may well be principles for the arbitrator to consider when she is presented with the employees’ motion actually to certify a class. However, in no way do they inform or detract from the question presented by the parties to the arbitrator for decision—to wit, whether the agreement permits class arbitration at all.
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Jock v. Sterling Jewelers, 10-3247-cv
WINTER, Circuit Judge dissenting: I respectfully dissent. This case is the arbitration counterpart to Wal-Mart Stores, Inc. v. Dukes, 546 U.S. ___,
2011 WL 2437013 (June 20, 2011). As in Wal-Mart, the class action complaint filed by appellants in the Southern District, followed by their request for class arbitration, the subject of this proceeding, asserted a company-wide gender discrimination claim against a national employer based on a statistical study finding disparities in pay and promotions between male and female employees where the company has delegated relevant decision-making power to local executives. Wal-Mart, 2011 WL 2437013, at *9-10. I need not pause to consider the Wal-Mart decision’s effect on the present matter because Stolt-Nielsen v. AnimalFeeds International Corp., 130 S. Ct. 1758 (2010), is a binding precedent on all fours.
The issue in Stolt-Nielsen, which reversed a decision of this court, was, in the Supreme Court’s words, "whether imposing class arbitration on parties whose arbitration clauses are 'silent' on that issue is consistent with the Federal Arbitration Act (FAA)." Id. at 1764. The Court answered that question in the negative. Id. at 1775.
My colleagues attempt to distinguish Stolt-Nielsen on several grounds. First, they note the stipulation in Stolt-Nielsen that the arbitration agreement there was "silent" as to class arbitration. Maj. Op. at 11-12, 18. Second, they rely on Stolt-Nielsen's recognition of the possibility of implied agreements to class arbitration. Maj. Op. at 13-14, 18. Third, they make reference to the arbitrator's reliance on Ohio law in this case. Maj. Op. at 19, 21-23. Fourth, they rely on provisions of the various arbitration agreements at issue here empowering
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arbitrators to award generally available types of legal and equitable relief. Maj. Op. at 23-24. Fifth, and finally, they invoke the limited scope of judicial review of arbitration agreements. Maj. Op. at 19-21. None of these grounds, which I address seriatim, suffices to distinguish StoltNielsen.
I. My colleagues emphasize the existence of a stipulation between the parties in StoltNielsen that the pertinent arbitration clause was "silent" as to class arbitration. Maj. Op. at 1112, 18. This stipulation simply reflected the fact that each party recognized that the arbitration clause neither specifically authorized nor specifically prohibited class arbitration. Brief for Respondent at 26, Stolt-Nielsen, 130 S. Ct. 1758 (2010) (No. 08-1198), 2009 WL 3404244 at *26. The disputed issue was, as it was in the Second Circuit, the effect of that silence. Stolt-Nielsen SA v. AnimalFeeds Int’l Corp., 548 F.3d 85, 86 (2d Cir. 2008) ("The question presented on this appeal is whether the arbitration panel, in issuing a clause construction award construing that silence to permit class arbitration, acted in manifest disregard of the law."). That is precisely the issue in this matter. Neither party here claims that any of the various arbitration clauses at issue1 either specifically authorizes or specifically precludes class arbitration, the same facts that constituted the "silence" that existed in Stolt-Nielsen. Indeed, that is the reason my colleagues seek refuge in a non-existent finding of the arbitrator, discussed infra Part II, that an agreement to class arbitration was implied.
1 Many arbitration agreements, with significantly different provisions, were signed by the individual Sterling employees, see infra, p.4.
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If the parties' arguments here and the face of the agreements are insufficient to establish their "silence," then the arbitrator’s decision certainly was when she explicitly found "there is no mention of class claims." Clause Construction Award (Ex. F to Sterling Mem. of Law in Support of Mot. to Vacate) at 3, Jock v. Sterling Jewelers, Inc., 677 F. Supp. 2d 661 (2009) (No. 08 Civ. 2875). That being the case, and not having the benefit of the Supreme Court's views in Stolt-Nielsen, the arbitrator framed the issue before her by specifically relying on the Second Circuit's decision in Stolt-Nielsen. Following our now-reversed decision, she found only that the arbitration clauses here did not "prohibit class arbitrations," and therefore that they allowed class arbitrations. Clause Construction Award, supra, at 4. In short, the arbitrator viewed the arbitration clause here as, in all pertinent respects, identical to that in Stolt-Nielsen.2
II. My colleagues also seek to distinguish Stolt-Nielsen on the ground that the decision recognized the possibility of implied agreements to class arbitration. Maj. Op. at 13-14, 18. True. However, the Supreme Court explicitly held that, in an FAA proceeding, an implied agreement could not be inferred from an arbitration clause’s failure to "preclude class
2 Moreover, my colleagues' narrow reading of Stolt-Nielsen -- limiting it to cases with supposed formal stipulations as to contractual silence -- casts grave doubt over the reasons for the Court’s even granting a writ of certiorari in that case. Under Supreme Court Rule 10, "a writ of certiorari will be granted only for compelling reasons." The Supreme Court grants such writs only where "a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court." Sup. Ct. R. 10(c). If Stolt-Nielsen resolves only the effect of a sui generis and idiosyncratic stipulation of the parties, the case hardly meets those criteria. Given my colleagues' narrow reading of the decision and their reliance on an analysis indistinguishable from the decision of the Second Circuit reversed by the Supreme Court, Stolt-Nielsen has been rendered an insignificant precedent in this circuit.
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arbitrations." 130 S. Ct. at 1775 (emphasis omitted). Had it not decided that question, the Court would have had either to address whether such an agreement might be implied from the arbitration clause in that case or to remand for such a determination. Instead, it held that "imposing class arbitration on parties whose arbitration clauses are 'silent' on that issue is [in]consistent with the Federal Arbitration Act.” Id. at 1764, 1775-76.
An "implicit" agreement to class arbitration cannot, therefore, be inferred from an arbitration agreement’s “silence” or “failure to preclude” class arbitrations, much less from thin air. Indeed, the arbitrator in this case did not purport to find an implied agreement. Following our decision in Stolt-Nielsen, where we speculated that "the arbitration panel may have concluded that even though the arbitration clauses are silent . . . their silence bespeaks an intent not to preclude class arbitration," 548 F.3d at 99, she inferred the class arbitration agreement entirely from the failure of the various agreements to "prohibit class arbitration," precisely what the Supreme Court said cannot be legitimately done. 130 S. Ct. at 1775.
Nowhere in her opinion does she purport to identify any provision of the agreement supporting the existence of an implied agreement. Far from it. Some of the agreement's provisions are in fact inconsistent with class arbitration, and the arbitrator had to manifestly disregard key provisions of the arbitration clauses in order to hold that class arbitration was authorized.
The members of the purported class each signed a provision that was often different from that signed by other members of the purported class. The arbitration clauses contain significant differences as to: (i) waiver of rights to seek relief in other tribunals; (ii) the kinds of disputes subject to the RESOLVE program; (iii) the particular laws under which claims may arise; (iv)
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contribution amounts by employees to the costs of arbitration; (v) descriptions of the relief available; (vi) limitations periods; (vii) the role of a court before which litigation has already begun; (viii) where the arbitration is to take place; and (ix) the source of the law under which the arbitrable claim is to be decided. See Spagnola Affidavit (Ex. C to Sterling’s Mem. of Law in Support of Mot. to Vacate) at Tab 2, Jock, 677 F. Supp. 2d 661 (No. 08 Civ. 2875).
When the various agreements are read in the aggregate, or even separately, the differences preclude class arbitrations. The arbitrator herself acknowledged that many of the arbitration agreements contained "unique contractual provisions for local venues, the application of local laws, and the selection of locally-licensed arbitrators," Clause Construction Award, supra, at 4, all of which are inconsistent with class arbitration. Pertinent common themes in the arbitration clauses are (i) the need to follow Steps 1 and 2 of the RESOLVE program -- Step (1): a complaint with reference to supporting evidence; and Step (2): resort to mediation if Sterling does not remedy the complaint -- and (ii) the failure to mention class arbitration -- silence. These common provisions are inconsistent with an implied agreement to class arbitration. As a result, the arbitrator found it necessary to hold that Steps 1 and 2 of the RESOLVE program were to be ignored in class arbitrations. Then, having framed the issue according to this court's Stolt-Nielsen decision, she went on to find that the failure to "prohibit class arbitrations" prevailed. Clause Construction Award, supra, at 5.
My colleagues dismiss as "disingenuous" Sterling’s argument "that permitting class arbitration to proceed would lose sight of the requirement that 'parties may specify with whom they choose to arbitrate their disputes,' Stolt-Nielsen, 130 S. Ct. at 1774, because the putative class in this case would presumably include only employees who signed the RESOLVE
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agreement." Maj. Op. at 24 n.3. However, Sterling agreed to arbitrate only with employees who complete steps 1 and 2 of the RESOLVE procedures; it has not agreed to arbitrate with each and every employee that signed the RESOLVE program agreement, whether or not they assert a claim pursuant to its provisions.
Far from implying class arbitration from the agreement, therefore, the arbitrator manifestly disregarded both unique and common features of all the agreements based on the view of silence as to class arbitration upheld by the Second Circuit in Stolt-Nielsen but thereafter rejected by the Supreme Court. Having now been enlightened by the Supreme Court's views, we do not have the arbitrator's excuse.
III. My colleagues also believe that the arbitrator purported to be acting under Ohio law. Maj. Op. at 19, 21-23. That is not the case. All she stated about Ohio law was that "the question of whether class claims are permitted or prohibited by an agreement that does not expressly address the issue . . . has apparently not been addressed in any reported decision by an Ohio court." Clause Construction Award, supra, at 4. Moreover, Ohio law does not govern the issue before us. Stolt-Nielsen held that consent to class arbitration cannot be inferred from an agreement’s failure to preclude it. The Supreme Court did not base its decision on the law of a particular state or federal maritime law. Rather, it relied on principles of law derived solely from the Federal Arbitration Act. Stolt-Nielsen,130 S. Ct. at 1773 ("While the interpretation of an arbitration agreement is generally a matter of state law, the FAA imposes certain rules of fundamental importance, including the basic precept that arbitration 'is a matter of consent, not coercion.'") (internal citations omitted); id. at 1775 ("The
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[arbitration] panel’s conclusion is fundamentally at war with the foundational FAA principle that arbitration is a matter of consent.") (emphasis added). The Court's exclusive reliance on the FAA as a source of governing law was in contrast to the Second Circuit's extensive discussion of New York and federal maritime law in its Stolt-Nielsen decision, 548 F.3d at 96-101, and to the arguments before the Supreme Court that there were considerable precedents in New York and maritime law authorizing class arbitration in the face of contractual silence. Brief for Respondent at 31-33 & 38, Stolt-Nielsen, 130 S. Ct. 1758 (No. 08-1198).
The Supreme Court treated New York and federal maritime law as irrelevant. Rather, it framed the question as "whether imposing class arbitration on parties whose arbitration clauses are 'silent' on that issue is consistent with the Federal Arbitration Act," and answered that question in the negative. Stolt-Nielsen, 130 S. Ct. at 1764. The exclusive role of the FAA in providing substantive law to determine the requisite consent to class arbitration was recently confirmed by the Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011). That case held that the FAA substantive law “preempted” state contract law rendering unenforceable as unconscionable an explicit contractual preclusion of class arbitration. Id. at 1753.
The Supreme Court’s concerns under the FAA with inferring consent to class arbitration are based on the fundamental differences between bilateral arbitration and class arbitration. As Stolt-Nielsen stated:
An implicit agreement to authorize class-action arbitration, however, is not a term that the arbitrator may infer solely from the fact of the parties’ agreement to arbitrate. This is so because classaction arbitration changes the nature of arbitration to such a degree that it cannot be presumed the parties consented to it by simply agreeing to submit their disputes to an arbitrator. . . . Consider just
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some of the fundamental changes brought about by the shift from bilateral arbitration to class-action arbitration. An arbitrator chosen according to an agreed-upon procedure no longer resolves a single dispute between the parties to a single agreement, but instead resolves many disputes between hundreds or perhaps even thousands of parties. . . . And the commercial stakes of class-action arbitration are comparable to those of class-action litigation, even though the scope of judicial review is much more limited. We think that the differences between bilateral and class-action arbitration are too great for arbitrators to presume, consistent with their limited powers under the FAA, that the parties' mere silence on the issue of class-action arbitration constitutes consent to resolve their disputes in class proceedings. 130 S. Ct. at 1775-76 (internal citations omitted) (emphasis added). Moreover, as the Supreme Court has recently noted at some length, even where a designated arbitration organization has established rules for class arbitration, as has the American Arbitration Association ("AAA") in the present case, the shortcomings of class arbitration are substantial. Concepcion, 131 S. Ct. at 1750-52 (“[W]hile it it theoretically possible to select an arbitrator with some expertise relevant to class-certification question, arbitrators are not generally knowledgeable in the often-dominant procedural aspects of certification, such as the protection of absent parties . . . . The absence of multilayered review makes it more likely that errors will go uncorrected.”). Class proceedings carry significant risks for plaintiffs as well as defendants. A class proceeding may well be driven by a quest for a substantial award of counsel fees alone, but the award will bind the members of the class who may pay little attention to the proceedings and are generally unaware of the consequences. Even where, as under the AAA rules, any settlement must be approved by the arbitrator, the critical safeguard of fairness review by an independent Article III judge, present in judicial class actions, is lacking. See id. at 1752; Fed. R. Civ. P. 23. While approval of a settlement by the arbitrator
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may sometimes be required, counsel will have an influence on both the selection of an arbitrator and even his or her fees. See Hans Smit, Contractual Modification of the Arbitral Process, 113 Penn. St. L. Rev. 995, 1009 (2009) (noting that because the tribunal is normally composed of arbitrators designated by the parties, it will normally agree with the parties once they have agreed upon a proper class and settlement). An arbitrator who disapproves a settlement may do so only at a risk of not being selected in future cases.
IV. My colleagues also rely upon the provision in the present agreement that the arbitrators may award any legal or equitable relief generally available in courts. Maj. Op. at 23-24. Clearly, this provision refers only to relief in the form of an award based on a violation of law or contract -- damages, injunctions, etc. -- and not to the availability of procedures used to pursue such relief. A class can be certified and yet not get "relief," i.e. it may lose. Significantly, one form of this provision found in some of the arbitration agreements here states that "the Arbitrator shall have the power to award any types of legal or equitable relief that would be available in a court of competent jurisdiction including, but not limited to, the costs of arbitration, attorney fees and punitive damages for causes of action when such damages are available under law." Spagnola Affidavit at Tab 2, supra, at 1. Applying the canon "ejusdem generis" -- a general item in a list of specific items of a particular genre must be construed to be limited to that genre, see Rajah v. Mukasey, 544 F.3d 427, 435 (2d Cir. 2008) -- the word "relief" is a reference to remedies compensating or punishing for harm done.
V.
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CaCsea:s1e02-3:0284-7cv-0D28o7c5u-mJSenRt: 2D1o6c-u3menPta1g1e1: 10Filed090/92/02/12/0111 Pag3e963065o7f 3610
Finally, my colleagues note the limited review of arbitration awards exercised by federal courts. Maj. Op. at 19-21. While that is surely a relevant point, this concern was not only as fully applicable to the award in Stolt-Nielsen as it is here but was also discussed extensively by the Supreme Court in that case. 130 S. Ct. at 1767-68. I will rely on the Supreme Court’s discussion.
Moreover, my colleagues’ deference here is not to the arbitrator's actual decision, which framed the issue under the Second Circuit’s decision in Stolt-Nielsen, found that the agreement made "no mention of class" arbitration, allowed class arbitration because the agreement did not "prohibit" it, and exceeded her authority by manifestly disregarding explicit provisions of the agreement inconsistent with class arbitration. See Yusuf Ahmed Alghanim & Sons v. Toys “R” Us, Inc., 126 F.3d 15, 23 (2d Cir. 1997) (“[Arbitral] awards may be vacated . . . where the arbitrator’s award is in manifest disregard of the terms of the agreement.”). Rather their deference is to a decision that was, in fact, never made by the arbitrator -- namely that the arbitration agreement implied an agreement to class arbitration.
I therefore respectfully dissent.
10 36 of 36

 
 Case: 10-3247 Document: 220 Page: 1 10/17/2011 418907 1

UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT

N.Y.S.D. Case# 08-cv-2875(JSR)

At a Stated Term ofthe United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City ofNew York, on the I~ day of October, two thousand eleven.

Laryssa Jock, Christy Chadwick, Maria House, Denise Maddox, Lisa McConnell, Gloria Pagan, Judy Reed, Linda Rhodes, Docket No.Nina Shahmirzadi, Leighla Smith, Marie Wolf, Dawn Souto-Coons, and all others similarly situated,

STATEMENT OF COSTS Docket No. 10-3247

Plaintiffs-Counter-Defendants- Appellants,

Jacquelyn Boyle, Lisa Follett, Khristina Rodriguez, Kelly Contreras,

Plaintiffs-Counter-Defendants,

.-U-S-D-C-S-D-N-Y---------------~

DOCUMENT

v.

ELECTRONICALLY FILED

Sterling Jewelers Inc.,

DOC#: DATE FILED: October 17, 2011

Defendant-Counter-Claimant- Appellee.

IT IS HEREBY ORDERED that costs are taxed in the amount of$1,007.30 in favor of Appellants Christy Chadwick, et al.

FOR THE COURT: CATHERINE O'HAGAN WOLFE, Clerk

A True Copy

 
 Case 2:08-cv-02875-JSR Document 114 Filed 10/27/11 Page 1 of 1

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------- x LARYSSA JOCK, et al.,
Plaintiffs,
-v-
STERLING JEWELERS, INC.,

USDC '­

•l.. ~1.,".J N"Y

11 !

DOrtE:, F1'TT

Fl.i::CT,~;:.·:.·": '/(:.<\J.IY B~LED
l! DDOJl\Ci.. ~'F_ N~1:)~l j.·./:J-.-~,c~.:.:.;;(~\:;,(_OJ.J\ ~ I ----

08 Civ. 2875 (JSR)

ORDER

Defendant. ------------------------------------- x

JED S. RAKOFF, U.S.D.J.

In light of the Second Circuit's decision in Jock v. Sterling Jewelers Inc., 646 F.3d 113 (2d Cir. 2011), the arbitrator's clause
construction award is hereby CONFIRMED.
SO ORDERED. Dated: New York, NY October 26, 2011

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------x LARYSSA JOCK, et al.,
Plaintiffs,
-v-
STERLING JEWELERS INC.,

08 Civ. 2875

For the past eight years, defendant Sterling Jewelers Inc. ("Sterling") and plaintiffs Laryssa Jock et al. have been engaged in arbitration over plaintiffs' claims that Sterling discriminated against them in violation of both Title VII of the Civil Rights Act and the Equal Pay Act (EPA). Most recently, on March 23, 2016, defendant Sterling filed a motion seeking to vacate certain rulings issued by the Arbitrator, specifically, orders conditionally certifying a collective action under the EPA and tolling the statute of limitations for EPA claims. For the reasons stated below, the Court determines that it has no jurisdiction at this time to review Sterling's motion to vacate these rulings, since the rulings of the Arbitrator that Sterling challenges are not "final" rulings.
By way of background, on March 18, 2008, plaintiffs filed suit in this Court on behalf of themselves and all persons similarly situated, alleging sex discrimination in Sterling's promotion and compensation policies and practices in violation of both Title VII of the Civil Rights Act and the EPA, 29 U.S.C. § 206. See Complaint,
1

Dkt. 1. On June 18, 2008, this Court granted plaintiffs' motion to refer the matter to arbitration. See Order, Dkt. 52. There followed extensive proceedings before the Arbitrator, this Court, and the Second Circuit Court of Appeals, familiarity with which will here be presumed.
Of some incidental relevance to the present dispute, on February 2, 2015, the Arbitrator, operating under the auspices of the American Arbitration Association (AAA), issued a Class Determination Award addressing plaintiffs' motion to have opt-out classes certified for both the Title VII and the EPA claims. See Class Determination Award, Dkt. 137-1, at 1. In this ruling, the Arbitrator certified a class for plaintiffs' Title VII disparate impact claims with respect to declaratory and injunctive relief, but not for monetary damages. The Arbitrator also denied class certification for plaintiffs' Title VII disparate treatment claims. See id., Dkt. 137-3, at 118. Finally, and of relevance here, the Arbitrator's Class Determination Award denied plaintiffs' motion to certify an opt-out class for their EPA claims, but stated that this was without prejudice to plaintiffs' seeking certification of an opt-in collective action under the EPA. See id. at 115. On November 15, 2015, this Court confirmed the Class Determination Award, except the part of that award permitting opt-outs for classwide injunctive and declaratory relief. See Opinion and Order dated November 15, 2015, Dkt. 144. Defendant appealed the Court's partial confirmation
2

of the Class Determination Award, and that appeal is currently

pending before the Second Circuit. 1

Meanwhile, of more direct relevance here, the Arbitrator moved

forward with respect to plaintiffs' EPA claims. The EPA incorporates

the enforcement provisions of the Fair Labor Standards Act (FLSA) .2

See 29 U.S.C. § 216(b). The FLSA, in turn, states that employees may

bring an action against their employers "for and in behalf of .

themselves and other employees similarly situated" and that "[n]o

employee shall be a party plaintiff to any such action unless he

gives his consent in writing to become such a party and such consent

is filed in the court in which such action is brought." Id. Courts

have interpreted these provisions to create a scheme for the

preliminary certification of "collective actions" under the FLSA

(and, accordingly, under the EPA) that materially differs from the

procedure for certification of class actions under Fed. R. Civ. P.

23. See Myers v. Hertz Corp., 624 F.3d 537, 542 (2d Cir. 2010);

Young v. Cooper Cameron Corp., 229 F.R.D. 50, 54 (S.D.N.Y. 2005)

Indeed, "certification" under the FLSA and EPA has a different

meaning than "certification" of a class action under Rule 23, since

"certification" in the FLSA collective action context refers only to

"the district court's exercise of the discretionary power .

to

1 Neither side at any time questioned the Court's jurisdiction to review the Class Determination Award, and, indeed, for the reasons described infra, the Court's jurisdiction to review that determination is clear.
2 Since the FLSA provides a mechanism for the enforcement of EPA claims, cases regarding collective certification under the FLSA are equally applicable to EPA claims. See Myers v. Hertz Corp., 624 F.3d 537, 554 n.9 (2d Cir. 2010).
3

facilitate the sending of notice to potential class members." Myers,

624 F.3d at 555 n.10; see also Hoffmann-La Roche Inc. v. Sperling,

493 U.S. 165 (1989). In every material respect, therefore,

certification of a collective action is a preliminary determination

that requires only a modest showing. Certification under Rule 23 is

a more or less final determination that all the mandatory

requirements of Rule 23(a) - numerosity, commonality, typicality,

and adequacy - as well as at least one of the additional

requirements of Rule 23(b) have been satisfied.

Put differently, "certification" of a collective action means

only that an initial "first step" has been taken that, unlike class

certification of a Rule 23 kind, involves only the most preliminary

kind of determination. As the Second Circuit states:

The first step involves the court making an initial

determination to send notice to potential opt-in plaintiffs

who may be similarly situated to the named plaintiffs with

respect to whether a FLSA violation has occurred. The court

may send this notice after plaintiffs make a modest factual

showing that they and potential opt-in plaintiffs together

were victims of a common policy or plan that violated the

law.

The modest factual showing cannot be satisfied

simply by unsupported assertions, but it should remain a low

standard of proof because the purpose of this first stage

is merely to determine whether similarly situated plaintiffs

do in fact exist

At the second stage, the district

court will, on a fuller record, determine whether a so-

called "collective action" may go forward by determining

whether the plaintiffs who have opted in are in fact

similarly situated to the named plaintiffs. The action may

be de-certified if the record reveals that they are not, and

the opt-in plaintiffs' claims may be dismissed without

prejudice.

Myers, 624 F.3d at 555 (internal citations and quotation marks

omitted) .

4

Reflective of the difference between the full and largely final showings needed for certification of a class under Rule 233 and the very modest and highly preliminary showing needed for "certification" of a collective action under the EPA, the Arbitrator in the instant case, while denying in her Class Determination Award, plaintiffs' motion to certify, for their EPA claims, an opt-out class pursuant to Fed. R. Civ. P. 23 and the AAA Supplementary Rules for Class Actions, 4 expressly left open the possibility that plaintiffs could seek opt-in certification of a collective action for their EPA claims. See Class Determination Award at 114-15. Consequently, plaintiffs, on March 6, 2015, filed before the Arbitrator a motion for conditional certification of an opt-in EPA collective action (~, the "first step" of the FLSA enforcement procedure described supra). See Claimants' Motion for Conditional Certification of Claimants' Equal Pay Act Claims and Authorization of Notice, Dkt. 148-3.
In response, on February 29, 2016, the Arbitrator issued the rulings that Sterling challenges in the instant motion. First, the Arbitrator conditionally certified an opt-in collective action for plaintiffs' EPA claims, thereby allowing notice to be sent. See Equal Pay Act Collective Action Conditional Certification Award
3 While certification of a class under Rule 23 is theoretically subject to reconsideration later in the case, it is so clearly final in most situations that Rule 23 allows immediate appeal from the class certification. See Fed. R. Civ. P. 23 ( f) . 4 As discussed infra, the standards for certification of a class action under the AAA Supplementary Rules largely mirror those of Fed. R. Civ. P. 23.
5

("Conditional Certification Award"), Dkt. 148-1. Second, in determining to whom notice should be sent, the Arbitrator tolled the statute of limitations for the EPA claims and issued a separate Order explaining why. See Order re Claimants' Motion for Tolling of EPA Limitations Period ("Tolling Order"), Dkt. 148-2. Specifically, the Arbitrator tolled the statute of limitations on plaintiffs' EPA claims so that individuals could opt in to the EPA collective action if their claims arose on or after October 16, 2003. See Conditional Certification Award at 4; Tolling Order at 3-6.
On March 23, 2016, defendant Sterling moved in this Court to vacate the Arbitrator's Conditional Certification Award and Order on Tolling insofar as these rulings tolled the statute of limitations for plaintiffs' EPA claims. See Notice of Defendant's Motion to Vacate the Arbitrator's Equal Pay Act Collective Action Conditional Certification Award and Order re Claimants' Motion for Tolling of EPA Limitations Period, Dkt. 146. On April 11, 2016, plaintiffs filed opposition papers. See Opposition to Defendant's Motion to Vacate the Arbitrator's Equal Pay Act Collective Action Conditional Certification Award and Order re Claimants' Motion for Tolling of EPA Limitations Period ("Pl. Opp. Br."), Dkt. 149. In addition to challenging defendant's arguments on the merits, plaintiffs contended that this Court lacked jurisdiction to review the challenged rulings because these rulings were not "final." See Pl. Opp. Br. at 4-8. Defendant replied on April 20, 2016, see Defendant's Reply in Support of Its Motion to Vacate the
6

Arbitrator's Equal Pay Act Collective Action Conditional

Certification Award and Order re Claimants' Motion for Tolling of

EPA Limitations Period ("Def. Reply Br."), Dkt. 150, and the Court

heard oral argument on May 11, 2016. Having considered the parties'

submissions and arguments, the Court finds that it has no

jurisdiction to review the Arbitrator's Conditional Certification

Award and Tolling Order at this juncture in the proceedings, because

these rulings are not "final." The Court therefore expresses no view

on the merits of defendant's motion to vacate these rulings.s

The Federal Arbitration Act (FAA) provides that "at any time

within one year after the [arbitration] award is made any party to

the arbitration may apply to the court

for an order confirming

the award, and thereupon the court must grant such an order unless

the award is vacated, modified, or corrected." 9 U.S.C. § 9. The

Second Circuit has held that "[t]he language of the [Federal

Arbitration] Act is unambiguous: it is only after an award has been

made by the arbitrators that a party can seek to attack any of the

arbitrators' determinations in court, by moving either to vacate the

award .

or to modify or correct it." Michaels v. Mariforum

Shipping, S.A., 624 F.2d 411, 414 (2d Cir. 1980). Therefore, a court

"lacks authority to confirm an award that is interim, not final."

s On April 4, 2016, the Arbitrator denied Sterling's motion to stay proceedings pending this Court's resolution of the instant motion. See Order re Sterling's Renewed Motion to Stay, Dkt. 149-3. In doing so, the Arbitrator characterized her Conditional Certification Award and Tolling Order as "non-final." Id.
7

Daum Global Holdings Corp. v. Ybrant Digital Ltd., No. 13-cv-3135,
2014 WL 8 9 6 7 16, at * 2 (S . D. N. Y. Feb . 2 0, 2O14 ) .

Further, "an arbitration award, to be final, must resolve all

the issues submitted to arbitration, and .

it must resolve them

definitively enough so that the rights and obligations of the two

parties, with respect to the issues submitted, do not stand in need

of further adjudication." Rocket Jewelry Box, Inc. v. Noble Gift

Packaging, Inc., 157 F.3d 174, 176 (2d Cir. 1998) .6 The Second

Circuit has explained the logic behind the finality doctrine as

follows:

Policy considerations, no less than the language of the Act and precedent construing it, indicate that district courts should not be called upon to review preliminary rulings of arbitrators. Most of the advantages inherent in arbitration are dissipated by interlocutory appeals to a district court.
[A] district court should not hold itself open as an appellate tribunal during an ongoing arbitration proceeding, since applications for interlocutory relief result only in a waste of time, the interruption of the arbitration proceeding, and . . delaying tactics in a proceeding that is supposed to produce a speedy decision.

Michaels, 624 F.2d at 414 (internal quotation marks omitted). Or, as

the Seventh Circuit put it, "the courts are naturally reluctant to

invite a judicial proceeding every time the arbitrator sneezes."

Smart v. Int'l Bhd. of Elec. Workers, Local 702, 315 F.3d 721, 725

(7th Cir. 2002).

6 The Second Circuit has also stated that "an award which finally and definitely disposes of a separate independent claim may be confirmed although it does not dispose of all the claims that were submitted to arbitration." Metallgesellschaft A.G. v. M/V Capitan Constante, 790 F.2d 280, 283 (2d Cir. 1986). But in this case, the Arbitrator's Conditional Certification Award and Tolling Order have not "finally and definitely" disposed of any of plaintiffs' EPA claims.
8

In this case, it is obvious that the Arbitrator's Conditional

Certification Award and Tolling Order are not "final" arbitration

awards. 7 Indeed, the Second Circuit, in Myers, addressed, albeit in a

non-arbitration context, almost the same question as presented here,

and concluded that it lacked appellate jurisdiction over a district

court decision denying conditional certification of a FLSA

collective action. As the Second Circuit noted, the first step of a

FLSA collective action requires plaintiffs only to make a "modest

factual showing that potential plaintiffs existed who were similarly

situated to themselves" - a considerably "lower standard" than is

required for certification of a class action under Fed. R. Civ. P.

23. Myers, 624 F.3d at 555-56 (internal quotation marks omitted)

Consequently, as the Arbitrator in the instant case expressly

recognized, only at the "second stage" of an EPA collective action

(~, after notice is sent out and potential EPA claimants opt in)

will a decision be made as to "whether .

a 'collective action'

may go forward." Conditional Certification Award at 2-3; see Myers,

624 F.3d at 555. Following conditional certification, then, issues

such as the basic makeup of the collective action and the

fundamental viability of the collective action mechanism remain "in

need of further adjudication." Rocket Jewelry Box, 157 F.3d at 176.

7 While the analysis below (and in the case law) focuses on the finality of the Arbitrator's ruling conditionally certifying a collective action, the Court sees no reason to apply a separate analysis to the Tolling Order (and neither, it seems, do the parties). The Conditional Certification Award itself tolls the statute of limitations and notes that this decision is explained in the Tolling Order issued on the same day, so that the two are inextricably intertwined. See Conditional Certification Award at 4.
9

An arbitration award that "conditionally certifies a class of
plaintiffs and outlines the procedures to be followed in notifying
and defining the class" is hence not final, and this Court has no
jurisdiction to review it. Int'l Bancshares Corp. v. Lopez, 15-cv-
1 7 3 , 2 0 15 WL 6 7 9 9 7 8 3 , at * 3 (S . D. Tex . Nov . 5 , 2 0 15 )
The fact that courts sometimes exercise jurisdiction over a
limited group of other kinds of interlocutory arbitral rulings is
not to the contrary. For instance, courts (including this Court)
have reviewed arbitrators' "clause construction awards," where,
~, they are threshold rulings determining whether the parties'
arbitration agreement even permits class arbitration. See, e.g.,
Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 559 U.S. 662 (2010) ;s
Jock v. Sterling Jewelers, Inc., 677 F. Supp. 2d 661, 665 (S.D.N.Y.
2009). But judicial review of clause construction awards constitutes
a "limited exception" to the general rule that non-final arbitration
awards are not subject to review. Int'l Bancshares Corp., 2015 WL
6799783, at *2. This exception "does not give courts blanket
jurisdiction over all arbitral orders concerning collective action.
8 Defendant Sterling notes that in Stolt-Nielsen, the Supreme Court's decision to review the clause construction award did not depend on finding that the clause construction award was final; rather, the Supreme Court found that the Clause Construction award was ripe for review. See Def. Reply Br. at 3-4; see also StoltNielsen, 559 U.S. at 670 n.2. But the Supreme Court would not have reached the ripeness issue if it lacked jurisdiction. Similarly, this Court also previously examined ripeness in determining that it could review the Arbitrator's Clause Construction Award in the instant case. See Jock, 677 F. Supp. 2d at 664. However, these findings that clause construction awards were ripe for review do not remotely suggest that finality is no longer relevant when a court faces the question of whether to review determinations by an arbitrator made after the clause construction ruling is rendered - in this case, the Arbitrator's Conditional Certification Award and Tolling Order.
10

Rather, it gives courts limited jurisdiction to consider an arbitrator's ruling on a particular threshold issue," namely, whether class arbitration is permissible under the parties' arbitration agreement. Id. The fact that courts may review clause construction awards does not remotely suggest that courts may also review arbitral rulings that, as in the case of rulings on the first step of an EPA collective action, are expressly "conditional" and require only a "low standard of proof."
Likewise, numerous courts have reviewed arbitrators' rulings on class action certification under the AAA Supplementary Rules (which, as noted, largely mirror Rule 23 in this respect) and/or have approved of such review. See, e.g., Southern Commc'ns Servs., Inc. v. Thomas, 720 F.3d 1352, 1354, 1360 (11th Cir. 2013); Long John Silver's Restaurants, Inc. v. Cole, 514 F.3d 345 (4th Cir. 2008); Dealer Computer Servs., Inc. v. Randall Ford, Inc., No. 08-cv-2033, 2009 WL 277557, at *5 (S.D. Tex. Feb. 4, 2009); Haro v. NCR Corp., No. 04-cv-328, 2008 WL 5156461 (S.D. Ohio Dec. 8, 2008); Sutter v. Oxford Health Plans, LLC, No. 05-cv-2198, 2005 WL 6795061, at *3-4 (D.N.J. Oct. 31, 2005), aff'd, 227 F. App'x 135 (3d Cir. 2007). Indeed, as noted, on November 15, 2015, this Court in the instant case confirmed in part the Arbitrator's Class Determination Award certifying some of plaintiffs' Title VII claims for class action treatment. Jock, 2015 WL 7076011. But this is largely because AAA Supplementary Rule 5(d) expressly provides for such an appeal, similarly to Fed. R. Civ. P. 23(f) and for the same reasons. Indeed,
11

in the related context of appellate review of district court rulings, the Second Circuit, as previously noted, has distinguished between its having jurisdiction over district courts' rulings on class certification and its lacking jurisdiction over district courts' rulings on conditional certification of FLSA collective actions. Similarly, other Courts of Appeals have found that they lacked appellate jurisdiction over district court rulings on conditional certification of collective actions pursuant to the FLSA on the basis that these rulings were not final. See McElmurry v. U.S. Bank Nat. Ass'n, 495 F.3d 1136, 1138 (9th Cir. 2007) ; 9 Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 549 (6th Cir. 2006); Baldridge v. SBC Commc'ns, Inc., 404 F.3d 930, 931-32 (5th Cir. 2005).
Defendant nonetheless argues that the AAA Supplementary Rules should apply to any class-like determination, including determinations regarding collective actions. But defendant's argument is unpersuasive. The same established distinction between certification of an opt-out class and a conditional certification of a collective action applies here. The AAA Supplementary Rules governing class arbitrations make no mention of conditional certification of a collective action. Rather, AAA Supplementary Rule 4, titled "Class Certification," identifies criteria for the
9 The Ninth Circuit case McElmurry did not discuss "conditional certification" explicitly; rather, the appellate court considered whether it had jurisdiction over the district court's decision not to issue notice of a collective action under the FLSA. McElmurry, 495 F.3d at 1138. However, the Second Circuit has noted that "certification" pursuant to the FLSA refers simply to the district court's decision to send notice to potential opt-ins. Myers, 624 F.3d at 555 n.10.
12

maintenance of a "Class Arbitration" that largely track the requirements of Fed. R. Civ. P. 23. Likewise, AAA Supplementary Rule 5, titled "Class Determination Award," states that "(a) The arbitrator's determination concerning whether an arbitration should proceed as a class arbitration shall be set forth in a reasoned, partial final award (the 'Class Determination Award'), which shall address each of the matters set forth in [AAA Supplementary] Rule 4." Rule 5 then indicates that "[t]he arbitrator shall stay all proceedings following the issuance of the Class Determination Award for a period of at least 30 days to permit any party to move a court of competent jurisdiction to confirm or to vacate the Class Determination Award." AAA Supplementary Rule S(d).
The AAA Supplementary Rules, therefore, expressly designate as "partial final awards" arbitrators' "class determination awards" and provide a mechanism for parties to move in court for confirmation or vacatur of class determination awards. These features of the AAA Supplementary Rules, which mimic the approach of Rule 23(f) of the Federal Rules of Civil Procedure, may not definitively settle the question of federal courts' jurisdiction to review class determination awards (a question this Court need not definitively reach here in any event). But while these features strongly suggest a basis for treating an arbitrator's class determination awards as subject to judicial review, there exists no parallel provision in the AAA Supplementary Rules for conditional certification of collective actions under the FLSA (or the EPA).
13

Defendant Sterling points out that the Arbitrator noted in her Tolling Order that "under Supplementary Rule 4 all class arbitrations are treated like Rule 23 opt-out class actions." Def. Reply Br. at 2; Tolling Order at 4. According to defendant, the Arbitrator thereby signaled that she was treating the Conditional Certification Award, just as she treated her Class Determination Award, as a "partial final award" subject to judicial review. Def. Reply Br. at 3. But this reads far too much into the Arbitrator's actual, limited words. Indeed, if the Arbitrator's intentions as to the finality of the Conditional Certification Award and Tolling Order were ever in doubt, the fact that the Arbitrator labelled these rulings "non-final" in her order denying a stay during the pendency of the instant motion would put these doubts convincingly to rest. See Order re Sterling's Renewed Motion to Stay. In any event, an individual Arbitrator has no power to create federal court jurisdiction where it does not otherwise exist.
For all these reasons, the Court holds that it lacks jurisdiction to review the Arbitrator's Conditional Certification Award and Tolling Order. The Clerk of Court is directed to close docket entry 146. SO ORDERED. Dated: New York, NY
May J_'&-, 2016
14

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
LARYSSA JOCK, et al.,
Plaintiffs,
-v-
STERLING JEWELERS, INC., Defendant.
------------------------------------- x JED S. RAKOFF, U.S.D.J.

08 Civ. 2875 (JSR) OPINION AND ORDER

On March 18, 2008, plaintiffs Laryssa Jock et al. filed suit in this Court on behalf of themselves and all persons similarly situated, alleging sex discrimination in the promotion and compensation policies and practices of defendant Sterling Jewelers, Inc. ("Sterling"). See Complaint, Dkt. 1. On May 5, 2008, plaintiffs moved to refer the matter to arbitration, pursuant to the "RESOLVE" dispute resolution agreement signed by Sterling's employees. See Memorandum of Points and Authorities in Support of Plaintiffs' Motion to Refer to Arbitration and Stay the Litigation, Dkt. 26. The Court granted this motion in an order dated June 18, 2008. Dkt. 52. Since then, however, the matter has been the subject of interminable litigation (familiarity with which is here presumed) before the Arbitrator, this Court, and the Second Circuit Court of Appeals. Regretfully, the matter is still not at an end.
Most recently, following over three years of discovery and other proceedings before the Arbitrator, the Arbitrator, on February 2, 2015, issued a Class Determination Award that, in relevant part,
-1-

certified a class for the adjudication of plaintiffs' Title VII

disparate impact claims with respect to declaratory and injunctive

relief, but declined to certify plaintiffs' Title VII disparate

impact claims with respect to monetary damages or plaintiffs' Title VII disparate treatment claims. See Declaration of Gerald L. Maatman,

Jr., Exhibit 1 ("Class Determination Award") at 118. As discussed

below, this much was unassailable. But the Arbitrator went further

and permitted members of the class to opt out from the putative declaratory and injunctive relief. This, regretfully, exceeded her authority, as well as manifestly disregarding settled law.

Pending at present before this Court is the motion of defendant Sterling to vacate the Arbitrator's Class Determination Award on the grounds that the Arbitrator exceeded her authority by, first, "purporting to bind absent class members who did not express their consent to be bound" and, second, "permitting opt-out rights in a

mandatory Rule 23(b) (2) class." See Defendant's Memorandum of Law in

Support of Its Motion to Vacate the Arbitrator's Class Determination Award ("Defs. Br.") at i. The Federal Arbitration Act provides that a district court may vacate an arbitration award "(1) where the award was procured by corruption, fraud, or undue means; (2) where there

was evident partiality or corruption in the arbitrators .

; (3)

where the arbitrators were guilty of misconduct . . or (4) where

the arbitrators exceeded their powers, or so imperfectly executed

them that a mutual, final, and definite award upon the subject matter

submitted was not made." 9 U.S.C. § lO(a). Courts read 9 U.S.C. §

-2-

lO(a) (4) very narrowly. See, e.g., ReliaStar Life Ins. Co. of N.Y. v.
EMC Nat. Life Co., 564 F.3d 81, 86 (2d Cir. 2009) ("If the parties
agreed to submit an issue for arbitration, we will uphold a challenged award as long as the arbitrator offers a barely colorable justification for the outcome reached." (internal quotation marks omitted)). In addition, however, the Second Circuit has recognized "a judicially-created ground [for vacatur], namely that an arbitral decision may be vacated when an arbitrator has exhibited a manifest disregard of law." Jock v. Sterling Jewelers Inc., 646 F.3d 113, 121 (2d Cir. 2011) . 1
With respect to its first ground for vacatur, Sterling contends that the Arbitrator lacked authority to certify a class that included approximately 44,000 alleged class members (who were current and former female employees of defendant Sterling) , beyond the 254 plaintiffs who filed opt-in notices to join the proceeding or were represented by Cohen Milstein Sellers & Toll, PLLC and its co-counsel in the arbitration proceeding. See Defs. Br. at 4-6 & 4 n.9. According to Sterling, individuals other than these 254 plaintiffs have not consented to join the class arbitration, and an opt-out notice to those individuals would not create consent. Defs. Br. at 5.
1Despite some uncertainty regarding the vitality of the "manifest disregard" doctrine, the Court has no reason to conclude that it has been eliminated in this Circuit. See, ~, United Broth. of Carpenters & Joiners of America v. Tappan Zee Constructors, LLC, 804 F.3d 270, 275 (2d Cir. 2015); Landmark Ventures, Inc. v. InSightec, Ltd., No. 14-cv-4599, 2015 WL 6603900, at *1(2d Cir. Oct. 30, 2015) (summary order); see also Incredible Foods Group, LLC v. Unifoods, S.A. de C.V., No. 14-cv5207, 2015 WL 5719733, at *4 n.15 (E.D.N.Y. Sept. 29, 2015).
-3-

Defendant further argues that absent class members may then seek to
collaterally attack the arbitration, forcing Sterling to face
numerous individual claims. Defs. Br. at 7-8.
The Court finds, however, that defendant's argument on this
point is foreclosed by earlier rulings in this case. The Second
Circuit stated in Jock v. Sterling Jewelers Inc., 646 F.3d 113 (2d
Cir. 2011) that "there is no question that the issue of whether the
agreement permitted class arbitration was squarely presented to the
arbitrator." Jock, 646 F.3d at 124. "Agreement" here refers to the
RESOLVE agreements between Sterling and its employees, id., assent to
which was a mandatory condition of employment. Id. at 116. All
members of the class certified by the Arbitrator signed the RESOLVE
agreements; the Arbitrator interpreted these agreements to permit
class arbitration; and the Second Circuit upheld the Arbitrator's
authority to do so. Given that holding, this Court sees no basis for
vacating the Class Determination Award on the ground that the
Arbitrator has now exceeded her authority in purporting to bind
absent class members. 2
2 In raising this challenge to the Arbitrator's Class Determination Award, Sterling relies heavily on Justice Alito's concurrence in Oxford Health Plans v. Sutter, in which a unanimous Supreme Court held that an arbitrator did not exceed his powers in finding that the parties' contract authorized class
arbitration. Oxford Health Plans, 133 s. Ct. at 2067. In his
concurrence, Justice Alito, who was joined by Justice Thomas, expressed concern that "absent members of the plaintiff class never conceded that the contract authorizes the arbitrator to decide whether to conduct class arbitration" and that "it is far from clear that [the absent class members] will be bound by the arbitrator's ultimate resolution of this dispute." Id. at 2071 (Alito, J., concurring). However, Justice Alito indicated that he joined the Court's opinion because of Oxford Health Plans's
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As to defendant's second challenge to the arbitration award,
however, the Court agrees that the Arbitrator acted outside her
authority in certifying an opt-out class for injunctive and
declaratory relief in the Class Determination Award. 3 As detailed
below, the Arbitrator purported to certify the class under Rule
23(b) (2). But it is settled law that, as the Supreme Court most
recently stated in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541,
2558 (2011), "Rule [23) provides no opportunity for (b) (1) or (b) (2)
class members to opt out." But even if one were to accept plaintiffs'
dubious claim that the Arbitrator could be said to have certified the
class on grounds other than Rule 23(b) (2), see Opposition to
Defendant's Motion to Vacate the Arbitrator's Class Determination
Award ("Pl. Opp. Br.") at 11, the Court would still hold that the
Arbitrator exceeded her authority in permitting class members to opt
"concession below," namely, the fact that "petitioner consented to the arbitrator's authority by conceding that he should decide in the first instance whether the contract authorizes class arbitration." Id. at 2071-72. While the Court finds ample support for rejecting defendant Sterling's first ground for vacatur in the prior history of this case, the Court also notes that the parties in the instant case appear to be covered by Justice Alito's explanation for his agreement to join the majority opinion in Oxford Health Plans, since the Second Circuit held that "there is no question that the issue of whether the agreement permitted class arbitration was squarely presented to the arbitrator." Jock, 646 F.3d at 124.
3 Plaintiffs suggest that Sterling waived this argument by not raising the challenge before the Arbitrator, see Pl. Opp. Br. at 10 n.11. However, Sterling stated in a footnote to its Memorandum of Law submitted to the Arbitrator that "23(b) (2) actions are not opt-out classes . . " See Defs. Reply Brief in Further Support of Its Motion to Vacate the Arbitrator's Class Determination Award ("Defs. Reply Br.") at 6; Supplemental Declaration of Gerald L. Maatman, Jr., Exhibit 1.
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out of injunctive and declaratory relief that necessarily affects all class members.

To elaborate, Rule 23(b) (2) describes a type of class action in

which "the party opposing the class has acted or refused to act on

grounds that apply generally to the class, so that final injunctive

relief or corresponding declaratory relief is appropriate respecting

the

class

as

a

whole.

1 '

Fed.

R.

Civ.

P.

23 (b) (2).

In Wal-Mart v.

Dukes, the Supreme Court stated that "[c]lasses certified under

(b) (1) and (b) (2)" are "mandatory classes: The Rule provides no

opportunity for (b) (1) or (b) (2) class members to opt out, and does

not even oblige the District Court to afford them notice of the

action." Wal-Mart, 131 S. Ct. at 2558. The Supreme Court reasoned

that in the case of 23 (b) (2) classes, "the relief sought must

perforce affect the entire class at once." Id.

It is clear from the Arbitrator's award that her purported basis

for permitting opt-outs was pursuant to Rule 23(b) (2). Although she

also mentioned AAA Supplementary Rule 4, she stated that "AAA

Supplementary Rule 4 essentially tracks the requirements of Fed. R.

Civ. P. 23" and that "[i]n this case Claimants seek certification of

their claims for declaratory and injunctive relief pursuant to Rule

23(b) (2) and certification of their claims for monetary damages

pursuant to Rule 23(b) (3) ." Class Determination Award at 6. The

Arbitrator then granted class certification for plaintiffs' Title VII

disparate impact claims with respect to declaratory and injunctive

relief and denied class certification with respect to plaintiffs'

claims for monetary damages. See id. at 8; see also id. at 118. The

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clear inference is that the 23(b) (2) class was the one certified. Confirming this point, the Arbitrator, in summarizing her award,
stated: "I find that the adjudication of Claimants' Title VII disparate impact claims with respect to declaratory and injunctive relief may be maintained as a class arbitration pursuant to AAA Supplementary Rule 4 and Rule 23(b) (2) and Rule 23(c) (4). Claimants' motion for class certification of their Title VII disparate impact claims with respect to monetary damages pursuant to AAA Supplementary Rule 4 and Rule 23(b) (3) is denied." id. at 8, see also id. at 118. Further, the Arbitrator indicated that "I have determined that this case may proceed as a class action solely with respect to Claimants' disparate impact claims for declaratory and injunctive relief, based upon Rule 23(b)(2) and Rule 23(c)(4)." Id. at 103.
Having thus certified only a 23(b) (2) class, the Arbitrator then went on to write that, even though "[t]he members of the proposed class are unlikely to have any interest in individually controlling the prosecution of Claimants' claims for declaratory and injunctive relief," "to the extent a putative class member wishes to do so, she will be afforded an opportunity to opt out of the class arbitration." Class Determination Award at 109-10. The Arbitrator also directed counsel to submit a proposed form of opt-out notice, id. at 118. It is clear, therefore, that the Arbitrator purported to permit opt-outs from a Rule 23(b) (2) class. But she had no power to do so, as the relief sought in the certification of a Rule 23(b) (2) class "must perforce affect the entire class at once." Wal-Mart, 131 S. Ct. at 2558.
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Plaintiffs urge, however, that since the Arbitrator elsewhere
found that the claimants satisfied the requirements of AAA
Supplementary Rule 4(a) and 4(b), and these rules track the language
of Fed. R. Civ. P. 23(a) and 23(b) (3), respectively, "the invocation
of Rule 23(b) (2) is not necessary to sustain the Class Determination Award." Pl. Opp. Br. at 10. The Arbitrator did indeed state that the
claimants "have satisfied the requirements of Supplementary Rules
4(a) and 4(b) with respect to their Title VII claims based upon a
disparate impact theory of liability for purposes of declaratory and
injunctive relief . ." Class Determination Award at 112. But as the
foregoing discussion indicates, the Arbitrator found AAA
Supplementary Rules 4(a) and 4(b) were satisfied because she
determined that Rule 23(b) (2) - that is, "one of the provisions of Rule 23(b) ," id. at 6 - was satisfied. 4 Thus, these determinations do
not vitiate the Arbitrator's clear statements that she was permitting
individuals to opt out of a class certified under Rule 23(b) (2).
The Court's task is to determine whether the Arbitrator has
"offer[ed] a barely colorable justification for the outcome reached,"
ReliaStar, 564 F.3d at 86 (emphasis added), not whether the party
satisfied by the Arbitrator's decision can devise a post hoc
4 The fact that some of the Arbitrator's inquiries, such as her analyses of "predominance" and "superiority," see Class Determination Award at 108-09, are part of AAA Supplementary Rule 4 and Fed. R. Civ. P. 23(b) (3), and not Fed. R. Civ. P. 23(b) (2), does not prove that the Arbitrator certified the class under Rule 23(b) (3), since the Arbitrator also noted that "[a]lthough under Rule 23, the predominance and superiority requirements apply only to claims certified under Rule 23(b) (3), the predominance and superiority requirements of AAA Supplementary Rule 4(b) must be met in all cases." Id. at 6 n.4.
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justification for her ruling. To ignore the Arbitrator's stated

account in the Class Determination Award of what she was doing in

certifying the class would not be to grant substantial deference.

Moreover, even if plaintiffs' argument that the Arbitrator

certified an opt-out class under provisions other than Rule 23(b) (2)

were somehow to be accepted, the Court would still hold that the

Arbitrator failed to present a "barely colorable justification" for

her ruling. The Arbitrator both (1) certified a class for the purpose

of seeking class-wide injunctive relief and (2) permitted some

putative class members to opt out. As the Arbitrator states, the

answers to questions regarding an adverse effect on female employees

at Sterling "will determine whether Claimants are entitled to class-

wide declaratory and injunctive relief 'in one stroke'

. " Class

Determination Award at 98. Plaintiffs indicate that "as members of a

certified class they seek injunctive relief to redress the policies

and practices that they intend to show at trial had an impermissible

adverse impact on women sales associates at Sterling Jewelers." Pl.

Opp. Br. at 11-12. 5 Specifically, "the class would seek to ensure the

5At oral argument in front of the Arbitrator, plaintiffs expanded on the forms of relief they were seeking, such as "injunctive relief directing that Sterling conduct a proper job analysis of the positions at issue here and determine the particular kinds of knowledge, skills, and abilities" and injunctive relief enjoining "Sterling . . from using any factors setting starting pay rates not shown to be job-related
."; and relief directing Sterling "to create a process for identifying and selecting candidates for promotion that afford employees full and fair notice of vacancies . ." Pl. Opp. Br. Exhibit 2 (Transcript of Arbitration Proceedings on Feb. 26, 2014), 223:6-224:13. These remedies would necessarily affect all class members by virtue of their membership in their class.
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criteria for making pay and promotions have been validated and to modify the criteria used in making those personnel decisions." Pl. Opp. Br. at 12-13. These remedies are plainly types of relief that "must perforce affect the entire class at once." Wal-Mart, 131 S. Ct. at 2558.
Plaintiffs attempt to draw a distinction between the types of equitable relief that would be pursued by class members, on the one hand, and individuals who opt out, on the other. See Pl. Br. at 1213. Plaintiffs argue that while the class would seek to validate and modify criteria used in making pay and promotion decisions, "individuals who opt out would be eligible to seek a promotion they would have received in the absence of discrimination or an adjustment to their pay rate to eliminate a disparity with a similarly-situated male that cannot be justified." Id. At oral argument on the instant motion, plaintiffs suggested that "the remainder of the class can seek the broad injunctive relief, but those who remain in the class would not be eligible to seek the kind of individualized injunctive relief that those who opt out could." Transcript of Proceedings dated May 4, 2015 at 11:18-21. Plaintiffs fail to explain, however, how individuals who opt out would not be bound by the "broad injunctive relief" sought by "the remainder of the class." If the Arbitrator decides that Sterling must change its criteria for making promotion decisions, for example, it is unclear how some Sterling employees would not be subject to such a determination - even if certain employees who opt out are also able to pursue individualized equitable remedies.
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Plaintiffs' briefing does suggest that courts have certified
both (1) a Rule 23(b) (2) class for the purposes of pursuing classwide
declaratory and injunctive relief and (2) a Rule 23(b) (3) class for
the pursuit of individualized equitable and monetary relief. See
Notice of Supplemental Authority in Support of Plaintiff's Opposition
to Sterling's Motion to Vacate, Dkt. 143, enclosing Chi. Teachers
Union, Local No. 1, Am. Fed'n of Teachers, AFL-CIO v. Bd. of Educ. of
the City of Chicago, 14-2843, slip op. at 27 (7th Cir. Aug. 7, 2015);
see also, e.g., Easterling v. Conn. Dep't of Correction, 278 F.R.D.
41, 51 (D. Conn. 2011). However, plaintiffs cite no cases in which a
court permitted individuals to opt out of a class certified to seek
injunctive or declaratory relief that would necessarily affect the
class as a whole. Changes to Sterling's criteria for making pay and
promotion decisions, among other forms of relief that plaintiffs
seek, would do precisely that. Therefore, in finding that some
Sterling employees could opt out of a class certified to seek class-
wide injunctive or declaratory relief, the Arbitrator failed to
present a "barely colorable justification for the outcome reached."
ReliaStar, 564 F.3d at 86. 6
6 Further, AAA Supplementary Rule 5(c) indicates that "[t]he Class Determination Award shall state when and how members of the class may be excluded from the class arbitration. If an arbitrator concludes that some exceptional circumstance, such as the need to resolve claims seeking injunctive relief . . makes it inappropriate to allow class members to request exclusion, the Class Determination Award shall explain the reasons for that conclusion." AAA Supplemental Rules for Class Arbitrations 5(c) This statement suggests that the AAA Supplementary Rules themselves contemplate a potential conflict between class-wide injunctive relief and opt-outs, although it does not provide conclusive proof and is not the provision upon which the Court's
-11-

The Court additionally notes that the Arbitrator's decision to certify an opt-out class for classwide injunctive relief was made in "manifest disregard of law." Jock, 646 F.3d at 121. In order to find that an arbitrator has acted in manifest disregard of the law, first, "the governing law alleged to have been ignored by the arbitrators" must have been "well defined, explicit, and clearly applicable," and second, "[t]he arbitrator must appreciate[] the existence of a clearly governing legal principle but decide[Jto ignore or pay no attention to it." Westerbeke Corp. v. Daihatsu Motor Co., Ltd., 304 F.3d 200, 209 (2d Cir. 2002) (alterations in the original; internal quotation marks omitted) .
Here, the governing law that the Arbitrator chose to disregard the principle that opt-out classes may not be certified for the purposes of seeking classwide injunctive relief - was clearly mandated by the United States Supreme Court in Wal-Mart v. Dukes. As to the Arbitrator's appreciation of this principle, the Arbitrator cited Wal-Mart at length and drew significantly on Wal-Mart's similarities and distinctions from the instant case in making her class determination decision. See, e.g., Class Determination Award at 86-93. Given the Arbitrator's extensive familiarity with Wal-Mart, the Court declines to find that the Arbitrator somehow remained unaware of its statement that Rule 23(b) (2) classes do not permit opt-outs or of the reasoning that with Rule 23(b) (2) classes, "the relief sought must perforce affect the entire class at once" -
decision to vacate the arbitration award relies.
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reasoning that applies to any attempted certification of an opt-out class seeking classwide injunctive relief. Therefore, though the Court's ruling is sustained by the absence of a "barely colorable justification" for the Arbitrator's ruling, the Court also finds that the Arbitrator acted in "manifest disregard of law."
To conclude, the Court is not unmindful of the high standard for vacating an arbitration award. But deference to arbitrators is not without its limits; and the Court declines to hold that a ruling lacking "barely colorable justification" in black-letter law or common sense must be upheld purely because it issued from an arbitrator's pen. The Court therefore grants Sterling's motion to vacate the Arbitrator's class determination award to the extent that it permits individuals to opt out of a class certified for the purposes of seeking classwide injunctive and declaratory relief. In all other respects, the award is confirmed.
The Clerk of Court is directed to close docket number 136.
SO ORDERED. Dated: New York, NY
November .!2, 2015
JED S. RAKOFF, U.S.D.J.
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 BEFORE THE AMERICAN ARBITRATION ASSOCIATION EMPLOYMENT AND CLASS ACTION TRIBUNAL

LARYSSA JOCK, CHRISTY MEIERDIERCKS, MARIA HOUSE, DENISE MADDOX, LISA McCONNELL, GLORIA PAGAN, JUDY REED, LINDA RHODES, NINA SHAHMIRZADI, LEIGHLA MURPHY, DAWN SOUTOCOONS, and MARIE WOLF, individually and on behalf of all others similarly situated,

AAA CASE NO . 11 20 0800 0655

Claimants, -against-

Arbitrator: Kathleen A. Roberts

STERLING JEWELERS INC.,

Respondent.

EQUAL PAY ACT COLLECTIVE ACTION CONDITIONAL CERTIFICATION AWARD I, THE UNDERSIGNED ARBITRATOR, having been designated in accordance with the
arbitration agreements entered into between the above-named parties, and having been duly sworn, do hereby find as follows:
Presently before the Arbitrator is Claimants' Motion for Conditional Certification of Claimants' Equal Pay Act Claims and Authorization ofNotice (Claimants' Motion).
Claimants allege that Respondent has systematically paid female employees less than their male counterparts who perfonned the same duties. The evidence with respect to Claimants' Equal Pay Act (EPA) claims is set forth in detail in the Class Determination Award, dated February 2, 2015, certifying a Title VII class of pay and promotion claims under Claimants' disparate impact theory, but denying certification of Claimants ' disparate treatment claims. This Conditional Certification Award assumes familiarity with the Class Determination Award, which is hereby incorporated by reference.

The Equal Pay Act (EPA) provides that: No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the perfonnance of which requires equal skill, effort, and responsibility. 1
The EPA pennits representative Claimants to bring claims on behalf of simi larly-situated employees using the enforcement provisions ofthe Fair Labor Standards Act (FLSA), 29 U.S.C. 216(b). The Second Circuit has approved a two-stage approach commonly followed by district courts in FLSA collective actions. Myer v. Hertz Corp., 624 F.3d 537, 555 (2d Cir. 201 0). In the first stage, the court makes a preliminary detennination of whether to send notice to potential plaintiffs who may be similarly situated to the named plaintiffs with respect to whether a FLSA violation has occurred. The notice advises potential plaintiffs of the pendency of the action and of their opportunity to opt-in as represented plaintiffs. The court may send this notice after the named plaintiffs make a "modest factual showing" that they and potential opt-in plaintiffs "together were victims of a common policy or plan that violated the law." This "Stage I" detennination is known as "conditional certification." Plaintiffs cannot meet their Stage I burden by "unsupported assertions," but may satisfy the similarly-situated requirement by relying on their pleadings and affidavits or the affidavits of other potential class members. The required showing is considered a "low standard of proof' because the purpose of this first stage is merely to determine whether "similarly situated" plaintiffs do in fact exist. At the second stage, the court, on a fuller record, applies a "heightened" standard to determine whether a so-called "collective action" may go forward by detennining whether the plaintiffs who have opted in are
1 29 U.S.C. Sec. 206(d). 2

in fact "similarly situated" to the named plaintiffs. The action may be "de-certified" if the record reveals that they are not, and the opt-in plaintiffs' claims may be dismissed without prejudice. Id.
Based upon the evidence set forth in the Class Detennination Award, I find that Claimants' have more that satisfied the similarly-situated requirements for Stage I conditional certification and notice. See Claimants' Motion at 14-17. As Claimants point out, the arguments and evidence that supported certification of their disparate impact pay claim apply even more strongly to the certification of EPA claims. See Claimants' Reply in Support ofMotion for Conditional Certification of Claimants' Equal Pay Act Claims and Authorization of Notice (Claimants' Reply) at 2-8.
Respondent further argues that Claimants' Motion should be denied because their EPA claim would not be manageable as a collective action, particularly because the EPA expressly limits its application to wages within a single "establishment," and Claimants' seek certification of a collective action encompassing numerous establishments. Sterling Jewelers Inc.'s Opposition to Claimants' Motion for Conditional Certification of Claimants' Equal Pay Act Claims and Authorization ofNotice (Respondent's Opposition) at 27-39. This argument is rejected for substantially the reasons set forth in Claimants' Motion at 18-22, and Claimants' Reply at 10-13.2
2 Respondent also argues that because there has been extensive class certification discovery, the heightened Stage II standard should be applied at this time. Respondent's Opposition at 13-16. This argument is rejected for substantially the reasons set forth in Claimants' Motion at 13, and Claimants' Reply at 8-9. Most importantly, the issue of manageability may be substantially affected by the number of opt-in claimants, their work locations, and their dates of employment.
3

CONCLUSION The Arbitrator hereby conditionally certifies this case as a collective action for purposes of Claimants' EPA claims, and tolls the statute oflimitations from October I 6, 2003,3 to ninety days after notice is issued to putative class members.
NOTICE Respondent is directed to provide Class Counsel with the names, last known address, and Social Security numbers of putative class members so that Class Counsel may provide notice to proposed class members of the EPA collective action and its opt-in requirements. Notice in substantially the form annexed as Exhibit 1 to this Award shall be mailed to putative EPA collective action members within 20 days of receipt of mailing data from Respondent. The Arbitrator further approves the mailing of a reminder post card 45 days after the initial mailing and the construction of a website to facilitate notice.
SO ORDERED.
Kathleen A. Roberts Arbitrator February 29, 2016
3 The selection of this date is explained in the Order Re Claimants' Motion for Tolling of EPA Limitations Period issued contemporaneously with this Award on February 29, 2016.
4

BEFORE THE AMERICAN ARBITRATION ASSOCIATION EMPLOYMENT AND CLASS ACTION TRIBUNAL
INSERT CAPTION

IMPORTANT NOTICE AUTHORIZED BY THE ARBITRATOR

TO:

ALL CURRENT AND FORMER FEMALE EMPLOYEES WHO HAVE

WORKED IN STERLING JEWELERS INC.'S RETAIL STORES AS SALES

ASSOCIATES, DEPARTMENT MANAGERS, ASSISTANT MANAGERS, OR

STORE MANAGERS SINCE OCTOBER 16, 2003.

SUBJECT: NOTICE OF COLLECTIVE ACTION DETERMINATION FOR CLAIMS UNDER THE EQUAL PAY ACT AND YOUR RIGHTS CONCERNING THE ARBITRATION

1. INTRODUCTION

This Notice is being sent to you by Order of the Arbitrator in the case ofJock et al. v. Sterling Jewelers Inc. This Notice informs you of the existence of the arbitration alleging Sterling Jewelers Inc. ("Sterling") discriminated against women who worked in its retail stores as sales associates, department managers, assistant managers, or store managers in matters related to pay and promotion. This Notice will provide you objective, neutral information about the arbitration and the Arbitrator' s decision to allow women with claims under the Equal Pay Act ("EPA") to pursue their claims together in what is known as a Collective Action. This Notice also infonns you how to pursue a claim under the Equal Pay Act in the Collective Action.

If you wish to participate in the Equal Pay Act Collective Action, you must sign and return a Consent to Join Form, which is attached to this Notice.

YOUR LEGAL RIGHTS AND OPTIONS TO PURSUE A CLAIM IN THE EPA COLLECTIVE ACTION

EXHIBIT 1

SUBMIT A CONSENT TO JOIN
FORM TO PARTICIPATE IN THE EQUAL PAY ACT COLLECTIVE
ACTION

To participate in the Equal Pay Act Collective Action, you must complete and send the attached CONSENT TO JOIN FORM to Class Counsel.
YOU MAY EITHER:
(1) Submit the form by mail, email, or fax at the addresses provided below. It must be sent or postmarked no later than INSERT DATE,
OR
(2) You may submit the CONSENT TO JOIN FORM electronically by going to
www.sterlingclassactionarbitration.com. It must be submitted no later than INSERT DATE.

DO NOTHING

If you do nothing, you may not participate in the Collective Action in this case. You may bring your own individual Equal Pay Act claim separately from this action.

2. WHAT IS THE ARBITRATION ABOUT?
Laryssa Jock, Christy Meierdiercks, Maria House, Denise Maddox, Lisa McConnell, Gloria Huff (Pagan), Judy Reed, Linda Rhodes, Nina Shahmirzadi, Leighla Murphy (Smith), Dawn SoutoCoons, and Marie Wolf ("Claimants"), who are current and former female employees of Sterling, have alleged they were paid less than similarly-situated male employees and were denied promotional opportunities because of their gender. On March 24, 2008, this case was filed in arbitration before the American Arbitration Association, a private agency that manages arbitrations, rather than in court, because Sterling's RESOLVE Program requires that employees bring these claims in arbitration.
Claimants on behalf of themselves and other current and former female employees of Sterling sued Sterling under federal civil rights laws alleging that Sterling paid them less than male employees performing the same work and denied them opportunities for promotion because of their gender. Specifically, Claimants brought this arbitration under Title VII of the Civil Rights Act of 1964 and the Equal Pay Act.

2
EXHIBIT 1

Sterling denies that it has discriminated against Claimants or any other current or former female employee. Sterling alleges that all of the pay and promotion decisions that it has made with regard to its female employees have been for non-discriminatory reasons.

This Notice only relates to the claims brought under the Equal Pay Act. You will receive another notice about your rights under Title VII of the Civil Rights Act of 1964.

On February 29, 2016, the Arbitrator ruled that current and fonner female employees of Sterling may pursue together their claims under the Equal Pay Act claiming that Sterling paid them less than males performing the same work in the same establishment ("EPA Claim").

This ruling does not mean that the Arbitrator has determined whether Sterling has violated the Equal Pay Act. If Claimants are successful, the Arbitrator may award back wages and additional damages to those women who pursue their claims in this Collective Action.

The time period within which you can claim back wages for being paid less than similarly-situated men is from October 16,2003, until the first day of the trial of these claims.

IF YOU WISH TO PURSUE A CLAIM UNDER THE EQUAL PAY ACT IN THIS COLLECTIVE ACTION, YOU MUST FOLLOW THE DIRECTIONS PROVIDED IN SECTION 4 BELOW.

3. WHY DID I RECEIVE THIS NOTICE?
You received this Notice because you have been identified by Sterling as a female employee who worked for Sterling in its retail stores as a sales associate, a department manager, an assistant manager, or a store manager at any time between October 16, 2003, and the present.

4. WHAT DO I NEED TO DO TO JOIN THE EQUAL PAY ACT COLLECTIVE ACTION?

If you want to pursue an EPA Claim in this Collective Action, you must sign and return a Consent to Join Form no late than INSERT DATE. There are several ways in which you can do this.

First, you can sign the attached Consent to Join Form and return it in the enclosed postage prepaid,

preaddressed envelope. Or you may sign and fax the Consent to Join Form to

, or email a

scanned copy of the Consent to Join Form to _ _ _ _ __

Second, you may go to the website www.sterlingclassactionarbitration.com and submit the Consent to Join Fonn electronically by following the instructions on the website.

You must submit the signed Consent to Join Form no later than INSERT DATE.

3
EXHIBIT 1

If you have any questions or want to confinn your Consent to Join Form was received, you may call (800) xxx-xxxx.

If you submit a Consent to Join Fonn, you will be bound by any rulings and judgments issued by the Arbitrator and by the terms of any agreement to settle the claims covered by the Collective Action.
If your Consent to Join Form is received late, you will be ineligible to participate in this Collective Action and cannot receive any back wages or other remedies that members of the Collective Action may receive.
5. DO I NEED TO DO ANYTHING TO EXCLUDE MYSELF FROM THE EQUAL PAY ACT COLLECTIVE ACTION?

If you do not want to participate in this Collective Action, you do not need to do anything. If you do not submit a Consent to Join Fonn, you will not be participating in this Collective Action.
6. WHAT COMES NEXT?

The Arbitrator will schedule a trial to be held on the EPA Claim and Title VII Claim. 7. WHO ARE THE ATTORNEYS AND HOW WILL THEY BE PAID?

The Arbitrator has appointed the lawyers who have been representing the Claimants to serve as Class Counsel. If you choose to participate in the Collective Action and submitted a Consent to Join Form by INSERT DATE, Class Counsel will represent you and your interests in your EPA Claim. If you wish to retain a different lawyer, you may do so.

Class Counsel:

Joseph M. Sellers Kalpana Kotagal Shaylyn Cochran Cohen Milstein Sellers & Toll, PLLC 1100 New York Avenue, N.W. West Tower, Suite 500 Washington, D.C. 20005 Telephone: (202) 408-4600 Facsimile: (202) 408-4699

Sam J. Smith Loren B. Donnell Burr & Smith, LLP Ill 2nd Ave. N.E., Suite 1100 St. Petersburg, FL 33701 Telephone: (813) 253-2010 Facsimile: (727) 823-2126

Thomas A. Warren Thomas A. Warren Law Offices, PL 2032-D Thomasville Road Tallahassee, FL 32308 Telephone: (866) 854-5152 (toll free) Facsimile: (850) 385-6008

Barry Goldstein, Esq. 300 Lakeside Drive, Suite 1000 Oakland, CA 94612 Phone: (51 0) 763-9800 Facsimile: (51 0) 835-1417

4
EXHIBIT 1

Class Counsel may be entitled to receive the payment of attorneys' fees and costs in this arbitration ifthere is a recovery or judgment in Claimants' or the Class' favor, including through settlement. Any payment of attorneys' fees to Class Counsel must be approved by the Arbitrator. Ifthere is no recovery or judgment in Claimants' favor, Class Counsel will not receive any attorneys' fees, and you will not be responsible for paying any attorneys' fees.
8. CAN I BE FIRED OR PUNISHED BY STERLING BECAUSE I PARTICIPATE IN THIS ARBITRATION?
It is illegal for Sterling to retaliate against any person who participates in, or assists in the prosecution of, this arbitration. Sterling may not fire, demote, harass or otherwise adversely alter your conditions of employment for participating, or assisting, in this arbitration. The Arbitrator will not tolerate retaliation.
9. WHAT ABOUT THE THINGS I HEAR AT WORK?
Sterling has issued communications to its employees, including class members, about the arbitration which give Sterling's point of view and are not the view of Class Counsel. If you have questions about items in Sterling's communications or about the arbitration, you should call Class Counsel, listed in Section 7, in order to get the Class Counsel 's position on those items.
10. ARE THERE MORE DETAILS AVAILABLE?
If you have additional questions about your rights, please contact Class Counsel, as listed in Section 7, or any attorney of your choice. If you submit a timely Consent to Join Form, you will have a right as a class member to attend the hearings held in the Arbitration. You may also review the Arbitrator's ruling permitting you and other women to pursue your Equal Pay Act claims together in a Collective Action by going to the AAA Class Arbitration Docket at www.adr.org.
11. THE ROLE OF THE ARBITRATOR
The contents of this Notice have been reviewed and authorized by Arbitrator Kathleen Roberts. The Arbitrator has not yet determined whether the Claimants can prove their claims. Please do not contact Arbitrator Roberts or other personnel with the American Arbitration Association. The Arbitrator must remain neutral and cannot make any comment about your rights other than as set forth in this Notice.

Dated:

Kathleen A. Roberts

5
EXHIBIT 1

 
 CasCe a1s:0e81-c5v-3-0924877, 5D-oJScuRmeDnot c8u0m, 0e7n/t2146/2101F7i,le2d080472/2045/,1P7agPea1goef15of 5

15-3947-cv Jock et al. v. Sterling Jewelers

N.Y.S.D. Case # 08-cv-2875(JSR)

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 24th day of July, two thousand seventeen.

Present: PETER W. HALL, DEBRA ANN LIVINGSTON, Circuit Judges, NICHOLAS G. GARAUFIS, District Judge.*
_____________________________________

USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #: _________________ DATE FILED: _Ju_l_y_2_4_,_2_0_1_7____

LARYSSA JOCK, JACQUELYN BOYLE, CHRISTY CHADWICK, LISA FOLLETT, MARIA HOUSE, DENISE MADDOX, LISA MCCONNELL, GLORIA PAGAN, JUDY REED, LINDA RHODES, KHRISTINA RODRIGUEZ, NINA SHAHMIRZADI, LEIGHLA SMITH, MARIE WOLF, KELLY CONTRERAS, DAWN SOUTO-COONS,

Plaintiffs-Counter-Defendants-Appellees,

v.

15-3947

STERLING JEWELERS, Inc.,

Defendant-Counter-Claimant-Appellant. _____________________________________

* Judge Nicholas G. Garaufis, of the United States District Court for the Eastern District of New York, sitting by designation.
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For Defendant-Counter-ClaimantAppellant:

GERALD L. MAATMAN JR. (David Bennet Rosse Lorie E. Almon, Daniel B. Klein, Seyfarth Shaw LLP, New York, NY; Jeffrey S. Klein, Weil, Gotshal & Manges LLP, New York, NY, on the brief), Seyfarth Shaw LLP, New York, NY.

For Plaintiffs-Counter-DefendantsAppellees:

JOSEPH M. SELLERS (Kaplana Kotagal, Shaylyn Cochran, Cohen Milstein Sellers & Toll, PLLC, Washington, D.C.; Sam J. Smith, Loren B. Donnell, Burr & Smith LLP, St. Petersburg, FL; Thomas A. Warren, Thomas A. Warren Law Offices, P.L., Tallahassee, FL, on the brief), Cohen Milstein Sellers & Toll, PLLC, Washington, D.C.

Appeal from a judgment of the United States District Court for the Southern District of

New York (Rakoff, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is VACATED, and that the case is

REMANDED for further proceedings.

Defendant-Counter-Claimant-Appellant Sterling Jewelers Inc. (“Sterling”) appeals the

order of the district court confirming in part the arbitrator’s class certification award. “We

review a district court’s decision to confirm an arbitration award de novo to the extent it turns on

legal questions, and we review any findings of fact for clear error.” Duferco Int’l Steel Trading

v. T. Klaveness Shipping A/S, 333 F.3d 383, 388 (2d Cir. 2003) (quoting Westerbeke Corp. v.

Daihatsu Motor Co., 304 F.3d 200, 208 (2d Cir. 2002)). As is relevant here, we may vacate an

arbitration award “where the arbitrator[] exceeded [her] powers, or so imperfectly executed them

that a mutual, final, and definite award upon the subject matter submitted was not made.” 9

U.S.C. § 10(a)(4). Our focus in such cases is on “whether the arbitrator[] had the power, based

on the parties’ submission or the arbitration agreement, to reach a certain issue, not whether the

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arbitrators correctly decided that issue.” DiRussa v. Dean Witter Reynolds, Inc., 121 F.3d 818, 824 (2d Cir. 1997). We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
The narrow question presented here is whether the arbitrator had the authority to certify a class that included absent class members, i.e., employees other than the named plaintiffs and those who have opted into the class. As the district court explained, it is law of the case that “the issue of whether the agreement permitted class arbitration was squarely presented to the arbitrator.” Jock v. Sterling Jewelers Inc., 646 F.3d 113, 124 (2d Cir. 2011) (“Jock I”). Our decision in Jock I, however, did not squarely address whether the arbitrator had the power to bind absent class members to class arbitration given that they, unlike the parties here, never consented to the arbitrator determining whether class arbitration was permissible under the agreement in first place. See Oxford Health Plans LLC v. Sutter, 133 S. Ct. 2064, 2066 (2013) (“Class arbitration is a matter of consent: An arbitrator may employ class procedures only if the parties have authorized them.”); accord Stolt-Nielsen S.A. v. Animal Feeds Int’l Corp., 559 U.S. 662, 681–82 (2010); cf. Oxford, 133 S. Ct. at 2068 n.2 (indicating that the availability of class arbitration may be a “question of arbitrability” that is “presumptively for courts to decide”); Nationwide Mut. Ins. Co. v. Home Ins. Co., 330 F.3d 843, 846 (6th Cir. 2003) (“An arbitration panel may not determine the rights or obligations of non-parties to the arbitration.”). The district court accordingly erred in finding that law of the case conclusively resolved this question. See Jock v. Sterling Jewelers, Inc., 143 F. Supp. 3d 127, 129 (S.D.N.Y. 2015).
The Supreme Court’s decision in Oxford Health Plans does not suggest otherwise. In that case, the Court wrestled solely with the question of whether an arbitrator to whom the parties had submitted the issue acted within his authority in finding that a contract provided for
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class arbitration. See 133 S. Ct. at 2066. This issue is analogous to that addressed by this Court in Jock I. Oxford Health Plans does not speak, however, to whether an arbitrator in that scenario also has the authority to certify a class containing absent class members.
The district court suggested that Justice Alito’s concurrence in Oxford Health Plans (joined by Justice Thomas) provides additional support for its conclusion here, which is based principally (but erroneously) on law of the case. See Jock, 143 F. Supp. 3d at 129 n.2. Justice Alito did indeed join the majority opinion in Oxford Health Plans, despite his doubt as to whether absent class members would—or should—ultimately be bound by the results of arbitration. See id. at 2071–72 (Alito, J., concurring). Again, however, he joined an opinion addressing only whether, given Oxford Health Plans’ concession that it had consented to the arbitrator deciding whether the parties’ agreement authorized class arbitration, “the availability of class arbitration [was] a question the arbitrator should decide.” Id. at 2072. In doing so, moreover, he indicated that “it is difficult to see how an arbitrator’s decision to conduct class proceedings could bind absent class members who have not authorized the arbitrator to decide on a classwide basis which arbitration procedures are to be used.” Id. (emphasis added). Thus, Justice Alito did not directly address the issue that is pertinent here: whether an arbitrator, who may decide the question whether an arbitration agreement provides for class procedures because the parties “squarely presented” it for decision, may thereafter purport to bind non-parties to class procedures on this basis.
We therefore vacate and remand for further consideration of whether the arbitrator exceeded her authority in certifying a class that contained absent class members who have not opted in.
* * *
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FOR THE COURT: Catherine O’Hagan Wolfe, Clerk
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 Case 1:08-cv-02875-JSR Document 168 Filed 01/16/18 Page 1 of 10

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------x
LARYSSA JOCK, et al.,

Plaintiffs,
-v-

08 Civ. 2875 OPINION AND ORDER

STERLING JEWELERS INC.,

Defendant.
-------------------------------------x

JED S. RAKOFF, U.S.D.J.

Plaintiffs, current and former female employees of defendant

Sterling Jewelers Inc. ("Sterling"), filed this putative class

action on March 18, 2008 alleging that Sterling discriminated

agai~st them in pay and promotion on the basis of their gender.

See Complaint, Dkt. 1. Subsequently, plaintiffs moved to compel

arbitration pursuant to a dispute resolution agreement (the

"RESOLVE agreement"), see Dkt. 25, which motion this Court granted

by Order dated June 18, 2008, see Dkt. 52. There followed extensive

proceedings before the Arbitrator, this Court, and the Second

Circuit Court of Appeals, some of which are briefly summarized

below and more specific familiarity with which is here presumed.

Now before the Court is Sterling's motion to vacate a Class

Determination Award issued by the Arbitrator certifying, for

plaintiffs' Title VII disparate impact claims for declaratory and

inJunctive relief, a class that, Sterling estimates, includes over

70,000 "absent" class members, ~, Sterling employees other than

/

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the named plaintiffs and several hundred individuals who have affirmatively opted in to the class proceedings before the Arbitrator. See Dkts. 137-1-3. According to Sterling, even though the Arbitrator is planning to permit members of the certified class to opt out, the Arbitrator exceeded her authority by purporting to bind this larger group in any way as they never submitted to her authority or presented to her the question of whether the RESOLVE agreement permits class action arbitration. See Defendant's Memorandum of Law in Support of its Renewed Motion to Vacate the Arbitrator's Class Certification Award ("Def. Mem.") at 5-7, Dkt. 163. Plaintiffs oppose Sterling's motion, arguing that the Court must defer to the Arbitrator's interpretation of the agreement and her decision to certify this larger class. See Opposition to Defendant's Renewed Motion to Vacate the Arbitrator's Class Certification Award ("Pl. Mem.") at 8-9, Dkt. 165.
As mentioned, this is but the latest chapter in a rather convoluted litigation. Briefly, in 2009, the Arbitrator determined that the RESOLVE agreement permitted class arbitration. Sterling moved to vacate that determination, and by bottom-line Order dated August 31, 2009, the Court initially denied Sterling's motion. See Dkt. 64; Opinion and Order dated December 28, 2009, Dkt. 66. Sterling timely appealed. See Dkt. 68. However, while Sterling's appeal was pending, the Supreme Court issued an opinion in StoltNielsen S.A. v. AnimalFeeds Int' l Corp., which reversed the Second
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Circuit's reversal of the undersigned's decision holding that a class action proceeding is not available in arbitration unless the contracting parties so provide, Stolt-Nielsen SA v. Animalfeeds Int'l Corp., 435 F. Supp. 2d 382, 384 (S.D.N.Y. 2006), rev'd, 548 F.3d 85 (2d Cir. 2008), rev'd and remanded sub nom., 559 U.S. 662 (2010) Thereafter, Sterling moved pursuant to Federal Rules of Civil Procedure 62. 1 and 60 (b) for re 1i ef from the December 2 8, 2009 Opinion and Order (which had relied, inter alia, on the now reversed Second Circuit decision in Stolt-Nielsen), and the Second Circuit remanded the case to permit this Court to address Sterling's motion.
On August 6, 2010, this Court reversed its earlier decision and granted Sterling's motion to vacate, see Order dated August 6, 2010, Dkt. 87, finding in relevant part that plaintiffs had "fail [ed] to identify any concrete basis in the record for the arbitrator to conclude that the parties manifested an intent to arbitrate class claims." Memorandum Order dated July 27, 2010 at 10, Dkt. 85. Plaintiffs timely appealed, see Dkt. 88, and a divided panel of the Second Circuit reversed, with the majority finding that (1) the parties had squarely presented the question of whether the RESOLVE agreement allowed for class arbitration to the arbitrator and (2) "whether the arbitrator was right or wrong in her analysis, she had the authority to make the decision, and the
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parties to the arbitration are bound by it." Jock v. Ster ling Jewelers Inc., 646 F.3d 113, 124-127 (2d Cir. 2011) ("Jock I").
Several years later, on February 2, 2015, the Arbitrator issued a Class Determination Award, certifying, inter alia, an approximately 70,000-person class for plaintiffs' Title VII disparate impact claims. See Dkts. 137-1-3. On March 3, Sterling moved to vacate that Award, arguing that the Arbitrator exceeded her authority by purporting to bind employees other than the named plaintiffs and those who had affirmatively opted into the proceedings before the Arbitrator. See Dkts. 135, 136. On November 15, 2015, the Court denied Sterling's motion, finding that vacatur was "foreclosed by earlier rulings in this case." Opinion and Order at 4, Dkt. 144. Specifically, given Jock I, which affirmed the Arbitrator's prerogative to decide whether the RESOLVE agreement permitted class action procedures, the Court reasoned that there is "no basis for vacating the C1ass Determination Award on the ground that the Arbitrator has now exceeded her authority in purporting to bind absent class members." Id.
Sterling, once again, appealed. See Dkt. 145. On July 24, 2017, the Second Circuit vacated the November 2015 Opinion and Order, holding that the "decision in Jock I . . did not squarely address whether the arbitrator had the power to bind absent class members to class arbitration given that they [the absent class members] , unlike the parties here, never consented to the
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arbitrator determining whether class arbitration was permissible

under the agreement in [the] first place." Jock v. Sterling

Jewelers, Inc., 703 F. App'x 15, 17 (2d Cir. 2017) ("Joe~")

(emphasis added) The panel further instructed the parties and

this Court that the issue "pertinent" on remand is: "whether an

arbitrator, who may decide .

whether an arbitration agreement

provides for class procedures because the parties 'squarely

presented' it for decision, may thereafter purport to bind non-

parties to class procedures on this basis." Id. at 18.

For the reasons set forth below, the Court finds that the

Arbitrator may not so bind non-parties to class action procedures

where, as here, the Court has determined that the arbitration

agreement does not, in fact, permit class action procedures.

DISCUSSION The Federal Arbitration Act provides that a district court may vacate an arbitration award where the arbitrator has exceeded her powers. See 9 U.S.C. § lO(a). The Court's "inquiry under§ 1O(a) (4) thus focuses on whether the arbitrator [] had the power, based on the parties' submissions or the arbitration agreement, to reach a certain issue, not whether the arbitrator [] correct 1y decided that issue." Westerbeke Corp. v. Daihatsu Motor Co., Ltd., 304 F. 3d 200, 220 (2d Cir. 2002) (internal quotation omitted).

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Plainly it is the law of the case that the Arbitrator does
not have the authority, based on the agreement, to certify a
70,000-person class. The Court considered the question of whether
the RESOLVE agreement authorizes class procedures in 2010 and
decided that it does not. 1 See Memorandum Order dated July 27,
2010, Dkt. 85. Thus, those individuals who did not affirmatively
opt in to the class proceeding here did not agree to permit class
procedures by virtue of having signed RESOLVE agreements.2
1 The RESOLVE agreements authorize arbitration to be conducted by the American Arbitration Association ("AAA") in accordance with AAA rules, as amended or modified by certain RESOLVE-specific provisions, including the requirement that the arbitration agreement be construed according to Ohio law. See Clause Construction Award, Ex. F. to Sterling Memorandum of Law in Support of Motion to Vacate, Dkt. 58. Nowhere do the RESOLVE agreements mention class procedures. The Arbitrator, however, decided that class procedures were nonetheless available as ( 1) the RESOLVE agreements did not prohibit class arbitration; (2) under Ohio law the RESOLVE agreements were contracts of adhesion; and in a contract of adhesion, (3) unless the drafter expressly prohibits class arbitration, plaintiffs may avail themselves of that procedural right. See id. at 4-5. But an Ohio intermediate appellate court construing the very same agreements expressly found that they were not adhesive or unconscionable. See W.K. v. Farrell, 167 Ohio App. 3d 14, 26-27 (2006) (rejecting Sterling employee's claim that the RESOLVE agreement was adhesive or unconscionable). Moreover, the AAA Supplementary Rules for Class Arbitrations, which the Arbitrator applied here, are not, by their own terms, to be automatically incorporated. See Reed Elsevier, Inc. v. Crockett, 734 F.3d 594, 599-600 (6th Cir. 2013).
2 Note that, for the reasons stated below, the Court need not reach the question of whether, had the RESOLVE agreement, in fact, permitted class procedures, the Arbitrator would have had the authority to bind absent class members based on the fact that each absent class member agreed to such procedures by virtue of having signed the agreement.
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Thus, the remaining question here is whether the Arbitrator had the authority to certify a 70,000-person class because the named plaintiffs and the defendant submitted the question of whether the RESOLVE agreement allowed for class procedures to the Arbitrator.
Whether a party has agreed to submit a dispute to an arbitrator is "typically an 'issue for judicial determination.'" Granite Rock Co. v. Int'l Bhd. of Teamsters, 561 U.S. 287, 296 (2010) (quoting Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002)). Plaintiffs here see no difference between the Arb~trator's authority to decide that the named plaintiffs' RESOLVE agreements permitted class procedures, brought by these plaintiffs on behalf of themselves and all others who opted into the class, and the Arbitrator's authority to decide that the absent class members' RESOLVE agreements permitted class procedures that would bind these individuals unless they opted out. According to plaintiffs, the named and absent class members "have all executed the same arbitration agreement which the Arbitrator interpreted to permit the aggregate litigation . . as long as the due process requirements of Rule 23, tracked in AAA Supplementary Rule 4, are satisfied." Pl. Mem. at 9.
Given the seeming tension between Jock I and Jock II, plaintiffs' position has some force. But plaintiffs overlook the fact that, unlike the named plaintiffs and defendants, these
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"absent members of the plaintiff class [who have not chosen to opt-in to the class] have not submitted themselves" to the Arbitrator's authority "1n any way." Oxford Health Plans LLC v. Sutter, 569 U.S. 564, 574 (2013) (Alito, J., concurring); contrast Jock I, 646 F.3d at 124 (holding that the Arbitrator had authority to decide "the issue of whether the agreement permitted class arbitration" because it "was squarely presented to the arbitrator" by the parties). Although absent class members may have signed contracts with arbitration clauses "materially identical to those signed by the pla1nt1ff who brought" suit, an "arbitrator's erroneous interpretation of contracts that do not authorize class arbitration cannot bind someone who has not authorized the arbitrator to make that determination." Id.
Moreover, were the Court to permit the Arbitrator to bind absent class members with an erroneous reading of the RESOLVE agreement, then her improper assertion of authority would open the door to collateral lawsuits by absent class members. That is because, given that the Arbitrator was wrong as a matter of law about whether the RESOLVE agreement permits opt-out classes, it is hard to see how courts could bind individuals who do not opt out, but who have not otherwise opted in, to her decisions. After all, arbitrators are not Judges. Nowhere in the Federal Arbitration Act does Congress confer upon these private citizens the power to bind i ndi vi duals and b'Jsinesses except in so far as the re 1evant
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individuals and businesses have bound themselves. See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943 (1995) (arbitration is "simply a matter of contract between the parties"); Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 479 (1989) (arbitration "is a matter of consent, not coercion") Nor could Congress delegate to arbitrators such authority, as Article III of the federal Constitution entrusts the judicial power to the Judicial branch.3
Therefore the Court finds that the Arbitrator here had no authority to decide whether the RESOLVE agreement permitted class action procedures for anyone other than the named parties who chose to present her with that question and those other individuals who chose to opt in to the proceeding before her. See Granite Rock, 561 U.S. at 299; see also Porzig v. Dresdner, Kleinwort, Benson, N. Am. LLC, 497 F.3d 133, 140-41 (2d Cir. 2007).
As the arbitrator exceeded her powers, see Porzig, 497 F.3d at 140 (an arbitrator exceeds her powers when she "goes beyond
3 Moreover, as Justices Alito and Thomas suggested in their concurring opinion in Oxford Health, the "distribution of opt-out notices does not cure this fundamental flaw in the class arbitration proceeding," because an "offeree's silence does not normally modify the terms of a contract." 569 U.S. at 574 (citing Restatement (Second) of Contracts § 69 (1) (1979)). "Accordingly, at least where absent class members have not been required to opt in, it is difficult to see how an arbitrator's decision to conduct class proceedings could bind absent class members who have not authorized the arbitrator to decide on a classwide basis which arbitration procedures are to be used." Id. at 574-75.
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[the] self-limiting agreement between consenting parties"), the Court grants Sterling's motion to vacate the February 2, 2015 Award in so far as that Award certifies a class that includes individuals who have not affirmatively opted in to the arbitral proceedings.
The Clerk is directed to close docket entry number 162.

SO ORDERED. Dated: New York, NY
January LJ.., 2018

J~~9tts.D. J.

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18‐153 Jock v. Sterling Jewelers Inc.
In the United States Court of Appeals
For the Second Circuit

N.Y.S.D. Case # 08-cv-2875(JSR)

August Term, 2017
Argued: May 7, 2018 Decided: November 18, 2019
Docket No. 18‐153‐cv

Nov 18 2019

LARYSSA JOCK, CHRISTY CHADWICK, MARIA HOUSE, DENISE MADDOX, LISA MCCONNELL, GLORIA PAGAN, JUDY REED, LINDA RHODES, NINA SHAHMIRZADI,
LEIGHLA SMITH, MARIE WOLF, DAWN SOUTO‐COONS,
Plaintiffs‐Counter‐Defendants ‐ Appellants,
JACQUELYN BOYLE, LISA FOLLETT, KHRISTINA RODRIGUEZ, KELLY CONTRERAS,
Plaintiffs‐Counter‐Defendants,
v.
STERLING JEWELERS INC.,
Defendant‐Counter‐Claimant ‐ Appellee.
Appeal from the United States District Court for the Southern District of New York No. 08‐cv‐2875, Rakoff, Judge.

CERTIFIED COPY ISSUED ON 11/18/2019

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Before:

HALL AND CARNEY, Circuit Judges, AND KOELTL, District Judge.*

The arbitrator certified a class of Sterling Jewelers Inc. employees that included employees who did not affirmatively opt in to the arbitration proceeding. The District Court held that the arbitrator exceeded her authority in purporting to bind those absent class members to class arbitration because the arbitrator erred in determining that the arbitration agreement permits class arbitration. We hold that the arbitrator was within her authority in purporting to bind the absent class members to class proceedings because, by signing the operative arbitration agreement, the absent class members, no less than the parties, bargained for the arbitrator’s construction of their agreement with respect to class arbitrability. We therefore reverse the judgment of the District Court. Because the issue of whether the arbitrator exceeded her authority in certifying an opt‐out, as opposed to a mandatory, class is not before us in this appeal, we remand the case to the District Court to reexamine that issue in the first instance.

REVERSED AND REMANDED.

JOSEPH M. SELLERS, Kalpana Kotagal, Shaylyn Cochran, Cohen Milstein Sellers & Toll PLLC, Washington, DC; Sam J. Smith, Loren B. Donnell, Burr & Smith LLP, St. Petersburgh, FL; Thomas A. Warren, Thomas A. Warren Law Offices, P.L., Tallahassee, FL; Jessica Ring Amunson, Benjamin M. Eidelson, Jenner & Block LLP, Washington, DC, for Plaintiffs‐Counter‐Defendants‐Appellants.

GERALD L. MAATMAN, JR., David Bennet Ross, Lorie E. Almon, Daniel B. Klein, Seyfarth Shaw LLP, New York, NY; Jeffrey S. Klein, Gregory Silbert, Weil, Gotshal & Manges LLP, New York, NY, for Defendant‐Counter‐Claimant‐Appellee.

* Judge John G. Koeltl of the United States District Court for the Southern District of New York, sitting by designation.
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HALL, Circuit Judge: This is an appeal from the District Court’s January 15, 2018 opinion and
order vacating the arbitrator’s certification of a class of Defendant‐Counter‐ Claimant‐Appellee’s employees insofar as the class included employees who did not affirmatively opt in to the specific arbitration proceeding before the arbitrator. The District Court held that the arbitrator, Kathleen A. Roberts, exceeded her authority in purporting to bind those absent class members to class arbitration because the arbitrator erred in determining that the arbitration agreement permits class arbitration. We hold that the arbitrator’s determination that the agreement permits class arbitration binds the absent class members because, by signing the RESOLVE Agreement, they, no less than the parties, bargained for the arbitrator’s construction of that agreement with respect to class arbitrability. We therefore reverse the judgment of the District Court. The issue of whether the arbitrator exceeded her authority in certifying an opt‐out, as opposed to a mandatory, class is not before us in this appeal, however. We therefore remand this case to the District Court to decide that issue in the first instance after allowing the parties an opportunity to present their renewed arguments with respect to that issue.
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I. Laryssa Jock (“Jock”) and her co‐Plaintiffs‐Counter‐Defendants‐Appellants (collectively, “Appellants”) are a group of current and former retail sales employees of Defendant‐Counter‐Claimant‐Appellee Sterling Jewelers Inc. (“Sterling”).1 Jock filed the instant suit in 2008, alleging that she and other female employees were paid less than their male counterparts, on account of their gender, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Equal Pay Act, 29 U.S.C. § 206(d). All Sterling employees were required, as a condition of employment, to sign a “RESOLVE Program” agreement (“RESOLVE Agreement”) mandating that they participate in arbitration. J. App. 129. Under the RESOLVE Agreement, employees “waiv[e] [their] right to obtain any legal or equitable relief . . . through any government agency or court, and . . . also waiv[e] [their] right to commence any court action. [They] may, however, seek and be awarded equal remedy through the RESOLVE Program.” Id. The RESOLVE Agreement also provides that “[t]he Arbitrator shall have the power to award any types of legal or equitable
1 The underlying facts are set forth in Jock v. Sterling Jewelers Inc., 646 F.3d 113 (2d Cir. 2011), and are briefly recited here only for orientation and as relevant to the instant appeal.
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relief that would be available in a court of competent jurisdiction[,]” and that any claim arising thereunder will be arbitrated “in accordance with the National Rules for the Resolution of Employment Disputes of the American Arbitration Association.” Id.
II. This is the fourth time this case has come before this Court. See Jock v. Sterling Jewelers Inc., 646 F.3d 113 (2d Cir. 2011) (“Jock I”); Jock v. Sterling Jewelers Inc., 703 F. App’x 15 (2d Cir. 2017) (summary order) (“Jock II”); Jock v. Sterling Jewelers Inc., 691 F. App’x 665 (2d Cir. 2017) (summary order) (“Jock III”). In Jock I, the arbitrator issued an award in favor of the then‐named plaintiffs, construing the RESOLVE Agreement to permit classwide arbitration. The District Court vacated that award, concluding that under Stolt‐Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662 (2010), “the arbitrator’s construction of the RESOLVE agreements as permitting class certification was in excess of her powers.” Jock I, 646 F.3d at 118 (quoting Jock v. Sterling Jewelers, Inc., 725 F. Supp. 2d 444, 448 (S.D.N.Y. 2010)). We reversed, holding that the District Court impermissibly substituted its own legal analysis for that of the arbitrator instead of focusing its inquiry on whether the arbitrator was permitted to reach the question of class
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arbitrability that had been submitted to her by the parties. Id. at 123–24. We explained, furthermore, that the arbitrator had a colorable justification under the law to reach the decision she did. We distinguished Stolt‐Nielsen on the ground that the parties in Stolt‐Nielsen stipulated that their arbitration agreement contained “no agreement” on the issue of class arbitration, whereas the plaintiffs in this case merely conceded that there was no explicit agreement to permit class arbitration, thus leaving open the possibility of an “implied agreement to permit arbitration.” Id. at 119, 124.
Following our decision in Jock I, the arbitrator issued a class certification determination that certified a class of approximately 44,000 women, comprising the then‐254 plaintiffs as well as other individuals who had neither submitted claims nor opted in to the arbitration proceeding (“the absent class members”). The arbitrator certified the class only with respect to Appellants’ Title VII disparate impact claims for declaratory and injunctive relief.2 The District Court denied
2 The arbitrator denied the motion for class certification with respect to Appellants’ Equal Pay Act claims, reasoning that the Equal Pay Act, unlike Title VII, provides for its own opt‐in class procedures. The arbitrator also declined to certify a Title VII damages class, reasoning that monetary claims could not “be fairly adjudicated on a representative basis” because each employee’s “eligibility will vary depending on their individual employment history, and the facts pertaining to similarly‐situated males during their employment.” J. App. at 594.
6

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Sterling’s motion to vacate the class determination award, reasoning that Sterling’s argument that the arbitrator had exceeded her powers in “purporting to bind absent class members who did not express their consent to be bound” was “foreclosed” by this Court’s holding in Jock I that “there is no question that the issue of whether the agreement permitted class arbitration was squarely presented to the arbitrator.” Jock v. Sterling Jewelers, Inc., 143 F. Supp. 3d 127, 128–29 (S.D.N.Y. 2015) (internal quotation marks omitted).
Sterling appealed from the District Court’s decision, and in Jock II this Court reversed and remanded, clarifying that Jock I “did not squarely address whether the arbitrator had the power to bind absent class members to class arbitration given that they, unlike the parties here, never consented to the arbitrator determining whether class arbitration was permissible under the agreement in the first place.” 703 F. App’x at 17. The Jock II panel identified the question to be considered on remand, and one not considered in Oxford Health Plans LLC v. Sutter, 569 U.S. 564 (2013), as “whether an arbitrator, who may decide . . . whether an arbitration agreement provides for class procedures because the parties ‘squarely presented’ it for decision, may thereafter purport to bind non‐parties to class
7

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procedures on this basis.” 703 F. App’x at 18. 3 On remand, the District Court vacated the arbitrator’s class determination
ruling. The District Court’s reasoning was twofold. First, it determined that the RESOLVE Agreement did not give the arbitrator the authority to certify the class because the District Court “considered the question of whether the RESOLVE agreement authorizes class procedures in 2010 and decided that it does not.” Sp. App. 6. Second, the fact that “the named plaintiffs and the defendant submitted the question of whether the RESOLVE Agreement allowed for class procedures to the Arbitrator” also did not give the arbitrator such authority. Id. at 7. The District Court reasoned that, even if the arbitrator’s “erroneous interpretation” of the RESOLVE Agreement could bind the 254 plaintiffs who had “authorized the arbitrator to make that determination” by submitting the question to her or opting into the proceeding, that erroneous interpretation could not bind absent class members. Id. at 8 (quoting Oxford Health, 569 U.S. at 574 (Alito, J., concurring)).
This appeal followed.
3 Jock III dismissed an appeal from the District Court’s decision that it lacked jurisdiction to consider Sterling’s motion to vacate an interim decision of the arbitrator. 691 F. App’x at 665.
8

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III. “In considering a challenge to a district court’s decision to vacate a portion of an arbitration award, we review its legal rulings de novo and its findings of fact for clear error.” ReliaStar Life Ins. Co. of New York v. EMC Nat’l Life Co., 564 F.3d 81, 85 (2d Cir. 2009). Courts are empowered to vacate arbitration awards only “where the arbitrator[] exceeded [his or her] powers, or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.” 9 U.S.C. § 10(a)(4). This is an extremely deferential standard of review. See Stolt‐Nielson, 559 U.S. at 671. When parties bargain[] for [an] arbitrator’s construction of their agreement, an arbitral decision even arguably construing or applying the contract must stand, regardless of a court’s view of its (de)merits. Only if the arbitrator acts outside the scope of his contractually delegated authority—issuing an award that simply reflects his own notions of economic justice rather than drawing its essence from the contract— may a court overturn his determination. Oxford Health, 569 U.S. at 569 (internal quotation marks, citations, and alterations omitted); accord Stolt‐Nielson, 559 U.S. at 672. The focus of our inquiry under Section 10(a)(4) is “‘whether the arbitrator[] had the power, based on the parties’ submissions or the arbitration agreement, to reach a certain issue, not whether the
9

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arbitrator[] correctly decided that issue.’” Jock I, 646 F.3d at 122 (quoting DiRussa v. Dean Witter Reynolds Inc., 121 F.3d 818, 824 (2d Cir. 1997)).
IV. The District Court’s decision rests on the premise that, because the absent class members did not affirmatively opt in to the arbitration proceeding and thereby consent to the arbitrator’s authority to decide whether the RESOLVE Agreement permits class procedures, our usual deferential standard of review does not apply. In other words, as Sterling argues: It is one thing for this Court to sustain an incorrect arbitral ruling on a question properly submitted to the Arbitrator by parties who agreed to be bound by the Arbitrator’s decision. It is another thing altogether to sustain an incorrect decision granting the Arbitrator authority over absent class members who did not submit that question to her. . . . [T]he Arbitrator’s decision that she had authority over absent class members cannot be upheld on the ground that, despite being wrong, it was nonetheless within her authority. Appellee Letter Br. (May 17, 2019), at 4. The District Court concluded that the individuals who did not affirmatively opt in to the arbitration proceeding did not agree to permit class procedures by virtue of having signed RESOLVE Agreements because “[p]lainly it is the law of the case that the Arbitrator does not have the authority, based on the agreement, to certify” a class. Sp. App. 6. The District Court thus relied on its original view that the arbitrator wrongly interpreted the
10

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RESOLVE Agreement to permit class procedures. That view is not, however, “the law of the case,” because this Court vacated the District Court’s earlier decision that had reached that conclusion. Jock I, 646 F.3d 113. In Jock I, we had no occasion to decide whether the arbitrator “got it right” given our conclusion that such determination was not one for the courts to make. Id. at 124. The District Court further determined that the fact that the named plaintiffs and Sterling had submitted the class arbitrability question to the arbitrator also did not give the arbitrator the authority to certify the class. In doing so, the District Court relied on its own prior conclusion that the arbitrator’s interpretation was “wrong as a matter of law.” Sp. App. 8. That logic was largely based on Justice Alito’s concurrence in Oxford Health, which states that an arbitrator’s “erroneous interpretation” of a contract that does not authorize class procedures cannot bind absent class members who have “not authorized the arbitrator to make that determination.” 569 U.S. at 574.
Appellants argue that the absent class members have, in fact, authorized the arbitrator to determine whether the RESOLVE Agreement permits class procedures. They contend that because all Sterling employees signed the RESOLVE Agreement, all Sterling employees “agreed that, if any of them initiated
11

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a putative class proceeding, the arbitrator in that proceeding would be empowered to decide class‐arbitrability—and, if he or she found it appropriate, to certify a class encompassing other employees’ claims.” Appellant Br. 23. According to Appellants, the District Court erred by “never ask[ing] what authority absent class members conferred on Arbitrator Roberts by joining the RESOLVE Program,” a question that is a matter of contract interpretation. Id. at 26
We agree with Appellants. Although the absent class members have not affirmatively opted in to this arbitration proceeding, by signing the RESOLVE Agreement, they consented to the arbitrator’s authority to decide the threshold question of whether the agreement permits class arbitration. As the arbitrator reasoned, “[i]t is undisputed that each of the absent class members signed the RESOLVE arbitration agreement, which clearly provides for the application of the [American Arbitration Association (‘AAA’)] Rules.” J. App. 603; see id. at 129. The AAA Supplementary Rules for Class Arbitration (“Supplementary Rules”) apply to “any dispute arising out of an agreement that provides for arbitration pursuant to” the AAA rules “where a party submits a dispute to arbitration on behalf of . . . a class or purported class.” Id. at 434 (Supplementary Rule 1(a) (2010)). The Supplementary Rules provide that “the arbitrator shall determine as a threshold
12

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matter . . . whether the applicable arbitration clause permits the arbitration to proceed on behalf of . . . a class.” Id. at 434–35 (Supplementary Rule 3 (2010)). The RESOLVE Agreement’s incorporation of the AAA Rules evinces agreement to have the arbitrator decide the question of class arbitrability. See Wells Fargo Advisors, LLC v. Sappington, 884 F.3d 392, 396 (2d Cir. 2018) (when parties to an agreement explicitly incorporate rules that empower an arbitrator to decide an issue, “the incorporation serves as clear and unmistakable evidence of the parties’ intent to delegate such issues to an arbitrator” (internal quotation marks omitted)).4
Further supporting the conclusion that absent class members authorized the arbitrator to decide whether the arbitration may proceed on a class basis, the RESOLVE Agreement provides that “[q]uestions of arbitrability” and “procedural questions” “shall be decided by the arbitrator.” J. App. 132.5 The Supreme Court
4 It is of no moment that the Supplementary Rules also provide that “the arbitrator should not consider the existence of these Supplementary Rules, or any other AAA rules, to be a factor either in favor of or against permitting the arbitration to proceed on a class basis.” J. App. 435 (Supplementary Rule 3). Here, we address whether the absent class members authorized the arbitrator to decide the threshold question of class arbitrability; we do not review the arbitrator’s determination that the arbitration may proceed on a class basis. 5 The sole exception to that delegation of authority is the provision that if a party initiates a lawsuit, “a court may decide procedural questions that grow out of the
13

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has suggested, and this Court has assumed without deciding, that the availability of classwide arbitration is a “question of arbitrability.” Oxford Health, 133 S. Ct. at 2068 n.2; Sappington, 884 F.3d at 394. The parties in this case have at times assumed that the availability of class procedures is a “procedural question.” See Appellant Br. 3–4; J. App. 208–210 (Sterling Mem. of Law (May 19, 2008)). Regardless of whether the availability of class procedures is a question of arbitrability or merely a procedural question, it is a question for the arbitrator to decide under the terms of the RESOLVE Agreement.
That conclusion is consistent with Ohio law, which governs our interpretation of the RESOLVE Agreement. See J. App. 130. Under Ohio law, the issue of whether an arbitration agreement permits class procedures is a “question of arbitrability” that is presumptively for a court to decide. Shakoor v. VXI Glob. Sols., 35 N.E.3d 539, 547 (Ohio Ct. App. 2015). But a question of arbitrability “is to be decided by the arbitrator” when the parties to an agreement “have clearly and unmistakably vested the arbitrator with the authority to decide the issue of arbitrability.” Belmont Cnty. Sheriff v. Fraternal Order of Police, Ohio Labor Council, Inc., 820 N.E.2d 918, 921 (Ohio 2004); cf. Shakoor, 35 N.E.3d at 548–50 (agreement
dispute and bear on the final disposition of the matter.” J. App. 132. That exception does not affect our analysis here.
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did not provide evidence sufficiently clear and unmistakable to overcome presumption that questions of arbitrability are for court to decide). The RESOLVE Agreement “clearly and unmistakably” provides that “[q]uestions of arbitrability . . . shall be decided by the arbitrator.” Belmont Cnty. Sheriff, 820 N.E.2d at 921; J. App. 132.
Because the absent class members, no less than the parties, thus “bargained for the arbitrator’s construction of their agreement” with respect to class arbitrability, the arbitrator acted within her authority in purporting to bind the absent class members to class procedures. Oxford Health, 569 U.S. at 569 (internal quotation marks omitted). By virtue of the absent class members’ contractually expressed consent, they, like the parties, may be bound by the arbitrator’s determination that the RESOLVE Agreement permits class procedures regardless of whether that determination is, as the District Court believes, “wrong as a matter of law.” Sp. App. 8. That is, our reasoning in Jock I applies with equal force to the absent class members. It is not for us, as a court, to decide whether the arbitrator’s class certification decision was correct on the merits of issues such as commonality and typicality. We merely decide that the arbitrator had the authority to reach such issues even with respect to the absent class members.
15

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The District Court’s contrary conclusion is understandable in light of this Court’s framing of the issue in Jock II. In Jock II, we stated that Jock I “did not squarely address whether the arbitrator had the power to bind absent class members to class arbitration given that they, unlike the parties here, never consented to the arbitrator determining whether class arbitration was permissible under the agreement in the first place.” 703 F. App’x at 17. That observation referred to the fact that the absent class members, unlike the 254 plaintiffs, did not affirmatively opt in to the proceeding in which the question was submitted to the arbitrator. Our use of “consent” as a shorthand for that fact may well have obscured the possibility that the absent class members consented in a different way to the arbitrator’s authority to decide class arbitrability.
That those absent class members did not expressly submit themselves to this particular arbitrator’s authority does not alter our analysis. Class actions that bind absent class members as part of mandatory or opt‐out classes are routinely adjudicated by arbitrators and in our courts. See Supplementary Rule 4; Fed. R. Civ. P. 23; Wal‐Mart Stores, Inc. v. Dukes, 564 U.S. 338, 361–63 (2011). Since the RESOLVE Agreement provides for “the arbitrator” to decide the question of class arbitrability, J. App. 132, it must mean, as Appellants state, that if any Sterling
16

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employee initiates a putative class proceeding, “the arbitrator in that proceeding [will] be empowered to decide class‐arbitrability—and, if he or she [finds] it appropriate, to certify a class encompassing other employees’ claims.” Appellant Br. 23. To hold otherwise would be inconsistent with the nature of class litigation and would in effect negate the power of the arbitrator to decide the question of class arbitrability.6
Nor is our decision inconsistent with the principles affirmed in Porzig v. Dresdner, Kleinwort, Benson, N. Am. LLC, 497 F.3d 133 (2d Cir. 2007). In Porzig, we held that an arbitration panel was without jurisdiction to order a party’s lawyer to pay back to the party, Porzig, the lawyer’s contingency fee, reasoning that neither Porzig nor his lawyer had agreed to arbitrate a dispute over their fee contract. We explained that “a party cannot be forced to arbitrate any dispute that it has not obligated itself, by contract, to submit to arbitration,” and that an arbitration panel
6 This logic has implicitly underpinned decisions holding that because an arbitrator was within his authority in determining that class procedures were permitted under an agreement, it followed that the arbitrator was within his authority to certify a class. See, e.g., Long John Silver’s Rests., Inc. v. Cole, 514 F.3d 345, 353 (4th Cir. 2008); Jock, 143 F. Supp. 3d at 129. In Jock II, we found this logic insufficient to uphold the arbitrator’s class determination award because we determined, in light of the Supreme Court’s decision in Oxford Health, that there was an unsettled question as to whether an arbitrator’s authority to bind absent class members necessarily followed from her authority to determine that an agreement permitted class procedures.
17

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“may not exceed the power granted to it by the parties in the contract.” Porzig, 497 F.3d at 140 (internal quotation marks omitted). Here, the absent class members have “obligated [themselves], by contract, to submit to arbitration” the question of class arbitrability. Id. Indeed, our conclusion that the absent class members may be bound by the arbitrator’s class arbitrability determination rests on the fact that the “self‐limiting agreement between consenting parties” in this case authorizes the arbitrator to decide that question. Id.
Finally, because our decision rests in part on our reasoning in Jock I, we address Sterling’s argument that Jock I is no longer good law in light of the Supreme Court’s recent decision in Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407 (2019).7 In Lamps Plus, the Supreme Court held that “an ambiguous agreement can[not] provide the necessary ‘contractual basis’ for compelling class arbitration.” 139 S. Ct. at 1415. Lamps Plus does not undermine our reasoning in Jock I. First, a crucial difference between the two cases is that the parties in Lamps Plus “agreed that a court, not an arbitrator, should resolve the question about class arbitration.” Id. at 1417 n.4. The class arbitrability decision in Lamps Plus was therefore subject to de
7 Because this Court was aware that the Supreme Court’s decision in Lamps Plus would deal with class arbitrability issues similar to the ones presented in this case, we deferred issuing an opinion until Lamps Plus was decided.
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novo scrutiny rather than the deferential standard of review that circumscribes courts’ review of arbitrators’ decisions. Second, Lamps Plus leaves undisturbed the proposition, affirmed in Stolt‐Nielsen, that an arbitration agreement may be interpreted to include implicit consent to class procedures. Our reasoning in Jock I is, moreover, fully consistent with the Supreme Court’s decision in the more analogous case of Oxford Health, 569 U.S. 564.
Having determined that the arbitrator acted within her authority in purporting to bind the absent class members to class proceedings, we note that it remains to be decided whether the arbitrator exceeded her authority in certifying an opt‐out, as opposed to a mandatory, class for injunctive and declaratory relief. In the decision that we vacated in Jock II, the District Court held that in so doing the arbitrator exceeded her authority. See Jock, 143 F. Supp. 3d at 130–34. Applying the appropriate Section 10(a)(4) standard, the District Court concluded that under Wal–Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), the arbitrator acted “outside her authority” and “in manifest disregard of the law” by providing putative class members with the opportunity to opt out. Id. at 130, 133. The correctness of that conclusion is not before us in this appeal. See Appellant Br. 30 n.13; Appellee Br. 9 n.2. We therefore remand this case to the District Court with directions to decide
19

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that issue after allowing the parties an opportunity to present renewed argument in light of any subsequent developments in the law.
V. We have considered all of Sterling’s remaining arguments and conclude that they are without merit. The judgment of the District Court is reversed, and the case is remanded for further proceedings consistent with this opinion.
20

 
 APPEAL,ECF,REOPEN
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:08−cv−02875−JSR

Jock et al v. Sterling Jewelers, Inc Assigned to: Judge Jed S. Rakoff Case in other court: U.S. Court of Appeals, Second Circuit,
15−03947
U.S. Court of Appeals, Second Circuit, 16−01731 Cause: 29:206 FLSA: Minimum Wage
Plaintiff

Date Filed: 03/18/2008 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Laryssa Jock

represented by Jenny Rae Yang Cohen Milstein Sellers & Toll PLLC (DC) 1100 New York Avenue, N.W. Suite 500, West Tower Washington, DC 20005 (202)−408−4600 Fax: (202)−408−4699 Email: jyang@cohenmilstein.com TERMINATED: 05/02/2013 LEAD ATTORNEY

John Douglas Richards Pomerantz LLP (NYC) 600 Third Avenue, 20th Floor New York, NY 10016 (212)−661−1100 Fax: (212)−661−8665 Email: drichards@cohenmilstein.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph M. Sellers Cohen Milstein Sellers & Toll PLLC (DC) 1100 New York Avenue, N.W. Suite 500, West Tower Washington, DC 20005 (202) 408−4600 Fax: (202)−408−4699 Email: jsellers@cohenmilstein.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Loren B. Donnell Burr & Smith, LLP 9800 4th Street North Ste 200 St. Petersburg, FL 33702 813−253−2010 Fax: 727−823−2126 Email: ldonnell@burrandsmithlaw.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Lynda J. Grant Cohen Milstein Sellers & Toll PLLC 88 Pine Street 14th Floor

Plaintiff Jacquelyn Boyle

New York, NY 10005 212−907−0700 Fax: 212−883−7057 Email: lgrant@grantfirm.com TERMINATED: 07/17/2009 LEAD ATTORNEY
Sahar Aziz Cohen Milstein Sellers & Toll PLLC (DC) 1100 New York Avenue, N.W. Suite 500, West Tower Washington, DC 20005 (202) 408 4600 Fax: (202) 408 4699 Email: saziz@cmht.com TERMINATED: 07/17/2009 LEAD ATTORNEY PRO HAC VICE
Sam J. Smith Burr & Smith, LLP 9800 4th Street North Ste 200 St. Petersburg, FL 33702 813−253−2010 Fax: 727−823−2126 Email: ssmith@burrandsmithlaw.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas Warren Thomas A. Warren Law Offices, P.L 2032−D Thomasville Blvd Tallahassee, FL 32308 850 385 1551 Fax: 850 385 6008 Email: tw@nettally.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kalpana Kotagal Cohen Milstein Sellers & Toll PLLC (DC) 1100 New York Avenue, N.W. Suite 500, West Tower Washington, DC 20005 (202)−589−2278 Fax: (202)−408−4699 Email: kkotagal@cohenmilstein.com ATTORNEY TO BE NOTICED
Shaylyn Cochran Cohen Milstein Sellers & Toll, PLLC 1100 New York Ave. Nw, Suite 500 West Washington, DC 20005 (202)−408−3614 Fax: (202)−408−4699 Email: scochran@cohenmilstein.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jenny Rae Yang (See above for address)

Plaintiff Christy Chadwick

TERMINATED: 05/02/2013 LEAD ATTORNEY
Joseph M. Sellers (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Loren B. Donnell (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lynda J. Grant (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sahar Aziz (See above for address) TERMINATED: 07/17/2009 LEAD ATTORNEY PRO HAC VICE
Sam J. Smith (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas Warren (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shaylyn Cochran (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jenny Rae Yang (See above for address) TERMINATED: 05/02/2013 LEAD ATTORNEY
Joseph M. Sellers (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Loren B. Donnell (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lynda J. Grant (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Lisa Follett

Sahar Aziz (See above for address) TERMINATED: 07/17/2009 LEAD ATTORNEY PRO HAC VICE
Sam J. Smith (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas Warren (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shaylyn Cochran (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jenny Rae Yang (See above for address) TERMINATED: 05/02/2013 LEAD ATTORNEY
Joseph M. Sellers (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Loren B. Donnell (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lynda J. Grant (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sahar Aziz (See above for address) TERMINATED: 07/17/2009 LEAD ATTORNEY PRO HAC VICE
Sam J. Smith (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas Warren (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shaylyn Cochran

Plaintiff Maria House
Plaintiff Denise Maddox

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jenny Rae Yang (See above for address) TERMINATED: 05/02/2013 LEAD ATTORNEY
Joseph M. Sellers (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Loren B. Donnell (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lynda J. Grant (See above for address) TERMINATED: 07/17/2009 LEAD ATTORNEY
Sahar Aziz (See above for address) TERMINATED: 07/17/2009 LEAD ATTORNEY PRO HAC VICE
Sam J. Smith (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas Warren (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shaylyn Cochran (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jenny Rae Yang (See above for address) TERMINATED: 05/02/2013 LEAD ATTORNEY
Joseph M. Sellers (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Loren B. Donnell (See above for address) LEAD ATTORNEY

Plaintiff Lisa McConnell

PRO HAC VICE ATTORNEY TO BE NOTICED
Lynda J. Grant (See above for address) TERMINATED: 07/17/2009 LEAD ATTORNEY
Sahar Aziz (See above for address) TERMINATED: 07/17/2009 LEAD ATTORNEY PRO HAC VICE
Sam J. Smith (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas Warren (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shaylyn Cochran (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jenny Rae Yang (See above for address) TERMINATED: 05/02/2013 LEAD ATTORNEY
Joseph M. Sellers (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Loren B. Donnell (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lynda J. Grant (See above for address) TERMINATED: 07/17/2009 LEAD ATTORNEY
Sahar Aziz (See above for address) TERMINATED: 07/17/2009 LEAD ATTORNEY PRO HAC VICE
Sam J. Smith (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Gloria Pagan
Plaintiff Judy Reed

Thomas Warren (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shaylyn Cochran (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jenny Rae Yang (See above for address) TERMINATED: 05/02/2013 LEAD ATTORNEY
Joseph M. Sellers (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Loren B. Donnell (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lynda J. Grant (See above for address) TERMINATED: 07/17/2009 LEAD ATTORNEY
Sahar Aziz (See above for address) TERMINATED: 07/17/2009 LEAD ATTORNEY PRO HAC VICE
Sam J. Smith (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas Warren (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shaylyn Cochran (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jenny Rae Yang (See above for address) TERMINATED: 05/02/2013 LEAD ATTORNEY
Joseph M. Sellers (See above for address)

Plaintiff Linda Rhodes

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Loren B. Donnell (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lynda J. Grant (See above for address) TERMINATED: 07/17/2009 LEAD ATTORNEY
Sahar Aziz (See above for address) TERMINATED: 07/17/2009 LEAD ATTORNEY PRO HAC VICE
Sam J. Smith (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas Warren (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shaylyn Cochran (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jenny Rae Yang (See above for address) TERMINATED: 05/02/2013 LEAD ATTORNEY
Joseph M. Sellers (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Loren B. Donnell (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lynda J. Grant (See above for address) TERMINATED: 07/17/2009 LEAD ATTORNEY
Sahar Aziz (See above for address) TERMINATED: 07/17/2009 LEAD ATTORNEY

Plaintiff Khristina Rodriguez
Plaintiff

PRO HAC VICE
Sam J. Smith (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas Warren (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shaylyn Cochran (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jenny Rae Yang (See above for address) TERMINATED: 05/02/2013 LEAD ATTORNEY
Joseph M. Sellers (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Loren B. Donnell (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lynda J. Grant (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sahar Aziz (See above for address) TERMINATED: 07/17/2009 LEAD ATTORNEY PRO HAC VICE
Sam J. Smith (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas Warren (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shaylyn Cochran (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Nina Shahmirzadi
Plaintiff Leighla Smith

represented by Jenny Rae Yang (See above for address) TERMINATED: 05/02/2013 LEAD ATTORNEY
Joseph M. Sellers (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Loren B. Donnell (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lynda J. Grant (See above for address) TERMINATED: 07/17/2009 LEAD ATTORNEY
Sahar Aziz (See above for address) TERMINATED: 07/17/2009 LEAD ATTORNEY PRO HAC VICE
Sam J. Smith (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas Warren (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shaylyn Cochran (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jenny Rae Yang (See above for address) TERMINATED: 05/02/2013 LEAD ATTORNEY
Joseph M. Sellers (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Loren B. Donnell (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lynda J. Grant (See above for address)

Plaintiff Marie Wolf

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sahar Aziz (See above for address) TERMINATED: 07/17/2009 LEAD ATTORNEY PRO HAC VICE
Sam J. Smith (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas Warren (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shaylyn Cochran (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jenny Rae Yang (See above for address) TERMINATED: 05/02/2013 LEAD ATTORNEY
Joseph M. Sellers (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Loren B. Donnell (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lynda J. Grant (See above for address) TERMINATED: 07/17/2009 LEAD ATTORNEY
Sahar Aziz (See above for address) TERMINATED: 07/17/2009 LEAD ATTORNEY PRO HAC VICE
Sam J. Smith (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas Warren (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Kelly Contreras
Plaintiff Dawn Souto−Coons

Shaylyn Cochran (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jenny Rae Yang (See above for address) TERMINATED: 05/02/2013
Joseph M. Sellers (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Loren B. Donnell (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sam J. Smith (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shaylyn Cochran (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas Warren Thomas A. Warren Law Offices, P.L 2032−D Thomasville Blvd Tallahassee, FL 32308 850 385 1551 Fax: 850 385 6008 ATTORNEY TO BE NOTICED
represented by Jenny Rae Yang (See above for address) TERMINATED: 05/02/2013 LEAD ATTORNEY
Joseph M. Sellers (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Loren B. Donnell (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lynda J. Grant (See above for address) TERMINATED: 07/17/2009 LEAD ATTORNEY
Sahar Aziz (See above for address)

V. Defendant Sterling Jewelers, Inc
Counter Claimant Sterling Jewelers, Inc

TERMINATED: 07/17/2009 LEAD ATTORNEY PRO HAC VICE
Sam J. Smith (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas Warren (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shaylyn Cochran (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Gerald Leonard Maatman , Jr Seyfarth Shaw LLP (131 S. Dearborn St) 131 S. Dearborn Street, Suite 2400 Chicago, IL 60603 (312) 460−5000 x5965 Fax: (312)−460−7965 Email: gmaatman@seyfarth.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina M. Janice Seyfarth Shaw LLP 131 South Dearborn Street, Suite 2400 Chicago, IL 60603−5577 (312)−460−5224 Fax: (312)−460−7279 Email: cjanice@seyfarth.com ATTORNEY TO BE NOTICED
Peter J. Wozniak Seyfarth Shaw LLP 131 South Dearborn Street, Suite 2400 Chicago, IL 60603−5577 (312)−460−5509 Fax: (312)−460−7515 Email: pwozniak@seyfarth.com ATTORNEY TO BE NOTICED
Stephen S. Zashin Zashin & Rich Co., L.P.A. 55 Public Square Cleveland, OH 44113 (216)−696−4441 Fax: (216)−696−1618 Email: ssz@zrlaw.com TERMINATED: 12/10/2012
represented by Gerald Leonard Maatman , Jr (See above for address)

V. Counter Defendant Linda Rhodes
Counter Defendant Khristina Rodriguez
Counter Defendant Nina Shahmirzadi
Counter Defendant Kelly Contreras
Counter Defendant Leighla Smith
Counter Defendant Dawn Souto−Coons
Counter Defendant Marie Wolf
Counter Defendant Laryssa Jock
Counter Defendant Jacquelyn Boyle
Counter Defendant Christy Chadwick
Counter Defendant Lisa Follett
Counter Defendant Maria House
Counter Defendant Denise Maddox
Counter Defendant Lisa McConnell
Counter Defendant Gloria Pagan
Counter Defendant

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen S. Zashin (See above for address) TERMINATED: 12/10/2012

Judy Reed Counter Claimant Sterling Jewelers, Inc
V. Counter Defendant Linda Rhodes Counter Defendant Khristina Rodriguez Counter Defendant Nina Shahmirzadi Counter Defendant Kelly Contreras Counter Defendant Leighla Smith Counter Defendant Dawn Souto−Coons Counter Defendant Marie Wolf Counter Defendant Laryssa Jock Counter Defendant Jacquelyn Boyle Counter Defendant Christy Chadwick Counter Defendant Lisa Follett Counter Defendant Maria House Counter Defendant Denise Maddox Counter Defendant Lisa McConnell Counter Defendant Gloria Pagan

represented by Gerald Leonard Maatman , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Counter Defendant Judy Reed Counter Claimant Sterling Jewelers, Inc
V. Counter Defendant Linda Rhodes Counter Defendant Khristina Rodriguez Counter Defendant Nina Shahmirzadi Counter Defendant Kelly Contreras Counter Defendant Leighla Smith Counter Defendant Dawn Souto−Coons Counter Defendant Marie Wolf Counter Defendant Laryssa Jock Counter Defendant Jacquelyn Boyle Counter Defendant Christy Chadwick Counter Defendant Lisa Follett Counter Defendant Maria House Counter Defendant Denise Maddox Counter Defendant Lisa McConnell Counter Defendant

represented by Gerald Leonard Maatman , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gloria Pagan
Counter Defendant Judy Reed

Date Filed 03/18/2008
03/18/2008 03/18/2008 03/18/2008 03/20/2008 04/01/2008
04/03/2008
04/14/2008
04/15/2008
04/15/2008
04/15/2008
04/16/2008

# Docket Text
1 COMPLAINT against Sterling Jewelers, Inc. (Filing Fee $ 350.00, Receipt Number 645158)Document filed by Linda Rhodes, Khristina Rodriguez, Nina Shahmirzadi, Leighla Smith, Dawn Souto−Coons, Marie Wolf, Laryssa Jock, Jacquelyn Boyle, Christy Chadwick, Lisa Follett, Maria House, Denise Maddox, Lisa McConnell, Gloria Pagan, Judy Reed.(rdz) (Additional attachment(s) added on 3/24/2008: # 1 Supplement) (rdz). (Entered: 03/20/2008)
SUMMONS ISSUED as to Sterling Jewelers, Inc. (rdz) (Entered: 03/20/2008)
Magistrate Judge Ronald L. Ellis is so designated. (rdz) (Entered: 03/20/2008)
Case Designated ECF. (rdz) (Entered: 03/20/2008)
2 NOTICE OF COURT CONFERENCE, case management conference set for 5/14/08 at 3:45 pm. ( Case Management Conference set for 5/14/2008 at 03:45 PM in Courtroom 14B, 500 Pearl Street, New York, NY 10007 before Judge Jed S. Rakoff.) (Signed by Judge Jed S. Rakoff on 3/20/08) (cd) (Entered: 03/21/2008)
3 NOTICE of Filing of Consents to Join. Document filed by Linda Rhodes, Khristina Rodriguez, Nina Shahmirzadi, Leighla Smith Dawn Souto−Coons, Marie Wolf, Laryssa Jock, Jacquelyn Boyle, Christy Chadwick, Lisa Follett, Maria House, Denise Maddox, Lisa McConnell, Gloria Pagan, Judy Reed. (Attachments: # 1 Consent − Susan Ballard, # 2 Consent − Carol King, # 3 Consent − Carolyn Morse, # 4 Consent − Sherry Roberson, # 5 Consent − Sharon Scroggins, # 6 Consent − Tana Shiver)(Yang, Jenny) (Entered: 04/01/2008)
4 NOTICE of Filing of Consent to Join. Document filed by Linda Rhodes, Khristina Rodriguez, Nina Shahmirzadi, Leighla Smith Dawn Souto−Coons, Marie Wolf, Laryssa Jock, Jacquelyn Boyle, Christy Chadwick, Lisa Follett, Maria House, Denise Maddox, Lisa McConnell, Gloria Pagan, Judy Reed. (Attachments: # 1 Consent − Leighla Smith)(Yang, Jenny) (Entered: 04/03/2008)
5 NOTICE of Notice of Filing. Document filed by Linda Rhodes, Khristina Rodriguez, Nina Shahmirzadi, Leighla Smith Dawn Souto−Coons, Marie Wolf, Laryssa Jock, Jacquelyn Boyle, Christy Chadwick, Lisa Follett, Maria House, Denise Maddox, Lisa McConnell, Gloria Pagan, Judy Reed. (Attachments: # 1 Exhibit Consent to Join for Darlene Cerlanek, # 2 Exhibit Consent to Join for Ellen Hack)(Yang, Jenny) (Entered: 04/14/2008)
6 NOTICE of Notice of Filing. Document filed by Linda Rhodes, Khristina Rodriguez, Nina Shahmirzadi, Leighla Smith Dawn Souto−Coons, Marie Wolf, Laryssa Jock, Jacquelyn Boyle, Christy Chadwick, Lisa Follett, Maria House, Denise Maddox, Lisa McConnell, Gloria Pagan, Judy Reed. (Attachments: # 1 Exhibit Consent to Join for Dorelle Raphael−Fishkin)(Yang, Jenny) (Entered: 04/15/2008)
7 MOTION for Joseph M. Sellers to Appear Pro Hac Vice. Document filed by Linda Rhodes, Khristina Rodriguez, Nina Shahmirzadi, Leighla Smith Dawn Souto−Coons, Marie Wolf, Laryssa Jock, Jacquelyn Boyle, Christy Chadwick, Lisa Follett, Maria House, Denise Maddox, Lisa McConnell, Gloria Pagan, Judy Reed.(dle) (Entered: 04/17/2008)
8 MOTION for Sahar F. Aziz to Appear Pro Hac Vice. Document filed by Linda Rhodes, Khristina Rodriguez, Nina Shahmirzadi, Leighla Smith Dawn Souto−Coons, Marie Wolf, Laryssa Jock, Jacquelyn Boyle, Christy Chadwick, Lisa Follett, Maria House, Denise Maddox, Lisa McConnell, Gloria Pagan, Judy Reed.(dle) (Entered: 04/17/2008)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 4/16/2008. (jw) (Entered: 04/24/2008)

04/21/2008 04/21/2008 04/22/2008 04/22/2008 04/24/2008
04/28/2008 04/28/2008
04/29/2008 04/29/2008 04/29/2008 04/29/2008 04/30/2008

9 ORDER granting 7 Motion for Joseph M. Sellers to Appear Pro Hac Vice for plaintiffs Linda Rhodes, Khristina Rodriguez, Nina Shahmirzadi, Leighla Smith Dawn Souto−Coons, Marie Wolf, Laryssa Jock, Jacquelyn Boyle, Christy Chadwick, Lisa Follett, Maria House, Denise Maddox, Lisa McConnell, Gloria Pagan, Judy Reed. (Signed by Judge Jed S. Rakoff on 4/21/08) (db) (Entered: 04/22/2008)
10 ORDER granting 8 Motion for Sahar F. Aziz to Appear Pro Hac Vice for plaintiff's Linda Rhodes, Khristina Rodriguez, Nina Shahmirzadi, Leighla Smith Dawn Souto−Coons, Marie Wolf, Laryssa Jock, Jacquelyn Boyle, Christy Chadwick, Lisa Follett, Maria House, Denise Maddox, Lisa McConnell, Gloria Pagan, Judy Reed. (Signed by Judge Jed S. Rakoff on 4/21/08) (db) (Entered: 04/22/2008)
Transmission to Attorney Admissions Clerk. Transmitted re: 9 Order on Motion to Appear Pro Hac Vice, to the Attorney Admissions Clerk for updating of Attorney Information. (db) (Entered: 04/22/2008)
Transmission to Attorney Admissions Clerk. Transmitted re: 10 Order on Motion to Appear Pro Hac Vice to the Attorney Admissions Clerk for updating of Attorney Information. (db) (Entered: 04/22/2008)
11 PLAINTIFFS' FIRST AMENDED COMPLAINT amending 1 Complaint, against Sterling Jewelers, Inc.Document filed by Kelly Contreras, Leighla Coons, Linda Rhodes, Khristina Rodriguez, Nina Shahmirzadi, Leighla Smith Dawn Souto−Coons, Marie Wolf, Laryssa Jock, Jacquelyn Boyle, Christy Chadwick, Lisa Follett, Maria House, Denise Maddox, Lisa McConnell, Gloria Pagan, Judy Reed. Related document: 1 Complaint, filed by Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Lisa Follett, Nina Shahmirzadi, Leighla Smith Dawn Souto−Coons, Linda Rhodes, Christy Chadwick, Laryssa Jock, Denise Maddox, Khristina Rodriguez, Gloria Pagan, Jacquelyn Boyle. (Attachments: # 1 Exhibit, # 2 Exhibit)(dle) (Entered: 04/24/2008)
12 NOTICE of Filing. Document filed by Linda Rhodes, Khristina Rodriguez, Nina Shahmirzadi, Kelly Contreras, Leighla Smith Dawn Souto−Coons, Leighla Coons, Marie Wolf, Laryssa Jock, Jacquelyn Boyle, Christy Chadwick, Lisa Follett, Maria House, Denise Maddox, Lisa McConnell, Gloria Pagan, Judy Reed. (Attachments: # 1 Exhibit Consent to Join for Guyer)(Yang, Jenny) (Entered: 04/28/2008)
13 NOTICE of Filing. Document filed by Linda Rhodes, Khristina Rodriguez, Nina Shahmirzadi, Kelly Contreras, Leighla Smith, Leighla Coons, Dawn Souto−Coons, Marie Wolf, Laryssa Jock, Jacquelyn Boyle, Christy Chadwick, Lisa Follett, Maria House, Denise Maddox, Lisa McConnell, Gloria Pagan, Judy Reed. (Attachments: # 1 Exhibit Consent to Join for Wendy Hamilton, # 2 Exhibit Consent to Join for Vicki Osborn, # 3 Exhibit Consent to Join for Antoinette Roberts)(Yang, Jenny) (Entered: 04/28/2008)
CASHIERS OFFICE REMARK on 10 Order on Motion to Appear Pro Hac Vice, 9 Order on Motion to Appear Pro Hac Vice, in the amount of $50.00, paid on 04/16/2008, Receipt Number 647693. (jd) (Entered: 04/29/2008)
14 MOTION for Thomas A. Warren to Appear Pro Hac Vice. Document filed by Linda Rhodes, Khristina Rodriguez, Nina Shahmirzadi, Kelly Contreras, Leighla Smith, Leighla Coons, Dawn Souto−Coons, Marie Wolf, Laryssa Jock, Jacquelyn Boyle, Christy Chadwick, Lisa Follett, Maria House, Denise Maddox, Lisa McConnell, Gloria Pagan, Judy Reed.(dle) (Entered: 04/30/2008)
15 MOTION for Sam J. Smith to Appear Pro Hac Vice. Document filed by Linda Rhodes, Khristina Rodriguez, Nina Shahmirzadi, Kelly Contreras, Leighla Smith, Leighla Coons, Dawn Souto−Coons, Marie Wolf, Laryssa Jock, Jacquelyn Boyle, Christy Chadwick, Lisa Follett, Maria House, Denise Maddox, Lisa McConnell, Gloria Pagan, Judy Reed.(dle) (Entered: 04/30/2008)
16 MOTION for Loren Donnell to Appear Pro Hac Vice. Document filed by Linda Rhodes, Khristina Rodriguez, Nina Shahmirzadi, Kelly Contreras, Leighla Smith, Leighla Coons, Dawn Souto−Coons, Marie Wolf, Laryssa Jock, Jacquelyn Boyle, Christy Chadwick, Lisa Follett, Maria House, Denise Maddox, Lisa McConnell, Gloria Pagan, Judy Reed.(dle) (Entered: 04/30/2008)
17 NOTICE OF APPEARANCE by Gerald Leonard Maatman, Jr on behalf of Sterling Jewelers, Inc (Maatman, Gerald) (Entered: 04/30/2008)

04/30/2008 04/30/2008 04/30/2008 05/01/2008 05/02/2008 05/02/2008 05/02/2008 05/02/2008 05/05/2008
05/05/2008
05/05/2008
05/06/2008 05/06/2008 05/07/2008

18 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. Identifying Signet Group plc as Corporate Parent. Document filed by Sterling Jewelers, Inc.(Maatman, Gerald) (Entered: 04/30/2008)
20 NOTICE of Filing. Document filed by Linda Rhodes, Khristina Rodriguez, Nina Shahmirzadi, Kelly Contreras, Leighla Smith, Leighla Coons, Dawn Souto−Coons, Marie Wolf, Laryssa Jock, Jacquelyn Boyle, Christy Chadwick, Lisa Follett, Maria House, Denise Maddox, Lisa McConnell, Gloria Pagan, Judy Reed. (Attachments: # 1 Exhibit Consent to Join for Maureen Gianni)(Yang, Jenny) (Entered: 04/30/2008)
***DELETED DOCUMENT. Deleted document number 19 Answer to the Amended Complaint. (jpo) (Entered: 05/07/2008)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 5/1/2008. (jw) (Entered: 05/07/2008)
21 MOTION Bifurcated Scheduling, Consideration, And Disposition Of Legal Issues Relative To The Workplace Dispute Resolution Agreement Between Each Plaintiff And Defendant. Document filed by Sterling Jewelers, Inc. Return Date set for 6/2/2008 at 04:30 PM.(Maatman, Gerald) (Entered: 05/02/2008)
22 DECLARATION of Gerald L.Maatman, Jr., Esq. in Support re: 21 MOTION Bifurcated Scheduling, Consideration, And Disposition Of Legal Issues Relative To The Workplace Dispute Resolution Agreement Between Each Plaintiff And Defendant.. Document filed by Sterling Jewelers, Inc. (Maatman, Gerald) (Entered: 05/02/2008)
23 MEMORANDUM OF LAW in Support re: 21 MOTION Bifurcated Scheduling, Consideration, And Disposition Of Legal Issues Relative To The Workplace Dispute Resolution Agreement Between Each Plaintiff And Defendant.. Document filed by Sterling Jewelers, Inc. (Maatman, Gerald) (Entered: 05/02/2008)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 5/2/2008. (jw) (Entered: 05/09/2008)
24 NOTICE of Filing for Consents to Join for Susan Bailey, Duana ConGin and Katie Jennings. Document filed by Linda Rhodes, Khristina Rodriguez, Nina Shahmirzadi, Kelly Contreras, Leighla Smith, Leighla Coons, Dawn Souto−Coons, Marie Wolf, Laryssa Jock, Jacquelyn Boyle, Christy Chadwick, Lisa Follett, Maria House, Denise Maddox, Lisa McConnell, Gloria Pagan, Judy Reed. (Attachments: # 1 Exhibit Consent to Join for Susan Bailey, # 2 Exhibit Consent to Join for Duana ConGin, # 3 Exhibit Consent to Join for Katie Jennings)(Yang, Jenny) (Entered: 05/05/2008)
25 MOTION to Compel Arbitration and Stay Litigation. Document filed by Linda Rhodes, Khristina Rodriguez, Nina Shahmirzadi, Kelly Contreras, Leighla Smith, Leighla Coons, Dawn Souto−Coons, Marie Wolf, Laryssa Jock, Jacquelyn Boyle, Christy Chadwick, Lisa Follett, Maria House, Denise Maddox, Lisa McConnell, Gloria Pagan, Judy Reed. Return Date set for 5/19/2008 at 05:00 PM.(Sellers, Joseph) (Entered: 05/05/2008)
26 MEMORANDUM OF LAW in Support re: 25 MOTION to Compel Arbitration and Stay Litigation.. Document filed by Linda Rhodes, Khristina Rodriguez, Nina Shahmirzadi, Kelly Contreras, Leighla Smith, Leighla Coons, Dawn Souto−Coons, Marie Wolf, Laryssa Jock, Jacquelyn Boyle, Christy Chadwick, Lisa Follett, Maria House, Denise Maddox, Lisa McConnell, Gloria Pagan, Judy Reed. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Sellers, Joseph) (Entered: 05/05/2008)
CASHIERS OFFICE REMARK on 15 Motion to Appear Pro Hac Vice, 16 Motion to Appear Pro Hac Vice, in the amount of $50.00, paid on 4/29/08, Receipt Number 649262. (Quintero, Marcos) (Entered: 05/06/2008)
CASHIERS OFFICE REMARK on 14 Motion to Appear Pro Hac Vice, in the amount of $25.00, paid on 4/29/08, Receipt Number 649273. (Quintero, Marcos) (Entered: 05/06/2008)
27 ORDER granting 15 Motion for Sam J. Smith to Appear Pro Hac Vice. (Signed by Judge Jed S. Rakoff on 5/4/2008) (jpo) (Entered: 05/07/2008)

05/07/2008 05/07/2008 05/07/2008 05/07/2008
05/07/2008
05/16/2008 05/16/2008
05/19/2008 05/19/2008 05/20/2008

28 ORDER granting 16 Motion for Loren Donnell to Appear Pro Hac Vice. (Signed by Judge Jed S. Rakoff on 5/4/2008) (jpo) (Entered: 05/07/2008)
29 ORDER granting 14 Motion for Thomas A. Warren to Appear Pro Hac Vice. (Signed by Judge Jed S. Rakoff on 5/4/2008) (jpo) (Entered: 05/07/2008)
Transmission to Attorney Admissions Clerk. Transmitted re: 29 Order on Motion to Appear Pro Hac Vice, 28 Order on Motion to Appear Pro Hac Vice, 27 Order on Motion to Appear Pro Hac Vice, to the Attorney Admissions Clerk for updating of Attorney Information. (jpo) (Entered: 05/07/2008)
30 ORDER: The Clerk is directed to remove from the Court's electronic filing system Document #19, "Answer to Amended Complaint, Counterclaim Against All Parties," and all exhibits thereto, as plaintiffs have brought to the Court's attention that certain exhibits contain confidential information. Plaintiffs are immediately directed to refile Document #19 and the accompanying exhibits with all confidential information redacted. The Court will deem such filing to have been lade nunc pro tunc on April 30, 2008 the date that Document #19 originally was filed. (Signed by Judge Jed S. Rakoff on 5/6/2008) (jpo) (Entered: 05/07/2008)
31 ANSWER to Amended Complaint., COUNTERCLAIM against all plaintiffs. Document filed by Sterling Jewelers, Inc. (Attachments: # 1 Exhibit A to Answer, # 2 Exhibit B to Answer, # 3 Exhibit C to Answer, # 4 Exhibit D to Answer, # 5 Exhibit E to Answer, # 6 Exhibit F to Answer, # 7 Exhibit G to Answer, # 8 Exhibit H to Answer, # 9 Exhibit I to Answer, # 10 Exhibit J to Answer, # 11 Exhibit K to Answer, # 12 Exhibit L to Answer, # 13 Exhibit M to Answer, # 14 Exhibit N to Answer, # 15 Exhibit O to Answer, # 16 Exhibit P to Answer, # 17 Exhibit Q to Answer, # 18 Exhibit R to Answer, # 19 Exhibit S to Answer, # 20 Exhibit T to Answer, # 21 Exhibit U to Answer, # 22 Exhibit V to Answer, # 23 Exhibit W to Answer, # 24 Exhibit X to Answer)(Maatman, Gerald) (Entered: 05/07/2008)
32 NOTICE of of Filing Consent to Join Forms Under the Fair Labor Standards Act, 29 U.S.C. Section 216(b). Document filed by Laryssa Jock. (Attachments: # 1 N. Areena CTJ, # 2 E. Caldwell CTJ, # 3 K. Christy CTJ, # 4 S. Crump CTJ, # 5 F. Droz−Schwartz CTJ, # 6 D. Gold CTJ, # 7 A. Kalemba CTJ, # 8 J. Molina CTJ, # 9 B. Roy CTJ)(Smith, Sam) (Entered: 05/16/2008)
33 MEMORANDUM OF LAW in Opposition re: 21 MOTION Bifurcated Scheduling, Consideration, And Disposition Of Legal Issues Relative To The Workplace Dispute Resolution Agreement Between Each Plaintiff And Defendant.. Document filed by Linda Rhodes, Khristina Rodriguez, Nina Shahmirzadi, Kelly Contreras, Leighla Smith, Dawn Souto−Coons, Marie Wolf, Laryssa Jock, Jacquelyn Boyle, Christy Chadwick, Lisa Follett, Maria House, Denise Maddox, Lisa McConnell, Gloria Pagan, Judy Reed. (Attachments: # 1 Exhibit A − Supplementary Rules for Class Arbitrations, # 2 Exhibit B − House Arbitration Agreement, # 3 Exhibit C − Farsi Arbitration Agreement, # 4 Exhibit D − JS 5.1.08 Email to Maatman)(Sellers, Joseph) (Entered: 05/16/2008)
34 MEMORANDUM OF LAW in Opposition re: 25 MOTION to Compel Arbitration and Stay Litigation.. Document filed by Sterling Jewelers, Inc. (Maatman, Gerald) (Entered: 05/19/2008)
35 DECLARATION of Gerald L. Maatman, Jr. in Opposition re: 25 MOTION to Compel Arbitration and Stay Litigation.. Document filed by Sterling Jewelers, Inc. (Attachments: # 1 Certificate of Service)(Maatman, Gerald) (Entered: 05/19/2008)
36 ANSWER to Amended Complaint., COUNTERCLAIM against all plaintiffs. Document filed by Sterling Jewelers, Inc. Related document: 11 Amended Complaint,, filed by Leighla Smith, Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Lisa Follett, Linda Rhodes, Christy Chadwick, Laryssa Jock, Denise Maddox, Khristina Rodriguez, Gloria Pagan, Kelly Contreras, Leighla Coons, Nina Shahmirzadi, Jacquelyn Boyle. (Attachments: # 1 Exhibit A to Answer, # 2 Exhibit B to Answer, # 3 Exhibit C to Answer, # 4 Exhibit D to Answer, # 5 Exhibit E to Answer, # 6 Exhibit F to Answer, # 7 Exhibit G to Answer, # 8 Exhibit H to Answer, # 9 Exhibit I to Answer, # 10 Exhibit J to Answer, # 11 Exhibit K to Answer, # 12 Exhibit L to Answer, # 13 Exhibit M to Answer, # 14 Exhibit N to Answer, # 15 Exhibit O to Answer, # 16 Exhibit P to Answer, # 17 Exhibit Q to Answer, # 18 Exhibit R to Answer, # 19

05/20/2008 05/22/2008 05/22/2008 05/22/2008
05/23/2008 05/23/2008 05/27/2008
05/27/2008
05/30/2008 06/02/2008
06/02/2008

Exhibit S to Answer, # 20 Exhibit T to Answer, # 21 Exhibit U to Answer, # 22 Exhibit V to Answer, # 23 Exhibit W to Answer, # 24 Exhibit X to Answer)(Maatman, Gerald) (Entered: 05/20/2008)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 5/20/2008. (ja) (Entered: 05/27/2008)
37 NOTICE of of Motion to Strike Counterclaims From the Pleadings Pursuant to Rule 12(f), or, in the Alternative, Motion to Dismiss Counterclaims Pursuant to Rule 12(b)(6). Document filed by Laryssa Jock. (Smith, Sam) (Entered: 05/22/2008)
38 MOTION to Strike Document No. [36 (Counterclaims)] from the Pleadings Pursuant to Rule 12(f) or, in the Alternative, Motion to Dismiss Counterclaims Pursuant to Rule 12(b)(6). Document filed by Laryssa Jock. Responses due by 6/2/2008(Smith, Sam) (Entered: 05/22/2008)
39 MEMORANDUM OF LAW in Support re: 38 MOTION to Strike Document No. [36 (Counterclaims)] from the Pleadings Pursuant to Rule 12(f) or, in the Alternative, Motion to Dismiss Counterclaims Pursuant to Rule 12(b)(6). MOTION to Strike Document No. [36 (Counterclaims)] from the Pleadings Pursuant to Rule 12(f) or, in the Alternative, Motion to Dismiss Counterclaims Pursuant to Rule 12(b)(6).. Document filed by Laryssa Jock. (Attachments: # 1 Exh. A − Weed ltr to parties, # 2 Exh B − Maatman ltr to Sellers)(Smith, Sam) (Entered: 05/22/2008)
40 REPLY MEMORANDUM OF LAW in Support re: 21 MOTION Bifurcated Scheduling, Consideration, And Disposition Of Legal Issues Relative To The Workplace Dispute Resolution Agreement Between Each Plaintiff And Defendant.. Document filed by Sterling Jewelers, Inc. (Attachments: # 1 Certificate of Service)(Maatman, Gerald) (Entered: 05/23/2008)
41 NOTICE OF APPEARANCE by Stephen S. Zashin on behalf of Sterling Jewelers, Inc (Zashin, Stephen) (Entered: 05/23/2008)
42 REPLY to Response to Motion re: 25 MOTION to Compel Arbitration and Stay Litigation.. Document filed by Linda Rhodes, Khristina Rodriguez, Nina Shahmirzadi, Kelly Contreras, Leighla Smith, Dawn Souto−Coons, Marie Wolf, Laryssa Jock, Jacquelyn Boyle, Christy Chadwick, Lisa Follett, Maria House, Denise Maddox, Lisa McConnell, Gloria Pagan, Judy Reed. (Attachments: # 1 Exhibit A − Email correspondence between J. Sellers and G. Maatman, # 2 Exhibit B − 04.15.08 Letter to J. Spagnola from S. Smith)(Sellers, Joseph) (Entered: 05/27/2008)
43 REPLY AFFIDAVIT of Joseph M. Sellers in Support re: 25 MOTION to Compel Arbitration and Stay Litigation.. Document filed by Linda Rhodes, Khristina Rodriguez, Nina Shahmirzadi, Kelly Contreras, Leighla Smith, Dawn Souto−Coons, Marie Wolf, Laryssa Jock, Jacquelyn Boyle, Christy Chadwick, Lisa Follett, Maria House, Denise Maddox, Lisa McConnell, Gloria Pagan, Judy Reed. (Sellers, Joseph) (Entered: 05/27/2008)
44 NOTICE of Filing Consent to Join Forms Under the Fair Labor Standards Act, 29 U.S.C. Section 216(b). Document filed by Laryssa Jock. (Attachments: # 1 K Kopacka CTJ, # 2 A Temples CTJ)(Smith, Sam) (Entered: 05/30/2008)
45 DECLARATION of Gerald A. Maatman, Jr. in Opposition re: 38 MOTION to Strike Document No. [36 (Counterclaims)] from the Pleadings Pursuant to Rule 12(f) or, in the Alternative, Motion to Dismiss Counterclaims Pursuant to Rule 12(b)(6). MOTION to Strike Document No. [36 (Counterclaims)] from the Pleadings Pursuant to Rule 12(f) or, in the Alternative, Motion to Dismiss Counterclaims Pursuant to Rule 12(b)(6).. Document filed by Sterling Jewelers, Inc. (Attachments: # 1 Exhibit A to Declaration)(Maatman, Gerald) (Entered: 06/02/2008)
46 MEMORANDUM OF LAW in Opposition re: 38 MOTION to Strike Document No. [36 (Counterclaims)] from the Pleadings Pursuant to Rule 12(f) or, in the Alternative, Motion to Dismiss Counterclaims Pursuant to Rule 12(b)(6). MOTION to Strike Document No. [36 (Counterclaims)] from the Pleadings Pursuant to Rule 12(f) or, in the Alternative, Motion to Dismiss Counterclaims Pursuant to Rule 12(b)(6). dated 6/2/08. Document filed by Sterling Jewelers, Inc. (Maatman, Gerald) (Entered: 06/02/2008)

06/06/2008 06/09/2008
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06/29/2009 06/30/2009 06/30/2009
07/09/2009 07/14/2009
07/17/2009

47 NOTICE of Filing Consent to Join Forms Under the Fair Labor Standards Act, 29 U.S.C. Section 216(b). Document filed by Laryssa Jock. (Attachments: # 1 V DeMarco CTJ, # 2 C Malone CTJ)(Smith, Sam) (Entered: 06/06/2008)
48 REPLY MEMORANDUM OF LAW in Support re: 38 MOTION to Strike Document No. [36 (Counterclaims)] from the Pleadings Pursuant to Rule 12(f) or, in the Alternative, Motion to Dismiss Counterclaims Pursuant to Rule 12(b)(6). MOTION to Strike Document No. [36 (Counterclaims)] from the Pleadings Pursuant to Rule 12(f) or, in the Alternative, Motion to Dismiss Counterclaims Pursuant to Rule 12(b)(6).. Document filed by Laryssa Jock. (Smith, Sam) (Entered: 06/09/2008)
49 REPORT of Rule 26(f) Planning Meeting.(Sellers, Joseph) (Entered: 06/09/2008)
50 NOTICE of Filing Consent to Join Forms Under the Fair Labor Standards Act, 29 U.S.C. Section 216(b). Document filed by Laryssa Jock. (Attachments: # 1 L Follett − CTJ, # 2 C Gorham − CTJ)(Smith, Sam) (Entered: 06/16/2008)
51 TRANSCRIPT of proceedings held on 6/12/08 before Judge Jed S. Rakoff. (ama) (Entered: 06/18/2008)
52 ORDER: Plaintiffs' motion to refer to arbitration is granted; defendant's motion for bifurcated scheduling is denied; and plaintiffs' motion to strike is denied as moot. The Court hereby refers this dispute to arbitration pursuant to RESOLVE, defendant's workplace alternative dispute resolution program, and stays the instant action for all purposes. The Clerk of the Court is directed to place this action on the Suspense calendar. An opinion setting forth the reasons for this ruling will follow in due course. So Ordered. (Signed by Judge Jed S. Rakoff on 6/18/08) (js) (Entered: 06/19/2008)
53 BRIEF seeking certification for interlocutory appeal. Document filed by Sterling Jewelers, Inc.(Maatman, Gerald) (Entered: 07/03/2008)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 7/3/2008. (jmi) (Entered: 07/09/2008)
54 TRANSCRIPT of proceedings held on 6/12/08 before Judge Jed S. Rakoff. (ama) (Entered: 07/07/2008)
55 OPPOSITION BRIEF re: 53 Brief Requesting 1292(b) Certification and Stay. Document filed by Laryssa Jock.(Smith, Sam) (Entered: 07/08/2008)
56 MEMORANDUM ORDER For the reasons set forth in this order, the court reaffirms its June 18 rulings, denies the motion for certification, and directs the clerk to place this case on the courts suspense calendar pending conclusion of the arbitration. (Signed by Judge Jed S. Rakoff on 7/15/08) (mme) (Entered: 07/15/2008)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 6/29/2009. (tro) (Entered: 06/30/2009)
57 MOTION to Vacate Arbitration Award or Stay the Proceeding. Document filed by Sterling Jewelers, Inc. Return Date set for 7/28/2009 at 11:30 AM.(Maatman, Gerald) (Entered: 06/30/2009)
58 MEMORANDUM OF LAW in Support re: 57 MOTION to Vacate Arbitration Award or Stay the Proceeding.. Document filed by Sterling Jewelers, Inc. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C part 1 of 4, # 4 Exhibit C part 2 of 4, # 5 Exhibit C part 3 of 4, # 6 Exhibit C part 4 of 4, # 7 Exhibit D, # 8 Exhibit E, # 9 Exhibit F, # 10 Exhibit G, # 11 Exhibit H, # 12 Exhibit I, # 13 Exhibit J, # 14 Exhibit K)(Maatman, Gerald) (Entered: 06/30/2009)
59 NOTICE OF APPEARANCE by John Douglas Richards on behalf of Laryssa Jock (Attachments: # 1 Certificate of Service)(Richards, John) (Entered: 07/09/2009)
60 RESPONSE in Opposition re: 57 MOTION to Vacate Arbitration Award or Stay the Proceeding.. Document filed by Laryssa Jock. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Certificate of Service)(Sellers, Joseph) (Entered: 07/14/2009)
61 ENDORSED LETTER addressed to Judge Jed. S. Rakoff from Jenny R. Yang dated 7/13/09 re: Counsel for Plaintiffs seek the withdrawal of Sahar Aziz and Lynda Grant

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as attorneys of record for the Names Plaintiffs, herein. ENDORSEMENT: SO ORDERED. Attorney Sahar Aziz and Lynda J. Grant terminated. (Signed by Judge Jed S. Rakoff on 7/13/09) (tro) (Entered: 07/17/2009)
62 REPLY MEMORANDUM OF LAW in Support re: 57 MOTION to Vacate Arbitration Award or Stay the Proceeding.. Document filed by Sterling Jewelers, Inc. (Maatman, Gerald) (Entered: 07/21/2009)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Oral Argument held on 7/28/2009 re: Motion to vacate arbitration award. Decision reserved. (mro) (Entered: 07/30/2009)
63 TRANSCRIPT of proceedings held on 7/28/09 before Judge Jed S. Rakoff. (pl) Modified on 8/30/2010 (pl). (Entered: 08/20/2009)
64 ORDER denying 57 Motion to Vacate Arbitration. On June 30, 2009, defendant in this action moved to vacate the arbitrator's clause construction award or, in the alternative, to stay the proceedings. Defendant's motion is hereby denied in its entirety. An opinion setting forth the reasons for this determination will issue promptly. SO ORDERED. (Signed by Judge Jed S. Rakoff on 8/31/2009) (tve) (Entered: 09/01/2009)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 9/29/2009. (mro) (Entered: 09/30/2009)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 9/30/2009. (mbe) (Entered: 11/02/2009)
65 ORDER: The Court hereby clarifies that no final judgment will be entered in this case until the court issues its opinion and that the time to appeal runs from the time final judgment is entered. So Ordered (Signed by Judge Jed S. Rakoff on 9/30/09) (js) (Entered: 10/01/2009)
66 OPINION AND ORDER:#98407 The Court therefore reaffirms its August 31 ruling and denies the motion to vacate the arbitrators ruling or stay the arbitration proceedings. The parties are, however, directed to apprise the Court in writing, every three months beginning January 15, 2010, of the status of the arbitration. (Signed by Judge Jed S. Rakoff on 12/28/2009) (jpo) Modified on 12/31/2009 (ajc). (Entered: 12/30/2009)
67 STATUS REPORT. (Parties' First Arbitration Status Report) Document filed by Linda Rhodes, Nina Shahmirzadi, Kelly Contreras, Leighla Smith, Dawn Souto−Coons, Marie Wolf, Sterling Jewelers, Inc, Laryssa Jock, Christy Chadwick, Maria House, Denise Maddox, Lisa McConnell, Gloria Pagan, Judy Reed. (Attachments: # 1 Exhibit 1 − Case Management Order, # 2 Certificate of Service)(Yang, Jenny) (Entered: 01/15/2010)
68 NOTICE OF APPEAL from 66 Memorandum & Opinion. Document filed by Sterling Jewelers, Inc. Filing fee $ 455.00, receipt number E 892617. (nd) (Entered: 01/27/2010)
Transmission of Notice of Appeal to the District Judge re: 68 Notice of Appeal. (nd) (Entered: 01/27/2010)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 68 Notice of Appeal. (nd) (Entered: 01/27/2010)
Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 41 Notice of Appearance filed by Sterling Jewelers, Inc, 56 Memorandum & Opinion, 22 Declaration in Support of Motion, filed by Sterling Jewelers, Inc, 62 Reply Memorandum of Law in Support of Motion filed by Sterling Jewelers, Inc, 20 Notice (Other), Notice (Other) filed by Leighla Smith, Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Lisa Follett, Dawn Souto−Coons, Linda Rhodes, Christy Chadwick, Laryssa Jock, Denise Maddox, Khristina Rodriguez, Gloria Pagan, Kelly Contreras, Nina Shahmirzadi, Jacquelyn Boyle, 38 MOTION to Strike Document No. [36 (Counterclaims)] from the Pleadings Pursuant to Rule 12(f) or, in the Alternative, Motion to Dismiss Counterclaims Pursuant to Rule 12(b)(6). MOTION to Strike Document No. [36 (Counterclaims)] from the Pleadings Pursuant to Rule 12(f) or, in the Alternative, Motion to Dismiss Counterclaims Pursuant to Rule

12(b)(6). filed by Laryssa Jock, 53 Brief filed by Sterling Jewelers, Inc, 11 Amended Complaint,, filed by Leighla Smith, Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Lisa Follett, Linda Rhodes, Christy Chadwick, Laryssa Jock, Denise Maddox, Khristina Rodriguez, Gloria Pagan, Kelly Contreras, Nina Shahmirzadi, Jacquelyn Boyle, 61 Endorsed Letter, Add and Terminate Attorneys,, 49 Rule 26(f) Discovery Plan Report, 68 Notice of Appeal filed by Sterling Jewelers, Inc, 42 Reply to Response to Motion,, filed by Leighla Smith, Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Lisa Follett, Dawn Souto−Coons, Linda Rhodes, Christy Chadwick, Laryssa Jock, Denise Maddox, Khristina Rodriguez, Gloria Pagan, Kelly Contreras, Nina Shahmirzadi, Jacquelyn Boyle, 7 MOTION for Joseph M. Sellers to Appear Pro Hac Vice. filed by Leighla Smith, Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Lisa Follett, Linda Rhodes, Christy Chadwick, Laryssa Jock, Denise Maddox, Khristina Rodriguez, Gloria Pagan, Nina Shahmirzadi, Jacquelyn Boyle, 64 Order on Motion to Vacate Arbitration, 26 Memorandum of Law in Support of Motion,, filed by Leighla Smith, Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Lisa Follett, Dawn Souto−Coons, Linda Rhodes, Christy Chadwick, Laryssa Jock, Denise Maddox, Khristina Rodriguez, Gloria Pagan, Kelly Contreras, Nina Shahmirzadi, Jacquelyn Boyle, 4 Notice (Other), Notice (Other) filed by Leighla Smith, Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Lisa Follett, Linda Rhodes, Christy Chadwick, Laryssa Jock, Denise Maddox, Khristina Rodriguez, Gloria Pagan, Nina Shahmirzadi, Jacquelyn Boyle, 39 Memorandum of Law in Support of Motion,, filed by Laryssa Jock, 52 Order on Motion for Miscellaneous Relief, Order on Motion to Compel Arbitration, Order on Motion to Strike,,,,,, 35 Declaration in Opposition to Motion filed by Sterling Jewelers, Inc, 23 Memorandum of Law in Support of Motion, filed by Sterling Jewelers, Inc, 1 Complaint, filed by Leighla Smith, Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Lisa Follett, Linda Rhodes, Christy Chadwick, Laryssa Jock, Denise Maddox, Khristina Rodriguez, Gloria Pagan, Nina Shahmirzadi, Jacquelyn Boyle, 57 MOTION to Vacate Arbitration Award or Stay the Proceeding. filed by Sterling Jewelers, Inc, 15 MOTION for Sam J. Smith to Appear Pro Hac Vice. filed by Leighla Smith, Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Lisa Follett, Dawn Souto−Coons, Linda Rhodes, Christy Chadwick, Laryssa Jock, Denise Maddox, Khristina Rodriguez, Gloria Pagan, Kelly Contreras, Nina Shahmirzadi, Jacquelyn Boyle, 5 Notice (Other), Notice (Other) filed by Leighla Smith, Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Lisa Follett, Linda Rhodes, Christy Chadwick, Laryssa Jock, Denise Maddox, Khristina Rodriguez, Gloria Pagan, Nina Shahmirzadi, Jacquelyn Boyle, 33 Memorandum of Law in Opposition to Motion,, filed by Leighla Smith, Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Lisa Follett, Dawn Souto−Coons, Linda Rhodes, Christy Chadwick, Laryssa Jock, Denise Maddox, Khristina Rodriguez, Gloria Pagan, Kelly Contreras, Nina Shahmirzadi, Jacquelyn Boyle, 34 Memorandum of Law in Opposition to Motion filed by Sterling Jewelers, Inc, 14 MOTION for Thomas A. Warren to Appear Pro Hac Vice. filed by Leighla Smith, Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Lisa Follett, Dawn Souto−Coons, Linda Rhodes, Christy Chadwick, Laryssa Jock, Denise Maddox, Khristina Rodriguez, Gloria Pagan, Kelly Contreras, Nina Shahmirzadi, Jacquelyn Boyle, 50 Notice (Other) filed by Laryssa Jock, 8 MOTION for Sahar F. Aziz to Appear Pro Hac Vice. filed by Leighla Smith, Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Lisa Follett, Linda Rhodes, Christy Chadwick, Laryssa Jock, Denise Maddox, Khristina Rodriguez, Gloria Pagan, Nina Shahmirzadi, Jacquelyn Boyle, 30 Order,, 3 Notice (Other), Notice (Other) filed by Leighla Smith, Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Lisa Follett, Linda Rhodes, Christy Chadwick, Laryssa Jock, Denise Maddox, Khristina Rodriguez, Gloria Pagan, Nina Shahmirzadi, Jacquelyn Boyle, 28 Order on Motion to Appear Pro Hac Vice, 66 Memorandum & Opinion, 43 Reply Affidavit in Support of Motion, filed by Leighla Smith, Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Lisa Follett, Dawn Souto−Coons, Linda Rhodes, Christy Chadwick, Laryssa Jock, Denise Maddox, Khristina Rodriguez, Gloria Pagan, Kelly Contreras, Nina Shahmirzadi, Jacquelyn Boyle, 31 Answer to Complaint, Counterclaim,,,,,, filed by Sterling Jewelers, Inc, 10 Order on Motion to Appear Pro Hac Vice, 59 Notice of Appearance filed by Laryssa Jock, 17 Notice of Appearance filed by Sterling Jewelers, Inc, 67 Status Report, filed by Leighla Smith, Maria House, Sterling Jewelers, Inc, Marie Wolf, Lisa McConnell, Judy Reed, Dawn Souto−Coons, Linda Rhodes, Christy Chadwick, Laryssa Jock, Denise Maddox, Gloria Pagan, Kelly Contreras, Nina Shahmirzadi, 18 Rule 7.1 Corporate Disclosure Statement filed by Sterling Jewelers, Inc, 16 MOTION for Loren Donnell to Appear Pro Hac Vice. filed by Leighla Smith, Maria House, Marie Wolf,

03/11/2010
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05/13/2010

Lisa McConnell, Judy Reed, Lisa Follett, Dawn Souto−Coons, Linda Rhodes, Christy Chadwick, Laryssa Jock, Denise Maddox, Khristina Rodriguez, Gloria Pagan, Kelly Contreras, Nina Shahmirzadi, Jacquelyn Boyle, 9 Order on Motion to Appear Pro Hac Vice, 48 Reply Memorandum of Law in Support of Motion, filed by Laryssa Jock, 40 Reply Memorandum of Law in Support of Motion, filed by Sterling Jewelers, Inc, 37 Notice (Other) filed by Laryssa Jock, 13 Notice (Other), Notice (Other) filed by Leighla Smith, Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Lisa Follett, Dawn Souto−Coons, Linda Rhodes, Christy Chadwick, Laryssa Jock, Denise Maddox, Khristina Rodriguez, Gloria Pagan, Kelly Contreras, Nina Shahmirzadi, Jacquelyn Boyle, 12 Notice (Other), Notice (Other) filed by Leighla Smith, Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Lisa Follett, Linda Rhodes, Christy Chadwick, Laryssa Jock, Denise Maddox, Khristina Rodriguez, Gloria Pagan, Kelly Contreras, Nina Shahmirzadi, Jacquelyn Boyle, 6 Notice (Other), Notice (Other) filed by Leighla Smith, Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Lisa Follett, Linda Rhodes, Christy Chadwick, Laryssa Jock, Denise Maddox, Khristina Rodriguez, Gloria Pagan, Nina Shahmirzadi, Jacquelyn Boyle, 45 Declaration in Opposition to Motion,, filed by Sterling Jewelers, Inc, 32 Notice (Other), Notice (Other) filed by Laryssa Jock, 29 Order on Motion to Appear Pro Hac Vice, 44 Notice (Other) filed by Laryssa Jock, 24 Notice (Other), Notice (Other), Notice (Other) filed by Leighla Smith, Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Lisa Follett, Dawn Souto−Coons, Linda Rhodes, Christy Chadwick, Laryssa Jock, Denise Maddox, Khristina Rodriguez, Gloria Pagan, Kelly Contreras, Nina Shahmirzadi, Jacquelyn Boyle, 58 Memorandum of Law in Support of Motion, filed by Sterling Jewelers, Inc, 36 Answer to Amended Complaint, Counterclaim,,,,,,,, filed by Sterling Jewelers, Inc, 2 Order, Set Deadlines/Hearings,, 46 Memorandum of Law in Opposition to Motion, filed by Sterling Jewelers, Inc, 55 Opposition Brief filed by Laryssa Jock, 47 Notice (Other) filed by Laryssa Jock, 25 MOTION to Compel Arbitration and Stay Litigation. filed by Leighla Smith, Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Lisa Follett, Dawn Souto−Coons, Linda Rhodes, Christy Chadwick, Laryssa Jock, Denise Maddox, Khristina Rodriguez, Gloria Pagan, Kelly Contreras, Nina Shahmirzadi, Jacquelyn Boyle, 65 Order, 27 Order on Motion to Appear Pro Hac Vice, 60 Response in Opposition to Motion, filed by Laryssa Jock, 21 MOTION Bifurcated Scheduling, Consideration, And Disposition Of Legal Issues Relative To The Workplace Dispute Resolution Agreement Between Each Plaintiff And Defendant. filed by Sterling Jewelers, Inc USCA Case Number 10−0533, were transmitted to the U.S. Court of Appeals. (nd) (Entered: 03/10/2010)
69 First Supplemental ROA Sent to USCA (Index). Notice that the Supplemental Index to the record on Appeal for 68 Notice of Appeal filed by Sterling Jewelers, Inc USCA Case Number 10−0330, 3 Copies of the index, Certified Supplemental Clerk Certificate and Certified Docket Sheet were transmitted to the U.S. Court of Appeals. (tp) (nd). (Entered: 03/12/2010)
70 STATUS REPORT. Parties' Second Arbitration Status Report Document filed by Linda Rhodes, Nina Shahmirzadi, Leighla Smith, Dawn Souto−Coons, Marie Wolf, Laryssa Jock, Christy Chadwick, Maria House, Denise Maddox, Lisa McConnell, Gloria Pagan, Judy Reed.(Sellers, Joseph) (Entered: 04/15/2010)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 5/3/2010. (mro) (Entered: 05/04/2010)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 5/11/2010. (mro) (Entered: 05/13/2010)
71 MEMORANDUM ORDER: Accordingly, Sterling is directed to file its moving papers by no later than May 13, 2010, plaintiffs must file their answering papers by May 28, 2010, and Sterling must file its reply papers by June 11, 2010. Oral argument on this motion will be held on June 30, 2010, at 5:00 p.m. in Courtroom 14B at 500 Pearl Street, New York, NY. (Signed by Judge Jed S. Rakoff on 5/11/2010) (jfe) (Entered: 05/12/2010)
72 MOTION Relief from the Court's December 28, 2009 Order re: 66 Memorandum & Opinion, /Notice of Motion. Document filed by Sterling Jewelers, Inc.(Maatman, Gerald) (Entered: 05/13/2010)

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73 MEMORANDUM OF LAW in Support re: 72 MOTION Relief from the Court's December 28, 2009 Order re: 66 Memorandum & Opinion, /Notice of Motion.. Document filed by Sterling Jewelers, Inc. (Attachments: # 1 Exhibit A − AAA Clause Construction Award Of Arbitrator (Dated June 1, 2009), # 2 Exhibit B − Plaintiffs' Correspondence To Judge Rakoff (Dated May 7, 2010))(Maatman, Gerald) (Entered: 05/13/2010)
74 TRUE COPY ORDER of USCA as to 68 Notice of Appeal filed by Sterling Jewelers, Inc USCA Case Number 10−0330. IT IS HEREBY ORDERED that Appellant's motion to hold the appeal in abeyance is GRANTED. Within 7 days of district court's decision of the pending motions, Appellant must notify the Second Circuit as to whether Appellant intends to go forward with briefing in this appeal. Catherine O'Hagan Wolfe, Clerk USCA. Certified: 05/26/2010. (nd) (Entered: 05/26/2010)
Transmission of USCA Mandate/Order to the District Judge re: 74 USCA Order,. (nd) (Entered: 05/26/2010)
75 RESPONSE to Motion re: 72 MOTION Relief from the Court's December 28, 2009 Order re: 66 Memorandum & Opinion, /Notice of Motion. Plaintiffs' Response to Defendant's Motion for Relief from the Court's December 28, 2009 Order. Document filed by Linda Rhodes, Nina Shahmirzadi, Leighla Smith, Dawn Souto−Coons, Marie Wolf, Laryssa Jock, Christy Chadwick, Maria House, Denise Maddox, Lisa McConnell, Gloria Pagan, Judy Reed. (Attachments: # 1 Exhibit Ex. 1 Respondent's Clause Construction Brief, # 2 Exhibit Ex. 2 Claimants' Clause Construction Response, # 3 Exhibit Ex 3 Clause Construction Award, # 4 Exhibit Ex 4 McConnell RESOLVE Agreement, # 5 Exhibit Ex 5 Cole and Long John Silvers, # 6 Exhibit Ex 6 Levitt and Lipper, # 7 Exhibit Ex 7 Warrior and FFE, # 8 Exhibit Ex 8 Claimants' Clause Construction Opening Brief, # 9 Exhibit Ex 9 Sidhu and GMRI, # 10 Exhibit Ex 10 Respondent's Reply on Clause Construction, # 11 Exhibit Ex 11 Arbitration Hearing Transcript, # 12 Exhibit Ex 12 Hoffman and Arthur Anderson, # 13 Exhibit Ex 13 Kay Jewelers Credit Agreement, # 14 Exhibit Ex 14 Disposition of Application for Clarification, # 15 Certificate of Service)(Sellers, Joseph) (Entered: 05/28/2010)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 6/2/2010. (mro) (Entered: 06/03/2010)
76 MOTION to Stay / Notice of Motion of Defendant's Motion to Stay the Arbitration Proceedings. Document filed by Sterling Jewelers, Inc.(Maatman, Gerald) (Entered: 06/03/2010)
77 MEMORANDUM OF LAW in Support re: 76 MOTION to Stay / Notice of Motion of Defendant's Motion to Stay the Arbitration Proceedings.. Document filed by Sterling Jewelers, Inc. (Attachments: # 1 Exhibit A − AAA Clause Construction Award Dated June 1, 2009, # 2 Exhibit B − AAA Order Denying Sterlings Motion To Stay Discovery Dated May 28, 2010, # 3 Exhibit C − Declaration Of Gerald L. Maatman, Jr., # 4 Exhibit D − AAA Case Management Order Dated April 19, 2010)(Maatman, Gerald) (Entered: 06/03/2010)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 6/7/2010. (mro) (Entered: 06/08/2010)
78 RESPONSE in Opposition re: 76 MOTION to Stay / Notice of Motion of Defendant's Motion to Stay the Arbitration Proceedings.. Document filed by Linda Rhodes, Nina Shahmirzadi, Leighla Smith, Dawn Souto−Coons, Marie Wolf, Laryssa Jock, Christy Chadwick, Maria House, Denise Maddox, Lisa McConnell, Gloria Pagan, Judy Reed. (Attachments: # 1 Exhibit 1 − Declaration of Joseph M. Sellers, # 2 Exhibit 2 − Clause Construction Award, # 3 Exhibit 3 − Clause Construction Clarification, # 4 Exhibit 4 − AAA Supplementary Rules, # 5 Exhibit 5 − EEOC Letter of Determination, # 6 Exhibit 6 − EEOC v. Sterling Complaint, # 7 Exhibit 7 (Pt 1) − Plaintiffs' First Amended Arbitration Complaint, # 8 Exhibit 7 (Pt. 2) First Amended Arbitration Complaint, # 9 Exhibit 8 − RESOLVE Brochure)(Sellers, Joseph) (Entered: 06/10/2010)
79 REPLY MEMORANDUM OF LAW in Support re: 72 MOTION Relief from the Court's December 28, 2009 Order re: 66 Memorandum & Opinion, /Notice of Motion.. Document filed by Sterling Jewelers, Inc. (Attachments: # 1 Exhibit 1)(Maatman, Gerald) (Entered: 06/11/2010)

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80 REPLY to Response to Motion re: 76 MOTION to Stay / Notice of Motion of Defendant's Motion to Stay the Arbitration Proceedings.. Document filed by Sterling Jewelers, Inc. (Attachments: # 1 Exhibit A − Declaration Of Gerald L. Maatman, Jr.)(Maatman, Gerald) (Entered: 06/17/2010)
81 NOTICE OF APPEARANCE by Kalpana Kotagal on behalf of Laryssa Jock (Attachments: # 1 Certificate of Service)(Kotagal, Kalpana) (Entered: 06/30/2010)
82 ORDER: At oral argument, the parties consented to staying all proceedings before the arbitrator until July 30, 2010. See Transcript, 6/30/2010. The Court hereby confirms the parties' agreement to stay matters until that date, by which time the Court will issue an opinion resolving the Rule 62.1 motion. So Ordered. (Signed by Judge Jed S. Rakoff on 7/6/2010) (js) (Entered: 07/08/2010)
83 STATUS REPORT. Parties' Third Arbitration Status Report Document filed by Linda Rhodes, Nina Shahmirzadi, Leighla Smith, Dawn Souto−Coons, Marie Wolf, Laryssa Jock, Christy Chadwick, Maria House, Denise Maddox, Lisa McConnell, Gloria Pagan, Judy Reed. (Attachments: # 1 Exhibit Second Circuit Order)(Sellers, Joseph) (Entered: 07/15/2010)
84 TRANSCRIPT of proceedings (Argument) held on 6/30/2010 before Judge Jed S. Rakoff. (ja) (Entered: 07/20/2010)
85 MEMORANDUM ORDER: For the foregoing reasons, if jurisdiction were restored to this Court, the Court would reconsider its December 28 Order and vacate the June 1 Award permitting class arbitration as having been made in excess of the arbitrator's powers. Pursuant to Rule 62.1(b), Sterling is directed bring this Memorandum Order to the attention of the Court of Appeals. The Clerk of this Court is directed to close documents 72 and 76 on the docket of this case. (Signed by Judge Jed S. Rakoff on 7/26/2010) (jar) (Entered: 07/27/2010)
86 ORDER of USCA (Certified Copy) as to 68 Notice of Appeal filed by Sterling Jewelers, Inc USCA Case Number 10−0330. IT IS HEREBY ORDERED that the motion by Appellant Sterling Jewelers, Inc. for limited remand pursuant to F.R.A.P. 12.1 to permit the District Court to rule on a pending Fed. R. Civ. Pro. 60(b)(5) motion is GRANTED. Appellant must notify the Court within seven days after the District Court has ruled so that the appeal may proceed. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 8/3/10. (tp) (Entered: 08/04/2010)
87 ORDER: Accordingly, the Court, for the reasons stated in the July 26 Memorandum Order, hereby grants defendant's motion and vacates the arbitrator's June 1, 2009 award permitting class arbitration to proceed. Pursuant to the Court of Appeals' August 3, 2010 Order, defendant must notify the Court of Appeals of this ruling by no later than August 13, 2010. So Ordered. (Signed by Judge Jed S. Rakoff on 8/6/2010) (js) (Entered: 08/09/2010)
88 NOTICE OF APPEAL from 85 Order on Motion for Miscellaneous Relief, Order on Motion to Stay, 87 Order,. Document filed by Judy Reed, Marie Wolf, Maria House, Laryssa Jock, Denise Maddox, Lisa McConnell, Gloria Pagan, Linda Rhodes, Nina Shahmirzadi, Dawn Souto−Coons, Chirsty Meierdiercks, Leighla Murphy. Filing fee $ 455.00, receipt number E 911687. (nd) (Entered: 08/11/2010)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 8/10/2010. (mro) (Entered: 08/12/2010)
Transmission of Notice of Appeal to the District Judge re: 88 Notice of Appeal,. (nd) (Entered: 08/11/2010)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 88 Notice of Appeal,. (nd) (Entered: 08/11/2010)
Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 41 Notice of Appearance filed by Sterling Jewelers, Inc, 62 Reply Memorandum of Law in Support of Motion filed by Sterling Jewelers, Inc, 74 USCA Order, 80 Reply to Response to Motion, filed by Sterling Jewelers, Inc, 20 Notice (Other), Notice (Other) filed by Leighla Smith, Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Lisa Follett, Dawn Souto−Coons, Linda Rhodes, Christy Chadwick, Laryssa Jock, Denise Maddox, Khristina Rodriguez, Gloria Pagan, Kelly

Contreras, Nina Shahmirzadi, Jacquelyn Boyle, 53 Brief filed by Sterling Jewelers, Inc, 49 Rule 26(f) Discovery Plan Report, 42 Reply to Response to Motion,, filed by Leighla Smith, Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Lisa Follett, Dawn Souto−Coons, Linda Rhodes, Christy Chadwick, Laryssa Jock, Denise Maddox, Khristina Rodriguez, Gloria Pagan, Kelly Contreras, Nina Shahmirzadi, Jacquelyn Boyle, 4 Notice (Other), Notice (Other) filed by Leighla Smith, Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Lisa Follett, Linda Rhodes, Christy Chadwick, Laryssa Jock, Denise Maddox, Khristina Rodriguez, Gloria Pagan, Nina Shahmirzadi, Jacquelyn Boyle, 71 Order, Set Deadlines/Hearings,, 39 Memorandum of Law in Support of Motion,, filed by Laryssa Jock, 1 Complaint, filed by Leighla Smith, Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Lisa Follett, Linda Rhodes, Christy Chadwick, Laryssa Jock, Denise Maddox, Khristina Rodriguez, Gloria Pagan, Nina Shahmirzadi, Jacquelyn Boyle, 86 USCA Order − Other,, 5 Notice (Other), Notice (Other) filed by Leighla Smith, Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Lisa Follett, Linda Rhodes, Christy Chadwick, Laryssa Jock, Denise Maddox, Khristina Rodriguez, Gloria Pagan, Nina Shahmirzadi, Jacquelyn Boyle, 33 Memorandum of Law in Opposition to Motion,, filed by Leighla Smith, Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Lisa Follett, Dawn Souto−Coons, Linda Rhodes, Christy Chadwick, Laryssa Jock, Denise Maddox, Khristina Rodriguez, Gloria Pagan, Kelly Contreras, Nina Shahmirzadi, Jacquelyn Boyle, 70 Status Report, filed by Leighla Smith, Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Dawn Souto−Coons, Linda Rhodes, Christy Chadwick, Laryssa Jock, Denise Maddox, Gloria Pagan, Nina Shahmirzadi, 14 MOTION for Thomas A. Warren to Appear Pro Hac Vice. filed by Leighla Smith, Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Lisa Follett, Dawn Souto−Coons, Linda Rhodes, Christy Chadwick, Laryssa Jock, Denise Maddox, Khristina Rodriguez, Gloria Pagan, Kelly Contreras, Nina Shahmirzadi, Jacquelyn Boyle, 50 Notice (Other) filed by Laryssa Jock, 28 Order on Motion to Appear Pro Hac Vice, 66 Memorandum & Opinion, 31 Answer to Complaint, Counterclaim,,,,,, filed by Sterling Jewelers, Inc, 59 Notice of Appearance filed by Laryssa Jock, 67 Status Report, filed by Leighla Smith, Maria House, Sterling Jewelers, Inc, Marie Wolf, Lisa McConnell, Judy Reed, Dawn Souto−Coons, Linda Rhodes, Christy Chadwick, Laryssa Jock, Denise Maddox, Gloria Pagan, Kelly Contreras, Nina Shahmirzadi, 76 MOTION to Stay / Notice of Motion of Defendant's Motion to Stay the Arbitration Proceedings. filed by Sterling Jewelers, Inc, 16 MOTION for Loren Donnell to Appear Pro Hac Vice. filed by Leighla Smith, Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Lisa Follett, Dawn Souto−Coons, Linda Rhodes, Christy Chadwick, Laryssa Jock, Denise Maddox, Khristina Rodriguez, Gloria Pagan, Kelly Contreras, Nina Shahmirzadi, Jacquelyn Boyle, 48 Reply Memorandum of Law in Support of Motion, filed by Laryssa Jock, 40 Reply Memorandum of Law in Support of Motion, filed by Sterling Jewelers, Inc, 6 Notice (Other), Notice (Other) filed by Leighla Smith, Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Lisa Follett, Linda Rhodes, Christy Chadwick, Laryssa Jock, Denise Maddox, Khristina Rodriguez, Gloria Pagan, Nina Shahmirzadi, Jacquelyn Boyle, 29 Order on Motion to Appear Pro Hac Vice, 44 Notice (Other) filed by Laryssa Jock, 85 Order on Motion for Miscellaneous Relief, Order on Motion to Stay,,,, 58 Memorandum of Law in Support of Motion, filed by Sterling Jewelers, Inc, 2 Order, Set Deadlines/Hearings,, 87 Order, 47 Notice (Other) filed by Laryssa Jock, 25 MOTION to Compel Arbitration and Stay Litigation. filed by Leighla Smith, Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Lisa Follett, Dawn Souto−Coons, Linda Rhodes, Christy Chadwick, Laryssa Jock, Denise Maddox, Khristina Rodriguez, Gloria Pagan, Kelly Contreras, Nina Shahmirzadi, Jacquelyn Boyle, 56 Memorandum & Opinion, 22 Declaration in Support of Motion, filed by Sterling Jewelers, Inc, 38 MOTION to Strike Document No. [36 (Counterclaims)] from the Pleadings Pursuant to Rule 12(f) or, in the Alternative, Motion to Dismiss Counterclaims Pursuant to Rule 12(b)(6). MOTION to Strike Document No. [36 (Counterclaims)] from the Pleadings Pursuant to Rule 12(f) or, in the Alternative, Motion to Dismiss Counterclaims Pursuant to Rule 12(b)(6). filed by Laryssa Jock, 11 Amended Complaint,, filed by Leighla Smith, Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Lisa Follett, Linda Rhodes, Christy Chadwick, Laryssa Jock, Denise Maddox, Khristina Rodriguez, Gloria Pagan, Kelly Contreras, Nina Shahmirzadi, Jacquelyn Boyle, 61 Endorsed Letter, Add and Terminate Attorneys,, 68 Notice of Appeal filed by Sterling Jewelers, Inc, 7 MOTION for Joseph M. Sellers to Appear Pro Hac Vice. filed by Leighla Smith, Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Lisa Follett, Linda Rhodes, Christy Chadwick, Laryssa Jock, Denise Maddox, Khristina Rodriguez, Gloria Pagan,

08/18/2010

Nina Shahmirzadi, Jacquelyn Boyle, 64 Order on Motion to Vacate Arbitration, 26 Memorandum of Law in Support of Motion,, filed by Leighla Smith, Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Lisa Follett, Dawn Souto−Coons, Linda Rhodes, Christy Chadwick, Laryssa Jock, Denise Maddox, Khristina Rodriguez, Gloria Pagan, Kelly Contreras, Nina Shahmirzadi, Jacquelyn Boyle, 52 Order on Motion for Miscellaneous Relief, Order on Motion to Compel Arbitration, Order on Motion to Strike,,,,,, 23 Memorandum of Law in Support of Motion, filed by Sterling Jewelers, Inc, 35 Declaration in Opposition to Motion filed by Sterling Jewelers, Inc, 57 MOTION to Vacate Arbitration Award or Stay the Proceeding. filed by Sterling Jewelers, Inc, 88 Notice of Appeal, filed by Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Dawn Souto−Coons, Linda Rhodes, Laryssa Jock, Denise Maddox, Gloria Pagan, Nina Shahmirzadi, 72 MOTION Relief from the Court's December 28, 2009 Order re: 66 Memorandum & Opinion, /Notice of Motion. filed by Sterling Jewelers, Inc, 15 MOTION for Sam J. Smith to Appear Pro Hac Vice. filed by Leighla Smith, Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Lisa Follett, Dawn Souto−Coons, Linda Rhodes, Christy Chadwick, Laryssa Jock, Denise Maddox, Khristina Rodriguez, Gloria Pagan, Kelly Contreras, Nina Shahmirzadi, Jacquelyn Boyle, 73 Memorandum of Law in Support of Motion, filed by Sterling Jewelers, Inc, 34 Memorandum of Law in Opposition to Motion filed by Sterling Jewelers, Inc, 77 Memorandum of Law in Support of Motion,, filed by Sterling Jewelers, Inc, 8 MOTION for Sahar F. Aziz to Appear Pro Hac Vice. filed by Leighla Smith, Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Lisa Follett, Linda Rhodes, Christy Chadwick, Laryssa Jock, Denise Maddox, Khristina Rodriguez, Gloria Pagan, Nina Shahmirzadi, Jacquelyn Boyle, 30 Order,, 81 Notice of Appearance filed by Laryssa Jock, 3 Notice (Other), Notice (Other) filed by Leighla Smith, Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Lisa Follett, Linda Rhodes, Christy Chadwick, Laryssa Jock, Denise Maddox, Khristina Rodriguez, Gloria Pagan, Nina Shahmirzadi, Jacquelyn Boyle, 43 Reply Affidavit in Support of Motion, filed by Leighla Smith, Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Lisa Follett, Dawn Souto−Coons, Linda Rhodes, Christy Chadwick, Laryssa Jock, Denise Maddox, Khristina Rodriguez, Gloria Pagan, Kelly Contreras, Nina Shahmirzadi, Jacquelyn Boyle, 79 Reply Memorandum of Law in Support of Motion, filed by Sterling Jewelers, Inc, 10 Order on Motion to Appear Pro Hac Vice, 17 Notice of Appearance filed by Sterling Jewelers, Inc, 18 Rule 7.1 Corporate Disclosure Statement filed by Sterling Jewelers, Inc, 9 Order on Motion to Appear Pro Hac Vice, 37 Notice (Other) filed by Laryssa Jock, 12 Notice (Other), Notice (Other) filed by Leighla Smith, Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Lisa Follett, Linda Rhodes, Christy Chadwick, Laryssa Jock, Denise Maddox, Khristina Rodriguez, Gloria Pagan, Kelly Contreras, Nina Shahmirzadi, Jacquelyn Boyle, 32 Notice (Other), Notice (Other) filed by Laryssa Jock, 83 Status Report, filed by Leighla Smith, Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Dawn Souto−Coons, Linda Rhodes, Christy Chadwick, Laryssa Jock, Denise Maddox, Gloria Pagan, Nina Shahmirzadi, 24 Notice (Other), Notice (Other), Notice (Other) filed by Leighla Smith, Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Lisa Follett, Dawn Souto−Coons, Linda Rhodes, Christy Chadwick, Laryssa Jock, Denise Maddox, Khristina Rodriguez, Gloria Pagan, Kelly Contreras, Nina Shahmirzadi, Jacquelyn Boyle, 36 Answer to Amended Complaint, Counterclaim,,,,,,,, filed by Sterling Jewelers, Inc, 75 Response to Motion,,,,, filed by Leighla Smith, Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Dawn Souto−Coons, Linda Rhodes, Christy Chadwick, Laryssa Jock, Denise Maddox, Gloria Pagan, Nina Shahmirzadi, 46 Memorandum of Law in Opposition to Motion, filed by Sterling Jewelers, Inc, 69 Supplemental ROA Sent to USCA − Index, 55 Opposition Brief filed by Laryssa Jock, 82 Order, 65 Order, 27 Order on Motion to Appear Pro Hac Vice, 78 Response in Opposition to Motion,,, filed by Leighla Smith, Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Dawn Souto−Coons, Linda Rhodes, Christy Chadwick, Laryssa Jock, Denise Maddox, Gloria Pagan, Nina Shahmirzadi, 21 MOTION Bifurcated Scheduling, Consideration, And Disposition Of Legal Issues Relative To The Workplace Dispute Resolution Agreement Between Each Plaintiff And Defendant. filed by Sterling Jewelers, Inc, 60 Response in Opposition to Motion, filed by Laryssa Jock were transmitted to the U.S. Court of Appeals. (js) (Entered: 08/11/2010)
89 MOTION to Stay Plaintiffs' Notice of Plaintiffs' Motion Seeking an Order Nunc Pro Tunc to August 16, 2010 Staying the Effect of the Court's August 16, 2010 Order, Staying the Arbitration Proceedings and Continuing The Tolling of the Statute of Limitations for Class Action Claims During the Pendency of Plaintiffs' Appeal of the

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Court's August 16, 2010 Order. Document filed by Laryssa Jock. (Attachments: # 1 Exhibit Proposed Order)(Sellers, Joseph) (Entered: 08/18/2010)
90 MEMORANDUM OF LAW in Support re: 89 MOTION to Stay Plaintiffs' Notice of Plaintiffs' Motion Seeking an Order Nunc Pro Tunc to August 16, 2010 Staying the Effect of the Court's August 16, 2010 Order, Staying the Arbitration Proceedings and Continuing The Tolling of the Statute of Limitations for Class Action Claims During the Pendency of Plaintiffs' Appeal of this Court's August 6, 2010 Order. Document filed by Laryssa Jock. (Sellers, Joseph) (Entered: 08/18/2010)
91 DECLARATION of Joseph Sellers in Support re: 89 MOTION to Stay Plaintiffs' Notice of Plaintiffs' Motion Seeking an Order Nunc Pro Tunc to August 16, 2010 Staying the Effect of the Court's August 16, 2010 Order, Staying the Arbitration Proceedings and Continuing The Tolling of the. Document filed by Laryssa Jock. (Attachments: # 1 Exhibit A Tolling Agreement, # 2 Exhibit B ltr to Weed re filing fees, # 3 Exhibit C ltr to Gianni re indiv arb, # 4 Exhibit D Clause Construction Award 072810, # 5 Exhibit E Clause Construction Award 070610, # 6 Exhibit F Galakhova v Hooters, # 7 Exhibit G Ballou dec, # 8 Exhibit H Bartl dec, # 9 Exhibit I Christy dec, # 10 Exhibit J McDonald dec, # 11 Exhibit K Szlag dec, # 12 Exhibit L Thielker dec, # 13 Exhibit M Lanier dec)(Sellers, Joseph) (Entered: 08/18/2010)
92 First Supplemental ROA Sent to USCA (Index). Notice that the Supplemental Index to the record on Appeal for 88 Notice of Appeal, filed by Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Nina Shahmirzadi, Dawn Souto−Coons, Linda Rhodes, Laryssa Jock, Denise Maddox, Gloria Pagan USCA Case Number 10−3247, 3 Copies of the index, Certified Supplemental Clerk Certificate and Certified Docket Sheet were transmitted to the U.S. Court of Appeals. (tp) (tp). (Entered: 08/24/2010)
93 MANDATE of USCA (Certified Copy) as to 68 Notice of Appeal filed by Sterling Jewelers, Inc USCA Case Number 10−0330....that the appeal is hereby WITHDRAWN pursuant to Rule 42(b) of the Federal Rules of Appellate Procedure. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 08/31/2010. (nd) (Entered: 09/01/2010)
Transmission of USCA Mandate/Order to the District Judge re: 93 USCA Mandate,. (nd) (Entered: 09/01/2010)
94 OPPOSITION BRIEF re: 90 Memorandum of Law in Support of Motion, 89 MOTION to Stay Plaintiffs' Notice of Plaintiffs' Motion Seeking an Order Nunc Pro Tunc to August 16, 2010 Staying the Effect of the Court's August 16, 2010 Order, Staying the Arbitration Proceedings and Continuing The Tolling of the, 91 Declaration in Support of Motion,,, /Opposition To Plaintiffs' Motion Seeking An Order Nunc Pro Tunc To August 6, 2010 Staying The Effect Of The Court's August 6, 2010 Order, et al.. Document filed by Sterling Jewelers, Inc. (Attachments: # 1 Exhibit A To Opposition Memorandum Of Law − Declaration Of Gerald L. Maatman, Jr., # 2 Exhibit 1 To Maatman Declaration − Amended Clause Construction Award In Maslo v. Oak Pointe Country Club, # 3 Exhibit 2 To Maatman Declaration − Partial Final Clause Construction Award In Mensch v. Alta Colleges, Inc., # 4 Exhibit 3 To Maatman Declaration − Partial Final Clause Construction Award In Todd v. Credit Solution, # 5 Exhibit 4 To Maatman Declaration − October 31, 2006 Email And Attached Revisions To Tolling Agreement Between Counsel For The Parties, # 6 Exhibit 5 To Maatman Declaration − January 11, 2007 Executed Tolling Agreement Between The Parties)(Maatman, Gerald) (Entered: 09/01/2010)
95 REPLY MEMORANDUM OF LAW in Support re: 89 MOTION to Stay Plaintiffs' Notice of Plaintiffs' Motion Seeking an Order Nunc Pro Tunc to August 16, 2010 Staying the Effect of the Court's August 16, 2010 Order, Staying the Arbitration Proceedings and Continuing The Tolling of the. Document filed by Judy Reed, Marie Wolf, Christy Chadwick, Maria House, Laryssa Jock, Denise Maddox, Lisa McConnell, Gloria Pagan, Linda Rhodes, Nina Shahmirzadi, Leighla Smith, Dawn Souto−Coons. (Attachments: # 1 Exhibit 1 − Proposed Order (Motion to Stay), # 2 Exhibit 2 − Declaration of Joseph M. Sellers, # 3 Exhibit A to Sellers Decl. (Step 3 Form), # 4 Exhibit B to Sellers Decl. (Cover Letter for Step 3 Form), # 5 Exhibit C to Sellers Decl. (8.26.2010 Letter Issuing 60 Day Stay), # 6 Exhibit D to Sellers Decl. (9.1.2010 Letter from AAA Confirming 60−day Stay), # 7 Exhibit E to Sellers Decl. (9.7.2010 Letter from J. Spagnola to S. Smith), # 8 Exhibit 3 − Demetriou v. Earthlink,

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Inc. (AAA), # 9 Exhibit 4 (Pt. 1) − Owens v. APC (AAA), # 10 Exhibit 4 (Pt. 2) − Owens v. APC (AAA), # 11 Exhibit 4 (Pt. 3) − Owens v. APC (AAA))(Sellers, Joseph) (Entered: 09/09/2010)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Argument held on 9/15/2010. Court reporter Martha Drevis present. Plaintiffs by Jenny Rae Yang and Joseph M. Sellers. Defendants by Gerald Leonard Maatman, Jr and David Ross and Stephen Zashin. (mro) (Entered: 09/22/2010)
96 MEMORANDUM ORDER: For the foregoing reasons, the Court hereby stays the effect of its August 6 order nunc pro tunc to August 6, 2010, and denies all other aspects of plaintiffs' motion. the Clerk of the Court is directed to close document number 89 on the docket of this case. So Ordered. (Signed by Judge Jed S. Rakoff on 9/17/2010) (js) (Entered: 09/20/2010)
97 TRANSCRIPT of proceedings held on September 15, 2010 3:13 p.m. before Judge Jed S. Rakoff. (ajc) (Entered: 10/04/2010)
Second Supplemental ROA Sent to USCA (Electronic File). Certified Supplemental Indexed record on Appeal Electronic Files for 90 Memorandum of Law in Support of Motion, filed by Laryssa Jock, 89 MOTION to Stay Plaintiffs' Notice of Plaintiffs' Motion Seeking an Order Nunc Pro Tunc to August 16, 2010 Staying the Effect of the Court's August 16, 2010 Order, Staying the Arbitration Proceedings and Continuing The Tolling of the filed by Laryssa Jock, 91 Declaration in Support of Motion,,, filed by Laryssa Jock, 94 Opposition Brief,,,,, filed by Sterling Jewelers, Inc, 95 Reply Memorandum of Law in Support of Motion,,,, filed by Leighla Smith, Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Dawn Souto−Coons, Nina Shahmirzadi, Christy Chadwick, Linda Rhodes, Laryssa Jock, Denise Maddox, Gloria Pagan, 92 Supplemental ROA Sent to USCA − Index, 93 USCA Mandate, 96 Order on Motion to Stay, USCA Case Number 10−3247, were transmitted to the U.S. Court of Appeals. (nd) (Entered: 10/13/2010)
98 STATUS REPORT. (PARTIES FOURTH ARBITRATION STATUS REPORT) Document filed by Sterling Jewelers, Inc.(Maatman, Gerald) (Entered: 10/15/2010)
99 MOTION to Enjoin Sterling Jewelers from Proceeding with Individual Arbitrations Pending Plaintiffs' Appeal of this Court's August 6, 2010 Order. Document filed by Judy Reed, Marie Wolf, Christy Chadwick, Maria House, Laryssa Jock, Denise Maddox, Lisa McConnell, Gloria Pagan, Linda Rhodes, Nina Shahmirzadi, Leighla Smith, Dawn Souto−Coons. Return Date set for 12/7/2010 at 04:00 PM. (Attachments: # 1 Text of Proposed Order)(Sellers, Joseph) (Entered: 11/09/2010)
100 MEMORANDUM OF LAW in Support re: 99 MOTION to Enjoin Sterling Jewelers from Proceeding with Individual Arbitrations Pending Plaintiffs' Appeal of this Court's August 6, 2010 Order.. Document filed by Judy Reed, Marie Wolf, Christy Chadwick, Maria House, Laryssa Jock, Denise Maddox, Lisa McConnell, Gloria Pagan, Linda Rhodes, Nina Shahmirzadi, Leighla Smith, Dawn Souto−Coons. (Attachments: # 1 Exhibit A − August 26 Letter from Linda Cook, # 2 Exhibit B − September 1 Letter from Linda Cook, # 3 Exhibit C − August 27 Letter from Gerald L. Maatman, # 4 Exhibit D − November 3 Letter from Joseph Spagnola, # 5 Exhibit E − November 1 Letter from Linda Cook, # 6 Exhibit F − November 5 Letter from Linda Cook, # 7 Exhibit G − Order of Second Circuit Granting Motion for Expedited Appeal, # 8 Exhibit H − (Pt. 1) October 25 Letter from Sam J. Smith to Linda Cook, # 9 Exhibit H − (Pt. 2) October 25 Letter from Sam J. Smith to Linda Cook, # 10 Exhibit I − October 27 Letter from Gerald L. Maatman to Linda Cook, # 11 Exhibit J − October 28 Letter from Sam J. Smith to Linda Cook)(Sellers, Joseph) (Entered: 11/09/2010)
101 RESPONSE in Opposition re: 99 MOTION to Enjoin Sterling Jewelers from Proceeding with Individual Arbitrations Pending Plaintiffs' Appeal of this Court's August 6, 2010 Order.. Document filed by Sterling Jewelers, Inc. (Maatman, Gerald) (Entered: 11/16/2010)
102 DECLARATION of Gerald Leonard Maatman, Jr. in Opposition re: 99 MOTION to Enjoin Sterling Jewelers from Proceeding with Individual Arbitrations Pending Plaintiffs' Appeal of this Court's August 6, 2010 Order.. Document filed by Sterling Jewelers, Inc. (Attachments: # 1 Exhibit #1 − RESOLVE Arbitration Agreement Of Plaintiff Jacquelyn Boyle (dated Sept. 21, 2004), # 2 Exhibit #2 − Aug. 26, 2010 AAA

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Letter Instituting A 60−Day Stay Of Each Of The Individual Claimants' Arbitration Proceedings, # 3 Exhibit #3 − Aug. 27, 2010 Sterling Letter To AAA, # 4 Exhibit #4 − Sept. 1, 2010 AAA Letter, # 5 Exhibit #5 − Oct. 25, 2010 Claimants' Letter to AAA, # 6 Exhibit #6 − Oct. 27, 2010 Sterling Letter to AAA, # 7 Exhibit #7 − Oct. 28, 2010 Claimants' Letter to AAA, # 8 Exhibit #8 − Nov. 1, 2010 AAA Letter, # 9 Exhibit #9 − Sept. 15, 2010 Hearing Transcript)(Maatman, Gerald) (Entered: 11/16/2010)
103 REPLY MEMORANDUM OF LAW in Support re: 99 MOTION to Enjoin Sterling Jewelers from Proceeding with Individual Arbitrations Pending Plaintiffs' Appeal of this Court's August 6, 2010 Order.. Document filed by Judy Reed, Marie Wolf, Christy Chadwick, Maria House, Laryssa Jock, Denise Maddox, Lisa McConnell, Gloria Pagan, Linda Rhodes, Nina Shahmirzadi, Leighla Smith, Dawn Souto−Coons. (Attachments: # 1 Exhibit Exhibit 1 − Letter from Linda Cook, # 2 Exhibit Exhibit 2 − AAA Supplementary Rules, # 3 Exhibit Exhibit 3 − Letter from Sam Smith)(Sellers, Joseph) (Entered: 11/19/2010)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 12/2/2010. (pl) (Entered: 12/08/2010)
104 ORDER, the Court hereby enjoins Sterling from proceeding with the individual arbitrations until after oral argument is presented to the Court of Appeals on January 11, 2011. Despite the AAA's assurances that it will abide by the terms of any court order, see supra, nonetheless, given Sterling's claim that an order enjoining Sterling would not necessarily be binding on the AAA, see Def. Mem. at 3 n. 11, the Court, out of an abundance of caution, also temporarily restrains the AAA from proceeding with the administration of the individual arbitrations, but gives the AAA, if it disagrees with that injunction, the opportunity to contest it by submitting opposition papers to the Court by no later than December 23, 2010, to which the plaintiffs may respond by papers submitted no later than January 7, 2011. The parties are directed to immediately furnish the FAA with a copy of this Memorandum Order and to keep the Court apprised of any material developments in this matter in any of the pertinent fora. The Clerk of this Court is directed to close document number 99 on the docket of this case. Motions terminated: 99 MOTION to Enjoin Sterling Jewelers from Proceeding with Individual Arbitrations Pending Plaintiffs' Appeal of this Court's August 6, 2010 Order. filed by Leighla Smith, Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Dawn Souto−Coons, Nina Shahmirzadi, Christy Chadwick, Linda Rhodes, Laryssa Jock, Denise Maddox, Gloria Pagan. (Signed by Judge Jed S. Rakoff on 12/10/2010) (lnl) (Entered: 12/10/2010)
105 TRANSCRIPT of proceedings held on December 7, 2010 at 4:14 p.m. before Judge Jed S. Rakoff. (js) (Entered: 12/29/2010)
106 NOTICE of Stipulation. Document filed by Judy Reed, Marie Wolf, Christy Chadwick, Maria House, Laryssa Jock, Denise Maddox, Lisa McConnell, Gloria Pagan, Linda Rhodes, Nina Shahmirzadi, Leighla Smith, Dawn Souto−Coons. (Attachments: # 1 Exhibit 1−Stipulation Regarding Stay of the Individual Arbitration Proceedings, # 2 Exhibit 2−Certificate of Service)(Sellers, Joseph) (Entered: 01/03/2011)
107 STATUS REPORT. (PARTIES FIFTH ARBITRATION STATUS REPORT) Document filed by Sterling Jewelers, Inc.(Maatman, Gerald) (Entered: 01/18/2011)
108 STATUS REPORT. Parties' Sixth Arbitration Status Report Document filed by Judy Reed, Marie Wolf, Christy Chadwick, Maria House, Laryssa Jock, Denise Maddox, Lisa McConnell, Gloria Pagan, Linda Rhodes, Nina Shahmirzadi, Leighla Smith, Dawn Souto−Coons.(Sellers, Joseph) (Entered: 04/20/2011)
109 TRUE COPY ORDER of USCA as to 88 Notice of Appeal, filed by Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Nina Shahmirzadi, Dawn Souto−Coons, Linda Rhodes, Laryssa Jock, Denise Maddox, Gloria Pagan USCA Case Number 10−3247. Ordered, Adjudged and Decreed that the judgment of the District Court is REVERSED and the case is REMANDED in accordance with this opinion. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 07/08/2011. (Attachments: # 1 Opinion)(nd) Modified on 9/21/2011 (nd). (Entered: 07/08/2011)
110 STATUS REPORT. Document filed by Judy Reed, Marie Wolf, Christy Chadwick, Maria House, Laryssa Jock, Denise Maddox, Lisa McConnell, Gloria Pagan, Linda

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Rhodes, Nina Shahmirzadi, Leighla Smith, Dawn Souto−Coons.(Sellers, Joseph) (Entered: 07/15/2011)
111 MANDATE of USCA (Certified Copy) as to 88 Notice of Appeal, filed by Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Nina Shahmirzadi, Dawn Souto−Coons, Linda Rhodes, Laryssa Jock, Denise Maddox, Gloria Pagan USCA Case Number 10−3247. Ordered, Adjudged and Decreed that the judgment of the District Court is REVERSED and the case is REMANDED in accordance with this opinion.. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 09/20/2011. (nd) (Entered: 09/21/2011)
Transmission of USCA Mandate/Order to the District Judge re: 111 USCA Mandate,. (nd) (Entered: 09/21/2011)
112 STATUS REPORT. (Parties' Eighth Arbitration Status Report) Document filed by Sterling Jewelers, Inc.(Maatman, Gerald) (Entered: 10/17/2011)
113 Costs Taxed as to 111 USCA Mandate, USCA Case Number 10−3247. in the amount of $1,007.30. Docketed as Judgment #11,1967 on 10/18/2011 in favor of Appellants Christy Chadwick, et al against Appellee Sterling Jewelers, Inc. (nd) (Entered: 10/18/2011)
114 ORDER: In light of the Second Circuit's decision in Jock v. Sterling Jewelers Inc., 646 F.3d 113 (2d Cir. 2011), the arbitrator's clause construction award is hereby CONFIRMED. (Signed by Judge Jed S. Rakoff on 10/26/2011) (ab) (Main Document 114 replaced on 10/27/2011) (jar). (Entered: 10/27/2011)
115 STATUS REPORT. (PARTIES' NINTH ARBITRATION JOINT STATUS REPORT) Document filed by Sterling Jewelers, Inc.(Maatman, Gerald) (Entered: 01/17/2012)
116 STATUS REPORT. (Parties' Tenth Arbitration Status Report) Document filed by Sterling Jewelers, Inc.(Maatman, Gerald) (Entered: 04/17/2012)
117 STATUS REPORT. Parties' Eleventh Arbitration Status Report Document filed by Sterling Jewelers, Inc.(Maatman, Gerald) (Entered: 07/13/2012)
118 STATUS REPORT. Document filed by Judy Reed, Marie Wolf, Christy Chadwick, Maria House, Laryssa Jock, Denise Maddox, Lisa McConnell, Gloria Pagan, Linda Rhodes, Nina Shahmirzadi, Leighla Smith, Dawn Souto−Coons.(Sellers, Joseph) (Entered: 10/15/2012)
119 MOTION for Stephen S. Zashin to Withdraw as Attorney. Document filed by Sterling Jewelers, Inc. (Attachments: # 1 Affidavit Consent to Motion to Withdraw as Counsel)(Zashin, Stephen) (Entered: 11/30/2012)
120 ORDER granting 119 Motion to Withdraw as Attorney. Attorney Stephen S. Zashin terminated. SO ORDERED. (Signed by Judge Jed S. Rakoff on 12/05/2012) (ama) (Entered: 12/10/2012)
121 STATUS REPORT. Parties' Thirteenth Arbitration Status Report Document filed by Sterling Jewelers, Inc.(Maatman, Gerald) (Entered: 01/14/2013)
122 STATUS REPORT. Parties' Fourteenth Arbitration Status Report Document filed by Judy Reed, Marie Wolf, Jacquelyn Boyle, Christy Chadwick, Kelly Contreras, Lisa Follett, Maria House, Laryssa Jock, Denise Maddox, Lisa McConnell, Gloria Pagan, Linda Rhodes, Khristina Rodriguez, Nina Shahmirzadi, Leighla Smith, Dawn Souto−Coons, Sterling Jewelers, Inc.(Sellers, Joseph) (Entered: 04/15/2013)
123 MOTION for Jenny R. Yang to Withdraw as Attorney. Document filed by Judy Reed, Marie Wolf, Christy Chadwick, Maria House, Laryssa Jock, Denise Maddox, Lisa McConnell, Gloria Pagan, Linda Rhodes, Nina Shahmirzadi, Leighla Smith, Dawn Souto−Coons.(Yang, Jenny) (Entered: 04/30/2013)
124 MEMO ENDORSED ON MOTION TO WITHDRAW AS COUNSEL: Pursuant to Local Civil Rule 1.4, Jenny R. Yang of Cohen Milstein Sellers & Toll, PLLC, moves this Court for an order granting permission to withdraw as counsel for Plaintiffs. The reason for this request is Jenny R. Yang will no longer be with the firm of Cohen Milstein Sellers & Toll, PLLC. Joseph M. Sellers, Kalpana Kotagal and John Douglas Richards will remain as counsel for Plaintiffs from Cohen Milstein. Shaylyn Cochran

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of Cohen Milstein will be filing a motion to enter her appearance in this matter. In addition, attorneys from co−counsel Burr & Smith, LLP and Thomas A. Warren Law Offices, P.L. will continue to represent Plaintiffs. Written notification of this motion to withdraw has been provided to the Plaintiffs by electronic and first class mail. (Signed by Judge Jed S. Rakoff on 5/1/2013) (js) (Entered: 05/02/2013)
125 MOTION for Shaylyn Cochran to Appear Pro Hac Vice. Filing fee $ 200.00, receipt number 0208−8558453. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Judy Reed, Marie Wolf, Jacquelyn Boyle, Christy Chadwick, Maria House, Laryssa Jock, Denise Maddox, Lisa McConnell, Gloria Pagan, Linda Rhodes, Nina Shahmirzadi, Leighla Smith, Dawn Souto−Coons.(Cochran, Shayl) (Entered: 05/30/2013)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 125 MOTION for Shaylyn Cochran to Appear Pro Hac Vice. Filing fee $ 200.00, receipt number 0208−8558453. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (bcu) (Entered: 05/30/2013)
126 ORDER FOR ADMISSION PRO HAC VICE: granting 125 Motion for Shaylyn Cochran to Appear Pro Hac Vice. (Signed by Judge Jed S. Rakoff on 6/3/2013) (js) (Entered: 06/05/2013)
127 ORDER FOR ADMISSION PRO HAC VICE: Attorney Shaylyn Cochran for Jacquelyn Boyle,Shaylyn Cochran for Kelly Contreras,Shaylyn Cochran for Lisa Follett,Shaylyn Cochran for Khristina Rodriguez admitted Pro Hac Vice. (Signed by Judge Jed S. Rakoff on 6/3/2013) (js) (Entered: 06/05/2013)
128 STATUS REPORT. Parties' Fifteenth Arbitration Status Report Document filed by Sterling Jewelers, Inc.(Maatman, Gerald) (Entered: 07/15/2013)
129 STATUS REPORT. Parties' Sixteenth Arbitration Status Report Document filed by Sterling Jewelers, Inc.(Maatman, Gerald) (Entered: 10/15/2013)
130 STATUS REPORT. Seventeenth Joint Status Report Document filed by Judy Reed, Marie Wolf, Christy Chadwick, Maria House, Laryssa Jock, Denise Maddox, Lisa McConnell, Gloria Pagan, Linda Rhodes, Nina Shahmirzadi, Leighla Smith, Dawn Souto−Coons.(Sellers, Joseph) (Entered: 01/15/2014)
131 STATUS REPORT. Parties' Eighteenth Arbitration Status Report Document filed by Sterling Jewelers, Inc.(Maatman, Gerald) (Entered: 04/14/2014)
132 STATUS REPORT. Parties' Nineteenth Arbitration Status Report Document filed by Sterling Jewelers, Inc.(Maatman, Gerald) (Entered: 07/11/2014)
133 ORDER: Accordingly, the Court hereby dismisses this case without prejudice to being re−filed if necessary upon the resolution of the arbitration proceedings. The Clerk of the Court is directed to close the case. SO ORDERED. (Signed by Judge Jed S. Rakoff on 9/30/2014) (ama) Modified on 9/30/2014 (ama). (Entered: 09/30/2014)
134 NOTICE OF CHANGE OF ADDRESS by Sam J. Smith on behalf of All Plaintiffs. New Address: Burr & Smith, LLP, 111 2nd Ave. N.E., Suite 1100, St. Petersburg, Florida, USA 33701, 813−253−2010. (Smith, Sam) (Entered: 12/29/2014)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 3/2/2015. (Kotowski, Linda) (Entered: 03/03/2015)
135 MOTION to Vacate The Arbitrator's Class Determination Award. Document filed by Sterling Jewelers, Inc.(Maatman, Gerald) (Entered: 03/03/2015)
136 MEMORANDUM OF LAW in Support re: 135 MOTION to Vacate The Arbitrator's Class Determination Award. . Document filed by Sterling Jewelers, Inc. (Maatman, Gerald) (Entered: 03/03/2015)
137 DECLARATION in Support re: 135 MOTION to Vacate The Arbitrator's Class Determination Award.. Document filed by Sterling Jewelers, Inc. (Attachments: # 1 Exhibit 1 − Class Determination Award (part 1 of 3), # 2 Exhibit 1 − Class Determination Award (part 2 of 3), # 3 Exhibit 1 − Class Determination Award (part 3 of 3), # 4 Exhibit 2 − February 27, 2014 − Class Certification Hearing Transcript

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Excerpts, # 5 Exhibit 3 − Excerpts From Transcript Of Motion Proceedings, # 6 Exhibit 4 − Class Certification Order)(Maatman, Gerald) (Entered: 03/03/2015)
138 REPLY MEMORANDUM OF LAW in Opposition re: 135 MOTION to Vacate The Arbitrator's Class Determination Award. . Document filed by Judy Reed, Marie Wolf, Christy Chadwick, Maria House, Laryssa Jock, Denise Maddox, Lisa McConnell, Gloria Pagan, Linda Rhodes, Nina Shahmirzadi, Leighla Smith, Dawn Souto−Coons. (Attachments: # 1 Exhibit, # 2 Exhibit)(Sellers, Joseph) (Entered: 03/23/2015)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 3/30/2015. (Kotowski, Linda) (Entered: 04/03/2015)
139 REPLY MEMORANDUM OF LAW in Support re: 135 MOTION to Vacate The Arbitrator's Class Determination Award. . Document filed by Sterling Jewelers, Inc. (Maatman, Gerald) (Entered: 04/03/2015)
140 DECLARATION of Gerald L. Maatman, Jr. in Support re: 135 MOTION to Vacate The Arbitrator's Class Determination Award.. Document filed by Sterling Jewelers, Inc. (Attachments: # 1 Exhibit 1 − Excerpts of Sterling Jeweler's Supplemental Memo of Law)(Maatman, Gerald) (Entered: 04/03/2015)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 4/28/2015. (Kotowski, Linda) (Entered: 04/29/2015)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Oral Argument held on 5/4/2015 re: 135 MOTION to Vacate The Arbitrator's Class Determination Award. filed by Sterling Jewelers, Inc. (Kotowski, Linda) (Entered: 05/04/2015)
141 TRANSCRIPT of Proceedings re: argument held on 5/4/2015 before Judge Jed S. Rakoff. Court Reporter/Transcriber: Michael McDaniel, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/15/2015. Redacted Transcript Deadline set for 6/25/2015. Release of Transcript Restriction set for 8/24/2015.(McGuirk, Kelly) (Entered: 05/21/2015)
142 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a argument proceeding held on 5/4/2015 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 05/21/2015)
143 NOTICE of Supplemental Authority. Document filed by Judy Reed, Marie Wolf, Christy Chadwick, Maria House, Laryssa Jock, Denise Maddox, Lisa McConnell, Gloria Pagan, Linda Rhodes, Nina Shahmirzadi, Leighla Smith, Dawn Souto−Coons. (Attachments: # 1 Exhibit)(Sellers, Joseph) (Entered: 08/11/2015)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 11/4/2015. (Kotowski, Linda) (Entered: 12/04/2015)
144 OPINION AND ORDER re: 135 MOTION to Vacate The Arbitrator's Class Determination Award, filed by Sterling Jewelers, Inc. The Court is not unmindful of the high standard for vacating an arbitration award. But deference to arbitrators is not without its limits; and the Court declines to hold that a ruling lacking "barely colorable justification" in black−letter law or common sense must be upheld purely because it issued from an arbitrator's pen. The Court therefore grants Sterling's motion to vacate the Arbitrator's class determination award to the extent that it permits individuals to opt out of a class certified for the purposes of seeking classwide injunctive and declaratory relief. In all other respects, the award is confirmed. The Clerk of Court is directed to close docket number 136. (As further set forth in this Order.) (Signed by Judge Jed S. Rakoff on 11/15/2015) (spo) (Entered: 11/16/2015)
145 NOTICE OF APPEAL from 144 Memorandum & Opinion,,,. Document filed by Sterling Jewelers, Inc. Filing fee $ 505.00, receipt number 0208−11695769. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (Maatman, Gerald) (Entered: 12/03/2015)

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Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 145 Notice of Appeal,. (nd) (Entered: 12/03/2015)
Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 145 Notice of Appeal, filed by Sterling Jewelers, Inc were transmitted to the U.S. Court of Appeals. (nd) (Entered: 12/03/2015)
146 MOTION to Vacate both the Equal Pay Act Collective Action Conditional Certification Award and Order Re Claimants Motion For Tolling Of EPA Limitations Period entered on February 29, 2016 in the matter pending before the American Arbitration Association, captioned Jock, et al. v. Sterling Jewelers Inc., AAA No. 11 160 00655 08. Document filed by Sterling Jewelers, Inc. Return Date set for 5/11/2016 at 02:00 PM.(Maatman, Gerald) (Entered: 03/23/2016)
147 MEMORANDUM OF LAW in Support re: 146 MOTION to Vacate both the Equal Pay Act Collective Action Conditional Certification Award and Order Re Claimants Motion For Tolling Of EPA Limitations Period entered on February 29, 2016 in the matter pending before the American Arbitration Asso (truncated). Document filed by Sterling Jewelers, Inc. (Maatman, Gerald) (Entered: 03/23/2016)
148 DECLARATION of Gerald L. Mattman, Jr., Esq. in Support re: 146 MOTION to Vacate both the Equal Pay Act Collective Action Conditional Certification Award and Order Re Claimants Motion For Tolling Of EPA Limitations Period entered on February 29, 2016 in the matter pending before the American Arbitration Asso. Document filed by Sterling Jewelers, Inc. (Attachments: # 1 Exhibit 1 in Support, # 2 Exhibit 2 in Support, # 3 Exhibit 3 in Support, # 4 Exhibit 4 in Support, # 5 Exhibit 5 in Support, # 6 Exhibit 6 in Support)(Maatman, Gerald) (Entered: 03/23/2016)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 3/23/2016. (Kotowski, Linda) (Entered: 03/24/2016)
149 RESPONSE in Opposition to Motion re: 146 MOTION to Vacate both the Equal Pay Act Collective Action Conditional Certification Award and Order Re Claimants Motion For Tolling Of EPA Limitations Period entered on February 29, 2016 in the matter pending before the American Arbitration Asso . Document filed by Judy Reed, Marie Wolf, Christy Chadwick, Maria House, Laryssa Jock, Denise Maddox, Lisa McConnell, Gloria Pagan, Linda Rhodes, Nina Shahmirzadi, Leighla Smith, Dawn Souto−Coons. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit)(Sellers, Joseph) (Entered: 04/11/2016)
150 REPLY to Response to Motion re: 146 MOTION to Vacate both the Equal Pay Act Collective Action Conditional Certification Award and Order Re Claimants Motion For Tolling Of EPA Limitations Period entered on February 29, 2016 in the matter pending before the American Arbitration Asso . Document filed by Sterling Jewelers, Inc. (Maatman, Gerald) (Entered: 04/20/2016)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Oral Argument held on 5/11/2016 re: 146 MOTION to Vacate both the Equal Pay Act Collective Action Conditional Certification Award and Order Re Claimants Motion For Tolling Of EPA Limitations Period entered on February 29, 2016 in the matter pending before the American Arbitration Asso filed by Sterling Jewelers, Inc. (Kotowski, Linda) (Entered: 05/11/2016)
Terminate Transcript Deadlines (ama) (Entered: 05/23/2016)
151 OPINION AND ORDER #106477: re: 146 MOTION to Vacate both the Equal Pay Act Collective Action Conditional Certification Award and Order Re Claimants Motion For Tolling Of EPA Limitations Period entered on February 29, 2016 in the matter pending before the American Arbitration Asso filed by Sterling Jewelers, Inc. For all these reasons, the Court holds that it lacks jurisdiction to review the Arbitrator's Conditional Certification Award and Tolling Order. The Clerk of Court is directed to close docket entry 146. SO ORDERED. (Signed by Judge Jed S. Rakoff on 5/22/2016) (ama) Modified on 5/24/2016 (ca). Modified on 6/1/2016 (ama). (Entered: 05/23/2016)
152 NOTICE OF APPEAL from 151 Memorandum & Opinion,,. Document filed by Sterling Jewelers, Inc. Filing fee $ 505.00, receipt number 0208−12357373. Form C

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and Form D are due within 14 days to the Court of Appeals, Second Circuit. (Maatman, Gerald) (Entered: 05/31/2016)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 152 Notice of Appeal. (tp) (Entered: 05/31/2016)
Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 152 Notice of Appeal, filed by Sterling Jewelers, Inc were transmitted to the U.S. Court of Appeals. (tp) (Entered: 05/31/2016)
USCA Case Number 15−3947 from the U.S. Court of Appeals, Second Circuit assigned to 145 Notice of Appeal, filed by Sterling Jewelers, Inc. (nd) (Entered: 06/03/2016)
USCA Case Number 16−1731 from the U.S. Court of Appeals, Second Circuit assigned to 152 Notice of Appeal, filed by Sterling Jewelers, Inc. (nd) (Entered: 06/03/2016)
153 FILING ERROR − DEFICIENT DOCKET ENTRY − MOTION for Christina M. Janice to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−13145920. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Sterling Jewelers, Inc. (Attachments: # 1 Exhibit Certificate of Good Standing (New York), # 2 Exhibit Certificate of Good Standing (Ohio), # 3 Text of Proposed Order)(Janice, Christina) Modified on 12/29/2016 (bcu). (Entered: 12/29/2016)
>>>NOTICE REGARDING DEFICIENT MOTION TO APPEAR PRO HAC VICE. Notice to RE−FILE Document No. 153 MOTION for Christina M. Janice to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−13145920. Motion and supporting papers to be reviewed by Clerk's Office staff... The filing is deficient for the following reason(s): Affidavit of Attorney is missing. Please read local rule 1.3;. Re−file the motion as a Corrected Motion to Appear Pro Hac Vice − attach the correct signed PDF − select the correct named filer/filers − attach valid Certificates of Good Standing issued within the past 30 days − attach Proposed Order.. (bcu) (Entered: 12/29/2016)
154 MOTION for Christina M. Janice to Appear Pro Hac Vice (Corrected). Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Sterling Jewelers, Inc. (Attachments: # 1 Affidavit, # 2 Exhibit Certificate of Good Standing (New York), # 3 Exhibit Certificate of Good Standing (Ohio), # 4 Text of Proposed Order)(Janice, Christina) (Entered: 12/29/2016)
155 MOTION for Peter J. Wozniak to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−13147169. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Sterling Jewelers, Inc. (Attachments: # 1 Affidavit, # 2 Exhibit Certificate of Good Standing, # 3 Text of Proposed Order)(Wozniak, Peter) (Entered: 12/29/2016)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 155 MOTION for Peter J. Wozniak to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−13147169. Motion and supporting papers to be reviewed by Clerk's Office staff., 154 MOTION for Christina M. Janice to Appear Pro Hac Vice (Corrected). Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (bcu) (Entered: 12/30/2016)
156 ORDER FOR ADMISSION PRO HAC VICE OF ATTORNEY CHRISTINA M. JANICE granting 154 Motion for Christina M. Janice to Appear Pro Hac Vice. (Signed by Judge Jed S. Rakoff on 12/30/2016) (kgo) (Entered: 01/03/2017)
157 ORDER FOR ADMISSION PRO HAC VICE OF ATTORNEY PETER J. WOZNIAK granting 155 Motion for Peter J. Wozniak to Appear Pro Hac Vice. (Signed by Judge Jed S. Rakoff on 12/30/2016) (kgo) (Entered: 01/03/2017)
158 NOTICE OF CHANGE OF ADDRESS by Peter J. Wozniak on behalf of Sterling Jewelers, Inc. New Address: Seyfarth Shaw LLP, 233 South Wacker Drive, Suite 8000, Chicago, Illinois, USA 60606−6448, 312−460−5000. (Wozniak, Peter) (Entered: 03/31/2017)

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159 NOTICE OF CHANGE OF ADDRESS by Christina M. Janice on behalf of Sterling Jewelers, Inc. New Address: Seyfarth Shaw LLP, 233 S Wacker Drive, Suite 8000, Chicago, Illinois, USA 60606−6448, 312−460−5000. (Janice, Christina) (Entered: 04/10/2017)
160 MANDATE of USCA (Certified Copy) as to 152 Notice of Appeal, filed by Sterling Jewelers, Inc. USCA Case Number 16−1731−cv. ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the appeal be and it hereby is DISMISSED for lack of appellate jurisdiction... Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 06/22/2017. (nd) (Entered: 06/22/2017)
161 TRUE COPY ORDER of USCA as to 145 Notice of Appeal, filed by Sterling Jewelers, Inc. USCA Case Number 15−3947. UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is VACATED, and that the case is REMANDED for further proceedings.. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 07/24/2017. (nd) (Entered: 07/24/2017)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 7/25/2017. (Kotowski, Linda) (Entered: 08/11/2017)
162 MOTION to Vacate the Arbitrator's Class Determination Award. Document filed by Sterling Jewelers, Inc.(Maatman, Gerald) (Entered: 08/07/2017)
163 MEMORANDUM OF LAW in Support re: 162 MOTION to Vacate the Arbitrator's Class Determination Award. . Document filed by Sterling Jewelers, Inc. (Maatman, Gerald) (Entered: 08/07/2017)
164 MANDATE of USCA (Certified Copy) as to 145 Notice of Appeal, filed by Sterling Jewelers, Inc USCA Case Number 15−3947. UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is VACATED, and that the case is REMANDED for further proceedings. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 08/14/2017. (jc) (Entered: 08/14/2017)
Transmission of USCA Mandate to the District Judge re: 164 USCA Mandate. (jc) (Entered: 08/14/2017)
165 MEMORANDUM OF LAW in Opposition re: 162 MOTION to Vacate the Arbitrator's Class Determination Award. . Document filed by Marie Wolf, Christy Chadwick, Maria House, Laryssa Jock, Denise Maddox, Lisa McConnell, Gloria Pagan, Linda Rhodes, Nina Shahmirzadi, Leighla Smith, Dawn Souto−Coons. (Attachments: # 1 Exhibit, # 2 Exhibit)(Sellers, Joseph) (Entered: 08/28/2017)
166 REPLY MEMORANDUM OF LAW in Support re: 162 MOTION to Vacate the Arbitrator's Class Determination Award. . Document filed by Sterling Jewelers, Inc. (Maatman, Gerald) (Entered: 09/11/2017)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Oral Argument held on 10/16/2017 re: 162 MOTION to Vacate the Arbitrator's Class Determination Award. filed by Sterling Jewelers, Inc. (Kotowski, Linda) (Entered: 10/16/2017)
167 Costs Taxed as to 164 USCA Mandate, USCA Case Number 15−3947. in the amount of $1686.40. on 10/27/2017 in favor of Sterling Jewelers Inc., Defendant−Counter−Claimant−Appellant. against Laryssa Jock, Jacquelyn Boyle, Christy Chadwick, Lisa Follett, Maria House, Denise Maddox, Lisa McConnell, Gloria Pagan, Judy Reed, Linda Rhodes, Khristina Rodriguez, Nina Shahmirzadi, Leighla Smith, Marie Wolf, Kelly Contreras, Dawn Souto−Coons, Plaintiffs−Counter−Defendants−Appellees,. (nd) (Entered: 10/27/2017)
168 OPINION AND ORDER re: 162 MOTION to Vacate the Arbitrator's Class Determination Award. filed by Sterling Jewelers, Inc. The Court finds that the Arbitrator may not so bind non−parties to class action procedures where, as here, the Court has determined that the arbitration agreement does not, in fact, permit class action procedures. Therefore the Court finds that the Arbitrator here had no authority to decide whether the RESOLVE agreement permitted class action procedures for anyone other than the named parties who chose to present her with that question and

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those other individuals who chose to opt in to the proceeding before her. See Granite Rock, 561 U.S. at 299; see also Porzig v. Dresdner, Kleinwort, Benson, N. Am. LLC, 497 F.3d 133, 140−41 (2d Cir. 2007). As the arbitrator exceeded her powers, see Porzig, 497 F.3d at 140 (an arbitrator exceeds her powers when she "goes beyond [the] self−limiting agreement between consenting parties"), the Court grants Sterling's motion to vacate the February 2, 2015 Award in so far as that Award certifies a class that includes individuals who have not affirmatively opted in to the arbitral proceedings. The Clerk is directed to close docket entry number 162. SO ORDERED. (Signed by Judge Jed S. Rakoff on 1/15/18) (yv) (Entered: 01/16/2018)
169 NOTICE OF APPEAL from 168 Memorandum & Opinion,,,,,. Document filed by Judy Reed, Marie Wolf, Christy Chadwick, Maria House, Laryssa Jock, Denise Maddox, Lisa McConnell, Gloria Pagan, Linda Rhodes, Nina Shahmirzadi, Leighla Smith, Dawn Souto−Coons. Filing fee $ 505.00, receipt number 0208−14590446. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (Sellers, Joseph) (Entered: 01/18/2018)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 169 Notice of Appeal. (tp) (Entered: 01/18/2018)
Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 169 Notice of Appeal, filed by Leighla Smith, Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Dawn Souto−Coons, Nina Shahmirzadi, Christy Chadwick, Linda Rhodes, Laryssa Jock, Denise Maddox, Gloria Pagan were transmitted to the U.S. Court of Appeals. (tp) (Entered: 01/18/2018)
170 TRANSCRIPT of Proceedings re: ARGUMENT held on 10/16/2017 before Judge Jed S. Rakoff. Court Reporter/Transcriber: Samuel Mauro, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 2/28/2018. Redacted Transcript Deadline set for 3/12/2018. Release of Transcript Restriction set for 5/8/2018.(McGuirk, Kelly) (Entered: 02/07/2018)
171 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a ARGUMENT proceeding held on 10/16/17 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 02/07/2018)
172 USCA OPINION (Certified) as to 169 Notice of Appeal, filed by Leighla Smith, Maria House, Marie Wolf, Lisa McConnell, Judy Reed, Dawn Souto−Coons, Nina Shahmirzadi, Christy Chadwick, Linda Rhodes, Laryssa Jock, Denise Maddox, Gloria Pagan. USCA Case Number 18−153. The arbitrator certified a class of Sterling Jewelers Inc. employees that included employees who did not affirmatively opt in to the arbitration proceeding. The District Court held that the arbitrator exceeded her authority in purporting to bind those absent class members to class arbitration because the arbitrator erred in determining that the arbitration agreement permits class arbitration. We hold that the arbitrator was within her authority in purporting to bind the absent class members to class proceedings because, by signing the operative arbitration agreement, the absent class members, no less than the parties, bargained for the arbitrator's construction of their agreement with respect to class arbitrability. We therefore reverse the judgment of the District Court. Because the issue of whether the arbitrator exceeded her authority in certifying an opt−out, as opposed to a mandatory, class is not before us in this appeal, we remand the case to the District Court to reexamine that issue in the first instance. REVERSED AND REMANDED.. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 11/18/2019. (nd) (Entered: 11/18/2019)
Transmission of USCA Opinion to the District Judge re: 172 USCA Opinion. (nd) (Entered: 11/18/2019)